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DANIEL OJO OGBEBOR
V.
COMMISSIONER OF POLICE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
15TH DAY OF FEBRUARY, 1950
2PLR/1951/41 (WACA)
OTHER CITATION(S)
2PLR/1951/41 (WACA)
(1950) XIII WACA PP. 22-24
LEX (1950) – XIII WACA 22-24
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BEFORE THEIR LORDSHIPS:
VERITY, C.J., NIGERIA
RHODES, J.
BAIRAMIAN, J.
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BETWEEN:
DANIEL OJO OGBEBOR – Appellant
AND
COMMISSIONER OF POLICE – Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. CR. APP. 3123/50
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REPRESENTATION
David — for Appellant
Lloyd, Crown Counsel — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE – CORRUPTION:- Person employed in the Public Service charged that he had corruptly “demanded” and “taken” under colour of his employment a certain sum of money contra section 404(1)(a) of the Criminal Code – Duplicity alleged – Whether duplicity necessarily fatal – Words “under colour of his employment” interpreted.
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CASE SUMMARY
This was an appeal from the Supreme Court confirming a conviction of a Magistrate’s Court of an offence contra section 404(1)(a) of the Criminal Code.
Both Courts rightly found that the appellant had demanded from a litigant and had been paid money to use his influence with the bench of the native court, of which he was a clerk, to secure that a case should be dismissed. It was no part of the appellant’s status to advise the bench, his sole duties at the hearing of cases being to record the proceedings.
Counsel for the appellant argued that the charge was bad for duplicity and that the acts complained of had not been done by the appellant under colour of his employment.
This Court referred to the case of Commissioner of Police v. Potts Johnson (2), which was subsequently held to have been wrongly decided by the case of Commissioner of Police v. Ganiya Adisa Motayo (1).
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. There was duplicity, but as it had occasioned no miscarriage of justice it was not fatal.
2. The appellant neither had not represented himself to have any duty to perform or to refrain from performing by reason of his employment in relation to the demand made by him.
3. The appellant had not, therefore, made the demand under colour of his employment. The conviction was set aside and a verdict of acquittal entered.
Cases referred to:
(1) Commissioner of Police v. Ganiya Adisa Motayo, 13 W.A.C.A. 4.
(2) R. v. Thompson, (1914), 2 K.B.99.
(3) Commissioner of Police v. Potts-Johnson, 12 W.A.C.A. 198.
(4) R. v. Eke, W.A.C.A. Judgments, 13th April, 1945.
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MAIN JUDGMENT
The following Judgment was delivered:
VERITY, C.J.
This is an appeal from a decision of the Supreme Court on appeal affirming a conviction in a Magistrate’s Court under section 404(1)(a) of the Criminal Code.
The facts are that the appellant who was a clerk of a Native Court demanded from a litigant therein a sum of money in order that the case in which the latter was involved, should be “quashed”. In the Courts below this was interpreted as meaning, we think rightly, that the appellant should use his influence with the bench of the Court of which he was a clerk to secure that the case should be dismissed.
From the evidence it appears that it is no part of the appellant’s duty to advise the bench, his sole duty in regard to the bearing of cases being to record the proceedings. The amount demanded was paid to and taken by the appellant and thereafter these proceedings were instituted, the charge alleging that he had both “demanded” and “taken” the sum involved “corruptly, and under colour of his employment” contrary to the section above mentioned.
In the first place it was submitted on behalf of the appellant that the learned Judge on appeal erred when, having found that the charge was bad for duplicity, he nevertheless dismissed the appeal on the ground that there had been no miscarriage of justice. On the authority of R. v. Thompson (2), we are of the opinion that this course was open to the learned Judge. We would observe, however, that this point not having been made a ground of appeal and not, as he himself held, having occasioned any miscarriage of justice, it was unnecessary for him to have dealt with it. We would further observe that it does not necessarily follow that in every case in which the charge is bad for duplicity there can be no miscarriage of justice and care should be observed by those who institute criminal proceedings to see that charges are properly laid. Such a misjoinder may in other circumstances cause a grave miscarriage of justice. In regard to the remaining grounds of appeal it is necessary to deal only with that which alleges that the acts of the appellant do not fall within the scope of section 404(1)(a) of the Criminal Code.
In determining this question it is necessary to consider the true interpretation to be placed upon the words of that section, which in so far as they relate to the present charge, are as follows:-
“Any person who, being employed in the public service of Nigeria, or in that of any other government, corruptly and under colour of his employment, demands, or takes property from any person … is guilty of a felony.”
The meaning and effect of the words “corruptly and under colour of his employment” have been the subject of earlier judgments of this Court, more particularly in Commissioner of Police v. Potts-Johnson (3), in which reference was made to R. v. Eke (4), and upon which the Court in the Potts-Johnson case appeared to have placed considerable weight in arriving at its decision, although in point of fact the observations of the Court in Eke’s case in regard to section 404 of the Criminal Code would appear to be obiter dicta, for in order to determine whether or not the accused person had been properly convicted of an offence under section 98(1) of the Criminal Code it was unnecessary to decide whether he could or could not properly have been convicted under section 404.
Following the observations in the earlier case, however, the majority of the Court in the Potts-Johnson case appear to have held the view that where a public officer alleges that he has a certain duty to perform and demands from any person any property in consideration of his refraining from performing that duty, this constitutes demanding the property “corruptly and under colour of his employment”. Whatever doubts we may have as to correctness of this view, it is unnecessary for us to express them in this judgment, nor is it necessary for us to consider whether in our opinion the Potts-Johnson case was properly decided, nor whether if that be not so it is open to this Court to differ from the decision therein, for in the present case the facts are by no means the same, and we would express the view that, in any event, the decision in Potts-Johnson’s case should not be extended beyond the limits to which it expressly applies. In the present case the appellant neither had nor represented himself to have any duty either to perform or to refrain from performing by reason of his employment in relation to the nature of the demand made by him. Although by reason of his employment as a clerk of the Court the person upon whom the demand was made may have believed that the appellant could, in fact, influence the members of the Court, we cannot think that his offer to do so was made “under colour of his employment” no matter how loosely those words may be construed nor how corrupt may have been his conduct. We would not wish to fall into the error of purporting to determine in this case whether or not the appellant may have been guilty of an offence contrary to some other section of the Criminal Code, but we would observe that the responsible for the commencement of these proceedings might have done well to consider the provisions of section 115 of the Code, which deals with “accepting reward to influence members of native tribunals”.
We are of the opinion that the appellant was wrongly convicted of an offence contrary to section 404 of the Criminal Code and that his appeal should have been allowed.
The conviction is therefore quashed, the sentence set aside and verdict of acquittal entered.
Appeal allowed.
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