Rex V. Walter Oko Minimah (1940)
LawGlobal Hub Judgment Report – West African Court of Appeal
Extortion by a public officer con. sec. 99 C.C.—Failure to specify duty to be performed—Appeal allowed.
Held : (1) It is essential in a prosecution under this section that the duty which the accused person has to perform should be proved by evidence and that it was for the performance of that duty that the reward was taken.
(2) Each transaction alleged should have formed the subject of a separate charge and not have been lumped together in one.
There is no need to set out the facts.
J. S. R. Cole for Crown.
The following joint judgment was delivered :–KINGDOM, C. J., CAREY AND BROOKE JJ.
In this case the Appellant was charged in the High Court of the Calabar—Aba Division with Extortion by a public officer, contra. sec. 99 of the Criminal Code. That section reads as follows :-
” 99. Any person who, being employed in the public service, takes or accepts from any person, for the performance of his duty as such officer, any reward beyond his proper pay and emoluments, or any promise of such reward, is guilty of a felony, and is liable to imprisonment for three years.”
The particulars given were as follows :—
” Walter Oko Minimah being the clerk of the Native Court at AgaforAndoni during the period from February to May 1939 in Agafor-Andoni in the Province of Calabar did take or accept the sum of £4 from Chief Benjamita Nairem and others for the performance of his duties as Clerk of the Native Court, the said sum being beyond his proper pay and !or emoluments.”
The particular duty which he was to perform was not specified nor does it clearly appear from the evidence. It is essential in L.
prosecution under this section that the duty which the accuseperson has to perform should be proved by evidence and that :7 was for the performance of that duty that the reward was taken.
In this case no evidence was tendered on behalf of th-_- prosecution to prove any duty on the part of the Appellant, ar.–. at the close of the prosecution Counsel submitted on behalf of t. defence that there was no proof that the alleged offence was in course of duty, that there was no evidence of what the duties the accused were and that there was no case to answer, We are of opinion tIbt this submission should have been upheld.
But the learned Trial Judge overruled it, placing on record :-
” It is within the knowledge of the Court that the clerk can release prisoners on bail, on preparing bail bonds and causing them to be signed. This is part of his duty.”
We very much doubt whether in fact it is the duty of the Clerk to prepare bail bonds unless and until directed so to do by the person with power to grant bail. It may be that it is ; but whether it is or not, it is fundamental that a matter of this nature, which is one of the elements which go to make up the offence, must be proved by evidence. It cannot he taken as proved by merely placing on record that it is within the knowledge of the Court. The point was in fact put in issue by the defence throughout the case. The prosecution failed to prove the case, and the conviction cannot be allowed to stand.
There are two other points which should be mentioned. The first is in regard to the Di mentioned in the particulars of the offence alleged. This according to the evidence was made up of two separate sums of £2 lOs. and £1. 10s. respectively, which were paid at different times and for different purposes. If, therefore, there was any offence, there were two and not one only, and each should have formed the subject of a separate charge and not been lumped together in one.
The other point is as to whether the principal witnesses for the prosecution were accomplices or not. The learned Trial Judge held that they were not ; and we agree with him on this point.
The appeal is allowed, the conviction and sentence are quashed and it is directed that a judgment and verdict of acquittal be entered.
The appellant is discharged.