KINGDON, C.J., NIGERIA.
In this case the three appellants and one other person were all charged before Ames, Assistant Judge, in the High Court of the Enugu-Onitsha 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 moths 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 Province 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 unlawful to procure the miscarriage of “the said Victoria Uduigwome.” 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 Kaun (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 person 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. Isaac, (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 conviction 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.”
But that case is essentially different from the present in that the words of the section of the English Act (24 and 25 Vict. c. 100s. 59) under which the woman Isaacs was indicted are cc whosoever shall unlawfully supply or procure any poison or other noxious “thing, or any instrument or thing whatsoever, knowing that the “same is intended to be unlawfully used or employed to procure “the miscarriage of a woman, etc. etc,” and she was expressly indicted “for supplying a certain noxious thing.” I agree with the view of the learned trial Judge that under section 230 of the Criminal Code it is not necessary to prove under that the thing is noxious. But the Court itself raised the question as to the meaning of the word “unlawfully” which occurs twice in the section, more especially in view of the fact that the Code now the specifically lays down when the acts with which the section deals may be done lawfully or when they are unlawful, and that section 4 of the Criminal Code Ordinance provides that
“No person shall be liable to be tried or punished in any “Court in Nigeria for an offence except under the “express provisions of the Code, or some other “Ordinance, or of some Order in Council made by “His Majesty for Nigeria, or under the express pro- “visions of some statute of the Imperial Parliament “which, is in force in, or forms part of the law of, “Nigeria.”
Fortunately there has been a very recent case in England which is of the greatest assistance in considering the meaning of the word “unlawfully," namely Rex v. Bourne in which the meaning of the word as used in section 58 of the Act 24 and 25 Vict. c. 100 was considered and expounded by the learned trial Judge. In that case the words which had to be interpreted were “whosoever, “with intent to procure the miscarriage of any woman, shall “unlawfully use any instrument or other means whatsoever " * * * Counsel for the defence, before opening his case, asked the Judge to tell the jury the meaning of the word unlawful and the Judge explaining to the jury his views on the point raised is reported in the Times of the 19th July, 1938, to have addressed them as follows:-
“As you have heard, section 58 of the Offences against “the Person Act contains the word ‘unlawful.’ “Counsel are agreed, and it is my opinion that the “word “ unlawful” is not a meaningless word in that “section, and it necessarily follows that there may be “the procurement of abortion which is lawful. “Procuring an abortion has been an offence long “before 1861. It was an offence under the Common “Law of England before ever Parliament existed.”
Referring to the section of the Act, the Judge said:- “It begins by making it unlawful for a woman to procure “her own miscarriage. That undoubtedly, has been “the law of England from earliest times."
Dealing with the case before him the Judge said:- “It is quite true that there is no authority on this matter. “SO far as I am aware the issue which you have to “try is an issue that has never before been raised. “In modern times when it can be done by a skilled “person without any risk to the patient, then, “obviously, where that operation is performed for “the purpose of saving the life of the mother, it “must be lawful.”
The Judge continued: “The direction which I propose to give you is if you are “satisfied by the evidence in the case, when we have “heard it, that Mr. Bourne did not terminate the “pregnancy of this girl in good faith for the purpose “of preserving the life of the girl, you should find “him guilty. If you think that the Crown have not “proved the negative which the law requires, then “you should find him not guilty.”
And in his summing up the Judge is reported to have said “My view is that * * * it has always been the law that “on a charge of procuring abortion the Crown has “to prove that the act was not done in good faith “for the purpose of preserving the life of the “mother.” and
“The law of the land had always held human life to be “sacred, and the protection the law gave to human “life extended to the unborn child. The unborn “child must not be destroyed except for the purpose “of preserving the yet more precious life of the “mother.”
The word of particular significance in these quotations is the word “always.” The Judge was not making new law, he was merely expounding what in his view has always been the law, i.e. what was the common law of England, and that may be conveniently tabulated as follows:-
1. Human life is held to be sacred and the protection of the law given to human life extends to the unborn child. 2. It is unlawful to destroy the unborn child except for preserving the yet more precious life of the mother. 3. That unlawful act is a punishable offence.
