Kubua Bukie Odu V The State (1965)

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BRETT, J.S.C. 

The appellant was tried in the High Court of Eastern Nigeria on an Information containing three counts for forgery, one for uttering and one for attempting to steal, and was convicted on all five counts.The facts which the trial judge found proved were as follows. The appellant was employed in the Federal Labour Office at Calabar as Executive Officer, Accounts Branch, and the office periodically received payments from the AngloSpanish Employment Agency in respect of capitation fees on labourers recruited to work in Fernando Po. These payments were made by cheque and the procedure for dealing with the cheques, introduced at the suggestion of the appellant himself, was that they would be paid into an account at the Bank of West Africa, Calabar operated as the Labour Officer Fernando Po Account, and a further cheque would then be drawn on that account, payable to the Sub-Treasurer, Calabar, and paid Into the Bank by the appellant for the credit of the Federal revenue.

These latter cheques would be signed by the appellant and counter-signed by the Labour Officer, who at the material time was a Mr Boardman.

On the 1st March, 1962, when Mr Boardman was preparing to hand over and go on leave, the appellant presented cheque No. D/11 011869 for £4,855 for countersignature and Mr Boardman countersigned it.

The order to pay consisted of the printed word “Pay’ followed by the words ‘The Treasurer’ in the appellant’s handwriting and the printed words “or Bearer’. The cheque was uncrossed. The counterfoil for this cheque was never filled in and no entry relating to it was made in the cash book; the appellant gave explanations of these omissions which were rejected by the judge. On the 6th March, 1962 the appellant appeared in person at the Bank of West Africa, Uyo, gave his name as Bassey Etor, and said that he wished to open a savings bank account. He completed a specimen signature card in the name of Bassey Etor and also a paying-in slip for a cheque for £4,855, with which he tendered cheque No. D/II 011869, with the payee’s name now made out in his handwriting as ‘The Treasurer, Aba District” and followed by the printed words “or Bearer’, and endorsed ‘B. Etor, Treasurer’. The cheque was presented to the Bank of West Africa, Calabar, which refused payment and the appellant was later arrested. On these facts the appellants was convicted of forging the cheque, the specimen signature card and the paying-slip, uttering the forged cheque and attempting to steal the sum of £4,855, the property of the Federal Government. He was not charged with stealing the cheque itself.

The appellant, who argued his own appeal with great ability, attacked both the findings of fact and the application of the law to those findings. It will be convenient to deal with the validity in law of the convictions for attempting to steal and for forging the signature card and the paying-in slip. As regards the attempt to steal the trial judge was of the view that “the appellant had done the last acts on his part which were necessary for the transfer of the money from the Government funds at the bank to the account of Bassey Etor’, and we agree. The judge went on to hold that “such a transfer, if completed, would have constituted the completed act of stealing as it would pass the property in the money in question from the Nigerian Government to Bassey Etor”. The matter had not been argued and the judge did not set out his reasoning in full.

We need not consider whether a person who pays a stolen cheque into his bank account is in every case following the stealing of the cheque by an attempt to steal the sum for which the cheque is made out, since the appellant was himself a signatory for the account on which the cheque was drawn, and the circumstances were those covered by section 385 of the Criminal Code. We are satisfied that in this case at least the judge was right in holding that the completed transaction would have constituted a conversion of the money of the Federal Government. The conviction on this count is therefore valid in law.

