BUTLER IJLOYD, AG. C.J., NIGERIA, CAREY AND BROOKE,. JJ. One Thomas Udu was charged in the Calabar-Aba Judicial Division of the High Court with causing a common nuisance contrary to section 234 (f) of the Criminal Code.
The particulars of the offence alleged are: - “That Thomas Udu at about 12.25 p.m. on the 9th day of May, 1939, at Aba, in the Aba Judicial Division, did make a false report to the Police to wit, “that his brother was mad, and for this reason, the following people took him on the night of the 3rd May, 1939, to make medicine for him, (1) Uko Nwaekelegbu (2) Agimiri Udo (3) Ayolonum Nwada and (4) Alezuwa Udo, and when the day broke on the night they took him they brought his dead body on which he, the accused, witnessed some wounds “and act not warranted by Law, causing officers of the Nigeria Police stationed at Aba and maintained at Public expense for the Public benefit to devote their time and services to the investigation of a false allegation, thereby causing inconvenience or damage to the public by temporarily depriving the public of the services of these public officers and rendering liege subjects of the King liable to suspicion, accusation and arrest, and in so doing did unlawfully effect a Common Nuisance.”
In answer to the charge the accused said “I gave this information to the police-it was false.” Thereupon, having heard the prosecuting Police Officer, the learned Judge, before whom the trial was pending, not being satisfied that the particulars of offence disclosed any offence in law, postponed judgment, remanded the accused on bail and stated a case for the consideration of this Court on the question of law therein reserved. It appears from the case state that in the same Division of the High Court another judge, relying on the decision in Rex v. Elizabeth Manlev (1933) I.K.B. 529, on facts similar to those in this case, convicted persons charged under the same section.
The question for this Court is whether or not in law the trial Judge was correct in. his opinion that the particulars of offence as alleged and, in so far as the act of the accused was concerned, admitted, disclosed no offence in law. Section 234 (f) of the Criminal Code reads as follows :- “Any person who does any act not warranted by law, or omits to discharge any legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to the public is guilty of a misdemeanout and is liable to imprisonment for two years.”
The offence is classified in the Code, with the other sub-sections of section 234, as being a “Common Nuisance,” and indeed, as drafted, embraces certain common or public nuisances which as misdemeanours of a public nature, are indictable at Common Law in England.
The learned Judge held that though the facts of the case would constitute the misdemeanour of causing a public mischief at Common Law m England, such a Common Law misdemeanour or any offence under the Common Law of England would not apply in this country except expressly provided for in the manner set out in section 4 of the Criminal Code Ordinance (Cap. 21). He obviously meant the Criminal Code Ordinance and not the Criminal Procedure Ordinance. There can be no doubt that the act complained of viz: instigating a police investigation of a false accusation implying the commission of a criminal offence, was one not warranted by law, and that it effected a public mischief by causing the police, as in Rex v. Manley supra, to waste time in the investigation of false allegations, and by exposing certain members of the public to suspicion and arrest.
On referring to the judgment of Lord Hewart C.J. in Rex v. Elizabeth Manley one finds the following passages :-
“It was then submitted on her behalf, as it is submitted now. that she had committed no offence: but before that proposition can be assented to it is necessary as Counsel for the prosecution has indicated to consider two questions. The first is whether it is true at the present day to say that there misdemeanour of committing an act tending to the public mischief. In our opinion that question ought to be answered in the affirmative. We think that the law remains as it was stated by Lawrence J. in Rx v. Higgins. All offences of a public nature, that is, all such acts or attempts as tend to the prejudice of the community, are indictable.
“The second question is whether the appellant did acts which constituted a public mischief. As Counsel has said, the facts stated in the indictment are not in dispute, and it is admitted that what is there alleged to have been done by the appellant was done by her. In the opinion of the Court Rex the indictment aptly describes two ingredients of public mischief or prejudice to the community, one of these being that officers of the Metropolitan Police were led to devote their time and services to the investigation of an idle charge the other being that members of the public, or at any rate those of them who answered a certain description, were put in peril of suspicion and arrest.”
It is to be noticed that “all offences of a public nature” are Carey and defined therein as” all such acts or attempts as tend to the prejudice of the community.” Section 234 (f) of the Criminal Code embraces all acts not warranted by law which cause inconvenience or damage to the public in the exercise of their common rights, in fact constituting the indictable Common Law offences which come within its ambit offences under the Code.
It seems to us that the particulars of offence in the present case disclose an act on the part of the accused tending to cause inconvenience or damage to the public in the exercise of their common rights and that such act constituted an offence contrary to section 234 (f) of the Criminal Code.
Our answer is therefore that the opinion of the learned trial judge was wrong.