The Queen V. L.V. Ezechi (1962)
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UNSWORTH, F.J
This is an appeal from a decision by H.S. Palmer, J., convicting the appellant of an offence of obtaining the sum of £30 as bribe contrary to the provisions of section 38(A) (2) of the Eastern Region Local Government Law, 1955. This section makes it an offence to obtain a bribe, and is in the following terms:-
“(2)Whoever gives or offers and whoever accepts or obtains and whoever agrees to accept or obtain for himself or for any other person, any gratification, advantage, bribe or reward whatsoever whether in money or otherwise for inducing by any corrupt or illegal means or by corrupt personal influence any member of a council, member of a committee of a council or servant of a council to do or to offer to do any act which the said member of the council, member of a committee of a council, or servant of a council as the case may be, is authorized to do in the exercise of the authority or function of such a member or servant, or to show favour or disfavour to any person shall be guilty of an offence.”
The evidence that the appellant had obtained a bribe was given by the complainant, who said that he had given a bribe, and that one of his friends, Isaac Chime, was present at the time when the bribe was alleged to be given. The complainant in his evidence said this:-
“I made application to the Enugu Municipal Council for stall. It was in 1960. It was a market stall. I made the application once. I wrote an application asking for one stall in Ogbete market. I got no reply. I made enquiries as to how I could get the stall. I then went to the accused. I knew him previously. We come from the same town. I saw accused. I told him I wrote an application for a market stall but that there was no reply. The accused told me that if I wanted to get a stall there was a way to do it but that it would cost me money. He told me it would cost me £30. This conversation was on 4th February, 1960. I told him I would go home and come back tomorrow. When. l got home I discussed it with one of my friend. His name is Isaac Chime. ……….”
Counsel for the appellant argued a number of grounds of appeal but we called upon Counsel for the respondent to reply only in respect of a submission that the Judge had not directed his mind to the fact that the only evidence was that of accomplices.
Section 177(1) of the Evidence Act provides that where the only evidence against an accused person is that of an accomplice the Judge shall warn the jury or, if there is no jury, the Court shall direct itself, that it is unsafe to convict upon such evidence. Sub-section (2) provides that this does not include co-accused. We consider that where a Judge fails to warn the jury or the Court fails to direct itself in such a case, the conviction must be quashed unless the circumstances are such that we can uphold the conviction under the proviso to section 26(1) of the Federal. Supreme Court Act, on the ground that there has been no substantial miscarriage of justice.
Counsel for the respondent submitted that the witnesses were not accomplices and that no direction was therefore necessary. The first ground on which he based this submission was that the complainant said that he did not know at the time that the payment was a bribe. We do not think that there is substance in this as the circumstances in which the alleged payment was made are such that the complainant and his friend must have known that a bribe was being offered.
The second ground on which counsel submitted that the witness was not an accomplice was that the complainant was, In fact, a victim. In support of this he referred to the case of R. v. Dare (5 W.A.C.A. 122). In that case it was held that a boy who had been given in pawn was not an accomplice to the offence of slave dealing. The circumstances there are very different from those which we are now considering. The classes of person and the circumstances in which a person may be regarded as a victim have, however, been considerably extended since the decision in R. v. Dare, and witnesses in bribery cases were treated as victims in Rex v. Okereke Anyaleme & Others. (9 W.A.C.A. 23); Naparo Braima AlHassan v. Commissioner of Police (10 W.A.C.A. 238) and Okeke v. Commissioner of Police (12 W.A.C.A. 363).
The matter received further consideration by the West African Court of Appeal in the case of Nweke v. The Queen (15 W.A.C.A. 29), where the Court followed the principles laid down in the case of Michael John Davies (38 C.A.R. 11). The term “accomplice” includes the following other that co-accused:-
(a) persons who are participes criminis in respect of the actual crime charged whether as principals or accessories before or after the fact;
(b) receivers are accomplices of the thieves from whom they receive the goods on the trial of the latter for stealing;
(c) where a person is charged with a specific offence on a particular occasion, and evidence is admissible and has been admitted of his having committed crimes of the identical type on other occasions, as proving system or intent or negativing accident, parties to such other similar offences. No further extension of the term “accomplice” should be accepted.
