WEST AFRICAN COURT OF APPEAL, NIGERIA

                                  Lagos, 19th August, 1952

DE COMARMOND, AG. C.J. (NIGERIA) BAIRAMIAN, AND JOHNSTON, J.

                                                                   ALLIU KADIRI EDU .                                   Appellants 

                                                                                     v.

                                                        THE COMMISSIONER OF POLICE                     Respondents

          

Criminal Law and Procedure - Autrefois acquit-Time for pleading-When Plea good-Post Office employee acquitted of stealing 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.

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) [pg163] 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.

Cases cited:-

(1) Flatrnan v. Light, K.B.D., 1946, at pp. 418-419. (2) R. v. Thornas, 33 Cr. App.Rep., p. 200.

Appeal by convicted person from Supreme Court's decision dismissing appeal

from Magistrate in a criminal case: W.A.C.A. No. 3792.

F. R. A. Williams for Appellant.

Fatayi Williams, Crown Counsel, for Respondent, the Commissioner of Police.

The following judgment was delivered:

Bairamian,J This is an appeal from the decision of the Supreme Court dismissing an appeal from a Magistrate.

The appellant, who was an employee of the Post Office at Lagos, was charged in the Magistrate's Court under section 173 (2) of the Criminal Code, that he, being in charge of parcel delivery, had negligently lost a certain parcel.

He pleaded not guilty to this charge and the trial began. During the examina­tion of the first prosecution witness, Mr. F. R. A. Williams, his learned Counsel, submitted that without going into the merits of the case, accused could not be tried again because he had already been tried for stealing the same parcel and had been acquitted. In support of his submission, Mr. Williams referred to sections 181, 182, 158 and 161 of the Criminal Procedure Ordinance.

The learned Magistrate overruled this submission and ultimately convicted the accused (now appellant). The accused appealed against this conviction on three grounds, the first ground being to the effect that the appellant should not have been tried again, the second that it had not been established by evidence that the loss of the postal packet was due to the negligence of the appellant, and the third (which was not argued) that the judgment was against the weight of evidence. [pg164]

Jibowu, J., heard the submissions of Counsel and dismissed the appeal. The appellant then appealed to this Court and put forward four grounds of appeal, three of which were argued before us. The first two grounds relate to what may be shortly described as the question of autrefois acquit, and the third ground is to the effect that there was no proof of negligence on the part of the appellant or that the alleged negligence caused the loss of the postal packet. The fourth ground of appeal alleging that the judgment was against the weight of evidence was not argued.

In regard to what we have described as the question of autrefois acquit it would seem that the submission made by Counsel for the appellant in the trial Court was made too late. We are aware of the observations made by Lord Goddard, C.]., in Flatman v. Light (1), but in Nigeria the point is governed by the Criminal Procedure Ordinance (Cap. 43), which provides in section 217 that, " Every person by pleading generally the plea of not guilty shall without further form be deemed to have put himself upon his trial"

The appellant had pleaded not guilty and put himself on his trial, and although his plea of not guilty was still there and his trial had begun and some evidence had been given, his Counsel made the submission that he could not be tried again. Under section 221 of the Ordinance,

" Any accused person against whom a charge or information is filed may plead-

(a) that he has been previously convicted or acquitted, as the case may be, of the same offence."

Then if the plea is denied the Court shall try whether it is or is not true in fact and if the Court holds that the facts alleged by the accused do not prove the plea or finds that the plea is false in fact, the accused shall be required to plead to the charge or information. The wording indicates that it must be the accused person himself who should plead this plea in bar, and section 221 contemplates that it must be pleaded before pleading not guilty to the charge. In this case it was not the accused who made any plea at all but his Counsel who made a submission, as we said, after the accused had put himself on his trial by pleading not guilty. It would seem therefore that there was not in this case any plea in bar for the Magistrate to consider.

Counsel for the appellant has pointed out that the words in section 221 (a) are,

      "that he has been previously convicted or acquitted, as the case may be, of the same offence", whereas he is not relying on that wording but on the second case in section 181, namely,

" on the same facts for any other offence for which a different charge from the one made against him might have been made under the provisions of sub-section (1) of section 161 and he has argued that it was open to him to make the submission which he made to the Magistrate at any stage of the proceedings.

