An arbitrary act is an act which a person may or may not lawfully do as he wishes. A police constable is not entitled to receive a bribe in any circumstances and does not exercise a discretion when he does so. It follows that the offence of which the appellant was convicted is not established.

Appeal allowed: Conviction quashed.

Law referred to:-

Criminal Code, Cap. 42, sections 99 and 104.

Akande, for the Appellant.

Onafalujo, for the Respondent.

De Lestang, C.J. of Lagos:-The relevant facts giving rise to this appeal are the following. On the day in question the appellant, a police constable attached to the Traffic division of the Nigeria Police and two colleagues, Sgt. O. and P.C.V. were on duty at Yaba checking public vehicles. They were all three in uniform.

Sgt. O. stopped a passenger lorry and after examining its licence told the driver to move on. He then went to stop a bus which was approaching and as he moved away for that purpose the appellant, who was nearby, approached the driver of the lorry and demanded his papers. The driver replied that his papers were in order and produced 2/- which he gave the appellant. The appellant took the money and the lorry moved on. Neither policeman asked the driver for any money nor did they threaten him in any way.

On those facts the appellant was convicted of the following offence, namely that on the "2nd day of May, 1963, at Clifford Street, Yaba, being a person employed in the public service, to wit a Police Constable in the Nigeria Police Force obtained the sum of 2/- from Asani Adebowale, the driver of lorry No. LG. 7846, in abuse of the authority of your office, an arbitrary act prejudicial to the right of the said Asani Adebowale and thereby committed an offence punishable under section 104 of the Criminal Code."

Section 104 of the Criminal Code reads as follows:-

"Any person who, being employed in the public service, does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanour, and is liable to imprisonment for two years."

The short point for decision is whether the receiving of the 2/- was an arbitrary act done in abuse of the authority of the appellant's office. While I am clearly of the opinion that the act of receiving was an act in abuse of the authority of the appellant's office since as a policeman he was not entitled to receive any reward-in the circumstances, I am, however, equally clearly of the opinion that such an act is not an "arbitrary act" within the meaning of the section. The word "arbitrary" is defined in the dictionary in the legal sense as "discretionary". An arbitrary act, therefore, is an act which a person may or may not lawfully do as he wishes. A police constable is not entitled to receive a bribe in any circumstances and does not exercise a discretion when he does so. It follows that the offence of which the appellant was convicted was not established. In my view he could have been convicted under section 99 of the Criminal Code but he was acquitted under that section.

The appeal accordingly succeeds. The conviction is quashed and the sentence set aside and the appellant acquitted.