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JELR 81332 (WACA)

West Africa Court of Appeal  •   •  West Africa [For WACA cases]



Foster Sutton, P. The appellant who was a Sergeant in the Police Force was convicted on two counts. The first charged him under section 116 (l) of the Criminal Code with corruptly asking the complainant, Jacob Ebehima, for the sum of £30 on the understanding that if the money was paid he would refrain from arresting Jacob for the offence of unlawful possession of illicit gin, and the second charged him under the same subsection with corruptly receiving the sum of £20 on the understanding that he would not arrest the complainant for the same offence.

It was admitted that the complainant was in possession of illicit gin and certain paraphernalia connected with its manufacture, and although the appellant in a statement made after his arrest denied ever having arrested the complainant, the evidence for the prosecution was that after demanding money and receiving the £20 the appellant did in fact arrest the complainant.

Mr G. B. A. Coker for the appellant argued, firstly, that since an arrest was actually made there could be no offence under section 116, and secondly, that the learned trial Judge' erred in not treating the complainant as an accomplice, that had he been so treated there was no corroboration of his evidence regarding the request for the money and the appellant ought, therefore, to have been acquitted.

The first proposition ignores the fact that in the circumstances of this case an offence was completed under section 116 (1) when the request for money was corruptly made, or the money was corruptly received, “on account of anything already done or omitted to be done, or to be afterwards done or omitted to be done” by the appellant. The fact that after making the request and receiving the money he decided to do his duty and arrest the complainant does not excuse him from liability for an offence he had already committed.

The second submission depends upon the correctness or otherwise of Counsel's proposition that in the circumstances here, the complainant having acceded to the appellants request and handed over £20 as a bribe, he is in law to be regarded as an accomplice.

The question who ought to be regarded as an accomplice was fully discussed by Lord Simonds, L.C. in his judgment in the recent case of Michael John Davies, Vol. 38 C.A.R. 11. He points out that there is no formal definition of the term “accomplice”, and that the Courts are forced to deduce a meaning for the word from the cases in which X, Y and Z have been held to be, or held liable to be treated as, accomplices, and that the following persons, if called as witnesses for the prosecution, have been treated as accomplices:

“(i) On any view, persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting (in the case of misdemeanours). This is surely the natural and primary meaning of the term ‘accomplice’. But in two cases, persons falling strictly outside the ambit of this category have, in particular decisions, been held to be accomplices for the purpose of the rule, viz.,

(ii) Receivers have been held to be accomplices of the thieves from whom they receive goods on a trial of the latter for larceny (Jennings (1912) 7 Cr. App. R. 242; Dixon (1925) 19 Cr. App. R. 36);

(iii) When X has been charged with a specific offence on a particular occasion, and evidence is admissible, and has been admitted of his having committed crimes of this identical type on other occasions, as proving system and intent and negativing accident: in such cases the court has held that in relation to such other similar offences, if evidence of them were given by parties to them, the evidence of such other parties should not be left to the jury without a warning that it is dangerous to accept it without corroboration”.

On the evidence in the present case we are of the opinion that the learned trial Judge was right in treating the complainant as a victim not as a participant, in the offence charged. He cannot be said to have been participes criminis to the request for the money or to its receipt, and in this connection those are the relevant elements of an offence under section 116 (1).

It follows that, in our view, this case clearly falls within class (i), and can fairly be decided on that narrow ground.

In view of our decision on Counsel's second submission it is unnecessary to discuss the further question of corroboration.

For the reasons given this appeal must be dismissed.

Appeal dismissed.

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