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REX
V.
JOSEPH WILLIAMS AND ANOTHER
THE COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
16TH DAY OF OCTOBER, 1943
2PLR/1943/55 (P.C.)
OTHER CITATION(S)
2PLR/1943/55 (P.C.)
(1943) VIII WACA PP. 204 – 210
LEX (1943) – VIII WACA PP. 204 – 210
BEFORE THEIR LORDSHIPS:
BAKER, AG. C.J.,
BROOKE, J.
WADDINGTON, J.
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BETWEEN:
REX – Respondent
AND
1. JOSEPH WILLIAMS
2. SAMUEL OGIDAN
Re SAMUEL OGIDAN – Appellant
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ORIGINATING COURT(S)
APPEAL FROM CONVICTION BY HIGH COURT
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REPRESENTATION
N. G. Hay — for Crow
A. O. Thomas — for Appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Criminal Procedure Joinder of charges — Consolidation of cases — Trial in High Court after Preliminary Investigation — Two accused committed together — One committed separately on further charges — All charges joined at trial — Criminal Procedure Ordinance (Cap. 20) (Nigeria) Parts II and III and section 32 — Protectorate Courts Ordinance 1933 (No 45 of 193) (Nigeria) section 18 — Protectorate Courts Rules 194 (No. 5 of 194) (Nigeria) Order XXXIX
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CASE SUMMARY
Appellant was committed for trial before the High Court with another man on nine charges of stealing against each and s charge of conspiracy against both. At the trial two charges of conspiracy on which appellant had been separately committed were added. He was acquitted on the charges of conspiracy and forgery, and on- the counts of stealing he was convicted of receiving.
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DECISION(S) FROM THE CAUSE(S) OF ACTION
Held that,
1. Though the trial had not been one on indictment, there had been a misjoinder, and the trial was a nullity.
2. There is no such thing as a consolidation of cases in a criminal trial. Except possibly in the case of an information, defendants separately committed cannot be tried together.
Case sent back for trial by another Judge.
Cases referred to:
R. v. Adiukwu & ors. and R. v. Onwusamaonye (5 W.A.C.A. p. 132).
R. v. D. Onyeka and R. v. Susannah Onyeso. Unreported but judgment delivered in W.A.C.A. in October, 1939.
R. v. Crane, 15 Cr. App. R. 23.
R. v. Dennis and Parker, 18 Cr. App. R. 39.
R. v. MacDonell, 20. Cr. App. R. 163.
Reg. v. Ingham, 1864, 5 B and S. 257.
R. v. Onyejekwe, 2 W.A.C.A. 234.
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MAIN JUDGMENT
The following joint judgment was delivered:-
BAKER, AG. C.J., BROOKE IN WADDINGTON, JJ., NIGERIA.
The two accused were charge each in nine counts with stealing, in the case of the first accused against section 390 (6) as he was transport clerk employed by the Kano Native Administration and of the second accused who was Agent of the Firm of Gottschalck against section 390: counts 1-9 and 11-19 relate respectively to the same transactions. There was a tenth count in which the two accused were charged jointly with conspiracy but the Judge ruled that there was no case made out on this count, ‘There were subsequently added at the trial two counts Nos. 20 and 21 contra. Section 467 of the Criminal Code on which the second accused had been separately committed for trial: he was acquitted on these counts. Counts 1-9 charge the first accused with stealing various quantities of cement the property of his employer at various times between July and October 11st, 1942. Counts 11 to 19 charge the second accused with stealing the same respective quantities of cement at the same times. The same facts apply to each set of counts. The judgment says that the Kano Native Administration “did not know how much cement was lost or indeed if any was” but removal of cement by lorries from a siding at which Native Administration cement was unloaded and from Chellarams Store where Native Administration cement was stored and its conveyance to a Lebanese general trader who re-sold it to the Native Administration were shown: the allegation is that the first accused a general transport clerk employed by the Native Administration removed it and sent it to the second accused who aided in disposing of it. The first accused was convicted of stealing and the second of receiving on all these counts charged against each. The latter alone has appealed against his conviction.
Counsel for appellant argued that there was misdirection and that the verdict was against the weight of evidence. He referred also to irregularities at pages 6, 24 and 48 of the record and to the fact that one of the Crown witnesses was summarily dealt with for perjury.
A point which raised the question of jurisdiction on which Crown Counsel had come prepared to argue was then taken viz. that there had been a misjoinder as two cases separately committed for trial had been joined. ‘There had been two previous decisions in the West African Court of Appeal on the subject of joinder but those cases related to the simultaneous trial of accused persons separately committed whereas in the present case two charges against the second accused on which he was separately committed for trial were joined with the charges against the two accused on which they were committed at the first preliminary investigation. One of the cases referred to is R. v. Adiukwu and ors. and R. v. Onwusamaonye (shown as consolidated cases) reported in W.A.C.A. page 132. In another unreported case R. v. D. Onyeka and R. v. Susannah Onyeso (October, 1939) the same question arose and it was held in both cases that the proceedings in the trial court were a nullity through want of jurisdiction and fresh trials were ordered before the High Court. The headnote reads: defendants indicted separately cannot be tried jointly.” The following passage from the judgment in the former may be quoted:
“A preliminary point was taken that there had been a misjoinder. The learned Crown Counsel did not seek to support the irregularity of a simultaneous trial where the persons had been separately committed for trial and referred to R. v. Crane 1921, 15 C.A.R. 23 in which it had been definitely established that defendants indicted separately cannot in law be tried jointly; such a proceeding was held to be a mistrial and a venire de novo was awarded. The fact that there were separate indictments was in that case only discovered after the appellant had given notice of appeal.
