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REX
V.
WILLIAM OPARA
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
26TH DAY OF APRIL, 1943
2PLR/1943/27 (WACA)
OTHER CITATION(S)
2PLR/1943/27 (WACA)
(1943) IX WACA PP. 70 – 72
LEX (1943) – WACA PP. 70 – 72
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
REX — Respondent
AND
WILLIAM OPARA — Respondent
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ORIGINATING COURT(S)
HIGH COURT OF THE CALABAR-ABA JUDICIAL DIVISION
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REPRESENTATION
S. A. McKinstry — for Crown
No appearance by or for Appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ADMINISTRATIVE AND GOVERNMENT LAW:- “Person employed in the Public Service” — What constitutes for the purposes of sections 1, 98(1) and 100 of the Criminal Code — Legal implication
CRIMINAL LAW AND PROCEDURE:- Person employed in public duties by a Native Authority — “Person employed in the public service”, sections 1, 98(1) and 100 of the Criminal Code — “Person”, ibidem, and section 3 of the Interpretation Ordinance.
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CASE SUMMARY
Accused was appointed and employed as a Sanitary Inspector by a Native Authority. He was charged with offences against sections 98(1) and 100 of the Criminal Code as a person employed in the public service.
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DECISION OF THHE WEST AFRICAN COURT OF APPEAL
Upon a Case Stated, held that:-
1. the accused was not a person employed in the public service within the meaning of that expression as used in those sections, and
2. the word “person” means an individual and does not include a body of persons. The subject and context of sections 98(1) and 100 of the Criminal Code are repugnant, within the meaning of the definition of “definitions” in section 3 of the Interpretation Ordinance, to the definition in the same section of “person” as including “any company or association or body of persons corporate or unincorporate”. Person in those and similar sections of the Criminal Code means an individual.
3. a Clan Council being a body of persons is not covered by the definition and is not a “person” within the meaning of sub-head (2).
[NOTE.— See Criminal Code (Amendment) Ordinance, 1943 (Nigeria), sec. 2].
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MAIN JUDGMENT
The following joint opinion was given:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE
William Opara stands charged in the High Court of the Calabar-Aba Judicial Division with the following offences:
“Charge 1.— Official corruption, contrary to section 98(1) C.C.”
Particulars.— William Opara, during July or August, 1942, at Ochigbe, in the Owerri Province, being employed in the public service as an N.A. Sanitary Overseer under the Ekpeye Clan Council and being charged with the duty of engaging sanitary labourers did corruptly ask for £3 and one goat from Thompson Odigbo in order to employ the said Thompson Odigbo as a sanitary labourer under the said N.A.
“2.— Official corruption, contrary to section 98(1) C.C.
“Particulars.— William Opara, during July or August, 1942, at Ochigbe in the Owerri Province, being employed in the public service as an N.A. Sanitary Overseer under the Ekpeye Clan Council and being charged with duty of engaging sanitary labourers did corruptly receive £3 and one goat from Thompson Odigbo in order to employ the said Thompson Odigbo as a sanitary labourer under the said N.A.
“3.— Public officers receiving property to show favour, contrary to section 100 C.C.
“Particulars.— William Opara, during July or August, 1943, at Ochigbe in the Owerri Province, being employed in the public service as an N.A. Sanitary Overseer under the Ekpeye Clan Council did receive for himself £3 and one goat from Thompson Odigbo on the understanding that he should favour the said Thompson Odigbo in the transaction pending or likely to take place of the engagement of the said Thompson Odigbo as a sanitary labourer by him the said William Opara.”
He has pleaded “not guilty” and under section 191 of the Criminal Procedure Ordinance (Cap. 20) the learned trial Judge has stated a case for the opinion of this Court.
The relevant facts are set out in paragraph 3 of the Case stated as follows:
“The Ekpeye Clan Council was at all material times the duly constituted Native Authority for the Ekpeye Clan Area, of the Owerri Province, having been appointed as such by the Governor in pursuance of the powers and provisions given by and contained in section 3(1) of the Native Authority Ordinance, 1933. In 1936 the accused was appointed by the said Native Authority, with the advice and approval of the District Officer, to be a Sanitary Inspector in their (the said Native Authority’s) employment in the said Clan area. The accused continued in that employment up to and including July and August, 1942 (the time of the matters alleged in the three counts of the charge) and while so employed was paid from the funds of the Treasury of the said Native Authority.”
Upon these facts the question submitted to this Court is:
“Whether or not the facts set out in paragraph 3 of the above case proved the accused to have been, at the time of the offence alleged against him in charge, a person employed in the public service within the meaning of that term as used in sections 98(1) and 100 of the Criminal Code.”
A definition of “person employed in the public service” is given in section 1 of the Criminal Code; the relevant portion reads as follows:-
“’person employed in the public service’ means any person holding any of the following offices, or performing the duties thereof, whether as deputy or otherwise, namely:
• • • • •
“(2) any office to which a person is appointed by or under any Statute or Ordinance; or
‘’(3) any civil office, the power of appointing to which or of removing from which is vested in any person or persona holding an office of any kind included in either of the two last preceding sub-heads of this section; or
• • • • •
The argument in favour of the view that the accused is ”a person employed in the public service” within the meaning of that term in section 98(1) and 100 of “the Criminal Code is as follows:-
By definition in section 3 of the Interpretation Ordinance, 1939 (No. 27 of 1939) “‘person’ includes any company or association or body of persons corporate or unincorporate “. It therefore includes a Clan Council appointed by the Governor to the office of Native Authority under section 3 of the Native Authority Ordinance, 1933 (No. 43 of 1933). The Ekpeye Clan Council is such a Council so appointed (1938 Legislation p. G76). It is therefore, by virtue of sub-head (2) of the definition a “person employed in the public service” within the meaning of the definition; therefore the accused having been appointed to a civil office (that of Sanitary Inspector) by the Ekpeye Clan Council is brought within the definition by virtue of sub-head (3).
At first sight this argument appears unanswerable, but we think that it has a fatal flaw.
This is it:-The meaning of “person given in section 3 of the Interpretation Ordinance, 1939, only applies unless there is anything in the subject or context repugnant to such meaning” (See the definition of “definitions” in the same section). Here we are of opinion that the subject and context are repugnant to the interpretation of the word “person” as including a body of persons.
Throughout the Criminal Code it is common form for the sections prescribing the punishment for offences to begin with the words “Any person who”. Thus section 319 “Any person who commits the offence of murder is liable to the punishment of “death” and section 390 “any person who steals anything” capable of being stolen is guilty of a felony, and is liable, etc.”
It is clear that in such sections the word “person” means an individual and does not include a body of persons, it would be repugnant to the subject and context that it should. In our view, sections 98(1) and 100 (under which the accused in this case is charged) and the other sections in Chapter XII of the Criminal Code are no exceptions to the rule, and the word “person” when used in those sections in the expression “any person who, being employed in the public service,” means an individual and does not include a body of persons. It follows that in the definition what is defined is a “person” in the sense of an individual and that a Clan Council being a body of persons is not covered by the definition and is not a “person” within the meaning of sub-head (2). Consequently the argument bringing the accused under sub-head (3) falls to the ground.
We answer the question submitted to us in the negative.