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REX
V.
SOLOMON OLUA
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
29TH DAY OF JANUARY, 1943
2PLR/1943/29 (WACA)
OTHER CITATION(S)
2PLR/1943/29 (WACA)
(1943) IX WACA PP. 30 – 32
LEX (1943) – WACA PP. 30 – 32
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BEFORE THEIR LORDSHIPS:
KINGDON, C.J., NIGERIA
BUTLER LLOYD, J.
FRANCIS, J.
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BETWEEN:
REX — Respondent
AND
SOLOMON OLUA — Appellant
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REPRESENTATION
S. A. McKinstry — for Crown
J. E. C. David — for Appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE — JUDICIAL CORRUPTION:- Acceptance of an inducement in exchange for a promise to use influence with the Courts to obtain donor’s acquittal — Nature of offence of attempt — How proved
CRIMINAL LAW AND PROCEDURE:- Attempt — Procedure — Accepting reward to influence Native Tribunal — Reward accepted, with a promise to influence the tribunal — Acquittal on substantive charge and conviction for attempt — Conviction on substantive charge not substituted — Criminal Code, section 115 — Criminal Procedure Ordinance, section 57 — West African Court of Appeal Ordinance, section 57 — West African Court of Appeal Ordinance, section 11(1) & (2).
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CASE SUMMARY
The appellant, a Native Court Clerk, accepted a cow with the promise that he would use his influence with the Court members to obtain the donor’s acquittal upon a criminal charge then pending before the Court. The trial Judge held that in the absence of any evidence that the appellant did use his influence as promised he could not be convicted of an offence again at section 115 of the Criminal Code, but that the promise to use his influence amounted to an attempt to commit the offence; and he convicted the appellant accordingly.
The Appeal Court was of the opinion that an attempt to commit the offence, if such an attempt were unable, would consist of an “attempt to accept the cow … for inducing…”; further, that a promise to influence the tribunal did not constitute an attempt to influence it; further, that if there had been an attempt to influence the tribunal, and if this the trial Judge held, did not satisfy the words of the section “for inducing” so as to warrant a conviction for the substantive offence, then it could, not warrant the conviction for the attempt.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. that the conviction was wrong.
2. Further, that since the trial Court had acquitted on the substantive charge, the Appeal Court should not substitute a conviction therefore for the convictions for an attempt.
Conviction and sentence quashed.
Quaere, whether “for inducing” in section 116 of the Criminal Code means for actually inducing” or for promising to try and induce “.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, BUTLER LLOYD AND FRANCIS, JJ.
In this case the appellant was charged before John, Assistant Judge, sitting in the Enugu-Onitsha Division of the High Court at Awgu upon the following two counts:-
”1st Count — C.C. 115 — Accepting reward to influence members of native tribunal.
Particulars — In that the accused during the month of May, 1940 at Anike in the Enugu-Onitsha Judicial Division accepted a cow valued two pounds from Okoli Ugu for himself to induce by corrupt or illegal means or by personal influence the Anike Native Court not to imprison Okoli Ugu.
2nd Count — C.C. 404 (1) (a) Public servant demanding property.
Particulars — In that the accused at the same time and place being a Native Court scribe of the Anike Native Court corruptly and under cover of his employment took a cow valued two pounds from Okoli Ugu.”
He was acquitted on the second count on the ground that evidence that he was employed as a Court scribe to the Anike Native Court was not sufficient to support a conviction under section 404 (1) under which the prosecution must prove that the accused is a person “employed in the public service of Nigeria “.
Upon the first count the finding was:
“Not guilty of the offence charged, but guilty of an attempt to commit the same. C.C. 510″.
Section 115 of the Criminal Code reads as follows:-
“115. Any person who accepts, or obtains, or agrees to accept or attempts to obtain, from any person for himself, or for any other person, any gratification or reward whatever, whether in money or in kind, for inducing by corrupt or illegal means, or by personal influence, any native tribunal or any member thereof, to do or forbear to do any act which such native tribunal is authorised to do in the exercise of its jurisdiction or to show favour or disfavour to any person is guilty of a misdemeanour , and is liable to imprisonment for ten years.”
Before recording his finding the learned trial Judge recorded in his summing up:
“It has been proved without the slightest doubt that the accused did accept a cow valued at two pounds for himself from Okoli Ugu on a promise that he would use his influence with the Court, members to get him discharged from the charge of stealing coco yams. Exhibits ‘A’ and ‘AI’ are true records and show that the accused was discharged not guilty. These records must be accepted as true even if recorded by the accused, and the statement of the accused has to get him discharged from the charge of stealing coco yams. Exhibits ‘AI’. Even if there is nothing in the evidence, or these records to show that the accused did use his influence with the Court members his mere promise constitutes an attempt to commit the crime as he intended to use his influence if it became necessary. In accordance with section 57 of the Criminal Procedure Ordinance he can be convicted of attempting to commit the offence”.
There appears to be here a confusion of thought. An attempt to commit this offence (if there can be an attempt under this section) would consist of an “attempt to accept a cow for inducing…” But the facts which the Judge seemed to have found are that the appellant did in fact accept a cow on a promise that he would try to induce, etc. We do not agree with him that the “mere promise constitutes an attempt”. But assuming that there was an attempt to induce the Judge seems to have been of opinion that that would not satisfy the wording of the section “for inducing”, so as to warrant a conviction for a substantive offence, though it justified a conviction for an attempt to commit the offence.
Clearly if it does not warrant the one it does not warrant the other, and consequently the conviction for the attempt could not be allowed to stand and counsel for the Crown did not seek to uphold it. He did, however, ask us to substitute a conviction for the substantive offence. Since the appellant had been specifically found “not guilty” of the substantive offence, we declined to take this course. Whether or not the accused should on the facts found have been adjudged guilty of the substantive offence depends upon the doubtful question of the interpretation of the words “for inducing” in the section. Do they mean “for actually inducing or for promising to try and induce”? This is a point which might well be cleared up by the legislature. We have not felt called upon to decide it upon this appeal.
For the reasons given we allowed the appeal, quashed the conviction and sentence, and directed that a judgment and verdict of acquittal be entered.