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REX
V.
KANT EZUMA
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAG0S, NIGERIA
2ND DAY OF JANUARY, 1941
2PLR/1941/64 (WACA)
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OTHER CITATION(S)
2PLR/1941/64 (WACA)
(1941) VII WACA PP. 7 – 8
LEX (1941) – VII WACA PP. 7 – 8
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
BUTLER LLOYD, J.
BAKER, J.
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BETWEEN:
REX – Respondent
AND
KANT EZUMA – Appellant
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ORIGINATING COURT(S)
APPEAL FROM CONVICTION BY HIGH COURT
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REPRESENTATION
Appellant not present
C. W. Reece — for Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Fabricating evidence contra. Section 120(1) Criminal Code Conviction for counselling or procuring the commission of perjury Section specially excludes – How properly treated
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal and quashing the conviction) that:
1. The particulars were framed as though the words ‘any means other than’ were omitted from the section, and that the charge instead of coming within the section is, in terms, excluded from it.
2. The appeal against the conviction on count one allowed, and therefore the conviction and sentence passed upon that count are quashed.
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MAIN JUDGMENT
The following joint judgment was delivered:
KINGDON, C.J., NIGERIA; BUTLER LLOYD AND BAKER, JJ
In this case the appellant was convicted on two counts, the first for fabricating evidence, contrary to section 120(1) Criminal Code and the second for corruption of witness, contrary section 121(1) Criminal Code. He was convicted on both counts and sentenced to four years I.H.L. on each count the sentences to run concurrently. He has sought leave to appeal against both convictions.
The conviction on the second count was based on the clearest evidence and leave to appeal on that count has been refused. But the conviction on the first count is clearly wrong. The section read as follows:
”Any person who with intent to mislead any tribunal in any judicial proceeding –
(1) fabricates evidence by any means other than perjury or counselling or procuring the commission of perjury;
• • •
is guilty of a felony, and is liable to imprisonment for seven years.”
The particulars given of the alleged offence in this case are:-
That Kanu Ezuma on 30th September, 1940, at Umuagigo, Aba Division, in the Province of Owerri, in the Aba Judicial Division, with intent to mislead the High Court of the Aba Judicial Area, holden at Aba, knowing that Mesiak Onyenma Ahuekwe was being called as a witness for the prosecution at the trial of Rex versus Kanu Ezuma, fabricated evidence by counselling or procuring the said Mesiak Onyenma Ahuekwe to commit perjury.
It is clear that the particulars are framed as though the words ‘any means other than’ were omitted from the section, and that the charge instead of coming within the section is, in terms, excluded from it. The appeal against the conviction on count one is allowed, the conviction and sentence passed upon that count are quashed, and it is directed that upon count one a judgment and verdict of acquittal be entered.
The conviction and sentence upon count two stand good.
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