Citation:(1965) SCNLR
Court: Supreme Court of Nigeria
Coram: Ademola, C.J.N.; Brett, J.S.C.; Bairamian, J.S.C.; Coker, J.S.C.; Idigbe, J.S.C.Date: 11th May, 1965.
The case of Anthony Eronsele Enahoro v. R (The State) stands as one of the most historically significant criminal trials in Nigeria’s early post-independence era. It not only dealt with the charge of treasonable felony and conspiracy to overthrow the Federal Government but also clarified the proper application of sections of the Criminal Code, the Criminal Procedure Act, and the Evidence Act.
The Supreme Court’s decision provided detailed guidance on how conspiracy, joinder of offences, and participation in criminal plots should be understood in Nigerian criminal law.
Facts of the Case of ENAHORO V. R, (1965)
The appellant, Anthony Enahoro,was alleged to have been a member of the Tactical Committee formed by Chief Obafemi Awolowo,whose objective was to overthrow the Federal Government by force of arms. The trial judge found that Enahoro was appointed by Chief Awolowo and was responsible for recruiting young men for military training abroad.
Among the recruits were both Oboh and Oleari, of whom were sent to Jakande for further direction and later toGhana, where they were taught the use of firearms. Upon their return, firearms were found in their possession.
Following these findings, the appellant was charged with three counts:
1.Treasonable Felony under Section 41(b) of the Criminal Code.
2. Conspiracy to commit a felony, to wit, to levy war against the Queen, contrary to Section 516 of the Criminal Code.
3.Conspiracy to effect an unlawful purpose, contrary to Section 518(6) of the Criminal Code, namely, to contravene the Firearms Act and Regulations.
The trial court convicted the appellant on all counts, leading to this appeal before the Supreme Court.
Issues for Determination ENAHORO V. R, (1965)
The key legal questions before the Supreme Court were:
1.Whether a charge for conspiracy to commit a felony, specifically to levy war against the Queen, could properly be brought under Section 516 of the Criminal Code.
2.Whether the refusal of the trial judge to grant particulars of the charge to the defendant resulted in a miscarriage of justice.
3.Whether including multiple counts of conspiracy in the same information operated unfairly against the defendant.
4.Whether Section 158 of the Criminal Procedure Act justified the joinder of more than one count in an information.
Judgment and Reasoning of the Court in ENAHORO V. R, (1965)
The Supreme Court, in a detailed judgment, addressed each issue systematically.
1. Improper Application of Section 516
The Court held that the second count charging conspiracy to levy war should have been laid under Section 37(2) of the Criminal Code, which specifically governs treasonable felony. The prosecution erred by bringing it unde Section 516, which deals generally with conspiracy to commit a felony.
Accordingly, the conviction on that count was quashed. Since the charge was invalid, it was unnecessary to consider the effect of Section 339 of the Criminal Procedure Act on the joinder of offences.
Dictum:“Count 2 should have been laid under section 37(2) of the Criminal Code and the prosecution erred in laying it under section 516; the conviction on it is quashed.”
2. Refusal of Particulars and Fair Hearing
Although the Court found that the trial judge wrongly refused the appellant’s application for particulars of the charge, it concluded that no miscarriage of justice occurred. This was because Overt Act 2 in Count 1 sufficiently notified the defendant of how he contravened the Firearms Act and its Regulations.
Therefore, even though the procedural error existed, it did not prejudice the appellant’s defence.
Dictum:“The judge was wrong in refusing the application for particulars, but in view of the allegation in Overt Act 2 in Count 1, there was no miscarriage of justice.”
3.Existence of Conspiracy and Application of Section 11 of the Evidence Act
The Court agreed with the trial judge’s finding that there was prima facie evidence of conspiracy between the appellant and others, as established through the testimony of Dr. Onabamiro. This made Section 11 of the Evidence Act applicable to the case.
Dictum:“On the evidence of Dr. Onabamiro on the formation of the conspiracy, the judge rightly ruled at an early stage that there was a prima facie case of conspiracy, which made section 11 of the Evidence Act apply.”
4. Joinder of Offences under Section 158 of the Criminal Procedure Act
The Supreme Court clarified that Sections 157 to 161 of the Criminal Procedure Act should be read independently. Specifically,Section 158 justified the inclusion of Count 3 (conspiracy to contravene the Firearms Act) since a conspiracy to effect an unlawful purpose may simultaneously serve as an overt act of treasonable felony and a separate offence.
Dictum:“A conspiracy to effect an unlawful purpose may be an overt act of treasonable felony and may also constitute a separate offence.”
5. On Accomplices and Categories of Particeps Criminis
The Court made an important clarification regarding accomplices. It held that a person who commits an offence under Section 40(2) of the Criminal Code is guilty of a separate and distinct offence, and such a person cannot be regarded as an accomplice or particeps criminis in the main offence charged.
Applying this reasoning, the Court held that Dr. Onabamiro was not an accomplice. His conduct did not manifest any intention to execute the plot or assist after the fact.
Dictum:“An offence against subsection (2) of section 40 is a separate and distinct offence; it does not make a person who may be guilty of it an accomplice as a particeps criminis in respect of the actual crime charged.”