Avory, J. remarked ”Was there a trial at all in this case, which can be recognised? If they were not properly given in charge the tribunal was not competent to try them.
The Court treated the verdict and sentence as a nullity and they were expunged from the record. On appeal to the House of Lords it was held (Viscount Finlay dissenting), that when the Criminal Court of Appeal annuls proceedings on indictment on the ground that they are void it has the power to order a trial on the indictment in question.
R. v. Carles Dennis and Henry Walter Parker 18 C.A.R. 39 decided that defendants not jointly indicted cannot be tried together by consent; the headnote reads ” the Court will take the point that there has been no jurisdiction if it is not taken by the parties.” It is bound to take notice of a manifest want of jurisdiction.
In a further case, that of R. v. MacDonnell 20 C.A.R. 163 where there were no merits at all on the facts and no one appeared to have been aware of the existence of separate indictments the simultaneous trial of indictments was held to be a nullity.”
Crown Counsel now asks the court to say that the decisions in those two cases which the trial Judge may have overlooked were incorrect and makes a submission exactly the reverse of that formerly made to this court by his predecessor on two occasions with which the court then agreed without further argument: it is that there is no such thing as a trial by indictment in the Criminal Procedure of this country and therefore the English decisions have no bearing on trials here: he added that there was no finding by a jury and no actual indictment when the court settled the counts and put them on the record and that at most there was only an irregularity which could be cured by consent. Counsel for the appellant then quoted the case of the Queen versus Ingham 1864, 5 B. and S. 257 which had already been referred to.
It is perfectly clear that this was not a trial upon indictment in the strict sense. The latter is defined (Termes de la Ley, jaeph Enditement) as a “Bill or Declaration in form of Law, exhibited by way of accusation against one for some offence either criminal or penale, and preferred into Jurors, and by their verdict found Baker, Ag. presented to be true before a Judge or officer that hath power to punish or certify the offence.” Denman, J. defined it as a written accusation of one or more persons of a crime presented upon oath by a jury of twelve or more men termed a grant jury. It generally includes an inquisition and may by an interpretation clause be made to include information. In R. v. Ingham it was held that an inquisition amounts to an indictment. There are passages in that case which indicate however that the term indictment has a more extensive meaning than one which would limit it to the finding of a jury and embraces any formal accusation. In ordinary language to indict is to accuse especially by legal process. Take for instance the following:
“The instrument on which a person can be put on his trial is properly called an indictment.” 4 Bl. Comm. 302 (on a Coroner’s inquisition)
“Offender so presented must be arraigned upon this inquisition and may dispute the truth of it; which brings it to a kind of indictment.”
“The indictment when applied to a Coroner’s inquisition is used in the sense of an accusation and not as pointing out the instrument containing it.”
“It signifieth in law an accusation found by an inquest of twelve or more upon their oath, and the accusation is called indictamentum.”
“Presentment generally taken is a very comprehensive term: it is the notice taken by a grand jury of any offence from their own knowledge or observation upon, which the officer of the court must afterwards frame an indictment before the party presented can be put to answer it.”
“The term indictment in its true legal sense of the term was properly applicable to a finding by any jury.” (Cockburn, C.J.)
“Indictment included all charges of a criminal nature made upon oath by an inquest which had power to make the inquiry: although the term is now more generally understood to signify such a charge when reduced into writing.” (Blackburn, J.)
“Having been sworn to make inquiry and when they find a particular charge and that finding is reduced into writing, it becomes a record of court.”
“In old times presentment and finding were verbally stated in court and taken down in writing and made a record.”
”An accusation by Coroner’s jury is equally an accusation which is the result of their opinion of the evidence” adduced before them and upon which a person may be tried.”
“The word indictment is large enough to apply to a Coroner’s inquisition.”
“In common talk indictment does not mean inquisition but in modern times we find that for 10 years from the passing of Stat. 14 and 15 Vict. Ch. 100 the word was understood and taken to mean both (accusation and instrument containing the accusation) the word ‘ indictment’ must have the same extensive meaning.”
It is also of interest that the Criminal Justice Act of 1925 provides that at Quarter Sessions where the accused before the justices admitted the truth of the charge, no grand jury need be summoned but the case may be tried as if a true bill had in fact been found.
Similarities are observed between the Criminal Procedure Rules: thus Rule 6(1) on page 80 of the Criminal Law Manual is identical as regards the description of property but the words ‘in a count in an indictment ” become “in a count in a charge or information,” and it cannot be contended although the term is used in the same connection that there is any trial by indictment strictly so called in this country.
