Nyadago v Reginam (Criminal Appeal No. 142 of 1955) [1955] EACA 338 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY, (Vice-President) and BRIGGS, Justice of Appeal

COSMA s/o NYADAGO, Appellant (Original Accused)

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## REGINAM, Respondent

## Criminal Appeal No. 142 of 1955

(Appeal from the decision of H. M. High Court of Tanganyika, Sir Herbert $Cox, C. J.$ )

Charge—Information—Several counts—Alternative charges—Specifying punishment section in statement of offence—Penal Code, sections 21, 285 and 286 -Criminal Procedure Code, sections 135 to 138 (inclusive)-Accused punished more than once for same unlawful act.

The appellant was convicted on four counts, viz. $(a)$ conversion of a motorcar, not amounting to theft contrary to section 284 of the Penal Code $(b)$ robbery with violence contrary to section 285 of that Code and $(c)$ and $(d)$ assault occasioning actual bodily harm contrary to section 241 of the said Code. He, with others, had broken into a house and shop and stolen property. In the course of the robbery, violence was used to two persons and this formed the subject matter of counts $(c)$ and $(d)$ as well as being the subject of the particulars given in count (b). A motor-car had been taken and used to fulfil their unlawful purpose, and was later abandoned.

Robbery is defined in section 285 aforesaid, whilst the punishment for robbery is provided for in section 286 which reads: "Any person who commits<br>the felony of robbery is liable to imprisonment for 14 years. If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery he wounds, beats, strikes or uses any other personal violence to any person, he is liable to imprisonment for life, with or without corporal punishment."

The Crown agreed that counts $(c)$ and $(d)$ were, in fact, alternative to count $(b)$ although this was not so expressed in the information.

By section 21 of the Penal Code: "A person cannot be punished twice either under provisions of this Code. . . ."

The provisions prescribing the rules as to charges and informations are contained in section 135 to 138 (inclusive) of the Criminal Procedure Code,<br>section 138 ( $\nu$ ) providing: "Where a charge or an information contains more than one count, the counts shall be numbered consecutively."

Held (18-4-55).—(1) It is better, in appropriate cases to specify, in the statement of offence,<br>not the definition section of an Ordinance, but the punishment section thereof. In the<br>instant case, it should have specified part of section 286 rather than have specified section 285 therein.

(2) Counts in an information can, and should, be laid in the alternative in appropriate cases, and are not (subject to the court's discretion and the rules as to joinder of charges), subject to a numerical maximum. The decision to the contrary in Ndalu bin Magunga v. $R$ is no longer authoritative.

(3) Since the violence alleged in counts (c) and (d) formed a constituent of the offence under count (b) the accused person had been punished more than once for the same unlawful act, and this offended section 21 aforesaid.

Appeal allowed in part. Convictions and sentences on counts (a) and (b) confirmed. Convictions and sentences on counts $(c)$ and $(d)$ set aside.

Cases referred to: Ndalu. bin Magungu v. R., (1934) 3 T. T. L. R. 28; Janeshar Das v. Emp. A. I. R., (1929) All 202; In re Bal Gangadhar Tilak, (1909) I. L. R. 33 Bom. 221;<br>R. v. Seymour, (1954) 1 A. E. 1006; R. v. Nassa Ginneries Ltd., ante page 434.

Appellant absent, unrepresented.

Sir James Henry (Acting Attorney-General (Tanganyika)) for respondent.

*Editorial Note.*—The decision in this case appears to conflict with and overrule that in *Myano* $v$ . R. 18 E. A. C. A. 317.]

JUDGMENT (prepared by Worley (Vice-President)).—The appellant was charged at a sessions of the High Court of Tanganyika sitting at Moshi on five counts. and was convicted on the following four:-

- (a) Conversion of a motor-car not amounting to theft, contrary to section 284 of the Penal Code. - (b) Robbery with violence, contrary to section 285 of the Penal Code. - (c) and (d) Assault causing actual bodily harm, contrary to section 241 of the $\frac{1}{2}$ the Penal Code.

On each of the counts (a), (c) and (d) he was sentenced to six months' imprisonment with hard labour and on count $(b)$ to ten years' imprisonment with hard labour and fifteen strokes, the sentences of imprisonment all to run concurrently. No application appears to have been made at the trial for leave to appeal on fact or questions of mixed law and fact. The memorandum lodged is in form an application for leave to appeal on these questions and also for leave to appeal against sentence. We granted the application and in the result, allowed the appeal in part, setting aside the convictions and sentences on counts (c) and (d), but confirming the convictions and sentences on counts (a) and (b). We now give our reasons for so doing.

