3PLR – STEPHEN NDIKUM V. THE QUEEN
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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STEPHEN NDIKUM
V.
THE QUEEN
FEDERAL SUPREME COURT OF NIGERIA
F.S.C. 41/1961.
30TH JUNE, 1961.
3LR/1961/57 (FSC)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS:
LIONEL BRETT, AG. C.J.F. (Presided and Read the Judgment of the Court)
EDGAR IGNATIUS GODFREY UNSWORTH, F.J.
JOHN IDOWU CONRAD TAYLOR, F.J.
MAIN ISSUES
PRACTICE AND PROCEDURE – APPEAL -Power of Appellate Court to impose conviction on counts dismissed by lower court – Section 435 Criminal Procedure Ordinance.
CRIMINAL LAW AND PROCEDURE – Conviction for manslaughter – Discharge on other counts – Conviction quashed on appeal – Power of Appellate Court to convict on discharged counts – Section 435 Criminal Procedure Ordinance.
PRACTICE AND PROCEDURE – COURT -Conviction on counts dismissed by lower court -Criminal Procedure Ordinance Section 435 – Power of appellate court.
REPRESENTATION:
Chief M.E.R. Okorodudu (B.O.A. Akinjide with him) -for the Appellant
G.C. Nonyelu Q.C. (F.G. Peters, Crown Counsel with him) —for the Respondent.
MAIN JUDGMENT
BRETT. AG. C.J.F. (Delivering the Judgment of the Court):
The appellant was charged before the High Court of the Southern Cameroons on an information containing three counts, all of which arose out of the same incident. The first charged him with manslaughter, the second with driving a motor vehicle without a licence and the third with negligent driving. The Judge convicted him of manslaughter and sentenced him to a fine of £100, with the alternative of two months imprisonment. He said of the other two counts “in view of the conviction on the first count, I consider it adequate to dismiss the second and third charges against the accused under section 435 of the Criminal Procedure Ordinance.”
In this court, the Director of Public Prosecutions of the Federation, who appeared for the crown, has not attempted to uphold the conviction for manslaughter, and we agree that the direction on the law relating to manslaughter by negligence was insufficient, and that the conviction must be quashed. We are satisfied, however, that the learned Judge was entirely justified in finding the second and third counts proved, as his reference to section 435 of the Criminal Procedure Ordinance implies, and we invited counsel to address us on whether we had power to record a conviction and impose a sentence on these counts. Section 435 of the Criminal Procedure Ordinance is derived from section 1 of the Probation of Offenders Act, 1907, and, as a Divisional Court of five judges found in Oaten v. Auty (1919) 21 K.B. 278, an order dismissing a charge under the section is a kind of statutory hybrid having some of the characteristics of an acquittal. Part IV of the Federal Supreme Court Ordinance, 1960, which set out the powers of this court in appeals in criminal cases from a court sitting as a court of first instance, does not expressly deal with such a case as this, and it is a matter of some difficulty to say what the powers of this court are.
After full consideration of all the circumstances, including, among other things, the comparatively lenient view taken by the trial Judge and the fact that the appellant has already served the prison sentence imposed as an alternative to a fine, we have come to the conclusion that in the present case it would not in any event be proper to impose any additional sentence, and we do not consider that injustice would result from a bare order quashing the conviction for manslaughter. We therefore propose to leave the question of the court’s powers unanswered in this case, and the order of the court will simply be that the conviction for mansluaghter is quashed and judgment of acquittal is entered on the first count of the information.
We have two comments to add. The first is that while we can understand that the learned Judge, having decided that a fine would be an appropriate punishment on the most serious count, did not wish to impose additional fines on the lesser counts, the powers conferred by section 435 of the Criminal Procedure Ordinance should only be exercised on one of the grounds set out in the section, which do not include a desire to avoid the imposition of separate sentences on different counts of an information. There are other sections of the Ordinance under which much the same result could have been obtained, and which could have been used without objection. The second is that in England the Probation of Offenders Act, 1970, has now been repealed and that under the Criminal Justice Act, 1948, there is no longer any doubt whether a person found guilty and given an absolute discharge has been convicted or not, and that we hope an occasion may be found for clarifying the position under the Criminal Procedure Ordinance, and the powers of this court in such a case as the present one.
Appeal Allowed.
