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REX
V.
ADEGBOLA THOMAS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
6TH DAY OF JANUARY, 1945
2PLR/1945/2 (WACA)
OTHER CITATION(S)
2PLR/1945/2 (WACA)
(1945) XI WACA PP. 12 – 15
LEX (1945) – XI WACA PP. 12 – 15
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
BROOKE, J.
FRANCIS, J.
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BETWEEN:
REX – Respondent
AND
ADEGBOLA THOMAS – Appellant
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ORIGINATING COURT(S)
APPEAL FROM HIGH COURT, NIGERIA
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REPRESENTATION
J. E. C. David — for Appellant
N. G. Hay — for Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Obtaining money by false pretences contrary to section 419 of the Criminal Code — Admission of telegram announcing that a Crown witnesses is unable to attend trial — Depositions of witness who is unable to give evidence — Section 48 of Criminal Procedure Ordinance, Cap. 20 — Inadmissibility of depositions — Evidence of accused when Prosecution fails to prove a material ingredient.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held:–
1. That the procedure laid down by Section 48 of the Criminal Procedure Ordinance is different from the procedure in England (Criminal Justice Act, 1925 (15 & 16 Geo. 5, e, 86, s. 13(3)).
2. That Telegram was admissible. The depositions were wrongly admitted because they did not comply with the provisions of Section 48 of Cap. 20.
3. That although Prosecution failed to prove a material ingredient of the charge, that missing evidence was supplied by the Appellant himself.
Appeal dismissed.
Rex v. Ajani, 3 W.A.C.A. followed.
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MAIN JUDGMENT
The following judgment of the Court was delivered by KINGDON, C.J., NIGERIA:-.
In this case the Appellant was charged in the High Court of the Kaduna Judicial Division sitting at Potiskum with obtaining money by false pretences contrary to section 419 of the Criminal Code, and the particulars given of the alleged offence were:-
“Adebola Thomas, on or about the 20th day of June, 1944, at Maiduguri, in the Bornu Province, with intent to defraud obtained from Alhaji Jibirin the sum of £11 (eleven pounds sterling) by falsely pretending that the charges payable by the said Alhaji Jibirin to the British Overseas Airways Corporation in respect of the carriage of consignment of hides accepted for carriage on or about the 13th day of June, 1944, was £53 19s.8d., whereas in truth and in fact the amount payable was £42 19s. 8d.”
He was convicted and sentenced to six months I.H.L. He now appeals to this Court against his conviction upon the following grounds:-
“1. Wrongful Admission of Evidence.
The learned trial Judge was wrong in Law to admit
(a) Statement of accused— Exhibit B.
(b) Telegram of Resident— Exhibit D.
(c) Depositions of witness MacDonald. Exhibits E & F.
2. MISDIRECTION.
The learned trial Judge misdirected himself in his summing up,
‘My experience of African Clerks who which things is that they always me a ready reckoner if they can’·
3. Verdict against the weight of evidence.”
There is no substance in ground 2, nor is there in ground 1(a), since the learned trial Judge said in regard to the statement of accused Ex. B, ”I shall entirely ignore this statement in weighing up the evidence in the case.”
As to ground 1(b), Counsel for the Appellant first objected to the admission of Ex. D— a telegram from the Resident of the Province to Crown Counsel in the following terms:-
“Rex vs Thomas x MacDonald ill Lagos hospital unable attend x Cockerill B.O.A.C. Maiduguri will attend with all necessary papers x He will arrive Potiskum to night.”
on the ground that the document was only a transcript and not the original telegram, but upon his attention being directed to section 15 of the Telegraphs Ordinance (Cap. 44) he withdrew this objection; but he still submitted that the telegram was inadmissible since it contained only hearsay evidence of the fact it sought to establish, namely, that the attendance of the witness MacDonald could not be procured. But on this point the document was admitted not as evidence against the Appellant upon the charge but merely as evidence laying the foundation for the admission of the deposition of MacDonald taken at the Preliminary Investigation, as provided in section 48 of the Criminal Procedure Ordinance (Cap. 20). In this respect the law in Nigeria differs from the law in England: In England before the deposition of a witness who is so ill as not to be able to travel can be admitted, the fact of the illness must be proved by the oath of a credible witness (Criminal Justice Act, 1925 (15 & 16 Geo. 5, e, 86, s. 13(3)), whereas the Nigerian law (sec. 48 of Cap. 20) provides merely that the deposition may be given in evidence “if … the Court be satisfied that for any sufficient cause his attendance cannot be secured”.
