Olushegun Haruna & Ors Vs The State (1972)
LawGlobal-Hub Lead Judgment Report
FATAYI-WILLIAMS, J.S.C.
On 1st March, 1971, all the accused persons were convicted in the High Court of the North-Western State sitting at Sokoto by Mu’Azu Muhammad Ag. J., in Charge No. SO/8C/1970 containing twenty counts.
Of these twenty counts, all five of them were convicted on one count of criminal conspiracy punishable under section 97 subsection (1) of the Penal Code. Olushegun Haruna, the first accused, was alone convicted on eight counts for the offence of using a forged document punishable under section 366 of the said Code, and on three counts of cheating punishable under section 325 of the said Code, Muhammadu Yunusa Doko, the second accused, was alone convicted on one count for the offence of wearing the uniform of the Nigerian Army although he was not a solider which offence is punishable under section 133 of the said Code.
The third accused (Ibrahim Mohammed) was alone convicted on three counts for the offence of using a forged document and on three counts of cheating punishable under sections 336 and 325 respectively of the said Code. The fourth accused (Paul Omolo) who was charged alone with the offence of wearing the uniform of the Nigerian Army although he was not a soldier which offence was punishable under section 133 of the said Code was found not guilty of that offence; we will have more to say about this later.
The facts which are relatively straightforward may be summarised as follows. Some time between the months of September and October, 1968, the first accused, accompanied by the second accused, called on the third accused in the house where the third accused was staying in Lagos. When the third accused inquired what the visit was about, they informed him that they “had made proper arrangements in connection with certain deals about contract vouchers which are to be tendered and cashed at Bida.” After the 3rd accused had asked the 1st and 2nd accused a few questions about the plan they left. After their departure, the third accused called on the fifth accused who was at the material time a staff-sergeant in the Nigerian Army and told him of the proposal. The fifth accused advised him to wait for further details.
The next day, the 1st accused called on the 3rd accused again, bringing with him a payment voucher (in quadruplicate) which had been checked, signed and passed for payment at the Bida Sub-Treasury. The 1st accused then gave the 3rd accused the payment voucher and informed him that the 2nd accused would call later. The payment voucher was made out in the name of one Mallam Abubakar Yunus, Local Food Supplier, c/o Bida N.A. The 3rd accused described what transpired thereafter in his written statement (exhibit 46) to the police, made after his arrest, as follows:-
“I was convinced by them. So Mohammed Yunusa Doko, Olushegun Haruna, Festus Rone, Paul Omolo, and lastly myself unanimously agreed that we should try this. In actual fact Mohammed Yunusa Doko dressed up in full army captain officer’s uniform followed by staff-sergeant Rone travelled to Bida, but hinted to me to be on the watchout if I should get their message through Olushegun I should travel down and meet them at Bida. Three days later I got their message through Olushegun Haruna asking me to proceed immediately to Bida along with Paul Omolo. On getting to Bida two of us met Mohammed Yunusa Doko and Festus Rone at the Catering Rest House where we were informed that we should meet up at the Treasury the following day … The following day we went to the Sub-Treasury under the guidance of a taxi driver to meet Mohammed Yunusa Doko and Festus Rone from where I was informed that I have got a voucher to be paid to me in the name of Abubakar Yunus, Local Food Supplier from where I was given a cheque for 690pounds. I took the cheque to the bank together with Mohammed Yunusa Doko where I was paid the money. I later handed the money to Mohammed Yunusa Doko from where we left together with Festus Rone and Paul Omolo down to Lagos … Precisely I cashed three vouchers for Abubakar Yunus all at Bida. The other three vouchers were cashed by Olushegun Haruna who is the initiator and brain behind the whole business. This is all I know about the six cheques now in question in respect of the vouchers at Bida.”
