THE QUEEN (COMPLAINANT)
ENEBIENI IJOMA (ACCUSED)
(1961) All N.L.R. 539
Division: High Court of Lagos
Date of Judgment: 28th July, 1961
Case Number: Charge No. LA/17C/61
Before: Dickson, J.
The accused was charged on an information containing nine counts of forging and uttering a certificate and testimonial and thus procuring himself to be registered as a medical practitioner under the Medical Practitioners and Dentists Ordinance Cap. 116. He was also charged with possession of poison for an illegal purpose contrary to section 59 of the Pharmacy Ordinance, Cap. 152. The prosecution applied for the depositions of three of the witnesses, who gave evidence at the preliminary investigation in the magistrate's court, to be admitted in evidence under the provisions of section 34 of the Evidence Ordinance, Cap. 62. The witnesses were resident in the United Kingdom and had to be brought to this country at great expense to the Federal Government to give evidence at the preliminary inquiry. It was argued for the accused that the said depositions were inadmissible because:-
(a) There was no evidence that the proceeding before the High Court was between the same parties as that in which the depositions were taken; nor was it shown that the questions in issue were substantially the same in both proceedings, as is necessary in order to fulfil the conditions of admissibility of such evidence required by sections 34(1) and 34(2) of the Evidence Ordinance, Cap. 62; and
(b) the witnesses concerned were not bound over by the magistrate at the preliminary inquiry, as required by section 312(e) of the Criminal Procedure Ordinance.
It was also contended for the defence that inasmuch as the accused held a Certificate of Registration under the Medical Practitioners and Dentists Ordinance, he was permitted to have poisonous drugs in his possession.
(1) Although the Inspector-General of Police may appear as the informant in the record of proceedings in a preliminary inquiry and the Crown substituted in the charge for the purpose of trial, since the Crown is the nominal prosecutor in all criminal proceedings, it cannot be said that by reason of such substitution there has been a change of parties so as to exclude the admissibility of evidence given by a witness in the preliminary inquiry under section 34(1) of the Evidence Ordinance.
(2) The court has a discretion to admit or refuse to admit the deposition of a witness, under section 34 of the Evidence Ordinance.
(3) The provision of section 313(2) of the Criminal Procedure Ordinance, which requires recognizance to be taken from a witness who gives evidence at a preliminary inquiry, is merely directory and failure to comply therewith does not render the deposition of such witness inadmissible.
(4) Where a person by presenting, or causing to be presented, false documents procures himself to be registered as a Medical Practitioner, the registration is void ab initio; and the possession by that person of poisonous drugs is illegal.
Conviction on all counts.
Cases referred to:-
Majekodunmi v. The Queen, 14 W.A.C.A. 64.
R. v. Langridge, 3 Cox 465, (1849) 2 Car and Kir. 975, 1 Den. 448 T. and M. 146; 3 New Sess. Cas. 645; 18 L.J.M.C. 198; 13 L.T.O.S. 551; 13 J.P. 425; 13 Jur. 545.
R. v. Ward, (1848) 2 Car & Kir. 759; 12L.T.O.S.6; 12 J.P.554; 3 Cox 279.
R. v. Holloway, 65 J.P. 712.
R. v. Collins, 26 Crim. App. R. 177; (1938) 3 All. E.R. 130, 159 L.T. 71; 102 J.P. 328; 54 T.L.R. 842, 82 Sol. Jo. 436, 31 Cox 83.
R. v. Yusufu Kano, 8 W.A.C.A. 106.
R. v. Scott, 13 W.A.C.A. 25.
R. v. Sullivan, 30 Crim. App. R. 132.
R. v. Linley, (1959) Crim. Law Rev. 123.
Acts, Ordinances and Laws referred to:-
Criminal Code, Cap. 42, secs. 467, 468.
Medical Practitioners and Dentists Ordinance, Cap. 116, section 26.
Pharmacy Ordinance, Cap. 152, section 59.
Evidence Ordinance, Cap. 62, secs. 34, 114.
Criminal Procedure Ordinance, Cap. 43, secs. 312(e), 313(2), 114, 322, 329(1),
Criminal Justice Act, 1925 (15 and 16 Geo. 5, C. 86), section 13.
Police Ordinance, Cap. 154, section 19.
Perjury Act, 1911 (1 and 2 Geo. 5, C. 6), section 6.
