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FEDERAL SUPREME COURT, NIGERIA.
28th November, 1961
SUIT NO. FSC 297/1961
CRIMINAL LAW: Provoking a Riot – Attempt to Procure the Commission of a Riot – Whether conviction requires proof of an actual riot
CRIMINAL LAW: Substitution of charge at the appellate level – Principles guiding the substitution of original charge and punishment at appellate level – Criminal Code, Cap. 42 section 7 (d) –
CRIMINAL LAW: Conviction by Native Court of Provoking a Riot – Whether substitution with conviction of Attempting to Procure the Commission of a Riot substituted by High Court substantially prejudiced defence – Criminal Code Cap. 42, section 513 (1)
PRACTICE AND PROCEDURE: Principles guiding the substitution of original charge or conviction secured at the trial by an appellate court with different ones
SHARIA LAW: Substitution under N.R. Native Court Law, 1956 (N.R No. 6 of 1956), section 67(1)(b)(iii)
ETHICS – POLITICAL ACTORS: Prosecution for inciting the commission of an offence by political supporters targeted at securing political advantage
Thanni, for the Appellant
Lewis, O.C. Solicitor-General, Northern Nigeria (with him Belgore, Crown Counsel) for the Respondent.
UNSWORTH, F.J. (Delivering the Judgment of the Court):
The appellant in this case was charged before the Alkali at Bornu with provoking members of a political party to take part in a riot contrary to ss.7 (d) and 71 of the Criminal Code.
The evidence as given by the first witness before the Alkali was that on the night of the 10th August, 1960 the appellant at a meeting attended by about 80 people said:
“My party supporters; tomorrow the 11th of August, 1960 there will be a trial of our party supporters, i.e., B.Y.M. before the Alkali of Uje II Maiduguri when Alkali pass his judgment wrongly against our supporters, this time you must be prepared with your weapons and everyone of the N.P.C. members stab them with your knives as well as you would including the Alkali himself any death happen I will be responsible.”
The evidence of this witness was supported by two further witnesses, who told substantially the same story, though the actual words alleged to have been used were not identical.
The appellant did not give evidence, for reasons which appeared in the record and are explained in the judgment in the Appellate Division of the High Court. The appellant appealed to the Appellate Division of the High Court of Northern Nigeria, where it was argued that the offence had not been established as it was not found in evidence that the riot actually took place. The Appellate Division accepted this submission and altered the conviction to one of attempting to procure the commission of a riot contrary to s. 513(1) of the Criminal Code. The sentence was reduced from three years to 18 months. In taking this course the Appellate Division said that they were satisfied that the defence of the appellant before the court of first instance would not have been substantially affected if he had been charged before the Chief Alkali with an offence contrary to s.513(1). The Appellate Division exercised these powers in accordance with the provision of &67(1)(b)(ill) of the Native Courts Law, which provides that any court exercising appellate jurisdiction in criminal matters under the provisions of the Native Courts Law may, in the exercise of that jurisdiction:
(iii) after hearing the whole case or not and whether in whole or in part substitute any other decision (whether as to guilt or punishment) which the court of first instance could have made but so that, by the decision so substituted, the appellant shall not be found guilty of any offence of which he was not accused before the court of first Instance, unless the appellate court is satisfied that the defence of the appellant before the court of first instance would not have been substantially affected If he had been so accused.
The appellant appealed to this Court and his Counsel put forward very much the same arguments as were made before the Appellate Division of the High Court. He said that the evidence did not prove that a riot took place and submitted that mere intention could not constitute an offence under s.513 (i). He also submitted that the evidence of the witnesses as to what the appellant said, varied with the different witnesses, and argued that the actual words alleged must be proved in order to establish a case under s.513(1) of that Code. He added, in reply to a submission by the Solicitor-General, that the offence ought not to have been altered in the Appellate Division of the High Court as the defence was substantially affected within the meaning of the Native Courts Law.
The Solicitor-General drew attention to the difference between an attempt to commit a crime under ss.509 and 510 of the Criminal Code and an attempt to procure the commission of an offence within the meaning of s. 513 of that Code. He submitted that the latter section is similar to the offence of incitement to commit a crime and referred to R. v. Cope, 16 Crim. App. R. 77, and other cases referred to in Archbold (33rd Edition) at p. 1488.
We accept the submission of the Solicitor-General and are satisfied that the evidence given by the witnesses before the Alkali was sufficient to establish the offence of attempting to procure the commission of a riot. We do not think that there is substance in the point that the defence was prejudiced by the alteration in the charge. The evidence would have been exactly the same if the appellant had been charged in the first instance with an offence contrary to s.513 and there is no reason to believe that the appellant’s attitude before the Alkali’s Court would have been any different if he had been charged under that section instead of s.71.
We have carefully considered the evidence of the witnesses who gave evidence before the Alkali. The substance of the evidence is the same and the differences in detail are such as one would expect to find in the evidence of truthful witnesses who are giving an account to the best of their recollection, of what took place at a meeting.
For the reasons given in this judgment the appeal is dismissed.