Pursuant to the discussions referred to by the 3rd accused in the above statement, the five accused persons, between the months of September and October 1968, agreed to use as genuine forged payment vouchers for the purpose of obtaining money from the Sub-Treasury at Bida. In consequence of the agreement, the 1st and 3rd accused with the aid of the 2nd and 5th accused who were dressed in army uniform at all material times, used as genuine eight and three forged vouchers respectively knowing them to be forged. By using the said forged payment vouchers, the 1st and 3rd accused dishonestly induced Aliyu Jibirin (P.W. 15) the cashier and Usman Kutigi (P.W. 1) the Sub-Treasurer of the Bida SubTreasury to deliver to each of them three Government cheques to the value of 13,722Pounds which they cashed and the proceeds of which they appropriated to their own use. The particulars of the false payment vouchers tendered at Bida as genuine by the 1st accused for payment and duly paid are as follows:-
(i) P.V. No. 14009 for 690 pounds (exhibit 7) on 7/10/68.
(ii) P.V. No. 14010 for 460 pounds (exhibit 8) on 7/10/68.
(iii) P.V. No. 14013 for 1,955 pounds (exhibit 10) on 11/10/68.
(iv) P.V. No. 14014 for 1,575 pounds (exhibit 11) on 11/10/68.
(v) P.V. No 14017 for 2,415 pounds (exhibit 13) on 14/10/68.
(vi) P.V. No. 14018 for 1,875 pounds (exhibit 14) on 14/10/68.
Particulars of those tendered also at Bida by the 3rd accused and also duly paid are as follows:-
(i) P.V. No. 14017 for 690 pounds (exhibit 1) on 25/9/68.
(ii) P.V. No. 14027 for 1,495 pounds (exhibit 3) on 28/9/68.
(iii) P.V. No. 14008 for 2,567 pounds (exhibit 5) on 7/10/68.
Again on 21st October, 1968, the 1st accused, this time without success, also used as genuine, at the same Bida Sub-Treasury, two other forged payment vouchers, one for the sum of 3,850 pounds (exhibit 16) and the other for the sum of 1,575 (exhibit 17).
How they achieved their objective was described by Usman Kutigi (P.W. 1) the Sub-Treasurer at Bida at the material time as follows. On 22nd September, 1968, in answer to an invitation to come there, he went to the Catering Resthouse at Bida at about 5.30 p.m. There he met the 2nd and the 5th accused in Chalet No.4. They were both in army uniform. During the discussion P.W.1 had with both of them, the 2nd accused informed him that the Army Headquarters in Lagos was annoyed with him as a result of his delay in making payments to the army food contractors. They then warned him that many army food contractors were going to present payment vouchers in due course for payment and that these vouchers when received should be paid promptly. P.W.1 then told them about a telegram which he had earlier received in connection with the same matter from the office of the Accountant-General of the Federation in Lagos. Incidentally, this telegram was also a hoax and was not in fact sent by any member of the staff of the Accountant-General. The two accused then said they would call at the Treasury the following day to see this telegram.
Still dressed in army uniform, they duly called the following morning and P.W.1 showed them the telegram from Lagos. They then left for Boko and returned to the Treasury on 25th September, 1968. While in the Treasury the 3rd accused turned up with a payment voucher (exhibit 1) in respect of food supplied for the feeding of the members of the armed forces. The 3rd accused introduced himself as Abubakar Yunus the person shown as the payee in the said voucher. On seeing the 3rd accused and after scrutinising the payment voucher (exhibit 1), the second accused said to the 3rd accused:-
“Yes, you actually reported the Sub-Treasurer, Bida and that was why Brigadier Hassan got annoyed with him.”
In consequence of what the second accused told him about the payment vouchers, P.W. 1 then called Aliyu Jibirin (P.W.15) his cashier and instructed him to “go and deal with the payee.” Thereupon, the 3rd accused followed P.W. 15 who duly gave him a cheque for 690 pounds (exhibit 2) in payment for the amount shown in the payment voucher (exhibit 1).