Corozers' Ordinance, Cap. 15 (1923 Ed.) section 27.
Fani-Kayode, Q.C. (with him Okunnu and Duduyemi) for the Accused.
Nonyelu, Q.C. Director of Public Prosecutions (with him Peters, Crown Counsel) for the Crown.
Dickson, J.:-The accused is charged on an Information containing nine counts.
He is charged in the first count with forgery of a testimonial dated the 11th August, 1959; and in the second count, with forgery of the signature of one H.W. Salmon in the said testimonial; contrary to section 468 of the Criminal Code. The third count charges him with uttering the testimonial, contrary to section 468 of the Criminal Code. The fourth, fifth and sixth counts charge him respectively, with forgery of a certificate dated the 23rd March, 1956; and forgery of the signatures of one M. Critchley, and one E. Busby, thereon; all contrary to section 467 of the Criminal Code. He is charged in the seventh count with uttering the said certificate, contrary to section 468 of the Criminal Code.
In the eighth count he is charged with the offence of procuring registration by false representation, contrary to section 26 of the Medical Practitioners and Dentists Ordinance, Cap. 116. The ninth count charges him with the offence of possession of poison for an illegal purpose contrary to section 59 of the Pharmacy Ordinance, Cap. 152.
During the trial, on the application of the Director of Public Prosecutions, the depositions of Ernest Busby, MacDonald Critchley and Harold William Salmon, taken at the Preliminary Investigation in this case against the accused were admitted in evidence and read, under the provisions of section 34 of the Evidence Ordinance, Cap. 62. They were marked respectively Exhibits 7, 12 and 14.
The prosecution's case is briefly this: the accused who is now a registered medical practitioner procured the registration of his name by presenting a certificate to the Ministry of Health in Lagos, purporting to have been issued by the Society of Apothecaries of London. This Society confers medical diplomas on successful candidates.
The qualification for admission to the Medical Register in Nigeria, is the possession of a certificate from a recognised Medical School showing that the applicant has successfully taken a medical course. In addition, the applicant must produce evidence that, he has worked in a recognised hospital as an House Physician and House Surgeon for a period of not less than one year after qualifying.
With a view to obtaining registration of his name, the accused sometime in 1959, but before June of that year, interviewed the Medical Registrar, Dr Alakija prosecution witness 2, at the Ministry of Health. He was given the necessary forms to complete. He was also given advice by Dr Alakija. Subsequently, the forms and qualifying certificate were received in the Ministry in respect of the application. In passing, it might be mentioned that the temporary file with the completed forms and some other documents cannot now be found in the Ministry. The second prosecution witness had told the accused that, unless he could produce evidence of post-qualifying experience he would not be registered.
The accused produced or caused to be produced to the Ministry of Health a testimonial dated the 11th August, 1959, purporting to have been signed by one H. W. Salmon, to the effect that he had worked in Queen Mary's Hospital, London E. 15, as an House Physician and House Surgeon. In addition, the document states that Dr Ijoma proved himself to be a good physician.
As a result of the two documents: the qualifying certificate and the testimonial, Dr Majekodunmi (PW1) who acted as Medical Registrar during the absence on leave of Dr Alakija caused the accused's name to be registered and a licence to practice under the Medical Practitioners and Dentists Ordinance was issued. The date of registration being 24th August, 1959. (see exhibit 2).
Later Dr Majekodunmi sent a photostat of the testimonial to the Medical Adviser to the Colonial Office in London with a request. On the return of Dr Alakija from leave he was told certain things and he was shown the testimonial and he also gathered information from the file. As a result of final enquiries, the matter was reported to the police.
The prosecution are saying that the accused uttered the diploma or qualifying certificate to the Ministry of Health purporting it to be that of the Society of Apothecaries; and that it is false. They say that the certificate is a false copy of one of the certificates normally issued to successful candidates by the Society, and allege further that the two signatures on that document purporting to be the signatures of officials of the Society are also false, hence counts four, five and six. It is their case that there is no direct evidence who forged both the certificate and the signatures thereon, but that the accused having been in possession of the document and the accused having uttered it, the inference is that he was the forger.
It is also their case that the testimonial as such is a forgery, that is to say the document; and in addition allege that the signature thereon which gives the document its validity is not that of H. W. Salmon hence counts one and two. It is their case, that although there is no direct evidence that the accused was the forger or that he uttered the document, the fact that the accused having been asked to produce a post-qualification testimonial, as a result of which he was registered after that document came into the Ministry of Health, in the absence of any explanation by the accused the necessary inference is to be drawn and section 7 of the Criminal Code must be invoked.
