Richard Ejegi V Commissioner Of Police (1977)
LawGlobal-Hub Lead Judgment Report
BELLO, J.S.C.
The Appellant was a vehicle inspection officer. The case resulting in this appeal arose from the purported discharge of the duties of his office under the Road Traffic Regulations 1971 of the Mid-Western State (hereinafter referred to as the Regulations), namely, to test applicants for driving licences and to issue certificates to such applicants who have passed the test.
The Appellant, his clerk and his messenger were suspected of having conspired together for the purpose of receiving gratification to issue such certificates to applicants who have not taken and passed the test and consequently were jointly tried in the Magistrate’s Court, sitting at Agbor, on several charges arising therefrom.
The trial Magistrate convicted all three accused persons on the 1st count of conspiracy to commit a felony contrary to Section 443 of the Criminal Code of Western Nigeria applicable in the State. He also convicted the Appellant and his clerk on the 2nd count of official corruption contrary to Section 82(1) of the Code. He further convicted the Appellant on the 3rd count laid under regulation 28 and punishable under regulation 102(1) of the Regulations. He sentenced the three accused persons accordingly.
Against these convictions the Appellant appealed to the High Court of the Mid-Western State. The learned judge of the High Court allowed the appeal on the 1st and 2nd counts and set aside the convictions and sentences thereof. He however dismissed the appeal against the conviction on the 3rd count but varied the sentence of 3 months imprisonment passed by the trial magistrate to a fine of N90 or 3 months imprisonment.
The Appellant has further appealed to this Court in respect of the dismissal of his appeal against his conviction on the 3rd count, which was framed in these terms:
“That you, Richard Ejegi (m) on or about 25th April, 1973 at Agborin the Agbor Magisterial District being a Vehicle Inspection Officer issued a certificate that Edwin Onyenweuzo was qualified to receive Class “C” driving licence when he had not passed a driving test to your satisfaction and you thereby committed an offence contrary to Regulation 28 of the Road Traffic Regulations 1971 and punishable under Regulation 102(1) of the said Regulations.”
The duty of the office of the Appellant as a vehicle inspection officer is prescribed by the Regulations. It is provided under regulation 25(8) that a licensing authority shall before issuing a licence require the applicant to pass a driving test to show that he is capable of fully controlling a motor vehicle of the type and group for which he has applied for a licence to drive and, where a driving test is required by a licencing authority, no licence shall be issued unless the application is accompanied by the certificate of a vehicle inspection officer under regulation 28. It is further provided under regulation 26 that drivers’ tests shall be conducted by a vehicle inspection officer and the regulation proceeds to specify the matters to which the test shall be directed to ascertain the ability and competence of the applicant to drive the motor vehicle.
Regulation 28 then prescribes:
“(28) When a person has passed a driving test to the satisfaction of the vehicle inspection officer he shall be issued with a certificate stating the group of licence he is qualified to receive.” .
The case for the prosecution at the trial was that the Appellant had issued a certificate to Edwin Onyenwuzor without having conducted the test as required by the Regulation. The evidence in support shows that on 25th April 1973, some police officers visited the office of the Appellant to investigate a complaint of official corruption and irregular issue of certificate of driving test and found on the table of the Appellant’s clerk 5 certificates of driving test with their respective learners’ permits which the police officers took possession of on suspicion. Among the documents taken by the Police officers were Exhibit D1 and D. Exhibit D1 is a learner’s permit issued by the Licensing Authority to Edwin Onyenwuzor requiring the latter to be tested for a licence to drive Class “C” motor vehicles. Exhibit D is a certificate of driving test signed by the Appellant purporting to show that Edwin Onyenwuzor had been tested on Bedford Lorry Class “C” on 25th April 1973 by the Appellant and that he had passed the test and was qualified to receive a licence to drive such motor vehicle.
At the trial Edwin Onyenwuzor testified as PW 6 that he had a driving licence which got lost and he obtained the Learner’s Permit, Exhibit D1, which he gave to a friend to assist him to secure a licence. He further stated that later on the police showed him the Learner’s Permit and the certificate, Exhibit D. He said that the Appellant did not test him at all. In his defence the Appellant testified that he tested Edwin Onyenwuzor on 25th April 1973 and thereafter instructed his clerk to make out the certificate which he subsequently signed and handed over to his clerk for the purpose of delivering it to the applicant and that the police intercepted it before it reached the applicant. The trial magistrate did not believe the Appellant. He believed PW6 and found that the Appellant did not test Edwin Onyenwuzor. He convicted the Appellant of the charge which conviction was upheld by the learned judge on appeal.
