pg20
Appeal Court, 7th February.
1942.
Criminal Law-Official corruption
and extortion by public
officer., contra sections
98 and 99 ,of Criminal
Code-Person employed in public
service-section .3(1) (a)
and (b) of Native Authority
Ordinance No. 43 of 1933.
An employee of Bamenda Native
Administration in the capacity
of a veterinary assistant was
charged in three counts under
section 98 of the Criminal Code
for demanding money before
issuing cattle permits and in
three counts under section 99
for demanding money· for
treating a sick horse and
convicted on four of the counts
Held:,
That the charges and particulars
as framed disclosed no offence
under these sections .
. Held Further: That an employee
of the Bamenda Native
Administration in the capacity
of a veterinary assistant does
not come under any of the
sub-heads of the definitions of
"person employed in the public
service II in section 1 of the
Criminal Code .(I) As
Bamenda Native Administration
had not been appointed under the
Native Authority· Ordinance any
argument that the employee held
a civil office the power of
appointing to which vested in
the Native Administration
holding the office of Native
Authority failed.
Further: There was no evidence
led to show that accused was an)
employee of Bamenda Native
Administration. In view of these
fatal defects and other
irregularities the convictions
were quashed.
I. F. Cameron
for Appellant.
S. A. Mckinstry
for Crown.
The following joint judgment was
delivered:-
KINGDON" C.J, NIGERIA, BUTLER
LLOYD AND BAKER, JJ.
The appeal is allowed. 'the
convictions and sentences are
quashed and it is directed that
upon each charge a judgment and
verdict of acquittal be entered.
The appellant. is discharged.
Reasons will be given at a later
date.
Reasons for judgment
The Appellant was charged before
Jeffreys, Acting Assistant
Judge, in the High Court holden
at Bamenda in the British
Cameroons as follows:-
(1) The law has now been amended
to cover this . .[Ordinance No.
3 of 1943] ·(Nigeria).
pg 21
"1. Charge:
Official corruption contra.
C.C. Sec. 98.
Particulars of offence.
Barnabas Mbu being an
employee of the Bamenda
Native Administration in the
capacity· of a Veterinary
Assistant at the cattle
control post of Ntumbaw, to
supervise the movements of
cattle: to issue free cattle
permits allowing cattle to
be moved, to treat diseases
of animals free of charge:
to supervise the slaughter
of animals and to inspect
and pass or condemn meat for
sale as human food did: - '
first count,
demand and take from
Mohammadu Berlin of Ntumbaw
5s before permitting him to
sell meat from a recently
slaughtered cow.
Second count,
demand and take from
Mohammadu Berlin of Ntumbaw
3s before permitting him to
sell meat from a second cow,
slaughtered a few days after
the first.
Third count,
demand and take from Nyong
of Ndu 5s before issuing a
-cattle permit to him to
move his cattle.
ii. Charge:
Extortion by' public
officers, contra. C.C. Sec.
99.
Particulars of offence.
Barnabas Mbu being an
employee of the Bamenda
Native Administration in the
capacity of a Veterinary
Assistant, at the cattle
control post of Ntumbaw, to
supervise the movements, of
cattle to issue free cattle
permits, to treat diseases
of animals free of charge':
to supervise the slaughter
of animals and the sale of
meat did:-
First count,
demand and take from Nge of
Banso the, sum of 5s
for-treating a sick horse.
Second Count,
demand and accept from :Maina
of Kumbaw the sum of 5s for
treating a sick horse,
Third. Count,
demand and accept from
Mbongong of Ntumbaw 5s for
treating a sick horse."
The trial 'Judge recorded
the following findings:,..
" Not guilty au counts I and
II of the first charge."
" Guilty on count I Charge
IlI"
" Guilty· on all counts in
the second charge."
He sentenced the appellant
to:-
" 3 months LH.L. on 1st
charge.
"6 months J .H. L. on 2nd
charge . "
"
Sentences to run
concurrently "
Upon appeal to this Court,
we quashed the convictions
and sentences and discharged
the appellant. ,We now give
OUT reasons for doing so.
