Samuel Clegg V. Commissioner Of Police (1949)
LawGlobal Hub Judgment Report – West African Court of Appeal
Criminal Law—Postal offence contrary to section 164 of the Nigeria CriminalCode—Meaning of ” wilfully “—Weight of evidence—Observations on thedesirability of expedition in conduct of criminal trials.
The offence created by section 164 of the Nigeria Criminal Code is stated therein to be a felony and is one of extreme gravity, and involves a degree of criminality in which mens rea is an essential ingredient. ” Wilfully ” in the section, therefore, does not mean only that the act of delivery must be wilful but that there must be an intention on the part of the accused to deliver the postal matter to the wrong person.
Appeal from the Supreme Court of Nigeria (Appellate jurisdiction). Somolu for Appellant.
Amachree, Crown Counsel, for Respondent.
The following judgment was delivered:
Verity, C.J. This appeal was allowed on the 21st July, 1949, and we stated that we would give our reasons at a later date.
The appellant was convicted in the Magistrate’s Court, Ebute Metta, of an offence under section 164 of the Criminal Code. He appealed to the Supreme Court and his appeal was dismissed. He then appealed to this Court and the argument turned upon the construction of the section under which he was charged and the question whether the appellant’s conduct as disclosed by the evidence fell within the section if properly construed.
The section provides that
” Any person who, being charged, by virtue of his employment, or by virtue of any contract, with the delivery of any postal matter or telegram, wilfully delivers it to a person other than the person to whom it is addressed, or his authorised agent in that behalf, is guilty of a felony, and is liable to imprisonment for three years.”
The case for the prosecution was that the appellant, who is a postal clerk and admittedly charged with the delivery of postal matter by virtue of his employment as such, delivered two registered postal parcels to a person other than the person to whom the parcels were addressed or his authorised agent. The defence is, in effect, that the appellant delivered the parcels to a person whom he believed to be the person to whom the parcels were addressed and that even if, in fact, he delivered them to the wrong person he did not do so wilfully in the sense of knowing at the time that the person to whom he delivered the parcels was not the right _person. It was submitted on behalf of the appellant that unless the delivery was ” wilful ” in the above sense no offence under the section has been committed. It was submitted by Counsel for the respondent, however, that the introduction of the word ” wilfully ” does not import mens rea as an essential ingredient of the offence but means no more than that the mere act of delivery must be wilful.
We found ourselves unable to agree with this latter submission. The offence created by the section is one of extreme gravity. Although the term ” felony ” is the subject of a purely artificial definition in the criminal code, involving few of the incidents of that term at Common Law, it is nevertheless the gravest
of the three classes of offence created by the Criminal Code and does involve, in our view, a degree of criminality in which mens yea is an essential ingredient.
It is not, in our opinion, an offence which can be placed in the same category as those statutory offences of a minor character in which proof that the person charged has committed a prohibited act is sufficient to establish guilt irrespective of the state of mind or the existence of guilty knowledge on the part of the defendant. The introduction of the word ” wilfully ” by no means detracts from the degree of criminality involved in the commission of the offence, for although as was said by the learned author of Kenny’s Outlines of Criminal Law (7th Edition, p. 43) words such as ” ‘ knowingly ‘, maliciously ‘, wilfully ‘, ‘ negligently ‘ and so forth ” seldom add in any way to the degree of melts rea requisite, ” yet “, he adds, their effect is ” to throw on the Crown the obligation of proving the ordinary mens sea by further evidence than that mere inference from the actus FEW which . . . is ordinarily sufficient to prove it “.
The offence under this section is not the mere voluntary delivery of postal matter to a person other than the person to whom it is addressed. It is inconceivable that the legislature should have intended that the mere delivery of a letter to the wrong person in the belief, however erroneous, that he was the person to whom the letter was addressed should be a felony and render the postal clerk liable to a heavy term of imprisonment. In our view, the delivery must be wilful in the sense that, knowing that the person to whom the postal matter is delivered is not the person to whom it is addressed, the accused nevertheless intentionally delivers it to him, for in our opinion, the word ” wilfully ” governs the whole of the circumstances constituting the offence and cannot be restricted to a mere consciousness of the physical act of delivery of his own volition.
