J. A. Adeosun Vs The State (1975)

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FATAYI-WILLIAMS, JSC. 

At the hearing on 19th June, 1975, we allowed this appeal. The judgment of Dosunmu, J., delivered in the High Court of Lagos State on 30th August, 1974, was accordingly set aside and the appellant was acquitted and discharged.    I now give my reasons for supporting the decision to allow the appeal.

The appellant was at all material times a Registrar of Insurance in the Federal Ministry of Trade in Lagos. At the Lagos High Court he pleaded not guilty to corruptly asking for the sum of N2,000 from one B.A. Obika contrary to Section 98(1)(a)(ii) of the Criminal Code of the Lagos State, and to corruptly receiving the sum of N750 from the said B.S. Obika contrary to the same section of the Criminal Code. He also pleaded not guilty to three other counts, one of demanding the sum of N2,000 with menaces contrary to Section 406 of the said Code, another of stealing the sum of N750 contrary to Section 390 of the said Code, and the last of extortion by a public officer contrary to Section 99 of the said Code.

After hearing evidence called by both the prosecution and the defence, the learned trial Judge, in a reserved judgment, found the appellant not guilty of all the offences with which he was charged. He, however, found him guilty of an attempt to commit the offence charged in count two.

The particulars of this offence read:   “J.A. Adeosun, on or about the 25th day of September, 1973, at Lagos in the Lagos Judicial Division being a public official to wit: a Registrar of Insurance in the Federal Ministry of Trade, Lagos, corruptly received a sum of N750 (seven hundred and fifty naira) from B.S. Obika for himself on account of something to be afterwards done by him the said J.A. Adeosun in relation to the affairs of the Insurance Division of the said Federal Ministry of Trade, Lagos, namely, so that he said J.A. Adeosun may recognise the said B.S. Obika as an owner of African Overseas Insurance Corporation Ltd., and so that he might not recognise F. Tabansi and his men as the owners of African Overseas Insurance Corporation Ltd. by withdrawing a letter dated 5th September, 1973, written by him to F. Tabansi as Chairman of the said African Overseas Insurance Corporation Ltd.”  

Before finding him guilty of an attempt to commit the offence, the learned trial Judge had observed as follows:- “But as to the second count of receiving the sum of N750 corruptly, I am satisfied that this is made out in the words of Section 98(1)(a)(ii) of the Criminal Code. I am treating as mere surplusage all references in the count to recognition or no recognition of F. Tabansi or the withdrawal of the letter dated 5th September, 1973, addressed to him.

During his address, the Director of Public Prosecution disclosed to the court that Exhibit “J” was made of genuine N250 and that what purported to be N500 sealed up are dummies. But he declared that he was not for this reason seeking any amendment to the charge, and was only requesting that the accused be found guilty of attempting to steal the sum of N750 charged in count 4. He referred to the judgment of the Supreme Court in Echeazu v. Commissioner of Police (1974) 2 S.C. 55 where the Court approved that course of action in the lower court. The Learned Director was however silent in respect of other counts, namely 2 and 5 where the amount of N750 also appears.

Section 98 (1) (b) (ii) of the Criminal Code, however, punishes an attempt to receive corruptly and therefore the accused will be convicted under that Section.”   Earlier in the judgment, the learned trial Judge, after considering the offence of demanding the sum of N2,000 with menaces with which the appellant was charged in the third count, rejected the evidence of the complainant (Obika, 3rd P/W) that the appellant demanded any money from him. This is what the learned trial Judge had to say about the demand which Obika said the appellant made on him in September, 1973:-   “However, I do not believe for one moment that the accused made any demand on that date.

My reasons are these; in the letter written by P.W.3 dated 11th June, 1973, he had threatened consequences to anybody who entertained letters otherwise than from himself. Not only that, when he saw the accused on the 21st June, 1973, he drew his attention to this letter and further threatened that if nothing was done by him on the letter he would call in the Central C.I.D. How can I believe that the accused would there and then demand N2,000 from a person who from the very beginning had been threatening him with the C.I.D.