The 3rd accused returned on 28th September, 1968 to the Sub-Treasury where he asked p. w. 1 whether he had received any other payment voucher in the name of the 3rd accused by post from Lagos. On looking through his mail when it arrived, p.W. 1 found another payment voucher made out in the name of Abubakar Yunus, the name used by the 3rd accused for these transactions. The payment voucher (exhibit 3) was also for food supplied to the armed forces and had been checked and passed in Lagos. As before, P.W.1 asked his cashier P.W. is to pay the third accused who was consequently given a cheque for 1,495 pounds in payment of the amount shown on the payment voucher.
The 3rd accused visited the Bida Sub-Treasury again on 7th October, 1968, but this time, he was accompanied by Olushegun Haruna (1st accused). The 3rd accused brought a payment voucher for 2,567 pounds (exhibit 5) made out in his name, while the 1st accused brought two payment vouchers, one for 690 pounds (exhibit 7) and the other for 460 pounds (exhibit 8). All three payment vouchers were duly paid by P.W. 15 by cheque as before.
Four days later, on 11th October, 1968, the first accused alone returned to the Bida Sub-Treasury and handed to P.W. 1 two payment vouchers which had been duly checked and passed in Lagos for payment to the 1st accused. The first voucher (exhibit 10) was for 1,955 and the second (exhibit 11) was for 1,575 pounds. They were both in respect of food supplied to the armed forces. P.W. 15, as before, issued a cheque to the 1st accused in payment of the two vouchers in question.
On 14th October, 1968, the first accused returned again to the Sub-Treasury with two payment vouchers which, as usual, had been duly checked and passed at Lagos for payment to the first accused at Bida. Both were for payment for food supplied to the armed forces. P.W. 1 passed the two payment vouchers to P.W.15 for payment and they were duly paid. One (exhibit 13) was for 2,415 pounds and the other (exhibit 14) was for 1,875 pounds.
At this stage, P.W.1 had become suspicious of the whole series of transactions and it was this suspicion which started the chain of events which eventually led to the arrest of the accused persons. Consequently, when on 21st Octqber, 1968, the first accused turned up again with two payment vouchers which had been duly checked and passed at Lagos for payment in Bida – one (exhibit 16) for 3,850 pounds and the other (exhibit 17) for 1,575 pounds. P.W. 1 complained that the amounts involved were rather heavy. To this complaint the 1st accused replied that he had come to clear the Treasury of P.W 1 that day. Following his suspicion, P.W. 1 reported the matter to the District Officer in charge of Bida. The District Officer then questioned the first accused about his name and the purpose of his visit to Bida. The first accused replied that his name was Olushegun Haruna and that he had brought payment vouchers from Lagos for payment.
It is pertinent to point out at this stage that Abraham Odunaike (P.W. 3), a Higher Executive Officer in the Federal Ministry of Defence from where all the payment vouchers were supposed to have emanated and who was then the officer controlling Head 30 Sub-head 9 shown on the vouchers, testified to the effect that all the eleven vouchers were false documents and that he had never seen any of them in the Federal Ministry of Defence.
As a result of these disclosures made during the investigation of the matter, all the five accused were arrested. Various sums of money were later recovered by the police from their respective bank accounts.
In one of the statements (exhibit 44) made to the police after his arrest, the 1st accused said:-
“Now that it has become evidently plain from manifest proceedings that one Alhaji Abubakar Yunus has been using me as an instrument for unlawful acquisition of money, the voice of reason demands the TRUTH should be glorified. For on this alone hangs my salvation.”
The first accused then went on to state how after Abubakar Yunus (the name by which the 3rd accused was known during the transactions at Bida) had introduced him to P.W. 1 and his assistant, he (3rd accused) had sent him to Bida on successive occasions in the course of which he (1st accused) received payments totalling 38,970 pounds in respect of the payment vouchers (exhibits 7, 8, 10, 11, 13 and 14). He, however, admitted in the statement that all the payment vouchers were made out in his (1st accused’s) name. He then concluded his written statement (exhibit 44) as follows:-
“This is the truth. I am not a food supplier. I have never supplied foodstuff to the army. And as such, I am not officially entitled to Government money. Every amount collected so far have been on behalf of Abubakar Yunus. I have been in his service.”
