Rex V. David Edgal & Ors (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Abortion, supplying drugs to procure, contra. sec. 230 of Criminal Code—Section considered by Appeal Court—Meaning of word ” unlawfully ” therein—Sec. 4 of Criminal Code Ordinance and sec. 12 of the Protectorate Courts Ordinance 1933 dealing with common law of England considered by Appeal Court.

Held: The word ” unlawfully ” has same meaning as in England,

B. v. Bourne followed, and appeals dismissed.

There is no need to set out the facts.

0. Alakija for first and second Appellants.

Third Appellant not present.

C. N. S. Pollard for Crown.

The following judgments were delivered :—

In this case the three appellants and one other person were all charged before Ames, Assistant Judge, in the High Court of the Enugu-Onitaha Division of the Protectorate at Onitsha each under two counts. The first count against all the accused was for the manslaughter of a woman named Victoria Uduigwome of which they were all acquitted; in the case of each accused there was another count for ” supplying drugs to procure abortion contrary to section 230 of the Criminal Code.”

The fourth accused was acquitted on this count also, but the three appellants were all convicted of this offence and sentenced the first two to six months imprisonment with hard labour and the third to three months imprisonment with hard labour.

The particulars of the offence alleged in the case of the first appellant were : —

 ” David Cristopher Edgal, on or about the 8th day of ” December, 1937, in the Onitsha Piovince unlaw” fully supplied or procured for Victoria Uduigwome ” a mixture containing ” Abai soko ” leaves, blue ” powder, ” Unie ” seeds and ” Kaun ” (potash), ” or some of the said substances, knowing that the ” said substances or some of them were intended to ” be used unlawfully to procure the miscarriage of ” the said Victoria Ul duigwome.”

and in the case of the second :

” Okainma Idike on or about the 8th day of December, ” 1937, in the Onitsha Province, unlawfully supplied ” or procured for Victoria Uduigwome a mixture ” containing Abaisoko leaves, knowing that the said ” Mixture was intended to be used unlawfully to “procure the miscarriage of the said Victoria ” Uduigwome.”

and in the case of the third :—

” David Ojogwu, on or about the 8th day of December, ” 1937, in the Onitsha Province, unlawfully supplied ” or procured for Victoria Uduigwome a mixture ” containing Unie seeds and Kann (potash) or either ” of the said substances, knowing that the said ” substances or either of them were to be used ” unlawfully to procure the miscarriage of the said ” Victoria Uduigwome.”

It was no part of the prosecution case that any of the substances alleged to have been supplied or procured were poisonous or noxious. But the prosecution relied upon the wide wording of section 230 of the Criminal Code which is as follows :—

” Any person( who unlawfully supplies to or procures for ” any peon anything whatever, knowing that it is ” intended to be unlawfully used to procure the mis” carriage of a woman, whether she is or is not with ” child, is guilty of a felony, and is liable to ” imprisonment for three years.

” The offender cannot be arrested without warrant.”

and founded the case simply on the evidence that these ” things ” were procured or supplied by the accused with the knowledge that they were intended to be unlawfully used to procure the miscarriage of the woman. The learned trial Judge found that these allegations were proved and convicted accordingly.

On appeal the first two appellants were represented by counsel, and the same arguments are applicable in the case of all three appellants. Counsel for the appellants virtually rested his case on one argument, namely that, on the authority of Rex v. Isaacs (1862), 9 Cox Criminal Cases 228; 169 English Reports 1371, the thing supplied must be noxious in its nature and he relied upon the words used by Pollock, C.B. in quashing the sonviction in that case :—

” A mere guilty intention is not sufficient to constitute ” a crime. There must be an intent coupled with ” an overt act tending to the perpetration of the ” crime. The administration of pure water is no ” offence within the section under which this woman ” was indicted.”