Michael Okwuwa V. The State (1964)

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BAIRAMAIN JSC

This appeal was dismissed at the hearing on the 13th November, and the reasons for dismissing it will now be given. The appellant, a Lance-Corporal of Police at Jos, arrested one Christopher Olisa as a suspected rogue, when he came there on the 29th November, 1962, later, after seeing his superior officer, he released Olisa.

Thereafter Olisa went to see some superior officers, to whom he complained that the appellant had taken £3 from him, and wanted another £2, which Olisa was to give him next day in the market place, Next day two fairly senior officers of the Police hid in the market and watched Olisa and the appellant meet, and saw the appellant receive the £2 from Olisa, which, when pounced upon, the appellant threw away. In consequence of this events and of Olisa’s story, the appellant was prosecuted on two counts laid under Section 115 (b)(ii) of the Penal Code of the Northern Region, which relates to official corruption, one of the counts being about the £3 which Olisa said he had paid on the 29th November, and the other being about the £2 which the appellant received on the 30th November.

Bate J., who tried the case, was not impressed with Olisa as a witness or with his friend. Olisa’s version was that the £2 was a present in recognition of the appellant’s past services and for his assistance when Olisa came to Jos In future. The learned Judge was not satisfied with the evidence of what the present was meant for, but at the same time had no doubt that it was a present received by the appellant from a person concerned in a proceeding or business transacted by the appellant or connected with his official functions as a member of the Police; the appellant was, therefore, in the learned Judge’s view, guilty of an offence under Section 119 of the Penal Code, and was convicted of such offence by virtue of Section 218 of the Criminal Procedure Code, which authorises a trial court to convict of a lesser offence within the meaning of the section.

The Judgment under appeal says this:

“The offence under Section 115 can be reduced to the offence under Section 119. The ingredients of the latter are the same as those of the former except that to prove an offence under Section 119 it is not necessary to prove the purpose of the present. The accused in defending himself against the charge under section 115 was bound to raise every defence which he would have had to a charge under Section 119. He has had every opportunity to raise those defences. I do not think that it would be in any way unfair to the accused if he were convicted under Section 119.”

The grounds of appeal complain that the trial Judge erred in law when he held as above stated, and that ft was a miscarriage of justice to convict the appellant on a charge which was never reduced to writing and to which he had never pleaded. He did not wish to be present at the hearing of this appeal, but the Court had the advantage of hearing the arguments of Mallam Bello, the learned Director of Public Prosecutions of the Northern Region.

Section 218 of the Criminal Procedure Code provides as follows:

“(1)When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence though he was not charged with it.

(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he is not charged with it.”

We thought that subsection (1) was the provision which applied to the case. The Federal Supreme Court had occasion, in The Queen v. Nwogugua Agumadu, F.S.C. 104/1963 decided on the 23rd May, 1963, to interpret the similar provision in Section 179, Subsection (1) of the Criminal Procedure Act, Cap. 43 in the 1958 Laws of the Federation. We quote this passage from the judgement in that case:

“The lesser offence is a combination of some of the several particulars making up the offence charged: in other words the particulars constituting the lesser offence are carved out of the particulars of the offence charged.”

The Federal Supreme Court was of opinion that our statutory provision was very much like the English Common taw rule as stated in R. v. O’Brien (1911) 22 Cox C.C. 374, 6 Cr. App. R. 108, that-

“a defendant may be convicted of a less aggravated felony or misdemeanour on an indictment charging a felony or misdemeanour of greater aggravation, provided that the Indictment contains words apt to Include both offences.”