Thomas Charles Okeke V. Commissioner Of Police (1948)
LawGlobal Hub Judgment Report – West African Court of Appeal
Criminal Law—Nigeria Criminal Code, section 404 (1) (a)—Duplicity-Nigeria Criminal Procedure Ordinance, sections 154 (5) (a) and 463 (1) andSecond Schedule—Whether payers of money demanded are accomplices—WestAfrican Court of Appeal Ordinance, section 11 (1) (Proviso).
Allegations both of ” demanding ” and ” taking ” should not appear in one charge for offences against section 404 (1) (a) of the Nigeria Criminal Code because ” demanding ” and ” taking ” are each distinct and separate offences.
A person who pays money in response to an unlawful demand is not an accomplice in the demand.
Proviso to section 11 (1) of the West African Court of Appeal Ordinance applied. Cases referred to:
- R. v. Molloy, 15 Cr. App. R. 170; (1921), 2 K.B. 364; 90 L.J.K.B. 862; 85 J.P. 233; 37 T.L.R. 611; 65 Sol. Jo. 534; 27 Cox C.C. 34.
- R. v. Disney, 24 Cr. App. R. 49; (1933), 2 K.B. 138; 102 L.J.K.B. 381; 149 L.T. 72; 97 J.P. 103; 49 T.L.R. 284; 77.Sol. Jo. 178; 29 Cox C.C. 635.
- R. v. Wilmot, 24 Cr. App. R. 63; 149 L.T. 407; 97 J.P. 149; 49 T.L.R. 427; 77 Sol. Jo. 372; 29 Cox C.C. 652.
Appeal from the Supreme Court-of Nigeria (Appellate Jurisdiction). Bell-Gam, for Appellant.
Field, Crown Counsel, for Respondent.
The following Judgment was delivered:
Abbott, J. This is an appeal from a decision of the Supreme Court of Kaduna Judicial Division upholding the conviction of the appellant by the Magistrate of the Jos Magisterial District for an offence against section 404 (1) (a) of the Criminal Code.
For the sake of clarity the section under which the appellant was charged and convicted may be set out as follows:—
” Any person who, being employed in the public service of Nigeria . . . corruptly and under cover of his employment demands or takes property from any person . . . is guilty of a felony . . . “
The facts found by the Magistrate, and this Court sees no reason whatsoever to differ from his findings of fact, are shortly as follows. The appellant was at the material time a station-master in the service of the Nigerian Railway, which is a public service within the meaning of the above-quoted section, and he both demanded and received £2, a payment to which he was not lawfully entitled, from a member of the public as a condition of putting a railway wagon at his disposal for the purpose of carrying goods by rail. The Magistrate found that the appellant demanded and took this money corruptly and under colour of his employment.
Five grounds of appeal were presented, but on behalf of the appellant only two were argued, namely:—
- That the charge is bad for duplicity and uncertainty, and
- That the appellant was convicted on the uncorroborated testimony of two accomplices, to wit, these two members of the public who were parties to the payment of the money to the appellant.
In regard to the first ground of appeal it is not necessary to set out in full the whole of the charge upon which the appellant was convicted, but it is necessary to record that it contains three very material words, namely, ” demand or take “, to cover the acts upon which his conviction was founded. It is clear that the Magistrate not only intended to convict the appellant of having demanded the money and of having taken the money, but that he also convicted the appellant of both those acts—the demanding and the taking. On the part of the appellant it has been argued that the demand and the taking each constitutes a separate offence—that the charge is therefore bad in law in that it violates the principle that separate offences may not be joined together in a single charge or a single count of an indictment. In opposition to this argument learned Counsel for the Crown has sought to rely upon section 154 (5) (a) of the Criminal Procedure Ordinance, which, shorn of words which this Court considers to have no application to the present appeal, reads as follows:—
“Where a written law constituting an offence states . . . any part of the offence in the alternative, the acts . . . stated in the alternative in the written law may be stated in the alternative in the charge.”
This section, with the exception of the omission of the three words ” the doing or ” which omission is immaterial to the present issue, was taken from rule 5 of the Indictment Rules, 1915, and might seem, at first sight, to put an end to the argument of the appellant’s learned counsel. In the view of this Court, however, section 404 (1) (a) constitutes two offences, the demanding of property and the taking of property—a person may be guilty of one and not guilty of the other. Taking is not part of demanding and, conversely, demanding is not part of taking—each is a separate act and each is a separate offence.
