Rex V. Peter Kalle (1937)
LawGlobal Hub Judgment Report – West African Court of Appeal
Fraudulent false accounting and stealing contrary to sections 438 (a), (b) and 390 (6) of the Criminal Code—Duplicity of counts—Proviso to section 10 (1) of Ordinance 47 of 1933.
Held : Court will not interfere where there is no substantial miscarriage of justice, one count quashed, one confirmed and appeal dismissed.
There is no need to set out the facts.
Ivor Brace for Crown.
Appellant in person.
The following joint judgment was delivered :-
BUTLER LLOYD, Ag.C. J., NIGERIA, BROOKE AND MARTIN-DALE, JJ.
The grounds of appeal in this case do not appear on the record, but from a long written address by the appellant, which was read to the Court, they were found to be :-
- that he had been thrice punished for the same offence, and
- that the sentence is excessive.
Crown Counsel asked to add a third ground which clearly appeared on the record, viz. :—
- the counts are bad for duplicity.
As regards (a) the appellant was confusing his civil and criminal liability in the first place, and in the second, as was pointed out, conceived that his sentence of imprisonment on previous offences unconnected with those for which he is now charged covered his subsequent offences.
As regards (b), the sentence which is made to run concurrently cannot be regarded in any way as excessive.
The remaining additional ground, that the charges were bad for duplicity, is the only substantial one. The statement of offence in the first count charges the appellant with having committed two separate offences under different subsections of section 438 of the Criminal Code and then proceeds in the particulars to set out various specific offences each of -which should have been included in a separate count. The plea was taken to a single count including these separate offences.
This conviction cannot be supported : though the point was not taken till after verdict the conviction must bb quashed (R. v. Wilmot 24 C.A.R. 63).
With regard to the second count Crown Counsel referred to a case before the. West African Court of Appeal decided in October 1936, Rex v. Igbinovia,* in which all the elements going to make up the offence had not been set out in the particulars : it was tried summarily and it was held that though if the trial had been upon information it would have been necessary to quash the convictions, the same considerations do not apply to a summary trial. The judgment reads :
” It is necessary however that the accused should have adequate notice of the charges made against him and the Court is satisfied that in this case he had. It is desirable that all the elements going to make up the offence should be set out in the charges, but in a summary trial an omission does not vitiate the trial provided the accused knows what he is charged with. On the merits the appellant was clearly guilty.”
A stronger case quoted by the Crown Counsel was R. v. Thompson, 1914, 9 C.A.R. 262, where the Court came to the conclusion that there was no miscarriage of justice and the proviso to section 4 (1) of the Criminal Appeal Act, 1907, was applied : the indictment was irregular and objection was taken on ground of duplicity which had not been taken before plea, but no embarrassment or prejudice had in fact been suffered in consequence. This was a trial on information.
A further difficulty, however, at first seems to arise in the case before the Court as in the particulars the property is shown to be that of various persons specified, whereas under section 387 of the Criminal Code money received on behalf of another is deemed to be the property of the person on whose behalf it is received.
It is however clearly set out that the sum came into his possession on account of his employer, the Victoria Native Administration, and it cannot be said that the appellant was in any way embarrassed. The addition of the words ” the property of Gabriel Isongo, etc.,” was unnecessary.
The facts in this case are consistent only with the guilt of the accused, and his own statement is in itself an admission and is really a plea for leniency in view of his age and the fact he was acting ” under instructions from my superior officer, the district head.”
In the circumstances of this case the Court, though it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismisses the appeal under the proviso to section 10 (1) of the West African Court of Appeal Ordinance No 47 of 1933, as they consider that no substantial miscarriage of justice has occurred.
The conviction and sentence on the first count are quashed.
The appeal with regard to the second count is dismissed.
