Dau V. Kano Native Authority Police (1946)
LawGlobal Hub Judgment Report – West African Court of Appeal
Joinder of Offences—Construction of Criminal Procedure Ordinance sections156 to 161.
Sections 157 to 161 of the Nigeria Criminal Procedure Ordinance are intended to define the cases of exceptions to the general rule for separate trials of distinct offences laid down by section 156.
Although section 158 does not contain the words ” whether in respect of the same person or thing or not “, the section being perfectly plain in its meaning, there is no justification for reading into the section words providing that the connected offences must be in respect of the same person or thing.
Appeal from the Supreme Court of Nigeria.
David and Alakija for Appellant.
Hay for Respondent.
The following joint judgment was delivered:
Appellant was convicted by the Magistrate Kano on seven charges of offences against the Moneylenders Ordinance.
The charges which arose out of three loans made to members of the Kano Native Authority were all tried together, and the appellant appealed to the Judge at Kaduna, who dismissed his appeal and he now appeals to this Court.
In this Court it was pointed out that in regard to the first count there is no evidence on the record as to the period for which the loan was made, and it is accordingly impossible to calculate the rate of interest charged. In consequence, the conviction on this count cannot be allowed to stand.
The main ground, however, argued in this appeal is as to whether the seven counts could be tried together.
Section 156 of the Criminal Procedure Ordinance provides:
” for every distinct offence with which any person is accused there shall be a separate charge and every such charge shall t tried separately except in the cases mentioned in sections 157 to 161 “.
We think that this section indicates how sections 157 to 161 are to be interpreted. They are intended to define the cases of exceptions to the general rule laid down in section 156, and are intended to operate independently of one another in describing the various cases, i.e. sets of circumstances, in which several charges may be tried together.
If, therefore, any one of these sections can be sensibly construed without reference to any of the others, such a construction is the proper one to make upon it, as describing the circumstances of the particular case.
In case No. 1, section 157, a person may be charged with committing up to three offences during a period of twelve months, whether the offences are in respect of the same person or thing or not.
This section has a second sub-section which would appear to be intended to extend the scope of the first sub-section referred to above.
The Court has been shown a copy of the Straits Settlements Penal Code and it would appear that section 157 is a truncated version of one of the sections in that Code. The truncation, however, has effected at least one vital difference in its meaning, as the full text of the Straits Settlements section makes it clear that
under it only offences of the same kind may be joined in one information and tried together.
In case No. 2, section 158 provides that:
” If in one series of acts or omissions so connected together as to form the same transaction or which form or are part of a series of offences of the same or a similar character more offences than one are committed by the same person charges for such offences, whether felonies, misdemeanours or simple offences, may be joined and the person accused tried therefor at one trial.”
This section substantially reproduces the rules of English procedure as to joinder of charges and as we read it really sets out the circumstances of two cases in which charges may be joined.
- Where the acts are so connected as to form the same transaction, and
- where they form or are part of a series of offences of the same or a similar character.
It will be noted that there is no time limit or limit as to number as set out in case No. 1, but the offences must be connected together in one or other of the ways prescribed and must not be disconnected offences as case No. 1 would appear to provide for.
It must also be noted that section 158 does not contain the words ” whether in respect of the same person or thing or not ” and it has been argued that the absence of these words renders it necessary that the connected offences must be in respect of the same person or thing and that words to this effect must be read into the section.
We agree that if the section were so obscure that the Court could not interpret it directly, the Court would be justified in resorting to the various recognised aids to interpretation, one of them being the importation of words inferred from other parts of the Ordinance which do not actually form part of the text of the particular section.
But as the section now under discussion is perfectly plain in its meaning without any such importation, we can see no justification for so doing.
It now remains to be seen whether the seven counts in this appeal do fit within the scope of section 158.
Three of them are for charging excessive interest on three separate loans made to three separate individuals.
Three more are for failing to keep a proper account of these same loan transactions.
The seventh is for failing to give a receipt for a payment made on account of one of the loans.
They are all offences under the Moneylenders Ordinance and appear to be part of a series of offences of a similar character.
We are of opinion that all seven counts could be joined and tried together, and we therefore dismiss this appeal so far as it relates to counts 2 to 7 inclusive.
Appeal dismissed as regard counts 2 to 7.