The case against the 2nd accused is based partly on his confessional statement (exhibit 45) made after his arrest and partly on the confirmation of relevant portions of it by P.W. 1, the Sub-Treasurer of the Bida Sub-Treasury. The statement reads:-
“I have been invited by Abubakar Yunus to his house, there I met Olushegun Haruna. He was a Major. I don’t know whether he is real army, I don’t know. He told me that I should go to Bida with him so that we should get money. He brought some forms, and made a draft to type on the forms, I typed the letter and he told me that he will be going to Bida and I should prepare to go, when we reach I should wear his army uniform with one staff-sergeant, when we reached Bida and the Major came I lodge at C.R.H. and he gave instruction that I should tell the Sub-Treasurer that if he receive army payment vouchers concerning local food supplies and also family allotment he should pay without delay, as I was discussing with Sub-Treasurer, the Mallam Abubakar came in and then he handed over the envelope to the Sub- Treasurer, after he opened the envelope, the Treasurer told me that he is one of the contractors … I actually knew Abubakar Yunus by name Ibrahim Mohammed but he uses Abubakar Yunus … Abubakar Yunus told me that I should open eye for Sub-Treasurer and when he comes, I should blame him why he report to Brigadier Hassan Katsina that they don’t use to pay them in time and family allotment which Sub-Treasurer promised to act on instructions … I invited Sub-Treasurer to come and see me at C.R.H. Chalet 4, when he came I told all what the Major told me.”
When the 3rd accused was arrested on 27th October, 1968, in Lagos, and was brought to 1st accused, p.w. 18 said that the 1st accused referred to him as Abubakar Yunus while one Olun said “that is Ibrahim Mohammed who sent me to Bida.” P.W. 18 also testified that when the 3rd accused was cautioned by him on 31st October, 1968 the 3rd accused made a written statement (exhibit 46) to which we had referred in extenso earlier in this judgment. In this statement (exhibit 46) the third accused had not only confessed to his complicity in the agreement which they had unanimously reached in Lagos “in connection with certain deals about contract vouchers which are to be tendered and cashed at Bida” but also to the fact that he had uttered forged vouchers with the knowledge that they were forged. After his arrest, Paul Omolo (the 4th accused) also made a written statement to the police. Part of the statement (exhibit 66) reads:-
“I happen to meet Ibrahim (accused 2) one day then he took me to Doko’s (accused 3’s) place. He then told me that Doko has a business which he may like me to do together. He said that Doko has some vouchers that we shall prepare one to go and catch the money. Before this time Doko and Rone went to Bida first and arrange the business how it can be possible. Ibrahim met up Doko at Bida with a voucher but when they came back they told me that they did not honour the voucher they went with, but they arrange at Bida and get a new voucher there and that the money they collected was six hundred and nine pounds and that I should have only seventy five pounds alone. They said they were going back there again, at this time I decided to follow them down, at this time Ibrahim and Richmond Gold (accused 1) went with vouchers and they collected the money there. They shared me three hundred and twenty pounds. We came back to Lagos. After this trip Richmond Gold went alone and I was given two hundred and sixty pounds.”
He further added to that statement that he received altogether the sum of 655 pounds as his share of the money obtained at Bida. He did not know that the others had been returning to Bida or that in all they realised the total sum of 13,000 pounds.
The case against the 5th accused was mainly that he was a party to the conspiracy hatched in Lagos and that he was seen at the Catering Rest House at Bida by the Bida Sub-Treasurer (P.W.1) on 22nd September, 1968. According to P.W. 1, both the 2nd and 5th accused, who were dressed in army uniform, after warning him about the delay in the payment of claims by army food contractors informed him that many army food contractors were going to present payment vouchers in due course for payment and that the claims should be paid promptly. Of all the five accused persons, only the 5th accused testified in his own defence. He narrated how after he had moved into the house of the 3rd accused, the 3rd accused asked him to accompany the 2nd accused to Bida and how they left Lagos for Bida on 21st September, 1968. He testified as to the visit he and the 2nd accused paid to the Bida Sub-Treasury on 23rd September, 1968 and as to what had taken place there which was almost identical with the version given by P.W.1.
