IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 11TH DAY OF JUNE 1976
OYESANMI J. AKINLEMIBOLA ................................................ APPELLANT
COMMISSIONER OF POLICE ................................................. RESPONDENT
BEFORE: Fatayi-williams and Idigbe, JJ.S.C. and Obaseki, Ag. J.S.C.
The defendant appealed from the dismissal of his appeal against his conviction of corruptly receiving money contra s.98(1)(a)(ii) of the Criminal Code of Lagos State.
The charge stated that the defendant corruptly received money on account of a favour to be afterwards shown to the giver (a police officer) by the defendant in the discharge of his official duties, viz so that he could effect the payment of the giver's motor vehicle advance. The evidence showed that the cheque for the advance had been signed before the date of the alleged offence and there was no favour left for the defendant to show; also that it was another officer's duty, not the defendant's, to prepare the relevant voucher and the cheque.
(1) In view of that difference between the facts proved and the particulars stated in the charge, the conviction could not, on that ground alone, be allowed to stand.
(2) Even on the merits, the conviction is unsafe because:-
(a) the principle witnesses for the prosecution are, in the circumstances, accomplices and the trial court should have warned itself of the danger of convicting on their evidence without corroboration; and
(b) consequent on that omission, the court did not properly evaluate the evidence adduced by the prosecution and on which the conviction was based.
Public Prosecutor v. Yuvaraj (1970) A.C. 913 (PC) at 921
Davies v. DPP (1954) A.C. (H.L.) 378
The Queen v. Ezechi (1962) 1 ALL N.L.R. 113
The Queen v. Birtles (1969) 53 Cr. App. R. 469 at 473
R v. Smith (1960) 44 Cr. App. R. 55
APPEAL allowed. Conviction set aside.
Chief B. Olowofoyeku for the appellant.
A.O. Ejiwunmi, Ag. Director of Public Prosecutions, Lagos, State, for the respondent.
Fatayi-williams, J.S.C. (giving the reasons for the judgment of the Court):-On the 27th of March, 1973, at the Chief Magistrate's Court in Lagos State, the accused, now appellant, was convicted by Mrs O. Oguntoye, Chief Magistrate, on a charge containing two counts, one of corruptly receiving the sum of £20 contrary to section 98(1) (a)(ii) of the Criminal Code of Lagos State, and the other of accepting the sum of £20, beyond his proper pay and emoluments, for the performance of his official duties, contrary to section 99 of the said Code.
At the hearing of his appeal against the conviction in the High Court of Lagos State, also sitting in Lagos, the learned Chief Justice of Lagos State who heard the appeal allowed the appeal on the second count on the ground that the charge in that count is in the alternative to the offence charged in the first count. He thereupon quashed the conviction on the second count. He, however, dismissed the appeal against the conviction on the first count.
At the hearing of a further appeal to this Court against the conviction in respect of that first count on 12th February, 1976, we allowed the appeal, set aside the conviction, and ordered that the accused be acquitted and discharged. We now give our reasons for doing so.
The particulars of the offence, punishable under section 98(1)(a)(ii) of the Criminal Code, in respect of which the accused was convicted, stated that the accused, on or about the 1st day of August, 1972, at Lagos, in the Lagos Magisterial District, corruptly received the sum of £20 from one Mohammed Gambo on account of a favour to be afterwards shown to the said Mohammed Gambo by the accused in the discharge of his official duties; these duties are in respect of the payment of the sum of £1,700 which the said Mohammed Gambo had applied for from the Federal Military Government as vehicle advance to enable the said Mohammed Gambo purchase a car for his official duties.
