Official corruption contra section 98 (1) of Criminal Code-Public servant--Discharge of duties of office-Irregularity in Court calling upon witness for prosecutionon to tender in evidence after Court. close of case for defence a document which was not previous in evidence. The facts are set out, A document was put to first witness for prosecution who identified it and was marked for identification, but it was never actually tendered or admitted in evidence until after the addresses of both Counsel.

     Held: That as the document had not been put in there was at the close of the case for the prosecution no case to answer and that the ,additional evidence altered the whole position; this amounted to an injustice. The appeal was allowed and the conviction quashed.

The facts of the case are sufficiently set out in the judgment.

A. A laklja (with him L. N. Mbanefo) for Appellant.

C. N S. Pollard for Crown.

The following joint judgment was delivered :--

KINGDON, C.J., NIGERIA, PETRIDES, C.J.. GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.

In this case the appellant was charged before the High Court of the Enugu-Onitsha Division with official corruption contrary to section 98 (1) of the Criminal Code.

The particulars given of the alleged offence were :-

            "Augustine Egwuatu on the 17th day of November, 1939. in the Province of Onitsha. at Enugu. being employed in the public service as an Interpreter in the office of the Local Authority. Enugu. did corruptly receive for himself one bottle of gin from one Belo Amadi as a reward for showing favour to the said Belo Amadi in taking him before the said Local Authority at Enugu."

            He was convicted and sentencec1 to a fine of £25 or 4 months imprisonment With hard labour in default.

            The facts relied upon by the prosecution to support the charge are summed up by the learned Trial Judge as follows :-    .

            " Case for Crown is that accused. a public servant. Interpreter in Local Authority's office. Enugu. was approached by witness Belo. a member of Police Force. who wished to see Local Authority_ Accused demanded a bottle of gin. Belo reported incident to Superinten1ient of Police Morgan who arranged to lay a trap for accused. and from this point. Belo's role was that of a police spy. He was therefore not an accomplice. and although Crown Counsel  referred to this question. it was not raised by Counsel for the defence,

•• Bottle of gin obtained and marked to facilitate identification .

•• Belo returned to Local Authority's office and handed it to accused who gave him" chit" Exhibit" C ",

•• Police who had followed, then stepped in and arrested accused who explained that he had just bought the gin."

At the close of the case for the prosecution, Counsel for the defence offered no evidence, but relied upon three submissions, VIZ. :---

"(1) No proof that accused was a public servant;

(2) it was not a duty of his office that he offered to perform in return for the gift; and

(~) the offence was not complete because accused did not in fact take Belo to see the Local Authority."

As to (1) the Court held, rightly, in our view, that it was proved that accused was a public servant.

As to (:1) the Court held, also rightly, in our view, that the point v. as immaterial.

But as to (2) the Court realised that there was a difficulty.

The Judge correctly pointed out-

" An essential ingredient which Crown must prove to succeed in this case is that accused was to do something in the discharge of the duties of his office."

In this connection it may here be mentioned that the particulars of the offence are inadequately set out in that they fall to make any statement to the effect that accused \',:as charged with any duty by virtue of his employment, or to disclose what that duty was.

In the course of the case it became disclosed that the duty alleged was" to take Belo before the Local Authority,"

The Judge carefully considered the question" was it part of accused's duty to take Belo before the Local Authority? " and set out his conclusion thus :-

•• It was a duty which might naturally fall to an Interpreter . •• Was it in fact his duty?

.. The •• chit" Exhibit •• C" is evidently a matter of routine in the Local Authority's office-its' appearance makes this plain .

•• Without the" chit," I should have said there was no evidence that accused was performing an act of duty .

•• But from the fact that upon Belo's approaching accused, qua interpreter, the latter presented Belo with this official" chit" signed by the Local Authority, I conclude that accused was acting in the discharge of his official duty."

l1pon this conclusion the conviction followed.

Against that conviction the appellant has appealed. to this Court upon six grounds. It is only necessary however to consider one of them, name1y No.2 which is :-.

"2. That there was irregularity in the Court calling upon the witness for the prosecution to tender in evidence after the close of the case for the defence a document which was never in evidence,"

No.4 may also be mentioned-it reads :-

"4. That there was no evidence to prove that it was part of the duties of the accused to take persons before the Local Authority."

There is no substance in any of the others.

Ground 2 deals with the admission of Exhibit "c" in evidence. This document was put to the first witness for the prosecution who identified it, and it was marked for identification, but it was never actually tendered or admitted in evidence either then or at all before the close of the case for the prosecution. In his final address to the Court, Counsel for the Crown referred to it, wrongly, as Exhibit" C." It was not till after Counsel both for the Crown and the accused had addressed the Court that the Court directed the .recalling of the 3rd witness for the prosecution who then testified" I received this" chit" (C) from witness Belo." Whereupon the document was admitted as Exhibit "C." The Judge proceeded forthwith to sum up the case.

It is this admission of Exhibit "c" as an exhibit which IS called in question in ground 2 of the Ground" of Appeal.

In support of his argument on this ground Counsel for the appellant cited a number of cases, but we are of opinion that these are all beside the point, since they all refer to the calling of a new witness by the Judge, whereas in this case a witness who had already given evidence was merely recalled. It is well-established law that "the Judge has a discretionary power of recalling witnesses at any stage of the trial and of putting such questions to them as the exigencies of justice require, and the Court of Appeal will not interfere with the exercise of that discretion unless it appear that an injustice has thereby resulted."

Rex v. Sullivan (1923 1 K.B.47).

The question then, which we have to consider in this case is " Did injustice result from the recalling of the 3rd witness and the putting in evidence at that stage of Exhibit' C ' ? "

As has already been mentioned one of the essential ingredients of the offence which the prosecution had to prove was that the appellant was to do something in the discharge of the duties of his office. It is clear from the findings of the Judge that when the case for the prosecution was closed the onus had not been discharged. This is shown by the words" without the" chit I should "have said there was no evidence that accused was performing an act of duty." At the close then, of the case for the prosecution there was no case for the accused to answer, and Counsel for the defence acted as he was perfectly entitled to do, i.e. he called no evidence but relied upon his submission that the case was not proved. He was right. Then, after he had completed his defence and shown that his client was entitled to an acquittal, there was put in by the action of the Court additional evidence which altered the whole position. Usually when the Judge recalls  a Witness it is to explain  some point, or corroboration or refute some item of evidence, but this was a very different matter, the witness was recalled to put in evidence a document which was essential as a foundation of the prosecution case, and without which there was no case to answer.

We think that such a course must inevitably have so prejudiced the defence as to amount to an injustice. For this reason the appeal is allowed, the conviction and sentence are quashed. and it is directed that a judgment and verdict of acquittal be entered.