JOHN CHINUWE (APPELLANT)

v.

INSPECTOR-GENERAL OF POLICE (RESPONDENT)

(1964) All N.L.R. 468

Division: High Court, Lagos

Date of Judgment: 23rd March, 1964

Case Number: LD/7CA/64

Before: De Lestang, C.J. of Lagos

Appeal from the Magistrates' Court:

The appellant, a traffic policeman, though in uniform, was not actually on duty when he asked the driver of an omnibus for "chop money" and the driver without demur gave him 2/-; the appellant took the money. placed it on a seat in the bus saying it was not enough; the driver became annoyed but nevertheless told his mate to add 1/-, which he did and the appellant picked up the 3/- and moved away but was arrested by two police detectives who had been watching the incident.

The appellant appeared before the Magistrates' Court on a charge containing six counts; at the close of the case for the prosecution, he was discharged on five counts but called upon to defend himself on the count of obtaining 3/- from the driver of the omnibus in abuse of the authority of his office contra section 104 of the Criminal Code; whereupon, the appellant gave evidence on his own behalf at the end of which the prosecution sought and was granted leave to add a further count of stealing 3/- from the driver; he was convicted on both counts.

The appellant appealed against the conviction on the grounds that the magistrate erred in allowing the additional count of stealing at such a late stage of the trial and that there was no stealing since the driver parted with the money voluntarily; that the conviction on the count of abuse of office was wrong because the appellant was not on duty at the time. The prosecution conceded that there was no theft of the 2/- but contended that there was constructive taking of the 1/- without the consent of the driver.

HELD:

(1)     It is not possible to differentiate between the incident of the 2/- and that of the 1/-. Both having been given to the appellant voluntarily, the learned Magistrate clearly misdirected himself when he found that it was obtained by force or threat of restraint. The conviction for theft cannot therefore stand and it is unnecessary to consider whether the court was right to allow that count to be added, except to remark that the application was made very late and that a court should rarely, if ever, grant an application in those circumstances.

(2)     It is clear from the evidence that the appellant obtained the money solely because he was a traffic policeman and that it was given to him to secure protection, therefore, he committed an abuse of office and so was rightly convicted of that offence.

Law referred to:- Criminal.

Code, Cap. 42 section 104.

Sikuade, for the Appellant.

Arthur Worrey, for the Respondent.

De Lestang, C.J. of Lagos:-The appellant was tried in the Chief Magistrate's Court, Lagos, on a charge containing originally six counts. At the end of the case for the prosecution the court discharged the appellant on all the counts except one, which was for obtaining 3/- from the driver of an omnibus in abuse of the authority of his office, contrary to section 104 of the Criminal Code. Whereupon the appellant gave evidence on his own behalf at the end of which the prosecution sought and, despite the objections of the appellant, obtained leave to add a new count charging the appellant with stealing 3/- (the same 3/-) from the driver of the omnibus. The appellant was eventually convicted on both counts.

The facts which the evidence established are that the appellant was a traffic policeman. On the day in question he had been on point duty directing traffic at Ajegunle at the junction of Apapa and Ijora roads from 7:00 am to 10:00 am. He then went off duty but was due to resume the same duty at the same place from 1:00 pm to 4:00 pm. Some time before he was due to resume duty he boarded a bus at Agbomalu and obtained a free lift therein to Ajegunle. On reaching Ajegunle the bus stopped and all the passengers alighted from it except the driver, his mate and the appellant. The appellant, who was then in uniform, asked the driver "for money for chop". The driver without demur gave him 2/-. The appellant took the money, placed it on a seat in the bus saying it was not enough. The driver became annoyed because he had just started work that day but nevertheless he told his mate to add 1/-, which he did and the appellant picked up the 3/- and moved away. He had not gone far, however, when he was caught and arrested by two other plain-clothes constables who had been watching the proceedings.