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REX
V.
BUDDIE UDO EDEM EKA
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
13TH DAY OF APRIL, 1945
2PLR/1945/21 (WACA)
OTHER CITATION(S)
2PLR/1945/21 (WACA)
(1945) XI WACA PP. 39 – 41
LEX (1945) – XI WACA PP. 39 – 41
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
HARRAGIN, C.J., GOLD COAST
BAKER, J.
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BETWEEN:
REX – Respondent
AND
BUDDIE UDO EDEM EKA – Appellant
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ORIGINATING COURT(S)
APPEAL FROM HIGH COURT, NIGERIA
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REPRESENTATION
S. A. Mckinstry — for Crown
Appellant not present
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE – CORRUPTION:- Official corruption contrary to Section 96(1) of the Criminal Code — Charge brought under a wrong law — Trial and conviction by Magistrate — Appeal to High Court — No evidence before Magistrate that accused employed in the Public Service or of nature of duties — Case remitted by Judge to take further evidence — Section 175(1) of Criminal Procedure Ordinance, Cap. 20 — Case again before High Court — Police not supporting conviction — Conviction upheld by the Judge — How treated on appeal
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal):
1. That the order remitting the proceedings for further evidence ought not to have been made although it was strictly within the letter of Section 175(1) of the Criminal Procedure Ordinance.
2. That the proceedings should have been brought under Section 175(1) and not under Section 98(1) of the Criminal Code.
3. When the prosecution has proceeded under the wrong section it is not for the Court to strain the meaning of words so as to bring an offence within a section under which an accused person has been wrongly charged.
Appeal allowed. Conviction quashed.
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MAIN JUDGMENT
The following judgment of the Court was delivered by KINGDON, C.J., NIGERIA:-
The Appellant was charged before the Magistrate of the Opobo Magisterial Area with official corruption contrary to section 98(1) of the Criminal Code, the particulars of the offence being given as –
“For that you Buddie Udo Edem Eka on the 20th day June, 1944, at Ikot AbAai, Eket, in the Opobo Magisterial Area, being employed in the Public Services as Sanitary Overseer under Eket Native Authority, being charged with the performance of any duty by virtue of such employment did corruptly ask (Dan Esu and others) or attempt to receive from Dan Esu and others the sum of (£1) one pound, 1 goat and 5 yams.”
He was convicted and sentenced to 6 months’ imprisonment with hard labour.
Against that conviction he appealed to the High Court of the Calabar-Aba Judicial Division.
That Court found that in the Magistrate’s Court no evidence had been given that the Appellant was a person employed in the public service and there was no evidence as to the nature of the Appellant’s duties. In order to establish an offence against section 98(1) of the Criminal Code evidence on both these points is essential, for the sub-section reads:-
“(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; or.”
Accordingly, acting under the provisions of section 175(1) of the Criminal Procedure Ordinance (Cap. 20), the learned Judge in the High Court remitted the proceedings to the Magistrate to take further evidence upon the following three questions:-
“(i) Is the Eket Native Authority one established by law and if so under what authority?
(ii) Was the accused appointed to any office under any Statute or Ordinance?
(iii) If the answer to (ii) is in the affirmative what were the nature of his duties at the time of the alleged offence?”
In pursuance of the order evidence was given which made good the defects in the original proceedings.
The appeal then came again before the High Court, when the police offered no further argument and did not support the conviction, the police inspector who appeared admitting that the acts of the Appellant did not amount to anything to be omitted in the discharge of his duty, and saying “the proper section should have been 404(1)”.
Nevertheless the learned Judge in the High Court upheld the conviction, and learned Counsel for the police has sought to uphold it in this Court.
However after the appeal had been argued before us we allowed the appeal and quashed the conviction for two reasons.
First, we are of opinion that the order remitting the proceedings for further evidence was one which ought not to have been made. We are, aware that the order is strictly within the letter of section 175(1) of the Criminal Procedure Ordinance, but we are of opinion that that section is intended to be used, for instance, to clear up a doubtful point, and that it is against the first principles of the administration of justice to use the section so as to give the prosecution a second attempt to prove its case. It is fundamental that in a criminal trial the onus is upon the prosecution to prove all the elements which go to make up the offence charged. If it fails to prove any one of them the accused is entitled to an acquittal, and if in spite of that he is convicted, he is, entitled to have the conviction quashed on appeal. To us it is a novel, and we think an erroneous proposition, that instead of quashing the conviction the Appeal Court should be able to remit the case for the prosecution to have a second chance to prove the fundamental elements of the offence. A power very similar to that conferred by section 175(1) of the Criminal Procedure Ordinance is enjoyed by the Court of Criminal Appeal in England, but we have never heard of it being employed in the manner in which the power was exercised in this case.
For these reasons we felt it our duty to examine the case in the form in which it originally came before the High Court on appeal, and admittedly at that stage the prosecution had failed to discharge the onus of proving all the elements constituting the offence.
That is one reason which led us to quash the conviction.
The other is that we agree with the view of the inspector of police in the High Court that the proper section under which the proceedings should have been brought is section 404(1) and not 98(1), and that the Appellant was not proved to have asked for anything on account of something to be done or omitted by him in the discharge of his duty.
The learned Judge in the High Court accepted, and in one view rightly accepted, the finding of the Magistrate that the Appellant demanded a sum of money and other articles accompanied by the words:-
“If you will not give me £1, a goat and 5 yams I will bring a Court Messenger next time I come and whatever the condition of the village, I will throw you into prison.”
But the learned Judge interpreted these words as meaning not only—
“If you do not pay, the next time I come I will prosecute the villagers whether they have offended against the Sanitary laws or not”,
but also
“If you accede to my demand and pay me then I will refrain from prosecuting those who may have committed offence against the Sanitary laws”,
and it was on the strength of that second meaning that he upheld the conviction.
With all respect to the learned Judge’s long experience of the workings of the African mind we think that it was straining the words used further than they can legitimately be held to go to read into them the second of these two meanings. When the prosecution has proceeded under the wrong section it is not for the Court to strain the meaning of words so as to bring an offence within a section under which an accused person has been wrongly charged.
Since it is only by such a straining of words that the conviction can be upheld, we found this a second reason for quashing the conviction.
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