The prosecution asserts that had it not been for the combined effect of the testimonial and certificate the Ministry of Health would not have registered the accused as a medical practitioner.
As regards theninth count, the prosecution's case is: prima facie the accused being a registered medical practitioner could possess, poison, but if he procured himself to be registered as a medical practitioner by presenting to the Ministry of Health a qualifying certificate and a testimonial, which turn out to be false, then the registration becomes void ab initio and, therefore, he is not one of those empowered by the Ordinance to possess poison and, accordingly his possession is illegal.
It was established that these witnesses were flown from and back to the United Kingdom at the expense of the Federal Government in order to give evidence at the preliminary inquiry. They were not in the country during the trial and the court was of the opinion that their attendance could not have been obtained without expense which in the circumstances of the case is unreasonable.
The portion of the section of the Evidence Ordinance relevant to this case reads:-
34(1) Evidence given by a witness in a judicial proceeding, or before any person authorised by law to make it, is relevant for the purpose of proving, in a subsequent judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable: Provided:-
(a) that the proceeding was between the same parties or their representatives in interest;
(b) that the adverse party in the first proceeding had the right and opportunity to cross examine; and
(c) that the questions in issue were substantially the same in the first as in the second proceeding.
(2) A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.
Mr Kayode for the accused in his address submits that the depositions were improperly admitted, and if I may say so, argued ingeniously in support of his contention. He has in effect argued that conditions in paragraphs (a) and (c) of subsection (1) have not been satisfied, in that there is no evidence in support. As regards subsection (2) he asks the question who is the prosecutor? He says the prosecutor cannot be presumed. He further submits that as the witnesses to whom the depositions in question relate, did not enter into a recognizance as is required by section 313(2) of the Criminal Procedure Ordinance, the court cannot take cognizance of them. Finally, he submits, if I understand him correctly, that the court had exercised its discretion wrongly in admitting the depositions. I have given full consideration to the points raised by Counsel for the accused.
Now, before proceeding to deal with the issues raised by Mr Kayode, there is just a word or two I wish to say by way of general observation. It is observed that prior to 1953, nowhere either in the Evidence Ordinance nor in the Criminal Procedure Ordinance was specific provision made for the admission in evidence of the deposition of a witness who gave evidence at the preliminary investigation, but is not available at the trial, and therefore resort was and still is being made to section 34 of the Evidence Ordinance, save in those circumstances which fall within the 1953 Legislation (Ordinance 13 of 1953). The provisions of the 1953 Ordinance on this subject are now contained in section 329 of the Criminal Procedure Ordinance and is part of section 13 of the Criminal Justice Act, 1925, (15 & 16 Geo. 5, C. 6). It in fact embraces the provisions of section 13 which provides for the conditional binding over of witnesses under certain circumstances and the subsequent reading of their depositions at the trial, but does not provide for such a course where a witness is dead or insane, or is so ill as not being able to travel, or kept out of the way; as has been done in the English statute. Section 329 is therefore limited in scope. Suffice to say the provisions of section 329 do not cover the circumstances of this case.
Section 34 of the Evidence Ordinance, Cap. 62, provides, as we have seen, that, in certain circumstances and subject to certain conditions, evidence given by a witness "in a judicial proceeding is relevant for the purpose of proving in a subsequent judicial proceeding ... the truth of the facts which it states...."
The section, while making such evidence relevant, which appears throughout the Evidence Ordinance to include admissible, does not make provision as to how such evidence may be proved, but section 114 of the Ordinance makes certain provisions in general: See R. v Abaecheta Judgment of the West African Court of Appeal dated 22nd July, 1952.
Section 114 reads:-
Whenever any document is produced before any court purporting to be a record or memorandum of the evidence ... given by a witness in a judicial proceeding ... taken in accordance with law and purporting to be signed by any judge or magistrate ... the court shall presume:
(a) that the document is genuine;
(b) that any statement as to the circumstances in which it was taken purporting to be made by the person signing it are true;
(c) that such evidence ... was duly taken.
