Commissioner Of Police V. Christain Okoyen (1964)

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BRETT, J.S.C.

The respondent was convicted in the Sapele Magisterial District on charges under sections 277 and 369 of the Criminal Code of Mid-Western Nigeria. He appealed to the High Court, which allowed his appeal on both counts, and the prosecutor has appealed to this Court, as he has a right to do under section 69 of the Magistrates’ Courts Law.

The right of appeal of a prosecutor, however, only extends to errors in law: Police v. Ededey (1963) F.S.C. 291/1963; and as the ground on which the High Court allowed the appeal against the conviction on the charge under section 369 of the Code was one of fact, the appeal was not competent as regards the acquittal on that charge.

We have thus only to consider the appeal against the acquittal on the first charge. The essential parts of the charge read as follows:

“That you on the 20th day of June, 1961, in the Sapele Magisterial District possessed fifteen bottles of Penicillin ‘G’ 500,000 units (and other named substances) suspected to be poisonous matters and thereby committed an offence punishable under section 277 of the Criminal Code.”

The charge was defective In two respects. In the first place, it ought to have alleged that the substances set out in the charge were poisonous matters, not merely that they were suspected to be such. There was, however, sufficient and unchallenged evidence that the substances were poisonous. In the second place, the charge omitted any allegation that the respondent was in possession of those substances with Intent that they should be used for an illegal purpose.

In the High Court the judge was of the view that the respondent had not had adequate notice of the charges made against him, but he based this view on the scantiness of the evidence for the prosecution, which might have been a ground for reversing the findings of fact but does not affect the sufficiency of the charge in law. In our view it cannot be said that the respondent was misled or prejudiced in fact, since his defence was that he was never in possession of the substances in question, and his counsel, who had raised no objection to the validity of the charge, treated the charge as if it contained an allegation as to the intent of the respondent and submitted in his closing address to the magistrate that there was no evidence of an intent that the substances should be used for an illegal purpose.

Section 168 of the Criminal Procedure Act provides that “No judgement shall be stayed or reversed on the ground of any objection which ff stated after the charge was read over to the accused or during the progress of the trial might have been amended by the Court.” Section 166 provides that “No error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission.”

In spite of these provisions the Court has taken the view in certain cases, such as Okoro v. Police (1953) 14 W.A.C.A. 370, that an omission was so fundamental that a conviction could not be upheld, but in R. v. Ijoma (1962) F.S.C. 309/1961 this Court followed the reasoning of the Court of Criminal Appeal in R. v. McVitie [1960] 2 O.B. 483, and upheld a conviction on a count which was described as being defective in that it stated a known offence with incomplete particulars, where no substantial miscarriage of justice had taken place.

In Ijoma’s case a count in an information stated the offence as “Uttering” (not “Uttering a forged document”) “contrary to section 468 of the Criminal Code” and the Particulars of Offence contained no allegation that the document uttered was forged. Since in the present case the respondent and his counsel were in no way misled and knew what questions were in issue we are satisfied that no substantial miscarriage of justice has taken place, and we are of the view that, as in Ijoma’s case, the charge may fairly be described as stating a known offence with incomplete particulars.

Section 30 of the Supreme Court Act, 1960, enables this Court to exercise any power that could have been exercised by the High Court, and although section 104 of the Magistrates’ Court Law in force in Mid-Western Nigeria does not expressly empower the High Court to affirm the conviction and sentence of the court of trial, as section 40 of the High Court of Lagos Act does, we hold that this power is necessarily Implied. As regards the charge under section 277 of the Criminal Code, we allow the appeal, set aside the judgement given by the High Court on appeal, and affirm the conviction and sentence passed by the Magistrate’s Court. As regards the charge under section 369 of the Criminal Code we dismiss the appeal.

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