Iyade Nwango v. The Queen (1963)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C.

The appellant was convicted on 3rd August, 1963 in the High Court of Eastern Nigeria at Abakaliki, of murdering one Nwefi Oka on the 11th January, 1963 at Amachara Agbaja Izi in the Province of Abakaliki.

That day the deceased and five others went to the appellant’s house to ask him about a gourd of palm-wine which one of them, namely Nwodom Agom, had missed from a tree he was tapping. The deceased went to where the appellant was tapping and fetched him. Nwodom Agom asked him why he had stolen his gourd; the appellant told him not to ask that question again, and drew his tapping-knife, but he was disarmed by one of the party, who went off with it to report to the Police.

While the others were waiting, the appellant suddenly drew the dagger Nwodom had at his waist, and rushing on the deceased stabbed him in the face. He and his companions began to run away; the appellant ran into his house and brought a matchet; he chased the deceased and cut him with it in several places on the left arm, on the right arm, on the lower left side of the chest cutting the 12th rib, and on the lower right side of the chest slightly cutting the 9th rib.

On the 12th January, 1963, the day after the killing, the appellant made a statement to the Police, in which he said that five men beat him in his house and dragged him outside; the deceased asked Nwodom Agom for his knife, and he, the appellant, took it and stabbed the deceased with it on the chest, and give him several cuts; then the deceased ran away; and when others wanted to kill him, he ran away. He ended his statement saying that Nwodom Agom accused him of stealing his palm-wine and brought people to kill him because he used to tap more wine. He embroidered that story in his evidence at the trial. The learned Judge did not believe his story, rightly in our opinion; he accepted the version of events given by the witnesses for the prosecution.
There were three submissions before Phil-Ebosie, J.:-

(1) That the appellant killed in self-defence;
(2) That he was provoked by the accusation of stealing;
(3) That he was provoked by being imprisoned in his house.
The 1st was rejected on the findings of fact; we think there was no substance in the ground of appeal which relates to self-defence.
On the second the trial Judge states briefly:-
“I do not also think that what was said to the accused can be regarded to be provocation either.”

One ground of appeal is that the trial Judge
“Failed to direct himself that the circumstances of a false accusation of stealing against the appellant were such insult envisaged by section 283 of the Criminal Code as would reduce a charge of murder to manslaughter. ”
Section 283 states (so far as is relevant here) that:-
“The term ‘provocation’ . . .includes . . . any wrongful act or insult of such a nature as to be likely, when done to an ordinary person. . . to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.”

The first question is, did the deceased offer any insult to the appellant  In his statement to the Police the appellant says it was Igboke Agom who accused him of stealing his palm-wine. As to the deceased, the appellant stated:-
“Nwefi Ife Oka (the deceased) asked Nwodom Agom to give him his knife to cut me. Nwodom Agom wanted to give him the knife when I took it from him. I used the dagger and stabbed Nwefi Ife Oka on the chest.”
That was not believed by the trial Judge. But Nwodom Agom said in cross examination this:-
“What I really said to him was that the deceased told me that he stole my palm-wine.”
The deceased was there; he did not deny having said so to Nwodom, and the appellant took it that he was the source of the accusation; which explains why he killed the deceased. The appellant carefully avoided saying that the deceased had wrongfully accused him of stealing, but that should not be taken against him as he was pleading self-defence.

The next question arises under section 318 of the Criminal Code, which provides that:-
318. “When a person who unlawfully kills another in circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.”

When Nwodom Agom asked the appellant why he had stolen his wine as the deceased had told him, the appellant drew his tapping knife and was disarmed; and the man who disarmed him was told by Nwodom to go to the police and left. Some more people came into the compound. Nwodom’s evidence is as follows:-

“We all stood in front of the accused’s house waiting for Igboke to return with a police. While we were waiting, the accused, who was standing close to me and the deceased, suddenly drew the dagger I tied on my waist, rushed on the deceased and stabbed him on the face twice. He then ran into his house and rushed out again with a long matchet. As we saw him, all of us took to our heels. The accused pursued us. He chased the deceased who was running behind me. He caught up with the deceased, gave him cuts on both arms. The accused chased the deceased into the deceased’s compound, which was close by. In the compound, accused gave him another cut on the left wrist and this caused the deceased to fall down. The accused then left him and went away.”

Or take the evidence of Arugwu Ugo, P.W.5, from the point when the appellant was disarmed: it reads:-

“The accused and the rest of us then stood outside. We were standing close to one another. After a while (about 20 minutes indicated by witness) the accused suddenly snatched the dagger which the P.W. 2 was wearing on his waist and stabbed the deceased, Nwefi on the head. When this happened, the rest of us scattered inside the accused’ s compound. The accused entered his house and rushed out with a matchet.” etc.
The trial Judge accepted their version of the events. It does not show that the appellant acted, to quote the words of section 318:-
“In the heat of passion caused by sudden provocation, and before there is time to cool.”

We cannot do better than quote from the judgement of the Privy Council in Lee Chun-Chuen v. Regina, of November 14th, 1962, reported in [1963] 1 All E.R. 73: Lord Devlin said at p. 79:-

“Provocation in law consists mainly of three elements – the act of provocation, the loss of self-control, both actual and reasonable, and the retaliation proportionate to the provocation. The defence cannot require the issue to be left to the jury unless there has been produced a credible narrative of events suggesting the presence of these three elements.

They are not detached. Their relationship to each other:- particularly in point of time, whether there was time for passion to cool – is of the first importance. The point that their Lordships wish to emphasize is that provocation in law means something more than a provocative incident. That is only one of the constituent elements. The appellant’s submission that if there is evidence of an act of provocation, that of itself raises a jury question, is not correct.”

That fits the present case precisely: it is not enough to complain that the trial Judge

“Failed to direct himself that the circumstances of a false accusation of stealing against the appellant were such insult envisaged by section 283 of the Criminal Code as would reduce a charge of murder to man:-slaughter. ”

That was the provocative incident. Alone, it cannot sustain the plea of provocation: it was also necessary to show “loss of self-control, both actual and reasonable, and the retaliation proportionate to the provocation.” Split up there are these ingredients of the second constituent of the plea (a) loss of self control, both actual and reasonable, and (b) before there is time for passion to cool.

The narrative accepted as credible must show that the person who kills does so in the heat of passion. Upon a favourable view it can be said that the appellant’s temper was up when he was accused of stealing: he drew his tapping knife from his waist as a spontaneous act of resentment.

But he was disarmed and was later standing around so quietly with those who had come that they were not on their guard; and he took them off their guard: he suddenly snatched Nwodom’s knife from his waist and attacked the deceased. His conduct was that of a man acting with cool calculation, and that took his case out of section 318; which makes it unnecessary to consider any other aspect of the events.

The other ground of appeal argued was that the appellant was wrongfully arrested and killed to escape; or that the wrongful arrest was an act of provocation. The latter plea must fail for the reasons already given. The former must also fail, for it is not true in fact on the narrative of events accepted as true. It raises a number of legal questions, but it would be academic to discuss them in this case.

Before dismissing this appeal, we should like to draw attention to the one Nigerian case that comes to mind on killing to prevent unlawful arrest, namely Joseph Adu v. The Queen, 14 W.A.C.A. 462.

Had it been necessary in the present case, we would also have had to invite argument on the last sentence in section 283 on unlawful arrest as provocation, and also on whether the arrest in this case was unlawful if considered at the point of time when the appellant drew his tapping-knife, in the light of section 356 (I) on assault to commit felony. These points were not argued; they may be important in some other case hereafter: here they are not, and they are merely mentioned in passing.

This appeal is dismissed.

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F.S.C.359/1963

Stephen Akinyemi v. Rosella A. Akinyemi and Anor (1963)

LawGlobal-Hub Lead Judgment Report

MORGAN, Ag. J.S.C. 

The appellant filed a petition against his wife in the court below praying for the dissolution of their marriage on the grounds of his wife’s adultery with the correspondent and cruelty.

The respondent cross-petitioned for the dissolution of the marriage on the same grounds of adultery and cruelty and cited one Clementine Ngozi Usuma as the woman with whom her husband committed adultery. Both the petition and the cross-petition were dismissed by Mr. Justice Coker on the 18th day of August, 1961.

