DR GABRIEL CHIDUME AZIE VS THE STATE

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DR GABRIEL CHIDUME AZIE VS THE STATE

(1973) LCN/01297(SC)

In the Supreme Court of Nigeria

Thursday, March 29, 1973


Case Number: SC. 347/1972

 

JUSTICES

COKER, JUSTICE, SUPREME COURT

IBEKWE, JUSTICE, SUPREME COURT

IRIKEFE, JUSTICE, SUPREME COURT

 

APPELLANTS

DR GABRIEL CHIDUME AZIE

 

RESPONDENTS

THE STATE

 

RATIO

EXERCISE OF OFFICIAL DUTIES OF AN OFFICER IN A PUBLIC SERVICE  

“an officer in the public service is expected to carry out his duties honestly and impartially, and this he cannot do if he is affected by considerations of benefit to himself or another person”Per G.B.A Coker JSC.

 

G. B. A. COKER JSC. (Delivering the Judgment by the Court):

The appellant was charged and tried on an information containing four counts as follows:-

“STATEMENT OF OFFENCE – 1ST COUNT: OFFICIAL CORRUPTION, Contrary to Section 98 (a) of the Criminal Code.

PARTICULARS OF OFFENCE:

Gabriel Chidume Azie, on or about the 24th day of May, 1972, at Owerri in the Owerri Judicial Division, being a person employed in the Public Service of the East Central State of Nigeria, to wit, Senior Medical Officer, and being charged with the performance of a duty, to wit, giving medical treatment to patients who attend the General Hospital, Owerri, for medical treatment, by virtue of such employment, not being a duty touching the administration of justice, corruptly asked for the sum of £10 from Christian Ekeocha for yourself in order to give medical treatment to one John Igwe in the discharge of the duties of your office.

STATEMENT OF OFFENCE – 2ND COUNT: OFFICIAL CORRUPTION, Contrary to Section 98 (a) of the Criminal Code.

PARTICULARS OF OFFENCE: Gabriel Chidume Azie, on or about the 25th day of May, 1972, at Owerri in the Owerri Judicial Division, being a person employed in the Public Service of the East Central State of Nigeria, to wit, Senior Medical Officer, and being charged with the performance of a duty, to wit, giving medical treatment to patients who attend the General Hospital, Owerri, for medical treatment, by virtue of such employment, not being a duty touching the administration of justice, corruptly received the sum of £10 from Christian Ekecoha for yourself in order to give medical treatment to one John Igwe in the discharge of the duties of your office.

STATEMENT OF OFFENCE – 3RD COUNT: EXTORTION BY PUBLIC OFFICERS, Contrary to Section 99 of the Criminal Code.

PARTICULARS OF OFFENCE: Gabriel Chidume Azie, on or about the 25th day of May, 1972, at Owerri in the Owerri Judicial Division, being a person employed in the Public Service of the East Central State of Nigeria, to wit, Senior Medical Officer, and being charged with the performance of a duty, to wit, giving medical treatment to patients who attend the General Hospital, Owerri, for medical treatment, accepted from Christian Ekeocha for the performance of your duty as such officer the sum of £10, a sum beyond your proper pay and emoluments.

STATEMENT OF OFFENCE – 4TH COUNT: DEMANDING PROPERTY WITH MENACES WITH INTENT TO STEAL, Contrary to Section 406 of the Criminal Code.

PARTICULAR OF OFFENCE: Gabriel Chidume Azie, on or about the 24th day of May, 1971, at Owerri in the Owerri Judicial Division, demanded of Christian Ekeocha the sum of £10 with intent to steal the same and with threats of injury or detriment, if the said demand was not complied with.” Eight witnesses gave evidence for the prosecution at his trial in the High Court, Owerri, in the East Central State, before Ikpeazu, J., and, apart from the appellant himself, some five witnesses testified for the defence.

