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REX
V.
SAMUEL OLUKOYA EWETUGA AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
27TH DAY OF APRIL, 1940
2PLR/1940/50 (WACA)
OTHER CITATION(S)
2PLR/1940/50 (WACA)
(1940) VI WACA PP. 101 – 107
LEX (1940) – VI WACA PP. 101 – 107
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL C.J., SIERRA LEONE
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BETWEEN:
REX – Respondent
AND
1. SAMUEL OLUKOYA EWETUGA
2. FASASI ALLI – Appellants
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REPRESENTATION
Jibril Marlin — for 1st Appellant
A. Soetan — for 2nd Appellant
C. N. S. Pollard — for Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Amendment of information — Distinction between an alteration to correct a defect in the information and alteration which altered the substance of the information — Legal effect for conviction arising therefrom
CRIMINAL LAW AND PROCEDURE:- Fraudulent false accounting and Stealing — Duty of prosecution to discharge the burden of proof — Quashing of conviction on the count of fraudulent false accounting — Where trial court wrongly assumed that said conviction for false accounting automatically sustained conviction for stealing of that falsely accounted — Legal effect — Duty of trial court in the recording of conviction
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
1. In the present case, 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.
2. The Trial Judge recorded no reasons for his findings of guilty on the counts of stealing and recorded no findings of fact which established the offences. He seems to have regarded the verdict of guilty on the counts of stealing as following automatically upon the convictions on the counts for fraudulent false accounting. If this is so, the quashing of the convictions on the counts of the latter should yield automatically the quashing of the convictions on the counts for the former since there was nothing in the evidence or in the recorded findings of fact which justified the convictions for stealing.
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MAIN JUDGMENT
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 Ijebu Ode upon an information containing the following 12 counts:-
STATEMENT OF OFFENCE
Fraudulent false accounting, contrary to section 488(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 me Ijebu Native Administration, with intent to defraud made or were privy to making a false entry in a Jog 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 Code.
PARTICULARS
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 Roiler No. 772 on requisition No. 1046.
STATEMENT OF OFFENCE: 6TH COUNT
Stealing, contrary to 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 Court recorded the following note:-
“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 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 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.
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 6(1) of the English Indictments Act, 1916, 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.” ·
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“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 1 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 1, 7 and 11 having been quashed there remained the convictions for stealing on counts 3, 8 and 11. 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 1, 7 and 11 respectively. If this is so, it seems that the quashing of the convictions on counts 3, 8 and 11 should follow automatically the quashing of the convictions on counts 1, 7 and 11. 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.