S.O. Esan V. The State (1976)
LawGlobal-Hub Lead Judgment Report
MADARIKAN, JSC.
The appellant stood trial in the High Court, Lagos (Charge No.LA/23C/74) on an Information containing the following five counts:- “Statement of Offence – 1st count Extortion by public official contrary to Section 99 of the Criminal Code.
Particulars of Offence Stephen Oyedokun Esan (m), on or about the 16th day of February, 1974, at Ikeja in the Badagry/Epe and Ikeja Judicial Division being a person employed in the public service to wit: a medical officer in the Lagos State Ministry of Health charged with a duty of giving medical treatments to patients who attend the General Hospital, Ikeja accepted from Mogaji Mustapha in order to give medical treatment to one Mohammed Musa the sum of N25.00 which was beyond his proper pay and emoluments. Statement of Offence – 2nd count Official corruption, contrary to Section 98(i) (a)(ii) of the Criminal Code.
Particulars of Offence Stephen Oyedokun Esan (m), on or about the 14th day of February, 1974, at Ikeja in the Badagry/Epe and Ikeja Judicial Division being a public official to wit: a medical officer in the Lagos State Ministry of Health corruptly asked for a sum of N35 from Mogaji Mustapha and Mohammed Musa in order that he the said Stephen Oyedokun Esan might give medical treatment to Mohammed Musa. Statement of Offence – 3rd count Official corruption, contrary to Section 98(1)(a)(ii) of the Criminal Code.
Particulars of Offence Stephen Oyedokun Esan (m) on or about the 16th day of February, 1974 at Ikeja in the Badagry/Epe and Ikeja Judicial Division being a public official to wit: a medical officer in the Lagos State Ministry of Health corruptly received a sum of N25 from Mogaji Mustapha in order that he the said Stephen Oyedokun Esan (m) might give medical treatment to Mohammed Musa. Statement of Offence – 4th count Demanding property with menaces with intent to steal contrary to Section 406 of the Criminal Code.
Particulars of Offences Stephen Oyedokun Esan (m) on or about the 14th day of February, 1974 at Ikeja in the Badagry/Epe and Ikeja Judicial Division with intent to steal demanded the sum of N35 from Mogaji Mustapha and Mohammed Musa with threats of detriment to be caused to Mohammed Musa, to wit: that he the said Oyedokun Esan would not give medical treatment to the said Mohammed Musa unless the demand was complied with. Statement of Offence – 5th count Stealing, contrary to Section 390 of the Criminal Code. Particulars of Offence Oyedokun Esan (m) on or about the 16th day of February, 1974 at Ikeja in the Badagry/Epe and Ikeja Judicial Division stole the sum of N25 property of Mogaji Mustapha.”
After hearing evidence adduced by eleven prosecution witnesses and the appellant, the learned trial Judge (Kazeem, J.), in a considered judgment, found the appellant not guilty on the 2nd, 4th and 5th counts; and entered a verdict of acqittal and discharge in respect of each of those counts. In the course of the judgment, the learned trial Judge convicted the appellant on the first count and sentenced him to a fine of N200 or six month I.H.L.; but refrained from making a pronouncement on the third count as in his view, it was an alternative count to the first count.
A resume of the essential facts of this case will bring out clearly the points that were in controversy in this appeal. At all material times, the appellant was a medical officer employed in the Lagos State Ministry of Health and posted to the General Hospital, Ikeja. His duties were described in the fallowing manner by Dr. A.R. Jinadu (P.W.1) the Chief Health Officer for Lagos State:- “The duties (of the accused) consist of seeing and treatment of patients who come to the General Hospital daily. The accused is expected to examine patients who come to him at the hospital and to prescribe necessary medicine for their ailment and to give them any other necessary medical attention.” P.W.1 stated that a government Medical Practitioner was not allowed to attend to and to treat his private patients in the General Hospital; nor was he authorised to charge or collect fees. On the 14th February, 1974, Mohammed Musa (P.W.5) – hereinafter referred to as the patient – went to the General Hospital, Ikeja, for treatment. He was in company of Ibrahim Bofo (P.W.3) and Mogaji Mustapha (P.W.4), After the patient had obtained a hospital card and taken three of them (i.e. the patient, P.W.3 and P.W.4) entered the consulting room of the appellant. It is convenient at this stage to refer to an important feature of this case. As the patient spoke in Hausa and the appellant in English P.W.3 who understood both Hausa and pidgin English acted as an interpreter.