First, we are of opinion
that the charges and
particulars. as framed
disclosed no offence against
either section 98 or 99 of
the C1'iminal Code. These
sections read as follows:-
pg 22
"98. Any person who-
(1) being employed in the
public service, and being
charged with the performance
of any duty by virtue of
such employment, not being a
duty touching the
administration of justice,
corruptly asks, receives, or
obtains, or agrees or
attempt to receive or
obtain, any property or
benefit of any kind for
himself or any other person
on account of anything
already done or omitted to
be done, or to be afterwards
done or omitted to be done,
by him in the discharge of
the duties of his office;,
or
(2) corruptly gives,
confers, or procures, or
promises or offers to give
or confer, or to procure or
attempt to procure, to,
upon, or for, any person
employed in the public
service, or to, upon, or
for, any other person, any
property or benefit, of any
kind on account of any such
art or omission on the part
of the person so employed,
is guilty of a felony, and
is liable to imprisonment
for seven years.
"98. Any person, who, being
employed in the public
service, takes, or accepts
from any person, for the
performance of his duty as
such officer, any reward
beyond his proper pay and
emoluments, or any promise
of such reward, is guilty of
a felony, and is liable to
imprisonment for three
years. "
It will be seen that both
under section
98 (1) and section 99 the
first essential is that the
accused person must be a "
person employed in the
public service." A
definition of that
expression is given in
section 1 of the Code as
follows:-
" , person employed in the
public service' means
anx person holding any of
the following offices, or
performing the duties
thereof, whether as deputy
or otherwise, namely:-
(1) any civil office,
including the office of
Governor the power of
appointing a person to which
or of removing a person from
which is vested in His
Majesty, or in the Governor,
or in the Governor in
Council. or in any public
Commis8ion or Board; or
(2) any office to which a
person is appointed by or
under any statute or
Ordinance; or
(3) any civil office, the
power of appointing to which
or of removing from which is
vested in any . person or
persons holding an office of
any kind included in either
of the two last preceding-
subheads of this section; or
pg 23
for or
(4) any office of arbitrator
or umpire in any proceeding
or matter submitted by other
or with the sanction
of any court or in
pursuance of any ordinance
and the said term further
includes
(1) any Justice of the
Peace;
(2) any person employed to,
execute any process of a
court (including a native
tribunal); ,
(3) all persons belonging to
the military or police
forces of Nigeria;
(4) all persons in the
employ of any Government
Department:
(5) a person acting as a
minister of religion of
whatsoever denomination in
so far as he performs
functions in respect of the
notification of intended
marriage, or in respect of
the solemnization of
marriage, or in respect. of
the making and keeping of
any register or certificate
of marriage, birth, baptism,
death or burial, but not in
any other respect;
(6) a person employed by a
Head Chief in connection
with any powers or duties
exercised or performed by
such Chief under any
Ordinance or with the
consent of the Governor;
(7) a person in the employ
of a Local Authority; " (as
amended by
43 of 1922, and 45 of 1933).
It is ,to be observed that
that definition does not
include in specific terms an
employee of a Native
Administration and that if
the legislature had intended
such a person to be
included, it would have been
quite easy so to word the
definition as to make it
clear that such a person was
included,
The question then arises-can
" an employee of the Bamenda
Native Administration in the
capacity of a Veterinary
Assistant" be brought under
any of the sub-heads of the
definition?
.
Learned Crown Counsel,
arguing in support of the
convictions, submitted that
such an. employee can be
brought under either the
first sub-head (3) (invoking
the previous sub-head (2» or
under sub-head (6) ..
In regard to 1mb. head (:3)
Counsel pointed to section 3
(1)
(a)
and
(b)
of the Native Authority
Ordinance (No.
