Rex V. Samuel Olukoya Ewetuga & Anor (1940)
LawGlobal Hub Judgment Report – West African Court of Appeal
Amendment of- information—Alteration of substance—Fraudulent false accounting—Omission by another to make entry—The amendments of the information revised and altered the substance of what was charged and the Court did not merely correct a defect in the information—The appellants were prejudiced—Convictions quashed—R. v. Hughes 20 Criminal Appeal Report 4 followed °biter dictum it was doubted whether sections 7 and 8 of Criminal Code can be invoked where offence alleged is omission by another person to make entry in a book.
The facts of the case are sufficiently sot out in the reason for judgment.
fibril Martin for 1st Appellant. A. Soetan for 2nd Appellant.
C. N. S. Pollard for Crown.
The following reason for judgment was delivered :— KINGDOM C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.
In this case the two appellants were charged in the High Court of the Ibadan Division held. at Ijebu Ode upon an information containing the following 12 counts :–
STATEMENT OF OFFENCE.
Fraudulent false accounting, contrary to section 438 (b) of the Criminal Code.
PARTICULARS.
Samuel Ewetuga and Fasasi Alli on the 15th day af September, 1939, at Ijebu Ode in Ijebu Province, being clerks or servants of the Ijebu Native Administration, with intent to defraud made or were privy to making a false entry in a log hook belonging to their employers, purporting to show that 2 cases of petrol were issued In Roller No. 427 on requisition No. 1169.
STATEMENT OF OFFENCE : 2ND COUNT.
Fraudulent false accounting, contrary to section 438 (b) of the Criminal Code.
Samuel Ewetuga and Fasasi Alli on the 2nd day of August, 1939, at Ijebu Ode in Ijebu Province, being clerks or servants of the Ijebu Native Administration, with intent to defraud made or were privy to making a false entry in a log book, belonging to their employers, purporting to show that 3 cases of petrol were issued to Roller No. 427 on requisition No. 717.
STATEMENT OF OFFENCE : 3RD COUNT.
Stealing, contrary to section 390 of the Criminal Code.
PARTICULARS.
Samuel Ewetuga and Fasasi Alli on the 15th day of September, 1939, at Ijebu Ode in Ijebu Province stole 2 cases petrol property of the Ijebu Native Administration.
STATEMENT OF OFFENCE : 4TH COUNT.
Stealing, contrary to section 390 of the Criminal Code.
PARTICULARS.
Samuel Ewetuga and Fasasi Alli on the 2nd day of August, 1939, at Ijebu Ode in Ijebu Province stole 3 cases petrol property of the Ijebu Native Administration.
STATEMENT OF OFFENCE : 5TH COUNT.
Fraudulent false accounting, contrary to section 438 (b) of the Criminal Code.
PARTICULARS.
Samuel Ewetuga and Fasasi Alli on the 5th day of September, 1939, at Ijebu Ode in Ijebu Province, being clerks or servants of the Ijebu Native Administration, with intent to defraud, made or were privy to making a false entry in a log book belonging to their employers purporting to show that 5 cases of petrol were issued to Roller No. 772 on requisition No. 1046.
STATEMENT OF OFFENCE : 6TH COUNT.
Stealing, contrary tc section 390 of the Criminal Code.
PARTICULARS.
Samuel Ewetuga and Fasasi Alli on the 5th day of September, 1939, at Ijebu Ode in Ijebu Province stole 5 cases of petrol property of the Ijebu Native Administration.
STATEMENT OF OFFENCE : 7TH COUNT.
Fraudulent false accounting, contrary to section 438 (b) of the Criminal Code.
PARTICULARS.
Samuel Ewetuga and Fasasi Alli on the 19th day of August, 1939, at Ijebu Ode in Ijebu Province, being clerks or servants of the Ijebu Native Administration, with intent to defraud made or
were privy to making a false entry in a log book belonging to their employers purporting to show that 2 cases of petrol were issued to Roller No 638 on requisition No. 838.
STATEMENT OF OFFENCE : 8TH COUNT. Stealing, contrary to section 390 of the Criminal Code.
PARTICULARS.
Samuel Ewetuga and Fasasi Alli on the 19th day of August, 1939, at Ijebu Ode in Ijebu Province stole 2 cases of petrol property of the Ijebu Native Administration.
STATEMENT OF OFFENCE : 9TH COUNT.
Fraudulent false accounting, contrary to section 438 (b) of the Criminal Code.
PARTICULARS.
Samuel Ewetuga and Fasasi Alli on the 9th day of August, 1939, at Ijebu Ode in Ijebu Province, being clerks or servants of the Ijebu Native Administration, with intent to defraud, made or were privy to making a false entry in a log book belonging to their employers purporting to show that one case of petrol was issued to Roller No. 664 on requisition No. 770.
STATEMENT OF OFFENCE : 10TH COUNT. Stealing, contrary to section 390 of the Criminal Code.
PARTICULARS.
Samuel Ewetuga and Fasasi Alli on the 9th day of August, 1939, at Ijebu Ode in Ijebu Province stole one case of petrol property of the Ijebu Ode Native Administration.
