Luke C. N.echeazu V. Commissioner Of Police (1974)

LawGlobal-Hub Lead Judgment Report

IRIKEFE, J.S.C. 

Before the Chief Magistrate, Lagos, the appellant was tried on a charge of four counts, only two of which are material for the purpose of this appeal. These read as follows:

3rd Count: That you Charles Luke Ngene Echeazu (m) on or about the 23rd day of January, 1971 at Lagos in the Lagos Magisterial District, with intent to steal money demanded the sum of N37,000 from Robert Eweka (m) a nephew of Adeyemi Eweka, a Director of Continental Motors and Engineering Company Limited with threats of detriment to be caused to the said Adeyemi Eweka, to wit that you, as a Principal Collector of Customs would assess the import duty and surcharge payable on the 36 ambulances imported by the said company at N311,000 and that you would not authorise the release of the said 36 ambulances if the demand was not complied with and thereby committed an offence punishable under section 406 of the Criminal Code.

4th Count: That you Luke Charles Ngene Echeazu (m) on or about 25th January, 1971 at Lagos in the Lagos Magisterial District stole a sum of N33,000 property of Adeyemi Eweka and thereby committed an offence punishable under section 390(9) of the Criminal Code.

He was convicted on count 3 as charged, and on count 4, a conviction was recorded for an attempt to steal the sum of N33,000. An appeal against the convictions to the High Court was dismissed, and in addition, that court, relying on powers conferred upon it by section 40 of the High Court of Lagos Act altered the finding under count 4 to that of guilty of stealing as originally charged. This further appeal has been brought to this court against the decision of the High Court, Lagos, on the following grounds:

“1. The learned Judge of the High Court was wrong in law in upholding the order for amendment made by the Chief Magistrate when the said order was illegal or ought not to have been made at the stage and in the circumstances in which it was made.

2. The learned Judge of the High Court erred in law in upholding the conviction of the Appellant on Count 3 when:

(a) The Charge before the Court disclosed no offence under section 406 of the Criminal Code because it was not stated that the alleged “threats of detriment” were to be caused to Robert Eweka the man from whom the N37,000 was demanded as alleged;

(b) It was not established that the Appellant intended to steal the sum of N37,000 aforesaid.

3. The learned Judge of the High Court erred in law in upholding the conviction of the Appellant for an offence under section 406 of the Criminal Code because:

(a) There was no proof beyond reasonable doubt of the threat alleged in the Charge, particularly in regard to the amount of money;

(b) It was not established that a reasonable man in the position of Adeyemi Eweka would agree to part with his property as a result of the alleged threats having regard to the circumstances of this case.

4. The learned Judge of the High Court erred in law in upholding the conviction of the Appellant on Count 3 when on the facts accepted by him there can be no conviction for an offence under section 406 of the Criminal Code.
5. The learned Judge of the High Court erred in law in upholding the conviction of the Appellant of stealing when it was not established that the Appellant attempted to take any sum of money from Adeyemi Eweka against the will of the said Adeyemi Eweka.
6. The learned Judge of the High Court erred in law in failing to observe that there being no intent to steal a conviction under sections 106 and 390(9) of the Criminal Code cannot be sustained.
7. The learned Judge of the High Court was wrong to have dismissed the appeal of the Appellant when:

“The decision of the learned Chief Magistrate is unreasonable, unwarranted and cannot be supported having regard to the evidence.”

The events leading to this appeal may be briefly stated as follows: Sometime in December, 1970 the firm of CONTINENTAL MOTORS AND ENGINEERING CO. LTD. of which one Adeyemi Eweka (P.W.3), is a director, imported 122 different types of motor vehicles into Nigeria from Rumania per M.S. “BOCNA” which discharged them at the Lagos Docks. Such goods, if not cleared in time by their owners, would attract storage rent from the Nigerian Ports Authority. As the shipping documents had not yet arrived in the country, P.W.3 applied to the Customs authorities for permission to clear 90% of the consignment of vehicles, in order to minimise the storage rent accruing. This application, which was usual under similar circumstances, was refused. When the shipping documents finally arrived, rent of N385,000 had already accrued on the vehicles and it was with great reluctance that the Nigerian Ports Authority reduced this amount to N341,000 after P.W.3 had protested that if the Customs Authorities had acceded to his earlier request for the release of 90% of the consignment, such colossal rent would not have accrued. The rent of N341,000 was paid and P.W.3 proceeded with the usual arrangements for clearing the vehicles. It was at this stage that the appellant, who was then acting Principal Collector of Customs, in charge of Outdoor duties, including the release of goods, came into contact with P.W.3. This was on Saturday, 23rd January, 1971.