The obvious effect of this was that whatever the patient said in Hausa had to be interpreted by P.W.3 to the appellant in English, and, in like manner, whatever the appellant said in English had to be interpreted by P.W.3 to the patient in Hausa. It is also pertinent to point out that P.W.1 understood Hausa but did not understand English. We now proceed to the crux of this matter, namely, evidence of what transpired in the consulting room of the appellant on the 14th of February, 1974:- (1) P.W.3 said that upon enquiry by the appellant he interpreted to the appellant what the patient’s complaint was.
The appellant then asked the patient to lie on a bed which was partly screened; and after lying on the bed he examined the patient and took his blood pressure. P.W.3 continued his evidence thus:- “The accused then asked me to tell Mohammed to bring N35 and I interpreted it to Mohammed in Hausa language. Then both Mogaji Mustapha and Mohammed Musa asked me in Hausa to tell the accused in English to reduce the money a little and I did. The accused then said that I should tell them in Hausa that if they could get N25, it would be alright and I told both Mohammed and Mogaji also in Hausa.
At the time we were in the room with the accused and he demanded a sum of N25, he said he was going to use it for treating Mohammed. The accused did not tell us where the treatment was to take place. The accused expected us to bring the N25 to him at his private room at Ikeja General Hospital. The accused did not ask me to tell Mohammed what kind of treatment he was going to give. Mohammed did not asked me either to tell the accused what kind of treatment he wanted.” Both the patient and P.W.4 said they were going to find the money. The appellant then wrote a prescription on the hospital card and they went to the dispensary to collect the drugs prescribed. (2) As P.W.4 did not understand English he was not competent to give evidence as to what the appellant said in English. The evidence of P.W.4 could be no higher than evidence of what the interpreter (P.W.3) interpreted to the patient (P.W.4) in Hausa that the appellant had said in English.
The same observation applied with equal force to the evidence of the patient about the conversation between the appellant and the interpreter in the consulting room as they spoke in English and the patient did not understand English. This point was sufficiently emphasized by the patient when he stated in his evidence at the trial that :- “All that I heard the accused tell me on the day (i.e) 14/2/74) was what Ibrahim Bofo (P.W.3) interpreted to me.” It appears from the evidence that after lodging a report with the police, the patient and P.W.4 went back to the hospital on the 16th February, 1974 and P.W.4 handed over to the appellant in his consulting room marked currency notes to the value of N25 already treated with anthracine powder. They were immediately rounded up by the police who had been on the alert nearby and the currency notes were recovered from the pocket of the appellant.
The appellant admitted in his defence that the patient in company of P.W.3 and P.W.4 saw him in his consulting room on the 14th February, 1974. P.W.3 acted as interpreter and it was through him that the appellant conversed with the patient. After examining the patient, he prescribed for him the drug “available for his complaint in the hospital”, but as that was not the most efficacious drug, he told the patient that there were “other powerful drugs for the severity of his case, and that in his own interest, he should get the drugs”. He then asked the patient to report back in twenty-four hours. According to the appellant, it was at this stage that the patient requested him to buy the efficacious drugs for him. The appellant contended that the sum of N25 given to him by P.W.4 on the 16th February, 1974 and recovered from his pocket by the police was for the purchase of drugs for the patient.
On this occasion, he spoke to the patient through a lady who volunteered to act as an interpreter. After reviewing the evidence in the judgment, the learned trial Judge adverted to the discussion between the patient and the appellant in his consulting room on the 14th February, 1974 and said:- “First, it is not disputed that neither Mogaji Mustapha nor Mohammed Musa on the one part, nor the accused on the other part, understood each other, hence it was necessary for Ibrahim Bofo to interpret what one said to the other from Hausa into English and vice versa.
In such circumstances, it is the evidence of Ibrahim Bofo (P.W.3) the interpreter that is admissible in law, the evidence of both Mogaji and Mohammed being regarded as inadmissible hearsay – See R. v. Atted (1958) 43 Cr. App. R.90 and R. v. Zazakwakwa of Yorro (1960) 5 FSC 12. In such a case, on the question as to what the accused demanded on 14th February, 1974, and what it was meant for, it is only the evidence of Ibrahim Bofo that has to be considered and those of Mogaji and Mohammed would have to be disregarded. Secondly, even if the evidence of both Mogaji and Mohammed might be considered, that of Mogaji Musa (sic) is wholly unreliable, in so far as he has been totally discredited having been treated as a hostile witness. However, Mohammed Musa did not say that any money was demanded on the first occasion when they went to the hospital or for what purpose.
