Henry Umoera v. Commissioner of Police (1977)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C.

In the Magistrate’s Court of the Midwestern State (now Bendel State) sitting at Ekpoma, the accused (now appellant) and one Comfort Okojie were charged with the offence of removing evidence contrary to Section 107 of the Criminal Code of Western Nigeria applicable in the Bendel State. The particulars of the offence read:

“That you Henry Umoera and Comfort Okojie on the 3rd day of April, 1975, at Police Station Ekpoma in the Ekpoma Magisterial District with other persons unknown wilfully removed four drums of petrol with intent to prevent them from being used in evidence knowing the four drums of petrol will be required in evidence in a judicial proceeding by removing them forcibly from the Police Exhibit Room Ekpoma and thereby committed an offence punishable under Section 107 of the Criminal Code (Cap.28 Vol. 1 of the Laws of Western Nigeria) applicable in the Mid-Western Nigeria.”

(The underlining is ours).

The facts on which the prosecution relied are amply set out in the testimony of John Ndah, the first prosecution witness. He testified, inter alia, as follows:

“At about 12.30 a.m. in the night of 3/4/75 I was sleeping in my house when police constable Anthony Okolie who was on duty at the charge room at the Ekpoma Police Station came to my house. He woke me up, and reported that some men in army uniform came to the station and said they wanted to remove four drums of petrol kept in the station exhibit room as exhibit.

The two accused persons had earlier been connected in a case of keeping four drums of petrol exceeding 128 gallons in a premises without licence. The four drums of petrol were recovered from the accused persons and were kept in the exhibit room in the case involving the accused persons. When I arrived at the Police Station I saw some men in army uniform. They told me they had come to remove the drums of petrol. The men claimed that they were sent by their commanding officer to collect the drums of petrol. I protested against the removal. I told them that the drums of petrol were exhibits required in a case which the police were investigating. The men however used force and removed the four drums of petrol. I made an entry of the removal in the station crime diary. I later went to Ubiaja where I informed the Divisional Police Officer about the incident.”The witness also explained that when the two accused persons were later charged to court for the offence relating to the keeping of the four drums of petrol, the drums were not available for use in the proceedings in that case.

We pause to observe, at this juncture, that none of the men in army uniform who actually removed the drums was charged along with the accused and no reason was given by the prosecution for this. Moreover, there is no evidence by the prosecution to show what was done about the commanding officer who was alleged to have authorised the removal of the drums notwithstanding the following testimony of the second prosecution witness as to what transpired at the Army Barracks after the drums had been removed:

“The soldiers asked me if I was prepared to withdraw the case involving the keeping of petrol by the accused persons. I told them that I was not the complainant in the case. Later, I was taken before the commanding officer. He spoke to me and said I should do something to see that the case involving the accused persons was not charged to court. I told him that I merely helped the police in conveying the drums of petrol to the police station. ”

When asked under cross-examination about the relationship between the accused persons and the men in army uniform, the second prosecution witness replied:

“I do not know whether or not the accused persons have control or influence over the soldiers at Uromi.”

Anthony Okolie (P.W.4) who had earlier reported to the first prosecution witness about the presence of the soldiers at the Ekpoma Police Station, testified that there were four soldiers two of whom carried drums and that two of the soldiers were in mufti. His testimony also indicated that six and a half drums of petrol NOT four drums were removed from the station on the day in question.

The last question called by the prosecution is Moses Mokwa (P. W.5), an inspector of police who assisted in the investigation of the present case against the accused persons. Part of his testimony reads:

“In furtherance of my inquiry, I, on 6/4/75 initiated a telegram to the commanding officer 4th Infantry brigade Nigerian Army Uromi requesting the officer to make available to the police the drums of exhibit petrol allegedly removed forcibly by his men from the Ekpoma police station. I indicated in the telegram that the case in which the drums of petrol were required as exhibits had been charged to court. Up till now the drums of petrol have not been made available to the police.”