It is unfortunate that section 221 (a) is not so full in its wording as it ought to have been. It ought to have covered all the three cases mentioned in section 181 as debarring a trial. Section 221 was doubtless intended to provide procedure in relation to section 181, and it would not be right to take the view that whereas one case under section 181 has to be pleaded in bar, another case under section 181 need not be so pleaded. All the three cases set out in section 181 are cases which bar a trial, and we must take the view that it is the intention of the Ordinance that where an accused person wishes to take advantage of any portion of section 181, he ought to plead in bar before pleading to the charge itself. This, as we [pg165] said, was not done in this case, nor was it done in the shape of a plea by the accused himself; there was therefore nothing effectively before the Magistrate to consider.

The point, however, was not taken by learned Counsel for the respondent at the hearing of the first appeal before Jibowu, J., nor has it been taken before us as an objection to the first two grounds of the further appeal. The judgment of Jibowu, J., deals with and decides what we have described as the question of autrefois acquit, and that judgment having been appealed from, this Court has in the circumstances heard the arguments of both sides and will deal with the question whether section 181 of the Criminal Procedure Ordinance read with section 161, on which learned Counsel for the appellant relies, entitles the appellant to claim that he could not, after the previous trial for stealing, be tried on a charge of negligently losing the parcel, as if there had been an effective plea in bar before the Magistrate.

Section 181 of the Ordinance reads as follows:-

" In addition to the provisions of section 171 a person who has once been tried by a court of competent jurisdiction for an offence and acquitted or convicted of such offence shall not, while such acquittal or conviction remains in force, be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under the provisions of sub-section (1) of section 161 or for which he might have been convicted under sub­section (2) thereof."

The reference to sub-sections of section 161 is wrong: section 161 has no sub-sections. Moreover, section 161 deals only with the preferring of charges; it has no provision in it to cover the words" for which he might have been con­victed " at the end of section 181; so the reference in section 181 is to something more than the present section 161. It has been suggested that the section meant is the present section 179, which has two sub-sections. But section 179 deals only with the power to convict; it has no provision to cover the words" for which a different charge from the one made against him might have been. made" in section 181; so the reference in section. 181 is to something more than the present section 179. Apparently at some stage of the drafting, there was a section made up of two sub-sections, the first dealing with the preferring of charges and the second with the power of convicting, and the reference in section 181 was to such a section. Later the second sub-section was dropped, possibly because it was deemed superfluous, but the wording of section 181 was not corrected, with the result that it now is inaccurate. These difficulties led Jibowu, ]., to consider the present case solely in the light of English law. Counsel for the appellant submits that section 181 together with section 161 should be applied and may be applied to the case in hand by deleting the words" sub-section (1) ". He relies on sundry cases showing that the Courts have sometimes modified the language of a section, ut res magis valeat quam pereat: see Maxwell on the Interpretation of Statutes (1937), Chap. 9.

The Legislature intended section 181 of the Criminal Procedure Ordinance as a statement of the circumstances in which a person shall not be liable to be tried. To discard the whole or any portion of it is a drastic step, which should if possible be avoided. There is no difficulty in applying it as far as the words " for the same offence" in line 5. It seems possible to apply the entire section by making the minimum modification of cutting out those words to which no effect can be given owing to their referring to what docs not exist, that is to say, the words "sub-section (1) "in the last line but one, and the words" under sub-section (2) thereof" at the end of the section. But in the case in hand it is not indispensable to decide whether the last words" under sub-section (2) thereof" should be cut out. Here it is enough to decide that section 181 stands and should be given [pg166] effect to as if the words " of sub-section (1) " in the penultimate line were not there. The appellant is therefore entitled to ask, as he does, that the case be considered under section 161.

Section 161 reads as follows:-

" If a single act or omission or series of acts or omissions is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once or he may be charged in the alternative with having committed some one of the said offences."

