Rex V. Anthony Enahoro (1947)
LawGlobal Hub Judgment Report – West African Court of Appeal
Criminal Law—Inciting to Mutiny—Nigeria Criminal Code, sections 44 (a)and 45 (b) distinguished—Meaning of ” advisedly “—Sentence—Previous conviction for different class of offence—Reduction of sentence.
Section 44 (a) of the Criminal Code creates the offence of deliberately attempting to seduce members of the Police Force from their duty and allegiance, while section 45 (b) creates the offence of attempting to induce them to disobey a specific order given them by a superior officer. The first strikes at the very basis of duty and allegiance, so that whenever certain circumstances shall arise they shall fail therein. The second aims at securing disobedience to a specific order given at a particular time.
Cases referred to:
- R. v. Bowman, 22 Cox C.C. 729; 76 J.P. 271.
- R. v. Fuller, 126 E.R. 847.
Appeal from the Supreme Court of Nigeria.
Taylor for Appellant.
Stephens, Crown Counsel, for Respondent.
The following joint judgment was delivered:
This is an appeal against a conviction for an offence contrary to section 44 (a) of the Criminal Code. The particulars of the offence as stated in the charge are that the appellant:—
” On the 8th October, 1946, at the King George V Memorial Hall, Warri, in the province of Warri, advisedly did attempt to seduce members of the Nigeria Police Force from their duty and allegiance to His Majesty.”
Evidence was adduced on behalf of the Crown that the appellant at a meeting at which some 200 people were present, including several members of the Police Force, uttered words, in the course of a lecture given by him, to the following effect:—
” And now you policemen. I know many of you are here. I wish to talk to you as I have always spoken to those of you in other places I have visited ; though we know we have neither matchets nor guns but in the event of a riot when we want to fight for our rights should any of you take up arms to fire at anyone of us we will know he is a traitor to this country.”
Three witnesses, all policemen, testified to the words used and although there are certain verbal variations the several versions are substantially the same.
The appellant himself gave evidence and denied having used any such words, but three witnesses called on his behalf averred that he used words to the effect that the appellant hoped :—
” That in the event of a riot in this country police will take precautions to shoot between the legs and not to kill defenceless citizens.”
Again there are verbal variations but the three witnesses substantially agree. The learned trial Judge convicted the appellant and sentenced him to three years’ imprisonment with hard labour. The appellant had sought leave to appeal against both conviction and sentence.
The grounds of appeal are :-
- The learned trial Judge misdirected himself as to the proper meaning and effect of section 44 (a) of the Criminal Code under which the accused was charged.
- The judgment is unwarranted and unreasonable and cannot be supported having regard to the evidence before the Court.
- The learned trial Judge misdirected himself when he held that the facts as found by him constituted an offence under section 44 (a) of the Criminal Code.
- The learned trial Judge misdirected himself in the following passage in his judgment and therefore came to a wrong conclusion:
” It is admitted by the accused that he held notes and sometimes referred to it during the lecture, the reference to his notes I hold brings it within the word advisedly ‘ which for the purpose of this charge will mean deliberately in the section of the Criminal Code and completes the evidence
when in fact the word ” advisedly ” has no reference to same.
- The learned trial Judge misdirected himself in holding that:
” I hold that the words ‘ his duty ‘ and the words allegiance to His Majesty ‘ as used in section 44 (a) of our Code should be read as disjunctive “
when in fact the words ” duty ” and ” allegiance ” refer to His Majesty.
- The learned trial Judge misdirected himself in relying on the statements of both witnesses for the prosecution and the defence in so far as they conflicted in many material respects.
We propose to deal firstly with grounds (b) and (f). As to ground (b) there can be no doubt that there was evidence that the appellant used the words suggested by the Crown and this evidence if believed is ample to support the conclusion that the appellant did use such words notwithstanding the immaterial variations which appear in the testimony of the three witnesses. That there should be such variations is natural in the evidence of witnesses who cannot be expected to be infallible. As to (f) it is true that the learned trial Judge cites in his judgment the evidence given by witnesses for the defence, interprets them in a certain sense and finds that the use of the words conveying this meaning is an offence under the section charged. It is true also that he says further ” I hold he has from the evidence of both the witnesses for the prosecution and the defence ” used words which could be said to constitute the offence charged. He states quite plainly, however, that the evidence which he believed is that given for the prosecution and the only reasonable interpretation we can place upon his words in this regard is that he believed the version given by the prosecution but that he wished to express the view that, even on-the showing of the witnesses called by the defence, the appellant used words which if not identical with those averred by the Crown still would amount to commission of the offence.
Dealing with grounds (a) and (c) Counsel submitted that the words used by the appellant did not amount to an attempt to seduce members of the Police Force from their duty and allegiance to His Majesty within the meaning of section 44 (a) of the Criminal Code, but that, if their use constituted an offence at all, it was an offence contrary to section 45 (b) of the Code, which refers to inciting disobedience to any lawful order given by a superior officer. Counsel argued that seducing from duty and allegiance to the King is a different and more grave offence than merely inciting to disobedience of an order and that the Court in giving effect to the law must give effect also to the distinction drawn by the enactment between the two offences.
