Common Nuisance contrary to
section
234 (f) of the Criminal Code
False reports made to the
Police-Effecting public mischief
by causing police to waste
time-Acts tending to the prejudice
of the community.
The accused made a false report to
the police containing allegations
against named persons. The trial
Judge held that the facts of the
case would constitute the
misdemeanour of causing public
mischief at common law in England
but he held that offences under
the common law did not apply in
Nigeria unlessˇ provided for in
the manner set out in section 4 of
the Criminal Procedure Ordinance.
He therefore held, subject to the
opinion of the Appellate Court,
that no offence in law had been
disclosed. It is clear that the
learned Judge did not consider
that the act of the accused fell
within the meaning of section 234
(f)
of the Criminal Code.
Held: That the opinion of the
trial Judge was wrong and that the
act of the accused constituted an
offence against section 234
(f)
of the Criminal Code.
Case cited:
Rex v. Elizabeth Manley
(I. K.B. 529).
D. Hagley
for Crown. Appellant not present.
The following joint judgment was
delivered :-
BUTLER LLOYD, AG. c.J.,
NIGERIA, CAREY AND BROOKE, J].
One Thomas Udu was charged in the
Calabar-Aba Judicial Division of
the High Court with causing a
common nuisance contrary to
section 234 (f) of the
Criminal Code.
The particulars of the offence
alleged are : -
.. That Thomas Udu at about 12.25
p.m. on the 9th day of May, 1939,
at Aba, in the Aba Judicial
Division, did make a false report
to the Police to wit, .. that his
brother was mad, and for this
reason, the following people took
him on the night of the 3rd May,
1939, to make medicine for him,
(I) Uko Nwaekelegbu (2) Agimiri
Udo (3) Ayolonum Nwada and (4)
Alezuwa Udo, and when the day
broke on the night they took him
they brought his dead body on
which he, the accused, witnessed
some wounds" and act not warranted
by Law, causing officers of the
Nigeria Police stationed at Aba
and maintained at Public expense
for the Public benefit to devote
their time and services to the
investigation of a false
allegation, thereby causing
inconvenience or damage to the
public by temporarily depriving
the public of the services of
these public officers and
rendering liege subjects of the
King liable to suspicion,
accusation and arrest, and in so
doing did unlawfully effect a
Common Nuisance."
In answer to the charge the
accused said "I gave this
information to the police-it was
false."
Thereupon, having heard the
prosecuting Police officer, the
learned Judge, before whom the
trial was pending, not being
satisfied
that the particulars of offence
disclosed any offence in law,
postponed
judgment,
remanded the accused on bail and
stated a case for the
consideration of this Court on the
question of law therein reserved.
It appears from the case stated
that in the same Division of the
: High Court another Judge,
relying on the decision in
Rex v. Elizabeth
Ag. C.].,
Manty
(1933) I.K.B. 529, on facts
similar to those in this case,.
convicted persons charged under
the same section.
The question for this Court is
whether or not in law the trial
Judge was correct in his opinion
that the particulars of offence
as alleged and, in so far as the
act of the accused was
concerned, admitted, disclosed
no offence in law.
Section 234 en of the Criminal
Code reads as follows :-
" Any person who does any act
not warranted by law, or omits
to discharge any legal duty,
which act or omission obstructs
or causes inconvenience or
damage to the public in the
exercise of rights common to the
public is guilty of a
misdemeanour and is liable to
imprisonment for two years."
The offence is classified in the
Code, with the other
sub-sections of section 234, as
being a "Common Nuisance," and
indeed, as drafted, embraces
certain common or public
nuisances which as misdemeanours
of a public nature, are
indictable at Common Law in
England.
The learned Judge held that
though the facts of the case
would constitute the
misdemeanour of causing a public
mischief at Common Law in
England, such a Common Law
misdemeanour or any offence
under the Common Law of England
would not apply in this country
except expressly provided for in
the manner set out in section 4
of the Criminal Code Ordinance
(Cap. 21). He obviously meant
the Criminal Code Ordinance and
not the Criminal Procedure
Ordinance.
There can be no doubt that the
act complained of viz:
instigating a police
investigation of a false
accusation implying the
commission of a criminal
offence, was one not warranted
by law, and that it effected a
public mischief by causing the
police, as in
Rex v. Manley supra,
to waste time in the
investigation of false
allegations, and by exposing
certain members of the public to
suspicion and arrest.
On referring to the judgment of
Lord Hewart C.J. in
Rex v. Elizabeth Manley
one finds the following passages
:-
" It was then submitted on her
behalf, as it is submitted now,
that she had committed no
offence: but before that
proposition can be assented to
it is necessary, as Counsel for
the prosecution has indicated,
to consider two questions. The
first is whether it is true at
the present day to say that
there is a misdemeanour of
committing an act tending to the
public mischief. In our opinion
that question ought to be
answered in the affirmative. We
think that the law remains as it
was stated by Lawrence J. in
Rex v. Higgins.
All offences of a public nature,
that is, :111 such acts or
attempts as tend to the
prejudice of the community, are
indictable.
" The second question is whether
the appellant did acts which
constituted It public mischief.
As Counsel has said, the facts
stated in the indictment are not
in dispute, and it is admitted
that what is there alleged to
have been done by the appellant
was done by her. In the opinion
of the Court the indictment
aptly describes two ingredients
of public mischief or prejudice
to the community, one of these
being that officers of the
Metropolitan Police were led to
devote their time and services
to the investigation of an idle
charge, and the other being that
members of the public, or at any
rate those of them who answered
a certain description, were put
in peril of suspicion and
arrest."
It is to be noticed that" all
offences of a public nature" are
defined therein as " all such
acts or attempts as tend to the
prejudice of the community."
Section 234
(f)
of the Criminal Code embraces
all acts not warranted by law
which cause inconvenience or
damage to the public in the
exercise of their common rights,
in. fact constituting the
indictable Common La\v offences
which come within its ambit
offences under the Code seems to
us that the particulars of
offence in the present case
disclose an act on the part of
the accused tending to cause
inconvenience or damage to the
public in the exercise of their
common rights and that such act
constituted an offence contrary
to section 234
(f) of the Criminal Code.
Our
answer is therefore that the
opinion of the learned trial Judge
was wrong.
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