The only complaint made by the learned counsel for the Appellant at the hearing of the appeal in this Court was that the learned judge erred in law in upholding the conviction when there was no evidence that the Appellant had issued the certificate to Edwin Onyenwuzor. The learned counsel contended that “to be issued with a certificate” within the purview of regulation 28 there must be a delivery of the certificate to the applicant and its receipt by him. He conceded that this Court has power to substitute a conviction of an attempt to commit an offence for a conviction of the full offence if the evidence in an appeal so warrants it, but submitted that there was no sufficient evidence in this case amounting to an attempt to issue the certificate to the applicant in that it was not delivered to him. He referred us to Koo Wing Lau v Calwell (1949-50) 8 C.L.R. 533).
In reply, the learned Principal State Counsel who appeared for the Respondent contended that as the Appellant had signed the certificate and had handed it to his clerk for delivery to the applicant, the Appellant had “issued” the certificate within the meaning of regulation 28 for under the Regulations the Appellant had completed his duty in dealing with the act of issuing. He urged us to uphold the conviction or otherwise to substitute a conviction of an attempt to commit a breach of the regulation.
The main question for determination in this appeal is whether or not the action of the vehicle inspection officer in making out and signing the certificate and handing over the same to his clerk for delivery to the applicant amounted to “the issue” of the certificate within the meaning of regulation 28.
The case of Koo Wing Lau cited by the learned counsel for the Appellant was, inter alia, concerned with the interpretation of section 4 of the Australian Immigration Act, 1949, which empowered an authorised officer to “issue” a certificate of exemption to persons who were described therein as persons, who, unless they possess such certificates, were liable to be prohibited from entering or remaining in Australia. Certificates were written out in the office of and signed by the authorised officer but were not delivered to or otherwise placed in possession of the persons named therein. On the question whether such certificates were “issued to a person named in the certificate”, within the meaning of section 4, the High Court of Australia sitting as the Full Court held that the action of the authorised officer in writing out and signing a certificate without delivery or notification of the same to the person named therein was not “issue” or “purported issue” of a certificate to such person within the meaning of section 4 of the Act. In delivering his judgment on the question, Dixon J. had this to say at page 574 of the report:
“Now the only place where the question of what amounts to “issue” has any application to the facts of these proceedings is in section 4 of Act No. 31 of 1949. For we are not concerned with any certificates “issued” after 12th July 1949 when sub-section 1 of section 4 of the Immigration Act came into operation. Section 4 of the Act No. 31 of 1949, however, does make the “purported issue” of a certificate before that date a condition of its application. But in express terms it practically removes all doubt as to what it means by “issue” although perhaps not by “purported”. For it says “where a person (thereunto empowered) purported to issue a certificate of exemption to a person named in the certificate”. Plainly enough a certificate is not “issued” to the person until it is delivered to him, which means that it must pass from the possession of the authorities either into his manual custody or under his control or into his legal possession so as to be at his command.”
Now reverting to the case in hand, it is plain that regulation 28 requires a certificate to be “issued” to an applicant who has passed a driving test. We are also of the view that a certificate is not “issued” to an applicant until it is delivered to him or to his agent which means, to adopt the words of Dixon J . with respect, “that it must pass from the possession of the authorities either into his manual custody or under his control or into his legal possession so as to be at his command.” The evidence shows that the certificate in question was still in possession of the vehicle inspection officer when police intercepted it. Consequently, we hold that there was no “issue” of the certificate to the applicant, Edwin Onyenwuzor, within the meaning of regulation 28 and for this reason the conviction of breach of the regulation cannot stand.
On the other hand it is clear from the records that the trial Magistrate was satisfied of facts which proved the Appellant guilty of an attempt to issue the certificate in contravention of the provisions of regulation 28. To reiterate the facts: the appellant, without having tested the applicant and without the applicant having passed the test, caused his clerk to write out the certificate which he, the Appellant signed and then handed it to his clerk for delivery to the Appellant had completed his duty under the Regulations in issuing the certificate.
Section 4 of the Criminal Code of Western Nigeria defines “attempts to commit offences” as follow:
“(4) When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent, he is said to attempt to commit the offence.
It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.
It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.”
We are satisfied that the facts found by the trial Magistrate fall squarely within that definition.
In exercise of the Supreme Court’s powers under section 27(2) of the Supreme Court Act, 1960 we set aside the conviction of the full offence under regulation 28 and substitute therefore a conviction of an attempt to commit a breach of regulation 28 and punishable under regulation 102(1) of the Regulations. We affirm the sentence of N90 fine or 3 months imprisonment passed by the learned judge of the High Court.
Other Citation: (1977) LCN/1872(SC)