As we have stated earlier, the 1st, 2nd, 3rd and 4th accused did not testify in their defence. The 1st accused did not call any witness while the 2nd accused called one witness whose testimony was considered by the learned trial judge, quite rightly, as irrelevant to the offences with which he was charged. The 3rd accused called two witnesses but their evidence was also rightly found by the learned trial judge to be irrelevant. The 4th accused also called two witnesses whose testimony the learned trial judge flatly rejected.
After considering the totality of the evidence adduced before him both by the prosecution and by the defence (both by their cross-examination of the prosecution witnesses and by witnesses called by them) he accepted the version of the incidents as enumerated by the prosecution and rejected the defence of each accused person on all the counts except that of the offence of wearing army uniform without authority with which Paul Omolo (4th accused) was charged under section 133 of the Penal Code. In respect of this offence the trial judge found as follows:-
“Now, as far as this charge is concerned, because the prosecution has not been able to lead satisfactory evidence in proof of it, it has not discharged that duty imposed on it by law. The learned principal state counsel has, in fact, rightly conceded this fact. Accused 4 is therefore entitled to be acquitted of this charge. Accused 4 is therefore hereby discharged and acquitted of the charge under section 133 of the Penal Code. ”
The learned trial judge thereupon convicted all the accused persons of the charge of conspiracy and the 1st, 2nd and 3rd accused persons of the various other offences as charged.
All the five accused persons have now appealed to this Court against these convictions. The grounds of appeal argued by Chief Rotimi Williams who appeared for Olushegun Haruna (the 1st appellant) read:-
“1. The learned trial judge erred in law in failing to observe that having regard to his finding that the acts constituting the offence charged on the first count occurred in Lagos or outside the NorthWestern State, the appellant and his co-accused cannot lawfully be charged and tried for the said offence before the High Court ofthe said State nor do the relevant provisions of the Penal Code apply to the acts aforesaid.
- The learned trial judge misdirected himself in law in holding as follows:-
‘ … by section 4(2)(b) of the Penal Code Law, (not the schedule which is commonly referred to as the Penal Code) although the conspiracy itself was conceived in Lagos, since the subsequent illegal acts perpetrated in consequence thereof were committed at Bida within the North-Western State by tbe accused persons who have admitted to having come to Bida, this court therefore has jurisdiction to try these accused persons as well as all the offences before it including the conspiracy (page 375 lines 13-22).’
Particulars of Misdirection
Section 4(2)( b) of the Penal Code Law does not cover the charge of conspiracy on the facts of this case. The said subsection only applies where at least:-
(i) the doing of any act or the making of any omission is made an offence under the Penal Code;
(ii) such offence comprises several elements; and
(iii) some of the acts, omissions or events comprising the offence occur within the North-Western State whilst the other acts, omissions or events comprising the said offence occur outside the State.
- The conviction of the appellant ought to be quashed because he was charged jointly with the other accused persons (and jointly tried) in circumstances not authorised by section 221 of the Northern Nigeria Criminal Procedure Code nor by any other law in force in the North-Western State of Nigeria.
- The conviction of the appellant ought to be quashed because charges for offences alleged to have been committed by him were joined with charges for offences alleged to have been committed separately by other accused persons and all the said charges were tried together. ”
Because of the relative significance of the contentions canvassed before us by learned counsel at the hearing of this appeal, the arguments adduced on behalf of both this appellant and the respondent will be set out in more detail than is usual.