In the instant case, the documents purported to be a record of the evidence by a witness in a judicial proceeding, that is to say, a preliminary investigation. The presumption that each document is genuine and that the statement at the foot thereof signed by the magistrate as to the circumstances in which it was taken are not attacked. It is however contended, as has already been pointed out that the court cannot take cognizance of the depositions in that the witnesses did not enter into a recognizance as is required by section 313(2) of the Criminal Procedure Ordinance.
In considering the points raised by Mr Kayode not only must section 34 and section 114 of the Evidence Ordinance be considered, but they must be read in conjunction with sections, 321, 322 and 330 of the Criminal Procedure Ordinance.
It is quite clear the respective depositions in question were duly signed by the magistrate at the end thereof, which authenticated it under section 322, and the exhibits which were put in evidence through the witness were marked in accordance with the provisions of section 321. Indeed, Counsel for the accused concedes that the documents were duly authenticated by the magistrate, for in making his submissions he stated that section 34(1)(b) of the Evidence Ordinance had been satisfied because of the certificates of the magistrate. The depositions were duly transmitted to the Registrar of the court in compliance with section 330 of the Criminal Procedure Ordinance.
Now, it is my view that the case of Majekodunmi v. The Queen, 14 WACA 64 is against most of the arguments of Mr Kayode. In the first place he argued that the conditions set out in paragraphs (a) and (c) of the proviso to subsection (1) of section 34 of the Evidence Ordinance have not been proved. In that case the President delivering the Judgment of the court said at 67:-
Section 34 of the Evidence Ordinance makes the evidence given by a witness in a judicial proceeding, the truth of the facts which it states, providing that the conditions set out in paragraphs (a), (b) and (c) of the proviso to subsection (1) of the section are present, and there can be no question that they were in the case under consideration here.
In our opinion, providing the requirements of the sections of the Ordinances, to which I have referred, have been met, the deposition of a witness taken at a Preliminary Enquiry, and produced from the custody of the Registrar of the court before which the trial is held, may properly be admitted in evidence without further proof. That being so it follows that, in our view, the trial Judge rightly admitted in evidence the deposition in question in this case.
I have not only read that Judgment, but I have had the opportunity through the courtesy of the Senior Registrar of the Senior Registrar of the Federal Supreme Court of examining the certified copy of the proceedings of the lower court forwarded to the West African Court of Appeal, and now kept among the records of the Federal Supreme Court. The record shows that, in that case nothing more was done than that Counsel appearing for the Crown applied for the deposition to be read, and at the same time stated that the Gazette shows that he is on leave and referred to section 34 of the Evidence Ordinance. The next event is that Counsel appearing for one of the accused objected to its admissibility on the ground that there was no cross-examination of the witness at the lower court. The Counsel appearing for the second accused raised no objection. Thereupon, without any further ado or any elaborate step in procedure, the trial Judge said: "the deposition may be read." It was read accordingly; and as far as that aspect of the case was concerned that was the end. The document was not even labelled as an exhibit.
In the instant case, the prosecution went through the elaborate procedure of serving notice of additional evidence on the accused and called the Registrar of the court. When the deposition of Eric Parr as contained in the Record is examined, it is in no better position than the depositions in this case. If anything the depositions in this case are in a more favourable position, in that, besides showing that the accused had an opportunity of cross-examining the witnesses, and did cross-examine two of them, and that they were duly authenticated, they show that the Director of Public Prosecutions was prosecuting. The certificates attached to the depositions are very full and informative, whilst that of Eric Parr was very brief taking up three lines, whilst each in this case is contained in eleven lines.
The point I am making here is, that the West African Court of Appeal were of the view that there could be no question in the case in which they were dealing that the conditions referred to in the proviso to section 34(1) of the Evidence Ordinance were present, and therefore the position must be the same here, when as I have said, the deposition and the record in that case on this aspect were not better than the instant.
I will, however, deal specifically with the arguments of Counsel for the accused. He submits that only the original record of a certified true copy of the proceedings in the lower court could say who the parties were, and also what the charges were before that court. First, it must not be forgotten that section 330 of the Criminal Procedure Ordinance imposes a duty for the transmission of the written charge, if any, depositions, etc., to the Registrar of the court before which the trial is to take place. It would be idle for anyone conversant with the work of an Assize court to suggest that a judge does not see and read the proceedings of the lower court. Indeed, he uses and studies the case from an authenticated copy. The object, perhaps though not the only one, of transmitting the documents mentioned in section 330 of the Criminal Procedure Ordinance is stated in footnote (x) Vol. 9 Halsbury's Laws of England (2nd Edition) at 117 which reads:-
The recognizances, depositions, etc. should be delivered as soon as practicable after the accused has been committed for trial, or at such time as to enable the judge, etc., to read and master the contents of the depositions before he charges the grand jury.
