Fraudulent false accounting and
stealing contrary to sections
438
(a), (b) and
390 (6)
of the Criminal Code-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.
I vor Brace
for Crown.
Appellant in person.
The following joint judgment was
delivered :-
BUTLER LLOYD, Ag.C.J., NIGERIA,
BROOKE AND MARTINDALE, 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 :-
(a)
that he had been thrice punished
for the same offence, and
(b)
that the sentence is excessive.
Crown Counsel asked to add a
third ground which clearly
appeared on the record, viz. :-
(c)
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 ball 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 be 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.
* Note: reported |