As regards the specimen signature card and the paying-in slip, the trial judge held that they “came within the principle of the cases in which it has been held that the use of a pretended name of a fictitious person amounts to forgery’, and he referred to the case of Anne Lewis (1754) Fosters Crown Cases 116, having previously entered into a lengthy examination of what constitutes forgery at common law. With respect, we think that the most profitable approach to the interpretation of the Criminal Code is to begin by examining the words of the Code itself, and that decisions on the common law are only of value where the wording of the Code is obscure or capable of bearing more than one meaning, when they may be referred to for the purpose of ascertaining the sense in which words are used in the Code. Under section 465 of the Code forgery consists of making a false document or writing, knowing it to be false and with the necessary intent, and section 464 defines a false document or writing as including one of which ‘the whole or any material part purports to be made by or on behalf of some person who does not in fact exist”. In this case the appellant presented the two documents as having been made by himself, and the fact that he did so under a false name does not mean that the documents purported to be made by some person who did not exist. The officials of the Bank of West Africa at Uyo knew that the person with whom they were dealing was the appellant, even if they did not know his true name, and the documents did not purport to be made by or on behalf of anyone but the appellant. The convictions on these two counts are set aside.

No reference was made in the High Court or in the argument before this Court to our decision in R. v. Domingo (1963) F.S.C.206/1962, but in case it should be thought that our present decision is inconsistent with that in R. v. Domingo it may be desirable to explain why we regard the facts in this case as distinguishable from those in R. v. Domingo. Albert Omowale Domingo was convicted of forging two applications for registration under the Registration of Business Names Ordinance by signing them in fictitious names. He never dealt personally with the Registrar of Business Names as the person who was being registered as doing business under the registered name and the whole transaction was a sham. Having opened a bank account in the name of DAOT Stationery Supply Agency he was also convicted of forging a specimen signature card bearing the signatures of Akinola Olatuyi Domingo and A. James, and a mandate authorising A. James to operate the account. A. James was a fictitious person. The Bank knew that Albert Omowale Domingo was the person opening the account, but there was evidence, which the judge accepted, that if it had known that the names A.D. Domingo and A. James belonged to the same person it would not have permitted the account to be opened. There was no similar evidence in the present case, and the distinction between Domingo’s case and the present one lies in the fact that in the present case a known person assumed a false name in order to conceal his true Identity, whereas in Domingo’s case the persons with whom the Registrar and the bank officials believed they were dealing or agreeing to deal were no more real than characters in a work of fiction.

There remain the convictions for forging and uttering the cheque, D/II 011869, and the appellant has submitted that they were unjustified both in law and fact. We shall first consider his submissions on the law. As we have already said, the cheque was uncrossed and the printed words “or Bearer’ had not been deleted, so that as counter-signed by Mr Boardman it read “Pay the Treasurer or Bearer”. The appellant submits that even if it were proved that he had added the words “Aba District” he would not have changed the nature of the cheque, and would therefore not have forged ft. If the cheque is correctly regarded as a forgery it must be by virtue of section 465 of the Criminal Code which provides that the term “makes a false document” includes making any material addition to the body of a genuine document, and the submission raises the question whether an addition to the name of the payee is a material addition to an uncrossed cheque made payable to a named person or Bearer for the purposes of section 465 of the Criminal Code, we are of the view that an addition may be material whether or not ft constitutes a “material alteration” for the purpose of section 64 of the Bills of Exchange Act, which provides that material alterations shall in certain circumstances avoid a bill of exchange, and specifies certain alterations In particular as material. We do not say that fictitious signs of age and the like would be material additions, but any addition to the body of a document which is calculated to disarm suspicion in the person to whom ft was intended to utter the document, and so make ft easier to utter it, would in our view be a material addition for the purpose of the Criminal Code, and although there was no direct evidence on the point there can have been no other purpose for the addition of the words “Aba District” in this case. We therefore hold that the trial judge was right in regarding the cheque as having been forged, though in so holding we express no opinion on whether such an addition brings section 64 of the Bills of Exchange Act into play.

As regards the findings of fact the appellant submits that Mr Boardman was not a disinterested witness, since he was negligent on his own showing In signing a cheque made out to ‘The Treasurer’ without further particulars, and that another witness, Mr Odiah, had no knowledge of the facts at first hand. We can only go by the record of the proceedings at the trial and there is nothing in that which would justify this Court In holding that the judge was mistaken in regarding these two as truthful and reliable witn

Other Citation: (1965) LCN/1292(SC)