Michael Okwuwa V. The State (1964)
LawGlobal-Hub Lead Judgment Report
BAIRAMAIN JSC
This appeal was dismissed at the hearing on the 13th November, and the reasons for dismissing it will now be given. The appellant, a Lance-Corporal of Police at Jos, arrested one Christopher Olisa as a suspected rogue, when he came there on the 29th November, 1962, later, after seeing his superior officer, he released Olisa.
Thereafter Olisa went to see some superior officers, to whom he complained that the appellant had taken £3 from him, and wanted another £2, which Olisa was to give him next day in the market place, Next day two fairly senior officers of the Police hid in the market and watched Olisa and the appellant meet, and saw the appellant receive the £2 from Olisa, which, when pounced upon, the appellant threw away. In consequence of this events and of Olisa’s story, the appellant was prosecuted on two counts laid under Section 115 (b)(ii) of the Penal Code of the Northern Region, which relates to official corruption, one of the counts being about the £3 which Olisa said he had paid on the 29th November, and the other being about the £2 which the appellant received on the 30th November.
Bate J., who tried the case, was not impressed with Olisa as a witness or with his friend. Olisa’s version was that the £2 was a present in recognition of the appellant’s past services and for his assistance when Olisa came to Jos In future. The learned Judge was not satisfied with the evidence of what the present was meant for, but at the same time had no doubt that it was a present received by the appellant from a person concerned in a proceeding or business transacted by the appellant or connected with his official functions as a member of the Police; the appellant was, therefore, in the learned Judge’s view, guilty of an offence under Section 119 of the Penal Code, and was convicted of such offence by virtue of Section 218 of the Criminal Procedure Code, which authorises a trial court to convict of a lesser offence within the meaning of the section.
The Judgment under appeal says this:
“The offence under Section 115 can be reduced to the offence under Section 119. The ingredients of the latter are the same as those of the former except that to prove an offence under Section 119 it is not necessary to prove the purpose of the present. The accused in defending himself against the charge under section 115 was bound to raise every defence which he would have had to a charge under Section 119. He has had every opportunity to raise those defences. I do not think that it would be in any way unfair to the accused if he were convicted under Section 119.”
The grounds of appeal complain that the trial Judge erred in law when he held as above stated, and that ft was a miscarriage of justice to convict the appellant on a charge which was never reduced to writing and to which he had never pleaded. He did not wish to be present at the hearing of this appeal, but the Court had the advantage of hearing the arguments of Mallam Bello, the learned Director of Public Prosecutions of the Northern Region.
Section 218 of the Criminal Procedure Code provides as follows:
“(1)When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he is not charged with it.”
We thought that subsection (1) was the provision which applied to the case. The Federal Supreme Court had occasion, in The Queen v. Nwogugua Agumadu, F.S.C. 104/1963 decided on the 23rd May, 1963, to interpret the similar provision in Section 179, Subsection (1) of the Criminal Procedure Act, Cap. 43 in the 1958 Laws of the Federation. We quote this passage from the judgement in that case:
“The lesser offence is a combination of some of the several particulars making up the offence charged: in other words the particulars constituting the lesser offence are carved out of the particulars of the offence charged.”
The Federal Supreme Court was of opinion that our statutory provision was very much like the English Common taw rule as stated in R. v. O’Brien (1911) 22 Cox C.C. 374, 6 Cr. App. R. 108, that-
“a defendant may be convicted of a less aggravated felony or misdemeanour on an indictment charging a felony or misdemeanour of greater aggravation, provided that the Indictment contains words apt to Include both offences.”
It will be useful to give an example of what the provision contemplates. Suppose that the defendant in charged with the offence of unlawfully wounding with intent to kill; that the evidence proves that he unlawfully wounded his victim, but that the trial Court Is not satisfied that he did so with intent to kill. That is a proper case for convicting the defendant of the offence of unlawful wounding merely. It is a lesser offence in the sense that it carries a lighter punishment than the offence charged, which carries a much heavier punishment because of the added ingredient which aggravates the wounding, namely the intent to kill. In substance the lesser offence is a slice carved out of the particulars of the graver offence charged.
That is an example of how to apply Subsection (1) of Section 218 of the Criminal Procedure Code. It also goes to show that there is no substance in the complaints of the appellant in a case where the particulars are inclusive of the graver offence and of the lesser too: the plea of not guilty is a denial of all the particulars, so it covers the lesser offence also, and the defence must counter those of the particulars which make up the lesser offence in addition to countering the added ingredient which augments it to the graver offence in the charge.
If, for example, the charge is for the offence of unlawfully wounding with intent to kill, the defendant can offer to plead guilty to unlawful wounding merely, and his offer can be considered; but If he wishes to deny the charge in its entirety-which he will be doing by pleading not guilty-he must prepare his defence on the lines that he did not wound at all, or that he did not wound unlawfully. Thus the true question in this appeal is whether the charge Included the lesser offence of which the appellant was convicted.
The two sections of the Penal Code involved in this case will now be quoted but, for the sake of brevity, without the explanations and illustrations appended to them.
Section 115. “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 otherwise, other than lawful remuneration, as a motive or reward-
(a) for doing or forbearing to do any official act; or
(b) for showing or forbearing to show in the exercise of his official functions favour or disfavour to any person; or
(c) for rendering or attempting to render any service or disservice to any person with any department of the public service or with any public servant as such, shall be punished-
(i) with imprisonment for a term which may extend to seven years or with fine or with both;
(ii) if such public servant is a public servant in the service of the Government of the Northern Region or of the Government of the Federation acting in a judicial capacity or carrying out the duties of a police officer, with Imprisonment for a term which may extend to fourteen years or with fine or with both.”