It may be true as the witness said that he had an interview with the accused on 21st June, 1973, and he might have told him that there were documents in the office showing Tabansi and his men were appointed shareholders and directors, but I do not believe that the accused made demand from him in order to surprise him. The letter which the accused wrote on the 5th September, 1973, to P.W.3 certainly belied any suggestion that he was expecting any money from him, and this was why the witness was anxious to say that he never received it. Surely if there was any outstanding promise of a bribe from P.W.3, the accused would certainly not write in such a tone asking him to go to court if he was not satisfied. For my part I do not believe that the accused demanded any money from the P.W.3 on that date. On the 24th September, 1973, what the witness said was that the accused repeated that Tabansi was kicking harder to get control of the Company. More important is the fact that there was no mention of the letter dated 5th September, 1973, which figures prominently in almost all the counts of the charges. No evidence that anyone of them mentioned this letter, and yet it was charged that the accused promised to withdraw it.”   These observations show clearly that the complainant (P.W.3) was not a witness of truth and should not have been believed on the totality of his testimony.

The learned trial Judge notwithstanding his later finding that P.W.3 was an accomplice, believed the other part of his testimony that the appellant received the sum of N750 from him after observing further as follows:- “As I approach the end of this case, it occurred to me that the question might be asked that If I did not believe the evidence of Mr. Obika that the accused demanded money of him, why did I believed his evidence that he gave the sum of N750 to him? I confess that if the evidence of Obika on this point had stood alone, I would have had difficulty in believing it. But there was abundant corroboration of it from other witnesses.” (The underlining in mine).  

Although the learned trial Judge said that the evidence of Obika (P.W3) was abundantly corroborated by “other witnesses”, no reference was made to any of the other witnesses who testified at the trial. What he, in fact, regarded as corroboration of this vital and crucial portion of Obika’s testimony was summarised by him as follows:- “First, the suggestion of the accused that the money was planted in his office would not stand because there was no moment that he left the witness alone.

Secondly, traces of anthracene powder, were found under ultra-violent light on the tips of the ten fingers of the accused and at the back of some of them. This is consistent with the evidence of P/W 3 that the accused counted the money and inconsistent with the veiled suggestion of the accused that he might have contaminated the anthracene powder on his hands under ultra-violet light.”   Having rejected the complainant’s testimony about the demand by the accused, the learned trial Judge should not have overlooked as he had done the real likelihood of the planting of the money or of a trap.

The main complaints in this appeal were two. Firstly, it was contended by the learned counsel for the appellant that the learned trial Judge erred in law in convicting the appellant of an attempt to commit the offence stated in count two of the information since the particulars of the count, as amended by the learned trial Judge, did not disclose or constitute any offence in law. Learned counsel also submitted that the learned trial Judge erred in convicting the appellant for an offence under Section 98(1)(b)(ii) of the Criminal Code when the evidence does not establish an attempt to commit the offence charged in count two.  

In his reply, the learned Acting Director of Public Prosecutions (Lagos State) submitted that there was no amendment to the second count and that all that the learned trial Judge did was to regard the particulars stated in the count as merely surplusage. He further submitted that the particulars were in fact not necessary in view of the provisions of Section 98(2). Learned counsel finally referred us to the decision of this court in Samuel Akinrolabu v. The State (1971) 1 NMLR 25.

In considering this submission, I would like to point out that the particulars in count two were not in fact amended. They were only rejected by the learned trial Judge as mere surplusage. I refer, in this connection, to that part of his judgment which reads:- “But as to the second count of receiving the sum of N750 corruptly, I am satisfied that this is made out in the words of Section 98 (i) (a) (ii) of the Criminal Code.

I am treating as mere surplusage all references in the count to recognition or no recognition of F. Tabansi or the withdrawal of the letter dated 5th September, 1973, addressed to him.”   The particulars which the learned trial Judge rejected as mere surplusage but which, to my mind, formed the basis of

Other Citation: (1975) LCN/2016(SC)