Taiwo Bucnor Smart V. The State (1974)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, JSC 

The appellant was charged before, and tried by, the Lagos Assizes (Lagos State) on an Information charging him with:- (i) stealing a sum of £5,000 (or N10,000) which was entrusted to him by one Titus Essien to transfer to the account of D. L. Payne in Britain contrary to Section 390(8)(b) of the Criminal Code; (ii) forgery of Form B Application to Purchase Foreign Currency No. A154313 for purchase of £5,757-17-0d British sterling contrary to Section 467(2)(h) of the Criminal code;  (iii) uttering of document alleged on Count 2 contrary to Section 468 of the Criminal Code; (iv) forgery of Form B of Application to Purchase Foreign Currency No. A166494 for purchase of £6,137.25 British sterling contrary to Section 467 of the Criminal Code; (v) uttering of document alleged on Count (iv) contrary to Section 468 of the Criminal Code;  (vi) forgery of Bill of Entry No. 22499 purporting same to have been signed by Messrs. Andex (Nigeria) Ltd., contrary to Section 467 of the Criminal Code; (vii) uttering of the document alleged in Count (vi) contrary to Section 468 of the Criminal Code;  

He pleaded not guilty to all the Counts on the Information and witnesses were called by the prosecution to the effect that one Titus Essien (2nd P.W.) entrusted to the appellant some time in May, 1971, an amount of £5,000 (or N10,000) in the following circumstances:- “During the month of May, 1971, he contacted me and said he had some money in his Barclays Bank Account in London about £5,000.

He told me the money was in his fixed account deposit in London, and as he was not going back to London he would like to exchange the money in London with any one who is interested, by depositing the equivalent amount with the Barclays Bank in Lagos. The Barclays Bank Nigeria will instruct Barclays Bank in London to release the money in London to the person who made the deposit here. He said this would be done on a commission of £1,250 or N2,500.

I went and said all these to one Mr. D.L. Payne an industrialist who was my customer. Mr. Payne was interested and agreed to the terms.” The witness, Essien, further testified that he then collected the sum of £5,000 from Mr. D.L. Payne as well as the commission due to the appellant and paid over all to the appellant. Thereafter, the appellant would not let him know when the corresponding amount would be paid in London nor return the money handed over to him by the witness.

There was also evidence from the prosecution witnesses to the effect that the appellant on divers dates in June 1971 deposited Central Bank application forms for foreign currency of the numbers charged with the Barclays Bank in Nigeria, or rather in Lagos, as well as the local draft by which the amount of £5,000 was paid to him; there was evidence as well of the discovery that the companies purported on the documents to be ordering for goods and therefore requiring foreign currency were fictitious in that Police Corporal Samuel Suberu (1st P.W.) and other policemen went to the various addresses given on the suspected Bills of Entry supplied by the appellant and found that no companies by those names or designations occupied the premises.

The prosecution also gave evidence that the numbers on the Bills of Entry were already allocated to other transactions by the Customs and Eugenson Adokiye Frank Higgue (4th P.W.), Principal Collector of Customs, testified that it was “not possible for the Bills of Entry issued in the same month to have identical numbers be it for export or import”. Indeed, it was part of the case for the prosecution, and in respect of which evidence was given at the trial of the appellant, that the application forms to purchase foreign currency (Exhibits A, B, C and D) proved to have been lodged by the appellant at the Central Bank were foregeries inasmuch as “the information contained in the originals are not the same as those submitted to the Central Bank”.

In any case, there was no corresponding deposit of any amount in London as envisaged by the transaction which the appellant had planned and several efforts to make the appellant refund the amount failed despite the promises given by the appellant to Titus Essien, 2nd P.W., Johnson Olorunfemi Oyebanjo, 7th P.W., and others, that he would refund the amount by installments as he had already invested it in another business.  