According to the evidence before the court below, the relationship between the two spouses at the material time had become very bad. Then, on the 28th May, 1960, the petitioner came to Lagos from Ibadan. On his arrival, he received certain information concerning his wife and, in consequence of it, started to look for her. At about 1.30 a.m. he returned home to 39 Jebba Street, Ebute Metta, where his wife was living with his mother but found that his wife had still not returned home. At about 2.30 a.m. an Opel kapitan saloon car drew up in front of the house and both the respondent and the co-respondent came out of it and walked towards the house. At the entrance to the house, the co respondent embraced the respondent and kissed her.

The appellant attacked the co-respondent and a fight ensued. The petitioner’s witness, Comfort Taiwo, held the petitioner and took him into the house. She then went back outside and entreated the respondent to go into the house. According to the witness, the respondent was very drunk. She abused her husband, told him that she had had sexual intercourse with the co-respondent and said that he could please himself. The witness left the respondent because she was drunk but some four days later she called both the respondent and the petitioner together and advised the respondent to go back with her husband to Ibadan and consider the interest of their children. Both of them refused to come together again and the respondent said that she had already had five children by the petitioner and that she was going to have children for the co-respondent.

We shall not deal with the evidence of both the petitioner and the respondent in respect of their counter-allegations of cruelty against each other, or the wife’s allegations of adultery against the husband because in the case of the petitioner he abandoned the ground of appeal dealing with cruelty and in the case of the respondent, because there is no cross-appeal by her against the decision and because the learned judge found that even if the petitioner had been guilty of adultery the respondent had condoned

Four other grounds of appeal were filed and argued by the petitioner/appellant and these are as follows::-
1. The decision is against the weight of evidence.

2. The learned Judge misdirected himself in law by not holding the admission of adultery by the respondent against her even though the said admission was accepted and believed by the learned Judge.
3. The learned Judge misdirected himself in law on the questions of familiarity and opportunity required to establish adultery and erred by holding on the evidence before him that no opportunity existed for adultery to be committed.
4. The learned Judge erred in law in dismissing the petition because both parties (i.e. the petitioner and the respondent) were at fault.
The co-respondent was represented at the hearing of this appeal but the respondent did not appear either in person or by counsel.

Before dealing with the arguments addressed to us, it will be useful to refer to some portions of the judgment of the learned Judge. They are as follows::-
1. “The respondent was a very difficult witness and gave her evidence in an indifferent and nonchalant manner. I think the relationship between her and the co-respondent was of an entirely different nature from that described by her. Even if the co-respondent was a friend of her family that position is not inconsistent with the relationship described by the petitioner.

I accept and prefer the evidence of Mrs. Comfort Taiwo to the effect that she, respondent, was drunk when she returned back home on the night of the 28th May, 1960 and that she did utter the statements attributed to her by that old lady. . . I do not, however, propose to hold as against the respondent the statements made by her under the influence of alcohol or in the heat of passion as admissions of liability by her. I take the view that if she was cool and sober she would not have made any such statements.”
2. “There is, however, apart from the evidence of the respondent and the co respondent no other evidence of their itinerary on the might of the 28th May, 1960 and immediately thereafter.

They both said that they went to Chez Peter’s Hotel then to the Island Club and thereafter to the Rendezvous at Customs Street, Lagos. The sister-in-law of the respondent did not follow them to these latter places and although she was to meet them up at the Island Club she did not do so. I take the view that she was not expected to come back to them even if she had originally left the house with them. I do not think that she was ever in their company on that night.

I am satisfied that the respondent and co respondent chose to go out together alone on that Saturday night and they did so. There is no clear evidence as to where they both went on that night. It seems to me unlikely that they had gone to the home of the co-respondent . . . For my part I do not accept the testimony of the respondent and co-respondent as to the places which they stated they had gone on that night. I think the story is a clever afterthought. ”
3. “Adultery is seldom capable of direct proof but in my view evidence must be forthcoming which will support an irresistible inference that adultery had been committed.”
4. “They both lied as to their itinerary that night. The embrace and kiss which occurred at Jebba Street that morning were hangovers from their escapades of the previous night.”

It is clear law that even if the learned Judge regarded as a confession the respondent’s statement as to herpast adultery with the co-respondent and as to her future intention to have children for the co-respondent this would be evidence of confession of adultery by the respondent alone and would not be evidence against the co-respondent unless she made the statements in his presence and he acknowledged the truth of the statements by his conduct at the time the statements were made. But this is not the case because on both occasions in question the co-respondent was not present. Therefore the first extract from the judgment relates only to the charge of adultery against the respondent.

On the question of the weight to be attached to the confession, we disagree with the view of the learned Judge that because the respondent was drunk when she first admired having committed adultery with the correspondent that an admission made in such a condition although rightly admitted in evidence did not carry weight.

Furthermore, even if the learned Judge thought that the first admission was made when the respondent was under the influence of alcohol, what of her admission of adultery with the same man some four days later Confessions of adultery are regarded with suspicion, in particular, in cases where the party making the confession desires a divorce.

But it is our view that the respondent’s repetition of her confession of adultery some four days after her first admission of it as well as the events of the 28th May, 1960 as found by the learned Judge are sufficient corroboration to support a finding that the respondent was guilty of adultery.

We shall now consider the evidence before the Court below as against both the respondent and the co-respondent as well as the standard of proof required to support a finding of guilt in cases of adultery.

The learned Judge stated in his judgment that, in order to prove adultery, familiarity as well as opportunity must be established, and found that there was clear evidence of familiarity. He stated, however, that the evidence in support of a finding of adultery must raise an irresistible inference that adultery had been committed and found that on the facts before him there was no evidence of opportunity.

The learned counsel for the co-respondent cited some authorities to us on the issue as to whether there was opportunity for the respondent and correspondent to have committed adultery, and has asked us to hold that the learned Judge was right in deciding that there was none. He submitted further that in the circumstances of this case this court should not disturb the finding of fact made by the learned Judge to the effect that there was no opportunity for the respondent and the co-respondent to have committed adultery.

In respect of the second point made by the learned counsel for the co respondent, we shall briefly refer to the following passage in Lord Thankerton’s speech in Watt (or Thomas) v. Thomas [1947] A .C. 484 [at p. 487] as to the test to adopt:

“I. Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion;

II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence;

III The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.”

As regards the question of whether or not adultery was committed, we are of the opinion that the learned Judge was in error in his application of the standard of proof required to the facts found by him to have been proved. It has frequently been held that, as with all other matrimonial offences, the standard of proof required in respect of adultery is proof beyond reasonable doubt.

But it has also been held that it is not necessary to adduce direct evidence, because, as it is rare to obtain direct evidence, there would be no protection for the wronged spouse if the rule were otherwise. (See Preston-Jones v. Preston Jones [1951] A.C. 391 at p. 401; Woolf v. Woolf [1931] P. 134 at p. 144). In Farnham v. Farnham (1925) 41 T.L.R. 543 at p. 544, Lord Merrivale, P., said.:-

“The inference of adultery arises when there is proof of the disposition of parties to commit adultery together, with the opportunity for committing it”

Lord Bucknaster said in Ross v. Ellison (or Ross) [1930] A.C.1, at p. 7-

“It is easy to suggest conditions which can leave on doubt that adultery has been committed, but the mere fact that people are thrown together in an environment which lends itself to the commission of the offence is not enough unless it can be shown by. . . antecedent conduct that the association of the parties was so intimate and their mutual passion so clear that adultery might reasonably be assumed as the result of an opportunity for its occurrence”.

Lord Atkin at page 21 of the same judgment said::-

“But from opportunities alone no inference of misconduct can fairly be drawn unless the conduct of the parties prior, contemporaneous, or subsequent justifies the inference that such feelings existed between the parties that opportunities if given would be used for misconduct.”