The question, therefore, to which the Magistrate and the learned Judge in the Court below, should have addressed their minds was not the interpretation of the word ” wilfully ” as applied to the mere act of delivery nor the question whether the appellant failed to exercise any particular degree of caution in the delivery of the parcels in question, but whether he knew at the time of the delivery that the person to whom he delivered the parcels was not the person, or did not believe that he was the person, to whom they were addressed and nevertheless intentionally delivered them to that other person.
Counsel for the respondent further submitted, however, that even if it were necessary to establish mens yea there is sufficient evidence to prove that the appellant in fact acted dishonestly in the delivery of these parcels. The learned Judge in the Court below would appear to have sought and to have found evidence which, in his view, reflected such dishonesty on the part of the appellant, but we cannot help feeling that had he fully appreciated the real nature of the offence and the full burden of proof which rested upon the prosecution he would have been impelled to give that aspect of the case closer consideration.
While we are indebted to Counsel for the appellant for some very helpful argument on the hearing of the appeal, we think that it is to be regretted that he did not submit to the Magistrate at the trial and to the Judge on appeal the very useful analysis of the evidence with which he favoured this Court and which has enabled us to give that detailed consideration to the facts of the case which does not appear very evident in the judgments in the Courts below.
It is true that in the course of his judgment the learned Judge refers to the evidence of the witness Kolawole, which he considered not to have been challenged and which showed in his view that ” the appellant acted dishonestly and knew that he had so acted “.
This conclusion is based upon acceptance of the story told by Kolawole in detail, but it does not appear that this story was submitted to critical examination either by the trial Magistrate or the Judge on appeal, nor were they assisted in such an examination by Counsel. Such an examination, however, would have
revealed a number of inconsistencies which it is difficult, if not impossible, to reconcile on the basis of honest mistake on the part of the witness. It can hardly be said that the witness’ evidence on the point of the dates upon which he alleged he had interviewed the appellant and been ” put off ” by him was unchallenged. He was cross-examined at least in regard to the dates of these alleged interviews and the evidence given by the appellant contradicted the witness on this point. In the first place the witness alleged that he first visited the Ebute Metta Post Office and saw the accused on the 19th December, 1947, a Friday; that he saw him twice on that day, having gone to the Broad Street Post Office, between these two visits to Ebute Metta; that he interviewed the appellant for the third time on the following day, which would have been the 20th December, a Saturday; again on the day following, that is to say, the 21st December—a Sunday, which is manifestly untrue; and finally for the fifth time two days later, that is to say, the 23rd December. When questioned in cross-examination as to his alleged visit on the 21st December he corrected his evidence and stated that the first visits’ were on the Thursday, that is to say, the 18th December, and the two following visits on the Friday and Saturday. This correction involved him, however, in a further contradiction, for he had testified that he had received the delivery notes on the 18th December and that on the following day he went to the Ebute Metta. Post Office. This statement in itself is inconsistent with the evidence of his sister, who stated that she had handed the delivery notes to him on the 13th December. The whole story of these frequent visits to the appellant is, moreover, not supported by the letter written by the witness to the Director of Posts and Telegraphs on the 30th December, in which he states that he received the delivery notices on 18th December and having hastened to the Post Office at Ebute Metta the following day discovered that another man had forged his name on two parcel slips and had claimed the packets. This letter, which was written hardly more than ten days after the incident, is very different from the story told by the witness to the Magistrate nearly nine months later, and whatever may be said as to the possibility of a mistake as to precise dates it is impossible to reconcile the account of hastening to the Post Office and being told forthwith of the claiming of the parcel on the previous day with that of his numerous visits spread over four or five days before eventually he succeeded in getting at the fact that the parcels had already been delivered to someone else. Between these two stories no reconciliation can be effected. While, therefore, this inconsistency reflects upon the credit of this witness it is significant that the account originally given by him in his letter of the 30th December is not inconsistent with the evidence of the appellant, who has said throughout that he delivered the parcels to a person representing himself to be Kolawole on the 18th December and that Kolawole himself came on the 19th and was told of the delivery. In these circumstances we think that it would be dangerous to place too much weight upon the belated story told by Kolawole in the Magistrate’s Court, and yet it is upon this evidence that the learned Judge rests his conclusion as to the dishonesty of the appellant’s conduct. Shorn of these embellishments the truth would appear to be as told by the appellant: that two registration slips and two delivery notes were issued by the Post Office, that the former were produced to the appellant on the 18th December by a person who represented himself to be the person to whom the parcels were addressed, that after a measure of enquiry which may or may not have been adequate, the appellant delivered the parcels to this person, and that on the following day the witness Kolawole applied for the parcels, producing the delivery notes, and was told that the parcels had already been delivered.
