IN THE SUPREME COURT OF NIGERIA
On Wednesday, the 2nd day of May, 1973
Before Their Lordships
TASLIM OLAWALE ELIAS….. Justice, Supreme Court
ATANDA FATAYI-WILLIAMS….. Justice, Supreme Court
DAN IBEKWE….. Justice, Supreme Court
The State….. Respondents
Per T. O. ELIAS, C.J.N. at P. 8, Para. C.
: In Suit AB/10/C/65 in the High Court, Abakaliki on 7th April, 1967 Alagoa, J., convicted the accused, Friday Onyekwere, a police constable attached to the Abakaliki Police Station investigation branch, of official corruption contrary to section 98 (a) and 116 (a) of the Criminal Code and demanding with menaces, contrary to section 406 of the same Code. The charges laid against the accused were described by the learned trial judge as follows:
“On the first count he is charged with obtaining a sum of 8(pounds) from one Peter Ekpunobi in order that he might refrain from prosecuting him for assault alleged committed. On the 2nd count with demanding some money from the said Peter Ekpunobi and with threats of injury or detriment if the said demand was not complied with. On the 3rd count with demanding the sum of 3(pounds) from Oliver Ajagu with menaces, on the 4th count with corruptly asking James Okonkwo for 3(pounds) in order to allow his servants on bail. On the 5th count with corruptly asking Marcus Udebuwa for 3(pounds) in order to allow his ervants on bail.”
The facts were briefly as follow:
In September 1964 the accused was detailed to investigate a case of an alleged assault on a dumb man whose money was also taken away from him. The accused went to 36 and 37 Gunning Street were he collected five boys, two of whom were the servants of James Okonkwo (3rd P.W.), two of Marcus Udebuwa (4th P.W.) and one of Edward Ekenedo, and took them to the charge office. On calling later at the charge office to make enquiries about the boys, two of the masters (3rd & 4th P.W.s.) found the accused to be the police constable in charge there, were asked by the accused to pay 1.10s(pounds). for bail for each boy and, being unable to pay on the spot, were followed home where the accused threatened to take the boys back to the cell if his demand was not met. Both masters offered 10s each to the accused who threw the money away as being too small. He suggested that all concerned should make a contribution and left. He thereafter invited Edward Ekenedo to his house at 12 Awolowo Street where he told his invitee that the case against his servant was very serious and that he should bring the money collected, so that he might see his superior officers to drop the case. On his return to his store at 22 Gunning Street, Ekenedo met the other two masters and told them what the accused had suggested, and they too told him that the accused had turned down the 10s which they had offered him.
All three then agreed to make a contribution of 1(pounds) each, making 3(pounds). Two days later, one Peter Ekpunobi came and inquired if any policeman had been demanding money from them. When this was confirmed, he encouraged them to make the contribution which they had decided to make and come to his house thereafter. It happened that, a little while earlier, the accused had called Ekpunobis house, introduced himself as a police constable, told his guest that a serious charge of assault was awaiting him because he had ordered some boys to beat up a dumb man, and immediately demanded a statement from him. Ekpunobi asked the accused for time to pay, and he was invited to 12 Awolowo Street, at 9 a.m. the next day. After taking a statement from Ekpunobi on that day, the accused asked him to get someone to bail him unless he was prepared to give him something so that the charge against him might be dropped. Ekpunobi left the accused and, after having discussed with the three masters as we have already described above, he held a meeting of all four of them, together with two others, at his house. A total sum of 5(pounds) out of their contribution of 1(pounds) each was handed to Ekpunobi and Udebuwa both of whom were mandated to meet the Chief Superintendent of Police. Ekpunobi took down the numbers on the pound notes. Edmund Asu (7th P.W.) a police constable and corporal Edifon, were on 23rd September, 1964 detailed to accompany Ekpunobi and Udebuwa to Udebuwa’s store where the accused was expected. Udebuwa was detailed to hand over to the accused the 5(pounds) notes the numbers of which had been carefully recorded. The accused turned up at about 5.30 p.m. on a bicycle and in uniform, and after entering into a store at 37 Gunning Street, the accused was followed by Ekpunobi. Later, all three of them came out and went into 38 Gunning Street; after a little while, the accused came out and rode off.