In considering whether a person is participes criminis the Court in Michael John Davies said this:-
“But, it may reasonably be asked, who is to decide, or how is it to be decided, whether a particular witness was a participes criminis in the case in hand? In many or most cases this question answers itself, or, to be more exact is answered by the witness in question himself, by confessing to participation, by pleading guilty to it, or by being convicted of R. But it is indisputable that there are witnesses outside these straightforward categories, in respect of whom the answer has to be sought elsewhere. The witness concerned may never have confessed, or may never have been arraigned or put on trial, in respect of the crime involved. Such cases fall into two classes. In the first, the judge can properly rule that there is no evidence that the witness was, what I will, for short, call a participant. The present case, in my view, happens to fall within this class, and can be decided on that narrow ground. But there are other cases within this field in which there is evidence on which a reasonable jury could find that a witness was a “participant.”
In such a case the issue of ‘accomplice vel non’ is for the jury’s decision: and a judge should direct them that If they consider on the evidence, that the witness was an accomplice, it is dangerous for them to act on his evidence unless corroborated: though it is competent for them to do so ff, after that warning, they still think fit to do so.”
The principles that emerge from the above cases are:-
(a) except in cases of receiving and cases showing system, the witness must be an accomplice in the actual offence charged whether as principal or accessory before or after the fact;
(b) the question whether a person is participes criminis is a matter to be decided in the circumstances of each case.
Now were the complainant and his witness in the present case participes criminis in the offence of obtaining a bribe? We have no doubt that they were. It was intimated to the complainant that he would be able to obtain a stall if he made a payment of £30. The complainant then went away and discussed the matter with his friend. The two of them then sought out the accused and offered him the bribe, which was accepted. It is apparent that the complainant and his friend voluntarily acceded to the request for money in order to obtain a preference or preferment which might otherwise not have been open to the complainant, and in such circumstances they cannot be regarded as victims.
In reaching this conclusion we have not been unmindful of the decisions of the West African Court of Appeal referred to above, but consider that they are distinguishable. The cases of Rex v. Okereke Anyaleme and Ors. and Nweke v. The Queen related to demands by police officers in circumstances where the witnesses could properly be regarded as acting under duress. The Court in Naparo Braima Al-Hassan v. Commissioner of Police dearly acted upon the basis that the money had been extorted from the witnesses and paid by them “in all innocence”. In Okeke v. Commissioner of Police a public officer was demanding extra payment for a service which he should have supplied in the ordinary course of his duties, but the exact circumstances in which the demand was made are not fully set out in the judgment. It would appear that in all these cases the Courts did not regard the payment as having been made voluntarily.
There remains for consideration the question of whether we should apply the proviso to section 26(1) of the Federal Supreme Court Ordinance and dismiss the appeal on the ground that there has been no substantial miscarriage of justice. We have given this matter careful consideration but have reached the conclusion that it would not be safe to apply the proviso in the present case. The Judge in his judgment said that there were discrepancies in the evidence of the two prosecution witnesses and there can be no certainty that the Judge would have come to the same conclusion if he had directed his attention to the fact that the evidence was that of accomplices. It was submitted by counsel for the respondent that the appellant’s own evidence amounted to corroboration but we do not agree with this submission. The appellant denied the offence both in his statement to the Police and in his evidence before the Court: we can find nothing which could properly be regarded as corroborating in any material particular the evidence given by the two accomplices and implicating the appellant in the allegation that was made against him.
For the reasons stated in this judgment the appeal is allowed and the conviction and sentence are accordingly set aside.
Other Citation: (1962) LCN/0977(SC)
