HENRY UMOERA (APPELLANT)

v.

COMMISSIONER OF POLICE (RESPONDENT)

(1977) All N.L.R. 259

Division: Supreme Court of Nigeria

Date of Judgment: 7th July, 1977

Case Number: SC.326/76

Before: (Fatayi-Williams, Bello, Obaseki, JJ.S.C)

The appellant was charged in the Magistrate Court of the Mid-Western State (Now Bendel State) sitting at Ekpoma with the offence of removing evidence contrary to section 107 of the criminal code of Western Nigeria applicable in Bendel State.

The facts on which the prosecution relied on are amply set out in the testimony of the 1st P.W. He testified that at about 12.30am in the night of 3rd of April 1975, he was sleeping in his house when police constable Anthony Okolie who was on duty at the charge room at the Ekpoma police station came to his house. He woke him up and reported that some men said they wanted to remove four drums of petrol kept as exhibit in the station exhibit room. 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 the P.W.1 arrived at the police station, he saw some men in army uniform. They told him 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. The P.W.1 protested against the removal. The men however used force and removed the four drums of petrol.

The 1st accused person in his written statement (Exhibit A) to the police denied being the owner of the six and half drums of petrol removed by the men in army uniform. He also denied leading soldiers to force the surrender of the drums. The second accused stated in her own written statement (Exhibit B) that she did not know anything about the removal of the petrol drums from the police custody. Their defence on oath was along this line.

In his review of the evidence before him, the learned trial Magistrate after making certain finding of facts found the 1st accused person guilty and sentenced him accordingly. He however discharged and acquitted the second accused. It is against this judgment that the 1st accused person (herein the appellant) has now appealed to the supreme court.

HELD

(1)     In this case in hand it is clear from the evidence that no judicial proceeding had been taken against the appellant at the time when the drums of the petrol were removed although one might have been contemplated.

(2)     The offence provided for in section 107 of the criminal code is that of wilfully removing the drums of petrol which are or may be required in evidence in a judicial proceedings. Nothing is said here about judicial proceeding which is being contemplated. The evidence in the case in hand and which the trial magistrate accepted is that the complaint is still being investigated. In other words, the charge which he was called upon to defend is one concerning a judicial proceeding in existence, not one that is being contemplated. He could therefore not be convicted of an offence which was still being investigated by the police.

(3)     If the legislature had intended that section 97 and 107 of the criminal code should be applied to a judicial proceeding which is being contemplated as well as those pending in court, it should have said so in clear and unambigous terms. Not having done so, the learned trial magistrate erred in assuming that it was so intended.

Appeal allowed

Mr C. O. Ihensekhien for the Appellant

Mr G. O. U. Okugbowa, Principal State Counsel (Bendel State) for the Respondents

Cases referred to:

(1)     Asuquo v The State (1967) All N. L. R. 123

(2)     Ebegbunam v Commissioner of Police (1955) E. R. N. R. 6

(3)     Okuyemi v Police (1946) 12 W. A. C. A 3

(4)     Samje v Balmer (1965) 2 All E. R. 248

(5)     Thomas v Stephenson (1853) 22 L. J. Q. B. 140

(6)     Whitely v Chappell (1869) Law Journal, Magistrates Cases (1831-1896) at P. 51

Statutes referred to:

(1)     Criminal Code of Western Nigeria applicable in the Bendel State.

(2)     Criminal Code of Nigeria Cap 42

(3)     Weights and Measures Act 1835

(4)     Larcency Act 1916

Fatayi-Williams, J.S.C.:-In the Magistrate's Court of the Mid-Western 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 Italics is ours).

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

"At about 12.30am 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."

(The Italics is ours)

The first accused person, in his written statement (Exhibit A) to the police denied being the owner of the six and a half drums of petrol removed by the men in army uniform. He also denied leading any soldiers to force the surrender of the drums. The second accused stated in her own written statement (Exhibit B) that she did not know anything about the removal of the petrol drums from the police custody. Their defence on oath was along these lines. Under the cross-examination the first accused stated that he did "not know that the drums of petrol were needed in a case which the police were then investigating."