We are fully aware of the care which should be taken by Post Office clerks to ensure that postal matter is delivered only to the right person and we are by no means satisfied that the appellant exercised that care in full measure, but there
is a great deal of difference between lack of care in the performance of his duties and the commission of a grave crime.
We are not satisfied that the evidence in this case justifies the conclusion that the appellant, at the time when he delivered the parcels on the 18th December, wilfully delivered them to a person other than the person to whom they were addressed within the meaning of the section under which he was charged.
It v► as for this reason that ye alloyed the appeal, setting aside the conviction and sentence and directing that a verdict of acquittal be entered.
We wish to add two otservations. In the first place we would draw attention to the dangers inherent in the issue of two slips or notes in respect of one postal packet. It makes it possible thit cne of these sl ps may get into the hands of a third party and facilitate theft by him, it may give rise to the impression in the mind of the person to vi.h.cm they axe addressed that there are in fact two packets instead of ore, or it may suggest to that person the possibility that having by some sutterfuge ottained delivery of the parcel by the production of one slip he may obtain cornrensation in respect of wrongful delivery upon production of the second. In our view, any one of these things may have happened in the present case, for the inconsistencies and contradictions in the evidence of the principal witness do not, in our view, preclude even the last possibility. While we would not entirely acquit the appellant of all negligence (though perhaps some consideration might be given to the volume of work which may devolve upon the Post Office clerks at that time of year) we would recommend that steps be taken to ensure that one notice only is issued in respect of each packet and not two separate or readily separable notices.
In the second place we wish to draw attention to the prolonged lapse of time between the institution of these proceedings in the Magistrate’s Court and their conclusion therein. The offence was alleged to have been committed between the 18th and 19th December, 1947; the matter first came before the Magistrate’s Court more than seven months later, on the 30th July, 1948; the hearing commenced on the 7th September, 1948, was adjourned no less than twenty times during the next six months and was only finally disposed of by judgment on 8th March, 1949. There is nothing on the record to show the reason for these numerous adjournments, save that on the 17th December, 1948, the hearing was adjourned for thirteen days at the request of the defence. It is quite impossible for us to say that a trial can be conducted satisfactorily under such conditions. It is well nigh impossible, moreover, that a Magistrate, delivering judgment six months after a witness has given evidence, can base his conclusion as to the credibility of that witness upon the impression made in the witness box six months before. There is nothing to show that any witness who gave evidence in the case resided outside the Lagos Magisterial District nor that any difficulty was or could be experienced in securing their attendance. We hope that this is but an isolated instance of this kind of delay. It may not be so, however, and we would therefore impress upon Magistrates the desirability of taking steps to avoid such delays in the course of a hearing, in so far as it may be humanly possible to avoid them.
Appeal allowed.
