Robert Adeniyi Jones Vs Inspector-general Of Police (1960)
ADEMOLA, CJF
We allowed the appeal of the appellant on the 11th March, 1960, and stated that we would give our reasons later. We now do so:
The appellant and another, both Accounts Clerks at the Nigerian Ports Authority at the material time, were charged before a Magistrate Grade I. Lagos, with the offence of stealing. The charge reads:
‘That you Robert Adeniyi Jones and Francis Oladipo Onisemo on the 22nd – 23rd December, 1958, at the Accounts Branch of the Nigerian Ports Authority Office. Marina Street, Lagos did steal a pay packet containing the sum of 34:3s:4d., property of the Nigerian Ports Authority and thereby committed an offence contrary to section 390(6) of the Criminal Code.’
The trial commenced on the 16th March, 1959, when both the appellant and the 2nd accused in the case elected summary trial and pleaded not guilty. The case was then adjourned. Thereafter it was part heard on different dates and adjourned for further hearing. On the 25th May, 1959, at the close of the case for the prosecution, it was submitted on behalf of the appellant and the 2nd accused that a prima facie case was not made out against them. The learned Magistrate adjourned for a ruling which he gave on the 9th June, 1959. In his ruling he upheld the submission made on behalf of the 2nd accused whom he promptly discharged. The appellant was called upon for his defence. Further hearing was at that stage adjourned till 12th June, 1959
When the case was called on that day. the learned Magistrate apparently without any application from either side, proceeded and minuted as follows:-
COURT Under section 163 of the Criminal Procedure Ordinance I hereby amend the charge to read ‘stealing the sum of £34:3s:4d property of the Secretary of the Nigerian Ports Authority on the 22nd to 23rd December. 1958.’
Charge read as amended to the accused who pleads not guilty.’
The case was there and then adjourned till the 15th June, 1959, for the defence to be heard. On that day the appellant gave evidence, called no witnesses and closed his case.
In a considered judgment next day the appellant was found guilty and sentenced, to a term of 9 months imprisonment with hard labour. The penultimate paragraph of the judgment was as follows:-
‘Having thus amended the charge I find the first accused guilty of stealing the pay packet containing the sum of £34:3s:4d property of the Secretary of the Nigerian Ports Authority, Lagos, on the 22nd to 23rd December, 1958.’
From that judgment the appellant appealed to the High Court of Lagos, but his appeal was dismissed. The 2nd and 3rd grounds of his appeal, which were indeed two of the grounds of appeal also argued before us and with which we are concerned, relate to the amendment of the charge. Sections 163 and 165 of the Criminal Procedure Ordinance deal with amendment of a charge.
It is necessary on this point to go back to the proceedings before the learned Magistrate after he had of his own motion amended the charge. Purporting to be acting under section 163 of the Criminal Procedure Ordinance the learned Magistrate read over the amended charge to the appellant and took his plea in accordance with section 164 of the Criminal Procedure Ordinance. He did not, however, inform the appellant, who at that stage was not being defended by a Counsel, of his right to recall the witnesses who had given evidence if he had any question to put to them as a result of the amendment to the charge.
Counsel for the appellant has argued before us that as the appellant was not defended by Counsel, it was the duty of the Magistrate to have explained to him the provisions of the law as contained in section 165 of the Criminal Procedure Ordinance and that failure to do so was fatal. For this contention Counsel relies on the case R v. Bisiriyu Shoaga, 14 W.A.C.A. 22.
We do not doubt the decision in Bisiriyu Shoaga; we agree with it: but like the learned Chief Justice who heard the appeal in the High Court, we are of the view that it is not in every case that the irregularity in a trial caused by not recalling witnesses results in adverse effect on the defendants case; the omission does not In every case occasion a miscarrige of justice. Where a judge on hearing an appeal is satisfied, as in this case, that the omission does not occasion a miscarriage of justice, we think under section 38 of the High Court of Lagos Ordinance, it is competent for him to dismiss an appeal staked on that issue.
It was further contended that the learned Magistrate erred in not putting the appellant on his election as required by section 304 after he had amended the charge; that the appellant should have been called upon to elect de novo to be tried summarily. The learned Judge of appeal rejected this submission and stated that the case Fox v. Commissioner of Police 12 W.A.C.A: 215 is not an authority for this view. We agree that case does not decide the point; in fact it was unnecessary to decide this point in Foxs case because in that case, after the amendment of the charge, the accused was called upon by the Magistrate for his election de novo to be tried summarily. In the present appeal, however, the learned Judge of appeal in the High Court is of the view that sections 164 and 165 of the Criminal Procedure Ordinance contain all that should be done when a charge is amended and that section 304 is incompatible with the two sections.
The learned Chief Justice finally sums up his views as follows:-
‘If section 304 is examined it will be seen that it can have no application when a charge is amended in the course of a trial. Under section 304 the election must be made before the plea is taken. When a charge is amended the law enjoins that the accused be recharged and his plea taken forthwith. It is too late and pointless after that to require the accused to elect.
After a careful examination of sections 163,164 and 165 of the Criminal Procedure Ordinance considered with section 304, we are unable to agree with the view of the Learned Chief Justice concerning an amended charge in the course of a trial before a Magistrate considered with the application of section 304(2) of the Criminal procedure ordinance. We are of the view that when a charge has thus been commenced, and the accused must be put to his election whether or not he will agree to be tried summarily on that amended charge. It may be that other matters have been introduced into the amended charge for which the accused would prefer to be tried by a judge, his consent to being tried summarily not having gone any further than the original charge.
It is difficult to see what prompted the learned Magistrate in this matter to amend the charge which, in the circumstances, was unnecessary. The original charge, under section 390(6) C.C., clearly portrays a charge of stealing by a servant; the amended charge cannot be said to imply this although it would appear the learned Magistrate intended the charge to be under the same subsection (6): nor is it clear whether the appellant was convicted under section 390(6) C.C. simpliciter.
We are clearly of the view that the learned Magistrate was wrong by not putting the appellant on his election de novo after he had amended the charge. In our view this rendered the whole proceedings before him a nullity.
The learned Senior Crown Counsel arguing the case for the Respondent called our attention to section 44 of the High Court of Lagos Ordinance and submitted that under section 304(3) of the Criminal Procedure Ordinance the trial would not have been null and void if at any time after his plea was taken on the amended charge and before he was called on to make his defence to that charge the appellant had consented to being tried summarily by the Magistrate. This being so, he (the Senior Crown Counsel) submitted that the defect or error was one which could have been amended by the Magistrate’s Court and that no objection could be taken to it on appeal. We do not think this section of the High Court of Lagos Ordinance applies in a case of this nature.
For these reasons we allowed the appeal and we appeal and we direct that the appellant, who had only a few more days to serve in prison should be discharged
Appeal allowed.
Other Citation: (1960) LCN/0874(SC)