From the foregoing it will be seen that the fact that adultery has taken place is an inference from all the surrounding circumstances of each case. And such inference may be drawn from confessions, admissions, undue familiarity, suspicious circumstances and in proper behavior. For instance, in Roast v. Roast [1938] P. 8,17, it was decided that for the purpose of ascertaining the truth, the court was entitled to consider whether the party alleged to be guilty of adultery was the author of a certain filthy literature found in her bag.
Therefore, if there is evidence of undue familiarity, suspicious circum:-stances, and improper behavior, the court is entitled, upon a consideration of each particular case, to find as a fair inference that such behavior leads as a necessary conclusion to adultery. See Loveden v. Loveden Hagg. Cons.
1, 2; Allen v. Allen [1894] P. 248, 252). And where there is evidence of a guilty inclination or, in the words of the learned Judge in this case, clear evidence of familiarity, and this is coupled with evidence of opportunity, this is strong prima facie evidence of adultery. As we have stated, the learned Judge found that there was clear evidence of familiarity but that there was not sufficient evidence of opportunity. With respect, we are unable to agree with him that a man who took a woman whom he knew to be another man’ s wife away from home for about five hours during the hours of darkness, from about 9.30 p.m. till about 2.30 a.m., and whom he was found to be embracing and kissing near the door of the woman’s mother in-law’s residence, had no opportunity of committing adultery with her. And this in spite of the findings of the learned Judge that both the respondent and co-respondent lied as to their movements during the period of five hours when they were alone together, and that their embracing and kissing of each other was a hangover from what the two of them had been doing during the period they were alone together! For, as Denning, J., as he then was, said in Miller v. Minister of Pensions [1947] 2 All E.R. 373, in regard to proof beyond reasonable doubt::-

“It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt……

For the foregoing reasons we are of the opinion that the first, second and third grounds of appeal succeed. With regard to the fifth ground of appeal, we cannot find any authority in support of the view of the learned trial Judge that when both parties are at fault the petition must be dismissed. In the result we allow the appeal and set aside the decision of the court below and hereby grant the appellant a decree nisi.

We decree that the marriage had and solemnised at the Marriage Registry in Lagos, Nigeria, on the 16th day of September, 1948 be dissolved by reason that on the 28th May, 1960 the respondent committed adultery with the co-respondent, Mr. Morris, unless sufficient cause be shown to the court below within three months from the making of this decree why it should not be made absolute. We hereby remit to the court below for determination the petitioner’s claim for custody of the children of the marriage.

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F.S.C.303/62

Nwogugua Agumadu Vs The Queen (1963)

LawGlobal-Hub Lead Judgment Report

BREIT, F.J. 

The appellant was charged on an Information containing a single count, which read as follows:-

“STATEMENT OF OFFENCE

ATTEMPTED MURDER contrary to section 320 (1) of the Criminal Code.
PARTICULARS OF OFFENCE
NWAOGUGUA AGUMADU, on the 25th day of April, 1962 at Onitsha in the Province of Onitsha, in the Onitsha Judicial Division, unlawfully attempted to murder Nwoji Agumadu by giving him matchet cuts.”
After reviewing the evidence the judge held in his judgment that the accused “is entitled to an acquittal on the extremely grave charge of attempting to kill his cousin but that does not absolve him from all blame”. He went on:- “Since I do not accept his defence that there was sufficient provocation to excuse the assault, and since there was an unlawful wounding, I can under the powers conferred on me by section 179 (1) and (2) of the Criminal Procedure Ordinance convict him of an offence against section 338 of the Criminal Code and I do so accordingly”. It is not in dispute that the facts amply justified a conviction for unlawful wounding, and the sole question arising on this appeal is whether the judge was right in holding that on the information as framed he had power to convict of unlawful wounding. Section 320 of the Criminal Code reads as follows:-

“320. Any person who-:-
(1) Attempts unlawfully to kill another; or
(2) With intent unlawfully to kill another does any act, or omits to do any act which it is his duty to do, such act or omission being of such a nature as to be likely to endanger human life; is guilty of a felony, and is liable to imprisonment for life,”
While a charge laid under paragraph (2) of this section will be defective if it does not specify the act or omission alleged, it is not necessary that a charge laid under paragraph (1) should do so, but that does not mean that a charge laid under paragraph (1) will be open to objection if it does specify the method by which the accused person is alleged to have attempted unlawfully to kill another, and where such details are included they cannot be treated as mere surplusage, but form a part of the charge which must be proved with the same strictness as the other parts of the charge. This fact is of importance in considering whether section 179 of the Criminal Procedure Act can be invoked.
That section reads as follows:-

“179. (1) In addition to the provisions herein before specifically made whenever a person is charged with an offence consisting of several particulars a combination of some only of which constitutes a complete lesser offence in itself and such combination is proved but the remaining particulars are not proved he may be convicted of such lesser offence or may plead guilty thereto although he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence he may be convicted of the lesser offence although he was not charged with it.”
On principle we consider that subsection (1) of this section applies in the present case. The information alleged an offence consisting of three particulars: the infliction of matchet cuts; unlawfulness (i.e., an absence of authority, justification or excuse: see section 306 of the Criminal Code); and an intent to kill. The offence of which the appellant was convicted is constituted by the first two of these particulars, that is, the infliction of matchet cuts and an absence of authority, justification or excuse: see section 253 of the Criminal Code. In the circumstances of this case, anything that would be authority, justification or excuse for the acts charged would also be authority, justification or excuse for the acts held to constitute unlawful wounding, and there is nothing in the submission that section 284 of the Criminal Code would make a lesser degree of provocation a defence to a charge of unlawful wounding than would be a defence to a charge of attempted murder.
In reaching this conclusion, we do not intend to cast any doubt on the correctness of the decisions in R. v. Noku (1940) 6 W.A.C.A. 203, decided under the Criminal Procedure Ordinance of 1914, and R. v. Nta (1946) 12 W.A.C.A. 54, decided under the existing Criminal Procedure Act, to the effect that on a charge of the full offence of murder the court has no power to convict of an act intended to cause grievous harm or a serious assault. Those decisions turn on the particular nature of the offence of murder. It was submitted that since, on a charge of murder, the court undoubtedly has power, under section 169 of the Criminal Procedure Act, to convict of attempted murder, it follows that an offence of which section 179 (1) of the Act does not enable the court to convict on a charge of murder cannot be one of which the subsection enables the court to convict on a charge of attempted murder, but there is a fallacy in this, in that the power to convict of an attempt is derived not from section 179 but from section 169, and that the words of section 179 are not apt to cover every case of an attempt to commit a substantive offence, as defined in section 4 of the Criminal Code.

Our attention was drawn to R. v. Kanu (1949) 12 W.A.C.A. 488, where it was held that fraudulent false accounting by a clerk or servant contrary to section 438 of the Criminal Code cannot be “reduced to” the offence of false accounting by a public officer contrary, to section 439 of the Code, but that decision turned on the meaning of section 179 (2) of the Criminal Procedure Act, and it is section 179 (1) that is in point here. We mention only to reject it the submission that for the purpose of section 179 of the Act one felony cannot be a lesser offence than another. A person convicted under section 320 of the Criminal Code is liable to imprisonment for life, whereas a person convicted under section 338 is liable at most to imprisonment for three years, and the offence under section 338 is manifestly a lesser offence.

In our view the matter was correctly put in Torhamba v. Police (1956) N.R.N.L.R. 87, at p. 9 “the lesser offence is a combination of some of the several particulars making up the offence charged: in other words the particulars constituting the lesser offence are carved out of the particulars of the offence charged. When one is considering action under section 179, one should write out the particulars of which the offence charged consists and see whether it is possible to delete some words out of those particulars and have a residue of particulars making up the lesser offence of which it is proposed to convict. An authoritative example is furnished by the case of Cooray v. The Queen [1953] 2 W.L.R. 965; [1953] A.C. 407.”

While the fact is not conclusive as to the meaning of section 179 of the Criminal Procedure Act, the interpretation which we have put on it appears to give it the same effect as the rule at common law. In R. v. O’Brien (1911) 22 Cox c.c. 374,6 Cr. App. R. 108, the appellant was convicted of assault on an indictment charging that he and certain others “unlawfully, riotously and routously did assemble and gather together to disturb the peace and being so assembled upon A.B unlawfully, riotously and routously did make an assault”. The offence of riot at common law requires a display of force or violence, but that need not necessarily take the form of an assault, just as an attempt unlawfully to kill need not necessarily take the form of an unlawful wounding. In delivering the judgement of the Court of Criminal Appeal, Avory, J., said
“We are of the opinion that the proper principle to apply to this case is that which is stated in Archbold’s Criminal Pleading (24th edition) at page 288: ‘But at common law a defendant may be convicted of a less aggravated felony or misdemeanour on an indictment charging a felony or misdemeanour of greater aggravation, provided that the indictment contains words apt to include both offences.’ The indictment in this case certainly contains such apt words, so much so that it is not altogether clear that the charge was not, in effect, a charge of assault with aggravating circumstances. If that was so, the appellant might be convicted of assault, although the Jury might be doubtful as to the aggravating circumstances.” Our attention was drawn to the specific English rules on the possible alternative verdicts on a charge of attempted murder, but they turn on the wording of the Prevention of Offences Act, 1851, S. 5, and are not in point here.

