Rex V. Landing Jameh (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Stealing contra. section 255 of Criminal Code—Questions of Jurisdiction of Trial Court, calling of further evidence beforecase raised by Appellant.fromAppeal Court and failure of Prosecution to prove a prima facie Appeal

Held: Appeal dismissed.Supreme

There is no need to set out the facts.Court,

exercising

S. A. Benka-Coker for Crown.appellate

C. H. D. During for Appellant.jurisdic-

tion.

The following joint judgment was delivered :—

KINGDQN, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND WEBB, C.J., SIERRA LEONE.

In this case the appellant was charged in the Provinoial Court of the South Bank Province with “theft by clerk or servant contrary to section 256 of the Criminal Code.” The particulars of the offence being given as follows :—

That accused being a clerk or servant to the Gambia Government on 8th October, 1937, stole from the Public Works Department in Bathurst ten cases of petrol of the value of £8 3s. 4d. property of His Majesty’s Government and did send to Cape St. Mary and deliver them to one J. K. Juf, alias Kuyu Juf, contrary to section 256 C.C.”

Before any witnesses were called the charge was amended by substituting section 255 of the Criminal Code for 256 of the Criminal Code and by omitting the words ” and did deliver them to one J. K. Jut alias Kuyu Juf.” The offence under section 255 is ” stealing by person in public service.”

At the commencement of the trial the appellant was represented by counsel, but counsel found it impossible, owing to indisposition, to continue to appear and after the conclusion of the evidence of the first witness for the prosecution the appellant was not represented.

At the close of the case for the prosecution the appellant slated that he did not wish to say anything, or call any witness or give evidence himself. The Commissioner of the South Bank Province, who constituted the Court, thereupon delivered a considered judgment, at the conclusion of which he found the

appellant guilty and sentenced him to nine months I.H.L. Against that verdict the appellant appealed to the ‘Supreme Court on questions both of law and fact. He also appealed against the sentence. The Supreme Court dismissed the appeal against conviction both on law and fact and also dismissed the appeal against sentence. Against that, decision of the Supreme Court the appellant has now appealed to this Court on questions of law, no appeal to this Court is open to him on questions of fact or against the sentence.

Shortly the facts relied upon by the prosecution to prove the offence are that the appellant was Chief Driver of the Public Works Department and in that capacity was in charge of what is known as ” the small store ” in Bathurst which store is the property of the Government where small quantities of Government petrol were kept under the control of the appellant, who issued petrol to other Public Works Department drivers as and when it was required for the motors or tractors which they drove. That on the day in question the appellant caused to be loaded from this store ten cases of Government petrol into the tractor of one of the drivers named Abdulai Fal, to whom he then issued directions to take the petrol to Waelter’s compound at Bakau, a place in the South Bank Province. Fal did so and the petrol was unloaded and put into the house in Waelter’s compound. Subsequently the cases of petrol were observed to be dealt with in such a way as to lead to the inference that they had been stolen. It was not part of the prosecution case that the Government was able to show that it had lost any petrol. The case was put no higher than this, all the petrol in the small store was Government petrol and that it was stored and issued in such a way that an accurate check was impossible, so that it would not be difficult over a period to accumulate a surplus of as much even as ten cases.

The first point taken in this Court on behalf of the appellant goes to jurisdiction. It was contended that, assuming the prosecution story to be true, the theft (if any) took place wholly in Bathurst and that consequently the only Courts with jurisdiction to try the case were those with jurisdiction over offences committed in Bathurst, of which the Provincial Court of the South Bank Province is not one. This point raised in both the lower Courts and overruled on the ground that the offence was a continuing one and therefore cognisable in the Provincial Court under the provisions of section 61 of the Criminal Procedure Code, the relevant part of which reads :—

” When an offence is ” to be committed in more

” it may be inquired into
1C diction over any of such

a continuing one, and continues local areas than one

• •

or tried by a Court having jurislocal areas.”

It is only necessary to refer to one of the several cases quoted to us to show that the view of the two lower Courts was correct. In the case of Griffith v. Taylor (1876) 2 C.P.D., 194 at page 202 Cockburn, C.J., said ” if a stolen chattel is carried over a ” considerable space by the thief, the asportavit continues so long ” as the removal continues, and the taking in point of law, ” continues too.”

That disposes conclusively of the point as to jurisdiction.

The appellant then applied to this Court for an order that one of the witnesses called at the trial should be summoned to appear before this Court to be further examined. This application is divisible into two parts : —First the appellant wished to recall the witness, Cecil Hugh Philp, the Public Works Department Accountant and Storekeeper, in order that he might testify that the record made by the trial Court of his evidence does not convey the meaning he intended. A similar application was made to the Supreme. Court at the hearing of the appeal before it, and in our opinion, was very properly refused by that Court. If the appellant wished to call that decision in question, his proper course was to appeal to this Court against it, on the ground that the Supreme Court had not exercised its discretion judicially. He has not taken that course and would not have been likely to succeed if he had. This Court will certainly not now entertain a fresh application in the same sense. Secondly the appellant wished the same witness recalled to give evidence similar to the evidence which he had given in another case subsequently both to the trial of this case and to the hearing of the appeal both to Supreme Court. The evidence which it was alleged that Mr. Philp had given in the other case and would repeat to this Court, if he were allowed to, was to the effect that he had since made a careful examination of the petrol bought and petrol issued out and found no shortage. Such evidence would not be of much value since, as already pointed out, it was not part of the case for the prosecution that there was a definite shortage which could be proved, and this witness had sworn at the trial that no reliable check was possible. Therefore in the ordinary way there would be no good reason for taking the unusual course of allowing additional evidence to be called in an Appeal Court. But in this instance there is the further point which is conclusive against this part of the application, namely, that any further evidence which could be given could, only affect the facts and not the law and this Court cannot entertain an appeal on the facts. Even if this Court heard the evidence and after doing so was satisfied that the trial Court was wrong to convict on the facts, it would be powerless to quash the conviction, because it has no jurisdiction to entertain an appeal on questions of fact. For these reasons the Court refused the application.

The next point made on behalf of the appellant was that the trial was irregular and illegal because the Court went on with the case in the absence of counsel for the appellant, who was too ill to attend, and without granting such an adjournment as would allow either the counsel who had already appeared to recover his health or another counsel to be brought from Sierra Leone to appear. As to this it need only be said that the question of granting an adjournment is one in the discretion of the Court and unless it can be shown that that discretion has not been exercised judicially an appeal Court will not interfere. In the present case the trial Commissioner appears to have been exceedingly indulgent to appellant and his counsel in the matter of adjournments and in our view there is no ground even for complaint still less for suggesting that the discretion had not been exercised judicially.

The only other point of substance submitted on behalf of the appellant was that the prosecution did not make out a prima facie ease, which justified the trial Court in calling upon the appellant for his defence, because no evidence was led to show that any Government petrol had been lost. But it is a well established law that proof that goods of the prosecutor have been taken may be established by the circumstances of the case, although the witnesses for the prosecution cannot swear to the loss of the article said to be stolen. In this respect the present case appears to be as nearly as may be on all fours with the case of Rex v. Mockford (11 Cox 16 C.C.R.). There was, in our opinion, sufficient in the circumstances of the case to justify the finding of the trial Court that Government petrol was stolen.

These are the reasons which led us to dismiss the appeal after hearing the argument put forward by the appellant’s counsel on his behalf.