Rex V. Buddie Udo Edem Eka (1945)
LawGlobal Hub Judgment Report – West African Court of Appeal
Official corruption contrary to Section 98 (1) of the Criminal Code—Trial and conviction by Magistrate–Appeal to High Court—No evidence before Magistrate that accused employed in the Public Service or of nature of duties—Case remitted by Judge to take further evidence—Section 175 (1) of Criminal Procedure Ordinance, Cap. 20—Case again before High Court—Police not supporting conviction—Conviction upheld by Judge.
The order remitting the proceedings for further evidence ought not to have been made although it was strictly within the letter of Section 175 (1) of the Criminal Procedure Ordinance.
Held further that the proceedings should have been brought under Section 404 (1) and not under Section 98 (1) of the Criminal Code.
Appeal allowed. Conviction quashed. S. A. Mckinstry for Crown.
Appellant not present.
The following judgment of the Court was delivered by KINGDON, C.J., NIGERIA :—
The Appellant was charged before the Magistrate of the Opobo Magisterial Area with official corruption contrary to section 98 (1) of the Criminal Code, the particulars of the offence being given as
“For that you Buddie Udo Edem Eka on the 20th day of June, 1944, at not Abasi, Eket, in the Opobo Magisterial Area, being employed in the Public Service as Sanitary Overseer under Eket Native Authority, being charged with the performance of any duty by virtuo of such employment did corruptly ask (Dan Ecu and others) or attempt to receive from Dan Esu and others the sum of (21) one pound, 1 goat and 5 yams.”
He was convicted and. sentenced to 6 months’ imprisonment with hard labour.
Against that conviction he appealed to the High Court of the Calabar-Aba Judicial Division.
That Court found that in the Magistrate’s Court no evidence had been given that the Appellant was a person employed in the public service and there was no evidence as to the nature of the
Appellant’s duties. In order to establish an offence against section 98 (1) of the Criminal Code evidence on both these points is essential, for the sub-section reads :-
” (1) being employed in the public service, and being charged with• the performance of any duty by virtue of such employment, not being a duty touching the administration of justice, corruptly asks, receives, or obtains, or agrees or attempts to reecive or obtain, any property or benefit of any kind for himself or any other person on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done, by him in the discharge of the duties of his office; or.”
Accordingly, acting under the provisions of section 175 (1) of the Criminal Procedure Ordinance (Cap. 20), the learned Judge in the High Court remitted the proceedings to the Magistrate to take further evidence upon the following three questions :,
” (i) Is the Eket Native Authority one established by law and if so under what authority?
- Was the accused appointed to any office under any Statute or Ordinance?
- If the answer to (ii) is in the affirmative, what were the nature of his duties at the time of the alleged offence?”
In pursuance of the order evidence was given which made good the defects in the original proceedings.
The appeal then came again before the High Court, when the police offered no further argument and did not support the conviction, the police inspector who appeared admitting that the acts of the Appellant did not amount to anything to be oitted in the discharge of his duty, and saying “the proper section should have been 404 (1)”. Nevertheless the learned Judge in the High Court upheld the conviction, and learned Counsel for the police has sought to uphold it in this Court.
However after the appeal had been argued before us we allowed the appeal and quashed the conviction for two reasons.
First, we are of opinion that the order remitting the proceedings for further evidence was one which ought not to have been made. We are, aware that the order is strictly within the letter of section 175 (1) of the Criminal Procedure Ordinance, but we are of opinion that that section is intended to be used, for instance, to clear up a doubtful point, and that it is against the first principles of the administration of justice to use the section so as to give the prosecution a second attempt to prove its case. It is fundamental that in a criminal trial the onus is upon the prosecution to prove all the elements which go to make up the offence charged. If it fails to prove any one of them the accused is entitled to an acquittal, and if in spite of that he is convicted, he is entitled to have the conviction quashed on appeal To us it is a novel, and we think an erroneous proposition, that instead of quashing the conviction the Appeal Court should be able to remit the case for the prosecution