The facts relied upon by the prosecution and on which the conviction was based may be summarised as follows. In September, 1971, one Mohammed Gambo (1st P/W), the Chief Superintendent of Police attached to the North-Central State Special Branch of the Nigeria Police Force at Kaduna applied for an advance of £1,700 for the purchase of a motor vehicle. The application was sent to the Federal Ministry of Finance through the Financial Controller in charge of Accounts, the Nigeria Police, who controls motor vehicle advances made to members of the Police Force. The car which cost £2,790 was to be purchased from the Northern States Marketing Board (hereinafter referred to as the Board). Pending the payment of the advance, Gambo paid the Board the difference between the actual cost of the car and the £1,700, and took delivery of the car. When there was delay in the payment of the £1,700 due to them the Board wrote a number of letters direct to the Advances Section of the Federal Ministry of Finance about the delay. The Ministry replied to these letters explaining the reason for the delay. Copies of all this correspondence were sent to Gambo so that he might know what was going on. From the correspondence Gambo noted that the accused signed all the letters emanating from the Federal Ministry of Finance. On 28th July, 1972, he put a telephone call to the Federal Ministry of Finance in Lagos and asked to speak to the accused. Gambo described the conversation he had with the accused as follows:-
"I told him my name and asked the progress on my application. He said 'Oh yes', he remembered, and that he had asked for a delivery note from the Marketing Board which he had not received. I told him that the Marketing Board had endorsed to me the letter with which they sent him the delivery note since 22nd June, over a month before, and that I was sure he should have got it. He said he had not received it, and I should ask the Marketing Board for another letter of delivery to be sent to him immediately. He then changed his mind and said I should not go, that he would write to the Marketing Board and ask them to send it to him. I told him I would go to the Marketing Board, that how would he be sure he would get it if they sent another one, and there was the question of time; it was already 7 months. He said he thought I was not very much interested in the advance or I would have come to Lagos or sent a trusted friend to see him on my behalf. I said 'Come on Mr Akinlemibola, tell me what you actually want me to do', he said, 'you know how hard is Lagos life', and that I did not seem to understand. I said I had no time to come to Lagos as I was very busy, but that I would send a trusted friend as he demanded. He demanded that I should send him something considerable with the friend. I said alright, that I would send a trusted friend."
After this conversation, Gambo, who said it was "normal police work after that to set a trap" for the accused, rang the Police Headquarters in Lagos and
"demanded that an operation be laid on for the arrest of Mr Akinlemibola."
(Italics are ours).
He then sent a personal letter to the accused introducing one Mammadu Jauro as the trusted friend he had promised to send. He also asked the Police Headquarters to provide the necessary funds for the operation. Incidentally, Mammadu Jauro is the brother of Gambo. He is not a policeman. The letter, erroneously dated 31st June, 1972 (Ex. D), which Gambo sent to the accused reads:-
"My dear Mr Akinlemibola,
Reference to our telephone conversation Akinlembola/Gambo of 28th July, 1972, I have found that all the documents you required were sent down to you together with my application. I should be grateful if you could help me end this seven months affair, especially now that the voucher has been made, checked and passed for issue of cheque.
The bearer is my brother whom I have asked to personally come and see you about it. He has a little parcel for you in appreciation of your kind assistance in this regard.
I hope you and your family are all well.
Looking forward to meeting you personally.
(Sgd.) M. Gambo."
After sending the letter (Ex. D) by the police "diplomatic bag" to Lagos, Gambo telephoned Jauro and informed him that he would be sending a letter to the Police Headquarters in Lagos and that he would be called upon to deliver a parcel with that letter. He also asked Jauro to contact one Jida who was, at the material time, the head of the Special Investigation Branch, Force C.I.D., Lagos.
Pursuant to the telephone conversation which he had with Gambo, Jauro (P.W.2) went to see Jida who told him to go to the Police Force Headquarters and see one Okon (P.W.3) which he did. Okon gave Jauro the letter (Ex. D) and £20 (three £5 notes and five £1 notes) in an envelope which he said should be given to Jida. Jauro later met Jida and gave him the two envelopes, one containing the letter (Ex. D) and the other, money. After returning the two envelopes to Jauro, Jida asked five persons to accompany Jauro as witnesses. After this, Jauro went to see the accused in his office at the Federal Ministry of Finance. After he had introduced himself he handed the accused first the letter (Ex. D) and then the parcel containing the money. Jauro described what transpired between them at this point as follows:-
"He said, 'where is the parcel?' I gave him the money. He opened the envelope, counted the money and said, 'how, it is too small'. I told him that that was all he had given me for him. I said I was returning to Kaduna on Friday, and that I did not know whether Gambo would be in Lagos before then."
