Emmanuel Ogunsanya Onashile V. Daniel Adetayo Sami & Anor (1962)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN , F.J

The complainant in a private prosecution charged the two respondents and others with conspiring to make those others –

“do an act of a public nature which can only be done by persons authorized by law so to do, namely to select a candidate for the Olorilu of Okesopin Chieftaincy, and thereby committed an of-fence contrary to section 107(2) of the Criminal Code and punishable (under) section 516 of the Criminal Code.”

The learned Chief Magistrate held that those others, whom the two respondents conspired to introduce into the meeting of Kingmakers for the selection of the candidate although they were not Kingmakers, had no mens rea, and acquitted them; but he convicted the respondents, and they appealed.

Charles, J. pointed out, in a very brief judgment, that s. 107(2) did not create an offence of conspiracy, and quashed the conviction; hence the present appeal by the complainant. That, with respect, was taking too legalistic a view: when one looks at sections 166 to 168 of the Criminal Procedure Ordinance, and at sections 99 and 100 of the Western Region Magistrates’ Courts Law, one sees that a mistake or defect of that sort in the charge, which neither embarrassed nor misled the respondents in their defence, is not a sufficient reason for quashing a conviction. The nettle is, if a person who is not a Kingmaker takes part in the selection of a candidate for a chieftaincy, does he commit an offence under s.107(2) of the Criminal Code? and the nettle must be grasped.

Mr. Omotosho, for the appellant, has argued that he does. There is a Declaration of what the native law and custom is, which is registered under s. 8 of the Western Region Chiefs Law, 1957, and becomes binding. The argument is that a Kingmaker in the selection of a candidate performs an act of a public nature authorised by the Chiefs Law, and that a person who is not a Kingmaker under the Declaration but takes part in the selection assumes an authority which he has not, and is guilty under s.107 (2) of the Code.

It is a plausible argument, but it throws no light on the acts and the per-sons contemplated in s. 107(2). It will be convenient here to quote the entire section:-

107. Any person who –

(1)not being a judicial officer, assumes to act as a judicial officer; or

(2)without authority assumes to act as a person having authority by law to administer an oath or take a solemn declaration or affirmation or affidavit, or to do any other act of a public nature which can only be done by persons authorised by law to do so; or

(3)represents himself to be a person authorised by law to sign a document testifying to the contents of any register or record kept by lawful authority, or testifying to any fact or event, and signs such document as being so authorised, when he is not, and knows that he is not, in fact, so authorised;

is guilty of a felony, and is liable to imprisonment for three years.”

The offender cannot be arrested without warrant.

At the trial, counsel for the defendants argued that the section should be construed in the light of the rule known as ejusdem generis; and among other cases he cited A. G. v Brown. (1920) 1 K.B. 773, where that rule is canvassed at length. Dealing with it, the learned Chief Magistrate quoted the words of Lord Campbell, C.J. in R. v. Edmundson, (1859), 28 L.J. (M.C.) 213, at 215, that:–