Joseph Asuquo V The State (1967)
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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.’
He thinks that the principle there enunciated applies to all the sections in Chapter XIV of the Criminal Code and applies it in interpreting section 121 (b). The result is that section 121 (b) is extended to include something which the words of the provision cannot embrace: a judicial proceeding does not include anything anterior to the proceeding.
In Sharpe and Stringer the charge was conspiracy to obstruct the course of justice; they had asked a person to lie to the police when interviewed. We have something similar in our section 126 (1), which provides that-
‘126. (1) Any person who conspires with another to obstruct, prevent, pervert, or defeat the course of justice is guilty of a felony, and is liable to imprisonment for seven years.’
The Federal Supreme Court, in The Queen v. Ekanem (1960)5 F.S.C. 14, dealing with a count under section 126 (1) adopted the principle of, which relates to ‘the course of justice’ -words which cover a wider field than the words judicial proceeding and include also the stage between the commission of an offence and the beginning of the prosecution.
We were also referred to the Queen v. Vreones  1Q.B. 360. Vreones made up false samples of grain which were to be sent to the Corn Trade Association in London to be used in an arbitration if it should be held.
The samples were not used, but he was found guilty of an attempt to pervert the course of justice -words which’ Pollock, B. at page 369 explains as follows:
‘The real offence here is the doing of some act which has a tendency and is intended to pervert the administration of public justice’.
We have something like it in section 126 (2), which provides that-
“(2) Any person who attempts, in any way not specially defined in this Code, to obstruct, prevent, pervert, or defeat, the course of justice is guilty of a misdemeanour, and is liable to imprisonment for two years:”
But we are not dealing with a count laid under section 126 (2). The count here is laid under section 121 (b) ; it could not be, and we think that at the end of the prosecution case the defendant ought to have been discharged on that count.
Mr Cole would like us to hear him on the facts for the sake of the appellants future. We cannot; for the conviction must be set aside and nothing is left for the argument to hang from.
As it was the first time that section 121 (b) came up in an appeal, we asked Mr Adebiyi, the Federal Director of Public Prosecutions, to come and help as amicus curiae, and are grateful to him. He began by supporting the views of Oputa J. ; he ended by agreeing that one should be content with the ordinary meaning of the words in section 121 (b) as it is a sensible meaning on its own.
We have discussed section 121 (b) to the extent that is necessary. It will be enough to refer to section 113 which states that-
‘113. In this Chapter the term ‘judicial proceeding’ includes any proceeding had or taken in or before any court, tribunal, commission of inquiry, or person, in which evidence may be taken on oath, or in or before a customary court whether such tribunal takes evidence on oath or not.’
This larger meaning does not affect the present appeal. We note that the words ‘any proceeding had or taken in or before any court’ fortify our view of section 121 (b).
The appeal is allowed; the conviction and sentence are set aside, and a verdict of acquittal shall be entered on count 2 in the information filed in the Enugu Charge No. E/93C/66.
Other Citation: (1967) LCN/1490(SC)