Emmanuel Ogunsanya Onashile V. Daniel Adetayo Sami & Anor (1962) LLJR-SC

Emmanuel Ogunsanya Onashile V. Daniel Adetayo Sami & Anor (1962)

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The complainant in a private prosecution charged the two respondents and others with conspiring to make those others –

“do an act of a public nature which can only be done by persons authorized by law so to do, namely to select a candidate for the Olorilu of Okesopin Chieftaincy, and thereby committed an of-fence contrary to section 107(2) of the Criminal Code and punishable (under) section 516 of the Criminal Code.”

The learned Chief Magistrate held that those others, whom the two respondents conspired to introduce into the meeting of Kingmakers for the selection of the candidate although they were not Kingmakers, had no mens rea, and acquitted them; but he convicted the respondents, and they appealed.

Charles, J. pointed out, in a very brief judgment, that s. 107(2) did not create an offence of conspiracy, and quashed the conviction; hence the present appeal by the complainant. That, with respect, was taking too legalistic a view: when one looks at sections 166 to 168 of the Criminal Procedure Ordinance, and at sections 99 and 100 of the Western Region Magistrates’ Courts Law, one sees that a mistake or defect of that sort in the charge, which neither embarrassed nor misled the respondents in their defence, is not a sufficient reason for quashing a conviction. The nettle is, if a person who is not a Kingmaker takes part in the selection of a candidate for a chieftaincy, does he commit an offence under s.107(2) of the Criminal Code? and the nettle must be grasped.

Mr. Omotosho, for the appellant, has argued that he does. There is a Declaration of what the native law and custom is, which is registered under s. 8 of the Western Region Chiefs Law, 1957, and becomes binding. The argument is that a Kingmaker in the selection of a candidate performs an act of a public nature authorised by the Chiefs Law, and that a person who is not a Kingmaker under the Declaration but takes part in the selection assumes an authority which he has not, and is guilty under s.107 (2) of the Code.

It is a plausible argument, but it throws no light on the acts and the per-sons contemplated in s. 107(2). It will be convenient here to quote the entire section:-

107. Any person who –

(1)not being a judicial officer, assumes to act as a judicial officer; or

(2)without authority assumes to act as a person having authority by law to administer an oath or take a solemn declaration or affirmation or affidavit, or to do any other act of a public nature which can only be done by persons authorised by law to do so; or

(3)represents himself to be a person authorised by law to sign a document testifying to the contents of any register or record kept by lawful authority, or testifying to any fact or event, and signs such document as being so authorised, when he is not, and knows that he is not, in fact, so authorised;

is guilty of a felony, and is liable to imprisonment for three years.”

The offender cannot be arrested without warrant.

At the trial, counsel for the defendants argued that the section should be construed in the light of the rule known as ejusdem generis; and among other cases he cited A. G. v Brown. (1920) 1 K.B. 773, where that rule is canvassed at length. Dealing with it, the learned Chief Magistrate quoted the words of Lord Campbell, C.J. in R. v. Edmundson, (1859), 28 L.J. (M.C.) 213, at 215, that:–

Where there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified.

But the learned Chief Magistrate thought that in construing s.107(2) of the Code the proper rule to apply was the one given in s.48 of the Interpretation Law, Cap. 51 of the Laws of the Western Region, which reads:-

Where the words “or”, “other”, and “otherwise” are used, they shall, unless a contrary intention appear, be construed disjunctively and not as implying similarity, unless the word “similar” or some other word of like meaning is added.”

His view was that:–

The Legislature intended to create a general offence a False Assumption of Authority, for the words `of a public nature which can only be done by persons authorised by law to do so’ constitute a complete sentence by itself.

That sort of construction overlooks these words in s.48, “unless a contrary intention appear”. It is true that the ejusdem generis rule should not be pressed too far: it cannot be applied unless there is a category or class into which things of “the same kind as those specified” can be fitted. On the other hand, the disjunctive construction should, also, not be pressed too far, or it will produce something totally alien to the context. The aim must be to arrive at the intention of the legislature, and the method indicated by Sankey, J., in A.C. v. Brown, (1920) 1 K.B. 773, at p. 798, may well be followed; the learned judge said:-

Although therefore the doctrine of ejusdem generis is to be applied with caution, where in an Act of Parliament there are strong reasons (a) from the history and circumstances connected with its passing, (b) from the structure of the Act itself, to indicate the real meaning of the Legislature, in my view the doctrine of ejusdem generis is one which not only can, but ought to, be applied. Further than that, in this particular case it may be urged that there is evidence in the section itself that the meaning of the general words is to be restricted.

If it had been the intention to create a general offence of “False assumption of authority”, it would have been quite enough to say this in s.107 of the Code:–

Any person who without authority assumes to do any act of a public nature which can only be done by persons authorized by law to do so, is guilty of a felony, and is liable to imprisonment for three years.

But there is subsection (1), which makes it an offence to assume to act as a judicial officer; there is subsection (3), which prohibits the doing of what may be described as a certification – the sort of thing that a person holding an office carrying the duties of keeping registers and records can do; and sub-section (2) itself is designed to punish a person who administers an oath without being a commissioner for oaths or functioning in an office which empowers him to do so, Section 107 is plainly designed to make it an offence in a person to assume the authority to do something which only those can do who hold some particular office or appointment. It is quite easy to discover the category into which the general words “to do any other act of a public nature which can only be done by persons authorised by law to do so” can be fitted in, and there is no question of pressing the rule of ejusdem generis too far. But it would be odd if one were to include Kingmakers selecting a chief under native law and custom among the persons contemplated in s.107: they are so obviously alien to the context. Another way of stating the rule is in these words, noscitur a sociis – the acts and the persons meant are known by the company they are in; and one might ask oneself the question – Will it be putting Kingmakers and the selection of a chief into appropriate company if one puts them in with judges and magistrates and the trial of cases? or with commissioners for oaths and notaries public and the like? and the plain answer is, No.

Then, again, there is the fact that s.107 is embedded in a chapter on “Corruption and Abuse of Office” between sections which deal with official corruption and abuse of office and sections obviously relating to assuming the guise of being a public officer; and that is another compelling reason for saying that the false assumption of authority in s.107 must be analogous and fit into the general purpose of the chapter. If the general words in s. 107 should not be restricted to acts which are closely akin to those specified in the section, in any event they cannot be construed so widely as to include acts and persons plainly outside the scope of the chapter, such as Kingmakers and the selection of a chief under native law and custom. One cannot, be-cause persons have done something of which one disapproves however strongly, stretch s. 107 to serve a purpose for which it was not intended.

Mr. Omotosho has asked us, if we thought that s. 107 (2) did not apply and the charge of conspiracy did not come within s. 516, to convict of a con-spiracy under s. 518 of the Code, on the ground that there was a clear conspi-racy, and the defendants ought to be punished under, apparently paragraph (6) – a conspiracy

“to effect any unlawful purpose.”

What he has not done is to point to the provision which would enable the court to convict of an offence under s. 518(6) on a charge of an offence under s. 516. The power of alternative convictions is limited, and cannot be exercised outside the limits laid down by law. We do not propose to go into the subject: we cannot begin speculating on whether it can be done under this or that provision, when no provision under which it could be done has been pointed out for our consideration; so there is no point in considering whether an offence had been committed under s. 518.

Our reasons for thinking that the conviction was a mistake differ from those given by the learned Judge; however, this appeal must fail and is dis-missed, with costs to the respondents assessed at thirty guineas.

Other Citation: (1962) LCN/0995(SC)

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