Rex V. Kanu Ezuma (1941)

LawGlobal Hub Judgment Report – West African Court of Appeal

Fabricating evidence contra. Section 120 (1) Criminal Code—Conviction for “counselling or procuring the commission of perjury “—Section specially excludes.

Held : Appeal allowed, conviction quashed.

There is no need to set out the facts,

Appellant not present.

C. TV. Reece for Crown.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, BUTLER LLOYD Arm BAKER, JJ

In this case the appellant was convicted on two counts, the first for fabricating evidence, contrary to section 120 (1) Criminal Code and the second for corruption of witness, contrary section 121 (1) Criminal Code. He was convicted on both counts and sentenced to four years I.H.L. on each count the sentences to run concurrently. He has sought leave to appeal against both convictions. The conviction on the second count was based on the clearest evidence and leave to appeal on that count has been refused. But the conviction on the first count is clearly wrong. The section reads as follows :—

” Any person who, with intent to mislead any tribunal ” in any judicial proceeding-

” (1) fabricates evidence by any means other than perjury or ” counselling or procuring the commission of perjury :

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

The particulars given of the alleged offence in this case are :—

” That Kanu Ezuma on 30th September, 1940, at ” Umuagigo, Aba Division, in the Province of Owerri, in the ” Aba Judicial Division, with intent to mislead the High ” Court of the Aba Judicial Area, holden at Aba, knowing

that Mesiak Onyenma Ahuekwe was being called as a witness ” for the prosecution at the trial of ” Rex versus Kanu ” Ezuma,” fabricated evidence by counselling or procuring ” the said Mesiak Onyenma Ahuekwe to commit perjury.”

It is clear that the particulars are framed as though the words ” any means other than ” were omitted from the section, and that the charge instead of coming within the section is, in terms, excluded from it. The appeal against the conviction on count one is allowed, the conviction and sentence passed upon that count are quashed, and it is directed that upon count one a judgment and verdict of acquittal be entered.

The conviction and sentence upon count two stand good.