Alliu Kadiri Edu V. The Commissioner Of Police (1952)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law and Procedure—acquit—Time for pleading—When plea good—Post Office employee acquitted ofstealing parcel—Subsequent charge of negligently losing it.
Criminal Code, section 173 (2)—Post Office employees—Negligence resulting in loss of parcel.
Criminal Procedure Ordinance—Sections 161 and 181 on autrefois acquit—Sections 217 and 221 on when it should be pleaded.
Appeals in Criminal Cases—Ground of law—Evidence of negligence—When ground can succeed.

Facts

The appellant (Edu) was a Post Office employee in charge of parcel delivery; he had a cage to keep registered packets in and cupboards with locks of which he had the key, for packets suspected to be liable to duty, and these cupboards were provided at his special request by his superior, who also gave him two assistants. There was a departmental instruction that he should not hand his keys to his assistants.

A suspected packet which he had locked up was lost and the appellant was first tried on a charge of stealing it, of which he was acquitted. He was later charged under section 173 (2) of the Criminal Code with negligently losing it and pleaded not guilty. After the second trial began, during the examination of the first witness, Counsel for the appellant submitted that appellant could not be tried again as he had been acquitted of stealing the identical packet, but was overruled by the Magistrate, who went on with the case and eventually convicted the appellant of negligently losing the packet.

In the appeal to the Supreme Court it was argued for him that he should not have been tried again. Counsel for the Police did not object that the appellant did not himself plead in bar of the trial or that the submission before the Magistrate was made too late as the appellant had already pleaded not guilty.

The point was argued under sections 181 and 161 of the Criminal Procedure Ordinance (text in judgment below) and owing to the difficulties of the text in section 181 the learned Judge considered the case solely in the light of English law and decided against the appellant.

The other ground of appeal before that Judge was that the evidence had not established that the loss of the postal packet was due to the negligence of the
appellant. This ground also failed.

In substance the same points were taken in the further appeal. On the first point—described in the judgment below as the point of autrefois acquit—it was argued for the appellant that section 181 of the Criminal Procedure Ordinance should be applied by deleting the words ” of sub-section (1) ” before the words “of section 161 ”, and that the case would come within section 161 as the facts were the same and the evidence of negligently losing the packet substantially the same as in the first trial for stealing it, and that the appellant could have been tried with both offences in the first trial or with negligently losing the packet as an alternative to stealing it.

On the incidental question of whether the submission to the Magistrate did not avail as a plea in bar Counsel said that he did not rely on section 221 (a) of the Criminal Procedure Ordinance but on the second case in section 181 (text in judgment below).

On the question of negligence under section 173 (2) of the Criminal Code, it was argued for the appellant that ordinary care was enough and that standard could not be raised by departmental regulation; that giving the cupboard keys to the assistants was not negligence; and that apart from breach of the regulation the evidence was not conclusive either way.

Held

(1) Section 181 of the Criminal Procedure Ordinance should be applied as if the words ” of sub-section (1) ” in the penultimate line were not there.

(2) The facts to be proved in a charge of stealing are not the same as the facts to be proved in a charge of negligently losing a packet laid under section 173 (2) of the Criminal Code, and the two charges could not have been brought in the same case either together or in the alternative under section 161 of the Criminal Procedure Ordinance, nor could the appellant have been convicted of negligently losing the packet in the first trial on the charge of stealing it; therefore neither section 161 nor section 181 enabled the appellant to escape from the second trial.

Held also: The appellant was alive to his duty to ensure the safety of suspected packets by keeping them apart under lock and key and handling them in person, and giving his keys to his assistants was to his knowledge fraught with risk of loss; therefore he was guilty of negligence, apart from the departmental
regulation.

Obiter: (1) A defence under section 181 of the Criminal Procedure Ordinance that a person accused of an offence is not liable to be tried because of a former case ought to be pleaded in bar by that person himself before he pleads not guilty.

(2) In an appeal on a point of law relating to negligence, the appellant can only succeed if there was no evidence at all of negligence.

Appeal dismissed.