REX . V. OSITA CHUKWIGBO AGWUNA & 3 ORS

Blackall, P. The appellants in this case were convicted by Gregg, J., in the Supreme Court at Lagos of uttering seditious words contra section 51 (1) (b) of the Criminal Code at a meeting held at the Glover Hall, Lagos, on 7th No ember, 1948, and convened by a body styling itself the National Council of Nigeria and the Cameroons.

The first, third and fourth appellants have appealed against both conviction and sentence; the second appellant has appealed against sentence only.

It will be convenient to deal first with ground 1 of the third and fourth appellants’ amended grounds of appeal relating to the setting aside of the witness summonses served upon the Governor and the Chief Secretary to the Government. Mr. Benson for the appellants relied upon Shorunke v. The King (1) in which it was held that a trial Judge is not entitled of his own motion to require an accused person to disclose the purpose for which he desires to call a witness, before the subpoena is issued. In view of that decision we agree that the appellants should not have been called upon to submit the information asked for in 1 the Acting Chief Registrar’s letter of 24th January, 1949. But the Registrar’s action cannot prejudice the right of a person served with a subpoena to apply to the Court to set it aside on the ground that the subpoena is not bona fide required for the purpose of obtaining any evidence that can be relevant, and the Court upon such application will interfere where it is satisfied that its process is being used for indirect or improper objects (R. v. Baines (2)). The issues the subpoenas on the Governor and the Chief Secretary in the present case was, in our view, an abuse of the process of the Court and the learned trial Judge was right in setting them aside.

Coming on the main grounds of appeal, the meeting at the Glover Hall was the aftermath of one held at the Tom Jones Hall, Lagos, on 27th October, 1948, under the auspices of a political body called the Zikist Movement. At that meeting a lecture entitled “A Call for Revolution” was delivered by the first appellant. For this he was convicted on the 22nd February, 1949, of offences of a seditious nature under section 51 (1) (b) and (c) of the Criminal Code. Copies of the lecture were distributed to the audience at the conclusion of the lecture, and one such copy was admitted in evidence at the trial of the appellants. It was objected on behalf of the appellants, that this document was inadmissible as it had no connection wit the charges before the Court and only tended to prejudice the defence.

The rule conning evidence to the points at issue excludes evidence of collateral facts which are incapable of affording any reasonable presumption of the matters in dispute, as such evidence tends to draw away the mind of the trial Court from the points at issue and to excite prejudice. But where the good faith or intent of a party is material fact, evidence apparently collateral may have a direct bearing on the point at issue and, if it has, it is admissible even if it relates to facts which happened before the principal transaction and although it may have no direct or apparent connection with it. (See Taylor on Evidence, 12thc Edition, Vol. 1, paras. 316 and 338.)

Where the evidence sought to be admitted tends to show that the prisoner has been guilty of a criminal act which was not the act with which he was charged there are two principles which were laid down by Lord Herschell, L.C., in the well-known case of Makin v. Attorney-General for New South Wales (3). The first was expressed by the learned Lord Chancellor in the following terms:-

“It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.”

The second principle was thus expressed:-

“the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.” The admission of such evidence on the last mentioned ground is subject to the qualification that “the prosecution cannot credit the accused with fancy defences in order to rebut them at the outset with some damning piece of prejudice ., (Thompson v. The King (4)). Further, it has been held that “in all such cases the Judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose for which it is professedly directed, to make it desirable in the interests of justice that it should be admitted" (Noor Mohamed v. The King (5) ).

We propose to consider this ground of appeal in the light of these authorities, bearing in mind, however, that the law of evidence in this Colony, like the law of sedition, has been codified. It is contained in the Evidence Ordinance. Any glosses or interpolations, however authoritative, of the law of England must therefore be considered subject to this qualification (R. v. Wallace Johnson 6)).

The defence put forward by the appellants was twofold. It was submitted in the first place that the Police evidence as to what was said at the meeting was unreliable, and in the second that certain expressions used by the appellants were neither intended to be seditious nor could they reasonably convey to the audience the meaning ascribed to them by the prosecution. It is this second line of defence that is material to the point now under discussion. As the defence of innocent intent was in fact raised, the prosecution, in seeking to adduce evidence to rebut it, obviously cannot be charged with crediting the accused with a “fancy defence”, and such evidence was, on the application of the second principle referred to above, clearly relevant to an issue before the Court and therefore admissible, provided that its evidential value was substantial enough to outweigh the possible prejudice to the appellants.

As regards the local law of Evidence the learned Solicitor-General in the course of his argument invited attention to certain sections of the Evidence Ordinance upon which he relied in support of his submission that this evidence was properly admitted. They are sections 3, 5 (a), 6 to 10, 12 (b) and 16.

It is worthy of note that while section 5 (a) provides that nothing in the Ordinance shall prejudice the admissibility of any evidence which would, apart from the provisions of the Ordinance, be admissible there is no provision in the Ordinance which allows any evidence to be rejected as inadmissible save as provided in the Ordinance itself.