STATEMENT OF OFFENCE : 11TH COUNT.
Fraudulent false accounting, contrary to section 438 (b) of the Criminal Code.
PARTICULARS.
Samuel Ewetuga and Fasasi Alli on the 15th day of July, 1939, at Ijebu Ode in Ijebu Province, being clerks or servants of the Ijebu Native Administration, with intent to defraud, made or were privy to making a false entry in a log book belonging to their employers, purporting to show that one case of petrol was issued to Roller No. 640 on requisition No. 1126.
STATEMENT OF OFFENCE : 12TH COUNT. Stealing, contrary to section 390 of the Criminal .Code.
PARTICULARS.
Samuel Ewetuga and Fasasi Alli on the 15th day of July, 1939, at Ijebu Ode in Ijebu Province stole one case of petrol property of the Ijebu Native Administration,
After three witnesses had been called for the prosecution the
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Court recorded the following note :—
& anor.” It appears to the Court from the evidence now recorded that the
charges contained in counts 1, 2, 5, 7, 9 and 11 are defective and in
Kingdon,accordance with Archbold 29th Edition, p. 48 and also section 84, paragraph
Petrides and3 of the Criminal Procedure Ordinance. It is hereby ordered that these
Grahamcounts be amended to section 438 (c) of the Criminal Code and that the
Paul, C.11.particulars of these counts be altered accordingly as per the new charges
prepared and signed by the Court and appended in this record book immediately after this order. It is further ordered that these amendments be endorsed on the original counts to which the accused have pleaded. The Court is satisfied that no injustice will be done by making these amendments.”
The amended counts and particulars read :-
STATEMENT OF OFFENCE : 1ST COUNT.
Fraudulent false accounting 438 (c) C.C.
PARTICULARS.
In that the accused on or about the 15th day of September, 1939, at Ijebu Ode in the Ibadan Judicial Division being clerks or servants to the Ijebu Ode Native Administration, with intent to defraud, omitted an entry in the log book of Roller No. 427 of two cases of petrol issued to it on requisition No. 1169.
STATEMENT OF 2ND COUNT.
Fraudulent false accounting, contrary to section 438 (c) C.C.
PARTICULARS.
In that the accused on the 2nd day of August, 1939, at the same place being clerks or servants of the Ijebu Ode Native Administration, with intent to defraud, omitted an entry in the log book of Roller No. 427 of three cases of petrol issued to it on requisition No. 717.
STATEMENT OF 5TH COUNT.
Fraudulent false accounting 438 (c) C.C.
PARTICULARS.
In that the accused on the 5th day of September, 1939, at the same place being clerks or servants to the Ijebu Ode Native Administration, with intent to defraud, omitted an entry in the log book of Roller No. 771 of five cases of petrol issued to it on requisition No. 1046.
STATEMENT OF 7TH COUNT.
Fraudulent false accounting C.C. 438 (c).
PARTICULARS.
In that the accused on the 19th day of August, 1939, at the same place being clerks or servants to the Ijebu Ode Native Administration, with intent to defraud, omitted an entry in the log book of Roller No. 638 of two cases of petrol issued to it on requisition No. 838.
PARTICULARS.
In that the accused on the 9th day of August, 1939, at the same place being clerks or servants to the Ijebu Ode Native Administration, with intent to defraud, omitted an entry in the log book of Roller No. 664 of one case of petrol issued to it on requisition No. 770.
STATEMENT OF THE 11TH COUNT. Fraudulent false accounting C.C. 438 (c).
PARTICULARS.
In that the accused on the 15th day of July, 1939, at the same place being clerks or servants of the Ijebu Ode Native Administration, with intent to defraud, omitted an entry in the log book of Roller No. 640 of one case of petrol issued to it on requisition No. 1126.
The accused were not called upon to plead again to the amended counts, but each accused was given an opportunity to put further questions to the three witnesses who had already given evidence. Neither of them availed himself of this opportunity. The prosecution then called five other witnesses and closed the case for the Crown. Counsel for the second accused then submitted that there was no case for him to answer. This submission was overruled. Each of the accused then gave evidence on his own behalf and the second accused called one witness.
The Judge then summoned up the evidence and found both accused guilty on counts 1, 3, 7, 8, 11 and 12 and not guilty on counts 2, 4, 6, 9 and 10. He sentenced them each to 1 year’s imprisonment with hard labour on each of counts 1, 7, and 11 (all counts for fraudulent false accounting) and to 6 months’ imprisonment with hard labour on counts 3, 8 and 11 (all counts of stealing). All sentences to run concurrently. Against all these convictions the appellants appeal on two main grounds, viz. :—
- Error in law in amending six of the counts at the stage in the trial at which the amendments were made and •trying the appellants on these amended charges.
- That there was no evidence to justify the convictions. As to the first ground it is to be observed that the count purported to amend the information under paragraph 3 of section 84 of the Criminal Procedure Ordinance. This section however, is included in Part III of the Ordinance which deals only with summary trial.
