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Appeal Court. 13th' May. 1939. Case Stated by High Court.

Case stated under section 191 of Criminal Procedure Ordinance-Slave dealing contrary to section 369 (3) of Criminal Code-Who are accomplices.

E. A. A kerele for accused.

C. N. S. Pollard for Crown.

One Dada. in consideration of a loan of 30s. advanced by accused. handed over to the accused his son Musa to remain with him as a pawn until the said sum of 30s. was re-paid. The learned Judge held that the boy Musa was not an accomplice on the ground inter alia that he was a victim.

Held: That the boy Musa could not be an accomplice in a crime of which he was the victim but did not commit. and for whose protection the law was enacted; and that the learned trial Judge was correct in his decision that he was not an accomplice. Rex verses Sanni LadiPo cited but not followed.

Case remitted to trial Court for judgment. Cases referred to :Rex verses Verteuil and Whelan.

Rex versus Cramp (14 Cox Criminal Cases). Rex versus Isaac Opesusl (Not Reported). Rex versus Sanni LadiPo (4 W.A.C.A. 119).

The following judgments were delivered :BAKER, ].

This is a question of law reserved for the consideration of the West African Court of Appeal upon a case stated under section 191 of Cap. 20 of the Laws of Nigeria.

The facts of the case (which are not disputed) are that one Dada in consideration of a loan of 30s. advanced by the accused Dare, handed over to the accused his son Musa (a boy of some fourteen years) to work for him and to remain as a pawn with the accused until the said sum of 30s. was repaid.

Dare the accused was subsequently charged with an offence contrary to section 369 (3) of the Criminal Code which reads as follows :-

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."

Upon the trial of the accused the learned Judge who tried the case held that the boy Musa who was given in pawn was not an accomplice stating

He was not an accomplice on the ground inter alia that he was a victim ".

He states he relied on a case before the West African Court of Appeal R. v. Isaac Opesusi and Others-5th June, 1937. Subsequently before the defence was heard Counsel drew the Court's attention to a judgment in the case of R. v. Sanni LadiPo which the West African Court of Appeal decided in August 1938 and which reads as follows:-

.• In this case one of the grounds of appeal is that the learned trial Judge was wrong to convict on the uncorroborated evidence of accomplices, and we think that this ground must be upheld. The only evidence is that of the father who gave his three sons into servitude and of the three sons themselves. There is no suggestion that any of the sons went otherwise than willingly, and they were therefore, in our opinion, accomplices just as the father was. The trial Judge gave himself no warning in regard to the lack of corroboration. In fact the learned Counsel for the Crown informs us that the trial Judge did not regard the sons as accomplices. Following' the decision in R. v. Xorris (12 Cr. App. Rep. p. 156), we feel compelled to quash the convictions. The convictions and sentences are quashed and it is directed that in each case a judgment and verdict of acquittal be entered. The accused is discharged."

The learned trial Judge thereupon came to the conclusion that he was faced with two conflicting decisions of the Appellate Court and has submitted for our consideration the question whether he was correct in law in deciding that the witness Musa was not an accomplice.

I am of opinion there is no confliction inasmuch as in the former quoted case R. v. Isaac Opesusi and others the Appellate Court held that a person blackmailed could not be an accomplice ; this is a well established rule of law and needs no further comment and cannot be held to be in conflict with the decision in R. v. Sanni Ladipo.

With regard however to this latter case of R. v. Sanni Ladipo the Appellate Court, of which I was a member, had not the advantage of seeing a report of a recent judgment of the Court of Criminal Appeal in the case of R. v. Verteuil and Whelan or of hearing the long and exhaustive arguments propounded by Crown Counsel which it has been the privilege of this Court to hear. In the case of R. v. Ladipo the question of the pawnees being accomplices was not seriously contested by Counsel for the Crown and I myself had I had the advantage of listening to the able arguments advanced by Crown Counsel in this case and of seeing the judgment in R. v. Verteuil and R. v. Whelan- would have come to an entirely different decision.

An accomplice has been defined by Demnan J. in the case of R. il. Cramp (14 Cox Criminal Cases) as a person who takes part in a crime and is privy to the criminal intent done, and in my opinion the test ina question such as the present one is could the person alleged to be an accomplice be charged With the offence. The section 369 (3)" under which the accused is charged deals and deals only with a person who places or receives any person in servitude as a pledge, etc. there is no reference whatever to the person pledged and section 7 of the Penal Code in my opinion carries us no further.

Numerous cases have been quoted to us setting out the principle that a 'person cannot be convicted of an offence committed upon himself the more important of these cases being R. v. Cramp cited above, R. v. Tyrell 1894 LQ.B.p. 710, R. v. Crocker C.A. Report Vol. XVII p. 46, R. v. Graham Crim. Reports p. 218, R. v. Dimes 76J.P. p. 26 and latterly the case of R. v. Verteuil and Whelan which came before the Court of Criminal Appeal last year; in this case the Lord Chief Justice referred to the trial Judge's summing up as one in which the trial Judge treated one Guylee (who had been prevailed upon to provide money to another with the intent to interfere with the course of justice)

•. as an accomplice rather than a victim and that by treating him in that way was to give to the defence a benefit which was not deserved. It amounted to regarding Guylee as an accomplice in the crimes by which he was intended to be and was in fact defrauded."

Can it be said that Musa was an accomplice in a crime which it is true to say he never committed, the sole purpose of the said crime being that he should be the victim, similarly, that a person for whose protection the legislature enacted the section may be an accomplice to an offence under the section ?

I am of opinion that the answer to these two questions is that Musa cannot be an accomplice in a crime of which he was the victim but did not commit, and for whose protection the law was .enacted. For the above reasons I am satisfied that the learned trial Judge was correct in his decision that Musa was not an accomplice and I am of opinion that the cause should be remitted back to the trial Court to do therein as shall be just and consistent with this judgment.