Rex V. Orgi Uko & Anor (1939)

LawGlobal Hub Judgment Report – West African Court of Appeal

Conspiracy to bring false accusation contra sec. 125 of the Criminal Code and unlawful possession of counterfeit coins contra sec. 150A of the Criminal Code—Constructive possession.

Held : On the facts the appellants were properly convicted and appeals dismissed.

The facts are sufficiently set out in the judgment.

M. H. Holden for Appellants.

F. H. Collier for Crown.

The following joint judgment was delivered :-

KINGDON, C.J., NIGERIA, BUTLER LLOYD AND CAREY^,

.JJ.

In this case the two accused were charged in the High Court of the Aba Judicial Division with the following three offences :Statement of Offence—lst Count.

Conspiracy to bring false accusation contra section 125

C.C.

Particulars of Offence.

Accused at about 4.30 p.m. on the 27th day of October, 1938, at Aba in the Province of Owerri did conspire with one another to charge, or cause to be charged one James Robert Mensah (m) with the offence of unlawful possession of 10 1 /pieces counterfeit coins without lawful authority or excuse, knowing that the said James Robert Mensah is innocent of the alleged charge • or not believing him to be guilty of the alleged offence.

Statement of Offence-2nd Count.

Unlawful possession of counterfeit coins contra section 150A C.C.

Particulars of Offence.

Accused at the same time and place unlawfully possessed 10 1 /- pieces counterfeit coins without lawful authority or excuse.

Statement of Offence-3rd Count.

Possession of several counterfeit coins contra section 152 (3) C.C.

Accused at the same time and place had in their possession 10 1 /- pieces counterfeit coins, knowing them to be counter-

feit, and with intent to utter them or any of them.

•

They were both convicted on counts 1 and 2 and sentenced to 3 years and 6 months I.H.L. on each count the sentences to run concurrently.

They were acquitted on Count 3.

There is no appeal before us on the facts and the only question we have to decide is whether the facts as found by the learned Trial Judge establish the offences of which the appellants have been convicted.

The facts are somewhat unusual. They are set out in the judgment of the Court below in a series of findings as follows :-

” In this case I am satisfied that shortly before the incident resulting in these charges the second Accused on the complaint of the complainant Mensah was charged before the Magistrate with assaulting his wife and fined 7s. 6d. and that since that time there has been ill-feeling between second Accused and Mensah.

” I am satisfied that the first Accused is a great friend of second Acc used.

” I am satisfied that on the 27th October, 1938, the first and second Accused were near the precincts of Aba Railway Station on the arrival of the afternoon train from Port Harcourt, on which train Mensah, Nwogwu and Police Constable Christian travelled.

” I am satisfied that the first Accused was walking in front of Mensah just after he crossed the level crossing with second Accused behind Mensah.

” I am satisfied that Mensah, shortly after crossing the level crossing, saw a paper package, which he.picked up and realising it was money put it in his pocket for examination later and with the intention of keeping it.

” I am satisfied that first Accused did not go to Port Harcourt on this day, as he alleges, and that he did not see Mensah attempting to pass counterfeit coin to a breadseller at Port Harcourt Railway Station.

” I am satisfied that second Accused told Police Constable Christian that Mensah was in possession of 10 /- counterfeit coin and, as he was able to say the amount of counterfeit coin in possession of Mensah, that he must have had prior knowledge of the contents of the package.

” I am satisfied that second Accused indicated that first Accused was able to testify to Mensah’s uttering of counterfeit coin at Port Harcourt and that first Accused made this allegation to the Police, which was untrue

• •

” I am satisfied that these two Accused conspired together as charged in count 1 and planted this parcel hoping that Mensah would be covetous enough to do as he did and that they made the accusations to the Police for the purpose of having Mensah charged with possession of counterfeit coins

I am satisfied that the two Accused were in possession of 10 1 -counterfeit coins without lawful authority or excuse, as charged in secon^–_^. count.”

The question of law which arises on count 1 is whether the

•

appellants can be said to have conspired to bring a false accusation

within the wording of section 125 of the Criminal Code which is affollows :-

” Any person who conspires with another to charge any person or cause any person to be charged with any offence, whether alleged to have bee- committed in Nigeria or elsewhere, knowing that such person is innocent c: the alleged offence, or not believing him to be guilty of the alleged offence. is guilty of a felony,”

when, if Mensah had been prosecuted for being in possession c: ten pieces of counterfeit coin without lawful authority or excuse

it is possible that his plea of ignorance of the contents of the paper containing counterfeit coin might not be held to be a lawful excuse if it were shown that he had stolen the coins by finding.

After careful consideration we have come to the conclusion that the convictions are proper for the reason that the conspiracy to charge Mensah with the offence took place at a time when the appellants knew that Mensah was not guilty of the offence, and clearly intended to charge him with the offence the moment he picked up the coins even though he did so in perfect innocence. Such a conspiracy is covered by the provisions of section 125 of the Criminal Code.

As to count 2 there can be no doubt as to the guilt of the first appellant on the facts as found. He was clearly in actual possession of the coins before he ” planted ” them and he had no lawful authority or excuse for such possession.

The case of the second appellant is not so straightforward. There is no evidence to suggest that he was in actual possession of the coins at any time.

The question then arises can he be properly held to have been in constructive possession through the actual possession of his fellow conspirator, the first appellant ? The point seems to be on all fours with that which arose in the case of R. v. Rogers (2 Mood 85 –referred to at Archiboid 30th Edition p.1122). There it was held that when pieces of counterfeit coins are found on one of two persons acting in guilty concert, and both knowing of the possession, both are guilty of possession. On the analogy of this case, we hold that the second appellant also was properly held to have been in possession of the counterfeit coins without lawful authority or excuse.

The appeals of both appellants are dismissed.