After that, Jauro came out and informed the five "witnesses" that he had handed over the money to the accused. The "witnesses" then rushed into the office of the accused. When cross-examined about the money, Jauro replied:-
"I did not just put the money on the table and walk out. I handed it over to the accused, he did not say he did not want my money and that I should take it away, he only said that the money was too small. I did not run out of his office ... It is not true that after I left accused's office, the accused came out and was calling me back. He did not meet the Police in the passage, they met him in his office."
Felix Okon (P.W.3) confirmed the telephone call from Gambo on 28th July, 1972, about the letter (Ex. D). He also said the letter, when it arrived on 1st August, 1972, contained a note with two blue envelopes addressed to the accused. He handed the letter and the two blue envelopes to Jauro on that same day, that is, on 1st August, 1972.
Adolphus Opute (P.W.6) an Inspector of Police attached to the Central C.I.D. Lagos and who led the "five witnesses" to the office of the accused, described what happened on the day the money was given to the accused by Jauro as follows:-
"At about 2.45 p.m., one of the detectives came to the 2nd floor to inform me that the money had been passed to the accused. I went straight to the office of the accused on the 3rd floor in the company of two detectives and Jauro Mohammed. On reaching the 3rd floor Jauro pointed to the accused, who was then standing at the entrance to his office. I introduced myself to the accused as a Detective Inspector from Central C.I.D. and asked him to produce the letter and money he received from Jauro. Accused immediately pointed to his table and said, 'that is the letter and the money, I was calling on Jauro to come and take his money but he left in haste'. The two letters had already been opened. I sent for Mr Fetipigi, who came. A member of the team checked the serial numbers of the money and they corresponded with the ones marked. The accused was taken to the office of P.W.4 who was told what had happened. He collected a file dealing with Motor Vehicle advance owned by Mr Gambo and a cheque for £1,700."
(Italics are ours).
When the witness was asked by the court from where he collected the cheque for £1,700, he replied:-"I collected the cheque from Mr Peter's office."
Thereafter, the accused was arrested and taken to the Central C.I.D. office where he was examined under ultra violet light in the photographic laboratory. The evidence of P.W.6 as to what the accused said about the money when he saw the detectives was confirmed by P.C. Moses Onumah (P.W.8) who was a member of the team of detectives.
Job Ohonme (P.W.5), the police sergeant who carried out the examination of the accused in the photographic laboratory on 1st August, 1972, said he found anthracene powder on both palms and on the tips of all the fingers of the right hand of the accused, the right and left lower pockets of his jumper, and the right side of his face. He also observed that the letters "C.I.D." had been written across the letter (Ex. D) (which Gambo had written to the accused) with anthracene powder. The witness said he also examined Jauro and found "anthracene powder on both his palms" and on "the side of the four right-hand fingers". Under cross-examination P.W.5 explained further as follows:-
"I did examine the two blue envelopes. One contained the letter and one the money. I found anthracene powder on the two envelopes."
(Italics are ours).
Joseph Olatunji Peters (P.W.4) the Chief Accountant in charge of the Motor Advances Division of the Federal Ministry of Finance where the accused was the Principal Accountant also testified for the prosecution. His testimony may be summarised as follows. At about 2.55 p.m. on 1st August, 1972, three men came into his room with the accused. His room was between 50 and 60 yards from that of the accused. The three men asked him to look at two envelopes which were addressed to the accused. He looked. The first envelope contained a letter which he read. After he had finished reading the letter, the accused said someone came to him and gave him the first envelope, and that after he had read the letter, the man gave him another letter containing money, and went out. The accused said he shouted at the man but the man did not wait, that the next thing that happened was that two men came into his room and arrested him for receiving money. P.W.4 said he then called for the file of Gambo (Ex. H) and discovered what he then went on to describe as follows:-
"I observed that the application of Mr Gambo had been queried by the accused on 15th May, before I got there, for two things. Firstly, the application had not been executed with 1s.6d stamp as required, and also, he had not called for the receipt. If an applicant deposits an amount, the receipt must be shown, and this was not there. The queried application was returned from the North on the 6th of June, and was passed to me on the 8th, and I directed that action be taken now that the application was in order."