The relevant facts briefly are that on the night of 1st September, 1953, at Kindi, near Moshi, the dwelling-house and shop of one Isaka, was broken into and Sh. 3,000 and other property stolen. Three robbers were concerned of whom the appellant was one. They used for the purpose of their raid on Isaka's premises a motor-car which they had taken and afterwards abandoned; this formed the subject of the first charge and we are not further concerned with it. In the course of the robbery; violence was used, first to Isaka's watchman, Shadrick, and later to Isaka himself, and this violence formed the subject of counts $(c)$ : and (d); it was also the subject of the particulars given in count (b) for the purpose of showing that in the course of the robbery actual violence was used to a person, thereby bringing it within the aggravated form of robbery with actual violence punishable with imprisonment for life and corporal punishment under the second paragraph of section 286 of the Penal Code.

In passing, we would observe that on the information the statement of •offence in this count is in the following words: —

"Robbery with violence, contrary to section 285 of the Penal Code."

Section 285 is the definition section covering both what may be termed "simple robbery" and "robbery with actual violence." We think it would be better in such cases to specify in the count the punishment section rather than the definition section and further, in appropriate cases, to specify the case as one punishable under the second paragraph of the punishment section.

Our reason for quashing the convictions on counts (c) and (d) was that, since the violence alleged in those counts was the same as that alleged and proved in count $(b)$ and since that violence had formed a constituent of the offence for which the appellant was convicted on that count, he could not be punished a second time in respect of these same acts of violence: section 21 of the Penal Code. Sir James Henry, for the Crown, agreed that counts (c) and (d) were in fact alternative to count $(b)$ although they were not expressed to be so on the information, nor does it appear from the record that prosecuting counsel made this clear to the learned trial Judge.

Sir James informed us that there appears to be a practice in Tanganyika not to put charges on an information in the alternative and he stated that this practice appears to have originated from a decision of the High Court of Tanganyika sitting in criminal appellate jurisdiction in the case of *Ndalu bin* Magungu v. R. (1934) 3 Tang. L. R. 28: that was a decision under section 132 (c) of the Criminal Procedure Code of 1930 which corresponded to section 236 of the Indian Criminal Procedure Code. Since that date the relevant provisions as to joinder of charges in the Code have been so altered that we think the decision is of little, if any, importance to-day. As to the Indian case which is there cited and to some extent relied upon, namely, Janeshar Das v. Emp. A. I. R. (1929) All 202, it is of still less relevance since it was a decision of a single Judge of the Allahabad High Court and was primarily a decision on the then provisions of the Indian Code relating to the joint trial of two accused persons. It is, moreover, in direct conflict with the decision of two Judges of the High Court of Bombay in the case of In re Bal Gangadhar Tilak (1909) I. L. R. 33 Bom. 221.

Since the date of the decision in Ndalu's case, the Criminal Code of Tanganyika has moved so much nearer to English practice that Indian decisions are now generally of very little value. The High Court of Tanganyika citing Russell on Crimes, 8th Ed., Vol. II, at page 1796 set out the English practice as follows: $-$

"Where it is uncertain which crime the facts of the transaction will in law constitute, it is usual to insert in the indictment counts specifying all the alternative offences of which it is likely that the facts of the transaction may justify conviction, where such offences can be lawfully joined in the same indictment."

This passage occurs in a chapter headed "Criminal Pleadings" which is not included in the current 10th Edition of Russell, and we have not been able to find any equivalent passage either in Volume 9 of Halsbury's Laws of England. 2nd Ed., nor in Archbold. Nevertheless, we do not question that it correctly represents the practice in England where, as is well know, each count is in substance a separate indictment. Under the Indictment Rules, 1915, rule 4 (6) where an indictment contains more than one count, the counts must be numbered consecutively; it is not therefore the practice to mark them as alternative, although it is well recognized that counts in an indictment in England may in fact be alternative: see R. v. Seymour (1954) 1 All E. R. 1006 where it was held that when a conviction has been entered on one of the alternative charges, no verdict or finding should be entered on the other one. See also E. A. C. A. Criminal Appeal No. 79 of 1955 (Reg. v. Nassa Ginneries Ltd., ante page 434).

The provisions of the present Criminal Procedure Code of Tanganyika prescribing rules as to charges and informations, are contained in sections 135 to 138 inclusive. Several of the restrictions contained in the former Code based on Indian practice have been removed and, in particular, the restrictions which were under consideration by the High Court in *Ndalu's case*. Section 138 (v)

does provide that where a charge or an information contains more than one count, the counts shall be numbered consecutively, but there is no restriction, as formerly, on the number of offences or counts which may be included in an information. We think therefore that *Ndalu's case* is no longer an authority for the proposition that counts in an information cannot be laid in the alternative or that they must be regarded as cumulative and subject to a numerical maximum. This is not to say that there are no legal restrictions on the joinder of counts in an information or that a Judge has not a discretion to disallow a joint trial of all or some of the counts included in the information, but these are questions which do not arise in the instant case.

As we have said, in English practice it is permissible to include in one indictment counts which are in fact alternative, though it does not appear to be the practice to mark them as such. There may be historical reasons for this, but, so far as these territories are concerned, we know of no reason in law why such a practice should not be adopted. We therefore suggest that it will be found convenient to adopt this practice and so avoid the error committed in the instant case of entering convictions and sentencing the accused person twice for what was in law one offence.