On these grounds we are satisfied that the learned judge had power to record a conviction for unlawful wounding on the in formation as framed, and the appeal is dismissed.

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Other Citation: (1963) LCN/1062(SC)

Ogundairo (Bale of Ijako-Orile) and Ors v. I. B. Okanlawon and Ors (1963)

LawGlobal-Hub Lead Judgment Report

TAYLOR, J.S.C. 

The plaintiffs in the Court below were representatives of Awaiye Village, and the defendants of Ijako-Orile Village.

The claim was for a declaration of title to Awaiye farmland and an injunction to restrain the defendants, their servants and agents from further trespass to the land in dispute.

The plaintiffs’ case on the pleadings was that their ancestor Badejoko was the first settler on the land in dispute and that the defendants are the owners of the land on the Western side of the Iniya stream referred to as Ijiako-Orile farmland. The Iniya stream, the plaintiffs say, is their natural boundary with the defendants.

The defendants, on the other hand, plead as follows in paragraph 1 of their Statement of Defence:-

“The defendants deny paragraph I of the Statement of Claim and aver that the plaintiffs are customary tenants to the defendants in respect of the area of land in dispute and had hitherto paid rent ‘Ishakole’ to the defendants for a very long time past.”

They go on to aver in paragraph 4 of the Statement of Defence that:-
“While admitting paragraph 5 of the Statement of Claim the defendants aver that Badejoko attaned tenant to Orebiyi Ogunro father of the first defendant.”
Paragraph 5 of the Statement of Claim which is admitted reads thus:-
“Badejoko was an Egba and a great Hunter and was the 1st settler on the Awaiye farmland over a century ago.”

The defendants, in addition to the above, also rely on the defence of res judicata as per the following decisions:-
(a) The decision in 1952 of the General Purposes Committee of the Egbado-Ketu Native Authority (exhibit D.2 of these proceedings); and
(b) Suit No. 30/52 (exhibit D.1 in these proceedings).

The learned trial Judge held as follows on the question of res judicata:-
“The defendants have sought to rely on the arbitration award and the judgement of the Egbado Ketu Grade A Court as being evidence in their favour on the issue raised in the case, alternatively to them creating an estoppel as to them. In my judgement those decisions are only evidence of two acts of ownership by the defendants, namely two successful assertions of claim by them in respect of part of the land in dispute”

The learned trial Judge held that the claims in these two decisions related to part of the land in dispute, but that the actual area or areas dealt with lacked certainly. In both of the decisions, the present appellants, the Ijako Orile people, were the successful parties. It is this part of the judgement of the trial Judge that Chief Moore, Counsel for the appellants, has sought to assail. The only grounds argued by him were the additional grounds filed with leave of the Court. His arguments on these grounds may be put in this way:-

(I) That the area of land dealt with in the two decisions above referred to in fact covered the whole area of land now in dispute, and therefore the trial Judge erred in rejecting the plea of resjudicata.
(2) That even if the areas the subject matter of the two decisions do not cover the whole area in dispute in this appeal, yet so long as they cover some undefined portion of the land in dispute, a declaration of tide should have been refused the plaintiffs.

On the first point, Chief Moore argued that the real dispute between the parties in exhibits D1 and D2 was as to whether the present respondents were owners in their own right of the land in dispute or whether they were tenants of the present appellants. We were referred to the following passage in the Judgement in exhibit D1 which reads thus, inter alia:-
“Judgement entered for plaintiff (Ijako-Orile) i.e. the plaintiffs are the rightful owners of this land, but the defendants’ father and defendants themselves they have been on this land for a considerable length of years and they could not possibly be ejected from the land . . .

“and also to the decision in exhibit D2 which reads thus inter alia.”The land underdispute is belonging to Ijako-Orile people whom . you should regard as your landlords. You Ijako-Orile people should not drive them away from your land unless they do otherwise unpleasant to you.”

There can be no doubt about the interpretation to be put on these two decisions which is that the owners of the land in dispute therein, which land the trial Judge has found to be contained within that now in dispute, are the present appellants. It is true that the exact area in dispute in those exhibits D1 and D2 is not stated with any definiteness, but the effect of the judgement now on appeal is to grant to the present respondents a declaration of title to an area which includes portions over which the appellants have successfully asserted their ownership. The appellants are further restrained from going on any portion of the land aforesaid.

The arguments adduced by learned Counsel for the respondents have not been of much assistance on this point, for the line taken by him was that the area in dispute in exhibits 01 and 02 was an area referred to as Temu farmland which he contended was not the same as Awaiye farmland. This, as Chief Moore pointed out, is fallacious, for 3rd witness for the plaintiffs, the respondents on appeal, stated that:-
“The land in dispute is also known as Temu Area.”

Learned Counsel for the respondents then urged that the area in dispute in exhibits 01 and 02 was uncertain; it could not farm the basis for the defence of res judicata; that therefore the trial Judge was right in making the declaration sought in view of the fact that he accepted the version of the Awaiye people. This argument falls short of the point at issue on this appeal, and which has already been stated earlier in this judgement.

It has been said that the making of a declaratory order is within the discretion of the trial Judge and this discretion should not be too readily exercised. In a claim for declaration of dtle to land if the defendant is able to adduce evidence, oral or documentary, which has the effect of discrediting the plaintiff’s evidence, such a declaration should be refused. In this case on appeal, exhibits 01 and 02 and their effect as stated by the trial Judge discredit the plaintiffs’ evidence as to absolute ownership of the whole area in dispute.

In our view the order should have been one of dismissal of both the claims for title and injunction for the reasons already stated.

The appeal must succeed and the judgement of the Court below is set aside and in its place we substitute an order of dismissal with costs assessed at 100 guineas in the Court below and in this Court at 41 guineas in favour of the appellants.

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E.S.C.163/1962

Essien Okon Umoren V. The Queen (1963)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C. 

The appellant was tried with another man in the High Court of Eastern Nigeria on a count of murdering one Ndarake Essien Akpan on 2nd June, 1962, at Ikot Obong Itu in the Calabar Division. The case was heard at Uyo by Balonwu, J., who acquitted the other man and convicted the appellant on 12th June.

About 7 p.m. on the day in question the deceased was riding a bicycle carrying one Ndarake Jackson (p.w. 3); and Asibong Akpan (p.w. 2) was following behind. They rode past two other cyclists, namely James Ekop Udofia and Accused No.2 (the man who was acquitted).

These two caught up and rode past them, and James collided with the deceased, whose bicycle got bent, and who asked James to stand the cost of repairing it. Angry words were exchanged, and James carrying up the deceased knocked him down and pressed him down. The deceased fell head downwards. Accused No.2 ran into a house near by, whilst Jackson (p.w. 3) was trying to separate James and the deceased. Accused No.2 returned with a matchet, followed by the appellant, who was holding a big stick. Jackson pleaded with them not to join James in the fight, but the appellant struck the deceased on the head, whereupon he cried out in pain that he had been killed. Neighbours came. The deceased was covered with blood. James helped in taking him to hospital, where he died. P.W. 5 identified the body to the doctor who made the post-mortem.

The appellant’s defence was that he saw James holding the deceased on the ground and, in order to part them, he hit James on the hand, and the deceased he knew not where; later he discovered that the deceased was injured and bleeding and begged his pardon because he did not know the stick would injure him. As for the stick, he had thrown it away.

Balonwu J. accepted the version of P.W. 2 and P.W. 3 that, in the course of the fight between James and the deceased, the appellant struck the deceased a blow on the head with a big stick, and that the blow caused profuse bleeding. The learned Judge also referred to the medical evidence that the post-mortem showed internal damage to the brain and brought about the death of the deceased.

The learned Judge deals with the defence suggestion that the death of the deceased might have been caused by James when he threw the deceased headlong to the ground: the judgement states that:-

“The evidence of Asibong (PW 2) and Jackson (PW 3) shows quite clearly that it was only after the first accused had delivered the blow on the head of the deceased that the latter cried out aloud in great pain and distress. What is more, it was after this blow, and not before, that the deceased began to bleed. I had, therefore, no difficulty in rejecting the suggestion.”

