Appeal Court, 5th May,
1941.
Appeal from conviction by High
Court.
Appellants convicted of taking
part in a riot contra. section
71 of Criminal Code-Appeal on
ground that since third accused
was acquitted the information
was left without any averment of
one of the essentials of a riot,
namely, that at least three
person.~ took part in it ..
Held: Under section 30 of
Criminal Procedure Ordinance and
rules t (3), (4) and (5) of
Criminal Procedure Rules, such
an averment is unnecessary.
Appeal dismissed.
There is no need to set out the
facts. Cases cited:-
R v. Plu1n1ner
(1902) 20 Cox 629.
R v. William Beach and Arthur
Morris
(1909) 2 C.A.R. 189.
C. W. Reece
for Crown.
Sir William Geary (Soetan
and Wells Palmer with
him) for Appellants.
The following joint judgment was
delivered:-
KINGDON, C.J., NIGERIA; PETRIDES,
C.J., GOLD COAS'l" GRAHAM PAUL,
C.J., SIERRA LEONE.
This is an appeal from the
conviction of the appellants by
Ames, Assistant Judge, on the
following charge:-
Riot, contra. section 71
Criminal Code.
P ABTICUUBS
Mathew Ojo, Jacob Jalugbo and
Jegede Lemodu on the 6th day- of
January,
1941, at I1esha in the Oyo
Province, took part in a riot.
The ground of appeal relied on
at the hearing of the appeal
IS:-
"The learned Judge was wrong in
law in convicting the two
appellants of the offences of
riot as charged having found
third accused
not guilty of the same
offence." .
Mr Reece, Crown Counsel, stated
he could not support the
conviction for the reasons given
in the ground of appeal. He
cited in support the cases of
Rex versus Plurnmer (1902)
20 Cox, 629,
Rex
and Williarn Beach and Arthur
Morris (1909) 2 Criminal
Appeal Report
189.
Mr Soetan, Counsel for the
appellants adopted his
contention.
These two cases were decided
before the passing of the
Indictments Act, 1915.
Section 3 of that Act and
Rule 4 of the Rules made
under that act specify what
indictments shall contain.
Similar provisions apply in
Nigeria by reason of the
Criminal Code and the rules
made thereunder.
Section 30 of the Criminal
Procedure Code provides:-
" (1) Every charge or
information shall contain,
and " shall be sufficient if
it contains a statement of
the specific "offence or
offences with which the
accused is charged,
"together with such
particulars as may be
necessary for " giving
reasonable information as 00
the nature of the charge.
" (2) Notwithstanding. any
rule of law or practice, a "
charge or information shall,
subject to the provisions of
this " Ordinance, not be
open to objection in respect
of its form " or contents if
it is framed in accordance
with the rules under " this
Ordinance."
Rules 4 (3) (4) and (5) of
the Criminal. Procedure
Rules are as follows: -
" 4 (3) The statement of
offence shall describe the
offence " shortly in
ordinary language, avoiding
as far as possible the " use
of technical terms, and
without necessarily stating-
all " the essential elements
of the offence, and if the
offence "charged is one
created by enactment shall
contain a " reference to the
section of the enactment
creating the offence.
" (4) After the statement of
the offence particulars of
such " offence shall be set
out in ordinary language, in
which the " use of technical
terms shall not be
necessary:
" Provided that where any
rule of law or any Ordinance
"or. statute limits th~
particulars of an offence
which are " required to be
given in a charge or
information, nothing in "
this rule shall require any
more particulars to be given
than •• those so required.
'.' (5) The forms set out in
the appendix to these rules
or •• forms conforming
thereto as nearly as may be
shall be used " in cases to
which they are applicable,
and in other cases " forms
to the like effect or
conforming' thereto as
nearly as "may, shall be
used, the statement of
offence and the "particulars
of . offence being varied
according to the "
circumstances in each case."
Section
71 of the Criminal Code under
which the appellants were
convicted provides that " any
person who takes part in a riot
is guilty of a felony."
The essential ingredients of a
riot are contained in section
69. Before a person can be
convicted of the offence of
taking part· in a riot all these
essentials have to be proved. In
our opinion there is ample
evidence on the record to
establish that the defendants
did take part in a " riot"
within the meaning of that
section.
We are satisfied that it is
'1lOt necessary under the
Nigeria Criminal Procedure Rules
to aver in the information all
or an~' of the essentials of a "
riot" as these are specifically
imported into the charge by the
reference to the section of the
Criminal Code. All that is
necessary to aver is that the
accused did take part in a "
riot" and then it becomes a
matter of proof that there was a
,riot " and the accused did take
part in the riot the subject
matter of the charge. There
appears to us to be nothing in
the rules. that requires when" A
" is charged with taking part in
a riot that it should be averred
in the information " A " and at
least two others did take part
in a riot. Holding this view it
seems to us immaterial that one
of .the three accused was
acquitted. The appeal is
therefore dismissed . |