Although the appellant knew that motor ambulances are exempt from duty, he refused to allow 36 of the ambulances imponed by P. W.3 to pass as such, and contended that his reason for refusing such clearance was because the said vehicles, though fitted with stretchers and other gadgets, could be readily convened into delivery vans. If the appellant’s refusal prevailed, and the 36 vehicles were treated as delivery vans, each would attract duty at 3313% and a penalty. On this basis the duty on the aid vehicles would be N39,000, with a penalty of N32,000 bringing the total amount payable to N311,000. There is evidence that, although the dispute over classification was referred to Daenaemi Kunaiyi Akpanah (P.W.1), the appellant’s immediate boss, who ruled that the 36 vehicles were indeed ambulances and so exempt from duty, the appellant remained unyielding. There is also evidence that upon the intervention of another witness, Roben Eweka (P.W.9), a nephew of P.W.3, the appellant and the said P.W.9 visited the Bristol Hotel at Martins Street in Lagos where the appellant suggested to P.W.9 that if P.W.3 could be persuaded to pay them (meaning the appellant and some undisclosed persons) a bribe of N37,000 he (appellant) would allow the 36 vehicles to go dutyfree as ambulances. After much pleading by P.W.9, the appellant agreed to accept N33,000 and this information was communicated to P.W.3 by P.W.9. P.W.3 said he could not raise that much money on a Saturday and promised to come back with it on Monday, 25th January, 1971.

In the evening of the appointed day, i.e. Monday 25/1/71, Adeyemi Eweka handed a total of N33,000 to the appellant at his place of work. The money was in fact made up of dummies provided by the police to stimulate a parcel containing N32,500 notes in unbroken series provided by the Central Bank and N3500 in single N35 notes provided by P.W.3. The police had treated the parcel with anthracene powder at their laboratory for easy identification later. The appellant received the money from P.W.3 and part of the recorded testimony on this aspect of the case runs thus:

“When we got in, he asked me for the money. I first brought out the Central Bank bundle that still had the seal on. I said this is N32,500, it is still unbroken. I gave it to him. He asked for the remaining N3500. I took out 2 bundles of N3250 each and gave them to him. He started to count that, changed his mind, looked around, saw some brown paper, and started to wrap both the N3500 and the N32,500 in it. There was a small polythene bag near where we were standing. He took it, shook it, and put the whole bundle inside. He told me to follow him to his room, to collect my entry. He said that if I had done this in the first instance I would not have wasted my time and I would not have paid the unnecessary rent I had paid.”

There is again evidence that shortly after the events set out above, the appellant was caught red-handed after a hot pursuit and a brief combat between him and the police. Subsequent examination in the police laboratory under ultra-violet light showed that appellant’s two hands which he had earlier used in counting part of the money were thickly coated with anthracene powder.

The appellant did not give evidence at his trial and the facts set out above were never seriously challenged. Before dealing with the matters of law raised in this appeal, we feel we should say a word or two about two incidents which occurred during the trial before the Chief Magistrate. At the conclusion of the examination-in-chief of P.W.3 on 28th April, 1971, the prosecuting counsel, Mr. Alao, applied to amend the charge as filed by substituting “16 ambulances” for “36 ambulances” wherever the latter appeared in counts 1, 2 & 3. The amendment, though opposed by the defence was granted and the procedural requirements prescribed by law were complied with by the court. The amendment is not the subject of any complaint before us, and indeed, the defence took advantage of the provisions of section 165 of the Criminal Procedure Act by asking for the recall of P.W.1 or further examination. This application was granted.

Later, after judgement had been reserved, the learned chief Magistrate who had listened to all the evidence, took the view that count 3 should be further amended, and invited counsel to address her on the propriety of the proposed amendment. The amendment, understandably was opposed by the appellant’s counsel but was granted by the court after a rather lengthy ruling in which all relevant legal authorities were examined. It seems to us, and indeed it is plain from the record that the learned Chief Magistrate took upon herself the decision to amend count 3 to read 36 ambulances which was originally charged instead of “16 ambulances” to which it had earlier been amended because she preferred the evidence of P.W.9 to that of P.W.3 as to the number of disputed ambulances and because the Bill of Entry (Exhibit A) and the appellant’s statement (Exhibit F) which are parts of the prosecution’s case, make it incontestable that the controversy was over 36 ambulances and not 16. In advancing his arguments in this appeal, learned counsel for the appellant, Chief F.R.A. Williams indicated that he would deal with all the grounds of appeal together. Learned counsel then proceeded to outline the subjects of his complaint under three heads as follows:

(a) The amendment of the 3rd count.