Counsel for appellant has argued that the case in hand comes within section 161 on the ground that the facts are the same in that the evidence for the charge of negligently losing was substantially the same as had been given for the previous charge of stealing, and he submits that the appellant could have been charged in the previous case with both offences, or with negligently losing as an alterna­tive to the charge of stealing. In effect his argument is this: in this case the facts which could be proved were that the appellant was in charge of registered parcels and received a parcel which he locked up in his cupboard and which disappeared; if the Court was willing to presume that the appellant took the parcel, he was guilty of stealing it, if not, he might be guilty of negligently losing the parcel; so the prosecutor ought to have been in doubt and charged him with both or in the alternative. This argument in effect applies section 161 as if it read, " If the prosecutor is in doubt as to what facts can be proved ". Stealing involves a fraudulent taking and in a case of stealing a prosecutor must prove such a taking as a fact, whilst under the charge of negligently losing there is no question of any taking at all; thus the facts to be proved in the one case are not the same as the facts to be proved in the other case. There is no similarity between the ingredients of the two offences, and it would be an abuse of language to say that these were alternative offences on the same facts.

Section 161 ought to be read more carefully. The wording is:-

" If a single act or omission or a series of acts or omissions is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, etc."

It speaks of the facts which can be proved, that is to say, of the facts which the prosecutor believes can be proved. There is no question of doubt in the mind of the prosecutor as to what facts can be proved by the evidence. what is doubtful in his mind is, to repeat the words of the section:-

" which of several offences the facts which can be proved will constitute."

That is to say, his doubt relates solely to the question of whether those facts constitute one offence or another out of the various offences created by the Legislature; and in such a case he is at liberty to include any number of offences in the same charge-sheet and have them tried together. He prefers, say, two charges, but he does so on the basis that the same facts can be proved in regard to either charge. He is not gambling on what facts he will succeed in proving­ which is really what the argument for the appellant contemplates; the prosecutor is merely safeguarding against the risk that a certain section may not be the right section covering the facts which he believes can be proved, and he adds a charge under another section as an additional charge or in the alternative, but in either case he relies on the same facts as proving the charge under either section. For example, the distinction between larceny by a trick and obtaining by false pretences is very fine, and it is often hard to tell whether the facts which can be proved in a given case amount to one or the other offence. Section 161 enables the prosecutor to join the two offences in the same charge-sheet. [pg167]

Section 161 is the last of a group of sections, beginning with section 157, which enable the prosecutor to join two or more counts in the same charge-sheet. Sections 157 to 161 are exceptions to the rule laid down in section 156 that for every distinct offence there shall be a separate charge and a separate trial. In England joinder of counts is provided for in rule 3 of the Indictment Rules, 1915, which reads as follows:-

" Charges for any offences, whether felonies or misdemeanours, may be joined in the same indictment if those charges are founded on the same facts or form or are part of a series of offences of the same or a similar character.'

This compendious rule covers, at least, the provisions of the local sections 158 and 161. In the comments in Archbold (1949) at pages 53 and 55 it is stated that a person must not be called upon to answer charges of different types, and examples of permissible joinder are given. Mention is made of the example of larceny and obtaining by false pretences as counts which may be joined on the authority of rule 3. Such a case of joinder falls under the words, " if those charges are founded on the same facts .. ." in the rule. The author goes on to observe that such a precaution is now hardly necessary owing to the effect of the Larceny Act, 1916, section 44 (3) and (4). In Nigeria too, the precaution is unnecessary owing to the effect of section 174 (2) and (3).

It thus becomes clear that section 161 would not have enabled the prosecutor to charge the appellant with stealing the parcel and also with negligently losing it. Appellant's Counsel has assumed that the two offences could have been joined in one trial and assumed also that the joinder would have been authorised by section 161. There lies the fallacy and the mistake. Whether the two offences could have been joined at all under the authority of another section is not relevant in this case and therefore it is not necessary to decide the point; suffice it to say that they could not have been joined under the authority of section 161. The mistaken assumption made by Counsel arises perhaps from the fact that both charges relate to the same parcel; but apart from that, they do not consist of the same elements. We are borrowing from the language of Humphreys, J., in Platman v. Light, 1 KB.D. 1946, at the foot of page 420, a case which related to a charge of stealing after a charge of unlawful possession of certain fowls. The learned Judge elaborates his views in R. v. Thomas (2); he points out that it is immaterial whether the act relied upon in the second case is the same as was relied upon in the first, and that the cardinal question is whether the offence charged in the second case is the same as was charged in the first. Compared with Flatman v. Light (1), in the case in hand the difference between the earlier and the later charge is much greater: stealing, which means moral turpitude, and negligently losing, which means carelessness and is punishable with no more than a fine of £10, are poles apart. There is not the remotest similarity between the two offences and it would be odd indeed if the appellant, having been acquitted on the charge of stealing, could not be charged later with negligently losing the parcel, which is a totally different offence, of which he was never in peril of being convicted in the previous trial. The words " on the same facts for any other offence for which a different charge from the one made against him might have been made under the provisions of section 161 ", as section 181 is now to be read, on which Counsel for the appellant relies, certainly do not enable the appellant to escape from the trial on the charge of negligently losing the parcel in question.

