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MICHAEL IMOUDU AND OTHERS
FEDERAL SUPREME COURT
23rd JANUARY, 1961
BEFORE THEIR LORDSHIPS:
CRIMINAL LAW—Charge or count—Alleged duplicity—Count valid ex facie; and no prejudice—Whether acquittal of one accused affects conviction of another—Conviction on undefined evidence, if not sustainable on one of two possible views—Criminal Procedure Ordinance, s.156.
CRIMINAL LAW: Riot arising from a planned labour demonstration
Williams, Q.C. (with him Owodunmi), for Appellants.
Crane, Ag. D.P.P., for the Crown.
BRETT, R L, delivering the judgment of the Court:
The six appellants were all convicted in the High Court of Lagos on a charge of taking part in a riot at the premises of the Nigerian Railway Corporation on the 10th December, 1959. In addition, the first and fifth appellants were convicted on a charge of assaulting one Jubrilla Junaid at the same time and place, and occasioning him harm. A number of grounds of appeal were filed by the appellants themselves, and Chief Williams, who appeared for them in this court, obtained leave to file and argue five additional grounds, but in the event none of the original grounds were argued, and only four of the additional ones. It will be convenient to consider them in the order in which they were argued.
The first ground argued dealt with the charge of riot, and alleged that it offended against the provisions of s. 156 of the Criminal Procedure Ordinance, which reads as follows:
For every distinct offence with which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in sections 157 to 161.
On the face of it the charge of riot, which it is unnecessary to set out in full, complied with this section, but the submission made for the appellants is that the evidence discloses not a single riot but two separate and distinct riots: one, in which there is at least some evidence that all the appellants participated, took place at the loco workshops in the Railway Compound, Ebute Metta, shortly after 7 am. on the day in question; the other, in which there is no evidence that any of the appellants participated, took place outside the main office of the Nigerian Railway Corporation, 2’/2 miles from the loco workshops, some time later in the morning. This being so, it is submitted, on the authority of R. v. Achie (1947) 12 W A.C.A. 209, that there was no charge properly before the court and that the whole trial was vitiated.
The rule laid down in R. v. Achie does not apply where a charge is valid on the face of it and the objection to the charge is without substance. If the evidence in fact disclosed two distinct riots the only questions would be whether all the accused took part in the same riot, and whether the evidence as to a second riot was prejudicial on the trial of the charge relating to the first riot, but Chief Williams has disclaimed any suggestion that the appellants were prejudiced and we do not consider that any such suggestion could be upheld. The whole of the events of which evidence was given took place in the course of a demonstration organised by the Nigerian Union of Railwaymen, of which the first appellant is President and the rest either officials or members for the purpose of drawing attention of the management of the Nigerian Railway Corporation to certain demands made by the Union, and the riotous behaviour near the loco workshops arose out of the determination of the appellants and others to compel all railway workers to join in the demonstration and accompany them to the General Manager’s office. This is made quite plain by the instructions which were issued by the Union and produced in evidence as Exhibit 5. In the circumstances there was no prejudice to the appellants in having the whole story in evidence.
The next ground argued concerned the second and fourth appellants. One H. P Adebola was charged jointly with the appellants and acquitted, and the submission was that the evidence against these two appellants was virtually identical with and certainly no stronger than that against Adebola and that if he was acquitted they should have been. It will be enough to say that we are unable to accept this submission.
The last two grounds concerned the conviction of the first and fifth appellants on the charge of assault. No—one identified the actual persons who assaulted Jubrila Junaid, and the two appellants could only be convicted of the assault on the ground that they counselled or procured it. There is no doubt that at some stage of the not each of these two appellants was giving general incitements to commit assault, but we consider, with respect, that the learned judge failed to make it clear on what pieces of evidence he was relying, and we do not know whether he convicted them on the strength of these general incitements or on the ground that they gave some incitement which led directly and immediately to the assault on Junaid. In the latter case we think it arguable whether the evidence would have supported the finding as regards the first appellant and it would certainly not have done so as regards the fifth. In the circumstances the appeal against the conviction on this count will be allowed.
Having allowed the appeal on these grounds, we need not rule on the submission that it was “unfair” to convict on the count for assault after counsel for the prosecution had said that he was not “pressing” it, but subject to the power of the Director of Public Prosecutions to discontinue a prosecution, it is undoubtedly competent for a Judge to convict on any charge which is properly before him, and defending counsel should not too readily assume that there will be no conviction merely on the strength of a remark of the kind made in this case.
In the result, the appeals of all the appellants against their conviction on count 1 is dismissed. The appeals of the first and fifth appellants against their conviction on count 2 are allowed, their convictions and sentences on that count are set aside and judgments of acquittal are entered.
Appeals on 1st count dismissed.
Appeals of 2nd and 5th appellants on 2nd count allowed.