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GEORGE DIAMANTIDES
V.
CHIEF INSPECTOR OF MINES
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
26TH DAY OF JULY, 1950
2PLR/1950/30 (WACA)
OTHER CITATION(S)
2PLR/1950/30 (WACA)
(1950) XIII WACA PP. 94-97
LEX (1950) – XIII WACA 94-97
BEFORE THEIR LORDSHIPS:
AMES, Ag. C.J., NIGERIA
JIBOWU, J.
RHODES, J.
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BETWEEN:
GEORGE DIAMANTIDES – Appellant
AND
CHIEF INSPECTOR OF MINES – Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. CR.APP.3262/50
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REPRESENTATION
H. O. Davis for Appellant
Amachree, Crown Counsel, for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Agent provocateur – Impropriety of procuring commission of an offence by an agent provocateur – Legality of conviction not affected – Meaning of the word “persons” in the provision of Regulation 53(1) of the Mineral Regulations considered.
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CASE SUMMARY
The appellant was convicted of recovering minerals in contravention of Regulation 53(1) of the Minerals Regulations.
The facts disclosed that in consequence of information received from an informer the police deliberately trapped the appellant into receiving tin ore from the police.
On this appeal the Court considered (inter alia) the construction to be placed on the word “persons”, in the proviso to Regulation 53(1) of the Minerals Regulations, and the effect on the legality of a conviction when it was procured by means of an agent provocateur. On the second point, appellant’s Counsel relied on the dictum of the Lord Chief Justice of England in the case of Brannan v. Peek (1), declaring that the method of securing convictions by means of an agent provocateur was contrary to public policy and should not have been allowed to form the foundation of a prosecution or conviction.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal against conviction, but sentence reduced) that:
1. That the word “person” in the proviso to Regulation 53(1) of the Mineral Regulations meant that the regulation did not apply to persons receiving minerals under section 68 of the Ordinance or to licensed gold dealers or to licensed goldsmiths. Accordingly the proviso did not afford any protection to the appellant in the circumstances of this case.
2. That it is unlawful for a police constable to provoke a crime, but not unlawful for a police constable to feign participation in a crime which is going on in order to observe and-obtain evidence. In this case, there was nothing to show that the police constable was present in order to obtain evidence of a crime being committed. The police constable had provoked the crime and his conduct was improper, but that did not affect the legality of the conviction, and was only material on sentence which this Court reduced.
Cases referred to:
(1) Brannan v. Peek (1947), 2 All E.R. 572.
(2) John Abakah, W.A.C.A. 2855.
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MAIN JUDGMENT
The following judgement was delivered:
AMES, AG. C. J., NIGERIA.
The appellant was convicted in the Court of the Magistrate, Jos, of receiving minerals, namely ten bags containing ore of tin and columbium, in contravention of Regulation 53 (1) of the Minerals Regulation.
He was sentenced to six months’ imprisonment and £50 fine or a further six month in default. He appealed to the Supreme Court against both conviction and sentence; the appeal was dismissed and the conviction upheld, but the sentence was varied by reducing the first term of imprisonment to three months. This appeal is against that dismissal of his appeal and he again appealed against his sentence.
It will be convenient to consider first the second of the additional grounds of appeal, which is as follows:-
“That Raymond Ogbakwe of Bukuru, the ‘Agent provocateur’ in the case was never at any material time in possession or control of the ten bags of minerals and the appellant could not have received them from him.”
Regulation 53 (1) is as follows:-
“No person shall receive any mineral from any person other than a tributer duly registered by the receiver, and such tributer shall, at the time of such receipt, be in possession of his tally, the particulars of which shall be recorded by the receiver.
“Provided that the provisions of this sub-regulation shall not apply to persons duly authorised under section 68 of the Ordinance to purchase minerals, or, in the case of gold, to a licensed dealer or to a licensed goldsmith.”
The word “receive” is not defined in the Minerals Regulations or in the Minerals Ordinance, under which the Regulations are made, or in the Interpretation Ordinance. There is nothing in the Ordinance or the Regulations to suggest that the word is intended to have any special meaning or any meaning other than its ordinary normal meaning, which is a wide one, as any dictionary will show
What happened in this case is, as the learned Magistrate found the facts to be, briefly as follows: In consequence of information given to them the police planned a trap for the appellant. It was arranged that the informer (who has also been referred to as Agent provocateur) should take tin to the appellant, supposedly to sell it to him. The police supplied him with the tin ore. It was obtained, with the help of the Mines Department, from Jos Tin Areas Ltd., and was in ten bags marked “Jos”. It was left in these bags, but the bags were in their tum put inside ten other bags, some marked N.G.T and some not marked at all. A bus (as it was called) was obtained, and the informer with police driver were sent off to the appellant’s house in Jos at about 10.15 p.m. one night. Two police officers and one Inspector of Mines also went independently to see what happened. When the bus got there the appellant was out at the cinema, but the ten bags were taken into his house and put in his tin store, and the informer went back to tell the police officers. Later on he returned to the house and went inside; and the driver waited at or near the door; and the others waited in the offing. When the informer entered he found that the appellant had already tested some of the minerals; and the appellant was not surprised at seeing the informer and he told him that he had found that the tin was not good tin. The appellant noticed that it was in bags which had not his marking on them and directed that the tin be turned out of the bags and put into head pans. Also at some stage or another the appellant noticed the driver outside the door and asked who he was and was told; and he then opened his safe, took out a pound and gave it to the informer on account of the cost of transport and the informer gave it to the driver. While the tin was being turned into the head pans and before this was finished, the police officers and Inspector of Mines came in. They had knocked but the door had not been opened, and so they forced it open.