In his review of the evidence adduced before him, the learned trial magistrate, after making certain findings of fact, observed:-

"The circumstantial evidence in this case is so cogent and compelling and pointed conclusively to only one direction, that is that it was the first accused who counselled or procured the soldiers to remove the drums of petrol from the Ekpoma police station. This is the only rational hypothesis on which the facts disclosed in the case can be reasonably explained."

He, thereupon, convicted the first accused after finding as follows:-

I believe and accept the evidence of the P.W.1 whom I regard as a very truthful and reliable witness.

I am satisfied and I find as a fact that from all the circumstances the accused persons must have known that the drums of petrol might be required in a judicial proceedings. It is not the law that the thing in question must be required necessarily in a criminal proceeding. In Ebegbunam v. Commissioner of Police (1955) E.R.N.L.R. 6 it was held that destroying articles seized in the execution of a search warrant is an offence under this section even if the article is not in fact incriminating."

He, however, acquitted and discharged the second accused after stating that he had grave doubts about her complicity in the removal of the drums of petrol.

Against this conviction, the first accused appealed to the High Court of the Mid-Western State. His main complaints are that the trial court erred in law in convicting him when the essential elements of the offence were not proved and also that the court failed to appraise the facts and the defence put forward by him properly. The learned judge dismissed the appeal. The reasons for doing so are as follow:-

"I find it difficult to reconcile the reasoning of the West African Court of Appeal in 1946 in Okuyemi's case with the view of the Supreme Court Asuquo's case

I should observe that Ainley, Ag.J. when faced with the case of a policeman who executed a search warrant, recovered a syringe and later destroyed it and was charged under S.123, upheld the conviction. See Ebegbunam v. I.G. of Police (1967) 1 E.R.L.R.6.

On the other hand, Asuquo was charged with:-

'Attempting to induce witness to withhold true testimony in a case, contrary to section 121(b) of the Criminal Code.'

The Supreme Court held that for a charge under S.121(b) (S.105(2) of our code) to be sustained a judicial proceeding must be in existence.

The court went further to indicate (pp.14-15) that anything done anterior to the proceeding should come under S.126 (S.111 of our code). This deals with perverting or defeating the course of justice.

Although this case has interpreted section 121(b) (or S.105(2) of our code) and has not directly dealt with S.123 (or S.107 of ours) it has only expressly excluded S.126 (or S.111) from the acts which can constitute an offence under Chapter XIV of the Criminal Code Act and the Criminal Code Law. The obvious inference is that where any section within that chapter makes reference to 'judicial proceeding', there should be actual proceeding in progress to establish an offence under the whole part except S.126 (or Section III) because the definition says:-

'S.97. In this Chapter the term 'judicial proceeding' includes any proceeding heard or taken in or before any court, tribunal, commission of enquiry, or person, in which evidence may be taken on oath, or in or before a customary court whether such court takes evidence on oath or not.'

Although Asuquo's case was decided on S.121(b) not S.123 the reasoning bears sharp conflict with the approach adopted in Okuyemi's case. I find myself in obvious dilemma in choosing between two apparently conflicting decisions of the highest court of the land. I do not agree with the suggestion of Mr Ihensekhien, learned Counsel for the appellant, that the Supreme Court is a higher court than the West African Court of Appeal. What happened is that appeals from this country to the Privy Council in England were abolished and the Supreme Court was established to replace the WACA as the final court of appeal in Nigeria. A decision of the WACA which was not offset by the Privy Council remained the highest authority in the land.

It is a pity that Okuyemi's case was not referred to in Asuquo, perhaps because it was not based on the same section. If it had, the position would have been clarified. I have decided to follow Okuyemi's case for two reasons (1) it was a final authority and (2) it was decided directly on a charge brought under S.123 (or 107) of our Code."

We shall deal with the ratio decidendi of the two cases later.

The appellant has further appealed to this Court on the following grounds:-

"(1)    The learned judge on appeal erred in law when he upheld the judgment of the Magistrate's Court Ekpoma wherein the appellant was convicted in that he wilfully removed four drums of petrol with intent to prevent them from being used in evidence in a judicial proceeding in existence at the time of the alleged removal.

(2)     The learned judge on appeal erred in law when he upheld the conviction of the appellant for things done anterior to the institution of judicial proceedings contrary to the interpretation of the Supreme Court of 'judicial proceeding' in Joseph Etim J. Asuquo versus The State (1967) ALL NIGERIA LAW REPORTS 123 which interpretation applies to all the sections in Chapter XIV of the Criminal Code.