Udebuwa later explained to the disappointed C.I.D. men that the accused had said that, as he was in uniform, the money should be handed over to Ekpunobi from whose house he would collect it later. In fact, the accused had on entering 38 Gunning Street demanded from and been given 3(pounds) by Oliver Ajagu (2nd P.W.) on the ground that the latter had detailed his boys to beat up a dumb man and had received the 3(pounds) removed from the man. As Ekpunobi entered the store, the accused asked Ajagu to hand “that thing” to Ekpunobi which he did. Both Ekpunobi and Udebuwa had, of course, told the whole story to the C.I.D. men as soon as the accused had left. By another appointment, following upon a note (Ex. A) which the accused had left for him at his house, Ekpunobi after duly informing the C.I.D. men, met the accused at 12 Awolowo Street, where he handed him 8(pounds) which the accused took and put in the waist roll of his loin cloth. As the accused was escorting Ekpunobi out of house, the two C.I.D. men who were taking cover nearby came out. Police constable Asu told the accused that he had received a bribe. What happened then has been thus described by the learned trial judge:
“Accused was dumb-founded for some time. He began to shiver and invited the C.I.D. men into his room. P.C. Asu told accused they wanted nothing except that he should produce the money he received. After a few minutes accused loosened his loin cloth and brought the 8(pounds). He was then arrested and he was allowed to make his statement.”
It is important to record at this stage that, during the preliminary investigation before the magistrate, eight other one pound notes had been substituted for the 8(pounds) notes the numbers of which had previously been recorded.
The case for the accused is a complete denial that he made any demands from any of the prosecution witnesses. He said that on 20th September, 1964 he went to Gunning Street to investigate a case of assault on a dumb man and invited some boys to the police station; that, after taking their statements, they were released on bail to their masters who brought the boys back on the following day; that, on discovering that he had mistakenly invited some wrong persons, he asked the masters to bring the boys back on 22nd September; that after he and the boys’ masters had had an argument, he told them that he had been in Abakaliki for only two weeks; and that, after the Divisional Police Officer had interview the boys, they were charged to appear in court. He said further that he had visited Ekpunobi who, he was informed, could help the prosecution case; that, as Ekpunobi did not find it convenient to make a statement on the spot, he invited him home and took his statement the next day; that his later meeting with Ekpunobi at 3 p.m. was in order to find out the whereabout of an Hausa man, but that he left a note (Ex. A) for Ekpunobi telling him that he the accused had since found the Hausa man and that Ekpunobi should not worry about it any more. He denied going to Gunning Street at 5.30 p.m. on 23rd September, 1964 saying that he was then on duty. He eventually asked Ekpunobi to call at his house at 1 p.m. on 24th September and Ekpunobi told him that he had discovered that he was related to the persons arrested and would not give evidence, and suggested that the case be dropped. The accused then told Ekpunobi that he could speak to his superior officers. He testified further that, after Ekpunobi left, he found a bundle of one pound notes on the chair on which he sat, called him back but he would not heed his call. The two men accosted him and charged him with having received a bribe from Ekpunobi. He then laughed and invited them into the house where he explained to them how he had found the money. The two men then took a statement from him.
Before the learned trial judge, counsel for the accused urged the court to find that Ekpunobi acted with malice and was out to destroy an innocent person, and also to find that the 8(pounds) was planted on the accused.
As regards this point the learned trial judge observed:
“From what Ekpunobi told the court and admitted by accused, it was accused who went looking for him and neither knew the other before. “
Further on, the learned trial judge also said:
“The general picture one gets is that from the time accused went to look for Mr Ekpunobi on the 22nd September until he was arrested on the 24th September and found with 8(pounds) notes, it was accused not Mr Ekpunobi who had always taken the intiative of either going to meet Mr Ekpunobi in his house or inviting him (Mr Ekpunobi) to meet him (accused) in his house. Therefore to suggest as was urged by Mr Ezekwe for accused that Mr Ekpunobi was hunting accused to destroy him is not borne out by the evidence.”
The learned trial judge further pointed out:
“To suggest that Mr Ekpunobi instigated these men against accused overlooks the fact that both from accused’s version and the evidence of 2nd, 3rd, 4th and 5th prosecution witnesses, these men were first contacted before Ekpunobi; he therefore could not have instigated a complaint which was already floating before he came into the picture.”
Learned counsel for the accused also said that Ekpunobi instigated 2nd, 3rd, 4th and 5th prosecution witnesses to make these charges against the accused because they were his relations. After observing that the question of relationship was never put to Ekpunobi or to any of these witnesses who had all denied knowing Ekpunobi before this case, the learned trial judge found as follows:
“I do not find difficulty in believing the 2nd, 3rd, 4th and 5th prosecution witnesses that they did not know Mr Ekpunobi before; the fact that they were fighting a common cause is sufficient to engender agreement and familiarity.”
Indeed, the learned trial judge believed that Ekpunobi “an experienced retired policeman”, played a worthy part in securing the arrest of the accused. He described the role played by Ekpunobi thus:
“What I find as a fact is that Mr Ekpunobi is a public spirited man and having been threatened with a prosecution by accused if he did not give him money and later learning that accused had made such demands from other persons at 36 and 37 Gunning Road with a view to exposing the evil approached these men and encouraged them to make the contribution which he and one of them took to the Police to enable accused to be arrested.”