The case for the prosecution is simple and straightforward and, regrettably, not unusual. The appellant was at the material time the Senior Medical Officer in charge of the Government General Hospital at Owerri and, according to the 3rd P.W., Dr. Raphael Onwumere, the Chief Medical Officer in the East-Central State, the duties of the appellant included the administrative functions of managing the hospital staff as well as the clinical functions of attending to sick patients free of charge and treating them accordingly. On the 24th May, 1972, one Christian Ekeocha, who was the 7th P.W., brought his sick ward, John Igwe (P.W.8) to the appellant for treatment in the normal way at the General Hospital. In their testimony before the court both the P.W.7 and the P.W.8 stated that as soon as they entered the consulting room of the appellant, the 7th P.W. introduced himself to the appellant as the master or guardian of the 8th P.W. and that thereafter the appellant asked the 7th P.W., Christian Ekeocha, whether he would be “able to provide or cater” for the 8th P.W. Christian Ekeocha then answered the appellant that he would be able to do so and then the appellant proceeded to examine John Igwe. He later sent both the P.W.7 and the P.W.8 to the pathologist with the necessary laboratory forms for the examination of some specimens from the P.W.8. On the following day, that is the 25th May, 1972, both the P.W.7 and the P.W.8 again saw the appellant, this time with the pathologist’s report on the specimens produced by the 8th P.W. The appellant examined the reports and then said to the 7th P.W. that he must consider himself lucky as no operation was necessary for the boy for this would have cost him, the guardian, an amount of £30 whereas as the report was, he only had to pay him, the appellant, a sum of £10. The 7th P.W. then told the appellant that he was unable to produce this amount there and then and so asked the appellant to allow him to pay the money on the following day. The appellant did not agree to this and stated that he would be away to Enugu on that following day and that when he asked the P.W.7 on the previous day whether he would be able to provide or cater for the boy, he wanted to ensure that the P.W.7 would not be unable to meet his charges.

The story as told by the 7th P.W. then continues as follows:- “I explained that I would endeavour to bring the money the following day. He then said that that was how he helped many people and they disappeared without paying what he charged them. He said he would not be available the next day and I asked him what next could be done. He asked me if I knew his house and I said no. He described his address as B. 112 at the Shell Camp and said it would be a good thing if I would bring the money to him in the house as he would not be available the following day. He asked me to come between 5 p.m. and 6 p.m. that evening and said that if I did not meet him I should wait for him.”

The P.W.7 then decided to refer the matter to the Police and as a result of this a total amount of £10 in currency notes, already noted and treated with anthracene powder was handed over to the appellant by the P.W.7 and the appellant received it and dropped it into the front pocket of the dress which he was wearing. Immediately thereafter police officers, including P.W.1 (Police-Inspector Gabriel Onyilo) and P.W.2 (Police -Corporal Felix Jesi) rushed into the house of the appellant and demanded from him the money which he had just received. The appellant produced the money and in his presence the notes were counted and their identity checked against the records which the police had previously made and which were in their possession. He was taken to the police station and with him went three of his friends who were at the time with him in his sitting-room, Christian Ekpunobi (D.W. 2), Charles Okonkwo (D.W. 3) and Ebenezer Unachukwu (D.W.4).

At the trial of the appellant, the story of the prosecution was most remarkably told by prosecution witnesses Nos. 1, 2, 7 and 8 and that part of the prosecution case that the appellant was a Government-paid doctor and not entitled to charge fees for treating patients at the hospital was proved by the evidence of the 3rd P.W. (Dr. Raphael Onwumere), 4th P.W, (Paul Nnodim Ibeku, who was an Assistant Secretary in the State Ministry of Health) and the 5th P.W. (Nicholas Anokwu, who was a private pharmacist). The Superintendent in charge of the General Hospital, Owerri, Michael Nweke (P.W.6) also testified that the drugs prescribed by the appellant were available at the hospital on the material date.  The appellant, Dr. Gabriel Chidume Azie, also gave evidence in his own defence and called five witnesses. He confirmed and told the same story as contained in the statements which he had made to the police after his arrest. He stated that as soon as the P.W.7, Christian Ekeocha, met him (i.e. the appellant) at the General Hospital, Owerri, they became friends because the P.W.7 had come from Lagos where he resides and the appellant has got a junior brother working in Lagos.

