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REX
V.
PETER OTUBU
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
7TH DAY OF JANUARY, 1943
2PLR/1943/30 (WACA)
OTHER CITATION(S)
2PLR/1943/30 (WACA)
(1943) WACA IX PP. 20 – 21
LEX (1943) – WACA PP. 20 – 21
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BEFORE THEIR LORDSHIPS
DONALD KINGDON, C.J., NIGERIA
BUTLER LLOYD, J.
FRANCIS, J.
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BETWEEN:
REX — Respondent
AND
PETER OTUBU — Appellant
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REPRESENTATION
S. A. McKinstry — for the Crown
A. O. Abayomi — for Appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE — PERJURY:- Summary Procedure under section 41(1) of the Criminal Procedure Ordinance, Cap. 20 — Two conditions which must be satisfied and present to sustain a conviction for perjury — Effect of failure thereto
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (Appeal allowed):-
In summary proceedings for perjury, before the accused is asked to show cause why he should not be punished, it is not sufficient merely to tell him that he has committed perjury; he must also be informed of the substance of the allegations of perjury.
Cases referred to:-
(1) Chang Hangkin and others v. Piggot and another ([1909] A.C. 312)
(2) In re Samuel Nunoo (3 W.A.C.A. p. 74).
(3) Deutsche L. Gessellschaft v. Attorney-General in re Biney (1 N.L.R. 123).
[NOTE.—See Criminal Procedure Ordinance, 1945 (Nigeria), sec, 274 (2)].
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, BUTLER LLOYD AND FRANCIS, J.J.
In this case the appellant was a witness in a criminal case, and at the close of the trial was called up by the Court to show cause why he should not be committed to prison for contempt of Court, the presiding Judge adding – “as I am satisfied he has been guilty of perjury”. But the Judge did not set out the assignment of perjury or, so far as the record shows, tell the appellant of what the perjury consisted. We have examined the record and are unable to ascertain what the accusation is or even what the gist of it is. In answer to the request to show cause the appellant made a plea ad misericordiam.
The learned trial Judge acted under section 41 of the Criminal Procedure Ordinance. Somewhat similar cases under similar sections have been considered at various times. The most important is that of Chang Hangkin and others v. Piggot and another ([1909] A.C. 312) in which the Privy Council rescinded the committal order because the appellants had not been given an opportunity of giving reasons against summary measures being taken against them. That case is also an authority for the proposition that it is not essential to set out the assignment of perjury in the summary procedure provided the accused is made aware of the pith of the charge against him. It was for that reason that the case of In re Samuel Nunoo (3 W.A.C.A. p. 74) decided by this Court (constituted differently from its present constitution) sitting at Accra went against the appellant, the Court then holding that since the appellant must have been aware of the statement made by him which it was alleged was false, his appeal failed.
In the case of Gesellschoft. v. Attorney-General in re Hiney (1 N.L.R. 123) the Full Court of Nigeria laid down the proper procedure in such cases in the following terms:-
”The proper procedure in such cases is for the Court to call up the witness and address him to the following effect:
‘It appears to this Court that you have been guilty of perjury in that you have falsely sworn so and so (giving the substance of the allegations of perjury). What have you got to say why you should not be fined or committed to prison as for a contempt of Court?’
If he does not answer or succeed in showing cause why he should not be dealt with summarily, the Court can then proceed to pass sentence under section 50 of the Criminal Procedure Ordinance.
The fact that the witness has been so addressed, and his answer, if any, should be recorded in the notes of the presiding Judge.”
We endorse this declaration as to the procedure which should be followed in such cases. If however there is a failure to follow that procedure it appears from the cases above referred to that the conviction will not be quashed provided (a) that the accused was given an opportunity to show cause and (b) that he knew the gist of the accusation made.
In the Hong Kong case of Chang Hangkin the conviction was quashed because (a) was not present, whilst in the Gold Coast case In re Nunoo the conviction was upheld because both (a) and (b) were present.
In the present case (a) is present but (b) is not and the conviction therefore cannot stand.
The appeal is allowed and the order of committal is rescinded and the appellant is discharged.