At the end of the case for the prosecution, learned counsel appearing for the appellant announced that he would not call any evidence and he thereafter addressed the court on behalf of the appellant. In the course of a reserved judgment, the learned trial Judge extensively reviewed the evidence given by the nine witnesses who had testified for the prosecution as well as the several points raised in the addresses of learned counsel on both sides, came to the conclusion that on the admission of the appellant himself, he had converted the amount entrusted to him to his own use, that he was unquestionably found in possession of foreign currency forms which he himself stated that he had bought and knew to be forgeries and that he indeed uttered these forms to the bank official whose evidence was not controverted. He convicted the appellant on all the seven Counts of the Information and sentenced him to imprisonment.

The appellant has now appealed to this court against his conviction on a number of original as well as additional grounds of appeal. The contention on behalf of the appellant before us was two-fold. With respect to the Count of stealing, it was submitted by learned counsel for the appellant that the learned trial Judge wrongly convicted him of stealing the amount of £5,000 since the evidence was that both the possession and the ownership of that money were transferred to him when the money was handed over.

With respect to the Counts for forgery and uttering, whilst not disputing the conviction on the charges of uttering, learned counsel for the appellant contended that the forgeries were not proved as there was no evidence that Certificates of Incorporation were never issued to those companies and that the search concerning these companies had been conducted only in the Registry of Business Names.

The Learned Deputy Director of Public Prosecutions, Lagos State, who had appeared for the respondent, resisted these submissions and argued that the appellant never had any corresponding money in London so that the criminal intent to steal was manifest from the beginning of it all, that the searches for the companies named by the appellant on his forms were properly made in the Registry of Business Names and that in any case where the prosecution stated, as here, that the companies were not found, it was for the appellant, if he maintained that there were such companies, to produce the evidence as no certificates or official records could be available in respect of non-existent companies.

The decision clearly falls within a small compass. It is quite clear on the evidence that there was no corresponding payment in London at any time and so Titus Essien, 2nd P.W., who had entrusted the amount of £5,000 to the appellant on account of Mr. D.L. Payne, was pressing all the time for the return of that amount and the appellant never in fact paid it back. In arguing that the conviction of the appellant on the first Count was wrong, learned counsel for the appellant referred us to the case of Whitehorn Brothers v. Davison (1911) 1 KB 463, at p.479, where Buckley, L.J. attempted, with some extraordinary courage, to mark out distinctly the difference between larceny or stealing by a trick and obtaining goods or money by false pretences. In that case (it is a civil case) the plaintiffs, who were jewellery manufacturers, had sued the defendants for the return of some jewellery of considerable value which the plaintiffs had entrusted, at his own request, to one Bruford, a jeweller and dealer in pearls, for sale by him on the plaintiffs’ account to a customer of Bruford’s and which jewellery Bruford had then pledged to the defendant as security for some personal advances made by the defendant, a pawnbroker, to Bruford.

The Court of Appeal held that inasmuch as the offence of Bruford was one of obtaining goods by false, since he never had any customer for the jewellery, the plaintiff could not recover the jewellery from the defendant. Obviously, there is a difference between stealing by a trick and obtaining goods or money by false pretences. In the latter case, the deciding factor has always been the intention of the owner of the property to pass both the possession and the ownership of the property concerned to the villain. The distinction has persisted throughout the history of criminal jurisprudence and the difficulty in distinguishing one crime from the other had bedevilled the trial of such cases for long.

The situation is however now remedied in England by the Larceny Act 1916, Section 44, by virtue of which alternative convictions could be recorded by the court convicting of obtaining by false pretences on a charge for that offence where the facts proved amount to larceny (see Section 44(3) of the Larceny Act).

In Nigeria, the position is now governed by Section 173 of the Criminal Procedure Act which, as amended by Decree No.84 of 1966, The Criminal Justice (Miscellaneous Provisions) Decree 1966, Schedule 3, reads thus:-  “173. Where a person is charged with any of the following offences, that is to say-  (a) stealing any property, contrary to Section 390 of the Criminal Code; (b) obtaining or inducing the delivery of any property by a false pretence, and with intent to defraud, contrary to Section 419 of the Criminal Code; (c%2

Other Citation: (1974) LCN/1850(SC)