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AKABEZE ADINNA AND OTHERS
V.
CHIEF CONSERVATOR OF FORESTS
WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
14TH DAY OF APRIL, 1950
2PLR/1950/14 (WACA)
OTHER CITATION(S)
2PLR/1950/14 (WACA)
(1950) XIII WACA PP. 37 – 38
LEX (1950) – XIII WACA 37 – 38
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BEFORE THEIR LORDSHIPS:
BLACKALL, P.
LEWEY, J.A.
ADEMOLA, J.
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BETWEEN:
AKABEZE ADINNA AND ELEVEN OTHERS – Appellants
AND
CHIEF CONSERVATOR OF FORESTS – Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. CR. APP. 3166/50
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REPRESENTATION
Wachuku — for Appellants
Amachree — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
AGRICULTURE AND FOOD LAW:- Criminal charge of encroaching upon a Forest Reserve preferred against members of a community – Building and houses and farming thereon – How treated
CRIMINAL LAW AND PROCEDURE:- Accused person charged jointly – Circumstances in which separate trials should be ordered – Misjoinder of charges – Legal effect
ENVIRONMENTAL LAW – FOREST RESERVE:- Encroachment of forest reserve – Criminal prosecution for defiant trespass on forest reserve – Building of houses and farming – How treated
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CASE SUMMARY
The appellants were convicted by a Magistrate of encroaching upon a Forest Reserve. A number of other persons also charged were acquitted. On appeal to the Supreme Court four of the sixteen persons convicted were acquitted.
On appeal to this Court Counsel for the appellant argued that separate trials should have been ordered and that there had also been a misjoinder of persons. As to misjoinder the Supreme Court had held there had been a misjoinder of persons. At the original trial no application had been made for separate trials.
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DECISION(S) FROM THE CAUSE(S) OF ACTION
Held (dismissing the Appeal) that:
1. An application for separate trials should always be made at the outset of the trial, as unless this is done the trial Court is not enabled to exercise the judicial discretion vested in it.
2. In any event, the joint trial had occasioned no miscarriage of justice, and that the Magistrate had not lumped the evidence against the various persons was indicated by the fact that he acquitted a large proportion. The Supreme Court was wrong in holding that there was a misjoinder of persons.
3. The appellants were members of a community who encroached upon the Reserve, and although they did different acts the encroachment was the result of all those acts jointly and they were rightly joined in one indictment.
Cases referred to:-
(1) R. v. Grondkowski (1946), 1 All E.R. 559.
(2) R. v. Trafford, 109 E.R. 1011.
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MAIN JUDGMENT
The following Judgement was delivered:
BLACKALL, P.
The appellants were charged with a number of other persons with offences which may be described compendiously as encroaching upon a Forest Reserve. Seventeen were acquitted by the Magistrate, four had their convictions quashed on appeal by the Divisional Judge, and twelve had their convictions affirmed. These latter are the present appellants.
The ground of appeal is that there was a misjoinder of persons and that in the interest of justice the Judge should have ordered separate trials. It has been laid down in many cases and very clearly set out in that of Grondkowski (1) that when an application is made by a prisoner indicted jointly with another, that he should be tried separately, it must be made at the outset of the trial. “The Judge,” to quote the words of Lord Goddard, L.C.J., in the case mentioned, “must consider the interest of justice as well as the interests of the prisoners. It is too often nowadays thought, or seems to be thought, that the interests of justice means only the interests of the prisoners.” Unless the application for a separate trial is made at the outset the trial Court is not enabled to exercise the judicial discretion vested in it. But no such application was made.
On this ground alone the appeal fails; but even if an application for separate trials had been refused, this Court would not interfere unless it could be shown that a manifest injustice had been done to the prisoners. In the present case all the accused were represented by the same Counsel, and no application was made for separate trials. The Magistrate evidently went into the charges quite carefully and that he did not lump together the evidence against the various prisoners is indicated by the fact that he acquitted a large proportion of them. There is, therefore, nothing to show that any injustice was done by having a joint trial.
In view of our finding on the above points it is not necessary for us to decide whether there was misjoinder, but as the learned Divisional Judge held, there was, and as his decision, if allowed to stand, might have far-reaching consequences, we think it right to say, with all respect to the learned Judge, that this Court does not consider that there was misjoinder. There are many decisions on this point but it will be sufficient to refer to R. v. Trafford (2). In that case a number of persons were indicted for nuisance to a public canal navigation, and the jury found that the acts creating the nuisance were done by the defendants separately. But it was held that as the nuisance was the result of all those acts jointly the defendants were rightly joined in one indictment.
Now, in the present case the community of which the appellants were members encroached upon the Reserve, and defied the authorities who had constituted the Forest Reserve. It is true that some of them did so by building houses, and some of them by farming there, but the net result of this was an encroachment on the Forest Reserve. The view of this Court, therefore, is that they were properly tried together.
The appeal against conviction will be dismissed. Counsel for the appellants withdrew the appeal against the sentence, so there is no need to go into that.
Appeal dismissed.
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