The main plank of Chief Williams’ argument in respect of grounds (1) and (2) is on the competence of the High Court of the North-Western State to try the appellants for the offence of conspiracy. His submission in this respect may be summarised as follows. The offence of conspiracy is committed at the moment of accord. Specific offences committed in pursuance of the accord are separate and distinct from the conspiracy. In the instant case, the learned trial judge found that the conspiracy was conceived in Lagos, that the follow-up offences were committed in Bida in the North-Western State, and that they could therefore be tried at Bida. The learned trial judge erred in considering the provisions of section 4(2)(a) and (b) of the Penal Code because the situation envisaged in that section did not arise in the present case. That section provides for a situation where in the commission of a particular offence some of the acts, omissions or events comprising the offence occur within the NorthWestern State whilst other acts, omissions or events comprising the offence occur outside the State. The offence of conspiracy is committed, not by the overt act, but at the point of concord or agreement and since the agreement in the instant case was reached in Lagos, the trial of the appellants for the offence of conspiracy pursuant to this agreement in the High Court of the North-Western State instead of in the Lagos High Court is a nullity.
With regard to grounds 3 and 4 Chief Williams submitted as follows.
Excluding the offence of conspiracy with which they were all charged, the 1st appellant was charged with eleven specific offences, the second with one, the third with six, and the 4th with one; the 5th appellant was only charged with the offence of conspiracy. There was no allegation that they were joint offences. While he was not saying that a number of persons could not be charged and tried together, this could only be done under the provisions of section 221(d) of the Criminal Procedure Code. To bring these offences under that section they must have arisen out of the same transaction. In the instant case, there were at least six transactions. the first one was on 25th September, 1968 involving the 2nd, 3rd and 5th appellants and was in respect of a sum of 690 pounds; the three of them could have been charged and tried together for this transaction but only the 3rd appellant was charged in respect of it. The second transaction was a solo effort by the 3rd accused on 28th September 1968 and it involved an amount of 1,495:0s:0d; the third was by the 1st and 3rd appellants on 7th October, 1968 each collecting the sums of 1,150pounds and 2,567pounds respectively: the fourth, another solo transaction by the 1st appellant whereby the sum of 3,530 pounds was collected on 11th October, 1968; and the 5th, also a solo transaction on 14th October, 1968 by the 1st appellant whereby he used two payment vouchers (exhibits 13 and 14) to collect a cheque for 4,290pounds. The last transaction, according to Chief Williams, was on 21st October 1968 whereby the 1st appellant unsuccessfully attempted to collect two sums of two payment vouchers 3,850pounds on exhibit 16 and 1,545pounds on exhibit 17.
Chief Williams then referred to section 221(d) of the Criminal Procedure Code again and submitted that different persons can be charged with different offences and be tried together only if the offences arose out of the same transaction. If the offences did not so arise, the joinder would be bad. Learned counsel, however, conceded that if the charge of conspiracy was valid, a different consideration would arise because all the various overt acts carried out in pursuance of the conspiracy could be regarded as acts in the same transaction and offences arising therefrom could be tried together.
In the instant case, learned counsel then submitted, once the charge of conspiracy is proved to be a nullity, all the specific offences charged in pursuance of it would have no support, and for that reason the conviction for these offences should not be allowed to stand. In support of this contention Chief Williams finally referred us to the decision of the Privy Council in Babulal Choukhani v. The King-Emperor 65 L.R. Indian Appeals 158, or (1939-40) 31 Coxs Law Cases 44 where the provisions of section 239 (d) of the Indian Code of Criminal Procedure which are identical with those of section 221(d) of the Criminal Procedure Code of the NorthWestern State were considered.He also referred us to the case N. A. Subramanya lyer v. The King-Emperor 28 L.R. Indian Appeals page 257 where it was held that non-compliance with the provisions of section 239 was fatal to the prosecution’s case.
The second appellant who appeared in person adopted the arguments of Chief Williams and said he had nothing to add. None of the other three appellants appeared to argue their grounds of appeal.
In a reply which is both commendable and particularly helpful, Mallam Kalgo, Ag. Deputy Solicitor-General, North-Western State, for the respondent, conceded that because of the provisions of section 4(1) of the Penal Code Law, those of section 4(2)(b) would not apply to a charge of conspiracy because such a charge would not comprise “several elements” in the sense in which the words were used in that subsection. The subsection, learned counsel submitted, applies to the other charges because the appellants were in the North-Western State at the time they committed each of these offences; moreover, if the substantive acts constituting these offences were done in pursuance of the conspiracy, the appellants could be charged with the conspiracy in the North-Western State although it was conceived elsewhere. In support of this proposition, we were referred to Archbold’s Criminal Pleading, Evidence and Practice 37th Edition paragraph 92 at page 37; and Brisac and Scott v. The King 102 E.R. 792.
