Anowele And G. Nwafor V The State (1965)

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BAIRAMIAN, J.S.C. 

The two appellants and two others were convicted –

(1) of conspiracy to commit the felony of housebreaking and stealing;

(2) of breaking into a store, contra to section 413 of the Criminal Code;

(3) of stealing goods from the store, contra section 390;

(4) of being in possession by night of housebreaking Instruments, contra section 417(c);

(5) of being in possession of two smooth-bore firearms having a barrel which had been shortened or manufactured to a length of less than twenty inches, contrary to section 27 of the Firearms Act; (6) of being in possession of cartridges contra section 9(1) of the Firearms Act

The appellants’ learned counsel does not question the conviction on counts 1, 2 and 3. In regard to count 4, he admits that the 1st appellant, in whose portmanteau the crowbar and hammer were found, was rightly convicted, but argues that as no housebreaking instrument was found in the possession of the 2nd appellant, it was wrong to convict him under count 4.

Mr. Emembolu for the State referred to Reg. v. George Thompson (1869) 11 Cox, 362. there the trial court reserved the question whether the possession of housebreaking implements by one of two persons for a common object is the possession of each; and the Court of Crown Cases Reserved, after hearing argument for the prisoner, said as follows –

‘The possession of one is the possession of all. Under the Game Laws it has been held that where several persons go out poaching in the night time, and one is armed with a gun, all are armed: (See Reg. v. Goodfellow and others, 1 Den. C.C.81).

We adopt that view: it is but common sense. The conviction of the 2nd appellant on count 4 was sound.

When, however, we come to count 5, on the possession of pistols, the matter is not so simple. The conspiracy was to burgle; but pistols are not normally used as tools for breaking in. The 1st appellant had them at either hip, slung by a rope which went round his neck; they were under his coat. It is not clear from the evidence that they were visible, and we must take it In favour of the 2nd appellant that they were not. Kaine J. observed generally that:-

“I have to say in a nutshell that there is abundance of evidence against the four accused persons that four of them were working together and I have therefore no difficulty in finding the four accused guilty of the six counts of the charge preferred against them, for the possession of them is deemed to be the possession of others.”

He did not consider the specific question, under count 5, whether the 1st appellant was armed as part of an agreement to have firearms for use, If necessary, at the burglary, to resist arrest There may not have been any such agreement; the 1 st appellant may have armed himself unbeknown to the others; none of the others carried any weapon. On the whole we think that the conviction of the 2nd appellant on count 5 was not right; and this applies also to his conviction on count 6 (the possession of cartridges; it was the 1st appellant who had them).

Both appellants have appealed against sentence. Their complaints is that it was wrong to make the terms of seven years on the 1st count of conspiracy and of fourteen years on the 2nd count of storebreaking run consecutively on the ground that they were in substance one transaction. Mr Emembolu concedes that it is unusual, and we think that the complaint is just.

The Court orders as follows –

(a) The appeal of Chukwueloka Anowele against conviction in the Onitsha charge 0/37C/64 is dismissed.

(b) The appeal of George Nwafor against confiction under that charge is dismissed so far as counts 1, 2, 3, and 4 are concerned; it is allowed in regard to counts 5 and 6, and in regard to these counts 5 and 6 a verdict of acquittal shall be entered.

(c) The terms imposed on Chukwueloka Anowele shall run together, but otherwise the High Court order on sentence shall stand.

(d) The terms imposed on George Nwafor in regard to counts 5 and 6 are quashed; the terms on counts 1, 2, 3 and 4 shall stand but they shall run together.

Other Citation: (1965) LCN/1270(SC)