Thirdly, it was submitted by learned counsel for the accused that on the authority of R. v. Ukpong (1961) 1 NLR 25, the evidence of Ibrahim Bofo could not be relied upon because it was contradictory to the statement Exhibits “C” and “D” which he made to the police. Ealier, counsel for the accused had sought to contradict Ibrahim with his statement. But learned Senior State Counsel submitted that proper foundation for such contradiction was not laid in accordance with Sections 198 and 208 of the Evidence Act, and as such the statements Exhibits “C” and “D” were inadmissible and should be disregarded. It was further submitted by learned counsel for the accused person that even if the court takes the view that both Exhibits “C” and “D” are inadmissible for the purpose of contradicting Ibrahim Bofo, the court is competent under the proviso to Section 208 of the Evidence Act to call for the statements and make use of them for the purpose of the trial. Much as I do not share the view that proper foundation was sufficiently laid by the defence to enable Ibrahim Bofo to be contradicted with his previous statements to the police Exhibits “C” and “D”. I have however in accordance with the proviso to Section 208 of the Evidence Act decided to use those statements in the interest of justice. Consequently, I have carefully perused the two statements but I cannot find anything therein which is in any way contradictory to the evidence of Ibrahim Bofo before the court.”
Eventually the learned trial Judge accepted the evidence of the interpreter (P.W.3) that the appellant demanded money before writing the prescription on the 14th February, 1974 and convicted the appellant of extortion as charged in the first count. Before us on appeal, learned counsel for the appellant, Chief F.R.A. Williams, severely attacked the portion of the judgment where the learned trial Judge held that the evidence of P.W.4 was “wholly unreliable. Insofar as he has been totally discredited having been treated as a hostile witness”.
Whilst giving evidence-in-chief at the trial, P.W.4 repeated the evidence that he had earlier given that the appellant demanded N35 from the patient for the purchase of “powerful medicine” for the patient. Learned counsel for the State then applied under Section 206 of the Evidence Act to treat the witness as a hostile witness and defence counsel did not object. Thereupon the application was granted by the court and the witness continued his evidence.
A witness is considered hostile under Section 206 only when, in the opinion of the court, he bears a hostile animus to the party calling him and so does not give his evidence fairly and with a desire to tell the truth to the court. (See R. v. Manning (1968) Crim. LR 675). On comparing the statements of P.W.4 to the police (Exhibits “E” and “E1”) with his evidence on oath at the trial, there can be no question that proper foundation had been laid for treating him as a hostile witness and we consider that the learned trial Judge was quite right in the view that he had taken of his evidence.
The star witness in this case was the interpreter (P.W.3), whose evidence that the appellant demanded money from the patient in order that he might give him medical treatment was accepted by the learned trial Judge. On the other hand, the appellant’s evidence that the money was for the purchase of drugs was rejected. P.W.3 made three statements to the police. Two of the statements were tendered in evidence at the trial and marked as Exhibits “C” and “D”. In Exhibit “D”, P.W.3 stated that the appellant demanded N35 for better medicine. We cannot accede to the argument that that portion of the statement appeared to support this evidence of the appellant.
This point was adequately considered by the learned trial Judge when he said:- “What was said in the two statements was that the accused after examining Mohammed asked Ibrahim to tell him to bring N35 for better medicine. Ibrahim did not say in those statements that the accused was to buy the better medicine for Mohammed; and in any case, there was no discussion by the parties about buying any medicine.
What Ibrahim Bofo said before me was that the N35 was demanded by the accused in order to give treatment to Mohammed.”,and we can see no reason to differ from the conclusion thus reached by the learned trial Judge. We also do not think that Chief Williams was on firm ground when he contended that the evidence of P.W.3 has been disparaged by the evidence of P.W.4. We are strengthened in this view by the conclusion that we had reached earlier about the evidential value of the evidence of P.W.4. After giving careful consideration to all the points urged on the court on behalf of the appellant, we are satisfied that there is in the evidence of P.W.3, sufficient legally admissible evidence to sustain the conviction of the appellant and that the evidence was rightly accepted.
This appeal cannot therefore succeed and it is hereby dismissed. The conviction and sentence of the appellant are affirmed.
Other Citation: (1976) LCN/2194(SC)
