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Anthony and Another v. R. Crim. App. 149-A-70; 11/9/70; El-Kindy, Ag. J.



Anthony and Another v. R. Crim. App. 149-A-70; 11/9/70; El-Kindy, Ag. J.

The appellant were charged and convicted of wrongful confinement c/s 253 of the Penal Code. The particulars of the offence in the charge did not over that the confinement was wrongful. The issue on appeal was whether the charge disclosed any offence in law, and whether the omission of the word “wrongful” was fatal to the charge or an irregularity that could be cured under s. 346 of Criminal Procedure Code.

            Held: (1) “It seems to me that (1) there is no statutory definition of wrongful confinement although there is the opinion of my learned brother Biron J, in the case of R. v. SEFU SAID (1964) EA p. 178 and (2) there is no direct authority on the point from any part African Court. The nearest cases, on similar parts, are TERRAH MUKINDIA v. R. (1966) EA P. 425 AND MUNYAO MUU v. R. (1957) p. 894 where, in the latter cases, the Court of Appeal considered the omission  of the word “wrongful” in the particulars of the charge. I find much assistance and guidance from these two decisions. In this case, with due respect to the learned State Attorney, the essence of the offence is the “wrongfulness” of the act which, to my mind means, contrary to law, and it is not just confinement. I am not satisfied that the omission did not prejudiced the appellants with their defence and that they understood the nature of the charge preferred against them. I find, therefore, the omission is fatal and cannot be cured by Section 346 of the Criminal Procedure Code, however, broad minded one wanted to be.” (2) Appeal allowed.

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