Appeal Court. 14th May, 1938. Appeal from conviction by High Court.

 Attempt to pervert justice contra. section 126 (2) of Criminal Code-Insufficiency of Evidence-Act must be dangerous or offensive.

Held: Appeal!! allowed, convictions qualified, etc.

There is no need to set out the facts. C. N. S. Pollard for Crown.

Appellants in person.

The following joint judgment was delivered:-

KINGDON, C.J., NIGERIA, CAREY AND GRAHAM PAUL, JJ.

The appellants (the second and third accused) were convicted with the first accused by the Judge of the Enugu-Onitsha Division of the High Court on the 9th March, 1938, of perverting justice contrary to section 126 (2) of the Criminal Code. The time within which to give notice of appeal was extended and leave given to appeal against sentence and conviction.

1'he learned Crown Counsel did not oppose these applications and did not endeavour to support the convictions.

The particulars of the offence as charged were as follows:-

"Ngene Nwegbuaba and Egbuaba Odo and Ogbu " Nwegbuaba on or about the night of the 16th day of " January, 1938, in the Province of Onitsha, attempted in a "manner not specially defined in the Criminal Code, to " obstruct, prevent, pervert or defeat the course of justice by " placing charms or jujus in the Idodo Native Court House in " order to influence the District Officer and Court members in " their favour in their determination of a suit in which they, " the said N gene Nwegbuaba and Egbuaba Odo and Ogbu " Nwegbuaha, were concerned."

The section under which the charge is laid reads:-

.. Any person who attempts in any way not specially " defined in this code, to obstruct, prevent, pervert, " or defeat, the course of justice is guilty of a misdemeanour, and is liable to imprisonment for two " years."

 The facts as found by the trial Judge shortly are that the three accused persons in the night of the 16th January, 1938, placed " magic" powder in the Court room of the Idodo Native Court with the intention of influencing the District Officer and Court members to enter a favourable judgment in respect of litigation in which the first accused· was directly concerned and the second and third accused were indirectly concerned ..... That by so doing each accused attempted by supernatural means to pervert the course of justice contrary to the section quoted. The accused persons put some black powder on the table and chairs in the Court room as a charm in order that the District Officer should decide the case in which they were interested in their favour.

One of the messengers of the Court stated that he took the black powder to be bad medicine and a rest house caretaker said " we were afraid to touch the black powder. I t was swept off."

The trial Judge accepted that the first appellant said " We did not bring any poison to kill any, but medicine to make the white man give judgment in our favour," and that the second appellant said " We went into the Court room so that the white man should decide the case in our favour." In so far as the record discloses, apart from an exhibit to which we shall refer presently, that was the whole substance of what was alleged in regard to the properties or nature of the powder. A messenger of the Idodo Native Court produced and tendered in evidence a record of the Idodo Native Court. The trial Judge admitted and read this and marked it as " Exhibit B." That was a record of the trial of the same accused persons by the Native Court on a charge of bring­ing into the Court house obnoxious and illicit medicine with criminal intent of ruining the Council members and the staff on the night of 16th January, 1938. The District Officer in his revisory capacity noted on the record "Judgment 'ultra 'Vires. Case transferred to the High Court. Accused charged contra. Criminal Code section 126."

Evidence given before the Native Court in that case does not constitute evidence against the accused persons on their trial in the High Court. :For -what purpose, if any, that record was admitted in evidence does not appear, but, in view of the only evidence in the High Court trial regarding the acts of the appellants an(l the powder it does seem from the finding of the trial Judge that he must have been influenced by the evidence given in the Native Court when he says" They" (the accused) " have " in fact committed a very serious offence and are fortunate that " they were not charged under section 126 (1) of the Criminal Code. " The gravity of the wrong doing lies in the fact that the authority " of the Native Court in reference was attacked and might well " have been destroyed had the accused not been apprehended. If " the prestige of these Native Courts is permitted to be attacked " with impunity they will cease to function-Exemplary sentences , are indicated."

Because of this alone the conviction of the appellants cannot stand, but apart from this, it seems advisable to point out that a person may lawfully hold a belief, whether based on superstition or not, that by some intrinsically innocuous and inoffensive act he can influence a decision of a Court in his favour. The mere doing of such an act in this case cannot constitute an offence against section 126 (2) of the Criminal Code.

The appeal against convictions of both appellants is allowed, their convictions are quashed and it is directed that a judgment and verdict of acquittal be entered.