Section 119. “Whoever being a public servant accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person any valuable thing without consideration or for a consideration which he knows to be inadequate-
(a) from any person whom he knows to have been or to be or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant or having any connection with the official functions of himself or of any public servant to whom he is subordinate; or
(b) from any person whom he knows to be interested in or related to the person so concerned,
shall be punished with Imprisonment for a term which may extend to five years or with fine or with both.”
The two sections do not cover precisely the same field: for example Section 119 is confined to a person who is a public servant, but section 115 includes also a person who expects to be a public servant; and there may be other differences besides. The two sections do, however, have some common ground. There may be a case in which someone who is a public servant accepts a gift from a person who, to his knowledge, was concerned or was likely to be concerned in some official business transacted or about to be transacted by the public servant or having some connection with his official functions.
His mere acceptance of the gift would be an offence under Section 119; but if the gift was received as a motive or reward for showing favour in the exercise of his official functions, he would be guilty of an offence under Section 115. As the two sections do not cover precisely the same field, it is important, when the charge is laid under Section 115, to see whether the particulars of the charge contain also the Ingredients of an offence under Section 119. Thus the statement of law quoted earlier from Bate J.’s judgement should not be read as a general statement that any charge for an offence under Section 115 includes an offence under Section 119: the learned Judge had the present case In mind, and his statement should be read in the light of this case and confined to the charge in the 2nd count on which the appellant was convicted; the 2nd count reads as follows:
“That you, Michael Okwua, on or about the 30th day of November, 1962 at Jos, within the Jos Judicial Division, being a public servant, did accept illegal gratification of £2 other than lawful remuneration from one Christopher Olisa, as a motive or reward for showing him favour in the exercise of your official functions as a Lance-Corporal in charge of the Suspect Squad C.I.D. to wit: to release the said Christopher Olisa from police custody and to refrain from prosecuting the said Olisa as a rogue and vagabond in a Court of Law; and you thereby committed an offence punishable under section 115(b)(ii) of the Penal Code and triable by the High Court.”
The question, therefore, at the hearing of this appeal, was whether some of the particulars in that count could be combined to form a lesser offence under Section 119.
Mallam Bello pointed our that the particulars of the charge alleged that the appellant was a public servant; that he accpeted a gift of £2 from Olisa; and that Olisa had been in custody as a suspect with whose case the appellant, a member of the Police force, had been concerned. He argued that upon proof of those allegations the appellant was guilty of an offence under Section 119, but was not guilty of an offence under Section 115 because it was not proved that the gift was corrupt. He submitted that the difference lay in this-that under Section 115 the gift had to be a corrupt gift, but under Section 119 there was no need to prove that the gift was corrupt.
We were satisfied at the hearing that his argument was correct, that the particulars of the lesser offence under Section 119 were included in the charge as laid and could be carved out of it, and we therefore were of the opinion that the appellant’s complaint was met by the provisions of the Subsection (1) of Section 218 of the Criminal Procedure Code.
On the meaning of Subsection (2) of Section 218, we do not think that there is any need to offer any opinion. It does not matter whether the course taken by the learned Judge was warranted by Subsection (2) or Subsection (1). The appellant was rightly convicted, and that was enough for dismissing his appeal.
There were also some grounds of appeal relating to the findings of fact, but we thought there was no substance in them and refused to give leave to appeal on those grounds.
There were some other arguments advanced by Mallam Bello at the hearing, on which we should like to repeat here the comments that were then made; they are no more than obiter dicta, but it is hoped that they may be useful.
There is, in Section 48 (a)(ii) of the High Court Law, 1955 of the Northern Region, a provision that the High Court may on appeal from a magistrate-
“alter the finding, maintaining the sentence, or, with or without altering the finding, reduce or increase the sentence.”
Mallam Bello referred to Samuel Omu v. C.O.P., 13 W.A.C.A. 103, in which it was said, In regard to a similar provision, that the Appeal Court’s powers were very wide and unrestricted, and were wider than the powers that a magistrate had of convicting of another offence under the charge before him. We referred to Nwobu and Mordi v. The Police, F.S.C. 382/1961, decided on 22nd June, 1962, in which the Federal Supreme Court, speaking about the provision quoted above, said that the High Court could not impose a sentence on appeal beyond that which the Magistrate could have Imposed at the trial; and we added that the reasoning in that case would probably lead us to disagree with what was said in Samuel Omu v. C.O.P., and to hold that the High Court could not substitute a conviction which the trial Magistrate could not have pronounced under the charge laid.
The other point to his argument was about the power conferred by Section 217 of the Criminal Procedure Code to convict for a different offence as warrant for the course taken by the trial Judge in the present case. It is not proposed here to copy Sections 216 and 217 of the Criminal Procedure Code. Section 217 raises difficult questions, especically when the conviction is for a different offence which is not included in the illustrations under the section.
It also raises difficult questions on the plea of autrefois which may be raised under Section 223, subsection (1), by a person who is prosecuted a second time for a different offence on the facts that were given in evidence at his former trial. Issue estoppel is a very difficult question as may be seen In Edu v. C.O.P., 14 W.A.C.A. 163, and now in Connelly v. D.P.P., heard in the House of Lords and reported in the Weekly Law Reports for May 29, 1964.
Having regard to the difficulties involved, we said at the hearing that we would consider the question raised In the present case solely under the provisions of Section 218 of the Criminal Procedure Code. At the same time we hope that the law officers will review Section 217 and Subsection (1) of Section 223 in the light of the two above cited cases.
Other Citation: (1964) LCN/1174(SC)