The learned Judge formed the view that the appellant wilfully struck the blow, either to cause death or grievous harm, and convicted him of murder.
The first ground of appeal complains that the doctor’s deposition was wrongly received in evidence. Counsel for the Crown told the trial Court that the doctor was on leave, and that he was cross examined before the Magistrate; Counsel for the defence said he did not object to the deposition being put in; and the trial Court received it in evidence. Mr Cole has argued for the appellant that section 34 of the Evidence ordinance was not complied with: either someone ought to have testified on oath that the doctor was on leave abroad, or Counsel for the Crown should have produced a Gazette or telegram or letter from the doctor’s head of department stating that he was abroad on leave and was not expected back until such and such a date.

Section 34 provides for the reception of a deposition in evidence in certain circumstances, which should be borne in mind. There are a number of decisions, which can now be easily traced through paragraph 853 of Brett and Mclean’s Criminal Law and Procedure of Lagos etc. Here, for the purposes of the argument, it is enough to quote subsection (3) of S. 34; it read:-

“(3) In the case of a person employed in the public service who is required to give evidence for any purpose connected with a judicial proceeding, it shall be sufficient to account for his non-attendance at the hearing of the said judicial proceedings if there is produced to the court, either a Gazette, or a telegram or letter purporting to emanate from the head of his department, sufficiently explaining to the satisfaction of the court his apparent default.”

It was a mistake to receive the doctor’s deposition in evidence merely on the statement of counsel for the Crown that he was on leave. It must be discarded, and the question arises whether, without it, the trial Judge would inevitably have come to the same conclusion.

The second ground of appeal is bound up with that question; it is that the Judge:-
“Erred by failing to consider evidence that the deceased could have died as a result of the act of James Ekop Udofia who knocked the head of the deceased on the ground”.

As already stated, the Judge considered the suggestion of the defence that it might have been so, and rejected it. It has been argued before us that in the dark one could not have known whether the deceased’s head had not been grievously and mortally injured when he was tossed on to the tarred road. There are two items of evidence which make it certain that his head was not so injured then: one is that James was pressing him down on the ground; the other is that when the appellant struck him, he cried out in pain that he had been killed.

There is no suggestion that, when the deceased was thrown down by James, he uttered any cry; and the fact that James was pressing him down goes to show that he still had the energy to struggle. It was when the appellant struck him on the head that he uttered that cry that he had been killed, which brought people to the scene. In his evidence in chief the appellant said it was a bamboo stick from which the hard part had been removed; when asked why he threw it away, he said he did not know the police would come. He knew he had done the damage, and when the deceased was raised up and he saw blood on his head, he says he begged pardon because he did not know the stick would injure him.

The evidence leaves no doubt that the mortal injury was caused by the blow on the head with the big stick given by the appellant. That is the conclusion that we feel sure the Court below would have come to without the doctor’s deposition, so there is no reason to disturb its judgement.
The appeal is dismissed.

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F.S.C.244/1963

T. U. Akuwule And 10 Ors V The Queen (1963)

LawGlobal-Hub Lead Judgment Report

ADEMOLA, C.J.F. 

The 1st Appellant was convicted in the High Court, Northern Region, holden at Kano, of an offence laid under sec. 315 of the Penal Code of the Northern Region relating to Criminal Breach of Trust in his capacity as a Banker; the sum involved being #100,089’978.5d.

He was also convicted of an offence under sec. 371 of the Penal Code of falsifying a clearing account relating to other Banks in what is known as the Impersonal ledger and also with forgery of a current account ledger. The other ten appellants were convicted each on a count of aiding and abetting the 1st appellant in the commission of the offence of criminal breach of trust.

The 1st appellant, who admitted the facts presented at the trial (except those relating to forgery), was at the time material to the charge the Manager of the branch of the Bank of West Africa at Fagge in Kano. He had authority to grant overdrafts to customers of the Bank up to a sum of #200 which must be reported at once. Contrary to the authority given to him, the 1st appellant granted overdrafts to the other appellants, from time to time, far above the sum of #200 and without making a report, although it was clear that some of the appellants had been bad debtors of the Bank before the 1st appellant took over, and it was to his knowledge that their credit facilities had been withdrawn; the other appellants became customers of the Bank since the 1st appellant became the Manager.

Although credit facilities for heavy amounts were given to these men without making due reports, entries of these amounts were not made in the Bank’s books. Later false returns of the clearing accounts were rendered by the 1st appellant in order to reconcile his accounts with other banks. Forgery of a page in the current accounts ledger was also proved against the 1st appellant although he denied the facts. The other appellants, Nos. 2-11, aided and abetted the 1st appellant to commit criminal breach of trust knowing full well that they were without funds in the Bank and that their accounts were not being debited with the amounts they had been drawing out; in some cases paying cheques into their accounts in the Bank, to facilitate the rendering of the returns by the 1st appellant, which cheques to their own knowledge were worthless.

As the range of arguments in this appeal relates principally to the offence under sec. 315 of which the 1st appellant was convicted, it is necessary to set out sections 311, 312 and 315 of the Penal Code-

“311. Whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of Law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust.

312. Whoever commits criminal breach of trust shall be punished with imprisonment for a term, which may extend to seven years or with fine or with both.
315 . Whoever, being in any manner entrusted with property or with any dominion over property in his capacity as a public servant or in the way of his business as a banker, factor, broker, legal practitioner or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to fine.”
The first count of the charge is as follows-
“Titus Akwule between the 1st October, 1960 and the 15th September, 1961 at Kano being entrusted with dominion over property to wit cash in your capacity as a banker to wit the Manager of the Bank of West Africa Ltd. Fagge Ta Kudu committed criminal breach of trust of a sum of #100,089’978.5d and thereby committed an offence punishable under section 315 of the Penal Code.”

The point will have to be decided whether the 1st appellant was a Banker, within the meaning of section 315 of the Penal Code and, if so, whether the property in relation to which he was said to have committed a breach of trust was entrusted to him in that capacity. Before this point, however, the important issue as to the validity of section 315 under which the 1st appellant is charged has to be considered, because Counsel for the appellants have, in the first ground of appeal, attacked the constitutional validity of the section and if that submission was upheld it would mean that the 1st appellant was tried on a charge which was wholly void, so that no question of substituting a conviction under any other section could arise. The first ground of appeal is as follows-
“The learned trial judge erred in law in convicting these appellants (Nos. 2-11) of the offence of abetting the 1st accused to commit criminal breach of trust when the said offence and the alleged offence of the 1st
accused are offences purporting to have been created by the legislature of the Northern Region which is not competent to create any of such offences. ”

The submission which was made to us is that, with reference to the division of legislative powers, Banking is a subject in the Exclusive Legislative List in our Constitution; that in accordance with section 64 of the Constitution of the Federation only Parliament can legislate on matters in the Exclusive list, which list includes Banks and Banking; that section 315 of the Penal Code, in so far as it relates to bankers, is an encroachment on the legislative powers of Parliament by the Northern Region legislature; that to the extent therefore that the section relates to Bankers, it is unconstitutional and void.

Counsel for the appellants have referred to Item 44 of the Exclusive list, which empowers the Federal Parliament to legislate on “any matter that is incidental or supplementary (a) to any matter referred to elsewhere in this list”, which under Part III of the Schedule includes “offences”; and they have argued that penal provisions on bankers are within the exclusive competence of the Federal Parliament.

Their aim is to show that count 1, which is laid under section 315, is null and void, so that not only is the conviction on that count a nullity, but the Court is also debarred from replacing it by a conviction under section 312 if it turns out that the 1st appellant was not a banker; which would also affect the conviction of all the other appellants on counts laid under sections 315 and 83.

For the Crown a number of cases have been cited on the validity of legislation by a legislature with limited powers; it will be enough if reference is made to Gallagher v. Lynn [1937J A.C., 863. The legislature of Northern Ireland had passed an Act on Milk and Milk Products, which was attacked as being ultra vires section 4 of the Government of Ireland Act, 1920, on the ground that it interfered with the trade in milk between farmers outside Northern Ireland and customers within it, contrary to the limitation not to legislate on “trade with any place out of the part of Ireland within their jurisdiction”. Lord Atkin said at page 869:-
“the short answer to this is that this Milk Act is not a law’ in respect of trade; but is a law for the peace, order and good government of Northern Ireland ‘in respect of’ precautions taken to secure the health of the inhabitants of Northern Ireland by protecting them from the dangers of an unregulated supply of milk.

