Rex V. Patrick Osakwe (1948)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law—Nigeria Criminal Code, section 99.

The following judgment was delivered:

Ames, Ag. C.J. This is an appeal from a conviction in the Supreme Court of the Ibadan Judicial Division for an offence of extortion by public officers, contrary to section 99 of the Criminal Code. The relevant part of the information filed against the appellant was as follows:—

” Statement of offence—first count

” Extortion by Public Officers, contrary to section 99 of the Criminal Code.

” Particulars

” Patrick Osakwe (m) on the 21st day of April, 1948, at Ibadan, Oyo Province, being a person employed in the Public Service, that is to say, a member of the Nigeria Police Force, and carrying out duties for the Motor Licensing Authority, Oyo Province, did demand or accept the reward of £1 from one Raji Adegoke (m) for the performance of his duties for such Motor Licensing Authority, such money being beyond his proper pay and emoluments.”

There were two other counts in the information; one for an offence of public officers receiving property to show favour, contrary to section 100, and the other for an offence of public servants demanding property contrary to section 404 (1). (This latter one ought, as the learned Judge said in his judgment, to have been laid under section 404 (1) (a).) The appellant was acquitted on these two counts. All three counts referred to the same incident and the learned trial Judge held that they were alternative and convicted the appellant on the one set out above.

There were three grounds of appeal in the notice of application for leave to appeal; but all were abandoned. The only ground of appeal argued was the additional one which was filed with leave and which is as follows:—

” That the learned trial Judge erred in law in convicting the appellant on count 1; when the said count 1 was bad for duplicity.”

The part of the count, which is complained of as being bad for duplicity, is that part which alleges that the appellant ” did demand or accept ” £1 from the complainant.

At first Mr. Taylor’s argument for the appellant proceeded on the assumption that section 99 makes it an offence to demand or accept. Later on it was pointed out that section 99 is not concerned with demanding or asking or soliciting in any way but with taking or accepting. The section reads as follows:—

“99. Any person who, being employed in the public service, takes, or 366

accepts from any person, for the performance of his duty as such officer,
any reward beyond his proper pay and emoluments, or any promise of such
reward, is guilty of a felony, and is liable to imprisonment for three years.”

Mr. Taylor then argued that the count was still bad for duplicity in that it combined demanding money, which he argued was charging an offence of public servants demanding property under section 404 (1) (a), with an alternative of accepting money under section 99. We do not agree with this argument. The count was laid under section 99 and the appellant could never have been convicted of an offence^– under section 404 (1) (a) on this count. There are also other ingredients of this latter offence which were not alleged to exist in the particulars of this count.

In our opinion, in so far as this count can be said to have charged him with demanding the £1, the appellant was never in jeopardy, The words ” demand or ” were unnecessary and superfluous to the Count. The only offence, for which the appellant was in jeopardy under this count as framed, was that of accepting the money, contrary to section 99. We do not consider therefore that the count was bad for duplicity.

However that may be and whatever may be said about the count and even if it were bad owing to the inclusion of the words ” demand or “, we think that this is a case in which we should act under the proviso to section 11 (1) of the West African Court of Appeal Ordinance.

Mr. Taylor submitted that once an indictment is held bad for duplicity it is not open to this Court to inquire into the merits of the case. This was the precise point taken by Counsel for the appellant in R. v. Thompson (1) and his submission was rejected by a Court composed of Isaacs, L.C. J., Darling, Gray, Lush and Atkins, J J. In this court Thompson’s case was followed in the case of Nelson Asiegbu (2) and the proviso to section 11 (1) has again been applied so as to affirm a conviction upon an indictment otherwise bad for duplicity during the present session of the court in the case of Thomas Charles Oheke (3).

The appellant in this appeal now before us was defended by Counsel at his trial and could not possibly have been embarrassed by the way in which this count of the indictment was framed. The record makes it quite clear that he knew precisely what was alleged against him by the prosecution and that he endeavoured to rebut these allegations. There is no appeal on the merits and there could not possibly be one because the offence of accepting the money was very clearly proved. There has been no miscarriage of justice.

Our decision is, therefore, that the appeal must be dismissed.

Appeal dismissed.