In answer to the submission of Chief Williams under grounds 3 and 4 of the grounds of appeal, learned counsel submitted that section 221(d) of the Criminal Procedure Code, which is the same as section 239(d) of the Indian Criminal Procedure Code, should not be considered in isolation but should be read with section 96 of the Penal Code. He then submitted that in order to determine whether the offences arose out of the same transaction what should be looked at is the proximity of time and space between the conspiracy and the various overt acts. In the present case, immediately after the conspiracy had been hatched in Lagos, the payment vouchers were being submitted at Bida and cashed; the timing, as it were, connecting the conspiracy with the acts. The test, learned counsel pointed out, was the continuity of purpose. Referring to the case of Babulal Choukhani (supra), first cited by Chief Williams, learned counsel finally submitted that all the charges were legally in order and that the appeal be dismissed.
The first point, and indeed the most crucial point, to be considered in this appeal is whether the charge of conspiracy involving all the five appellants could be tried as it was in the High Court of the NorthWestern State. In deciding the point, we must emphasise the fact that the definition of the offence of conspiracy which is in force in the six Southern States is different from that of the Penal Code in force in the six Northern States including the North-Western State. Conspiracy as an offence is nowhere defined in the Criminal Code (which is in force in the Southern States) but since the common law is in force in Nigeria the word must bear the same meaning as in England. It means, under the common law, an agreement of two or more persons to do an act which it is an offence to agree to do. The very plot is an act in itself, and the act of each of the parties promise against promise, actus contra actum, capable of being enforced if lawful, is punishable if it is for a criminal object or the use of criminal means; (see Archbold 37th Edition paragraph 4051). In short, it is the agreement to do an act which it is an offence to agree to do which constitutes the offence of conspiracy under the Criminal Code. With respect to the venue of trial for the offence where the overt acts are committed in places other than the place where the conspiracy was conceived, the decision in Brisac and Scott v. The King 102 E.R. 792 is in point. In that case, the prosecution proved that there was a conspiracy conceived on the high seas, between the captain and purser of a Man-of-war for preparing false vouchers to cheat the Crown. It was held that the offence of conspiracy was triable in the county of Middlesex upon proof there of the receipt by the Commissioners of the Navy of the false vouchers sent to them by one of the conspirators through the post. In dealing with the objection as to venue, Grose J., rightly in our view, held as follows:-
“It is objected that the misdemeanour charged on this indictment was committed on the high seas, and as that offence is, by virtue of the statute 39 Geo. 3, now made triable under the King’s commission, to be granted by virtue of Statute 28 Hen 8c. 15, that it cannot properly be tried within the body of any county in England. As to which, it may be in the first place observed, that that statute makes no difference in this case; … If it were necessary on this occasion to consider how far every count in this information had been established by the evidence adduced, so as to bring everyone of them within the jurisdiction of this Court, it would be recollected that conspiracy is a matter of inference, deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them, and which hardly ever are confined to one place; and that from analogy, there seems to be no reason why the crime of conspiracy, amounting to a misdemeanour, may not be tried wherever, one distinct overt act of conspiracy is in fact committed.”
From the above, it seems to us that under the common law, the charge of conspiracy conceived in one place could be tried in another place where the various overt acts were carried out.
What then is the position under the penal code in force in the NorthWestern State The offence of criminal conspiracy is defined in section 96 of the said Code as follows:-
“96 (1) When two or more persons agree to do or cause to be done:-
(a) an illegal act; or
(b) an act which is not illegal by illegal means, such an agreement is called a criminal conspiracy.
(2) Notwithstanding the provisions of subsection (1), no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreementis done by one or more parties to such agreement in pursuance thereof” (The italics are ours).
