Ganiyu Adisa Motayo V. Commissioner Of Police (1950)

LawGlobal Hub Judgment Report – West African Court of Appeal

Interpretation of section 404 (1) (a) of the Criminal Code—Meaning of the
words ” under colour of ” construed—Power of Court to reconsider its previous decisions in criminal cases—Principle enunciated by Court of Criminal Appeal in England adopted—Rule of practice laid down that no previous decision of the Court will be reviewed save by a full Court constituted by five Judges.

Facts

The appellant was convicted by the Magistrate’s Court of an offence contra section 404 (1) (a) of the Criminal Code. On appeal to the Supreme Court the appeal was dismissed.

On appeal to this Court Counsel for the appellant raised the following ground of appeal.: ” That the appellant was wrongly convicted in that it was not proved that the amount alleged to have been received by the appellant was received by him under colour of his employment ‘, the case of Commissioner of Police v. Potts-Johnson (1) being wrongly decided.”

Counsel for the appellant had not argued this point before the Courts below as they were bound by the Potts- Johnson case which was a decision of this Court.

The Court considered, this may fairly be regarded as a special circumstance within the rule laid down in Commissioner of Police v. Esiaba (2) and leave to add this ground of appeal was granted.

The facts of the case were briefly as follows:—
The complainant handed the appellant, a railway clerk, a way-bill for the delivery of some kola nuts. The appellant threw it back, saying the custom is to pay threepence on each bundle to me and the complainant had to pay two shillings before obtaining delivery. The Magistrate found this to be a demand for what he called a ” private charge ” and this Court accepted that finding.

Counsel for the appellant conceded that he could not succeed unless this Court held that the Potts-Johnson case was wrongly decided. In J. W. Taylor (5) the Court of Criminal Appeal in England held that, in certain circumstances, it is not bound by his decisions in criminal cases, and this Court considered it could adopt the same course.

The pregnant words of the section 404 (1) (a) are: ” under colour of his employment ” and this Court was of the opinion that to constitute an offence there must be, not only a corrupt demand, but also a pretence that the party making it is lawfully empowered to do so by reason of his employment.

Held

This Court will adopt in criminal matters the principle enunciated in the Court of Criminal Appeal in the case of J. W. Taylor (5) and is not invariably bound by its previous decisions. This was an appropriate case to apply those principles. The Court further held that as a matter of practice no previous decision by it will be reviewed save by a full Court constituted of five members.

Held further, that the evidence did not disclose a pretence by the appellant that he was entitled to threepence a bundle as a legitimate perquisite of his post. He simply indicated that he would not carry out his duty unless he received a ” dash “. He never implied he was lawfully empowered to demand the money by reason of his employment and he did not receive it under colour of his employment. The appellant was wrongly convicted.

Held further, that the cases of Commissioner of Police v. Potts-Johnson (1) and Rex v. Meddle Udo Edun Eka (6) were wrongly decided and should be regarded as overruled.

Appeal allowed.