Appeal Court.
10th Sept., 1938.
Abortion,
supplying drugs to procure,
contra. sec. 230 of Criminal
Code-Section considered by
Appeal Court-Meaning of word
H unlawfully" therein-Sec.
4 of Criminal Code
Ordinance and sec. 12 of
the Protectorate Courts
Ordinance 1933 dealing
with common law of England
considered by Appeal Court.
Held: The
word "unlawfully" has same
meaning~ as in England,
R. v.
Bourne followed, and appeals
dismissed.
There is no
need to set out the facts.
O. Alakija
for first and second
Appellants.
Third
Appellant not present.
C. N. S.
Pollard for Crown.
The following
judgments were delivered:-
KINGDON, C.J.,
NIGERIA.
In this case
the three appellants and one
other person were all charged
before Ames, Assistant Judge, in
the High Court of the
Enugu-Onitsha Division of the
Protectorate at Onitsha each
under two counts. The first
count against all the accused
was for the manslaughter of a
woman named Victoria Uduigwome
of which they were all
acquitted; in the case of each
accused there was another count
for "supplying drugs to procure
abortion contrary to section 230
of the Criminal Code."
The fourth
accused was acquitted on this
count also, but the three
appellants were all convicted of
this offence and sentenced the
first two to six months
imprisonment with hard labour
and the third to three months
imprisonment with hard labour.
The
particulars of the offence
alleged in the case of the first
appellant were:-
H David
Cristopher Edgal, on or about
the 8th day of "December, 1937,
in the Onitsha PlIovince unlaw"
fully supplied or procured for
Victoria Uduigwome " a mixt:ure
containing "Abai soko" leaves,
blue "powder, "Unie" seeds and "Kaun"
(potash), " or some of the said
substances, knowing that the "
said substances or some of them
were intended to " be used
unlawful~ to procure the
miscarriage of the said Victoria
Uduigwome."
and in the
case of the second:-
" Okainma
Idike on or about the 8th day of
December, " 1937, in the Onitsha
Province, unlawfully supplied
"or procured for Victoria
Uduigwome a mixture " containing
Abaisoko leaves, knowing that
the said "mixture was intended
to be used unlawfully to '"
procure the miscarriage of the
said Victoria " Uduigwome."
and in the
case of the third:-
" David
Ojogwu, on or about the 8th day
of December, " 1937, in the
Onitsha Province, unlawfully
supplied "or procured for
Victoria Uduigwome a mixture "
containing Unie seeds and Kaun
(potash) or either "of the said
substances, knowing that the
said "substances or either of
them were to be used "
unlawfully to procure the
miscarriage of the said "
Victoria Uduigwome."
It was no
part of the prosecution case
that any of the substances
alleged to have been supplied or
procured were poisonous or
noxious. But the prosecution
relied upon the wide wording of
section 230 of the
Criminal Code which is as
follows: -
" Any person(
who unlawfully supplies to or
procures for " any person
anything whatever, knowing that
it is " intended to be
unlawfully used to procure the
miscarriage of a woman, whether
she is or is not with "child, is
guilty of a felony, and is
liable to " imprisonment for
three years.
" The
offender cannot be arrested
without warrant."
and founded
the case simply on the evidence
that these " things" were
procured or supplied by the
accused with the knowledge that
they were intended to be
unlawfully used to procure the
miscarriage of the woman. The
learned trial Judge found that
these allegations were proved
and convicted accordingly.
On appeal the
first two appellants were
represented by counsel, and the
same arguments are applicable in
the case of all three
appellants. Counsel for the
appellants virtually rested his
case on one argument, namely
that, on the authority of Rex
v. Isaacs (1862), 9
Cox Criminal Cases 228; 169
English Reports 1371, the thing
supplied must be noxious in its
nature and he relied upon the
words used by Pollock, C.B. in
quashing the conviction in that
case:-
" A mere
guilty intention is not
sufficient to constitute " a
crime. There must be an intent
coupled With "an overt act
tending to the perpetration of
the "crime. The administration
of pure water is no " offence
within the section under which
this woman " was indicted."
