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REX
V.
DARE
WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAAGOS, NIGERIA
13TH DAY OF MAY, 1939
2PLR/1939/40 (WACA)
OTHER CITATION(S)
2PLR/1939/40 (WACA)
(1939) V WACA PP. 122 – 124
LEX (1939) – V WACA PP. 122 – 124
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BEFORE THEIR LORDSHIPS:
BUTLER LLOYD, AG. C. J.,
STROTHER-STEWART, AG C. J.,
BAKER, J.
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BETWEEN:
REX — Appellant
AND
DARE — Respondent
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ORIGINATING COURT
Case Stated by High Court
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REPRESENTATION
E. A. Akerele — for accused
C. N. S. Pollard — for Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Case stated under section 19 of Criminal Procedure Ordinance – Slave dealing contrary to section 369(3) of Criminal Code – Accomplices – Whether includes a victim of crime
CONSTITUTIONAL AND HUMAN RIGHTS LAW:- Slave dealing and servitude — Use of one’s own child as a pawn in consideration for a loan
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PRACTICE AND PROCEDURE ISSUE(S)
EVIDENCE:- Evidence of an accomplice — Legal effect — Evidence of victim of a crime — Whether constitute evidence of an accomplice
WORDS AND PHRASES:- “Accomplice” — Meaning of
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CASE SUMMARY
One Dada, in consideration of a loan of 30s. advanced by accused, handed over to the accused his son Musa to remain with him as a pawn until the said sum of 30s. was re-paid. The learned Judge held that the boy Musa was not an accomplice on the ground inter alia that he was a victim.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
1. The boy Musa could not be an accomplice in a crime of which he was the victim but did not commit, and for whose protection the law was enacted;
2. The learned trial Judge was correct in his decision that he was not an accomplice.
Rex verses Sanni Ladipo cited but not followed.
Case remitted to trial Court for judgment.
Cases referred to:-
Rex verses Verleuil and Whelan.
Rex versus Cramp (14 Cox Criminal Cases).
Rex versus Isaac Opesus (Not Reported).
Rex versus Sanni Ladipo (4 W.A.C.A. 119).
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MAIN JUDGMENT
BAKER, J.
This is a question of law reserved for the consideration of the West African Court of Appeal upon a case stated under section 191 of Cap. 20 of the Laws of Nigeria.
The facts of the case (which are not disputed) are that one Dada in consideration of a loan of 30s. advanced by the accused Dare, handed over to the accused his son Musa (a boy of some fourteen years) to work for him and to remain as a pawn with the accused until the said sum of 30s. was repaid.
Dare the accused was subsequently charged with an offence contrary to section 369 (3) of the Criminal Code which reads a: follows:-
”Any person who places or receives any person in servitude as a pledge or security for debt whether then due and owing, or to be incurred or contingent, whether under the name of a pawn or by whatever other name such person may be called or known-is guilty of slave-dealing.”
Upon the trial of the accused the learned Judge who tried the case held that the boy Musa who was given in pawn was not an accomplice stating,
”He was not an accomplice on the ground inter alia that he was a victim”
He states he relied on a case before the West African Court of Appeal R. v. Isaac Opesusi and Others – 5th June, 1937. Subsequently before the defence was heard Counsel drew the Court’s attention to a judgment in the case of R. v. Sanni Ladipo which the West African Court of Appeal decided in August 1938 and which reads as follows:-
“In this case one of the grounds of appeal is that the learned trial Judge was wrong to convict on the uncorroborated evidence of accomplices, and we think that this ground must be upheld. The only evidence is that of the father who gave his three sons into servitude and of the three sons themselves. There is no suggestion that any of the sons went otherwise than willingly, and they were therefore, in our opinion, accomplices just as the father was. The trial Judge gave himself no warning in regard to the lack of corroboration. In fact the learned Counsel for the Crown informs us that the trial Judge did not regard the sons as accomplices. Following the decision in R. v. Norris (12 Cr. App. Rep. p. 156), we feel compelled to quash the convictions. The convictions and sentences are quashed and it is directed that in each case a judgment and verdict of acquittal be entered. The accused is discharged.”
The learned trial Judge thereupon came to the conclusion that he was faced with two conflicting decisions of the Appellate Court and has submitted for our consideration the question whether he was correct in law in deciding that the witness Musa was not an accomplice.
I am of opinion there is no confliction inasmuch as in the former quoted case R. v. Isaac Opesusi and others the Appellate Court held that a person blackmailed could not be an accomplice; this is a well-established rule of law and needs no further comment and cannot be held to be in conflict with the decision in R. v. Sanni Ladipo.
With regard however to this latter case of R. v. Sanni Ladipo the Appellate Court, of which I was a member, had not the advantage of seeing a report of a recent judgment of the Court of Criminal Appeal in the case of R. v. Verteuil and Whelan or of hearing the long and exhaustive arguments propounded by Crown Counsel which it has been the privilege of this Court to hear. In the case of R. v. Ladipo the question of the pawnees being accomplices was not seriously contested by Counsel for the Crown and I myself had I had the advantage of listening to the able arguments advanced by Crown Counsel in this case and of seeing the judgment in R. v. Verteuil and R. v. Whelan would have come to an entirely different decision.
An accomplice has been defined by Denman J. in the case of R. v. Cramp (14 Cox Criminal Cases) as a person who takes part in a crime and is privy to the criminal intent done, and in my opinion the test in a question such as the present one is could the person alleged to be an accomplice be charged with the offence. The section 369 (3) under which the accused is charged deals and deals only with a person who places or receives any person in servitude as a pledge, etc. there is no reference whatever to the person pledged and section 7 of the Penal Code in my opinion carries us no further.
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