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REX
V.
JOHN ONI AKERELE
WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
8TH DAY OF MAY, 1941
2PLR/1941/5 (WACA)
OTHER CITATION(S)
2PLR/1941/5 (WACA)
(1941) VII WACA PP. 62 – 63
LEX (1941) – VII PP. 62 – 63
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
REX – Respondent
AND
JOHN ONI AKERELE – Appellant
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REPRESENTATION
C. W. Reece — for Crown
Sir William Geary with A. Alakija, Wells-Palmer and E. A. Akerele — for Appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Appeal against sentence of imprisonment for manslaughter — Conviction and sentencing arising therefrom — When will be quashed and substituted for a lower penalty — Relevant considerations
CRIMINAL LAW AND PROCEDURE:- Concurrent sentencing arising from two different counts which were based on same sets of facts — Validity of — Proper treatment of by appellate
HEALTHCARE AND LAW — DRUGS AND HERBALS:- Criminal prosecution for death arising from gross negligence in the concoction of drug mixture — Evidence of criminal negligence proved against accused practitioner — When will be ground for review of sentence made by trial court — Relevant considerations
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held: Appeal allowed as accused did not deliberately set out to break the law or harm a fellow being.
Option of a fine substituted for imprisonment with hard labour.
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MAIN JUDGMENT
The following joint judgment was delivered:
KINGDON, C.J., NIGERIA; PETRIDES, C.J., GOLD COAST, AND GRAHAM PAUL, C.J., SIERRA LEONE
The appellant was convicted in the High Court of the Manslaughter of a child named Kalu Ibe in circumstances more fully described in the judgment of this Court upon his appeal against conviction. He was sentenced to three years imprisonment with hard labour for that offence. At the same trial he was convicted upon the same facts, of an offence contrary to section 343(1)(f) of the Criminal Code and sentenced to a fine of £100 or twelve months imprisonment with hard labour, the sentences to be concurrent.
In view of the provisions of section 18 of the Criminal Code, the Court is of opinion that the sentence passed upon the third count after sentence had been passed upon the first count cannot be upheld, and the sentence passed upon the third count is accordingly quashed.
As to the sentence upon the first count, having regard to all the circumstances of this case, more particularly to the fact that this is not a case where a man has set out deliberately to break the law or harm a fellow being, and to the case for the prosecution, as submitted to this Court, that there was only one act of criminal negligence by the appellant, namely gross carelessness in concocting too strong a mixture of the drug he used, this Court has come to the conclusion that it is not necessary to send the appellant to prison without giving him the option of paying a heavy fee.
The appeal is therefore allowed, the sentence passed at the trial upon the first count is quashed, and in substitution therefor the appellant is sentenced to a fine of £500, or, in default of payment, to imprisonment with hard labour for twelve months.
ORDER
Appellant is to be allowed one month to pay the fine. During that period he may be admitted to bail upon entering into a Bond for £1,000 with two Sureties of £500 each approved by the Registrar of the Court.
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