The Judge’s note on the record reads as follows:
‘Two charges separately committed for trial, Collins asks to have them joined for trial. Same series of transactions. Abayomi for Ogidan says he has no objection: Onyeama for Williams says no objection.”
“Court – Two separate indictments cannot be tried together. This is not a trial by indictment – or on information fled by Attorney-General. It is presumably a summary trial (as it is neither of the former two). So I think the charge in K/86. C/43 can be joined with that in K/65. C/43 as an additional two counts, to be 20 and 21.
It is clear that he had a doubt as to the nature of the trial and that he was therefore not in a position to exercise his discretion as to the joinder. It was certainly not a summary trial.
By section 18 of the Protectorate Courts Ordinance-
“Causes in the High Court shall be tried after committal by a Magistrate’s Court holding a preliminary investigation or summarily in the manner and subject to the conditions laid down in the Criminal Procedure Ordinance, so far as the same are applicable,”
The proceedings in this trial were after committal and it was not a summary trial in any sense: possibly the judge had in mind Order XXXIX of the Protectorate Courts Rules which reads as follows:-
“Criminal causes committed to the High Court for trial As after a preliminary investigation may be tried upon information but if no information is fled such trials shall be commenced by the court placing upon record the charge or charges made against the accused, and thereafter shall, subject to the provisions of section 19 of the Ordinance and of any Orders made thereunder, be conducted, so far as may be, in the manner laid down in Part III of the Criminal Procedure Ordinance.”
This has tended to confusion but in practice there has been a sharp distinction between trial after committal and summary trial. Part III of the Criminal Procedure Ordinance relates to summary trial but proceedings after committal and in summary trial have always in practice been distinguished and the former approximate to proceedings on information (to be distinguished from an English information) in the Supreme Court (without a jury) or a trial on indictment in England; section 77 of Cap. 20 refers only to summary trial of offences and there is s decision in this court that a distinction must be drawn between cases which are tried after committal and those tried summarily. (See R. v. Onyejekwe W.A.C.A. 2 p. 234).
As regards the two previous decisions in West African Court of Appeal the heading to the first case shows that the two cases separately committed were described as consolidated cases, and what was actually found to be a nullity was that there was a simultaneous trial where accused persons were separately committed for trial. There is no such thing as a consolidation of cases in a criminal trial and except possibly in the case of an information defendants separately committed cannot be tried together. The law leans against joint trials and there is no power to join other than that in section 32 of Cap. 20 which prescribes the circumstances in which there may be a joint trial. After committal in this country, where there is no information, the charges against the accused by which he or they was or were committed are placed on the record by the Court in the absence of a bill of indictment and finding of a true bill which is a procedure unknown here. It was held in those cases that the same principles would apply as in cases where accused are separately indicted. As regards separate committals on different charges the same considerations would apply. It is expressly provided in Rules of Court No. 7 of 1934 –
“Provided that, in lieu of or in addition to the charge or charges upon which the accused has been committed for trial any charge may be entered by the Court which in the opinion of the presiding Judge can properly be founded upon the facts disclosed in the depositions, though the accused has not been committed for trial upon such charge.”
but this does not authorise new charges disclosed in a separate preliminary investigation being added. In R. v. Crane it is mentioned that one result of trying two separate indictments together is that evidence was wrongly admitted against appellant and in the present case though the evidence on the forgery counts might have formed part of the case for the Crown in relation to the stealing charges and could have been led on the depositions in the original preliminary investigation, it apparently did not. It is not clear why it was thought necessary to ask the Judge to add them where the number of counts already reached 19; the first suggestion that they went to show guilty knowledge appears in the judgment and the transactions to which Exs. “Q1” and “Q2” relate are only connected to the charges of stealing by the statement of accused that he received the cement from the first accused (the witness, Asta or Esther Wabi could not identify it). Asta or Esther Wabi could have been called as a witness as to guilty knowledge on the other charges. The appellant was acquitted en both these charges but het evidence was relied on by the Judge in his reasons for convicting appellant of receiving.
Nowhere is there any provision for the joining of charges upon which the accused is separately committed for trial (see section 32 of Cap. 20). Other considerations may apply where there is an information on which the skill of a legal officer has been exercised.
In R. v. Onyeka and Onyeso the Court gave a certificate that the appellant was prejudiced in his defence by a simultaneous trial, and in the consolidated cases R. v. Adiukwu & Ors. and R. v. Onwusanmaonye the judgment read ”much of the oral evidence in this case is tainted with prejudice intrigue and counter intrigue – no doubt there was a counter conspiracy against first and second accused and the Judge adds a note – “This accused person was arraigned (which is defined as calling a prisoner to the bar of the Court to answer the matter charged against him in an indictment) separately from the others on different counts.”
For the reasons given above we are not prepared to take a different view from the previous decisions of this Court and hold that this trial was a nullity and must be sent back for re-trial by another Judge. The other accused has not appealed but he must have the benefit of this derision.