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REX
V.
NGWU OBUKA
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
15TH DAY OF JANUARY, 1936
2PLR/1936/54 (WACA)
OTHER CITATION(S)
2PLR/1936/54 (WACA)
(1936) III WACA P. 2
LEX (1936) – III WACA P. 2
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
BUTLER LLOYD, J.
GRAHAM PAUL, J.
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BETWEEN:
REX — Respondent
AND
NGWU OBUKA — Appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Slave dealing and child stealing – Power of Appeal Court under Section 11(2) of Ordinance No. 47 of 1933 to substitute verdict of guilty of an offence not charged – How treated
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ORIGINATING COURT(S)
APPEAL FROM CONVICTION BY HIGH COURT.
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DECISION OF THE WEST AFRICAN OURT OF APPEAL
Held (Allowing the appeal while quashing the conviction and discharging the appellant):
1. The evidence for the prosecution, if it had been believed by the trial Judge, would have established an offence under the first count, but not under the second. But the trial Judge acquitted all three accused on the first count and convicted them all on the second.
2. The Crown has not attempted to support the conviction of the appellant on count two. In view of the acquittal on count one by trial court, it is not possible for the appellate Court to substitute a conviction on count one.
3. The Crown’s application to the Court to exercise its power under section 11(2) of the West African Court of Appeal Ordinance, 1933, and substitute a verdict of guilty of an offence contra section 365 of the Criminal Code and sentence the appellant accordingly will not be exercised unless it is clear trial Judge must have been satisfied of facts which proved appellant guilty of suggested substituted offence.
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MAIN JUDGMENT
The following judgment was delivered: per KINGDON, C.J., NIGERIA.
In this case the appellant was charged together with two women on a first count with slave dealing contra section 369(2) of the Criminal Code, and on a second count with child stealing contra section 871(1) and (2) of the Criminal Code.
The evidence for the prosecution, if it had been believed by the trial Judge, would have established an offence under the first count, but not under the second. But the trial Judge acquitted all three accused on the first count and convicted them all on the second, sentencing the appellant to seven years I.H.L.
On the appeal the Crown has not attempted to support the conviction of the appellant on count two. Nor in view of the acquittal on count one is it possible for this Court now to substitute a conviction on that count.
The Crown does however ask that the Court will exercise its power under section 11(2) of the West African Court of Appeal Ordinance, 1933, and substitute a verdict of guilty of an offence contra section 365 of the Criminal Code and sentence the appellant accordingly. This Court could only take such action if it appeared to it that the trial Judge must have been satisfied of facts which proved the appellant guilty of an offence contra section 365 of the Criminal Code. The Court is not so satisfied and consequently will not make the substitution suggested.
The appeal is allowed. The conviction of the appellant is quashed and he is discharged.
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