These questions affecting limitation on the legislative powers of subordinate parliaments or the distribution of powers between parliaments in a federal system are now familiar, and I do not propose to cite the whole range of authority which has largely arisen in discussion of the powers of Canadian Parliaments.

It is well established that you are to look at the ‘time nature and character of the legislation’ : Russell v. The Queen (7 App. Cas. 829) ‘the pith and character of the legislation’. If, on the view of the statute as a whole, you find that the substance of the legislation is within the express powers, then it is not invalidated if incidentally it affects matters which are outside the authorised field. The legislation must not under the guise of dealing with one matter in fact encroach upon the forbidden field. Nor are you to look only at the object of the legislator. An act may have a perfectly lawful object, e.g., to promote the health of the inhabitants, but may seek to achieve that object by invalid methods, e.g., a direct prohibition of any trade with a foreign country. In other words, you may certainly consider the clauses of an Act to see whether they are passed ‘in respect of’ the forbidden subject.”

Adopting those views for our guidance, it is clear that the legislature of Northern Nigeria has power “to make laws for the peace, order and good government of the Region”: section 4 of the Constitution of Northern Nigeria. There is no suggestion that in including bankers in section 315 of its Penal Code, that legislature was using its power to legislate on an offence such as criminal breach of trust as a cloak for encroaching on the field of banks and banking. The offence is created and defined in section 311; and any person guilty of it may be punished under section 312: the true nature of sections 313, 314 and 315 is that certain categories of persons (including bankers in section 315) should be liable to heavier punishment. An example of this mode of penal legislation is found in the Criminal Code of the Federation and of the other Regions. Section 390 of that Code provides a general punishment for stealing and goes on to provide heavier punishments for graver cases of the offence. That is arranged in subsections. In the Penal Code of Northern Nigeria, sections 312 to 315 could have been made or arranged as subsections in a single section dealing with punishments.

We are of the opinion that section 315 of the Penal Code is constitutionally valid in so far as it includes bankers in the category of persons liable to heavier punishment for criminal breach of trust. We are of the view that this is not legislation in respect of banks and banking but merely an incidental provision in penal legislation enacted for the peace and good government of Northern Nigeria.

We therefore reject the submission of Counsel that this legislation is invalid in respect of bankers and that it is null and void. We now come to the question whether the 1st appellant, at the material time was a banker. The learned trial Judge took the view that he was. For the Crown, it was contended that the Judge was right in holding that a Bank Manager is a banker. On the other hand Counsel for the appellants (and this includes Mr. Fiberesima for the 1st appellant), argued that a Bank Manager is not a banker. Both sides have referred us to RAT ANLAL and THAKORE on the Indian Law of Crimes, 9th Edition at pp. 1029 and 1030, that Law being the source of the Penal Code of the Northern Region.

For the meaning of Banker, we turn to our own Law. The Banking Act (Cap. 19) does not define Banker as such, but Bank is defined thus: “Bank’ means any person who carries on banking business”. “Banking business” is defined as “the business of receiving money on current account from the general public, of paying or collecting cheques drawn by or paid in by customers and of making advances to customers” (as amended by Act No. 19 of 1962).

Section 3 (1) of the Act enacts-
“No banking business shall be transacted in Nigeria except by a company which is in possession of a valid licence, which shall be granted by the Minister after consultation with the Central Bank, authorising it to carry on banking business in Nigeria: ”

From these provisions it is clear that a Bank can operate in Nigeria only by a company or body corporate. The word “person” in the definition of “bank” above is, therefore, used primarily in the sense of a corporation. In Copland v. Davies (1871-72) 5 H.L. 358, there is a definition of “banker” at p. 375 of the report, where Lord Hatherley, L. C., said::-
“it is not disputed that he was a banker in the ordinary sense of the word, as receiving people’s moneys and giving them receipts not as for transfers of property, or for anything of that kind, but receipts acknowledging the receipt of money, and issuing pass – books and cheque books, and dealing with them in the ordinary way of a banker;”

The relationship between a Banker and a customer is that of debtor and creditor in respect of the money deposited with the Banker by the customer. This position becomes clearer when a customer asks for his money. The Bank undertakes to pay cheques of the customer drawn on his current account; thus the bank becomes a debtor for the-amount, which must be paid on deflland. If the amount is not paid, the customer can sue the Bank. The action will lie against the bank, not the Bank Manager. It is, therefore, not-possible to agree with the view that the 1st appellant in this case was a Banker; if the Bank defaults, the 1st appellant, as Manager of the Bank, will not be sued; the Bank itself (B.W.A. in this case) will be sued.

The cheques are drawn on the Bank of West Africa Ltd. and the customer’s account is with the Bank of West Africa Ltd. The 1st appellant is no more than an official of the Bank carrying out the Bank’s instructions as to the method its business should be carried out. The word “banker” in section 315 of the Code does not, in our view, include a person who is a mere employee of the bank. We would add that even if an employee of a bank could for any purpose be regarded as a banker within the meaning of the section the evidence in this case shows that the breach of trust was committed in relation to monies which were already the property of the bank, i.e., monies entrusted to the 1st appellant as an employee, not in any other capacity.

Our attention has been called to the words “to wit cash” in Count 1 of the charge; it was argued that there was no evidence before the Court that the 1st appellant converted any of the cash of the Bank of West Africa Ltd. to his use or disposed of it in any dishonest manner. It is true, as Counsel said, that the 1st appellant “did not give cash to the co-accused” but it is correct to say that their cheques, in favour of various firms, on the Fagge branch which he (1st accused) passed on to other banks at which the firms have money, placed the Bank of West Africa Ltd. in the position of a debtor to the9ther banks, a debt which the Bank of West Africa Ltd. may be called upon to pity in cash. We are unable to agree that this is not an offence within section 311 of the Penal Code. If we are mistaken in our view on this point, and it were necessary, we would apply the proviso to section 26 (1) of the Federal Supreme Court Act, as we are of the view that the mistake, if it was one, did not occasion any miscarriage of justice.

It was further argued on behalf of the other appellants that all they did was to overdraw, and if the 1st appellant authorised these overdrafts contrary to his instructions, they could not be guilty of abetting any offence under section 311. We think this argument devoid of any substance when one looks at the findings of the learned trial Judge with which we have no reason to disagree-of the part played by these appellants in this gigantic fraud.

It remains for us to decide the point argued before us, whether, having regard to the opinion we have expressed that the 1st appellant was not a banker, and that the laying of the Count under section 315 was a mistake, the convictions should not be replaced by convictions of criminal breach of trust, or the abetting thereof, punishable under section 312, or under section 312 coupled with section 83 in the case of abetting. Arguments have been put to us about the powers of the Court to substitute another section for the one charged in such a case. We have given consideration to this, and we are satisfied that under section 218 of the Criminal Procedure Code, when read with section 27 (2) of the Federal Supreme Court Act, 1960, we are not without power to substitute, in this case, section 312 of the Penal Code for the section 315 charged. An authority for this is the case of Cooray v. R. [1953] A.C. 407.
We therefore discharge the conviction under section 315 of the Penal Code and substitute in case of the 1st appellant on the 1st Count a conviction under section 312.
On the question of sentence, it was pointed out that the sentence of seven years passed upon the 1st appellant is the maximum sentence which could have been passed on a conviction under section 312 of the Penal Code. It was urged,
in the circumstances, that the sentence passed upon him on that count be reduced. After due consideration of the whole case, we are of the view that to reduce the sentence in any way would be minimising the gravity of the offence the 1st appellant has committed.
We therefore pass on the 1st appellant, on the substituted conviction under section 312, a sentence of 7 years I.H.L. less the period he has served from the date of his conviction in the High Court, namely, 6th August, 1962, and the date of this judgment namely the 23rd May, 1963, that is to say, seven years reckoned from the 6th August, 1962. His convictions and sentences on counts 2 and 3 of the Charge remain unaffected.
In regard to the other appellants, convicted on a count of abetting the 1st appellant in his offence under sections 315 and 83 of the Penal Code, we discharge the convictions, and substitute in respect of each a conviction under sections 312 and 83 of the Code.

