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JAMES AYANSHINA
V.
COMMISSIONER OF POLICE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
3RD DAY OF OCTOBER, 1951
2PLR/1951/18 (WACA)
OTHER CITATION(S)
2PLR/1951/18 (WACA)
(1951) XIII WACA PP. 260 – 261
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BEFORE THEIR LORDSHIPS:
VERITY, Ag. P.
DE COMARMOND, J.
ROBINSON, J.
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BETWEEN:
JAMES AYANSHINA – Appellant
AND
COMMISSIONER OF POLICE – Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. CR.APP.3511
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REPRESENTATION
S. L. Akintola — for Appellant
C. B. O’Bierne, Crown Counsel — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Additional charge added by Magistrate at late stage in proceedings – Section 430(1) of Criminal Code considered – Conviction of unlawful possession after acquittal on charge of receiving stolen goods – Insufficient evidence to justify charge.
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CASE SUMMARY
Before indicating his opinion that there was no case to answer on a charge of receiving stolen property, the Magistrate, in exercise of his powers under section 430(1) of the Criminal Code, added a charge of being in unlawful possession of goods reasonably suspected of having been stolen.
The appellant was acquitted on the charge of receiving and his co-defendant was also acquitted on the charge of theft. In this case, what was suspected by the prosecution was that the appellant’s co-defendant had stolen the goods and that the appellant had received them, knowing them to have been stolen.
Counsel for the appellant argued that at that late stage in the proceedings the Magistrate had no power to add this count. It was further argued that in view of the acquittal of the appellant and his co-defendant on the original charges, the conviction of unlawful possession could not be sustained.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. Section 430(1) of the Criminal Code empowers the Court to add a charge at any stage before the judgment, and the Magistrate, having added the charge before ruling there was no case to answer, had acted within his powers.
2. the basis of the reasonable suspicion of unlawful possession was that the appellant’s co-defendant had stolen the goods and that the appellant had received them. The acquittal of the appellant and co-defendant on those charges disposed of that suspicion and the conviction could not be sustained.
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MAIN JUDGMENT
The following Judgement was delivered:
VERITY, AG. P.
The first ground of appeal in this case relates to an alleged error in law in regard to the addition of a charge under section 430, sub-section (1), of the Criminal Code.
It is submitted on behalf of the appellant that the learned Magistrate had no power to add this count to the charge after ruling that on the original count there was no case for the defendant to answer. The record shows that before indicating that there was in his opinion no case for the defendant to answer on the original charges, the Magistrate stated that he intended to add a count under section 430, sub-section (1).
We do not think that any injustice could have arisen in regard to the addition of this count merely because before the charge was actually framed the learned Magistrate stated that there was no case to answer on the original charge. The section says the charge may be altered or added to at any time before judgment, and in our opinion the statement by the Magistrate of his intention to add that charge before ruling that there was no case was a sufficient addition of a charge before judgment.
On the second half of the appeal the appellant stands on firmer ground. The appellant was charged with receiving goods knowing them to have been stolen. His co-defendant was charged with the theft. Both were acquitted and the additional charge of unlawful possession was then proceeded with. The basis of that charge is that the accused person should be found in possession of good reasonably suspected of having been stolen or otherwise unlawfully obtained and the whole basis of the charge is the reasonableness of the suspicion. In this case, what was suspected by the prosecution in the first instance was that the appellant’s co-defendant had stolen the goods and that the appellant had received them knowing them to be stolen. That was the basis of the reasonable suspicion the subject matter of this additional charge.
By acquitting the co-defendant of the theft and by finding that the appellant had no case to answer regarding the charge of receiving the basis of the suspicion which the prosecution held in the first place, appeared to us to have been disposed of. What, then, could be the basis of any suspicion against the appellant? Merely this, that he was found in possession of certain pieces of iron roofing which may have at one time been the property of persons from whom the co-defendant was charged with stealing them, but there was nothing to indicate how long this property had been out of possession of its original owner or what circumstances aroused suspicion in regard to his possession of them.
Section 430, sub-section (1), of the Criminal Code is a very wide and far-reaching section. It can only, if it is not to impose hardship on innocent persons, be applied with the greatest caution and in the circumstances in which we feel the legislature intended that it should operate. We cannot think that it is the intention of the section that it may be used as a substitute for a prosecution for larceny or receiving which has not been proved. It is based, as I have said, upon the existence at the time the charge is made against the defendant of reasonable grounds for suspecting that the goods were unlawfully obtained and only, I think, in the precise circumstances which may be deduced from the wording of the section can it be used. In the present case we do not think that the circumstances are such that the charge was properly brought.
The learned Magistrate was wrong in convicting under that section. The learned Judge was wrong in upholding the conviction. The appeal is therefore allowed, and a verdict of not guilty is entered in the Magistrate’s Court. The appellant is discharged.
Appeal allowed.
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