(b) Conviction under section 406 of the Criminal Code with particular regard to the constitution of the section, and whether a demand under the section was established.

(c) Stealing.

Under the first head, learned counsel complained that after the first amendment which occurred during the trial, the case of the prosecution hinged entirely on 16 ambulances, one of the consignments shown on both exhibits A and B; and that the appellant having elected to call no evidence at the close of the prosecution’s case, an amendment of the 3rd count at that stage to read 36 ambulances was extremely prejudicial to his case. Learned counsel further submitted that as the learned Chief Magistrate purportedly amended the count under section 163 of the Criminal Procedure Act, an accused, such as the appellant, who called no evidence cannot avail him of the safeguards provided under section 165 of the Criminal Procedure Act. In support of these submissions, learned counsel relied on R. v. Jennings 33 C.A.R. p. 143 and Chengo v. The Republic (1964) E.A.L.R. p. 122 at p. 125.

On the second ground of complaint, learned counsel contended that the facts proved in this case do not support a charge under section 406 of the Criminal Code. This must be so, counsel argued, because for the charge to succeed, the demand for money must be made to P. W.3 himself and not as found in this case, to P.W.9 for transmission to P.W.3. In short, learned counsel’s contention is that on a strict construction of section 406 of the Criminal Code a demand through a proxy or through an agent on behalf of his principal as found by the learned Chief Magistrate would not constitute an offence under the section. It was further contended that in view of the violent conflict in the testimonies of P.W.3 and P.W.9 on the question of the 16 and 36 ambulances as well as the sum of money actually demanded there was not enough satisfactory material before the court of trial on which to find a demand under the section charged. Lastly, it was contended that the conflicts referred to above did not appear to have been resolved.

On the last ground of complaint, it was submitted that on the facts found, the appellant could not have been properly convicted of stealing as charged on the 4th count. P.W.3, it was argued, intended to pass the property in the money the subject of the charge, and as such there could be no taking without his consent, which is an essential ingredient of the charge. The law, argued counsel, recognises two classes of cases namely:

(a) An owner who in order to catch a thief sets a trap by making things easy for the thief to steal property. In such a case, the accused would be guilty of stealing;

(b) An owner knowing of the designs of a thief deliberately hands over property to him or does so through an agent. In such a case the accused may be convicted of an attempt to steal provided that he had the requisite intent at all times.

In support of the above propositions of law the cases of R. v. Turvey 31 C.A.R. p. 154 and R. v. Miller & Page 49 C.A.R. p. 241 were cited to us.

In reply to the above submissions, the learned Deputy Director of Public Prosecutions, Lagos State, Mr. A.O. Ejiwunmi argued that there was enough satisfactory evidence to support the conviction of the appellant as charged under counts 3 and 4. He submitted that it is manifest from the record that P.W. 9 was acting for P.W.3 and that the appellant was aware of this. After taking us through several portions of the record the learned Deputy Director of Public Prosecutions argued strenuously that all the ingredients of a demand under section 406 of the Criminal Code were established.

Finally, the learned Deputy Director of Public Prosecutions drew our attention to two cases:- (a) R. v. Claire P52 C.A.R. p. 58 and Commissioner of Police v. Ogundowole S.C. 72170 decided on 29/1/1971 both of which dealt with the legal tests applicable in determining a demand of property with menaces.

We are satisfied that the decisions in R. v. Jennings and Chengo v. The Republic (Supra) is not of any assistance to the appellant’s case for the following reasons. In the Jennings case, the prosecution had obtained leave to substitute a charge for an offence totally different from that originally charged and the court of appeal took the view that the appellant must have been prejudiced by the amendment. In the case in hand, the original charge related to 36 ambulances and this was the case the appellant knew he had to meet. In fact his statement to the police Exhibit “F” which was put in as part of the case for the prosecution spoke of P.W.3 having imported 122 vehicles, 36 of which were in dispute and 16 of which were not. The statement shows that the appellant himself had admitted having released the 16 ambulances and 40 jeeps to P. W.3 before the incidents giving rise to this case. All the 122 vehicles are clearly listed on exhibits A and B.