After a careful evaluation of the totality of the evidence adduced before him by both the prosecution and the defence the learned trial judge found as follows:
“On the evidence of 1st, 2nd, 3rd, 4th and 5th prosecution witnesses who I find gave testimony of what actually took place between them and accused coupled with the evidence of the Policeman (7th P. W.) who found accused with 1st and 4th prosecution witnesses at the store in Gunning Street and ultimately arrested him with the 8(pounds) notes, I find as a fact that accused who was detailed to investigate a case of assault on a dumb man who was robbed of 3(pounds) embarked on a corrupt crusade by arresting the servants of 3rd, 4th and 5th prosecution witnesses and demanding 1: 10s(pounds) for the bail of each of the servants, he being in charge of the case and in a position to prepare the police bail bond, and when he found his demand was not met, but was instead offered 10s by 3rd and 4th prosecution witnesses in their stores where he went, suggested that they could make contribution.
That he subsequently met Mr Ekpunobi (1st P.W.) whom he threatened with prosecution in respect of the said case if his demand for money was not met. That following his reckless and unscrupulous demand, the witnesses got together and collected 5(pounds) which was handed to Mr Ekpunobi who was detailed with 4th P. W. to report the matter to the Senior Superintendent of Police which led to the arrest of accused who was found with the said 5(pounds) notes contributed and 3(pounds) which 2nd P.W. handed to 1st P.W. for accused who went to 2nd prosecution witness’s store for that purpose. I find accused guilty on 1st, 2nd, 4th and 5th counts.”
The learned trial judge declined to convict the accused on the 3rd count because the demand of 3(pounds) which he made on Oliver Ajagu amounts to an offence under section 98 (a) of the Criminal Code Law and carried a penalty of seven years imprisonment, a greater offence than under section 406 with which the accused was charged. He, therefore, found the accused not guilty on the 3rd count since he could, under section 179 of the Criminal Procedure Act, only convict for a lesser offence than that charged.
This appeal has accordingly been brought against the convictions of the accused on the 1st, the 2nd, the 4th and the 5th counts. Learned counsel for the appellant argued the following three out of the seven grounds of appeal filed
“1. The learned trial judge misdirected himself in law when he held that an offence under section 116 (a) of the Criminal Code Law has been proved even though the person from whom the money was, obtained committed no offence nor was there any complaint of an offence against the said person.
2. The learned trial judge misdirected himself in law when he held that an offence under section 406 of the Criminal Code Law has been proved even though there was no evidence of threat, injury or detriment to the person from whom money was demanded.
The learned trial judge misdirected himself in law when he held that a third class police constable could approve and grant bail and that an offence under section 98 (a) of the Criminal Code Law has been proved.”
With regard to ground 1, Mr Ezekwe, learned counsel for the appellant, submitted that there was no evidence of assault or of any complaint regarding assault against Ekpunobi (P. W. 1) and that the latter did not believe the appellant when he charged him with having committed an offence. He contended that Omotosho v. Police  1 All N .L.R. 693 is on all fours with the present case. We think, however, that that case lays it down that a threat to imprison a man on a fictitious charge is a threat of detriment within the meaning of section 406 of the Criminal Code and that it is where the threat is incapable of fulfilment and each party knows that the other is aware of this that no offence is committed under the section: see Edo and Osakabo v. Police F.S.C. 87/1961. We think that while the nature of the demand made by the appellant upon Oliver Ajagu cannot support the charge under section 406, it can and does support a charge under section 98 (a) of the Criminal Code Law.
Learned counsel for the appellant also argued that in order to constitute an offence under section 116, there must be a commission of an actual offence: Clement Alashi v. Inspector-General of Police (1959) 4 F.S.C. 216. He further submitted that, on the authority of Romanus Ezejiogu v. Rex 10 W.A.C.A. 230, section 116 of the Criminal Code applies only when the person against whom there is a complaint has committed an offence. Mr Ezekwe again contended that Sogbanmu v. Commission of Police 12 W.A.C.A 356 is distinguishable from the present case in that in Sogbanmu’s Case there was no offence committed but there was a complaint against the person who offered the bribe, whereas in the instant case there was no offence committed and no complaint made against Ekpunobi for assault. It was his submission that the charge of obtaining the 8(pounds) corruptly could not, therefore be sustained against the appellant. We think that this is not a sound argument, since it seems to us that if a complaint is made to the police that anoffence has been committed, it is their duty to investigate the case not only against the person about whom the complaint has been made, but also against any other person who may have taken part in the commission of the offence.