Although grand juries have been abolished the practice still continues in England, and indeed the law requires it. So any argument that, since grand juries have been abolished, the statement in the footnote is no longer valid, would be fallacious, because a judge charges a jury. It is quite clear that these documents are forwarded to enable the judge to know the nature of the case with which he is dealing. I have read the authenticated copy of proceedings of this case including the charge and have also seen the original documents. It would have been absurd for me to have closed my eyes to what I have read and what was before me relative to the charge before the magistrate, when the depositions were being admitted in evidence. As Mr Nonyelu, the Director of Public Prosecutions has stated, one does not, require proof of a committal, and therefore does not require formal proof of the actual charge before the magistrate, the point is it must be present. Apart from anything else the contents of the depositions in question show that they relate substantially to the charge in question: R. v. Lanbridge, 3 Cox 465. The original proceedings and the authenticated copy thereof forwarded to this Court show clearly that the charge before the committing magistrate is the same as the charge before me.
The proceedings before the magistrate do show that the case was the Inspector-General of Police v. Enebieni Ijoma and the case number is also stated. The Registrar of the High Court, prosecution witness four who produced the documents state on oath that he produced the depositions in question taken at the Preliminary Investigation in charge No. A/33 /61 I-G. Police v. Enebieni Ijoma who had been committed for trail. The Certificate of the magistrate attached to the foot of each of the depositions in question shows the Enebieni Ijoma was a party. It is patent on the other exhibits tendered in this Court in this case, that they had been tendered in charge No. A/33/61 I-G. Police v. Enebieni Ijoma. It is really splitting hairs to say that there is no proof of the parties; and the more so to ask who is the prosecutor? It is unnecessary to consume time on this aspect; but the question has been raised and I will make a few brief observations. It common parlance in England, the virtual complainant is often referred to as the "prosecutor" or "Prosecutrix" that is to say, the individual who has actually suffered. This is the person, whom Goddard L.C.J. I believe once referred to as the "so-called prosecutor." The Inspector-General of Police was the informant in the court below, and according to section 19 of the Police Ordinance any Police Officer could have prosecuted. Our law in Nigeria makes provision for the Director of Public Prosecutions to undertake, institute, take over and carry on, etc., prosecutions. Is it now being seriously contended that the depositions in question do not establish the identity of the parties? It is very clear on the depositions themselves that the Director of Public Prosecutions Mr Nonyelu was prosecuting. In this Court, the prosecution is undertaken by the Director of Public Prosecutions. It is stated in 9 Halsbury 2nd ed. at 116, that the person who appears before the magistrate to support the charge is the prosecutor. Finally, in Wharton's Law Lexicon it is stated that in all criminal prosecutions the Sovereign is nominally the prosecutor. The submission that the identity of the parties is not present is grossly unfounded.
It is quite clear that the witnesses Busby, Critchley and Salmon were not bound over. Does this affect the admissibility of their respective depositions?
Section 312(e) of the Criminal Procedure Ordinance reads:-
Such depositions shall be read over to the witness in the presence and hearing of the accused and shall be signed by the witness and the magistrate and by the interpreter, if any,...and the magistrate shall as soon as practicable thereafter bind over the witness to attend the trial in manner hereinafter provided.
I take the view that the fact that the witnesses were not bound over to attend the trial does not necessarily render their depositions inadmissible. In the first place, the omission does not go to the root of the matter-it is not like perhaps where the magistrate or a witness has failed to sign a deposition. It seems to me that the object of binding over a deponent is to secure his attendance at the court of trial, and if he does not attend, to visit him with the rigours of the law by entreating his recognisance's. On the other hand, the conditional binding over of a witness is essential under section 329(1) of the Criminal Code of Procedure, where it is desired to have his deposition read under subsection (4) of that section. In R. v. Ward (1848) 2 Car. & Kir. 759, (14 Digest 217), it is stated that the object of taking depositions is that if any of the witnesses whose evidence is given before the magistrates should be unable to attend at the trial or die, there should not, by reason of this, be a failure of justice. That is the real ground on whic