Duru V Inspector-general Of Police (1965)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN JSC 

The appellant was prosecuted for an offence under section 225A (1)(a) of the Criminal Code, which provides that-

“Every male person who (a) knowingly lives wholly or in part on the earnings of prostitution … shall be liable to imprisonment for two years.” etc.;

he was convicted by the magistrate, lost his appeal to the High Court, and appealed to the Supreme Court. The charge against him was that during February, 1964, at the Roosevelt Hotel, Enugu, he knowingly lived in part on the earnings of the prostitution of four women named in the charge. A police constable went to the hotel about 7 p.m. on the 24th February, 1964 and spent two hours on observation duty. Men came in and spoke to the women; he knew neither the men nor the women; a man and a woman would go to a room and shut themselves in, and after a time they would come out again. That was the constable’s evidence. One of the women named in the charge gave evidence that she lodged in the hotel, paying 5s-6d a day to the manager; she had no work but a boyfriend gave her money for rent-30s, a week. Another of those women, also unemployed, paid 5s-6d a day for lodging in the hotel; she also had the money from a boy friend; but it is not clear whether he gave her 5s-6d a day and £1 a week besides, or only £1 a week in all. The third woman called also said that she paid 5s 6d a day for sharing a room with another woman, and depended on a boy-friend for money for the rent; he gave her 15s and she had come with some money of her own.

The appellant gave evidence denying that he lived in part on the earnings of any prostitute. He agreed that the women who had been called by the prosecution were lodgers in his hotel, but both men and women came to stay, and he did not control any lodger’s movements; he had nothing to do with prostitutes. He charged the men 10s-6d a day as men did not like sharing rooms; he did not know that men came to those women lodgers at night, or that they were prostitutes; and if any lodger failed to pay, the lodger was not allowed to stay. That makes up the whole evidence.

The learned magistrate was of opinion that the appellant must have known that those women were prostitutes; in particular one of them had been staying in his hotel for some six months; and he made every one of them pay her rent daily.

The judgment goes on- “And this is where section 225A(3) of the Criminal Code comes in.” That provides as follows-

“Where a male person is proved to live with or to be habitually in the company of a prostitute or is proved to have exercised control, direction, or influence over the movements of a prostitute in such a manner as to show that he is aiding, abetting or compelling her prostitution with any other person or generally, he shall unless he can satisfy the court to the contrary, be deemed to be knowingly living on the earnings of prostitution.”

The magistrate states that-

“The prosecution case has shown me that the accused influences the women prostituting in his hotel by letting rooms to them and demanding daily rents from them and he holds the threat of them that they would be ejected if they didn’t pay these rents. He said so himself on oath. This is in my opinion such influence over the prostitutes as makes the provision of section 225A(3) applicable and the accused has not proved to my satisfaction that he does not live in part on the earnings of p.w.2, p.w.3 and p.w.4 and so I find him guilty on this charge.”

The appeal was heard by the learned Chief Justice of the Eastern Region, who thought that although the evidence might have been better, still there was enough to support the conclusion that those women were not living a wholesome life; and his judgment goes on-

“The evidence, such as it is, although negative in character, does help the prosecution to the extent that it showed these women were staying in the hotel, without any visible means of earning a livelihood, paying exorbitant rent and saying that they were being maintained by men whose identities have not been disclosed. It is not enough to mention names without mentioning an address where they could be traced by the police; and none of them even came to give evidence.

Appellant’s counsel also relied on R. v. Silver [1956] 1 W.L.R. 281. I have already dealt with this case in R. v. Louis Okoro decided this morning where it was pointed out that R. v. Silver was not followed in R. v. Thomas [ 1957] 2 All. E.R. and rejected by the Court of Criminal Appeal and the House of Lords in Shaw v. D.P.P., 45 Cr. App. R.I find no substance in the appeal and it is dismissed.”

The learned State Counsel who appeared before us, after reading Shaw v. D.P.P. in the Law Reports [1962] A.C., 220, and in the light of argument for the appellant, said he could not support the conviction on either of the judgments. We thought they could not be supported and allowed the appeal, and are now giving short reasons for so doing out of deference to the learned Chief Justice.

Prostitutes, no less than others, require food, clothing, and shelter, and must need pay for them with the earnings of prostitution. If the grocer were to be guilty of living in part on such earnings by selling food to them, he must refuse to sell and they must either beg for food or starve. It is good sense to say that he is not guilty when selling to them in the ordinary way of his business. Likewise with a landlord who lets a house, flat, or room, to a prostitute for residence in the ordinary way of letting. For him to be guilty when letting to a prostitute, there must be something peculiar and sinister about it, as for example in R. v. Thomas (above) where the letting was for the use of a room by a prostitute between 9 p.m. and 2 a.m. at £3 per night-a plain case of letting to a prostitute for the purpose of prostitution and living on her immoral earnings. But in the present case there was nothing to show that the appellant was letting rooms to prostitutes otherwise than in the ordinary way of his business; neither was there any evidence that he was charging the prostitutes in the guise of rent sums beyond any normal commercial rent for rooms in his hotel.

There is no warrant in the evidence for the learned Chief Justice saying that the rent was exorbitant. And we note that he did not adopt the learned magistrate’s view that the case was caught in subsection (3), which the magistrate strained into a novel application.

Those were the reasons for which, guided by Shaw v. D.P.P. (supra), at the hearing on September 22nd, we allowed the appeal, set aside the judgments of conviction and ordered an acquittal to be entered and the fine if paid to be refunded.

Other Citation: (1965) LCN/1206(SC)