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GANIYU ADISA MOTAYO
V.
COMMISSIONER OF POLICE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
11TH DAY OF NOVEMBER, 1950
2PLR/1950/19 (WACA)
OTHER CITATION(S)
2PLR/1950/19 (WACA)
(1950) XIII WACA PP. 114 – 118
LEX (1950) – XIII WACA 114 – 118
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BEFORE THEIR LORDSHIPS:
BLACKALL, P.
VERITY, C.J., NIGERIA
LEWEY, J.A.
DE COMARMOND, S.P.J.
BAIRAMIAN, J.
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BETWEEN:
GANIYU ADISA MOTAYO – Appellant
AND
COMMISSIONER OF POLICE – Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. CR.APP.3294/50.
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REPRESENTATION
F. R. A. Williams with David — for Appellant
Plange, Acting Solicitor-General with F. Williams, Crown Counsel — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Interpretation of section 404(1)(a) of the Criminal Code – Meaning of the words “under colour of” construed – Power of Court to reconsider its previous decisions in criminal cases – Principle enunciated by Court of Criminal Appeal in England adopted – Rule of practice laid down that no previous decision of the Court will be reviewed save by a full Court constituted by five Judges
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CASE SUMMARY
The appellant was convicted by the Magistrate’s Court of an offence contra section 404(1)(a) of the Criminal Code. On appeal to the Supreme Court the appeal was dismissed.
On appeal to this Court Counsel for the appellant raised the following ground of appeal:
“That the appellant was wrongly convicted in that it was not proved that the amount alleged to have been received by the appellant was received by him’ under colour of his employment’, the case of Commissioner of Police v. Potts-Johnson (1) being wrongly decided.”
Counsel for the appellant had not argued this point before the Courts below as they were bound by the Potts- Johnson case which was a decision of this Court.
The Court considered, this may fairly be regarded as a special circumstance within the rule laid down in Commissioner of Police v. Esiaba (2) and leave to add this ground of appeal was granted.
The facts of the case were briefly as follows:-
The complainant handed the appellant, a railway clerk, a way-bill for the delivery of some kola nuts. The appellant threw it back, saying the custom is to pay three pence on each bundle to me and the complainant had to pay two shillings before obtaining delivery. The Magistrate found this to be a demand for what he called a “private charge” and this Court accepted that finding.
Counsel for the appellant conceded that he could not succeed unless this Court held that the Potts-Johnson case was wrongly decided. In J. W. Taylor (5) the Court of Criminal Appeal in England held that, in certain circumstances, it is not bound by his decisions in criminal cases, and this Court considered it could adopt the same course.
The pregnant words of the section 404(1)(a) are: “under colour of his employment ” and this Court was of the opinion that to constitute an offence there must be, not only a corrupt demand, but also a pretence that the party making it is lawfully empowered to do so by reason of his employment.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. This Court will adopt in criminal matters the principle enunciated in the Court of Criminal Appeal in the case of J. W. Taylor (5) and is not invariably bound by its previous decisions. This was an appropriate case to apply those principles.
2. As a matter of practice no previous decision by it will be reviewed save by a full Court constituted of five members.
3. The evidence did not disclose a pretence by the appellant that he was entitled to three pence a bundle as a legitimate perquisite of his post. He simply indicated that he would not carry out his duty unless he received a “dash “. He never implied he was lawfully empowered to demand the money by reason of his employment and he did not receive it under colour of his employment. The appellant was wrongly convicted.
4. That the cases of Commissioner of Police v. Potts-Johnson (1) and Rex v. Buddie Udo Eduns Eka (6) were wrongly decided and should be regarded as overruled.
Cases referred to:
(1) Commissioner of Police v. Potts-Johnson, 12 W.A.C.A. 198.
(2) Commissioner of Police v. Esiaba, W.A.C.A. 11th October, 1950.
(3) Azuboga v. C.O.P., 12 W.A.C.A. 358.
(4) Ogbebor, W.A.C.A., January-May, 1950.
(5) J. W. Taylor (1950), 2 All E.R., 172.
(6) Rex v. Buddie Udo Edun Eka, W.A.C.A., Nigeria, January-April 1945, 20.
(7) Rex v. Wallace-Johnson, (1940), A.C. 241.
(8) Catterall v. Sweetman, 163 E.R. 1047 at 1052.
(9) Rex v. Tideswell (1905), 2 K.B. 273.
(10) Rex v. Buckmaster, 20 Q.B.D. 182.
(11) Commissioner of Police v. Nwachuku, Egbujoh, Unreported, case, Supreme Court, Nigeria, 6tA September, 1949.
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MAIN JUDGMENT
The following judgment was delivered:
BLACKALL, P.