But that case
is essentially different from
the present in that the words of
the section of the English Act
(24 and 25 Vict. c. 1008. 59)
under which the woman Isaacs was
indicted are " whosoever shall
unlawfully supply or procure any
poison or other noxious " thing,
or any instrument or thing
whatsoever, knowing that the "
same is intended to be
unlawfully used or employed to
procure " the miscarriage of a
woman, etc. etc." and she. was
expressly indicted " for
supplying a certain noxious
thing." I agree with the view of
the learned trial Judge that
under section 230 of the
Criminal Code it is not
necessary to prove that the
thing is noxious. But tIle Court
itself raised the question as to
the meaning of the word
"unlawfully" which occurs twice
in the section, more especially
in view of the fact that the
Code nowhere specifically lays
down when the acts with which
the section deals may be done
lawfully or when they are
unlawful, and that section 4 of
the Criminal Code Ordinance
provides that
, , No person
shall be liable to be tried or
punished in any " Court in
Nigeria for an o:lfence except
under the "express provisions of
the Code, or some other "
Ordinance, or of some Order in
Council made by " His Majesty
for Nigeria, or under the
express pro" visions of some
statute of the Imperial
Parliament " which is in force
in, or forms part of the law of,
" Nigeria."
Fortunately
there has been a very recent
case in England which is of the
greatest assistance in
considering the meaning of the
word "unlawfully," namely Rex
v. Bourne in which the
meaning of the word as used in
section 58 of the Act 24 and 25
Viet. c. 100 was considered and
expounded by the learned trial
Judge. In that case the words
which had to be interpreted
were" whosoever, "with intent to
procure the miscarriage of any
woman, shall "unlawfulJy use any
instrument or other means
whatsoever" • ., • Counsel for
the defence, before opening his
case, asked the Judge to tell
the jury the meaning of the word
unlawful and the Judge
explaining to the jury his views
on the point raised is reported
in the Times of the 19th
July, 1938, to have addressed
them as follows:-
" As you have
heard, section 58 of the
Offences against "the Person Act
contains the word 'unlawful.' "
Counsel are agreed, and it is my
opinion, that the " word '
unlawful' is not a meaningless
word in that " section, and it
necessarily follows that there
may be "the procurement of
abortion which is lawful.
"Procuring an abortion has been
an offence long " before 1861.
It was an offence under the
Common " Law of England before
ever Parliament existed." .
Referring to
the section of the Act, the
Judge said:-
" It begins
by making it unlawful for a
woman to procure " her own
miscarriage. That undoubtedly,
has been " the law of England
from earliest times."
Dealing with
the case before him the Judge
said:-
" It is quite
true that there is no authority
on this matter. " So far as I am
aware the issue which you have
to " try is an issue that has
never before been raised. " In
modern times when it can be done
by a skilled .• person without
any risk to the patient, then, "
obviously, where that operation
is performed for "the purpose of
saving the life of the mother,
it " must be lawful."
The Judge
continued:
" The
direction which I propose to
give you is if you are "
satisfied by the evidence in the
case, when we have " heard it,
that :Mr. Bourne did not
terminate the " pregnancy of
this girl in good faith for the
purpose " of preserving the life
of the girl, you should find "
him guilty. If you think that
the Crown have not " proved the
negative which the law requires,
then " you should find him not
guilty."
And in his
summing up the Judge is reported
to have said
" :My view is
that • • • it has always been
the law that " on a charge of
procuring abortion the Crown has
" to prove that the act was not
done in good faith ., for the
purpose of preserving the life
of the " mother."
and
" The law of
the land had always held human
life to be " sacred, and the
protection the law gave to human
"life extended to the unborn
child. The unborn " child must
not be destroyed except for the
purpose "of preserving the yet
more precious life of the "
mother."
The word of
particular significance in these
quotations is the word "always."
The Judge was not making new
law, he was merely expounding
what ·in his. view has always
been the law, i.e. what
was the common law of England,
and that may be conveniently
tabulated as follows:-
1.
Human
life is held to be sacred and
the protection of the law given
to human life extends to the
unborn child.
2.
It is
unlawful to destroy the unborn
child except for preserving the
yet more precious life of the
mother.
3.
That
unlawful act is a punishable
offence.
By section 12
of the Protectorate Courts
Ordinance, 1!J3a, it is declared
that, subject to the terms of
that or any other Ordinance the
common law shall be in force
within the jurisdiction of the
Protectorate Courts.
