Commissioner Of Police, Mid-western Nigeria V Layinka Akpata (1967)
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ADEMOLA, C.J.N.
This is an appeal by the prosecutor against a judgement of Ekeruche, J., setting aside a conviction on four counts as well as sentences imposed on the present respondent. Originally the respondent, who was a registrar in the High Court of Benin City and a person employed in the public service, was charged and tried in the magistrates court at Benin on four counts which are as follows:-
‘1ST COUNT: That you Layinka Akpata (m) between 9-1-65 and 28-5-66, at Benin City in the Benin Magisterial District, being a person employed in the Public Service to wit: Judicial Department, High Court, Benin City, stole the sum of £ 173-15s-0d, property of your employers and thereby committed an offence punishable under section 331 (4) of the Criminal Code, cap. 28, vol.1, Laws of Western Nigeria, 1959.
2ND COUNT: That you Layinka Akpata (m) between 9-1-65 and 28-5-66, at Benin City, in the Benin Magisterial District, with intent to obstruct the course of justice, wilfully concealed court case file in charge No. B/4C/65 involving Elijah Okolo Chukwu and two others and thereby committed an offence punishable under section 111 (2) of the Criminal Code, cap. 28, vol. 1, Laws of Western Nigeria, 1959.
3RD COUNT: That you Layinka Akpata (m) between the 9th day of January, 1965, and 28th May,. 1966, at Benin City, in the Benin Magisterial District, knowing that exhibits G – G 155, H – H2, 30 – 31 C and S – SI would be required in a judicial proceeding to wit: Charge No. B/4C/65, Police versus Elijah Okolo Chukwu and two others wilfully destroyed the said exhibits with intent thereby to prevent them from being used in evidence in the said proceedings and thereby committed an offence punishable under section 107 of the Criminal Code, cap. 28, vol. 1; Laws of Western Nigeria, 1959.
4TH COUNT: That you Layinka Akpata between 9-1-65 and 28-5-66 being a person employed in the Public Service of Mid-Western Nigeria to wit: Registrar High Court, Benin City, stole case file No. B/4C/65-the State versus Elijah Okolo Chukwu and 2 others, property of the said Mid-Western Government and thereby committed an offence punishable under section 331 (4) of the Criminal Code, cap. 28 of the Laws of the Western Provinces of Nigeria, 1959.’
The respondent was convicted on all the counts by the learned magistrate and sentenced to various terms of imprisonment. On an appeal to the High Court, the learned judge of appeal set aside the convictions and sentences and discharged the accused. The Commissioner of Police has appealed to this court against the acquittal.
The respondent at the material time was a registrar in the High Court of Benin and was in charge of exhibits in a case pending in that court. It would appear that he made use of the sum of £173-15s-0d which was an exhibit in the case and this formed the subject of the first count. He then hid the case file so that the case might not come up for trial and this formed the subject of the second and fourth counts. The third count charged the accussed/respondent with destroying the money the subject-matter of the first count.
It appears to us that the facts are not seriously in dispute. The accused/respondent gave no evidence before the learned magistrate. The evidence, which is not disputed, shows that when confronted the respondent admitted he had made use of the money to argument an amount given to him as an advance to purchase a car. Questioned about the suit file, the respondent was not able to produce it in the High Court, but left in the direction of the magistrates court to which he had been transferred some months earlier and about ten minutes later produced the suit file.
We propose to deal with each of these counts and the reasoning of the learned judge of appeal in his consideration of each.
On the first count the learned judge complained that the ownership of the money as laid in the charge was bad. He said that to say that the money was the property of the accused employers, who are not named in the charge, was bad; that it should have been stated that the money is the property of the Mid-Western Government and to say that the money is the special property of the Judicial Department is inept.