From the above, it seems to us that while the agreement reached by the appellants may well constitute the offence of conspiracy under the common law in Lagos, it also constitutes by virtue of the provisions of section 96(2) of the Penal Code referred to above, the offence of criminal conspiracy in Bida as soon as the appellant submitted the first payment voucher No. 14017 for 690pounds (exhibit 1) on 25th September, 1968, and received a cheque in payment of the amount stated therein. That being the case, all the appellants, notwithstanding the fact that the agreement to do the illegal act was reached in Lagos, were properly tried and convicted in the NorthWestern State for the said offence of criminal conspiracy. Consequently, we are unable to discern any merit in the argument of the learned counsel for the 1st appellant based on the venue of the trial of that particular charge. We therefore think that the trial and conviction of the appellants for criminal conspiracy in the High Court of the NorthWestern State were in order. Grounds one and two of the grounds of appeal therefore fail.
With respect to the points urged upon us by Chief Williams concerning grounds three and four, we agree with the submission of Mallam Kalgo that, in deciding whether all the charges brought in respect of the overt acts of the conspirators arose out of the same transaction, what should be looked at is the proximity of time and place, and the continuity of action. The test must always be, do these acts, considered together, portray any continuity of purpose If they do, all the charges relating to them will be considered as having arisen out of the same transaction.
In the instant case, the claiming by the conspirators of large sums of money, even at such close but irregular intervals (a total sum of 13,722.0.0d was thereby obtained between 25th September and 14th October, 1968), for fictitious purchases of food stuff for the army is, to our mind, one grand operation having regard to the evidence which the learned trial judge believed. Moreover, section 221(d) of the Criminal Procedure Code, when read with section 96 of the Penal Code, is intended to apply to a case such as the one under consideration. The section reads:
“221. The following persons may be charged and tried together namely:-
(d) persons accused of different offences committed in the course of the same transaction;” …
The scope of a similar provision in section 239(d) of the Indian Criminal Procedure Code was considered by Sarkar in the 3rd edition of his book on the said Code at page 400. According to Sarkar, and we are also of the same view, whether two or more acts constitute the “same transaction” depends on proximity of time and place, continuity of action, and community of purpose or design relative to the particular acts.Therefore the phrase “in the course of the same transaction” has been understood to include both the immediate cause and effect of an act or event and also its collocation, the other necessary antecedents connected with it at a reasonable distance of time, space and cause and effect; (see Ring 53 Indian Law Reports (Bombay) page 479). Thus, in order to constitute one transaction all the acts from the very beginning should be either in contemplation or should form the component parts of a whole. There can be no doubt, bearing in mind the original agreement in Lagos and the elaborate arrangements made for doing the overt acts which followed at Bida, that the appellants had each of these acts in contemplation.
Therefore, no matter how we look at it, it is not possible to come to any conclusion other than that the conspiracy was hatched and the overt acts were done undoubtedly in the course of the same transaction. It was, therefore, right and proper to charge and try all the appellants together.
In this connection, the observation of Lord Wright at page 50 of the judgment of the Privy Council in Babulah Choukhani v. The King- Emperor (supra) which we endorse, is particularly relevant. The observation deals with the provisions of section 239(d) of the Indian Criminal Procedure Code which, as we have pointed out earlier, are identical with those in section 221(d) of Criminal Procedure Code of the North-Western State. It reads:-
“Nor is there any limit of number of offences specified in section 239(d). The one and only limitation there is that the accusation should be of offences ‘committed in the course of the same transaction.Whatever scope of connotation may be included in the words ‘the same transaction’, it is enough for the present case to say that if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspirators) these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The common concert and agreement which constitute the conspiracy serve to unify the acts done in pursuance of it.”
We therefore see no merit in the third and fourth grounds of appeal which also fail. There seems to be an element of calm and calculated deliberation in the commission of the offences. We are accordingly quite satisfied there is nothing which would justify our interfering with the verdict of the learned trial judge and all the appeals against conviction are dismissed.
Other Citation: (1972) LCN/1399(SC)