By section 12 of the Protectorate Courts Ordinance, 1933, it is declared that, subject to the terms of that or any other Ordinance the common law shall the more within the Jurisdiction Protectorate Courts.
This replaced section 12 of the Provincial Courts Ordinance (which was enacted in 1914) declaring that, subject to the terms of that or any other Ordinance, the common law should be, as far as applicable, in force in the Protectorate. If, therefore, there is nothing to the contrary, the items 1, 2, and 3 as they are tabulated above apply to the Protectorate of Nigeria. What is the effect of section 4 of the Criminal Code Ordinance, already quoted, which was enacted in 1916?
In my view it has no effect on the first two items tabulated. Human life remains sacred and it continues to be unlawful to destroy the unborn child except for preserving the mother's life. It is only the third item which is affected. The unlawful act in question is no longer punishable as a misdemeanour at common law, instead three sections are enacted in the Code prescribing the punishment as a felony for this unlawful act and connected offences; moreover by section 297 of the Code it is enacted:-
“A person is not criminally responsible for performing “in good faith and with reasonable care and skill a “surgical operation upon any person for his benefit “or upon an unborn child for the preservation of the “mother's life, if the performance of the operation “is reasonable, having regard to the patient's state “at, the time and to all the circumstances of the “case.”
It would indeed have made the interpretation of these sections easier if the Code had included a specific declaration of when it is lawful and when unlawful to procure miscarriage in the same way as is done in respect of a number of other matters e.g. murder (section 306), carnal knowledge (section 6), gaming (section 236). But the omission does not, in my view, imply that the legislature intended that all procuring of miscarriage should be lawful because it did not expressly declare any to be unlawful, for in other sections the word “unlawfully” is used and not defined when to place a similar construction upon the enactment would be absurd e.q. section 360, indecent assault; and 364, kidnapping. Nor do I think that by an oversight the legislation enacted has had the effect of leaving all acts of procuring miscarriage lawful. The omission of a definition or a declaration merely throws the enquirer back to ascertain what is the law of the land in regard to when it is lawful and when unlawful to procure a miscarriage. This question had never arisen for decision even in England until the case of Rex v. Bourne: now it has arisen and been answered and the answer is that It is unlawful except for the purpose of preserving the life of the mother. That in my view is the law in Nigeria as well as In England, and it follows that, Since In the present case there is no suggestion of the only lawful purpose, the appellants were rightly convicted and their appeals should be dismissed.
The case is one involving a difficult and important question of law and the Court is of opinion that it is convenient that separate judgments should be pronounced by each of the Judges. The judgments of my learned brethren are about to be delivered and as they are to the same effect as the judgment I have just pronounced the judgment of this Court is that the appeals are dismissed.
CAREY J. There is no substance in the grounds of these appeals.
With regard to the question raised in this Court, as to whether or not the procuring of an abortion in this country is unlawful, it was only after much deliberation, I arrived at, what I now believe to be, the correct answer. It has always been an offence against the common law of England to procure the miscarriage of a woman.
Section 12 of the Protectorate Courts Ordinance applies the common law to the Protectorate of Nigeria subject to the terms of any Ordinance.
Section 4 of the Criminal Code Ordinance in conjunction with sections 228-230 of the Criminal Code, enables Courts in Nigeria to try and punish persons for unlawfully attempting to procure abortion and for unlawfully supplying or procuring substances knowing that such substances are intended to be used unlawfully to procure the miscarriage of a woman.
In my opinion therefore the learned trial Judge properly convicted the three appellants, and their appeals should be dismissed.
GRAHAM PAUL, J.
I have had the privilege of reading the judgment of the learned President of the Court and I agree with that judgment.
I wish to add only a few remarks in regard to the point raised at the hearing of the appeal as to the use and the effect of the word “unlawfully” occurring in section 230 of the Criminal Code.