The following sentences are passed::-
2nd appellant, 5 years I.H.L.
3rd-9th appellants    4 years I.H.L. each
10th and 11th appellants, 2 years I.H.L. each
and in each case the sentence dates as from the date of conviction in the High Court, namely, 6th August, 1962.

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Other Citation: (1963) LCN/1061(SC)

Joseph Rollings Osakwe V. The Queen (1963)

LawGlobal-Hub Lead Judgment Report

BAlRAMIAN, J.S.C.

The present appeal arises out of the theft of a motor car stolen by Accused Nos . 1, 2 and 3, who were taken by Accused No. 5 to Accused No.4 with the aim of disposing of the car. All were convicted-Nos. 1, 2, 3, of stealing, and Nos. 4 and 5 of receiving. No.5 has not applied for leave to appeal; the applications of Nos. 1, 2 and 3 were refused; No.4 has been given leave, and is here referred to as the appellant.

The point is whether it was right on the facts to find that No.4 was guilty of receiving the car.

It was about 8 a.m. that the others came to the appellant; he said that if the car was brought and it was in good condition, he could get them a dealer to buy it; and he gave No. 2 a shilling to go in a taxi and bring the car.

It was brought and was outside his house. Someone had informed the Police, and two constables went and saw the car there about 9.30 am. They found Accused Nos. 1 to 3 on the verandah outside; when the appellant came, he pointed to them as having brought the car for him to buy, and said that it was No.5 who had brought Nos. 1 to 3 to him.

The car key was with No.3. The learned Judge was satisfied that:-
“The 4th accused” (now the appellant) “knew that the car was stolen when the 1st, 2nd and 3rd accused persons came to him and offered it for sale and with that knowledge he received it with the object of getting a buyer for it.
This Court accepts the finding that he knew it was stolen; the difficulty lies in the finding that he received it.

Dealing with the 5th Accused the learned Judge says:-
“To my mind both he and the 4th accused are at the receiving end and are ready to dispose of any stolen car brought to Onitsha . . . the 5th Accused knew that the car was stolen and took the 1st, 2nd and 3rd accused persons to the 4th accused for the purpose of disposing of the car. . .”
There was no evidence that the 4th accused had received stolen goods before.

Section 427 of the Criminal Code, which relates to the offence of receiving, provides that:- “For the purpose of proving the receiving of anything it is sufficient to show that the accused person has, either alone or jointly with some other person, had the thing in his possession, or has aided in concealing it or disposing of it.”

The tense of the verb is the perfect tense  has, had or has aided. Proof is needed that the accused person, whether alone or jointly with another, has already had the thing in his possession or has already aided in concealing it or disposing of it.

In this case, the car was outside the appellant’s house. The fact that he paid a shilling to have it brought can mean no more than this: that he was willing to help in disposing of it either by buying it or by looking for a buyer.

There is no express finding in the judgement that by the time the Police stepped in he had done something which proved his having already had the car in his possession or his having already aided in disposing of it. Apparently he went out and came back. There is no finding that when away from home he tried to sell the car, it may have been for some other purpose.

It is a case in which the Police, as it happened, struck too soon so far as the appellant was concerned. The most that can be said is that he was willing to receive; but the offence of actually receiving, either as having had the stolen car in his possession or as having aided in disposing of it, was not proved against him.

The appeal of Joseph Rollings Osakwe, Accused No.4 in the Port Harcourt case No. P135.C/1962, from the decision of the High Court of Eastern Nigeria dated 17th December, 1962, and convicting him of receiving under the 3rd count, is allowed, and the conviction and sentence are quashed, and a judgement of acquittal shall be entered.

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F.S.C.60/1963

Commissioner Of Police V. Smart Ededey (1963)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C.

When this appeal came up on the 1st November, the respondent objected that it could not be heard on the ground that the Commissioner of Police has no right to appeal, or that he could not appeal without leave.

What happened was this: the Magistrate convicted the respondent, but on appeal the High Court acquitted him; and the Commissioner of Police has appealed against the acquittal on grounds alleging error in law.

The question turns on the meaning of section 69 of the Magistrates’ Courts Law, cap. 74 in the 1959 Laws of Western Nigeria, which provides that:-
“( 1) Any person aggrieved by a decision of the appeal court [viz the High Court] in a criminal case may appeal to the court of further Appeal [viz the Supreme Court of Nigeria] on a matter of law but not of fact or of sentence save with the leave of the court of further appeal.”

(The other subsections are on procedure and powers).
The rival contentions are these: for the respondent, that the opening words “any person aggrieved”, refer to an accused person only; for the appellant, that they include the prosecutor. The interpretation must take account of the preceding sections on criminal appeals from magistrates to the High Court.

If an accused person pleads not guilty but is convicted, he may under section 66 (subject to some exceptions which are not material here) appeal from the magistrate to the High Court. There is no dispute that he is aggrieved by the conviction.

The prosecutor is given a right of appeal by section 68, which provides
“68. Where an accused person has been acquitted of an order of dismissal made by a magistrate the prosecutor may appeal to the appeal court from such acquittal or dismissal on the ground that it is erroneous in law or is in excess of the jurisdiction of the magistrate.”

That shows that the prosecutor is regarded as aggrieved by an acquittal or order of dismissal which is erroneous in law or is in excess of the jurisdiction of the magistrate; from which it follows that if his appeal to the High Court is dismissed, he is a person aggrieved by the decision of the High Court upholding the acquittal or order of dismissal, and may therefore appeal from that decision to the Supreme Court under section 69.

The second appeal is necessarily like the first appeal, on a matter of law. In substance the prosecutor admitted grievance is an acquittal or order of dismissal that is wrong in law. That being so, we also think that if the High Court, upon an appeal by a convicted person, makes an order of acquittal or of dismissal, the prosecutor may appeal under section 69 as a person aggrieved thereby on the ground of error in law.

Otherwise we would get this situation: that if the accused person is acquitted by the magistrate and the acquittal is upheld by the High Court, the prosecutor may appeal from the High Court; but he may not appeal from the High Court if the accused person is convicted by the magistrate and is acquitted by the High Court.

That absurd situation is avoided by the wording of section 69, which does not say that a prosecutor who has appealed under 68 and failed may bring a second Appeal; it speaks merely of a person aggrieved by the decision of the High Court. As already stated, the prosecutor’s admitted grievance is an acquittal or order of dismissal that is erroneous in law, and in our opinion he may appeal as of right from the High Court under section 69 on a matter of law.

Appeals as of right from the High Court are governed by section 117 (2) of the new Constitution, formerly section 110 (2) of the 1960 Constitution of the Federation. Such an appeal lies in:-
“(f) Such other cases as may be prescribed by any law in force in the territory.
The section 69 discussed above is one such other case.

The preliminary objection fails, and the appeal will be heard on matters of law.

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E.S.C.291/1963

Daja Wagga V The Queen (1963)

LawGlobal-Hub Lead Judgment Report

ADEMOLA JSC

We now give our reasons for dismissing the 24th May, 1963.

The appellant, who was charged with culpable homicide punishable by death under section 221 of the Penal Code, was, on the 12th January, 1963, convicted of that offence. The case against him which the learned Judge accepted was that he cut his wife’s throat when she was trying to run away from his house.

Earlier, the deceased, who had four children by the appellant, had left him to live with another man. Since this man was unable to refund the appellant’s dowry, the deceased was ordered by the local court to return to the appellant who took her home.

Later that night cries were heard from the direction of the appellant’s house. The appellant was found hiding in the bush about 1 /z miles from his house whilst his wife (the deceased) was found dead, her throat cut, and her body lying by the entrance to her house. A knife was lying a few yards from the dead body.

In a statement made to the Police by the appellant, which was properly admitted as evidence, the appellant stated that he killed the deceased because she told him that night that she would run away from his house.

In his evidence before the learned trial Judge the appellant said that after he brought the deceased home from the Court, she ran away that night: he pursued and brought her back. She wanted to run away a second time later that night : he held her, they both struggled, and he tried to throw his knife away which he was afraid she might get hold of. She held him and they both struggled for the knife. During the struggle the knife entered her neck and she sustained a major injury with blood gushing out of her neck.