The appellant further stated in his defence that on account of this and without inviting him, the P.W.7 had come into his house in the evening of the 25th May, 1972, and handed over the amount of £10 to him which he himself placed inside his hand and begged him to keep and use for the purpose of buying drugs and medicines for the further treatment of his ward, the 8th P.W. His friends were with him in his house at the material time and had accompanied him to the police station. They also gave evidence suggesting the same type of scene. PAGE| 5 In a reserved judgment, Ikpeazu, J. accepted and preferred the story of the prosecution witnesses and rejected that of the appellant and his witnesses.

The learned trial Judge admirably summarised the whole case thus:-

“It is common ground that the sum of £10 Exhibit. ‘A’ was given by the complainant to the accused in his verandah on the evening of 25/5/72, but the dispute relates only to the purpose of the payment. While the complainant said that it was paid to the accused for the treatment of the patient following an earlier demand for it by the accused, the latter denied this purpose and set up the story that it was a deposit for purchasing drugs which may be needed for treating the patient John Igwe following a persistent plea by the complainant for him to accept the deposit and give his special personal attention to the boy.”

The learned trial Judge then analysed with great care the plethora of evidence that was before him and concluded that “as between the two accounts” he preferred the one given by the complainant, i.e. the P.W.7, Christian Ekeocha. Later on in the same judgment the learned trial Judge said:-

“I prefer the complainant’s own account that he took the money to the accused in pursuance of his demand for it earlier in the day at the consulting room. The evidence of the accused’s witnesses in support of the accused’s account of the event in the verandah has not improved the defence case.” Eventually, the learned trial Judge convicted the appellant on the 1st and 2nd counts of the Information observing as follows:- “I must say in conclusion that the prosecution has firmly established that the accused on 25/5/72 did demand the sum of £10 from the complainant in order to give medical treatment to his boy who had been registered as a patient of the hospital as charged on count 1 and further that on the same day he also did receive the said amount for the said purpose as charged in count 2. I accordingly find the accused guilty on those two counts and convict him accordingly on both counts. I find him not guilty on counts 3 and 4 and he is acquitted and discharged on both counts.”

This appeal is from that judgment. Although we granted leave to learned counsel for the appellant to argue the appeal generally, we are completely satisfied that the findings of fact are abundantly justified by the evidence. We would indeed have been surprised if the learned trial Judge had found otherwise on the facts of the case and in the words of the learned trial Judge in sentencing the appellant, his conduct “is immoral to the extreme and is a gross abuse of his high office.”

The evidence of the appellant’s friends was as well valueless and it is puzzling that persons in such high positions should lend themselves so recklessly to what certainly must be considered a scheme of mendacity.  But we were strongly of the view that it is nonetheless the duty of the prosecution to prove its case beyond any reasonable doubt on the charge before the court. As shown earlier on in this judgment, the appellant was found not guilty on count 3 (which charged him with Extortion under Section 99 of the Criminal Code) and count 4 (which charged him with Demanding with menaces under Section 406 of the Criminal Code). He was expressly found not guilty on counts 3 and 4 and discharged and acquitted on those counts. With respect to the counts on which he was convicted, i.e. counts laid under Section 98 of the Criminal Code, learned counsel for the appellant has submitted before us that on the facts of the case the charges under that section were misconceived and that the offences created by that section of the Criminal Code have not been proved.

