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Rex V. Mathew Ojo & Ors (1941) LJR-WACA

Rex V. Mathew Ojo & Ors (1941)

LawGlobal Hub Judgment Report – West African Court of Appeal

Appellants convicted of taking part in a riot contra. section 71 of Criminal Code—Appeal on ground that since third accused was acquitted the information was left without any averment of one of the essentials of a riot, namely, that at least three persons took part in it.

Held: Under section 30 of Criminal Procedure Ordinance and rules / (3), (4) and (5) of Criminal Procedure Rules, such an averment is unnecessary. Appeal dismissed.

There is no need to set out the facts.

Cases cited :—

.1? v. Plummer (1902) 20 Cox 629.

R v. William Beach and Arthur Morris (1909) 2 C.A.R. 189.

C. W. Reece for Crown.

Sir William Geary (Soetan and Wells Palmer with him) for Appellants.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, GRAHAM PAUL, C.J., SIERRA LEONE.

This is an appeal from the conviction of the appellants by Ames, Assistant Judge, on the following charge :—

Riot, contra. section 71 Criminal Code.

PARTICULARS

Mathew Ojo, Jacob Jalugbo and Jegede Lemodu on the 8th day of January, 1941, at Ilesha in the. Oyo Province, took part in a riot.

The ground of appeal relied on at the hearing of the appeal

is

” The learned Judge was wrong in law in convicting the two appellants of the offences of riot as charged having found third accused not guilty of the same offence.”

Mr Reece, Crown Counsel, stated he could not support the conviction for the reasons given in the ground of appeal. He cited

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in support the cases of Rex versus Plummer (1902) 20 Cox, 629, Rex

and William Beach and Arthur Morris (1909) 2 criminal Appeal maths qo Report 189.& ors.

Mr Soetan, Counsel for the appellants adopted his contention. These two cases were decided before the passing of the Indictments Act, 1915. Section 3 of that Act and Rule 4 of the Rules made under that act specify what indictments shall contain. Similar provisions apply in Nigeria by reason of the Criminal Code and the rules made thereunder,

Section 30 of the Criminal Procedure Code provides :—

  1. Every charge or information shall contain, and ” shall be sufficient if it contains a statement of the specific ” offence or offences with which the accused is charged, ” together with such particulars as may be necessary for ” giving reasonable information as to the nature of the charge.
  2. Notwithstanding any rule of law or practice,. a ” charge or information shall, subject to the provisions of this ” Ordinance, not be open to objection in respect of its form ” or contents if it is framed in accordance with the rules under ” this Ordinance.”

Rules 4 (3) (4) and (5) of the Crimirial Procedure Rules are as follows:-

” 4 (3) The statement of offence shall describe the offence ” shortly in ordinary language, avoiding as far as possible the ” use of technical terms, and without necessarily stating all ” the essential elements of the offence, and if the offence ” charged is one created by enactment shall contain a ” reference to the section of the enactment creating the offence.

” (4) After the statement of the offence particulars of such ” offence shall be set out in ordinary language, in which the ” use of technical terms shall not be necessary :

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” Provided that where any rule of law or any Ordinance

or statute limits the particulars of an offence which are ” required to be given in a charge or information, nothing in ” this rule shall require any more particulars to be given than ” those so required.

(5) The forms set out in the appendix to these rules or ” forms conforming thereto as nearly as may be shall be used ” in cases to which they are applicable, and in other cases ” forms to the like effect or conforming thereto as nearly as ” may, shall be used, the statement of offence and the ” particulars of offence being varied according to the ” circumstances in each case.”

Section 71 of the Criminal Code under which the appellants were convicted provides that ” any person who takes part in a riot is guilty of a felony.”

The essential ingredients of a riot are contained in section 69. Before a person can be convicted of the offence .of taking part in a riot all these essentials have to be proved. In our opinion there is ample evidence on the record to establish that the defendants did take part in a ” riot ” within the meaning of that section.

We are satisfied that it is not necessary under the Nigeria Criminal Procedure Rules to aver in the information all or any of the essentials of a ” riot ” as these are specifically imported into the charge by the reference to the section of the Criminal Code. All that is necessary to aver is that the accused did take part in a ” riot ” and then it becomes a matter of proof that there was a

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riot and the accused did take part in the riot the subject matter of the charge. There appears to us to be nothing in the rules. that requires when ” A ” is charged with taking part in a riot that it should be averred in the information ” A and at least two others did take part in a riot. Holding this view it seems to us immaterial that one of .the three accused was acquitted.


The appeal is therefore dismissed.

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