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INSPECTOR-GENERAL OF POLICE
V.
NWACHUKWU
SUPREME COURT OF NIGERIA
10TH DAY OF JULY, 1955
2PLR/1955/12 (SC)
OTHER CITATIONS
2PLR/1955/12 (SC)
LEX (1955) – F.S.C. 10/06
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BEFORE:
LOUIS NWACHUKWU MBANEFO, J
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REPRESENTATION
ACHIKe for appellant.
EBO for respondents
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ISSUES FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW:- Offence of Unlawful assembly – An assembly for which no licence had been issued under section 36 (2) and (3) of the Police Ordinance – Police Ordinance, sections 36 (4) and 38 – How treated
CONSTITUTIONAL AND PUBLIC LAW – FREEDOM OF ASSEMBLY OR PROCESSION:- Section 36 (4) of the Police Ordinance – When a place shall be deemed a place of public resort as distinct from a public place – Purpose of Section 36 of the Police Ordinance – Avoiding the disturbing or provoking members of the public who frequently use and are likely to be or are on the roads or at the places of public resort and so prevent disturbance or provocation likely to lead to a breach of the peace
EDUCATION AND LAW:- School Hall – Education facility – When used for public meeting – Whether does not necessarily become a place of public resort – Need to prove that members of the public go or hold meetings there habitually for it to fall under the category
REAL ESTATE AND PROPERTY LAW:- Property – Nature of use – When deemed a public place or a place of public resort – Effect under the Police Ordinance
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PRACTICE AND PROCEDURE ISSUES
INTERPRETATION OF STATUTE:- Section 36 (4) of the Police Ordinance – Proper interpretation thereof
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MAIN JUDGMENT
MBANEFO, J.:
This is an appeal by the Inspector-General of Police as Prosecutor against the judgment of the Magistrate, Grade I, Aba, acquitting and discharging the respondents on two counts of a charge under section 36 (2) of the Police Ordinance Cap. 172 Laws of Nigeria. On the 1st count the respondents were charged with convening, and on the 2nd count with taking part in an unlawful assembly, that is to say: an assembly for which no licence had been issued under section 36 (2) and (3) of the Police Ordinance.
The evidence showed that there was a report in a local newspaper, the Eastern States Express of 2nd December, 1954, to the effect that a mass meeting of the Ngwa people would take place in ‘All Saints Abayi Umuocham at 9 a.m. on Saturday 4th December, 1954. The 1st and 2nd Respondents were mentioned in the report as some of the speakers at the meeting.
On the 4th of December about 200 people assembled in the All Saints School Hall at Abayi Umuocham. Two members of the Police Force in plain clothes tried to enter the room but were refused admission as they were not natives of Ngwa. A report was made to the A.S.P.
Mr MacDonald who came with an Inspector. He entered the hall and saw the accused persons on the platform. He asked them if they had a licence for the meeting and they replied in the negative. He told them that the meeting was illegal and that they should disperse. The crowd were at first reluctant but eventually dispersed and went home. The respondents are all natives of Ngwa and at the material time were holding responsible positions in their local governments. The 1st respondent is the President of the Ngwa County Council. The 3rd respondent is the Chairman of the Education Committee and the 4th respondent is the Clerk of the Council.
The learned magistrate found that there was no evidence that the respondents convened the meeting, and, secondly, that the meeting was not an unlawful assembly within section 38 of the Police Ordinance in that, as he held, the School Hall was not a place of public resort within section 36 (4) of the same Ordinance. Taking that view he acquitted and discharged the respondents.
The only ground argued for the appellant is that the magistrate erred in holding that the school was not a “public place”. The ground as framed confuses “a place of public resort” with a “public place”. Section 36 of the Police Ordinance does not mention ‘public place”.
There is a difference between “public place” as defined in section 2 of the Criminal Code and “place of public resort” as used or defined in section 36 of the Police Ordinance. “Public place” as defined under the Code is any building place or conveyance, to which for the time being the public are entitled or permitted to have access either without any condition or upon condition of making any payment. It also includes any building or place which is for the time being used for any public or religious meeting or assembly. Under this definition even a private building could, for the time being, be regarded as a public place if during that time the public are entitled or permitted to have access thereto either without any condition or upon payment of a fee.
Under section 36 (4) of the Police Ordinance a place shall be deemed a place of public resort if the members of the public or of any particular class of the public may at any time obtain admission on payment or by general invitation for the purpose of music, drumming, assembly or procession. The right of the public or any particular class of persons to enter the place is not as restricted as it may be in the case of a public place. The purpose of section 36 of the Police Ordinance is to regulate music and drumming on occasions of festivals or ceremonies, and assemblies or processions, on public roads and places of public resort. The intention is to avoid disturbing or provoking members of the public who frequently use and are likely to be or are on the roads or at the places of public resort, such disturbance or provocation being likely to lead to a breach of the peace. A place which members of the public or of any class of the public do not normally frequent either on payment or any formal invitation could not, even for the time while the public are permitted to have access to it, be regarded as a place of public resort. For example, a private meeting hall would not become a place of public resort merely because some members of the public were allowed to congregate there at a given time. If it were otherwise any meeting of any members of the public would be an unlawful assembly unless a police licence was obtained beforehand. No town unions could meet anywhere without a police permit, and no trade unions could meet even in a warehouse at their place of employment without a police permit because the moment they assembled the place would, if the appellant’s contention were accepted, become a place of public resort. That is certainly not what the Legislature intended or meant. If it were where could the line be drawn between an unlawful assembly and a lawful one? If the Legislature intended that any congregation of members of the public would make any place a place of public resort and so render the meeting unlawful unless a permit was obtained it would have said so in very clear terms.
The right of the public to congregate at a place whether on payment or on invitation must acquire some regularity for a reasonable length of time before it could be a place of resort. To resort implies frequency or regularity. The phrase at any time” in section 36 9) does not mean one meeting. It is equivalent to “from time to time’ (see Strouds judicial Dictionary).
A school hall is not necessarily a place of public resort and it does not become one merely because one mass meeting is held there. To be a place of public resort there must be evidence that members of the public go or hold meetings there habitually, i.e., from time to time. The purpose of the Ordinance is to give a superior Police Officer power to regulate assemblies and processions on public roads and at places frequented by the public and not to give him power to pry into or interfere with all meetings wherever held.
Counsel for the appellant has argued that in considering the section the Court should take into consideration the purpose of the meeting. The purpose of the meeting is to my mind immaterial. A meeting in a private house does not make the house a place of public resort simply because the purpose of the meeting is to hatch a conspiracy or to commit a crime. Nor is the size of the building or premises a material consideration. The essence of the definition is the right of members of the public to enter the place at any time whether on payment or not.
The magistrate in my view is right on the evidence before him in holding that All Saints School Hall Abayi Umuocham was not a place of public resort and in dismissing the charge.
The appeal is therefore dismissed.
Appeal dismissed.
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