Rex V. Akpan Inyang Nta & Ors (1946)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law—Criminal Procedure Ordinance, section 183—Previous and subsequent trials—Consequences supervening or not known at previous trial—Duplicity.

Where, as in this case, the appellants were convicted of rescue, riot and serious assault, they were properly convicted also of murder of a constable who was killed during the riot.

In the particular circumstances of this case, the killing of the constable was not, as the appellant contended, a consequence caused by the riot within the meaning of section 183 of the Criminal Procedure Ordinance, but even assuming it was, before the section could apply it must be shown that the riot and the killing of the constable together constituted the offence of murder.

Case referred to:

(1) R. v. Noku, 6 W.A.C.A. 203.

Appeal from the Supreme Court of Nigeria.

Williams for Appellants.

Cole, Crown Counsel, for Crown.

The following joint judgment was delivered:

The appellants were convicted of the murder of a constable, Charles Nwaigwe of the Nigeria Police.

The deceased and five other constables had been sent to Urua Ebom market on duty, in the course of which they had occasion to make some arrests. Because of this, a large number of people in the market rioted, in opposition to the action of the police. The constables were put in fear of their lives and had to leave the market. Five of them got away safely. The sixth, who was the deceased; got separated from the five and was set upon and killed. The eight appellants (and two others who were acquitted) were tried, on information, before Abbott, J., and convicted of murder.

Previously to this trial for murder of the constable, they (and thirty-two others) had been tried on a charge of rescue contra section 134 (1) (b) of the Criminal Code, riot contra section 71 and serious assault contra section 356 (2), and convicted in a summary trial in the Supreme Court before Renner, J. At the time of this summary trial, the constable was, of course, dead, and the fact that be was, known by the trial Judge. This is the basis of the first ground of appeal (against the conviction for murder) which is:-

” 1. The learned Judge erred in law in holding that section 183 of the Criminal Procedure Ordinance does not constitute a bar to the charge before the Court.”

Section 183 reads as follows:-

” A person acquitted or convicted of any offence constituted by any act or omission causing consequences which together with such act or omission

constitute a different offence from that for which he was acquitted or convicted may afterwards be tried for such last mentioned offence if the consequences had not happened or were not known to the Court to have happened at the time when he was acquitted or convicted when such consequences create the offence of murder or manslaughter.”

Mr. Williams’ argument for the appellants on this ground can be summarised as follows. The appellants rioted and were convicted of rescue, riot and serious assault. The killing of the constable was caused by and a consequence of the riot. The killing is a different offence from the riot. The killing had happened, and was known to the Court to have happened, when the appellants were tried and convicted of riot. Therefore, the provisions of section 183 precluded their subsequent trial for murder.

In our opinion the argument is fallarious. It overlooks the words ” . . . consequences which together with such act . . . “. The argument is that the killing of the constable was a consequence of the riot. We do not agree that it was ” a consequence ” which was ” caused ” by the riot within the meaning of the section. But assuming that it was, before the section applies it is necessary for the cause (the riot) and the consequence (the killing of the constable) together to constitute the different offence (of murder). This shows the fallacy of the argument as far as the conviction for rescue and riot are concerned. Neither the rescue nor the riot is capable of being joined to the so-called consequence so as together to constitute a different offence.

As regards the third offence, serious assault, for which they were convicted, Mr. Williams’ argument comes nearer to the mark, and would have had substance in it had the appellants been convicted of a serious assault upon constable Charles Nwaigwe. That was not the case, however. They were convicted on the following charge:—

Statement of Offence, Third Count

Serious Assault, con. to section 356 (2) of the Criminal Code.

Particulars of Offence

Akpan Inyang Nta, and thirty-nine others, on 13th day of October, 1945, at Urua Ebom Market, in the Province of Calabar, in the Calabar Judicial Division, assaulted Police Officers while acting in the execution of their duty.

This charge would appear to have been bad for duplicity : because an assault on an unspecified number of persons is not one offence but the equivalent unspecified number of separate offences. That point was not taken at the trial and there has been no appeal. So we must deal with it as it is. In our opinion it is not possible to take a conviction for a serious assault upon an unspecified number of unnamed constables (the learned Judge’s finding neither specified the number nor ascertained their names) and add to it the subsequent death of constable Charles Nwaigwe and to say that together the different offence of murder is constituted. The two are no more capable of being combined than in the case of the conviction for rescue and the conviction for riot. The convictions for rescue, riot and serious assault did not import any offence against this constable which could be joined to the fact of his death at the hands of some of the rioters so as to constitute, together, the different offence of murder of the constable. Part of Mr. Williams’ argument on this point was that bad the appellants been charged with Murder from the start, instead of riot, they could have been found not guilty of murder and convicted of riot, under the provisions of section 119. We do not agree with this. The decision of this Court in the case of Rex v. Noku (1) shows that on a charge of murder of the constable the appellants could not have been convicted of an act intended to cause him grievous harm; nor could they have been in jeopardy of conviction for rescue, riot or serious assault.

Appeals dismissed.