The appellant was convicted under section 404(1)(a) of the Criminal Code by the Magistrate’s Court, Kano. He appealed unsuccessfully to the Supreme Court and therefrom appealed to this Court on the following ground:-
“That the appellant was wrongly convicted in that it was not proved that the amount alleged to have been received by the appellant was received by him ‘under colour of his employment’, the case of Commissioner of Police v. Potts-Johnson being wrongly decided.”
Counsel for the appellant stated that he had not put forward this argument in the Courts below, as they were bound by the Potts-Johnson case, which was a decision of the West African Court of Appeal. This may fairly be regarded as a special circumstance within the rule laid down in Commissioner of Police v. Esiaba (2) and leave to add this ground of appeal was granted.
The facts of the case are briefly these: The complainant handed the appellant, a railway clerk, a way-bill for the delivery of some kola-nuts. The appellant threw it back, saying “the custom is to pay three pence on each bundle to me”, and the complainant had to pay him two shillings before obtaining delivery. The Magistrate found this to be a demand for what he called a “private charge”. This Court accepts that finding; for there is nothing in the evidence to show that the appellant made any pretence that the sum was due to the Nigerian Railway: it was a barefaced demand for what, in local parlance, is termed a “dash”, and it was paid as such.
Mr Williams, for the appellant, conceded that the conviction was in accord with the interpretation placed upon section 404(1)(a) in the Potts-Johnson case (1), and he could not, therefore, hope to succeed unless he satisfied this Court both that the case in question was wrongly decided, and that this Court was not bound to follow it.
The Potts-Johnson appeal was heard by Verity, C.J., Baker and Brooke, JJ., but the judgment was signed by two Judges only. Verity, C.J, abstained, as he informs us, because he felt unable to agree with the conclusion reached by the other members of the Court. The decision of the majority is, however, the decision of the Court, and this Court in the subsequent cases of Azubogu (3) and Ogbebo, (4) felt bound to follow it. It is worthy of note, however, that one of the members of the Court of Appeal abstained from signing the judgment in Azugobu’s case, while the language of the Court in Ogbebor’s case indicated that the learned Judges who constituted it, entertained doubts about the correctness of the decision in Potts-Johnson. But as they came to the conclusion it was unnecessary for them to decide whether that judgment was correct, they refrained from deciding whether it would be open to them to differ from it.
Since the Ogbebor judgment was delivered, the Court of Criminal Appeal in England has clarified its attitude with regard to the reconsideration of previous decisions of the Court. In J. W. Taylor (1950) 2 A.E.R. 170 at 172) (5) Lord Goddard, L.C.J, said:-
“I should like to say one word about the reconsideration of a case by this Court. A court of appeal usually considers itself bound by its own decisions or by decisions of a Court of co-ordinate jurisdiction. For instance, the Court of Appeal in civil matters considers itself bound by its own decisions or by the decisions of the Exchequer Chamber, and as is well known, the House of Lords always considers itself bound by its own decisions. In civil matters it is essential in order to preserve the rule of stare decisis that that should be so, but this Court has to deal with the liberty of the subject, and if, on reconsideration, in the opinion of a full Court the law has been either misapplied or misunderstood and a man has been sentenced for an offence, it will be the duty of the Court to consider whether he has been properly convicted. The practice observed in civil cases ought not to be applied in such a case.”
This Court will adopt in criminal matters the principle enunciated by the Court of Criminal Appeal, and we considered that the present case was an appropriate one in which to apply it. In local conditions it would be impracticable to hold a Court of more than five Judges, but the practice will be that no previous decision of the Court will be reviewed save by a full Court constituted of that number.
In the present case the appeal was re-argued before five Judges, and I shall now proceed to state the reasons why we have unanimously reached the conclusion that the Potts-Johnson appeal was wrongly decided. The Court in that appeal relied on a passage in Rex v. Buddie Udo Edun Eka (6). That was a case where a sanitary overseer had been charged with official corruption contra section 98(1) of the Criminal Code, for having demanded money and other articles, saying: “If you will not give me one pound, a goat, and five yams, I will bring a Court messenger next time I come and whatever the condition of the village, I will throw you into prison.” In the course of its judgment in Eka’s case, the Court (Kingdon, P., Harrigan, C.J., and Baker, J.) agreed with the view of the prosecutor (an Inspector of Police) that the proceedings should have been brought under section 404(1). As the question before the Court was whether the appellant was properly convicted under section 98(1), that observation was no more than an obiter dictum: but the Judges who sat on the Potts-Johnson appeal seem to have regarded it as a binding decision. In any event they concurred with it.