The appellant was cautioned and asked what was in the head pans, and he replied, “That is tailings from my tin.” He was asked this three times and each time made the same reply. A search was made in the house and the yard… the rest of the tin and the bags. Two bags were found hidden between a drum and the wall of the yard and some empty bags were found close to the two full bags. These were similar to those brought, that is to say, the inner one marked “Joe” and some of the outer ones marked “N.G.T “.
We are satisfied, as was the learned Judge who heard the appeal from the Magistrate, that these findings of fact were justified by the evidence. In our view, and it was also the view of the learned Judge, these facts establish not only a receiving within the meaning of Regulation 53 (1), but also a receiving with guilty knowledge.
During the argument on behalf of the appellant it was suggested that the word “persons” in the proviso to Regulation 53 (1) did not refer to the “person” (“no person shall”) at the beginning of the Regulation, but to “person” in the phrase “from any person” which is used later on. In our view this is not correct, and having regard to sections 66-70 of the Ordinance and this Regulation, this proviso clearly means that the Regulation does not apply to people receiving mineral under section 68 of the Ordinance or to licensed gold dealers or licensed goldsmiths.
The foregoing disposes also of both of the original grounds of appeal.
The third additional ground of appeal is this:-
“There is no proper proof to the Court that the contents of the ten bags which were tendered in the case were tin ore and columbium.”
Admittedly there was a discrepancy as to the date on which the contents of the bars were assayed. Four were assayed by the fifth prosecution witness, who was asked to do so by the police in order to prove that what was recovered from the appellant’s premises was minerals within the meaning of the Ordinance and also what had been given to the informer to take there. In spite of this discrepancy there was sufficient evidence to justify the learned Magistrate’s findings of fact that what was sent and what was found when the police entered was mineral ore containing 9 per cent tin and 34 per cent columbium; and so it was metalliferous minerals within the definition of “Minerals” in the Ordinance.
We will now revert to the first ground of appeal which is this:-
“That the method employed by the police to trap the appellant contrary to public policy and should not have been allowed to form the foundation of prosecution or conviction.”
During the argument about this we were referred to the dictum of the Lord Chief Justice in the case of Brannan and Peek (1). The learned Chief Justice said:-
“The Court observes with concern and disapproval the fact that the police authority at Derby thought it right to send a police officer into a public house to commit an offence. It cannot be too strongly emphasised that, unless an Act of Parliament provides for such a course of conduct and I do not think any Act of Parliament does so provide-it is wholly wrong foe a police officer or any other person to be sent to commit an offence in order that an offence by another person may be detected, It is not right that police authorities should instruct, allow, or permit detective officers or plain-clothes constables to commit an offence so that they can prove that another person has committed an offence. It would have been just as much an offence for the police constable in the present case to make the bet in the public house as it would have been for the bookmaker to take the bet if in doing so he had committed an offence.”
It is one thing, and an unlawful thing, for a constable to provoke a crime, which is what happened in the case of Brannan and Peek (1). ·
It is another thing, but not an unlawful thing, for a constable to feign participation in a crime, which is going on, in order to observe and obtain evidence. This sometimes is necessary, for example, in cases of corruption such as the case of John Abakah (2) and is often the only way of bringing to book an offender, In Abakah’s case, and in all others of the same sort, the police did not provoke a crime. A crime had been committed in an unlawful demand for money and a complaint had been made to the police, and the police then supplied marked money to be given to the demander in order to obtain evidence in confirmation of the demand.
In this case, it seems that the informer and the appellant had had previous dealings together and that the informer claimed that he was owed money in respect of them. It may be that these previous dealings had been reported to the police as having been unlawful. There is evidence that the informer went to the appellant on the morning of the day in question and it would seem that this delivery of ten bags was a plan made by the police to entrap the appellant and that the appellant’s lack of surprise at its delivery was because of the previous visit of the informer.
If this was so, and we repeat that there is nothing to show that it was not so, in our view it was improper. It provoked this particular offence of which the appellant was convicted and it did not provide any proof or evidence to support any charge about any other existing offence. Suppose, for example, the appellant was alleged to have received illegally tin from him even ten times before, the provocation of this crime did not in any way prove the truth of that allegation. This aspect of the matter affects the question of the sentence imposed on the appellant. It does not affect his guilt. Even if he was provoked by the police, he nonetheless committed the offence. On the contrary, however, had he not been provoked into doing it, he certainly would not have committed this particular offence and it does not follow that he would necessarily have committed any other similar offence in the future.
Having regard to this aspect of the matter, we think it right to mitigate the punishment by quashing the first term of imprisonment of three months. The alternative imprisonment if the fine is not paid is not affected.
Appeal against conviction dismissed, but sentence reduced.
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