The learned trial Judge disbelieved the story which the appellant gave on oath, and particularly so on account of the description by the doctor of the wound in the neck of the deceased.The question of provocation was also considered by the learned Judge and, in our view, rightly dismissed.

Before us, Mr. Cole for the appellant argued that the deposition of the Medical Officer, Francis Walter Gales, who had carried out the post mortem on the deceased and gave evidence at the Preliminary Investigations before the Magistrate and had since left the country, was wrongly admitted by the learned trial Judge in that evidence was not given on oath that the Medical Officer had left the country and would not be returning, although there was a letter to that effect before the learned trial Judge. Counsel also objected to the written report made by the doctor being put in evidence with his deposition.

Counsel’s attention was called to section 249 (1) of the Criminal Procedure Code under which it was competent for the Court to read the deposition of a registered medical practitioner without proving that he had left the country or was not available to give evidence.

Also subsection (3) (a) of the same section allows a written report of a registered medical practitioner to be admitted in evidence at the discretion of the Court for the purpose of proving the nature of injuries received by any person who had been examined by him.

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Other Citation: (1963) LCN/1060(SC)

Dr. S. A. Aluko v. The Director of Public Prosecutions, Western Nigeria (1963)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C. 

The appellant and two others (who have not appealed) were convicted in the High Court of Western Nigeria (Adeyinka Morgan, J. on 21st February, 1963) of an offence against section 47 (1) (c) of the Criminal Code, cap. 28 in the 1959 Laws of the Region, which provides that:-
“47. (1) Any person who:
(c) Prints, publishes, sells, offers for sale, distributes of reproduces any seditious publication;

shall be guilty of an offence and liable on conviction for a first offence to imprisonment for two years or to a fine of one hundred pounds or to both” etc.
Admittedly this was a first offence and non-indictable having regard to the punishment to which the appellant was liable for publishing a seditious libel; Ground 6 of the grounds of appeal objects that:-
“The learned trial Judge erred in law in holding that he had jurisdiction to try the charge which was non indictable.”

Mr. Ayoola for the appellant referred to the definition of “Summary conviction offence” in the Criminal Procedure Ordinance, which is as follows:-
” ‘summary conviction offence’ means any offence punishable by a magistrate’s court on summary conviction, and includes any matter in respect of which a magistrate’s court can make an order in the exercise of its summary jurisdiction;”
And he argued that as the present offence was a summary conviction offence, it could not have been tried in the High Court; alternatively, that the High Court could not try a summary conviction offence unless it was joined with an indictable offence.
The argument is built on confusion between jurisdiction and procedure, and its foundation is a mere definition. What a definition is meant to do will be discussed later. The jurisdiction of a court is made up of the classes of cases which it can hear: procedure relates to the manner in which the jurisdiction is to be exercised.
For the jurisdiction of the High Court of Western Nigeria it is enough here to refer to sections 8 and 9 of its High Court Law, Cap. 44 of its Laws. Section 8 vests in the Court the jurisdiction and powers of the High Court
of Justice in England “in addition to any other jurisdiction conferred by this or any other Law or Ordinance”; and section 9 goes on to vest in the Court:-
“All Her Majesty’s criminal jurisdiction … for the … punishment of crimes and offences.”

That comprehends all offences without distinction between those which are tri able summarily by a magistrate without consent and those which are not.
In the exercise of its jurisdiction the Court is told by section 11 that it:-
“Shall be exercised (so far as regards procedure and practice) in the manner provided by this Law, the Criminal Procedure Ordinance” etc.
The distinction between jurisdiction and procedure is patent; the Criminal Procedure Ordinance is intended to do no more than regulate the manner in which the criminal jurisdiction is to be exercised.

Briefly put, it is possible to present a case to the High Court either (a) after a preliminary investigation and committal by a magistrate, or (b) without any such committal.

Mr Ayoola referred to R. v. Waziri, 1958 N.RL.R. 91, and to R. v. Onubaka (1959) W.R.NL.R. 329, as authorities for his argument that the High Court cannot try a non-indictable offence unless it is joined with an indictable offence. In R. v. Waziri, Reed J. ruled that when a person was committed by a magistrate for trial, an information which had a solitary count for a non-indictable offence was bad in law and should be quashed.

In R. v. Onubaka the Federal Supreme Court decided that where an information had a count for an indictable offence and a second count for an offence that was non-indictable, the second count was not bad in law. Neither case is in point, for here the appellant was not tried on information filed after committal; his case comes under group (b), for it was brought direct into the High Court without committal proceedings.

Mr. Ademola, the Director of Public Prosecutions for Western Nigeria, referred to section 77 of the Criminal Procedure Ordinance, which provides that:-
“77. Subject to the provisions of any other Ordinance or any Law criminal proceedings may in accordance with the provisions of this Ordinance be instituted:-
(a) In magistrates’ courts on a complaint whether or not on oath, and
(b) In the High Court:-
(i) By information of the Attorney-General of a Region in accordance with the provisions of section 72, and
(ii) By information filed in the court after the accused has been summarily committed for perjury by a judge or magistrate under the provisions of Part XXXI, and

(iii) By information filed in the Court after the accused has been committed for trial by a magistrate under the provisions of Part XXXVI, and
(iv) On complaint whether on oath or not.” He also referred to section 217, which states that:- ‘277.

The provisions of this Part” (viz. Part XXXm) “shall apply to offences triable summarily, that is to say:-
(a) To all trials in the High Court other than on information, and
(b)To all trials in the High Court in respect of offences for which it is provided that a trial can be had in the High Court otherwise than on information and for which no special procedure is provided, and
(c) To all trials in any magistrate’s court” etc.

The present case was begun by complaint by virtue of section 77 (b) (iv)
There is nothing either in section 77 or in section 277 to preclude the High Court from entertaining a complaint which relates solely to a no indictable offence. There is a provision in section 276 that:-
“276. The Chief Justice may by rule direct that any offence or class of offence shall not be triable summarily by the High Court either throughout the whole of the Region or any specified part thereof.”
No rule has been made to bar a complaint of any particular kind, so it is open to the High Court to entertain any complaint invoking the exercise of its jurisdiction. Almost all criminal cases are prosecuted by public officers; they begin very few cases in the High Court, and the need for such a rule has not been felt.

Mr. Ayoola also referred to R. v. Kakelo, 17 Cr. App. R. 150, as an authority for his argument that a summary conviction offence cannot be tried in the High Court. What it decides is this: that in England when a new offence is created and is expressly made punishable on summary conviction, if there is nothing in the enactment which allows indictment, it is not possible to indict the offender. Section 47 of the Criminal Code does not provide that the offender shall be liable to punishment on summary conviction it states merely that he shall be liable on conviction.

We are not, however, to be understood as meaning that if a section in Western Nigeria provides that the offender is liable to punishment on summary conviction, he cannot be prosecuted in the High Court; that is left for consideration when the point arises.

The argument in this appeal is based merely on the definition in the Criminal Procedure Ordinance of a summary conviction offence. In section 3 of the Interpretation Ordinance, cap. 89 of the 1958 Laws of the Federation etc., which relates to Definitions, there is this statement:
“‘definitions’ when followed by terms defined means that those terms shall have the meanings assigned to them, unless there is anything in the subject or con repugnant to such meaning.”

Definitions in the Criminal Procedure Ordinance in particular should be read with care: some are inaccurate, e.g. that of ‘complaint’. Whether in that Ordinance or elsewhere, a section of definitions is like a private dictionary for the Ordinance; the definitions are meant to be a kind of shorthand for the avoidance of repetition. If the definition of a term fits in when the term occurs in a section, the section must be read in its light; if it does not fit in, the section must be read as the con may require. We have not been referred to any section in which the expression ‘summary conviction offence’ occurs by way of help in under standing the section.

All that has been done is to use that expression and its definition as the foundation for an argument that the High Court cannot try a non-indictable offence. It is using a definition as if it were a provision overriding substantive enactments on jurisdiction and procedure, which is foreign to its purpose. Ground 6 must fail.

That was a ground of law on which the appellant had a right of appeal. In addition to it, Mr. Ayoola sought leave to appeal on grounds relating to the facts of the case. The Court saw no substance in his argument on any of them, and refused leave to appeal; and there is no need to discuss any such grounds.

The appeal is dismissed.

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F.S.C.118/1963