We now proceed to examine the evidential value of the evidence adduced as to the lecture delivered at the meeting at the Tom Jones Hall, having regard to the decisions quoted and the sections of the Evidence Ordinance referred to above. The lecture was delivered by the first appellant and there is no evidence that the third and fourth appellants had any direct connection with that meeting. But as both these appellants in their speeches at the Glover Hall were at pains to “re-affirm” the lecture, we think it is reasonable to assume that where they dealt with topics referred to in the lecture in terms similar to those used by the lecturer, they intended the words they used to convey the same sentiments and to produce the same effect upon their hearers. But the appellants at their trial sought to put an innocent complexion upon words and phrases used by them which the prosecution contended were seditious. It is therefore, in our opinion, useful and relevant to compare the disputed words with passages on the same subjects in the lecture. It will suffice to refer to one or two examples.

It was suggested by the appellants’ Counsel in his argument before this Court that in using the words “common enemy” the first appellant might have been referring to a rival political party. The fourth appellant in his evidence gave a somewhat different version stating: ..I regard the Syrians and the U.A.C. as the common enemy of Nigeria.” But when we turn to the first appellant's lecture at the Tom Jones Hall he leaves us in no doubt as to his meaning, for he speaks of focusing the attention of the masses towards one common central danger, i.e. the British Government “. A little later he states that ,. Britain has a plan to continue her domination of Africa at least for the duration of the third World War” and goes on to say” we must forget our so-called differences and direct all our energy towards the common foe or else we remain like this for another fifty years”. These passages make it abundantly clear that Britain was the “common enemy” against whom his diatribe was leveled, not only in his lecture at the Tom Jones Hall but also in his subsequent speech at the Glover Hall.

Counsel for the appellants also endeavored to put a gloss on such phrases as “the revolution has started and shall continue; we must rise against the enemy imperialist “, and “I see no reason. why we Nigerians cannot throw down (sic) the; imperialistic yoke of Great Britain”, by suggesting that the speakers might have been referring to an economic revolution; and that when the audience were told that they” should all be prepared to die for Nigeria” the speaker was merely adjuring them to do something good for Nigeria by constitutional means. The learned Counsel did not attempt to explain why if the struggle was to be a constitutional one, confined to lawful acts, the audience were exhorted not to be afraid to go to prison, or why they were assured that the prison yard was a very good place to stay in.

It appears then to this Court that the prosecution were entitled to anticipate a defence which was in fact raised, and that evidence of the lecture at the Tom Jones Hall was admissible under the law of evidence in force in this Colony, and, in the words of proviso (a) to section 6 of the Evidence Ordinance, that it was not too remote to be material in all the circumstances of the case.

But even if that evidence were to be excluded, the addresses of the first, third and fourth appellants at the Glover Hall meeting in our view justified the finding “that they uttered seditious words. Words and phrases are to be interpreted in j the light of surrounding circumstances. In dealing with the application of this test Coleridge, J., in R. v. Aldred (7) said:-

“In arriving at a decision of this test you are entitled to look at all the’ circumstances surrounding the publication with the view of seeing whether the language used is calculated to produce the results imputed; that is to say, you are entitled to look at the audience addressed, because language which would be innocuous, practically speaking, if used to an assembly of professors or divines, might produce a different result if used before an excited audience of young and uneducated men. You are entitled also to take into account the state of public feeling. Of course, there are times when a spark will explode a powder magazine; the effect of language may be very different at one time from what it would be at another.”

The trial Judge when deciding whether the language used at the meeting by the appellants was calculated to raise discontent and disaffection was therefore entitled to consider the effect on the minds of the ordinary people of this country of the subversive propaganda disseminated by the organization to which the appellants belong. Its object, as the first appellant explained at the Tom Jones Hall, is to preach a gospel of hate and contempt against the Government and the British connection’.

The second ground of the first appellant’s amended grounds of appeal is misconceived, for he was not charged with or convicted of conspiracy, One of the grounds upon which the learned trial Judge convicted the first and second appellants of the offence of sedition contrary to section 51 (1) (b) of the Criminal Code was that they had “formed a common intention to prosecute an unlawful purpose in conjunction with one another: the said unlawful purpose being to spread sedition by word of mouth, firstly by re-affirming what was said by the first accused at the Tom Jones Hall on October 27th, 1948, and secondly by making other seditious utterances”, and he accordingly held that section 8 of the Criminal Code was applicable. Of this common intention there was ample evidence and we agree with his finding in this respect.