P.W.4 further testified that he did not see anything more about the file until the 29th of July, 1972, when a cheque (Ex. H4) for £1,700 was passed to him for counter-signature. He signed the cheque and passed it to the Senior Executive Officer for despatch. Under cross-examination, P.W.4 admitted that it was another officer, not the accused, who prepares the voucher, that it was an Executive Officer and not the accused who signs the voucher before the cheque is issued. The witness also admitted that he was not aware that the voucher was first prepared in the name of A.G. Leventis in error. He did not, however, deny that this was so.
After his arrest, the accused, on that same day, made a written statement (Ex. J) the police. In it, he said that all he told Gambo during his conversation with him was that he had not received "the delivery note or confirmation by the Marketing Board" that the vehicle had been delivered to Gambo. He then explained further in the statement as follows:-
"Payment after this stage depends on the receipt of delivery confirmation by vendor signed by the officer which was not received in this case. The peculiar thing about the officer's application was that he was purchasing from the Marketing Board a vehicle supplied by Leventis, and it is essential that the two sides be connected before payment could be made to the Marketing Board. The fact that documentations in this case were not thorough caused the slight delay in the payment for the officer's car."
(Italics are ours).
As to what transpired between him and Jauro, the accused explained in the statement as follows:-
"This afternoon at about 2.40 p.m., one man in agbada came to my office to say that he was sent to me by Mr Gambo from Kaduna and handed me one envelope containing a letter written by the officer to find out the position of the payment for his motor car. As I was reading this letter, the man left another envelope on my table; on enquiry he said Mr Gambo also sent that, and when 'I opened it, and found that it contained money, I immediately asked the man to take it but he was leaving my office in haste. I quickly followed and hailed on him to come back, but he went away in that haste. On my way back to my office, I checked on my officer to know the progress on the officer's payment which I have already cleared. Leaving the officer's room and going to my office, I met some gentlemen who said they are police. I told them immediately that the man refused to come back when I called him to take back the envelope containing money which was very irregular to have been done by him."
The defence put forward by the accused on oath, both as to his conversation with Gambo and also as to his encounter with Jauro, was along the same lines. He denied saying all the things Gambo said he said to him during their telephone conversation on 28th June, 1972. He further explained that he had authorised the delivery of the car to Gambo, who he did not know, as far back as 15th June, 1972, even though at that time he had about 1,000 applications for motor vehicle advances to process. He said every application was dealt with in order of arrival. He denied demanding any gratification from Gambo or receiving any money from Jauro. He denied telling Jauro that the money was too small.
In a reserved judgment, the learned Chief Magistrate observed, no doubt because of the way the anthracene powder had been used on all the documents, that no conclusion adverse to the accused could be drawn from the presence of the powder on his hands. She then went on to review the evidence adduced by both the prosecution and the defence and found finally as follows:-
"Looking at the evidence as a whole I am satisfied that the prosecution witness No. 1 told the truth and that the accused did not. I find that the accused in effect asked prosecution witness No. 1 for a gratuity in order to release the cheque for his car advance. I find that the accused accepted the £20 from prosecution witness No. 2, and I believe the evidence of prosecution witness No. 2 that the accused counted it and said it was too small."
She thereupon found the accused guilty on both counts as originally charged.
As we had pointed out earlier, the appeal to the High Court against the conviction succeeded only in respect of the second count. The learned Chief Justice who heard the appeal affirmed the conviction in respect of the offence charged in the first count-that of corruptly receiving the sum of £20 from Gambo on account of a favour to be afterwards shown to Gambo.
