Garba Doba v. The Queen (1963)

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ADEMOLA, C.J.N. 

The appellant and another were both convicted in the High Court at Jos of the offence of attempting to obtain gratification, other than lawful remuneration as a motive or reward for forbearing to investigate into the theft of corrugated iron sheeting and thereby committing an offence punishable under sec. 115 (b) (ii) of the Penal Code. They were each sentenced to a term of 18 months I.H.L. The 2nd accused in the case has not appealed.

At the material time the appellant and the 2nd accused were police constables in the Nigeria Police Force. They both suspected two men of having stolen some corrugated iron sheets and during the investigations which followed they asked for a bribe, which was eventually settled at #3.Os.Od. The amount was to be collected on a subsequent day.

Meanwhile one of the men reported the incident and two C.I.D. officers were detailed to accompany him; he was given #3 to hand over to the policemen. The evidence shows a confused state of affairs as to whether or not the #3 was handed over to the police men. The learned Judge, after making reference to the discrepancies in the evidence on this vital part of the story, arrived at a conclusion of the following words:
“In view of the contradictions between the evidence of P.W. 2 and P.W. 4 and remembering that P.W. 2 was an accomplice, I am not satisfied that the #3 was received by the accused persons. The question remains what offence has been committed”
Earlier in his judgement, the learned Judge arrived at the following conclusions; he said:-

“I find that 2nd accused first suggested that a gratification might be paid by P.W. 2 for stopping the investigations. I find that both 1st and 2nd accused participated in the negotiations with P.W. 2 which followed with 1st accused finally demanding #3.”
The learned judge eventually found the men guilty of attempt.

The appellant, who argued the appeal himself, submitted earlier some arguments in writing, and before us he supplemented this orally. His argument may be put under two heads:-
I. That as the two men suspected did not in fact steal the corrugated iron sheets or commit any offence in respect of them, it cannot be said that he (appellant) and the 2nd accused received a bribe. In other words the men were committing no offence for which they might give bribes to stop investigation.
2. That there was not sufficient evidence to support the finding of an attempt to obtain a bribe.

Now section 115 (b) of the Penal Code enacts as follows:-
“Whoever being or expecting to be a public servant accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification whatever whether pecuniary or other wise, other than lawful remuneration, as a motive or reward:-

(b) For showing or forbearing to show in the exercise of his official functions favour or disfavour to any person; . . . shall be punished. . .”
The appellant’s argument before us on the first ground was that the corrugated iron sheets were not stolen and that therefore he and the co accused could not be convicted for the offence charged.

This Court is not unfamiliar with this argument but the point does not arise for our consideration in this case. The evidence shows that the appellant and the co’97accused suspected that the two men stole the corrugated iron sheets and they proceeded to make inquiries into the matter.

It was during the investigations that the second accused said in the words of the 1st witness for the prosecution “that he was sorry for us and did not wish to waste our time; and for that reason we should consider what we should do for them so that they should not take us to the Charge Office”. At that time the appellant was walking in front.

He was later consulted about the amount and after the bargaining he (the appellant) fixed the amount at #3. It is clear therefore that the bargain was for the appellant and the co-accused to drop the investigations they were making and obtain the amount of #3 agreed upon. In other words they would forbear to carry out their duty of investigating into the offence they suspected the men to have committed, for a sum of #3. These are the facts accepted by the learned trial Judge, and we are in agreement with him that to obtain or attempt to obtain such gratification is covered by section 115 of the Penal Code.

In regard to his second ground of appeal, the appellant in effect argued that to constitute an attempt in law it was essential that the money to be given to him should be in existence, and that there should be a physical act on the part of the giver to hand it over to him, although it had not actually reached his hands: this ground of appeal also must fail. It has been held that asking for or demanding a reward in itself is an attempt to obtain it under a similar section of the Indian Penal Code. This is said to be so in Ratanlal and Thakore, the Law of Crime, 19th Edition, page 382, where the case Baldeo Sahai (1879) 2 All. 253 was referred to.

In that case A made an overture to B that if he would give him money, he (A) had influence enough to see that an increased pension be given to B. The offer was rejected by B, whereby A said that B would rue the rejection.
It was held that this was an attempt to obtain a reward under section 161 of the Indian Penal Code which is a similar section to our section 115 of the Penal Code. With that view this Court is in agreement.

Both grounds of appeal failed and the appeal is dismissed.

F.S.C.394/1963