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Rex V. Nyong Etim Udo & Ors (1942) LJR-WACA

Rex V. Nyong Etim Udo & Ors (1942)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal law–Conspiracy to commit- felony contrary section 516 of Criminal Code, and repeated uttering of counterfeit coins contra. section 152 (1) (c) of Criminal Code—All essential elements not set out in particulars of offence—Inferences from circumstantial evidence.

Held: Particulars were sufficient. Same certainty not required in stating object of a conspiracy as required in an indictment for the offence conspired to be committed. Sub-rule (3) of rule 4 in the First Schedule to the Criminal Procedure Ordinance (Cap. 20) provides that all essential elements of the offence need not necessarily be stated.

Held further that guilty knowledge can seldom be proved by direct evidence, but by inferences which may properly be drawn from circumstantial evidence.

Appeal dismissed.

S. A. McKinstry for Crown.

E. A. Akerele for Appellant.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, BUTLER LLOYD AND FRANCIS, JJ., NIGERIA.

In this case the appellant was charged in the High Court of the Calabar-Aba Judicial Division along with two other men named Okon Akpan Umo (second accused) and Offiong Udo Ekong (third accused) upon two counts of Conspiracy to commit felony contra. section 516 of the Criminal Code and one count of Repeated, uttering of counterfeit current silver coin or possession of several such coins contra. section 152 (1) (c) of the Criminal Code, the particulars of the respective offences alleged being as follows:—

Count 1—” That Nyong Etim Udo and Okon Akpan Umo and Efion ” Udo Ekong between the 1st and 31st days of January, 1941, in the ” Province of Calabar, conspired together and with Efiong Okon Eyo ” and Jackson Akpan and Efiong Ekanem to commit a felony, to wit, ” repeatedly to utter or to obtain possession of several counterfeit ” current silver coins with intent to utter any of them contrary to

” section 152 of the Criminal Code, and did have or reduce into their ” possession forty-seven counterfeit current silver coins lying in the ” Native Administration Strong Room at Ibesikpo on or about the 4th ” January, 1941, and 118 counterfeit current silver coins lying in the ” Native Administration Treasury at Ibesikpo on or about the 4th ” January, 1941, and four hundred and thirteen counterfeit current ” silver coins lying in the Etoi Native Court on or about the 27th ” January, 1941, with intent to utter any of them, the aforesaid five ” hundred and seventy-eight counterfeit current silver coins consisting ” of counterfeit current alloy florins.”

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Count 2—” Nyong Etim lido and Okon Akpan limo on divers days ” between the 1st and 31st January, 1941, in the Province of Calabar, ” conspired together and with Effiong Okon Eyo and Jackson Akpan ” and Effion Ekanem to commit a felony, to wit, repeatedly to utter ” counterfeit current silver coin or to obtain possession of several such ” coins with intent to utter any of them contrary to ,section 152 of the ” Criminal Code that is to have or reduce into their possession Forty” seven counterfeit current silver florins lying in the Ibesikpo Native ” Administration Treasury on or about the 4th January, 1941, with ” intent to utter any of the said counterfeit coins.”

Count 8—” That Nyong Etim Udo on or about the 4th day of ” January, 1941, in the Province of Calabar had in his possession. three ” or more pieces of counterfeit current silver coin knowing them to be ” counterfeit and with intent to utter any of them to wit Forty-seven ” counterfeit current silver florins lying in the Ibesikpo Native Adminis” tration Strong Room with intent to utter all or some or one of them.’

 second and third accused both pleaded guilty to the first count and the prosecution did not proceed with the case against the second accused on the second count. The appellant (first accused) pleaded not guilty to all counts. The trial proceeded against him after the second and third accused had been sentenced, and resulted in his conviction on all three counts and a sentence of five years’ imprisonment with hard labour being passed upon him on each count the sentences to run concurrently and to repay £57 16s Od to the Native Administration of Ibesikpo and Etoi pro rata.

He has appealed to this Court against his convictions upor three grounds, viz :—

  1. The conviction was wrong in law in that as regards counts ” 1 and 2 the offence of which the accused was charged with conspirae7 ” to commit was no offence in law in that the accused was not chargec ” to have been in possession of or intended to utter the alleged counter” feit coins knowing the same to be counterfeit such guilty knowledge ” being the essence of the offence.
  2. As regards all the counts charged the verdict and conviction way ” wrong in law in that there was no evidence direct or circumatantla ” upon which it could be inferred or concluded that the accused ha.- ” guilty knowledge that any money in the strong room was counterfe;-.
  3. The verdict is unreasonable and cannot be supported havit. ” regard to the evidence.”
See also  Mustapha S. B. Dawodu V. Sabina Gomez (1947) LJR-WACA

The first ground which raises a point taken by appellant’s Rex counsel in the Court below is purely technical and is, in our view, Nyong Etim completely answered by the passage from the 29th Edition of Udo & ors. Archbold page 1419, quoted by the learned trial Judge.

Kin gdon, ” The indictment must in the first place state the conspiracy. In cj.

” stating the object of the conspiracy the same certainty is not required Butler Lloyd
” as in an indictment for the offence, etc., conspired to be committed.” and Francis

and by sub-rule (3) of rule 4 in the First Schedule to the Criminal JJ. Procedure Ordinance (Cap. 20) which reads :—

” 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.”

This ground fails.

Grounds 2 and 3 are really the same and were argued together, the contention upon them being that there was no evidence upon which the learned trial Judge could find that the appellant acted with guilty knowledge.

The fact of guilty knowledge can seldom be proved by direct evidence, nearly always it has to be inferred from all the circumstances of the case, and the question of whether guilty knowledge on the part of an accused person is the proper inference to be drawn from the evidence is one for the trial Judge when, as in this case, the trial is held without a jury. Having listened to the exhaustive and able argument of counsel on behalf of the appellant we are satisfied that in this case the evidence was such as to justify the learned trial Judge in drawing the inference which he did namely, that the appellant acted with guilty knowledge. These grounds, therefore, also fail.


The appeal against the convictions is dismissed.

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