Foster Sutton, P. This was a private prosecution of the respondents who were charged with having conducted themselves in a manner likely to cause a breach of the peace, contrary to section 249 (d) of the Criminal Code.
The case came for trial in the Magistrate's Court of the Warri Magisterial District where each of the respondents were convicted and given the maximum sentences of one month’s imprisonment with hard labour.
The respondents then appealed to the Supreme Court, Warri Judicial Division, presided over by Irwin, J. who allowed their appeals on the ground that the convictions “could not be supported having regard to the weight of evidence”, and it is against that decision that the private prosecutor now appeals.
The facts are fully dealt with both in the learned Magistrate's judgment and in that of Irwin, J. It seems to us, therefore, unnecessary to do more than very briefly outline' case for the prosecution which was that the second, third, fourth, fifth and sixth respondents on the 24th September, 1954, persisted in holding a meeting at Isiokolo Village, attended by some thousands of persons, for the purpose of crowning the first respondent, Chieftain of the Agbon Clan, in spite of the fact that it was against the wishes of the majority of Agbon Clan, and they knew full well that to do so would lead, as the learned Magistrate put it, “to violent strife, turmoil and a breach of the peace and riot and constant disharmony and disunity among the Clan."
In order to arrive at a correct decision in this case we think it important to bear in mind precisely the offence created by section 249 (d). The paragraph reads as follows:-
“Every person who, in any public place, conducts himself in a manner likely to ca a breach of the peace, shall be deemed idle and disorderly persons, . . . . . . . . . . . . . . . . and shall guilty of a simple offence. . . . . . . . . . . . . . . . .”
The Information charges the respondents specifically with conduct contrary to the section on the 24th September, 1954, "in a public place to wit: Isiokolo Village”.
The matter which has to be looked at, therefore, is their conduct in that public place on the date in question, and it seems to us that the possibility of the crowning causing “constant disharmony and disunity among the clan”, to have been irrelevant and a matter which ought not to have been taken into consideration by the Magistrate.
It was proved that the first respondent went to the Police on the 23rd September, informed them of the coronation Ceremony which was scheduled to take place on the following day, and asked that extra police be sent to the spot which was done, in order to ensure that no breach .of the peace took place. It was also proved that before the ceremony of crowning took place the fifth respondent who is the “President-General of the Agbon Community” asked the crowd whether or not the crowning should take place, to which question there was a unanimous shouted answer of “crown him”, and it was only then that the ceremony of crowning was proceeded with.
It was not disputed that there was in fact nothing that could be described as even approaching a breach of the peace. We agree with the learned Magistrate, however, that the test is not the actual result, but whether the conduct complained of was likely to cause a breach of the peace.
One must, therefore, look to the circumstances that existed at the particular time and place in order to determine if the offence charged against the respondents was satisfactorily made out. On the facts proved at the trial we have no hesitation in agreeing with Irwin, J. that it was not.
This appeal is accordingly dismissed.
Appeal dismissed.