Luke C. N.echeazu V. Commissioner Of Police (1974)

LawGlobal-Hub Lead Judgment Report

IRIKEFE, J.S.C. 

Before the Chief Magistrate, Lagos, the appellant was tried on a charge of four counts, only two of which are material for the purpose of this appeal. These read as follows:

3rd Count: That you Charles Luke Ngene Echeazu (m) on or about the 23rd day of January, 1971 at Lagos in the Lagos Magisterial District, with intent to steal money demanded the sum of N37,000 from Robert Eweka (m) a nephew of Adeyemi Eweka, a Director of Continental Motors and Engineering Company Limited with threats of detriment to be caused to the said Adeyemi Eweka, to wit that you, as a Principal Collector of Customs would assess the import duty and surcharge payable on the 36 ambulances imported by the said company at N311,000 and that you would not authorise the release of the said 36 ambulances if the demand was not complied with and thereby committed an offence punishable under section 406 of the Criminal Code.

4th Count: That you Luke Charles Ngene Echeazu (m) on or about 25th January, 1971 at Lagos in the Lagos Magisterial District stole a sum of N33,000 property of Adeyemi Eweka and thereby committed an offence punishable under section 390(9) of the Criminal Code.

He was convicted on count 3 as charged, and on count 4, a conviction was recorded for an attempt to steal the sum of N33,000. An appeal against the convictions to the High Court was dismissed, and in addition, that court, relying on powers conferred upon it by section 40 of the High Court of Lagos Act altered the finding under count 4 to that of guilty of stealing as originally charged. This further appeal has been brought to this court against the decision of the High Court, Lagos, on the following grounds:

“1. The learned Judge of the High Court was wrong in law in upholding the order for amendment made by the Chief Magistrate when the said order was illegal or ought not to have been made at the stage and in the circumstances in which it was made.

2. The learned Judge of the High Court erred in law in upholding the conviction of the Appellant on Count 3 when:

(a) The Charge before the Court disclosed no offence under section 406 of the Criminal Code because it was not stated that the alleged “threats of detriment” were to be caused to Robert Eweka the man from whom the N37,000 was demanded as alleged;

(b) It was not established that the Appellant intended to steal the sum of N37,000 aforesaid.

3. The learned Judge of the High Court erred in law in upholding the conviction of the Appellant for an offence under section 406 of the Criminal Code because:

(a) There was no proof beyond reasonable doubt of the threat alleged in the Charge, particularly in regard to the amount of money;

(b) It was not established that a reasonable man in the position of Adeyemi Eweka would agree to part with his property as a result of the alleged threats having regard to the circumstances of this case.

4. The learned Judge of the High Court erred in law in upholding the conviction of the Appellant on Count 3 when on the facts accepted by him there can be no conviction for an offence under section 406 of the Criminal Code.
5. The learned Judge of the High Court erred in law in upholding the conviction of the Appellant of stealing when it was not established that the Appellant attempted to take any sum of money from Adeyemi Eweka against the will of the said Adeyemi Eweka.
6. The learned Judge of the High Court erred in law in failing to observe that there being no intent to steal a conviction under sections 106 and 390(9) of the Criminal Code cannot be sustained.
7. The learned Judge of the High Court was wrong to have dismissed the appeal of the Appellant when:

“The decision of the learned Chief Magistrate is unreasonable, unwarranted and cannot be supported having regard to the evidence.”

The events leading to this appeal may be briefly stated as follows: Sometime in December, 1970 the firm of CONTINENTAL MOTORS AND ENGINEERING CO. LTD. of which one Adeyemi Eweka (P.W.3), is a director, imported 122 different types of motor vehicles into Nigeria from Rumania per M.S. “BOCNA” which discharged them at the Lagos Docks. Such goods, if not cleared in time by their owners, would attract storage rent from the Nigerian Ports Authority. As the shipping documents had not yet arrived in the country, P.W.3 applied to the Customs authorities for permission to clear 90% of the consignment of vehicles, in order to minimise the storage rent accruing. This application, which was usual under similar circumstances, was refused. When the shipping documents finally arrived, rent of N385,000 had already accrued on the vehicles and it was with great reluctance that the Nigerian Ports Authority reduced this amount to N341,000 after P.W.3 had protested that if the Customs Authorities had acceded to his earlier request for the release of 90% of the consignment, such colossal rent would not have accrued. The rent of N341,000 was paid and P.W.3 proceeded with the usual arrangements for clearing the vehicles. It was at this stage that the appellant, who was then acting Principal Collector of Customs, in charge of Outdoor duties, including the release of goods, came into contact with P.W.3. This was on Saturday, 23rd January, 1971.

Although the appellant knew that motor ambulances are exempt from duty, he refused to allow 36 of the ambulances imponed by P. W.3 to pass as such, and contended that his reason for refusing such clearance was because the said vehicles, though fitted with stretchers and other gadgets, could be readily convened into delivery vans. If the appellant’s refusal prevailed, and the 36 vehicles were treated as delivery vans, each would attract duty at 3313% and a penalty. On this basis the duty on the aid vehicles would be N39,000, with a penalty of N32,000 bringing the total amount payable to N311,000. There is evidence that, although the dispute over classification was referred to Daenaemi Kunaiyi Akpanah (P.W.1), the appellant’s immediate boss, who ruled that the 36 vehicles were indeed ambulances and so exempt from duty, the appellant remained unyielding. There is also evidence that upon the intervention of another witness, Roben Eweka (P.W.9), a nephew of P.W.3, the appellant and the said P.W.9 visited the Bristol Hotel at Martins Street in Lagos where the appellant suggested to P.W.9 that if P.W.3 could be persuaded to pay them (meaning the appellant and some undisclosed persons) a bribe of N37,000 he (appellant) would allow the 36 vehicles to go dutyfree as ambulances. After much pleading by P.W.9, the appellant agreed to accept N33,000 and this information was communicated to P.W.3 by P.W.9. P.W.3 said he could not raise that much money on a Saturday and promised to come back with it on Monday, 25th January, 1971.

In the evening of the appointed day, i.e. Monday 25/1/71, Adeyemi Eweka handed a total of N33,000 to the appellant at his place of work. The money was in fact made up of dummies provided by the police to stimulate a parcel containing N32,500 notes in unbroken series provided by the Central Bank and N3500 in single N35 notes provided by P.W.3. The police had treated the parcel with anthracene powder at their laboratory for easy identification later. The appellant received the money from P.W.3 and part of the recorded testimony on this aspect of the case runs thus: