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REX
V.
OKEREKE ANYALEME AND OTHERS
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
9TH DAY OF JANUARY, 1943
2PLR/1943/33 (WACA)
OTHER CITATION(S)
2PLR/1943/33 (WACA)
(1943) IX WACA PP. 23 – 24
BEFORE THEIR LORDSHIPS:
KINGDON, C.J., NIGERIA
BUTLER LLOYD, J.
FRANCIS, J.
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BETWEEN:
REX – Respondent
AND
OKEREKE ANYALEME AND OTHERS
Re 1. OKEREKE ANYALEME
2. HAROLD NKWAZEMA – Appellants
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REPRESENTATION
E. H. Hunter — for Crown
J. I. C. Taylor — for Appellants
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Official corruption, contrary to section 98 (1) of Criminal Code — “Duty touching the administration of justice” — Power of Court to convict of violence contrary to section 116(1) considered
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. The duty of prosecuting for an offence of forgery is clearly a duty touching the administration of justice, and does not come within the ambit of section 98(1) of the Criminal Code.
2. The other is that we are of opinion that the first count relating to stealing ought not to have been joined with the three other counts relating to alleged offences of a different nature committed at different times.
3. Further that the Court was unable to substitute for a conviction under section 98(1), one under section 116(1), as the trial Judge would save been unable to convict under the latter section on the charge before him, and the Court of Appeal was in no better a position.
Convictions and sentences quashed.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, BUTLER LLOYD AND FRANCIS, J.J.
The first appellant in this case was convicted by John, Assistant Judge, sitting in the Calabar-Aba Judicial Division of –
C.C. 98 (1). Official corruption.”
with the following particulars:-
“In that Okereke Anyaleme on the 13th September, 1942, at Amasama in the Aba Judicial Division being employed in the public service to wit, a police constable did corruptly ask and receive the sum of £5 for himself from Erastus Efitih to omit to prosecute him for an offence of forgery.”
and the second appellant was convicted at the same trial upon similar charge with the particulars:
“In that Harold Nkwazema on the 11th September, 1942, at Amassama in the Aba Judicial District being a person employed in the public service to wit a police constable did corruptly ask and receive the sum of £5 for himself from Erastus Efitih in order to omit to prosecute him for an offence of forgery,”
Section 98(1) of the Criminal Code reads as follows:-
”Any person who—
(1) being employed in the public service, and being charged with the performance of any duty by virtue of such employment, not being a duty touching the Administration of justice, corruptly asks, receives, or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself or any other person on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by him in the discharge of the duties of his office;
is guilty of a felony, and is liable to imprisonment for seven years.”
We are of opinion that the duty of prosecuting for an offence of forgery is clearly a duty touching the administration of justice, and that therefore the prosecution under the section was misconceived and the convictions cannot stand. Learned counsel for the Crown agrees with this view and does not seek to support the convictions under section 98(1) but asks us to substitute for the convictions under section 98(1) convictions contra section 116(1) of the Criminal Code and sentence the appellants accordingly. He asks us to do this in pursuance of the powers vested in the Court by section 11(2) of the West African Court of Appeal Ordinance, 1933 (No. 47 of 1933). But under that section the powers of substitution are limited to substituting for the verdict a verdict of guilty of an offence of which the trial Judge could on the information or charge “have found an appellant guilty.
Clearly on the charges upon which the two appellants were respectively tried the Judge could not have found them guilty of offences contra section 116(1) of the Criminal Code, and therefore we have no power to make the substitution prayed.
That disposes of the appeal in the appellants’ favour, but there are two other matters which we think it proper to mention, one is that, in our view, the witness Efitih was a victim and not an accomplice. The other is that we are of opinion that the first count relating to stealing ought not to have been joined with the three other counts relating to alleged offences of a different nature committed at different times.
The appeals are allowed, the convictions and sentences of the two appellants are quashed, and it is directed that in the case of each appellant a judgment and verdict of acquittal be entered. The appellants are discharged.