The case of R. v. Bowman & Olken (1) was cited by Counsel on both sides. In that case the accused were charged with offences under the Mutiny Act, 1797,
the terms of which are analogous to those of section 44 of our Criminal Code. The words complained of in that case were contained in a printed article referring to the use of armed force in dealing with strikes and industrial riots. They were addressed to ” British Soldiers ” and included such phrases as ” You are called upon to murder us. Don’t do it “, and ” Think things out and refuse any longer to murder your kindred “. In the course of his summing-up to the jury Horridge, J., said :—
” Ask yourselves this question : why was this article printed and published ? Was it, as the prosecution suggests, to induce soldiers to disobey their officers in the event of being ordered to quell a strike ? Or was it, as Sir F. Low suggests, merely a comment upon the use of armed military force by the State for the suppression of industrial riots ? “
His Lordship said further :—
” There is a distinction: to criticise the use of military force or to suggest that soldiers are to rebel when that force is used.”
He added :—
” If you think that it was not addressed to soldiers—that it was mere comment on a public matter—you will find the prisoners NOT GUILTY. If you think it was addressed to soldiers and that it was an endeavour to incite them to mutiny, you will find the prisoners GUILTY.”
In this summing-up, as reported, there are to be found three phrases which the learned Judge appears to have treated as synonymous:—
” To induce soldiers to disobey their officers in the event of being ordered to quell a strike,”
” To suggest that soldiers are to rebel when that force is used “
” To incite them to mutiny.”
It is clear that His Lordship directed the jury that, if they thought the prisoners had done any of these three things, they would find them guilty. It is equally clear that this direction amounted to laying down as a proposition of law that to induce soldiers to disobey their offices in the event of being ordered to quell a strike is to seduce them from their duty and allegiance to the King.
It is true, however, that in the Mutiny Act no such other offences are prescribed as those created by section 45 of our Criminal Code and this Court must consider whether by this latter enactment the legislature intended to draw a distinction between attempts to seduce policemen from their duty and allegiance to His Majesty and attempts to induce them to disobey their officers. We do not think that the enactment draws any such distinction. The real distinction is between advisedly attempting to seduce members of the Police Force from their duty and allegiance, that is to say, a deliberate attempt so to seduce them generally should certain events arise, and attempting to induce them, possibly on the spur of the moment, to disobey a specific order given them by a superior officer. The first strikes at the very basis of duty and allegiance, so that whenever certain circumstances shall arise they shall fail therein. The second aims at securing disobedience to a specific order given at a particular time. This distinction being inapplicable to the facts of the present case, we must give effect to the words of the section appropriate to the facts, that is to say, section 44 (a) of the Code,, and, on the authority of R. v. Bowman (1), must hold that to attempt to induce the police to disobey their officers in the event of being ordered to quell a riot. by certain means is an attempt to seduce them from their duty and allegiance to His Majesty. We have no doubt whatever that the use of the words used by the appellant according to the evidence of those witnesses whom the Judge believed
was such an attempt and, subject to consideration of the remaining grounds of appeal, would warrant a conviction under the section charged.
As to ground (d) Counsel cites the case of R. v. Fuller (2) in which it was held that the word ” advisedly ” as it appears in the relevant section of the Mutiny Act ” is equivalent to knowingly 1“. It may be open to doubt as to how far a single judgment given very shortly after the enactment of that statute can be held to provide conclusive authority for restricting the meaning of an ordinary English word to one only of its connotations. Even were this so, however, and did the Judge misdirect himself as to the meaning of the word ” advisedly ” as used in this particular enactment, it cannot be said that such a misdirection caused a miscarriage of justice, for it erred rather on the side of favour to the accused. There cannot be the slightest doubt upon the evidence that the appellant uttered the words complained of ” advisedly ” in the sense in which that word was defined in Fuller’s Case, that is to say, knowing that the persons he addressed were policemen, for he prefaced his remarks with some such words as ” And now you policemen—I know many of you are here “, as in fact they were. The interpretation placed upon the word ” advisedly ” by the trial Judge, that is to say, ” deliberately “, imposed a further burden upon the prosecution, for he required proof not only that the appellant knew that his words were addressed to policemen but also that by them he deliberately attempted to seduce them from their duty and allegiance. To impose an additional burden of proof upon the prosecution can occasion no miscarriage of justice prejudicial to the accused.
In view of the terms of the judgment in relation thereto we are unable to find any substance in ground (e). It is true that the learned Judge erred in stating that ” the words ‘ his duty.’ and the words ‘ allegiance to His Majesty ‘ as used in section 44 (a) of our Code should be read as disjunctive “, but he immediately negatived this statement when he proceeded ” I hold that a policeman’s duty to His Majesty is wrapped up in his allegiance and it will therefore be superfluous to talk of his duty as distinct from his allegiance to His Majesty when the word allegiance itself connotes duty “. We are satisfied that this misdirection can in no way have occasioned any miscarriage of justice.
All grounds of appeal having, in our opinion, failed, the appeal against conviction is dismissed.
Counsel did not present any argument in support of the appeal against sentence, but we have given this matter also our careful and anxious consideration, and have come to the conclusion that in the circumstances of this case the term of three years’ imprisonment imposed upon the appellant is excessive. The learned Judge would appear to have taken into consideration the fact that the appellant admitted having been previously convicted of an offence contrary to section 375 of the Criminal Code. It is a well-established principle that, in taking into consideration previous convictions, only those which are in respect of offences which are similar or which partake of something of the same nature as that of which accused is presently convicted should be considered. We are not of the opinion that the offence of publishing defamatory matter is per se analogous to that of attempting to seduce the police from their duty and allegiance. The offence of which the appellant has been convicted in this case is indeed of a grave nature, striking as it does at the roots of that measure of law and order which the Police Force secure to the inhabitants of this country and as such it merits severe punishment, even in suitable cases imprisonment for life. The appellant should not, however, be punished as though he had previously been convicted of a similar offence. We therefore reduce the sentence to one of eighteen months’ imprisonment with hard labour.
Appeal against conviction dismissed.