At the hearing of the further appeal to this Court against the conviction, a number of points, both of law and on the facts, were canvassed before us by Chief Olowofoyeku, learned Counsel for the accused. Shortly put, Chief Olowofoyeku's complaints are these. The particulars of the charge was laid that it was the duty of the accused to effect payment of the £1,700 whereas the evidence showed that it was someone else who prepared the voucher and cheque and arranged for payment. Moreover, the evidence showed that money was paid for what had, in fact, been done, not for what was to be done afterwards. Since the 1st and 2nd prosecution witnesses gave the money to the accused, it was the duty of the trial court, in the particular circumstances of the case, to find that they had participated in the commission of the crime and were therefore accomplices. Their motive for offering the money was immaterial. That being the case, the Chief Magistrate should have therefore warned herself of the danger of convicting the accused on the evidence of the two witnesses without any corroboration and should have looked for corroboration. Moreover, since the P.W.1, who was obviously annoyed with the accused, had reasons of his own to decide to set a trap for the accused and give evidence against him, the court should have warned itself of the danger of convicting on such evidence. The learned Chief Magistrate was in error in not warning herself of this danger and for that reason alone, the judgment should not be allowed to stand. Learned Counsel further contended that the evidence adduced before the learned Chief Magistrate which raised grave issues of fact were not considered with the care that it deserved. He then pointed out that she gave only two reasons for preferring the evidence of the P.W.1 to that of the accused, one being that P.W.4 did not say that they were waiting for the delivery note, which P.W.4, in fact, said, the other being the omission by accused to tell P.W.1 when he telephoned him on 28th July, 1972, that the cheque would shortly be issued. Pursuant to this submission, learned Counsel referred us to specific pieces of evidence which he felt that the Chief Magistrate should have considered in depth.
In reply, the learned Acting Director of Public Prosecutions of Lagos State submitted that there was nothing wrong with the charge as laid in that the particulars did not say that it is the sole duty of the accused to pay the money to Gambo. He further contended that all the charge said was that the accused had a duty and a major role to perform in the payment of the money. He, however, conceded that the accused had performed his own duty before the money was taken while the charge related to a future act. Having made this concession, the learned Acting Director of Public Prosecutions asked the court to allow the appeal on this ground alone but we asked him to argue the other grounds particularly that relating to the submission as to whether P.W.s 1 and 2 are accomplices and, if so, as to the need for corroboration of their testimony.
The Acting Director of Public Prosecutions then submitted that P.W.1 was not an accomplice but was only a victim of the rapacity of the appellant. The fact that he was a police officer was immaterial. He conceded, however, that P.W.2, having committed an offence under section 98A(1) of the Criminal Code, was an accomplice but contended that he was so regarded by the learned Chief Magistrate. Learned Ag. Director of Public Prosecutions finally submitted that the testimony of P.W.1 and P.W.2 was corroborated by the letter (Ex. D).
As we have pointed out earlier, the particulars of the charge in respect of which the appellant was convicted state that he:-
"received the sum of £20 from Mohomodu Gambo on account of a favour to be afterwards shown to the said Mohomodu Gambo by you in that discharge of your official duties namely:-so that you could effect the payment of the sum of £1,700 which the said Mohomodu had applied for ... as vehicle advance ..."
(Italics are ours).
While the charge referred to "a favour to be afterwards shown to the said Mohomodu Gambo", the evidence showed, since the cheque had been prepared and signed as far back as 29th July, 1972, that there was no favour left on the part of the accused to be shown to him on 1st August, 1972, the date on which the bribe was alleged to have been taken. Moreover, the evidence also showed that it was another officer, and not the accused, who was responsible for preparing the voucher and the cheque for £1,700. That being the case, it seems to us that since the facts proved are different from those stated in the charge, the conviction of the appellant, on this point alone, could not stand. We would refer, in this connection, to the observation of Diplock, L.J., in Public Prosecutor v. Yuvaraj (1970) A.C. 913 (P.C.) at page 921. It reads:-
"The degree of probability of the existence or non-existence of a fact which is required in order for it to be 'proved' or 'disproved' within the meaning ascribed to those words in the Evidence Ordinance, in their Lordships' view, depends upon the nature of the proceedings and what will be the consequence in those proceedings of a finding that a fact is 'proved' or 'disproved'. If that consequence will be the determination of a civil suit in favour of one party a balance of probabilities is all that is necessary ... In criminal cases on the other hand, by an exception to the general rule founded upon considerations of public policy, if the consequence of a finding that a particular fact is proved will be the conviction of the defendant the degree of probability must be so high as to exclude any reasonable doubt that that fact exists.
Generally speaking, no onus lies upon a defendant in criminal proceedings to prove or disprove any fact: it is sufficient for his acquittal if any of the facts which, if they existed, would constitute the offence with which he is charged are 'not proved',"
In view of their importance to the administration of justice, we will now proceed to consider the other points raised by learned Counsel for the appellant.