6.Sentencing and Judicial Discretion
The Supreme Court further cautioned against prosecutors requesting the maximum sentence for an accused person. Sentencing, the Court emphasized, must be left entirely to the discretion of the trial judge.
Dictum (Per Curiam):“It is not desirable for prosecution counsel to ask for the maximum sentence; the sentence should be left to the discretion of the trial judge.”
The Supreme Court allowed the appeal in part:The conviction on Count 2 (conspiracy to levy war under Section 516) was quashed.
The remaining convictions were upheld, as there was sufficient evidence establishing the appellant’s participation in the conspiracy and the overt acts that followed.
The Court also recommended that sentencing should not exceed what was imposed on the co-accused.
AFRICAN PRESS LTD V. THE QUEEN (1952) WACA 57–Sedition in Nigerian Law
Criminal Law: Burglary and Housebreaking – Meaning and Differences Under Nigerian Law
Key Legal Principles and Ratios Established in ENAHORO V. R, (1965)
A charge of conspiracy to levy war must be brought under Section 37(2), not under Section 516 of the Criminal Code.
Refusal of particulars will not amount to a miscarriage of justice if the accused had sufficient notice of the case against him.
The Evidence Act, Section 11, applies where a prima facie case of conspiracy exists.
Under Section 158 of the Criminal Procedure Act, multiple counts may be joined if they relate to one continuous transaction or unlawful purpose.
Not every person aware of a criminal plan is an accomplice; participation must be proven by act or intent.
Sentencing remains a matter of judicial discretion, not prosecutorial demand.
The supreme court to give credence and authorities to their decision in this very case cited the following cases.
Omisade & Ors. v. The Queen (1964) 1 All N.L.R. 233
Queen v. Omisade & 17 Ors. F.S.C. 404 of 1963
Dau v. Kano Native Authority Police 12 W.A.C.A. 14
R. v. Nwankwo & Anor 12 W.A.C.A. 16Onubaka v. R. (1959) 4 F.S.C. 267
R. v. Cooper & Compton (1947) 32 Cr. App. R. 102
R. v. West & Ors. (1948) 1 K.B. 709
R. v. Dawson & Wenlock (1960) 1 W.L.R. 163
Balogun v. Police 20 N.L.R. 148
Davies v. D.P.P. (1954) A.C. 378
R. v. Coney & Ors. (1881-1882) 8 Q.B.D. 534
Frequently Asked Questions (FAQs) – Enahoro v. The State (1965)
1. What did Anthony Enahoro do for Nigeria?
Anthony Enahoro was one of Nigeria’s foremost nationalists, journalists, and politicians. Before his trial in Enahoro v. The State (1965), he played a vital role in Nigeria’s independence movement and served as a Federal legislator and Minister in the Western Region Government.However, in this case, he was accused of being part of a Tactical Committee led by Chief Obafemi Awolowo, which allegedly conspired to overthrow the Federal Government by force of arms.The Supreme Court later ruled that while procedural errors occurred in charging him, the evidence still showed he was involved in a conspiracy that fell within the ambit of treasonable felony under Nigerian criminal law.
2. What amounts to treason in Nigeria?
Under Nigerian law, treason refers to levying war against the State with the intention of overthrowing the government or harming the Head of State.Section 37(1) and (2) of the Criminal Code define treason and treasonable felony, respectively.
In Enahoro v. The State, the Supreme Court clarified that a conspiracy to levy war is a form of treasonable felony — but it must be specifically charged under Section 37(2), not Section 516.Thus, anyone who plans, assists, or recruits others to use arms to overthrow the government can be found guilty of treasonable felony in Nigeria.
Dictum:“Count 2 should have been laid under section 37(2) of the Criminal Code and the prosecution erred in laying it under section 516; the conviction on it is quashed.”
3. Where does the name Enahoro come from?
The name Enahoro originates from the Edo ethnic region of Nigeria. Anthony Enahoro himself was born in Uromi, Edo State. He was widely known as a nationalist who moved the historic motion for Nigeria’s independence in the 1950s.
The Enahoro v. The State case, however, became a defining moment in his life — marking him as both a political figure and a subject of one of Nigeria’s earliest treasonable felony trials.
4. What’s the difference between treason and treasonable felony?
This distinction was a central point in Enahoro v. The State (1965) and remains crucial in Nigerian criminal law.
.Treason (Section 37(1), Criminal Code):Refers to actually levying war or taking direct steps to overthrow the government by violent means.It is the highest offence against the State and carries the most severe penalties, including death in some circumstances.
.Treasonable Felony (Section 37(2), Criminal Code):Involves planning, conspiring, or attempting to levy war or overthrow the government — even if the plan is never executed.It punishes the preparatory or conspiratorial acts leading to treason.
In the Enahoro case, the Supreme Court held that conspiracy to levy war falls within treasonable felony, and therefore, such a charge must be properly framed under Section 37(2) and not as a general conspiracy under Section 516.
FOR MORE CASE ANALYSIS LIKE THIS,USE THE WEBSITE SEARCH BAR