As regard grounds 2, Mr Ezekwe argued that the learned trial judge was wrong to have found the appellant guilty of an offence under section 406 of the Criminal Code Law when there was no evidence of threat, injury or detriment to the person from whom money was demanded. He maintained that Ekpunobi did not himself contribute to the 8(pounds) he handed over to the appellant, but did all that he had done only to “trap” the appellant. We recall that, under cross-examination by Mr Ezekwe in the lower court, Mr Ekpunobi had said:
“Accused demanded money and 8(pounds) was handed over to him. Accused did not threaten me but he did say at the time he came to me that if I did not want to be charged to court I should give him something which I understood to be money. I did take accused seriously.
Earlier, in his evidence, Ekpunobi had said:
“He told me that a serious charge was awaiting me for assault, and that I ordered some men to beat up a drunk person.”
We do not, therefore, agree with this submission of the learned counsel. In support of his ground 3, Mr Ezekwe referred to section 23 of the Police Act which provides in effect that only a police officer in charge of a police station can grant bail. It was his contention that the bail granted by the appellant was beyond his powers, and that the learned trial judge was in error when he held that an offence was committed under section 98 (a) of the Criminal Code. Mr Offiah, the learned Director of Public Prosecutions for the East-Central State, observed that, according to section 23 of the Police Act (Cap. 154 of the Laws of the Federation), only a “police officer for the time being in charge of police station” could release an accused person on bail. He then pointed out that as it was not proved either that the appellant was in-charge of the police station at the material time or that it was part of his duties to grant bail to accused persons, the charge as laid in counts 4 and 5 would appear to be defective. We also agree that the charge as laid in these two counts was not supported by the evidence adduced by the prosecution in that no evidence was adduced either to show that the appellant was in charge of the Abakaliki police station at the material time, or that it was part of his duties to grant bail to persons arrested by the police. In this connection we refer to the following observation of Butler Lloyd, J., in R. v. Kadiri Layole (1935) 12 N.L.R. p. 44
“Now there are three sections of the Code dealing with the offence of corruption-sections 98, 114 and 116 and in all of them is it an essential element of the offence that there must be a duty to be performed by the person to whom the corrupt payment is made or offered. If there is no such duty no offence is committed against any of these sections however morally reprehensible the transaction may be.”
Again, in R. v. Minimah (1940) 6 W.A.C.A. 192, it was held that in a prosecution under section 99 of the Criminal Code, while the charge need not specify the duty concerned, the court must be satisfied by evidence of the existence and nature of the duty to which the offence relates. Finally, it was held, rightly in our view, by the High Court of the Northern Region in Garba v. Inspector-General of Police (1956) N.R.N.L.R. 32, that, in view of the provisions of section 73 (1) (a) of the Evidence Act, the court must take judicial notice of the duties imposed on a police officer by law under section 4 of the Police Act.
With regard to the conviction of the appellant under section 116 (a) of the Criminal Code, however, Mr Offiah submitted, quite rightly in our view, that the learned trial judge was right since the appellant was detailed to investigate a case of assault, and there was an allegation that Ekpunobi had committed an offence, as happened in the Sogbanmu’s Case, which was followed in Ebute v. Inspector-General of Police (1957) N.N.L.R. 194, at p. 197; also per Bairamian in Hattab v. Inspector-General of Police (1956) N .R.L.R. 24, at pp. 28-30. According to the decision in C. Alashi v. Inspector-General of Police 4 F.S.C. 216, at p. 217, there must have been an actual offence either commited by or alleged against the person paying the bribe and for which the person demanding or taking the bribe would forebear to prosecute. It seems clear that a victim who pays a bribe cannot say whether or not he has committed an offence until a court decides: Queen v. Ikor and Ors. (1956) 1 E.R.L.R. 9.
With respect to Mr Ezekwe’s submission under ground 2. Mr Offiah contended that it is the intent of the person demanding the bribe that counts,provided that the other ingredients of the section 116 of the Criminal Code Law are proved; and that it does not matter whether the victim contributed or not, or whether he did what he had done only to “trap” the appellant. It is the intent of the demandant that counts, Edo and Osakabo v. Police, F. S. C. 87/1961. The Director of Public Prosecutions finally submitted that, under section 406 of the Criminal Code Law, the making of the demand with the requisite mens rea is sufficient to secure a conviction, and that the appellant was rightly convicted. We think that these submissions are well founded.
For the various reasons given above, the appeal fails and it is dismissed. We confirm the judgment of Allagoa, J., delivered in the High Court at Abakaliki on 7th April, 1967, except that we set aside the conviction of the appellant for official corruption contrary to section 98 (a) of the Criminal Code Law as laid in counts 4 and 5 of the charge, and acquit and discharge the appellant on these counts.
Convictions under section 116 (a) and section 406 of Criminal Code confirmed; those under s. 98 (a) set aside.
G. C. Ezekwe for the appellant……For Appellant
F. O. Offiah, D.P.P. East Central State (with him P. Amaizu, Senior State Counsel) for the respondent……For Respondent