The first point to consider is whether the first and second prosecution witnesses, in the particular circumstances of the present case, are accomplices to the crime alleged. In our view, persons who, if called as witnesses for the prosecution, are treated as accomplices are persons who were participles criminal in respect of the actual crime charge, whether as principals or accessories before or after the fact to felonies or persons committing, procuring or aiding and abetting misdemeanours. (See Davies v. D.P.P. (1954) A.C. (H.L.) 378). Moreover, the question whether a witness for the prosecution is an accomplice is a matter to be decided in the circumstances of each case upon the evidence. (See The Queen v. Ezechi (1962) 1 ALL N.L.R. 113).
Generally speaking, however, a police officer engaged in obtaining evidence of an offence, and thereby perhaps participating in it, is not a true accomplice intending to carry out an important part in the offence. He generally sets a trap for the would-be offender. But the disturbing aspect of a police trap is that the officer setting it, particularly if he is personally involved as in the case in hand, may be unnecessarily over-zealous in seeing to it that the person for whom the trap is set falls into it. It may well be that that was why Gambo, instead of asking that the trap should be set by a plain-clothes police officer from the Criminal Investigation Department, chose his own brother for the assignment. There can be no doubt that, in choosing him, Gambo wanted to make sure that he got his man. In this connection, we refer, with approval, to the observation of Parker, L.C.J. in The Queen v. Birtles (1969) 53 Cr. App R. 469 at page 473 which reads:-
"It is vitally important to ensure so far as possible that the informer does not create an offence, that is to say, incite others to commit an offence which those others would not otherwise have committed. It is one thing for the police to make use of information concerning an offence that is already laid on. In such a case, the police are clearly entitled, indeed it is their duty, to mitigate the consequences of the proposed offence, for example, to protect the proposed victim, and to that end it may be perfectly proper for them to encourage the informer to take part in the offence or indeed for a police officer himself to do so. But it is quite another thing, and something of which this Court thoroughly disapproves, to use an informer to encourage another to commit an offence or indeed an offence of a more serious character, which he would not otherwise commit, still more so if the police themselves take part in carrying it out."
(Italics are ours).
We will now go back to the question as to whether the 1st and 2nd prosecution witnesses are accomplices in the particular circumstances of this case. The learned Ag. Director of Public Prosecutions has conceded, rightly in our view, that the 2nd prosecution witness is an accomplice and that his evidence would require corroboration. We think that because the 1st P/W is personally involved and was clearly annoyed with the delay in the payment of his motor vehicle advance for which he held the accused responsible, he would also have his own purpose to serve by setting the trap for the accused.
Moreover, the act of both the 1st and 2nd prosecution witnesses, and this is also conceded by the learned Ag. Director of Public Prosecutions, constituted an offence under section 98A(1) of the Criminal Code of Lagos State. The section reads:-
"98A (1)(a) Any person who-
corruptly gives, confers or procures any property or benefit of any kind to, on or for a public official (as defined in section 98D) or to, on or for any other person, on account of any such act, omission, favour or disfavour on the part of the public official as is mentioned in section 98(1)(i) or (ii), is guilty of the felony of official corruption and is liable to imprisonment for seven years."
(Italics are ours).
It will be recalled that the accused was convicted for committing an offence under section 98(1)(a)(ii) referred to in the above section the provisions of which, incidentally, are similar to those of section 1(2) of the Public Bodies Corrupt Practices Act, 1889 of the United Kingdom. The provisions of the section in the United Kingdom Act was considered in R n. Smith (1960) 44 Cr. App. R. 55. The accused in that case drew an IOU for £500 for the mayor of Castleford. He intended to offer it as a bribe to the mayor. At an interview, which one Lockyer had with the mayor in the Town Hall on the accused's behalf, Lockyer offered the mayor the lion's share in the £500. The mayor would not hear of it. On being charged with offering a bribe to the mayor, the accused stated that although he intended Lockyer to take the IOU to the mayor and offer it as a bribe, he did not intend to take the matter further, and that all he wanted was to get the mayor to accept the bribe and then expose him. At his trial for an offence under section 1(2) of the 1989 Act, the judge directed the jury that, as a matter of law, the word "corruptly" in section 1(2) meant an intention to corrupt and that the motive of the appellant, however, praiseworthy, was irrelevant. The jury convicted the appellant. His appeal against the conviction was dismissed. In the judgment dismissing the appeal, Parker, L.C.J., who delivered the judgment of the court, held that the word "corruptly", as used in the section, means that there should be a deliberate offering of cash or something similar with the intention that it should operate on the mind of the offered to make him enter into a corrupt bargain. Lord Parker then observed further at page 62 as follows:-
"The mischief aimed at by the Act as the learned judge told the jury, was to prevent public officers or public servants being put in a position where they are subject to temptation. Accordingly, to adopt the words of Willes, J., the appellant even on his own case was here purposely doing an act which the law forbids as tending to corrupt. It seems to this Court, therefore, that on the facts of this case the direction given by the learned judge was perfectly correct."
