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REX
V.
ROMANUS EZEJIOGU
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
14TH DAY OF JULY, 1944
2PLR/1944/43 (WACA)
OTHER CITATION(S)
2PLR/1944/43 (WACA)
(1944) X WACA PP. 230 – 232
LEX (1944) – X WACA PP. 230 – 232
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
BAKER, J.
BROOKE, J.
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BETWEEN:
REX – Respondent
AND
ROMANUS EZEJIOGU – Appellant
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ORIGINATING COURT(S)
Appeal from the judgment of the High Court of the Calabar-Aba Judicial Division sitting at Port Harcourt (A/30. C/1944)
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REPRESENTATION
J. I. C. Taylor — for the Appellant
N. G. Hay, Crown Counsel — for the Crown
ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Charge of corruption contrary to section 116(1) of the Criminal Code – Conviction on evidence not establishing charge as laid – How treated on appeal
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CASE SUMMARY
The Appellant (Romanus Ezejiogu) a police constable, was charged under section 116(1) of the Criminal Code of Nigeria, the particulars in the charge being that he had corruptly received £1 10s. and a wrist watch from a person in order not to arrest that person, who, to his knowledge had committed an offence under the Customs Ordinance. The evidence showed that he threatened to prosecute that person for buying a watch without a receipt from the trader who sold it to him, falsely alleging that there was a new law which made that person’s omission to take a receipt punishable. The Appellant took the watch and offered not to take that person to Court if given, money, and received £1 10s. He was convicted of an offence contrary to section 116(1) of the Criminal Code.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
1. Section 116(1) of the Criminal Code does not apply to cases where there is no ground for a suggestion that an actual offence has been committed by the person from whom money is demanded, as in such a case the demand is not made “with a view to corrupt or improper interference with the due administration of justice, or the procurement or facilitation of the commission of any offence, or the protection of any offender from detection or punishment”.
2. Semble: Although a charge under section 404 of the Code might have been brought, the Court of Appeal could not substitute a conviction under that section seeing that on the charge before him the trial Judge could not have convicted the appellant under that section.
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MAIN JUDGMENT
The following joint judgment was delivered:-
The Appellant was charged in the High Court of the Calabar-Aba Judicial Division sitting at Port Harcourt upon two counts namely:
“Statement of offence-1st count
Official Corruption, contrary to section 116(1) of the Criminal Code.
“Particulars of offence
“Romanus Ezejioga, on the 5th day of April, 1944 at Port Harcourt, being a person employed in the public service to wit a constable in the Nigeria Police Force, did corruptly receive the sum of 30s. and a wrist watch for himself from Thomas Ebomuche on account of an act to be omitted to be done by the said Roman us Ezejiogu namely, to omit to arrest the said Thomas Ebomuche who, to his, the said Roman us Erejiogu’s knowledge had committed an offence under the Customs Ordinance.
“Statement of offence – 2nd count
“Demanding property with menaces, contrary to section 406 of the Criminal Code.
“Particulars of offence
“Roman us Ezejiogu, on the 5th day of April, 1944 at Port Harcourt, with intent to steal did demand the sum of £2 and a watch from Thomas Ebomuche, with threats to the said. Thomas Ebomuche that if the said Thomas Ebomuhe did not comply with such demand, he, the said Romanus Ezejiogu, would accuse the said Thomas Ebomuche of having committed an offence against the Customs Ordinance,”
He was convicted upon Count 1 and sentenced to six months I.H.L. He was acquitted upon Count 2, the learned trial Judge saying, “There is no evidence of ‘intent to steal’ the watch and so I find accused not guilty on Count 2”.
He has appealed to this Court against his conviction upon the first count.
The evidence of the complainant, which was substantially believed by the learned trial Judge was:
“On 5th April I went to work in the morning; by noon on my return I came along Aggrey Road. Someone came to me: it was accused; he was in plain clothes; I knew him before as a Police Constable; he had on a red school cap, white singlet and coat and white knickers; and white canvas shoes. He had a Raleigh cycle with him; he said that I was wanted at the Police Office: I asked him why; he said I had bought a wrist watch which had been smuggled; I told him it was not smuggled as I bought it from a certain trader; he asked me to show him the watch and how much I paid; I did so; I told him I paid £I 15s. Accused put the watch in his pocket. He then asked me if I had obtained a receipt from the trader; I said “No”. He said there was a new law under which any person who buys anything in the Township shall obtain a receipt from the seller and having broken this law I might be fined £10 if taken to Court or be sent to prison for two years in default, which implied I would lose my job. I was very afraid. He asked me to follow him to the Police Station. On the way there, at Aba Street he stopped me and asked me which I would prefer: to settle the matter there and then with him or to be taken to Court. I said I preferred to settle with him. He asked me to give him money; to make an offer; I offered 5s.: he refused this and I then offered 10s.; this also he refused. He then demanded £3; I refused and agreed to pay £2 and he agreed.”
Subsequently the complainant paid the Appellant £1. 10s. out of the £2 agreed upon.
It will be observed that the evidence does not bear out the wording of the particulars given in the two counts. The particulars refer to the commission of an offence against the Customs Ordinance, whereas the complainant’s evidence refers to a threat to accuse him of an offence against a wholly fictitious “new law” as to obtaining receipts.
As to this, the learned trial Judge found:
“I have no reasonable doubt about accused’s guilt on count 1. I am satisfied he did receive a bribe from Thomas and that the suggestion of taking a bribe came from the accused himself; it was given so that accused should not prosecute Thomas for an alleged offence namely, failing to get a written receipt from the seller of the watch when the complainant bought it–which, as far as I know is no offence in law. The accused, however, told the complainant that it was an offence and the complainant believed him. It is going to open up a very wide field of fraud and abuse of office if a constable is to be permitted with impunity to obtain money from innocent and unsuspecting civilians if he merely charges them with a fictitious offence which, is, in fact, no offence in law.”
We are of opinion that such finding is incorrect in law and that section 116(1) of the Criminal Code does not apply to cases where there is no ground for a suggestion that an actual offence has been committed by the person from whom money is demanded. In such a case the demand is not made either “with a view to corrupt or improper interference with the due administration of justice, or the procurement or facilitation of the commission of any offence, or the protection of any offender from detection or punishment”.
Nevertheless a constable cannot make such a demand “with impunity”. His act is clearly an offence against section 404 of the Criminal Code. We say this as quite a general proposition and must not be understood to mean that the Appellant has necessarily been proved to have committed an offence under section 404. Any question of our acting upon the record before us to substitute a conviction under section 404 for the conviction under section 116(1), does not arise, since we should only have the power to make such a substitution if the trial Judge could on the charge have found the Appellant guilty under section 404, and clearly he could not. We therefore have no option but simply to quash the conviction.
The appeal is allowed, the conviction and sentence are quashed and it is directed that a judgment and verdict of acquittal be entered.
The Appellant is discharged.
Appeal allowed, conviction and sentence quashed.
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