Appeal Court. 23 April. 1936. ,Appeal from Convictions by High Court.

Slave dealing-Charges under both sections 369 (2) and 369 (3) of Criminal Code-Insufficient particulars of alleged offences.

Held: Convictions quashed owing to uncertainty as to which of two distinct  sets of facts was found by trial Judge.

The facts of this case are sufficiently set out in the judgment. W. Wells Palmer for Appellants.

E. O. Pretheroe for ,Crown.

 The following judgment was delivered :­KINGDON, C.J., NIGERIA.

  In this case, tried in the Enugu Division of the High Court, the two appellants were charged, together with first appellant's wife, named Nwashin Ede, under two counts, with slave dealing. A nolle prosequi was entered by the Crown in respect of the wife, but both appellants were convicted under each count and sentenced to three years' imprisonment with hard labour on each count, the sentences to run concurrently.

       The charge in the first count was for slave dealing contrary to section 369 (3) of the Criminal Code, which reads :-

           •• Any person who places or receives any person in servitude as a pledge or security for debt whether then due and owing. or to be incurred or con­tingent, whether under the name of a pawn or by whatever other name such person may be called or known is guilty of slave dealing."

And the particulars given were :-

" Chukwu Abia and Obasi Okoronwe and Nwashin Ede on or about the 20th day of January, 1936. in the Province of Onitsha placed or received Olife in servitude as a pledge or security for debt to be incurred, by the said Chukwu Abia."

The charge in the second count was for slave dealing contrary to section 369 (2) of the Criminal Code, which reads :-

•• Any person who deals or trades in, purchases, sells, transfers or takes any person in order or so that such person should be held or treated as a slave is guilty of slave dealing."

And the particulars given were :-

•• Chukwu Abia and Obasi Okoronwe and Nwashin Ede on or about the 20th day of January, 1936, in the Province of Onitsha dealt or traded in, purchased, sold, transferred or took Olife so that the said Olife should be held or treated as a slave."

In the case of each count the particulars given are not sufficiently Rex explicit to give the accused proper notice of the exact offences with Chukwu  which they were charged.      

This point is of considerable importance because there are two  possible sets of facts upon which the convictions might be based ... These are :-

(a) That first appellant handed his child, Olife, to second appellant, his near relation, for the second appellant to take to Aro-Chuku there to raise money by pledging or selling the child, that second appellant set out for Aro-Chuku with the child in pursuance of that object, but was apprehended and arrested before he reached Aro-Chuku.

(b) That first appellant placed his son Olife, in servitude with second appellant, and second appellant so received Olife.

 

The difficulty of ascertaining which of these two entirely different sets of facts the prosecution relied upon at the trial and which of them the trial Judge found to be proved is well exemplified by the fact that in this Court the learned Acting Solicitor-General shifted his ground completely from one to the other. At the first hearing he asked the Court to assume that the first set of facts was proved; and on that assumption he could not uphold any of the convictions for a substantive offence, but submitted that in each case the facts amounted to an attempt to commit the offence, contending that as soon as the first appellant handed over the child the attempt was complete. This contention raised a question of law as to the point at which preparation ceased and attempt began. But since this position has now been abandoned by the Crown that question no longer falls for decision by this Court. It may perhaps be added that if that set of facts had been held proved, though there might not be an attempt there would certainly be a conspiracy to commit a felony.

At the second hearing the Solicitor-General abandoned the first set of facts and asked the Court to hold the second set proved. On this set of facts, he could not uphold the conviction of second appel­lant on count one, but asked the Court to sustain the convictions of first appellant on both counts and of second appellant on count two. There are two fatal objections to this submission. The first is, as already indicated, that it is not clear that the trial Judge found this set of facts proved and the whole case against the appellants was so ambiguous that the convictions could not in any case be allowed to stand. And the second is that even if it were held proved that first appellant placed Olife with second appellant to serve second appel­lant, there is no evidence that he did so as a pledge or security for debt, or that second appellant received the child as a pledge or security for debt; nor is there any evidence that Olife was to be held by second appellant as a slave or treated by second appellant as a slave. If the second set of facts is accepted it simply amounts to this, that first appellant handed over his child to his relation to be brought up, and that is no offence.