The 1st prosecution witness in the case in hand is in exactly the same position as the appellant in the case of R n. Smith (supra). He gave the money through Jauro (P.W.2) to the accused, not as a police officer trying to arrest some person for committing an offence, but as an applicant for a motor vehicle advance who felt that the payment of the advance was unduly delayed and wanted to bribe the public officer responsible in order to expose him. For this reason, it is our view that he too had committed an offence under section 98A(1)(a) of the Code. He certainly had some purpose of his own to serve and his testimony should also have been regarded with caution by the learned Chief Magistrate.
We refer, on this point, to the following passage in Phipson on Evidence, 11th Edition, paragraph 1572 at page 680, where the learned authors, after observing that the rule requiring the corroboration of the evidence of accomplices does not apply to persons who have joined in, or even provoked, the crime such as police-spies or the police who have assented thereto, and also to certain classes of co-defendants, state further as follows:-
"But on general grounds, the judge would be justified in warning the jury against accepting without corroboration the evidence of such witnesses, and it is generally considered now that he should do so. Thus where a witness in a criminal case may be regarded as having some purpose of his own to serve, whether he be a fellow prisoner or a witness for the prosecution, it is desirable that the judge should warn the jury of the danger of convicting on that witness's evidence unless it is corroborated."
It only remains for us to point out that nowhere in her reserved judgment did the learned Chief Magistrate warn herself of this danger vis-a-vis the testimony of the 1st and 2nd prosecution witnesses.
But, however that may be, because of the crucial role which the 1st and 2nd prosecution witnesses played in the matter, we decided to have a hard look ourselves at the evidence which the learned Chief Magistrate accepted and to see whether her evaluation of the evidence was all that it should be. In the course of our consideration, we were unable to overlook some nagging questions which were neither answered by the prosecution nor resolved by the learned Chief Magistrate. The questions are these:-
(i) It is conceivable that the accused-a principal accountant-would so openly demand a bribe from a Chief Superintendent of Police in charge of a State's Special Branch?
(ii) Why did the Chief Superintendent of Police (1st P/W), when an offence had not yet been committed, ring up his headquarters in Lagos "and demanded that an operation be laid on for the arrest of" the accused, thus assuming that the offence would be committed?
(iii) Why did the 1st P/W, instead of choosing a plainclothes policeman to deliver the bribe, chose Jauro (2nd P/W) who is his own brother? and
(iv) Why was the envelope (Ex. E) containing the letter which the 1st P/W sent to the accused and the letter inside it (Ex. D) treated with anthracene powder by the police who knew, or ought to have known, that the accused would touch both the envelope (Ex. E) and the letter (Ex. D) whether he accepted the £20 (also treated) in the other envelope (Ex. F) or not?
It may well be that if the learned Chief Magistrate had warned herself of the danger, these nagging questions would have occurred to her. Because of this omission, we did not think that the evidence adduced before her were properly evaluated. We were, therefore, of the view that, even on the merits of the case, it would not be safe to allow the conviction of the accused to stand, more so because of the questions which we had earlier asked and in respect of which no satisfactory explanation was offered by the prosecution. It is also manifest that in dismissing the appeal to the High Court, the learned chief Justice did not appear to have adverted his mind to any of the points which we have highlighted above.
For all these reasons, we allowed the further appeal to this Court, set aside the conviction of and sentence passed on the accused, and ordered that he should be acquitted and discharged.