We are therefore of opinion that the telegram Ex. D was admissible for what it was worth, and if owing to it the Court in its discretion was satisfied that MacDonald was unable to attend, that was sufficient to have entitled the Court to admit the deposition if there was no other reason against its admissibility.
That brings us to ground 1(c), the question of the admissibility of the depositions of the witness MacDonald Exs. “E” and “F”. We are of opinion that these were wrongly admitted for two reasons, viz.:
(a) The documents tendered and admitted were not the original depositions but what appear to be typed copies thereof. Section 48 provides for the admission of depositions, and it is necessary for the originals to be produced; there is no provision for the admission of copies and consequently the two documents admitted were inadmissible.
(b) Section 48 provides for the admission of depositions taken “in accordance with the provisions of this Ordinance”. Section 62 is the section governing the taking of depositions and it provides, inter alia,
”If the accused does not employ counsel or attorney, the Court shall at the close of the examination of each witness for the prosecution ask the accused whether he wishes to put any question to that witness, and shall record his answer on the deposition.”
There was failure to comply with this provision and consequently for this reason also the depositions were inadmissible. It is true that in Ex. E some 16 lines before the end the letter “Q” appear before the record of the evidence continues. It is possible that this is intended to indicate that from that point onwards the recorded evidence is in answer to cross-examination by the Appellant, but that does not seem likely since the evidence is addressed to the Court and not to the Appellant. In any case it is not the correct way to record cross-examination and there has not been compliance with the above quoted provisions of section 62.
Having held that the depositions of the witness MacDonald were wrongly admitted, it remains to consider ground 3 on the basis of the evidence minus the evidence of MacDonald.
In order to prove the charge the Prosecution had to prove –
(1) That Appellant obtained £11 from Alhaji Jibirin;
(2) That he did so by means of a pretence that the sum of £53 19s. 8d. was payable;
(3) That that pretence was false; and
(4) That there was intent to defraud.
If (1), (2) and (3) were proved, (4) could properly be inferred from the facts.
The evidence of MacDonald did not affect items (1) and (2); the evidence as to these was given by other witnesses, and it is sufficient to say that the learned trial Judge believed it and that we see no reason to take a different view.
But the only evidence given by the prosecution to support item (3) was that of MacDonald, which we have held to be inadmissible. It follows that if there had been no evidence for the defence, the case would not have been fully proved and the Appellant would be entitled to an acquittal. But the Appellant gave evidence and himself supplied the necessary evidence. It is our duty to consider the case as a whole as it comes before us (Bez v. Ajarai, 3 W.A.C.A. p. 3). We have to consider whether without MacDonald’s evidence the learned trial Judge would inevitably have come to the same decision as he did. We think it clear that he would, since the fact that the correct amount payable was £42 19s. 8d. was common ground at the trial and it is evident that the Judge relied as to this point upon the Appellant’s own evidence rather than upon that of MacDonald, which was really only based on what the Appellant told him.
The learned trial Judge said—
”This leaves the question of whether this was a false and fraudulent inducement. This depends on what the weight and freight really were. MacDonald, the manager, said in his deposition (he was ill and unable to attend) that he did not know the weight apart from what the accused told him. He did not say what that was, but said what accused wrote in the consignment note which I have decided to ignore. He also said that the accused gave him £2 19s. 8d. as the unpaid balance (over the £40) and implied that he had got it from Alhaji Jibirin. Alhaji Jibirin said that the accused told him the weight was 300 kilos when he asked why the freight was so much. He expected it to be about £40, which is why he took that amount. The accused said yesterday that the freight he demanded was £42 19s. 8d. and that that was the freight and statistical charge on 224 kilos. Under cross-examination he said that he did not know what the true weight was. This morning he said the true weight was 224 kilos and that yesterday he was confused when under cross-examination.
No other witnesses mentioned the weight.
I think, that this proves beyond reasonable doubt that the correct amount was £42 19s. 8d.”
We are of opinion therefore that there was the necessary proof of all the essential ingredients of the offence and ground 3 fails.
The appeal is dismissed.
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