This replaced
section 10 of the Provincial
Courts Ordinance (which was
enacted in 1914) declaring that,
subject to the terms of that or
any other Ordinance, the common
law should be, as far as
applicable, in force in the
Protectorate. If, therefore,
there is nothing to the
contrary, the items 1, 2, and 3
as they are tabulated above
apply to the Protectorate of
Nigeria.
What is the
effect of section 4 of the
Criminal Code Ordinance, already
quoted, which was enacted in
1916?
In my view it
has no effect on the first two
items tabulated, Human life
remains sacred and it continues
to be unlawful to destroy the
unborn child except for
preserving the mother's life. It
is only the third item which is
affected. The unlawful act in
question is no longer punishable
as a misdemeanour at common law;
instead three sections are
enacted in the Code prescribing
the punishment as a felony for
this unlawful act and connected
offences; moreover by section
297 of the Code it is enacted:-
" A person is
not criminally responsible for
performing " in good faith and
with reasonable care and skill a
"surgical operation upon any
person for his benefit " or upon
an unborn child for the
preservation of the " mother's
life, if the performance of the
operation " is reasonable,
having regard to the patient's
state " at the time and to all
the circumstances of the "
case."
It would
indeed have made the
interpretation of these sections
easier if the Code had included
a specific declaration of when
it is lawful and when unlawful
to procure miscarriage. in the
same way all is done in respect
of a number of other matters
e.g. murder (section 306),
carnal knowledge (section 6),
gaming (section 236). Hut the
omission does not, in my view,
imply that the legislature
intended that all procuring of
miscarriage should be lawful
because it did not expressly
declare any to be unlawful, for
in other sections the word
"unlawfully" is used and not
defined. when to place a similar
construction upon the enactment
would be absurd e g.
section 360, indecent assault;
and 364, kidnapping. Nor 00 J
think that by an oversight the
legislation enacted has had the
effect of leaving all acts of
procuring miscarriage lawful.
The omission of a definition or
a declaration merely throws the
enquirer back to ascertain what
is the law of. the land in
regard to when it is lawful and
when unlawful to procure a
miscarriage, This question had
never arisen for decision even
in England until the case of
Rex v. Bourne: now it has
arisen and been answered. and
the answer is that It is
unlawful except for the purpose
of preserving the life of the
mother. That in my view is the
law in Nigeria as well as in
England, and it follows that,
since in the present case there
is no suggestion of the only
lawful purpose, the appellants
were rightly convicted and their
appeals should be dismissed.
The case is
one involving a difficult and
important question of law and
the Court is of opinion that it
is convenient that separate
judgments should be pronounced
by each of the Judges. The
judgments of my learned brethren
are about to be delivered and as
they are to the. same effect as
the judgment I have just
pronounced the judgment of this
Court is that the appeals are
dismissed.
CAREY J.
There is no substance in the
grounds of these appeals.
With regard to the question
raised in this Court, as to
whether or not the procuring of
an abortion in this country i8
unlawful, it was only after much
deliberation, I arrived at, what
I now believe to be, the correct
answer.
It has always been an offence
against the common law of
England to procure the
miscarriage of a woman.
Section 12 of the Protectorate
Courts Ordinance applies the
common law to the Protectorate
of Nigeria subject to the terms
of any Ordinance.
Section 4 of the Criminal Code
Ordinance in conjunction with
'
sections 228-230 of the
Criminal Code, enables Courts in
Nigeria to try and punish
persons for unlawfully
attempting to procure abortion
and for unlawfully supplying or
procuring substances knowing
that such 8ubstances are
intended to be used unlawfully
to procure the miscarriage of a
woman.
In my opinion therefore the
learned trial Judge properly
convicted the three appellants,
and their appeals should be
dismissed.
GRAHAM
PAUL, J.
I have had the privilege of
reading the judgment of the
learned President of the Court
and I agree with that judgment.
I wish to add only a few remarks
in regard to the point raised at
the hearing of the appeal as to
the use and the effect of the
word " unlawfully" occurring in
section 230 of the Criminal
Code.