Before leaving this subject we should like to say that it would be a blessing if, when the new draft Criminal Procedure Ordinance is being considered, the prolix and unwieldy provisions in the present sections 157 to 161 were replaced by something simple and compendious, and if instead of the provisions in sections 181 to 185 we were given something on the lines of the statement adopted from Archbold by Singleton, J., in Flatman v. Light (1), as a correct statement of the law on the circumstances in which a person shall not be liable [pg168] to be tried for an offence after a previous trial. There are, be it added, observa­tions in R. v. Thomas (2), (at page 204) which suggest that there is no need for any statutory provisions as the rule of the common law is adequate and has not been improved upon.

It remains to consider the other ground of appeal-that there was" no proof of negligence on the part of the appellant or that the alleged negligence caused the loss of the postal packet ".

The argument for the appellant may be summarised as follows. Negligence in section 173 (2) of the Criminal Code is the same negligence as in civil law and the standard of care required is that defined in the common law; the standard cannot be raised by departmental regulation; the care required by section 173 (2) is not that of a very careful man but of an ordinary man; appellant was not guilty of negligence in giving his keys to his assistants, whom he trusted; apart from breach of the regulations the evidence was not conclusive either way. Such was the argument in brief.

The argument is adroit but it gives itself away at the end. If there was evidence of negligence, it is not the business of this Court in an appeal on a point of law to consider whether that evidence was or was not conclusive. The appellant can only succeed if there was no evidence at all of negligence.

The standard of care required in a given case depends on the circumstances of the case. In the case in hand, we have a post office clerk in charge of registered packets, who has a cage to keep them in and cupboards with locks for packets suspected to be liable to duty. The object of registering a packet is that special care shall be taken for its safe delivery. The packet in this case was of a kind which had to be locked up in a cupboard; it was a packet of which even greater care was needed. The appellant was in charge and had the keys of the cupboard and was responsible for the safety of the packet. That he realised that a high degree of care and responsibility was required of him is manifest from his own evidence. He says that when suspected packets were transferred to his section in 1949 he declined, and the Chief Superintendent-here I quote-" agreed to give me two assistants and he promised me two cupboards. Before that time the sU5pected packets were not kept in cupboard ".

His aim was clearly to have suspected packets apart from ordinary parcels to which his assistants had access and to enable himself to handle suspected packets in person. He was obviously alive to his duty to ensure the safety of suspected packets in that way. Thus the argument that he was not guilty of negligence in giving his keys to his assistants whom he trusted is defeated by his own evidence. He was allowing access to these packets which he knew he ought not to allow. It was fraught with the risk that one of his assistants might steal a packet and it would not be possible to say who. Thus, apart from any departmental regulation, he was guilty of negligence according to his own evidence, and he cannot escape by suggesting that one of his assistants may have taken the packet in question. In the circumstances it was because of his negligence that the packet disappeared from the cupboard, and the third ground of appeal therefore fails.

As for the departmental regulation itself, it is there to ensure safety of registered matter, and the breach of it is unwise as this case has shown. There is nothing unreasonable in asking a post office clerk in charge not to hand his keys to assistants, any more than there would be if a bank cashier were told not to do the like with the keys of his cash box, or if an officer in charge of a strong­room were told to have his keys continuously in his possession. The appellant towards the end of his cross-examination said at first that he had no instruction not to give his keys to his assistants, but he went on to say, " I might have seen Exhibit Ai, I have seen paragraph 26 of Exhibit At ". He knew therefore that he was acting contrary to a regulation of his department designed to ensure the [pg169] safety of registered matter, and his answers before this final admission show that he knew it was imprudent to give his keys to his assistants and a dereliction of his duty as the officer in charge.