Rex V. Okereke Anyaleme & Ors (1943)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law—Official corruption, contrary to section 98 (1) of Criminal Code—” Duty touching the administration of justice.”—Power of Court to convict of offence contra. section 116 (1) considered.

Held : The duty of prosecuting for an offence of forgery is clearly a duty touching the administration of justice, and does not come within the ambit of section 98 (1) of the Criminal Code.

Beld further that the Court was unable to substitute for a conviction ander section 98 (1), one under section 116 (1), as the trial Judge would :wave been unable to convict under the latter section on the charge before aim, and the Court of Appeal was in no better a position.

Convictions and sentences quashed.

The facts are sufficiently set out in the judgment. E. H. Hunter for Crown.

J. I. C. Taylor for Appellants.

The following joint judgment was delivered :—

KINODON, C.J., NIGERIA, BUTLER LLOYD AND FRANCIS, Jj.

The first appellant in this case was convicted by John, A^.A8istant Judge, sitting in the Calabar-Aba Judicial Division of ” C.C. 98 (1). Official corruption.”‘

with the following particulars:—

” In that Okereke Anyaleme on the 13th September, 1942, at ” Amassama in the Aba Judicial Division being employed in the public ” service to wit a police constable did corruptly ask and receive the ” sum of £5 for himself from Erastus Efitih to omit to prosecute him ” for an offence of forgery.”

Lad the second appellant was convicted at the same trial upon a similar charge with the particulars:—

” In that Harold Nkwazema on the 11th September, 1942, at

Amassama in the Aba Judicial Division being a person employed in ” the public service to wit a police constable did corruptly ask and

receive the sum of £1 for himself from Erastus Efitih in order te ‘• omit to prosecute him for an offence of forgery,”

” Any person who-

” (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 receive 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;

” is guilty of a felony, and is liable to imprison” went for seven years.”

We are of opinion that the duty of prosecuting for an offence of forgery is clearly a duty touching the administration of justice, and that therefore ^–the , prosecution under the section was misconceived and the convictions cannot stand. Learned counsel for the Crown agrees with this view and does not seek to support the convictions under section 98 (1) but asks us- to substitute for the convictions under section 98 (1) convictions contra section 116 (1) of the Criminal Code and sentence the appellants accordingly. He asks us to do this in pursuance of the powers vested in the Court by section 11 (2) of the West African Court of Appeal Ordinance, 1933 (No. 47 of 1933). But under that section the powers of substitution are limited to substituting for the verdict a verdict of guilty of an offence of which the trial Judge could ” on the information or charge ” have found an appellant guilty.

Clearly on the charges upon which the two appellants were respectively tried the Judge could not have found them guilty of offences contra section 116 (1) of the Criminal Code, and therefore we have no power to make the substitution prayed.

That disposes of the appeal in the appellants’ favour, but there are two other matters which we think it proper to mention, one is that, in our view, the witness Efitih was a victim and not an accomplice. The other is that we are of opinion that the first count relating to stealing ought not to have been joined with the three other counts relating to alleged offences of a different nature committed at different times.

The appeals are allowed, the convictions and sentences of the two appellants are quashed, and it is directed that in the case of each appellant a judgment and verdict of acquittal be entered.

The appellants are discharged.