43 of 1933) which read: -
" a
(1) The Governor, by notice
published in the Gazette,
may
(a) constitute the
office of native authority
for any specified area;
pg 24
(b)
appoint to such office so
constituted any chief or
other native of Nigeria or
other person or any native
council or group of
such natives or other
persons, ........ "
and to Government Notice N
{). 1725 of 1938 in the
Schedule to which the Native
Authorities for the Bamenda
Division of the Cameroons
Province are set out. He
argued that an employee of
the Bamenda Native
Administration is a person
holding a civil office the
power of appointing to which
is vested in a person (viz:
the Bamenda Native
Administration) holding an
office (viz: that of Native
Authority) to which such
person has been appointed
under the above-quoted
provisions of the Native
Authority Ordinance. But
reference to the original
Notice constituting the
offices of Native
Authorities dated the 1st
April, 1934 (of which Notice
No. 1725 of 1938 is an
amendment) shows the meaning
of the Schedule. Paragr(1)h
1 and the relative part of
paragraph 2 of that Notice
of the 1st April, 1934,
read:
" In virtue of the power
conferred upon the Governor
by section 3 (1)
(a)
of the Native Authority
Ordinance, 1933, the office
of native authority is
hereby constituted for each
of the areas specified in
the fourth column of the
Schedule hereto, which areas
respectively comprise or are
situated in the Divisions
specified in the second
column within the Provinces
specified in the first
column.
2. In virtue of the power
conferred upon the Governor
by section 3 (1)
(b)
of the Native Authority
Ordinance, 1933, there is
hereby appointed to each of
the offices so constituted
the chief or other native of
Nigeria or other person or
native council or group of
such natives or other
persons specified in the
third column of the
schedule."
Now " Bamenda" does not
appear in the fourth column
of the Schedule, and the "
Bamenda Native
Administration" does not
appear in the third column
of the Schedule. "Bamenda"
appears in the second column
merely as indicating the
Division of the Province in
which are situated the areas
for which the office of
Native Authority is
constituted. On this being
pointed out Counsel had to
admit that the" Bamenda
Native Administration" had
not been appointed under the
Ordinance to the office of
Native Authority. His
argument therefore fell to
the ground.
As to sub-head (6), it is
sufficient to say that there
was no allegation or
evidence that the Appellant
was employed by any Head
Chief.
An " employee of the Bamenda
Native Administration" could
not possibly come under any
of the other sub-heads of
the definition. We therefore
hold that on the face of it
"an employee of the Bamenda
Native Administration in the
capacity of a Veterinary
Assistant" is not a "person
employed in the public
service" within the meaning
of the Criminal Code and
that consequently all the
charges as framed were bad
on the face of them as
disclosing no offence.
Further no evidence whatever
was led by the prosecution
to prove that the appellant
was either a "person
employed in the public
service" or an "employee of
the Bamenda Native
Administration". Therefore,
even if the charges had been
good, the appellant was
entitled to an acquittal at
the close of the case for
the prosecution since one of
the essential elements of
the offence had not been
proved. But it is our duty
to look at the evidence as a
whole and it is suggested
first that the appellant
himself in his own evidence
made good the' deficiency
and secondly that from the
evidence it is apparent that
appellant was acting as a
public officer, and it is
immaterial who actually
employed him if in fact he
was so acting. We do not
agree as to either point. As
to the first the appellant's
evidence was" I am an N .A.
Veterinary Assistant
stationed at the Control
Post of Ntumbaw ". Neither
he nor any body else said
either that he was an
employee of the Bamenda
.Native Administration or
employed in the public
service; as to the second
point we do not find
anything in the evidence to
prove that appellant was
performing the duties of a "
person employed in the
public service" within -the
meaning of the Ordinance.
Apart from these two fatal
defects the ,whole case
bristles with
irregularities. Some of
these are: - First it is
altogether wrong to combine
three counts under one
charge as has been done
under both sections. Clearly
there should have been six
separate counts, three
contra section 98 and three
contra section 99; a
separate verdict should have
been returned in respect of
each count, and a separate
sentence imposed in respect
of each count upon .which
the verdict was " guilty" ..
Secondly the particulars
given are entirely silent as
to the date upon which the
alleged offences took place.
Thirdly there is no evidence
to support the finding of "
guilty" upon II Charge,
Third count.
The count is "demand and
accept from Mbongong of
Ntumbaw 5s for treating a
sick horse" .. The only
evidence led to prove this
is that of Ngongo (who is
presumably the same man as
Mbongong. He says:-
" I was born at Ntumbaw. I
am a farmer and a house
builder. About five months
ago this accused .gave me a
letter to give to the Ngulu
chief. I took the letter to
the Ngulu chief who gave me
3s. I do not know what the
3s was for but I handed it
to the accused ~ "
