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REX
V.
JONATHAN DURU
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
29TH DAY OF JANUARY, 1943
LEX (1943) – WACA PP. 33- 34
OTHER CITATION(S)
2PLR/1943/35 (WACA)
(1943) IX WACA PP. 33 – 34
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
BUTLER LLOYD, J.
BAKER, J.
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BETWEEN:-
REX – Respondent
AND
JONATHAN DURU – Appellant
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REPRESENTATION
E. H. Hunter – for Crown
Appellant in person
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE ISSUE(S):- Summary trial — Alteration of charge during course of trial — From “Making document without authority” (Criminal Code. S. 473(1)) to “Publication of defamatory matter” (Criminal Code, 375) pursuant to the powers of court under Section 84 of the Criminal Procedure Ordinance — Legal effect
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CASE SUMMARY
The appellant was tried summarily for an offence contrary to section 473(1) of the Criminal Code. After four witnesses for the prosecution had been heard it became apparent to the Court that the charge was misconceived. The trial Judge, purporting to act under the provisions of section 84 of the Criminal Procedure Ordinance, then substituted for the original charge one contrary to section 375 of the Criminal Code, and, after taking another plea and recalling the witnesses for cross-examination, continued the trial and convicted the appellant of the substituted offence.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. The powers conferred by section 84 of the Criminal Procedure Ordinance permit only the variation of the particulars of a charge but not the substitution of a new and different one.
2. The proper course was for a nolle prosequi to be entered upon the first charge and then proceedings started de novo upon the second charge.
3. The most suitable section under which the appellant should have been charged was section 467 of the Criminal Code, Forgery.
Appeal allowed, conviction and sentence quashed.
[NOTE.— See Criminal Procedure Ordinance, 1945 (Nigeria), secs, 162-165].
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MAIN JUDGMENT
The following joint judgment was delivered:- per KINGDON, C.J., NIGERIA, BUTLER LLOYD AND BAKER, JJ.
The appellant was tried summarily before John, Assistant Judge, sitting in the Enugu-Onitsha Division of the High Court. He was charged with “Making document without authority C.C. 473(1)”, the particulars given being:-
“In that the accused on, or about, the 26th day of October, 190, at Ngor in the Enugu-Onitsha Judicial Division, with intent to defraud, and without lawful authority or excuse made a document in the name of Anuforo Ogui, Joseph Ogui and Nwalozie and others, accusing the Government servants of Owerri of committing offences and not knowing their work.”
The appellant pleaded “not guilty”. After four witnesses for the prosecution had given evidence, it was apparent to the Court that the charge was misconceived, since, though the evidence showed that the appellant had sent a scurrilous document to the Resident of the Owerri Province purporting to be signed by a number of people who had not – in fact signed it and knew nothing about it, there was no evidence of intent to defraud. The learned trial Judge thereupon altered the charge to “Publication of defamatory matter C.C. 375″ with the particulars:-
“In that the accused on, or about, the 26th October, 1941, at Ngor in the Enugu-Onitsha Judicial Division, caused to be delivered by registered post a petition to the Resident Owerri accusing the Owerri Division Administrative Staff of misdeeds likely to injure them in their profession or trade knowing the same to be false and intending it should be read by the Resident.”
The appellant again pleaded ”Not guilty”. The four witnesses who had given evidence were then recalled for cross-examination and the appellant cross-examined one of them; other evidence was led for the prosecution and the trial proceeded.
The appellant was found guilty and thereupon the Police, who conducted the prosecution, asked the Court to take into account two similar charges for which the appellant was awaiting trial, when passing sentence. The appellant admitted both charges and was desirous that they should be so taken into account. The Court, taking these other two charges into account, sentenced the appellant to 2 years I.H.L. the maximum for the offence.
In altering the charge during the course of the trial the Court purported to act under section 84 of the Criminal Procedure Ordinance (Cap. 20), which reads:-
“A variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material, if it is proved that the charge was in fact made within the time (if any) limited by low for the making thereof.
“But if any variance between the charge and the evidence appears to the Court to be such that the accused has been thereby deceived or misled, the Court may adjourn the hearing and allow any witness to be recalled, and such questions to be put to him as by reason of the terms of the charge may have been omitted.
”The Court may make an amendment of the charge on such terms as may be just.”
We are of opinion that the powers given by this section are limited to amendments of the original charge and do not authorise or cover the substitution of an entirely new and different charge for the original, as was done in this case. The proper course was for a nolle prosequi to be entered upon the first charge and then proceedings started de novo upon the second charge; but we may add that it appears to us that the most suitable section under which the appellant should have been charged was section 467 of the Criminal Code, Forgery.
We feel bound to hold that there has been such a violation of the proper form of legal process as to vitiate the conviction.
The appeal is allowed, the conviction and sentence are quashed and it is directed that a judgment and verdict of acquittal he entered.
The appellant is discharged.