Commissioner Of Police, Mid-western Nigeria V Layinka Akpata (1967)

LawGlobal-Hub Lead Judgment Report

ADEMOLA, C.J.N.

This is an appeal by the prosecutor against a judgement of Ekeruche, J., setting aside a conviction on four counts as well as sentences imposed on the present respondent. Originally the respondent, who was a registrar in the High Court of Benin City and a person employed in the public service, was charged and tried in the magistrates court at Benin on four counts which are as follows:-

‘1ST COUNT: That you Layinka Akpata (m) between 9-1-65 and 28-5-66, at Benin City in the Benin Magisterial District, being a person employed in the Public Service to wit: Judicial Department, High Court, Benin City, stole the sum of £ 173-15s-0d, property of your employers and thereby committed an offence punishable under section 331 (4) of the Criminal Code, cap. 28, vol.1, Laws of Western Nigeria, 1959.

2ND COUNT: That you Layinka Akpata (m) between 9-1-65 and 28-5-66, at Benin City, in the Benin Magisterial District, with intent to obstruct the course of justice, wilfully concealed court case file in charge No. B/4C/65 involving Elijah Okolo Chukwu and two others and thereby committed an offence punishable under section 111 (2) of the Criminal Code, cap. 28, vol. 1, Laws of Western Nigeria, 1959.

3RD COUNT: That you Layinka Akpata (m) between the 9th day of January, 1965, and 28th May,. 1966, at Benin City, in the Benin Magisterial District, knowing that exhibits G – G 155, H – H2, 30 – 31 C and S – SI would be required in a judicial proceeding to wit: Charge No. B/4C/65, Police versus Elijah Okolo Chukwu and two others wilfully destroyed the said exhibits with intent thereby to prevent them from being used in evidence in the said proceedings and thereby committed an offence punishable under section 107 of the Criminal Code, cap. 28, vol. 1; Laws of Western Nigeria, 1959.

4TH COUNT: That you Layinka Akpata between 9-1-65 and 28-5-66 being a person employed in the Public Service of Mid-Western Nigeria to wit: Registrar High Court, Benin City, stole case file No. B/4C/65-the State versus Elijah Okolo Chukwu and 2 others, property of the said Mid-Western Government and thereby committed an offence punishable under section 331 (4) of the Criminal Code, cap. 28 of the Laws of the Western Provinces of Nigeria, 1959.’

The respondent was convicted on all the counts by the learned magistrate and sentenced to various terms of imprisonment. On an appeal to the High Court, the learned judge of appeal set aside the convictions and sentences and discharged the accused. The Commissioner of Police has appealed to this court against the acquittal.

The respondent at the material time was a registrar in the High Court of Benin and was in charge of exhibits in a case pending in that court. It would appear that he made use of the sum of £173-15s-0d which was an exhibit in the case and this formed the subject of the first count. He then hid the case file so that the case might not come up for trial and this formed the subject of the second and fourth counts. The third count charged the accussed/respondent with destroying the money the subject-matter of the first count.

It appears to us that the facts are not seriously in dispute. The accused/respondent gave no evidence before the learned magistrate. The evidence, which is not disputed, shows that when confronted the respondent admitted he had made use of the money to argument an amount given to him as an advance to purchase a car. Questioned about the suit file, the respondent was not able to produce it in the High Court, but left in the direction of the magistrates court to which he had been transferred some months earlier and about ten minutes later produced the suit file.

We propose to deal with each of these counts and the reasoning of the learned judge of appeal in his consideration of each.

On the first count the learned judge complained that the ownership of the money as laid in the charge was bad. He said that to say that the money was the property of the accused employers, who are not named in the charge, was bad; that it should have been stated that the money is the property of the Mid-Western Government and to say that the money is the special property of the Judicial Department is inept.

We feel unable to support the reasoning of the learned judge of appeal on this point. The charge as laid stated that the respondent stole the money of his employers and evidence was adduced, which was not controverted, that the respondent was in the employment of the Government of the Mid Western Group of Provinces, a name which the Government of the MidWest carried at the relevant time. We fail to see what other proof the learned judge required that the money was the property of the Government concerned. If there was any doubt about this, and indeed we do not see any room for doubt, the judge had powers under section 104 (a) (ii) of the Magistrates Courts Law to alter the findings of the learned magistrate as to the ownership of the money. The learned Senior State Counsel pointed out to us that no objection was raised at the trial as to the ownership of the money and referred us to the case of R. v. Elechi 3 F.S.C. 17 at p. 18, but in that case in dealing with the point as to the statement of ownership of property, the Federal Supreme Court observed as follows:-

‘Section 154 (I) of the Criminal Procedure Ordinance, Cap. 43, Laws of Nigeria, provides that where the property referred to is described with reasonable clearness it shall not be necessary, except when required for the purpose of describing an offence depending on any special ownership of property, to name the person to whom the property belongs.’

Clearly when special ownership of property is of the essence of a charge it is necessary that the particulars of the charge should show such type of ownership as is necessary to sustain the charge and Hibbert v. McKiernan [l948] 2 K.B. ISO to which the Senior State Counsel also referred will only apply in ordinary cases of stealing where no special property is required to be proved by the provisions of the section under which the charge is laid.