We feel unable to support the reasoning of the learned judge of appeal on this point. The charge as laid stated that the respondent stole the money of his employers and evidence was adduced, which was not controverted, that the respondent was in the employment of the Government of the Mid Western Group of Provinces, a name which the Government of the MidWest carried at the relevant time. We fail to see what other proof the learned judge required that the money was the property of the Government concerned. If there was any doubt about this, and indeed we do not see any room for doubt, the judge had powers under section 104 (a) (ii) of the Magistrates Courts Law to alter the findings of the learned magistrate as to the ownership of the money. The learned Senior State Counsel pointed out to us that no objection was raised at the trial as to the ownership of the money and referred us to the case of R. v. Elechi 3 F.S.C. 17 at p. 18, but in that case in dealing with the point as to the statement of ownership of property, the Federal Supreme Court observed as follows:-
‘Section 154 (I) of the Criminal Procedure Ordinance, Cap. 43, Laws of Nigeria, provides that where the property referred to is described with reasonable clearness it shall not be necessary, except when required for the purpose of describing an offence depending on any special ownership of property, to name the person to whom the property belongs.’
Clearly when special ownership of property is of the essence of a charge it is necessary that the particulars of the charge should show such type of ownership as is necessary to sustain the charge and Hibbert v. McKiernan [l948] 2 K.B. ISO to which the Senior State Counsel also referred will only apply in ordinary cases of stealing where no special property is required to be proved by the provisions of the section under which the charge is laid.
In the present case however, we are satisfied that the property involved was sufficiently and appropriately described and that the charge was properly laid and proved.
We next consider count 4 of the charge which the learned judge dubbed as a spurious count. He argued that it was inconceivable to say that the respondent stole the case file when in fact he hid it so as to prevent the case being listed before he could have time to replace the amount he made use of. This argument turns on the definition of stealing.
There is clear evidence that the file was taken away completely from its proper custody and was nowhere in the vicinity of the High Court. Also that on his transfer to the Magistrates Court from the High Court, the respondent in his handing over notes made no reference whatever to the existence of this file. Undoubtedly, the respondent expected to deprive his employers permanently, if possible, of the file. We cannot conceive of a clearer case of stealing.
Count 3 seems to us an alternative charge to count 1. It speaks of destroying the amount of £ 173-15s-0d, alleged stolen. We are convinced on the evidence before the learned magistrate that the money was not destroyed and the charge of ‘wilfully destroyed’ was not the proper charge. The charge from the evidence before the court should have been one of removing or concealing, and the words ‘wilfully removed’ should have been substituted as the evidence would have been in no way different in respect of it. Both the learned magistrate and the judge himself could have made the substitution as the respondent has not destroyed the money. We hereby substitute the words ‘wilfully removed’ for ‘wilfully destroyed’ in the charge. In regard to the second count, laid under section 111 (2) of the Criminal Code charging the respondent with wilfully concealing the court case file with intent to obstruct the course of justice, we agree with counsel for the respondent that the charge as laid was misconceived. Section 111(2) of the Criminal Code speaks of attempt to do any of the things described there and not of concealing property as shown in the count on which the respondent was tried.
It reads:-
‘111. (2) Any person who attempts, in any way not specially defined in this Code, to obstruct, prevent, pervert, or defeat, the course of justice is guilty of a misdemeanour, and is liable to imprisonment for two years.’
We cannot say that in this case the phrasing of the count is in accord with the section of the Code under which the respondent was charged. We therefore think he was rightly acquitted on this count by the learned judge, as the learned Senior State Counsel did not suggest to us that it was appropriate for us to amend or substitute in regard to this count.
We therefore allow the appeal of the prosecutor on counts 1, 3 and 4, and the verdicts of the learned magistrate on these counts are reinstated. Sentences passed by the learned magistrate are amended and are to read as follows:-
First count- 2 years I.H.L.
Third count- 6 months I.H.L. to run concurrently with count 1.
Fourth count- 2 years I.H.L. to run consecutively with counts and 3,
and these will be the sentences passed by the Court.
The respondent is to be arrested forthwith to carry out the sentences passed upon him.
Other Citation: (1967) LCN/1370(SC)
