Oyesanmi J. Akinlemibola V. Commissioner Of Police (1976)

LawGlobal-Hub Lead Judgment Report

A. FATAYI-WILLIAMS, JSC.

On the 27th of March, 1973, at the Chief Magistrate’s Court in Lagos State, the Accused, now Appellant, was convicted by Mrs. O. Oguntoye, Chief Magistrate, on a charge containing two counts, one of corruptly receiving the sum of N20 contrary to section 98(1) (a) (ii) of the Criminal Code of Lagos State, and the other of accepting the sum of N20, beyond his proper pay and emoluments, for the performance of his official duties, contrary to section 99 of the said Code.

At the hearing of his appeal against the conviction in the High Court of Lagos State, also sitting in Lagos, the learned Chief Justice of Lagos State who heard the appeal allowed the appeal on the second count on the ground that the charge in that count is in the alternative to the offence charged in the first count. He thereupon quashed the conviction on the second count. He, however, dismissed the appeal against the conviction on the first count.

At the hearing of a further appeal to this court against the conviction in respect of that first count on 12th February, 1976, we allowed the appeal, set aside the conviction, and ordered that the Accused be acquitted and discharged. We now give our reasons for doing so.

The particulars of the offence, punishable under section 98(i)(a) (ii) of the Criminal Code, in respect of which the Accused was convicted, stated that the Accused, on or about the 1st day of August, 1972, at Lagos, in the Lagos Magisterial District, corruptly received the sum of N20 from one Mohomodu Gambo on account of a favour to be afterwards shown to the said Mohomodu Gambo by the Accused in the discharge of his official duties; these duties are in respect of the payment of the sum of N1,700 which the said Mohomodu Gambo had applied for from the Federal Military Government as vehicle advance to enable the said Mohomodu Gambo purchase a car for his official duties.

The facts relied upon by the prosecution and which the conviction was based may be summarised as follows. In September, 1971, one Mohammed Gambo (1st P/W), the Chief Superintendent of Police attached to the North-Central State Special Branch of the Nigeria Police Force at Kaduna applied for an advance of 1,700 for the purchase of a motor vehicle.

The application was sent to the Federal Ministry of Finance through the Financial Controller in charge of Accounts, the Nigeria Police, who controls motor vehicle advances made to members of the Police Force. The car which cost N2,790 was to be purchased from the Northern States Marketing Board (hereinafter referred to as the Board). Pending the payment of the advance, Gambo paid the Board the difference between the actual cost of the car and the N1,700, and took delivery of the car. When there was delay in the payment of the N1,700 due to them the Board wrote a number of letters direct to the Advances Section of the Federal Ministry of Finance about the delay.

The Ministry replied to these letters explaining the reason for the delay. Copies of all this correspondence were sent to Gambo so that he might know what was going on. From the correspondence Gambo noted that the Accused signed all the letters emanating from the Federal Ministry of Finance. On 28th July, 1972, he put a telephone call to the Federal Ministry of Finance in Lagos and asked to speak to the Accused. Gambo described the conversation he had with the Accused as follows: –

“I told him my name and asked the progress on my application. He said ‘Oh yes’, he remembered, and that he had asked for a delivery note from the Marketing Board which he had not received. I told him that the Marketing Board had endorsed to me the letter with which they sent him the delivery note since 22nd June, over a month before, and that I was sure he should have got it.He said he had not received it, and I should ask the Marketing Board for another letter of delivery to be sent to him immediately. He then changed his mind and said I should not go, that he would write to the Marketing Board and ask them to send it to him. I told him I would go to the Marketing Board, that how would he be sure he would get it if they sent another one, and there was the question of time; it was already seven months. He said he thought I was not very much interested in the advance or I would have come to Lagos or send a trusted friend to see him on my behalf. I said ‘Come on Mr. Akinlemibola, tell me what you actually want me to do’, he said, ‘you know how hard is Lagos life’, and that I did not seem to understand’. I said I had no time to come to Lagos as I was very busy, but that I would send a trusted friend as he demanded. He demanded that I should send him something considerable with the friend. I said alright, that I would send a trusted friend.”

After this conversation, Gambo, who said it was “normal police work after that to set a trap” for the Accused, rang the police Headquarters in Lagos “demanded that an operation be laid on for the arrest of Mr. Akinlemibola.”

He then sent a personal letter to the Accused introducing one Mammadu Jauro as the trusted friend he had promised to send. He also asked the Police Headquarters to provide the necessary funds for the operation. Incidentally, Mammadu Jauro is the brother of Gambo. He is not a policeman. The letter, erroneously dated 31st June, 1972 (Ex. D), which Gambo sent to the Accused reads: –

“My dear Mr. Akinlemibola,

Reference to our telephone conversation Akinlemibola Gambo of 28th July, 1972, I have found that all the documents you required were sent down to you together with my application. I should be grateful if you could help me with this seven months affair, especially now that the voucher has been made, checked and passed for issue of cheque.

The bearer is my brother whom I have asked to personally come and see you about it. He has a little parcel for you in appreciation of your kind assistance in this respect.