The Criminal Code Ordinance
according to its preamble was
intended to " declare
consolidate and amend" the
criminal law. One would expect
that a draftsman charged with
carrying out that intention of
the legislature would so frame
the Code that it would be in
itself a complete self-contained
Criminal Code, necessitating no
reference at all to the common
law or statute law of England.
In some parts of the Code that
object has been achieved- e g.
murder, manslaughter, assault,
etc.
In sections
228, 229 and 230 however that
object has not been achieved.
These sections, subject to a
qualification, declare certain
things to be felonies and
punishable as such.
The
qualification in each of these
sections is that the things
specified in order to constitute
an offence must be " unlawfully"
done, and the draftsman has
omitted to specify what he means
by " unlawfully." "Unlawfully"
is not defined and it is
impossible to find out expressly
within the four corners of the
Code the circumstances in which
these things are" unlawfully"
done.
Apart from
section 297 there is no
indication in the Code of the
circumstances in which any of
these things may be " lawfully"
done, and that section relates
only to surgical operations.
These
omissions to my mind mean that
as regards sections 228, 229 and
230 the draftsman has failed to
carry out the intention
expressed in the preamble.
In the recent
English case of R. v. Bourne
there is no doubt that the
accused was charged with an
offence under the express
provisions of section 58 of the
offences against the Person Act,
but that section contained the
same qualifying word "
unlawfully" and in directing the
jury the Judge had to explain in
what circumstances according
to the common law the things
specified in section 58 were"
unlawfully" done.
By section 12
of the Protectorate Courts
Ordinance the common law of
England " subject to the terms
of any " Ordinance" is
declared to be in force in
Nigeria, and there can be no
doubt that apart from the terms
of section 4 of the Criminal
Code Ordinance the position in
Nigeria as regards the word "
unlawfully" in sections 228, 229
and 230 would be the same as in
the Bourne case-i.e. the
Court would have to consider
whether under the common law of
England the accused had done the
things" unlawfully" according to
the common law of England.
Section 4 of
the Criminal Code Ordinance is
as follows:-
" No person
shall be liable to be tried or
punished in any " court in
Nigeria for an offence except
under the "express provisions of
the code, or some other ,.
Ordinance, or of some Order in.
Council made by " His Majesty
for Nigeria, or under the
express pro" visions of some
statute of the Imperial
Parliament " which is in force
in, or forms part of the law of
" Nigeria." ,
"Provided
that in the case of an offence
"committed before the
commencement of this .,
Ordinance the offender may be
tried and punished
" either under
the law in force when the offence
was " committed or under the code,
provided that the "offender shall
not be punished to any greater "
extent than was authorised by the
former law."
Here it cannot
be contested that the appellants
were charged, tried, and punished
under the express provisions of
the code--i.e. under section' 230.
Although in that section the
draftsman took what I think may
without unfairness be described as
the indolent course of using the
word "unlawfully" and leaving it
to the Courts to discover and
apply the common law of England on
the subject, instead of inserting
a section declaring and
consolidating and possibly
amending as regards Nigeria the
common law of England on the
point. The appellants having been
tried and punished under the
express provisions of the Code,
section 4 of the Criminal Code
Ordinance has been complied with,
and that section cannot operate to
vitiate the convictions which have
resulted from the correct
application of the common law of
England to the facts of the case.
In short the
word " unlawfully " in section 230
must be taken to have some
meaning. It cannot mean"
unlawfully as in this Code
defined" for there is no
definition. It must therefore be
taken to mean "unlawfully
according to the law in force in
Nigeria by virtue of section 12 of
the Protectorate Courts Ordinance
"-that is to say the common law of
England. It is impossible to
contend on the evidence in this
case that the proved intention to
procure abortion by the use of the
things supplied was conceived by
the mother or by any of the
parties concerned with a view to
save the life or even to safeguard
the health of the mother, and it
follows therefore that the things
in question were supplied or
procured by the appellants
knowingly in order that they might
be unlawfully used to procure the
miscarriage of a woman.
The question
raised as to the meaning of the
word
" unlawfully"
has given me considerable
difficulty but the question must,
I think, be answered in favour of
the Crown. I agree that there is
no substance in any of the other
points raised on behalf of the
appellants and that the appeals
must therefore be dismissed.
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