On the other hand, learned counsel for the respondent submitted that the offences had been proved and referred us to the decision in the case of Robert Nkansi v. Police (1961) ENLR 4, where the High Court stated in similar circumstances that the offence committed was one under Section 98 of the Criminal Code. We think that the submissions of learned counsel for the appellant are well founded. Section 98 of the Criminal Code of the East-Central State provides as follows:- “98. Any person who – (a) 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 attempts 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 (b) 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 act or omission on the part of the person so employed, is guilty of a felony, and is liable to imprisonment for seven years.” It is clear that the section makes both the acceptor of the bribe and the giver of the bribe offenders. The section undoubtedly postulates a situation in which the giver of the bribe knows that he was acting corruptly and doing what is evil or wrong in giving a bribe to the public officer concerned. The section envisages the case of a public officer who has received the bribe with a view to be swayed or deflected in his course of conduct or action and corruptly embarks upon or takes an action or course of conduct which he would not honestly have done or taken. Equally so, the Section envisages the case of a public officer who in consideration for a bribe corruptly omits or fails to do that which he should have done in the honest performance or discharged of the duties of his office. PAGE| 7 Section 98 of the Criminal Code is a section which deals with public officers who receive bribes in the way of “any property or benefit of any kind” and those who give such bribes to them with the avowed purpose of corruptly doing or refraining from doing the proper thing as a result of the bribes they had accepted (or given), the resultant action or inaction or conduct being inconsistent with the honest discharge of the duties of their office. In Biobaku v. Police (1951) 20 NLR 30, Bairamian, J. (as he then was) considered the meaning and implications of a section of the Criminal Code of Nigeria which was in pari materia with the present Section 98 of the Eastern Nigeria Criminal Code. In the course of his judgment in that case, at p. 31 of the Report, he observed as follows:- “In S. 98 there are some points to note:

(1) that not only the officer who receives a benefit is guilty but also the person who offers it, whilst in a case of extortion the victim of an officer’s greed is not guilty of any offence:

(2) that it is not only “on account of anything done.or to be afterwards done” but also on account of anything “omitted to be done” “or to be afterwards .omitted to be done” that the benefit may be offered or received and

(3) the officer receives “corruptly” and the person giving the benefit gives it “corruptly”. It is also worth noting as point

(4) that the punishment is heavy – seven years. The notion behind S. 98 is this in my view: an officer in the public service is expected to carry out his duties honestly and impartially, and this he cannot do if he is affected by considerations of benefit to himself or another person; and the mischief aimed at in S. 98 is the receiving or the offering of some benefit as a reward or inducement to sway or deflect the officer from the honest and impartial discharge of his duties – in other words as a bribe for corruption or its price.” In the present case, we are satisfied that the charge had been laid under a wrong section of the law for the evidence discloses that the appellant had received the amount of £10 to which he was not entitled but for the purpose of discharging the duties which he was bound by virtue of his office to perform. Learned State counsel who appeared for the respondent, saw this point and urged us to substitute for Section 98 a conviction under Section 404 of the Criminal Code.

This suggestion was of course opposed by learned counsel for the appellant who is this respect has placed reliance on the decision of the West African Court of Appeal in Rex v. Ngwu Obuka (1936) 3 WACA 2, where the court held that the power to substitute a conviction under a different Section of the Criminal Code would not be exercised unless it is clear that the trial Judge must have been satisfied that a conviction under such alternative section had been proved. In the case in hand, we cannot accede to the request of the learned Principal State Counsel for if we were to hold that an offence of official corruption had been committed and proved, we would almost certainly be inclined to substitute a conviction under one of the sections in respect of which the appellant had been expressly found not guilty by the learned trial Judge.

We are of the view that this express finding and consequent discharge demonstrate that the learned trial Judge had come to the conclusion that the evidence before him did not warrant a conviction under such a section. In those circumstances, a Court of Appeal may not substitute a conviction under such section. It seems to us however that in the present case the 3rd and 4th counts of the Information are alternative counts. If that was so, we think it advisable that trial Judges should abstain from recording verdicts and therefore should leave the way clear for a court of appeal in case it is felt that alternative convictions should be recorded to do so. In the circumstances of this case, we do not propose to substitute any alternative conviction and regrettably decide that the appeal must be allowed on the grounds on which the judgment of the learned trial Judge had been attacked.

The appeal of the appellant is therefore allowed, the conviction recorded against him by the High Court Owerri, is quashed and the sentence set aside. We order that a verdict of acquittal and discharge be entered in his favour and also that, if by virtue of the order of the High Court he had already paid any amounts into court by way of fines, such money should be refunded to him forthwith.

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