We are, therefore, plainly of the view that at the end of the day, the learned Chief Magistrate had a duty to resolve the conflict on the two sets of ambulances in connection with which evidence had been given, and that the appellant was neither taken by surprise nor prejudiced by the amendment.

The amendment in the Chengo case was made pursuant to Section 209(1) of the Criminal Procedure Code of Tanganyika, the provisions of which are not in pari materia with our Section 163 of the Criminal Procedure Act.

Section 209(1) of the Tanganyika Act reads:

“Where, at any stage of a trial, it appears to the court that the charge is defective, either in substance or form, the court may make such order for the alteration of the charge either by way of amendment of the charge or by the substitution or addition of a new charge as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice, and all amendments made under the provisions of this subsection shall be made upon such terms as to the Court shall seem just.”

On the order hand, Section 163 of our Criminal Procedure Code reads:

“Any court may alter or add to any charge at any time before judgment is given or verdict returned and every such alteration or addition shall be read and explained to the accused.”

In Okwechime v. I.G. of Police 1 F.S.C. (1956) p. 73, a case dealing with an amendment under Section 163 of the Criminal Procedure Ordinance, Jibowu Ag. F.C.J. in delivering the judgment of the Federal Supreme Court at page 74 of the report observed as follows:

“The learned Judge was of opinion that the word “alter” in the con means more than “amend” and includes “substitute.”

With this view we respectfully agree. In view of the fact that new charges could, under the section, be added to the original one, it would be unreasonable to hold that the alteration of the charge cannot be extended to the framing of a new charge in place of the original one.” The cases of R. v. Kano and Arisah 20 N.L.R. p. 32 and R. v. sunday ljoma & Ors. 12 W.A.C.A. p 220 are further compelling authorities in support of the regularity of the action taken by the learned Chief Magistrate. Furthermore, the procedure adopted by the learned Chief Magistrate was in conformity with the views expressed by the Court of Criminal Appeal in England in the case of R. v. West 32 C.A.R. p. 152, where the following observation appears at page 160 of the said report:

“The learned Judge, was, in our opinion, entitled to exercise his discretion in directing an amendment, but he clearly should have invited the parties, and in particular the defence, to express their views upon the matter before deciding to do so.”

We would venture to express the opinion that while Sections 164 and 165 of the Criminal Procedure Act are designed to afford an accused person adequate safeguards in the event of an amendment under Sections 162 and 163 of the Act, it is clearly not the intention of the framers of the Act, that the said section should provide such an accused with a gratuitous ‘escaperoute’ to freedom in the face of overwhelming evidence.

The second submission made on behalf of the appellant, in our view, overlooks the evidence in this case which was accepted by the court of trial, and which we set out earlier on in this judgment. While on this ground we should like to set out the views of the learned Chief Magistrate on the aspect of the case:

“I find that the accused demanded the sum of N37,000. I find that the accused threatened that if the demand was not met the classification as ambulances would not be accepted and import duty at the rate of 331/3% of their value, amounting to N39,000, would be charged together with a penalty of N32,000 for false declaration. Prosecution witness had already had to pay N341,000 ground rent because of the delay in clearing the vehicles occasioned by the late arrival of the shipping documents. Any further delay, however, might result in further rental charges, which were payable for every day over a specific period that the vehicles were not cleared. He was faced with the prospect of meeting the accused’s demand, or facing further delay, with the prospect of ultimately being compelled to pay N311,000 by way of import duty and penalty, for which he knew he was not properly liable in order to secure the release of the vehicles. The accused was perfectly well aware that the rental charges had accumulated and referred to this after he had taken money from prosecution witness 3. What, in these circumstances, is the likely effect of the demand on a man of “reasonably sound and firm mind” I am of the view that the likely effect is that he will be induced to party with his money. The fact that prosecution witness 3 happened to be a person of very strong mind and that he only pretended to accede to the demand and played for time in order to be able to report to the police and have a trap set for the accused is immaterial to count 3 of the circumstances of this case. The accused intended, to obtain money without the true consent of the owner. He intended to deprive him of it permanently.”

With the above views of the learned Chief Magistrate we are in complete agreement.

Again we are in agreement with the learned Chief Magistrate and on the authority of R. v. Miller & Page 49 C.A.R. p. 241 that on the facts found in this case, the appellant was rightly convicted on count 4 of attempting to steal the sum shown on the charge. We are satisfied that this appeal lacks merit and it is dismissed. The convictions of the appellant by the court of trial and the sentences imposed on him are affirmed.

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Other Citation: (1974) LCN/1947(SC)