Appeal Court
27th April. 1940.
Amendment
of information-Alteration of
substance-Fraudulent Appeal
from false
accounting-Omission by another
to make entry-The
amendments of the information
revised and altered the
substance 19 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 obiter dictum it was
doubted whether sections 1
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 set
out in the reason for judgment.
fibril
Martin for 1st Appellant.
A. Soetan
for 2nd Appellant.
C. IV. S.
Pollard for Crown.
The following
reason for judgment was
delivered :
KINGDON, 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 Ijebll 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 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 hook belonging to
their employers, purporting to
show that 2 cases of petrol were
issued to Roller No. 427 on
requisition No. 1169.
STATEMENT OF
OFFENCE: 2ND COUNT.
Fraudulent
false accounting, contrary to
section 438 (b) of the
Criminal Coqe.
PARTICULARS.
Samuel
Ewetuga and Fasasi AlIi on the
2nd day of August, 1939, at
Ijebu Ode in Ijebu Province,
being clerks or servants of the
Jjebu Native Administration,
with intent to defr.aud 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 AlJi 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 H.o]ler 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.
Samue1
Ewetuga and Fasasi AHi on the
19th day of August, 1939, at
Ijebu Ode in Ijebu Province,
being clerks or servants of the
Ijebu Native Adrriinistration,
with intent to defraud made or
were privy to
making a false entry in a log
book belonging to their Rex
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 AlIi 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 Al1i 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 Al1i 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 Court recorded
the following note :-
"It appears
to the Court from the evidence
now recorded that the charges
contained in counts I, 2, 5, 7,
9 and 11 are defective and in
accordance with Archbold 29th
Edition, p. 48 and also section
84, paragraph 3 of the Criminal
Procedure Ordinance. It is
hereby ordered that these counts
be amended to section 438 (c)
of the Criminal Code and
that the 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 I j ebu
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.
STATEMENT OF
THE 9TH COUNT.
Fraudulent
false accounting C.C. 438
(c).
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. :-
(1) 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.
(2) 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.
The
corresponding provisions giving
power to amend an information
are contained in section 92 (2)
of the Ordinance which reads: -
•• 92 (2).
Where, before trial upon
information or at any stage of
such trial, it appears to the
Court that the information is
defective, the Court shall make
such order for the amendment of
the information as the Court
thinks necessary to meet the
circumstances of the case,
unless, having regard to the
merits of the case, the required
amendments cannot be made
without injustice. All such
amendments shall be made upon
such terms as to the Court shall
seem just."
The wording
is nearly the same as section 5
(1) of the English Indictments
Act, 1915, which is what the
Judge referred to in mentioning
Archbold, page 48.
As already
recorded the Judge was satisfied
that no injustice would be done
by making the amendments. The
appellants now contend that
injustice was done.
In our
opinion this case is in all
fours with that of R. v.
Hughes (20 Cr. App. Rep. 4),
in which the Lord Chief Justice
in giving the judgment of the
Court of Criminal Appeal said:-
.. In the
opinion of the Court, that
sub-section is dealing with what
it speaks of, namely, a case
where an indictment is
defective.
"The function
of the sub-section is to enable
the Court, in order that justice
may be done, to remedy a defect
in the indictment.
"That is a
wholly different matter from
revising and altering the
substance of what is charged."
" It was not
correcting a defect in the
indictment, it was altering its
substance; and it was altering
its substance in circumstances
in which, as it appears to us,
the defendant was prejudiced by
the alteration."
The
convictions on the counts in
question were quashed. Similarly
in the present case it seems to
us that the amendments made
revised and altered the
substance of what was charged.
The Court did not merely correct
a defect in the information, but
altered its substance, and did
so in circumstances in which the
appellants were prejudiced by
the alteration.
For this
reason we quashed the
convictions of both accused on.
counts 1, 7 and 11.
In view of
this, we do not consider it
necessary to pronounce an
opinion upon the merits of the
second of the two grounds of
appeal set out above in relation
to the charges on counts 1, 7
and 11 ; but if we had had to do
so we should have had to
consider very carefully the
following two points, one in
regard to each appellant, viz.:
In regard to the 1st appellant
whether the convictions could be
upheld in view of the evidence
of the Executive Engineer, Mr.
Culshaw, " Each issue of petrol
should be accounted for in the
Roller Log Book. This book is
kept in the Senior Mechanic
office. Some are entered up by
the roller drivers and others by
some competent person in the
Senior Mechanic's office.
Definite instructions were given
to storekeeper that store
requisition number of all petrol
should be entered, and
initialled in the appropriate
column in Roller Log Book."
And in regard
to 2nd appellant that the log
book in question was no concern
of his, so that he can only be
brought under these Counts by
the invocation of either section
7 or section 8 of the Criminal
Code, and it is rather difficult
to see which provision (if any)
of either of these sections
covers a case like the present
where the offence alleged is the
omission by another person to
make an entry in a book.
The
convictions on counts I, 7 and
II having been quashed there
remained the convictions for
stealing on counts 3, 8 and II.
The learned Trial Judge recorded
no reasons for his findings of
guilty on these counts and
recorded no findings of fact
which established the offences.
He seems to have regarded the
verdict of guilty on these
counts as following
automatically upon the
convictions on counts I, 7 and
II respectively. If this is so,
it seems that the quashing of
the convictions on counts 3, 8
and II should follow
automatically the quashing of
the convictions on counts I, 7
and II. At any rate that is the
course which we followed since
we could find nothing in the
evidence or in the recorded
findings of fact which, in our
view, justified the convictions
for stealing.
In respect of
that count, therefore, we
upheld, the second ground of
appeal mentioned above, and
quashed the convictions.
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