The interpretation put on section 404(1) in these two cases has apparently caused some confusion in the minds of those responsible for the framing of charges in cases of this kind, and as we consider it to be incorrect, we shall endeavour to set out the meaning of section 404(1), as we conceive it, as plainly as possible. The pregnant words of the section are “under colour of his employment”. The expression ”under colour of” is to be found in legal phraseology from mediaeval times, and in the Potts-Johnson case reference was made to the Termes de la Ley, which define it as “an act evil done by the countenance of an office, and it bears a dissembling face of the right of the office”. The Court of Appeal brushed this definition aside on the strength of a passage in Wallace-Johnston v. The King (7). But that passage merely stated that as the law relating to seditious publications had been codified in the Gold Coast, it should be construed free from any glosses or interpolations derived from expositions of the law of England. We do not think the Judicial Committee intended to cast doubt on the dictum that the Acts of a Colonial legislature, where the English law prevails, must be governed by the same rules of construction as prevail in England and that English authorities upon Acts in pari materia are authorities for the interpretation of Colonial Acts (Catterall v. Sweetman) (8). Where, then, the local legislation uses a phrase found in English enactments its meaning should be considered in the light of English authorities.
Another reason given in the Potts-Johnson case for rejecting the definition in the Termes de la Ley was that it was many centuries old. With due deference to the views of the majority in that case, this Court finds it a little difficult to understand why a definition should be rejected on the score of age. Indeed, it appears to us that a definition that has been accepted without demur for centuries should not be disregarded unless it can be shown that the meaning has altered with the passage of time. But there is nothing to show that the expression “under colour of” has altered in meaning; on the contrary, the definition in Termes de la Ley appears in the most recent edition of Stroud’s Judicial Dictionary.
But, although the expression is frequently met with in judgments (e.g. Rex v. Tideswell (9) and Rex v. Buckmaster (10)). this Court has not been referred to any decided case to show that this expression is to be understood in any peculiar sense in the criminal law. It must, therefore, be given its ordinary grammatical meaning. In the Oxford Dictionary, Vol. 2, the phrase “under colour of” is defined as “on the pretext or pretence of, under the mask or alleged authority of”. Bairamian, J. in the unreported case of Nwachukwu, Egbujoh v. Commissioner of Police (11) discussed its meaning as follows:-
“The phrase ‘under colour of,’ is old. Shakespeare has it with the meaning – ‘under the appearance of’ in Two Gentlemen of Verona, IV, 2:
Under the colour of commending him
I have access my own love to prefer:”
(quoted by Kenny in his Outlines of Criminal Law, 1946, at page 232).
The phrase has survived in the similar sense of ‘under the pretext or false pleas’: see the Concise Oxford Dictionary under ‘colour’, which also gives the kindred meaning of ‘show of reason’, and quotes the expression of ‘give no colour for saying’, a variant of ‘lend colour to’ as when one says
a fact lends colour to a defence or claim. The word ‘colour ‘ is also used as a verb: an author is sometimes accused of colouring the facts, that is· to say, of pretending to state them fairly whilst really misrepresenting them … It should seem that section 404(1) relates to a public officer extorting money or its worth under the guise of legality; his claim is not genuine, though such ostensibly under his employment, but this is really a pretext for making the claim and a veil to give it the appearance of legality.
“From Russell on Crime, Vol I, at pages 573-7 (8th Edition), it appears that in olden days the charge embodied the Latin words colors officii—by colour of office, which is quaintly defined in the Termes de la Ley…. The language, though archaic, plainly means disguise, dissemblance and dissimulation in contrast to an openly corrupt and unlawful claim.”
This Court adopts the foregoing as a correct interpretation of section 404(1)(a). To constitute an offence under that section there must, in our view, not only be a corrupt demand, but also a pretence that the party making it is lawfully empowered to do so by reason of his employment. It is immaterial whether he pretends that the money is to be paid into the funds of the public authority that employs him or whether it is a perquisite for himself; it suffices if he conveys the impression to his victim, whether directly; or by implication that by virtue of his employment he is entitled to demand it.
Reverting to the Potts-Johnson case, there appears to have been no suggestion by the prisoner that the demand was one which a welfare officer could lawfully make: she openly asked for a bribe, intimating that if it was not forthcoming she would misuse the powers of her office to the detriment of the complainant.
In our view, therefore, that appeal was wrongly decided and should be regarded as overruled.
The same observation applies to the decision in Edon Eka and to the approval of that decision by the majority of the Judges in the Potts-Johnson case.
Lastly, the decision in the present appeal must depend upon the inference to be drawn from the evidence in the light of the interpretation of section 404(1)(a) as laid down by this full Court. That evidence did not disclose a pretence by the appellant that he was entitled to the payment of three pence a bundle as a legitimate perquisite of his post. He simply intimated that he would not carry out his duty by delivering the kola-nuts unless he received a “dash “. For the purposes of this appeal it is sufficient then to say that the facts disclosed by the evidence in this case did not constitute an offence under section 404(1)(a) under which the appellant was charged and convicted and the conviction must be quashed.
We do not propose to follow the example of the Court in Eka’s case by particularising the section under which the appellant might have been convicted: we will content ourselves with observing that the Criminal Code contains several other provisions (e.g. sections 98, 99, 100, 104) which are designed to deal with public officers who are minded to abuse the authority reposed in them by virtue of their employment.
Appeal allowed.
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