It was argued in this connection that the trial Judge should not, in deciding the question of common intention, have taken into account against the first appellant the evidence given at the trial by the second appellant. The short answer to this is that, apart from the fact that there was other evidence on which the learned Judge could and did base his decision on this point, the evidence of the second appellant tending to incriminate the first appellant ,vas undoubtedly relevant and admissible under the law of evidence in force in Nigeria. Section 177 (2) of the Evidence Ordinance clearly contemplates the admission of such. evidence and frees it from the disabilities attaching to the evidence of an accomplice. Any objection on this score therefore goes to weight and not admissibility. Appellant's Counsel further argued that the evidence was inadmissible because at the stage of the trial at which the second appellant gave his evidence, the first appellant “had refused to take further part in the trial”. We are not prepared to accede to this curious argument. If such were the law, an accused person, by the simple expedient of refusing to recognise the Court and take part in the proceedings at his trial, could stultify and defeat the ends of justice. We think it is unnecessary to say anything more about this submission except that section 177 of the Evidence Ordinance does not give any advantage to one co-accused over another merely because one gives (or is given the opportunity of giving) his evidence before the other. The provisions of the section are quite impartial.

It was submitted in support of the third of the amended grounds of appeal of the third and fourth appellants that the Police witnesses should not have been believed because they differ in certain details, e.g. whether the meeting commenced at 4.25 p.m., 4.40 p.m. or 4.45 p.m. and because the witness Lateju mentioned certain matters which were not referred to by the other witnesses.

There is no substance in this. These Police Officers were in plain clothes and for very obvious reasons did not take notes while they were at the meeting: they memorised the salient points and wrote their reports upon their return to the Police Station. It is therefore not surprising that their evidence did not agree in every detail; indeed if it did, it would be open to the criticism that it had been concocted and rehearsed. A perusal of the Police evidence, however, does show substantial agreement on the points in the speeches to which one would expect them to pay particular attention. Neither is the fact that the witness Lateju remembered more than the other Police a sufficient ground for rejecting either his evidence or theirs. Stress was laid by Counsel for the appellants on the fact that Lateju was the only witness who mentioned that the fourth appellant had said that children should not be allowed to attend Empire Day, but the same remark occurs in the lecture at the Tom Jones Hall, which the fourth appellant “re-affirmed”. There was no reason for rejecting Lateju’s evidence on this point merely because it was not mentioned by the others, for the more probable explanation of the discrepancy is that Lateju has a more retentive memory than the other Police witnesses.

It is plain from his exhaustive and detailed judgment that the learned trial Judge weighed all the evidence before him, both for the prosecution and the defence, and he was fully entitled to accept the evidence of the Crown witnesses in preference to that of the appellants. Having accepted this evidence there was ample ground for his findings as to the expressions used by the appellants and their purport. He gave careful consideration to the question whether the words used-in the circumstances in which they were used-were seditious, and this Court sees no reason for differing from his conclusions in this respect. Indeed, he took a more indulgent view of the explanation given by the fourth appellant as to the meaning of his remarks about dragging the Govenor down from his horse than we might have been disposed to take. But while giving the fourth appellant the benefit of the doubt on this point , the learned Judge found that the speeches of all the appellants were seditious, as defined in section 50 of the Criminal Code, and that finding, in our view, was fully supported by the evidence. The appeals of the first, third and fourth appellants against their convictions therefore fail on all grounds and are dismissed.

As regards the appeals against sentence the second appellant appealed only against the severity of the sentence of two years imprisonment with hard labour imposed on him. This is the maximum substantive sentence under the section, but this Court is unable to discover in the evidence or the surrounding circum- stances any grounds for reducing it. This appellant could hardly have chosen language more calculated to incite disaffection than that used by him at the meeting at the Glover Hall. That seditious language he adopted and re-iterated at his trial. His appeal against sentence ,is therefore dismissed. Neither do we see any sufficient ground for interfering with the sentences of one year's imprisonment with hard labour imposed on the third and fourth appellants. Their appeals against sentence are likewise dismissed.

With regard to the first appellant, the question arises as to the reason which caused the trial Judge to impose on him a more severe sentence (two and a half years' imprisonment with hard labour) than that imposed on the second appellant, whose language at the Glover Hall was much more violent than the first appellant's. No reason was given by the learned Judge for this distinction, but it would seem from the record that the sentence on the first appellant was imposed after he had admitted what was described as a previous conviction. Assuming that was the reason, we -are of opinion that the learned Judge proceeded on' a wrong principle in giving the first appellant a mo~ severe sentence, for this appellant was not convicted on account of his speech at the- Tom Jones Hall until 25th January, 1949, i.e. after the making of the speech in respect of which he was convicted by Gregg, J. .The conviction in question was therefore not a previous conviction in the proper sense of the word. The only kind of previous conviction which a Court is entitled to take into account when assessing sentence is one in which conviction took place before the commission of the offence for which the accused is instantly charged and convicted, the principle being that a man who already had a conviction for a similar offence before he committed the second one, does not deserve to be treated with leniency. We accordingly reduce the sentence of the first appellant to one of two years' imprisonment with hard labour.

Appeals dismissed except that of the first appellant against sentence, wherein the sentence was reduced.