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EMMANUEL OGUNDIPE AND OTHERS
V.
THE QUEEN
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
27TH DAY OF FEBRUARY, 1954
APPEAL NO. 14/1954
2PLR/1954/77 (WACA)
OTHER CITATION(S)
2PLR/1954/77 (WACA)
(1954) XIV WACA PP. 465 – 467
LEX (1954) – XIV WACA 465 – 467
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
AVERITY, C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
EMMANUEL OGUNDIPE AND OTHERS – Appellants
AND
THE QUEEN – Respondent
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ORIGINATING COURT(S)
Appeal by convicted persons:
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REPRESENTATION
F. R. A. Williams, with Ogunbanjo and Coker — for first Appellant
L. J. Dosunmu — for second and third Appellants
H. O. Davies, with M. Aluma and M. Kotun — for fourth Appellant
M. J. D. Smith — for the Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Criminal Code, section 422 — Conspiracy with others “By deceit or fraudulent means” to affect market price of anything public sold or to defraud the public — Proof of
EMPLOYMENT AND LABOUR LAW:- Criminal offence connected with labour spaces — Persons in position to influence members of a union labourers demanding higher rates — Offence under section 422 of the Criminal Code with conspiracy to extort — How treated
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CASE SUMMARY
The appellants, who were in a position to influence members of a union of labourers, demanded from contractors higher rates than had been usual; they were charged with an offence under section 422 of the Criminal Code with conspiracy to extort, and convicted.
The section makes it an offence in a person to conspire with another “by deceit or fraudulent means to affect the market price of anything publicly sold, or to defraud the public, or any person … or to extort any property from any person”.
It was submitted that there was no proof of “fraudulent means” having been used to extort the money demanded, but the learned Judge ruled that those words applied only to the words “to affect the market price of anything publicly sold” and no further. In the appeal the argument was on this point of construction.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
The words “by deceit or fraudulent means” govern all the words that follow, and it was necessary to prove that the conspiracy was to extort by deceit or fraudulent means.
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MAIN JUDGMENT
The following Judgment was delivered:
VERITY, C.J.,
These are appeals by certain persons convicted upon a charge laid under section 422 of the Criminal Code in that they were alleged to have conspired by fraudulent means to extort money from a certain person.
The facts stated very briefly are that the appellants, who were in a position to influence the conduct of members of a certain union of labourers, demanded from contractors who required the service of such labourers certain sums of money and higher rates of pay than had hitherto been paid in that particular trade. The appellants were charged with conspiracy to extort. It was submitted that their acts did not fall within the section in that there was no conspiracy to extort either by deceit or fraudulent means, but the learned Judge nevertheless convicted the appellants and sentenced them to varying terms of imprisonment, the first appellant receiving a sentence of four years’ imprisonment with hard labour.
The section appears in the Criminal Code in the following form:-
“Any person who conspires with another by deceit or fraudulent means to affect the market price of anything publicly sold, or to defraud the public, or any person, whether a particular person or not, or to extort any property from any person is guilty of a felony and is liable to imprisonment for seven years.”
It was submitted that in this case there was no proof of any fraudulent means whereby the appellants had conspired to extort the money they had demanded but the learned Judge held that such proof was not necessary for the reason that upon a proper construction of the section the words “by deceit or fraudulent means” have reference only to the first of the mischiefs at which the section is aimed, that is to say affecting the market price of anything publicly sold and that these words in no way govern or limit the application of the section either in regard to defrauding the public or extorting property from any person. The learned Judge arrived at this conclusion by reconstructing the section, inserting the letter (a) before the words” by deceit or fraudulent means” and the letters (b) and (c) before the words “to defraud the public” and “to extort any property” respectively. In so far as this process of reconstruction amounts to no more than clarifying the meaning placed upon the section by the learned Judge it is clearly permissible but it is not so if it be necessary in order to ascertain that meaning, for the Courts must construe the section as it is and not as they think it ought to have been.
Counsel for the appellants submitted that in so far as it may be permissible to reconstruct the section in the manner adopted by the learned Judge the letter (a) should be inserted after and not before the words “by deceit or fraudulent means”. Upon this construction it would be clear that these words are applicable to each of the three offences created by the section.
It is contended by Counsel for the Crown that the construction placed upon the section by the learned Judge is correct in that the use of the words “by deceit or fraudulent means” is necessary in order to import criminality into an act affecting the market prices of goods but is not necessary in the C8Sf’ of either defrauding the public or extorting money from any person, the words “defraud” and “extort ” in themselves implying deceit or fraud or some form of criminality. We are disposed to agree that the application of the words “by deceit or fraudulent means” may be tautological in regard to the definition of the offence of defrauding the public, although it is not necessarily so in regard to the offence of extortion, for in such sections as 99 or 428 of the Criminal Code neither deceit nor fraudulent means are involved in the offence of extortion created thereby. In any event we are not of the opinion that mere tautology is any reason for assuming ambiguity or for endeavouring to remove it by any reconstruction of the form of words used by the legislature. Were we to speculate upon the form of words which the legislature might have used more effectively to express the meaning placed upon the section by the learned Judge we might well be of the opinion that this would have been done by placing the words “by deceit or fraudulent means” after the words “to affect” when the limitation implied thereby would have been most clearly applicable to the offence of affecting the market prices of goods alone. The legislature, however, adopted no such form and we are impelled to construe the section in the form in which it was enacted. In doing so we are unable to reach any other conclusion than that the words “by deceit or fraudulent means” govern all the words that follow and that in order to prove the offence of extortion within the meaning of this section it is necessary to establish that the conspiracy was to extort by deceit or fraudulent means. However immoral or anti-social may have been the conduct of the appellants, however reprehensible having regard to the fact that the particular form of labour was required for an essential public service, we are unable to find that the appellants conspired to reach their aim by any deceit or fraudulent means. That there was a “ring” and that pressure was exerted to “squeeze” the would-be employers of labour as found by the learned Judge may be beyond doubt, but this is not enough to bring the acts of the appellants within the section and we think they were wrongly convicted.
The appeals must therefore be allowed, the convictions be quashed and the sentence set aside.
Although there was on behalf of the fourth appellant no more than an application for leave to appeal and we reserved our decision on this application until the appeals of the first, second and third appellants had been heard, we now treat this application as an appeal and allow his appeal also, quashing his conviction and setting aside his sentence.
Appeal allowed.
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