(3)     The learned judge on appeal erred in law when he upheld the decision of the learned Senior magistrate when the said decision of the learned Senior Magistrate runs counter to the decision of the Supreme Court in Joseph Etim J. Asuquo versus The State (1967) ALL NIGERIA LAW REPORTS 123."

Concisely put, the main and, indeed, the only complaint of learned Counsel for the appellant was that since there was no judicial proceeding pending at the time the drums of petrol were removed, the charge under section 107 of the Criminal Code of Western Nigeria was misconceived and that the learned trial senior magistrate erred in law in convicting the appellant for that offence having regard to the latest decision on the interpretation of the section, that is, the decision in Asuquo v. The State (1967) 1 All N.L.R. 123).

We venture to point out at this stage that the decision in Asuquo's case was based on the interpretation of section 121(b) of the Criminal Code of Eastern Nigeria (which is the same as section 121(2) of the Criminal Code of Nigeria) and section 105(2) of the Criminal Code of Western Nigeria applicable in the Bendel State. Section 121(b) reads:-

"Any person who 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 Italics is ours)

This Court held in Asuquo's case that an offence under this section can only be committed when judicial proceedings are in existence, not while a complaint is still being investigated by the police.

As against the above decision, there are two earlier decisions, the first by the High Court of Eastern Nigeria and the other by the West African Court of Appeal. In the earlier case: Ebegbunam v. Police (1955) 1 E.R.N.L.R., p.6-where the accused was charged for an offence under section 107 (which is the same as section 123), Ainley, C.J. held that destroying an article seized in the execution of a search warrant is an offence under section 123 (or 107) even if the article is not in fact incriminating.

In Okuyemi v. Police (1946) 12 W.A.C.A., p.3, in which the accused was charged for an offence under the same section 123 (or 107) in that he wilfully destroyed a railway consignment note knowing that it might be required as evidence in court, the West African Court of Appeal, in dismissing the appeal found as follows:-

"It is thus clearly proved that the appellant knew that a police investigation about the tyre was an existent actuality. Police investigations are not necessarily followed by judicial proceedings but they may be. The appellant being a Railway Clerk must be a man of some education. It is a very reasonable inference, to be drawn from the circumstances, that the appellant must have known that the document might be (not necessarily was or would be) required in a judicial proceeding about the tyre (not necessarily a criminal proceeding). The intent is to be inferred from the destruction of the document."

In the case in hand, it is clear from the evidence that no judicial proceeding had been taken against the appellant at the time when the drums of petrol were removed although one might have been contemplated. Admittedly, there is evidence that he was later charged to court but that is beside the point in the issue. Both the learned trial magistrate and the learned judge who heard the appeal agreed that that was the position. The main question for us to answer, therefore, is whether, notwithstanding the fact that no judicial proceeding was pending, the appellant could be charged for an offence under section 107 of the Code. There is no doubt that he could have been charged for an offence of preventing the course of justice under section 111 of the Code which is the same as section 126 of the Criminal Code of Nigeria. Indeed, the penalty for an offence under this section is imprisonment for 7 years while that for the offence under which he was charged and convicted is three years.

For the purpose of this appeal, the relevant sections of the Criminal Code of Western Nigeria are sections 97 (or 113 of the Criminal Code of Nigeria) and 107 (or 123 of the Criminal Code of Nigeria). Both sections are in Chapter 14 of the Code. The two sections read:-

"(97) 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 court takes evidence on oath or not."

"(107)Any person who, knowing that any book, document, or other thing of any kind, is or may be required in evidence in a judicial proceeding, wilfully removes, conceals or destroys it or renders it illegible or undecipherable or incapable of identification, with intent thereby to prevent it from being used in evidence is guilty of a felony, and is liable to imprisonment for three years."

Section 97 merely extends the term "judicial proceeding" (which ordinarily applies to proceedings before a court) for the purpose of an offence under section 107, to proceedings "had or taken in any 'tribunal, commission of inquiry', or before any 'person' or before 'a customary court' whether such court takes evidence on oath or not." Moreover, the phrase "had or taken in or before any court" contemplates a judicial proceeding which had been heard or being heard or which is pending before such court. No mention was made of any judicial proceeding which is being contemplated.