The Criminal Code Ordinance according to its preamble was intended to “declare consolidate and amend” the criminal law. One would expect that a draftsman charged with carrying out that intention of the legislature would so frame the Code that it would be in itself a complete self-contained Criminal Code, necessitating no reference at all to the common law or statute law of England. In some parts of the Code that object has been achieved-e.g. murder, manslaughter, assault, etc.
In sections 228, 229 and 230 however that object has not been achieved. These sections, subject to a qualification, declare certain things to be felonies and punishable as such.
The qualification in each of these sections is that the things specified in order to constitute an offence must be “unlawfully” done, and the draftsman has omitted to specify what he means by “unlawfully.” “Unlawfully” is not defined and it is impossible to find out expressly within the four corners of the Code the circumstances in which these things are “unlawfully” done.
Apart from section 297 there is no indication in the Code of the circumstances in which any of these things may be “lawfully” done, and that section relates only to surgical operations.
These omissions to my mind mean that as regards sections 228, 229 and 230 the draftsman has failed to carry out the intention expressed in the preamble.
In the recent English case of R. v. Bourne there is no doubt that the accused was charged with an offence under the express provisions of section 58 of the offences against the Person Act, but that section contained the same qualifying word “unlawfully” and in directing the jury the Judge had to explain in what circumstances according to the common law the things specified in section 58 were “unlawfully” done.
By section 12 of the Protectorate Courts Ordinance the common law of England “subject to the terms . . . of any “Ordinance” is declared to be in force in Nigeria, and there can be no doubt that apart from the terms of section 4 of the Criminal Code Ordinance the position in Nigeria as regards the word “unlawfully” in sections 228, 229 and 230 would be the same as in the Bourne case-i.e. the Court would have to consider whether under the common law of England the accused had done the things “unlawfully” according to the common law of England.
Section 4 of the Criminal Code Ordinance is as follows:- “No person shall be liable to be tried or punished in any “court in Nigeria for an offence except under the “express provisions of the code, or some other “Ordinance, or of some Order in Council made by “His Majesty for Nigeria, or under the express pro- “visions of some statute of the Imperial Parliament “which is in force in, or forms part of the law of “Nigeria.”
“Provided that in the case of an offence “committed before the commencement of this “Ordinance the offender may be tried and punished
“either under the law in force when the offence was “committed or under the code, provided that the “offender shall not be punished to any greater “extent than was authorised by the former law.”
Here it cannot be contested that the appellants were charged, Graham tried, and punished under the express provisions of the code-i.e. under section 230. Although in that section the draftsman took what I think may without unfairness be described as the indolent course of using the word “unlawfully” and leaving it to the Courts to discover and apply the common law of England on the subject, instead of inserting a section declaring and consolidating and possibly amending as regards Nigeria the common law of England on the point. The appellants having been tried and punished under the express provisions of the Code, section 4 of the Criminal Code Ordinance has been complied with, and that section cannot operate to vitiate the convictions which have resulted from the correct application of the common law of England to the facts of the case.
In short the word “unlawfully” in section 230 must be taken to have some meaning. It cannot mean “unlawfully as in this Code defined” for there is no definition. It must therefore be taken to mean “unlawfully according to the law in force in Nigeria by virtue of section 12 of the Protectorate Courts Ordinance” -that is to say the common law of England. It is impossible to contend on the evidence in this case that the proved intention to procure abortion by the use of the things supplied was conceived by the mother or by any of the parties concerned with a view to save the life or even to safeguard the health of tl1t mother, and it follows therefore that the things in question were supplied or procured by the appellants knowingly in order that they might be unlawfully used to procure the miscarriage of a woman.
The question raised as to the meaning of the word “unlawfully” has given me considerable difficulty but the question must, I think, be answered in favour of the Crown. I agree that there is no substance in any of the other points raised on behalf of the appellants and that the appeals must therefore be dismissed.