Joseph Asuquo V The State (1967)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C.

The appellant was tried by Oputa J. at Enugu on four counts; he was convicted on the 2nd only and has appealed. This count states as follows :-

STATEMENT OF OFFENCE: COUNT TWO

‘Attempting to induce witness to withhold true testimony in a case, contrary to section 121 (b) of the Criminal Code.

PARTICULARS OF OFFENCE

Joseph Etim Joseph Asuquo and Efiong John Ndekhedehe, on the 18th day of March, 1966, at Emene, Enugu in the Enugu Judicial Division did attempt to induce Allison Onya, who was to be called as a witness in the case of Stealing against the said Joseph Etim Joseph Asuquo and Efiong John Ndekhedehe, to withhold true testimony.’

(A nolle prosequi was filed in regard to the other defendant, E. J. Ndekhedehe.) The case against the appellant was that at a time when the Police were investigating an allegation that he, a government employee, had used government materials to have furniture made for himself, he approached the person named (Allison Onya) and asked him to lie to the Police when interviewed for a statement.

At the close of the prosecution case counsel for the defence submitted that section 121 (b) meant that there was a judicial proceeding in existence but here the Police had not instituted a prosecution; he was overruled for reasons given later in the judgement, and that submission has been repeated on appeal.

Section 121 (b) provides as follows-

‘Any person who-

(b) attempts by any other means to induce a person called or to be called as a witness in any judicial proceeding to give false testimony or to withhold true testimony; …………..is guilty of a felony, and is liable to imprisonment for seven years.’

The words witness, judicial proceeding, and testimony make it plain that there is a judicial proceeding in existence. It becomes plainer still when one drafts a count following, as one should, the wording of the section. The count would (for example) allege that the defendant attempted to induce C.D. a person called-or as the case might be, to be called-as a witness in the judicial proceeding between the Commissioner of Police and A.B. in the Magistrates Court at such and such a place, etc.; then it would have been patent that in this case the count did not lie. State Counsel avoided his difficulty by writing in the particulars the words a case of Stealing, which can mean a case under investigation by the police or a case pending in court, and are ambiguous.

Oputa J. agrees that the words a person called as a witness in a judicial proceeding mean that there is a judicial proceeding in existence. He thinks, however, that the words a person to be called as a witness in a judicial proceeding can mean in a judicial proceeding that may be brought later. He refers to Sharpe and Stringer (1937) 26 Cr. App. R. 122 and quotes these words-

‘Public justice requires not only that people should not take steps to conceal a crime or destroy evidence once a summons has been served upon somebody, but also that every crime should be suitably dealt with, and a man who obstructs public justice as soon as a crime is committed and endeavours to avoid the consequences of his wrongdoing by conspiracy with others is just as much guilty of an offence as if he waits until after proceedings are actually pending.’