The following decided cases have laid down that separate offences shall not be joined together in a single charge or a single count of an indictment—Rez,v. Molloy (1), Rex v. Disney (2), Rex v. Wilmot (3). This Court sees no reason to distinguish between the law decided in those cases, all decided since the making of rule 5, of the Indictment Rules, 1915, and the present case, and we hold that section 154 (5) (a) of the Criminal Procedure Ordinance is without application to the present case. The Crown has sought to rely upon yet another argument which, if well-founded, would enable a single charge or a single count in an indictment to be regarded as good and sufficient according to the law of Nigeria. The learned Crown Counsel has referred this Court to section 463 (1) of the Criminal Procedure Ordinance, which makes use of the following words :–
” . . . the forms and precedents contained in the . . . Second and Third Schedules may, in accordance with any instructions contained in the said forms, and with such variations as the circumstances of the particular case may require, be used in the cases to which they apply and, when so used, shall be good and sufficient in law.”
The forms and precedents contained in the Second and Third Schedules are forms or precedents of charges and informations respectively. This section should be read in conjunction with section 150 of the same Ordinance which reads as follows:—
“Charges may be as in the forms set out in the Second Schedule and may be modified in such respects as may be necessary to adapt them to the circumstances of each case.”
Although there is no precedent in either Schedule for an offence against section 404 (1) (a) of the Criminal Code learned Counsel for the Crown has asked this Court to say that because the Schedules contain precedents where charges appear to be framed in one count with the use of the word ” or “—used either conjunctively or disjunctively—the particular charge in this case is to be regarded
as good and sufficient in law by the provisions of section 463 (1) of the Criminal Procedure Ordinance. The Court regards that argument as wholly fallacious. The words ” with such variations as the circumstances of the particular case may require ” in section 463 (1) and the provision for the modification and adaptation of charges in section 150 show that it was never intended that there should be a slavish adherence to the Schedules, but that when once a precedent has been properly modified and adapted to the circumstances of a particular case then, and only then, will it be good and sufficient in law. This Court is of the opinion that the charge against the appellant was wrongly framed both in the light of the English decisions and of the Criminal Procedure Ordinance.
It is necessary, however, to deal with the second ground of appeal—that the appellant was convicted upon the uncorroborated testimony of accomplices. There is no substance whatsoever in this ground and it is quite untenable in argument that those who met the monetary demand of the appellant were accomplices to the demand. Nor, in meeting the demand, could they be regarded otherwise than as victims of the appellant’s rapacity.
Notwithstanding that it has beta decided that the first ground of appeal is well-founded this Court has now to consider whether the appellant was involved in any miscarriage of justice.
It has not been suggested, nor could it reasonably be suggested, that the evidence fell short of that which was requisite for the appellant’s conviction for the two offences—of demanding the money and of taking it. The Magistrate accepted the truth of that evidence and, as has already been pointed out, this Court is not prepared to disturb his findings of fact. The all-important question to which this Court must direct its attention is—by the joinder of two offences in one count of the charge was the appellant put at such a disadvantage in the trial Court that he was impeded in or prevented from putting the whole of his defence before that Court ? In the first place, it appears, from the provisions of sections 156 et seq. of the Criminal Procedure Ordinance, that had the appellant been charged with the two separate offences in two separate counts in the charge the foregoing question would not have arisen at all. In the second place, it is manifest upon the record of the proceedings that the appellant, through the two learned Counsel who represented him, made a full defence to each offence—in the same way as, undoubtedly, would have been done had the offences been charged in separate counts. In the third place, the two counsel who represented the appellant in the Magistrate’s Court raised no objection there on the ground of their own or their client’s embarrassment—they were not bound to do so, but the fact remained that they did not. In the view of this Court the appellant was in no wise embarrassed by what can only be described as a technical irregularity in the preparation of the charge, and an irregularity which does not point at all in the direction of the appellant’s innocence.
In the view of this Court every case such as this, for the purpose of exercising power under the provisions of the proviso to sub-section (1) of section 11 of the West African Court of Appeal Ordinance, must be dealt with on its merits. There are no merits in this appeal and since this Court exists for the purpose of the avoidance of miscarriages of justice, and not for creating them, this appeal must be dismissed.
Appeal dismissed.