Moreover, looking at the provisions of section 107, it seems to us that the offence provided for in the section, in relation to the case in hand, is that of wilfully removing the drums of petrol which are or may be required in evidence "in a judicial proceeding." Again, nothing is said here about a judicial proceeding which is being contemplated. The evidence in the case in hand and which the trial magistrate accepted is that the complaint is still being investigated. More important, however, is the fact that the charge as laid is that the appellant removed the drums-

"knowing that the four drums of petrol will be required in evidence in a judicial proceeding."

In other words, the charge which he was called upon to defend is one concerning a judicial proceeding in existence not one that is being contemplated. To this extent, both the trial magistrate and the learned judge of appeal were in error in finding as they did that he could be convicted of an offence which was still being investigated by the police. As the judge has rightly pointed out in Okuyemi v. Police (supra), police investigations are not necessarily followed by judicial proceedings but they may be. Moreover, it is only after investigations have been completed that the police decide whether to prosecute the suspect or not.

We will now proceed to consider the interpretation of the phrase "judicial proceeding" as used in section 97 and section 107.

The strict construction of penal statutes seems to manifest itself in four ways; firstly, in the requirement of express language for the creation of an offence; secondly, in interpreting strictly words setting out the elements of an offence; thirdly, in requiring the fulfilment to the letter of statutory conditions precedent to the infliction of punishment, and finally, in insisting on the strict observance of technical provisions such as section 107 of the Criminal Code under which the appellant was charged and convicted. Therefore, if there is any ambiguity in the words which set out the elements of the act or omission declared to be an offence, so that it is doubtful whether the act or omission in question in the case falls within the statutory words, the ambiguity will be resolved in favour of the person charged. This, in practice, is by far the most important instance of the strict construction of penal statutes.

For example, a provision in a statute penalising the personation of "any person entitled to vote" was not violated by personating a deceased voter. (See Whitely v. Chappell (1869) reported in Law Journal, Magistrates' Cases (1831-1896) at p.51).

Again, in Smaje v. Balmer (1965) 2 All E.R. 248, where the question before the court was whether a stone came within the words "any dangerous or offensive weapon or instrument" in section 28(1) of the Larceny Act, 1916, the learned judge said that the provisions must be construed strictly and consequently held that a stone did not fall within those words which dealt with weapons or instruments.

Finally, the law is that omissions will not readily be supplied in a penal statute. So, the Weights and Measures Act 1835, section 28 (an English Statute) which empowered inspectors to examine-

"weights, measures and scales" in shops and, if upon examination it appeared that-

"the said weights or measures" were light or unjust, to seize them, was held not to authorise a seizure of scales because the word "scales" was omitted from the items which can be seized. (See Thomas v. Stephenson (1853)22 L.J.Q.B. 140).

It therefore follows from the above decisions, with which we agree, that if the legislature had intended that sections 97 and 107 should be applied to a judicial proceeding which is being contemplated as well as those pending in court, it should have said so in clear and unambiguous terms. Not having done so, the learned trial magistrate erred in assuming that it was so intended.

We are fortified in our interpretation of sections 97 and 107 by the interpretation put on section 121(2) or (105(2)) by this Court in Asuquo v. The State (supra). For ease of reference the section reads-

"(105)Any person who-

XXXX          XXXX          XXXX          XXXX

(2)     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;

XXXX            XXXX          XXXX          XXXX

is guilty of a felony, and is liable to imprisonment for seven years."

This Court held at p.125 of the judgment in the Asuquo case that the words "witness", "judicial proceeding" and "testimony" make it plain that there is a judicial proceeding in existence and that it becomes plainer still when a charge is drafted following, as one should, the wording of the section. The Court at page 126, then observed as follows:-

"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 not that the words 'any proceeding had or taken in or before any court' fortify our view of section 121(b)."

For the above reasons, we think the learned senior magistrate was in error in following the decision in Ebegbunam v. Police (supra). The learned judge who heard the appeal was also in error in preferring the decision in Okuyemi v. Police, where the definition of judicial proceeding in section 97 was not considered, to the fully considered decision in Asuquo v. The State with which we entirely agree. It only remains for us to say, with respect, that we do not support the ratio decidendi in the two earlier cases and will not follow them.