Asuquo Ekpenyong V The State (1967)

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BAIRAMIAN, J.S.C.

Asuquo Eyo Ekpenyong, to whom we shall refer as the prisoner, was tried in the High Court of Lagos on sixteen counts, which may be sorted out as follows:

A. Forgery of cheques: counts 1, 4, 7, 10, 13.

B. Uttering of forged cheques: counts 2, 5, 8, 11, 14.

C. Stealing of money, the property of the Bank of West Africa: counts 3, 6, 9, 12, 15, 16.

The trial judge (Lambo, J.) convicted him on all counts- Case No. LA/4C/1967, on May 29th 1967 – and he has appealed against conviction.

The prisoner opened an account in a business name in the Bank of the North Ltd, with an amount of £60; a few days later he began paying Into k forged cheques drawn on the Bank of West Africa – five of them within the first fortnight of December 1965; and in those days drew cheques on his account: whence the counts of forgery, of uttering, and of stealing.

So far as the stealing counts are concerned, state counsel concedes that the conviction on them was wrong in law. When a person has an account which is in credit, the bank is his debtor to the extent of the credit balance; and when he draws money on his account the money he is paid is the money of the bank. In this case the prisoner had his account with the Bank of the North Limited, and the amounts in the counts of stealing were the amounts which he drew on his account in that Bank; so it could not be said that those amounts were the property of the Bank of West Africa – which is what the counts on stealing allege. The court therefore indicated at the hearing on 30th November, that the convictions and sentences on those counts would be quashed.

That opened up the problem of the sentences passed by the trial court on the forgery and uttering counts – three years on each count, with all the terms to run concurrently. We thought that as the amounts involved were In the neighbourhood of £10,000, three years would be too little; moreover, the trial judge passed six sentences on the counts of stealing – two years on count 3, four years on count 6, one year on count 9, two and half years on count 12, two and a half year on count 15, and three years on count 16 – and ordered them to run consecutively, thus making a total of fifteen years. We therefore drew attention to the provisions of s.27(1) of the Federal Supreme Court Act,. 1960, and adjourned to 2nd December, so that counsel should have an opportunity of considering that subsection, which provides that:

“27(1) If it appears to the Supreme Court that an appellant, though not properly convicted on some count or part of the information or charge, has been properly convicted on some other count or part of the information or charge, the Court may either affirm the sentence passed on the appellant at the trial, or pass such sentence in substitution therefor as it thinks proper, and as may be warranted in law by the verdict on the count or part of the information or charge on which the Court considers that the appellant has been properly convicted.”

Counsel had an opportunity before the adjourned hearing of looking at the relevant cases, which are –

(1) O’Grady, (1941) 28 Cr. App. R.p. 33.

(2) R. v. Lovelock (1956) 1 W.L.R. p.1217.

(3) The Queen v. Edirimanasingham (1961) A.C. p. 454 (P.C).

(4) R. v. Craig (1967) 1 W.L.R. 645.

Cases (1) and (2) were decided under s.5(1) of the Criminal Appeal Act of 1907 in England, which is the parent of our s.27(1). Case No. 3 in the Privy Council was decided on a similar provision in Ceylon. Case No. 4 was decided in England under that provision as modified by s.4(2) of the Criminal Appeal Act, 1966, which however does not apply in Nigeria.

The effect of those decisions is clear, and they all point one way. Suppose, for example, that a defendant is tried in the High Court on counts A and B; that he is convicted on both counts; that he is sentenced on count A but not on count B; see cases (1) and (3). Suppose in that example that the High Court passed sentence on both counts; the substitution for the sentence passed by the High Court: case (2) and (4). There is of course this limitation, namely, that the sentence which the Supreme Court passes on count B, whether for the first time or in substitution must be within the range of punishment that is laid down by law for the offence; otherwise there is no other limitation on the Supreme Court. Both the learned counsel agreed that that is so.

Mr. Coker for the prisoner has submitted that the power given by s.27(1) ought only to be exercised where the offences are connected. He argued, that, as not only some but all the counts of stealing were to be quashed, it was not a proper case for the exercise of the power. There is no authority for that argument. Moreover it seems to us that all the offences were connected: they were a series of fraud with a nexus between the unttering of the forged cheques and the withdrawing of money out of the account which was fed with the forged cheques, and that is why there is a set of counts in one information. We cannot see in S.27(1) any such limitation in law as Mr. Coker has argued for. Moreover the facts do not enable the argument to be raised.

In our view this a proper case in which we ought to exercise the powers conferred on the Supreme Court by s.27(1); having regard to the prisoner’s repeated offences and the amounts involved, we cannot allow the prisoner to serve a sentence of three years only.

As regards the counts of forgery and uttering the Court had not given leave to appeal, and it was a mistake on the part of the prisoner’s counsel to insert grounds of appeal on the facts in regard to those counts. We note that the prisoner gave notice of appeal alleging that the decision was against the weight of evidence; he had no right to give notice of appeal: what he should have done was to give notice of application for leave to appeal on the ground that the decision was unreasonable or could not be supported having regard to the evidence. So far as the counts of stealing were concerned the error was error of law and there was an appeal as of right in regard to those counts, but that did not entitle the prisoner to appeal on the counts of forgery and uttering in regard to the facts. On the facts he was properly convicted.

It is ordered that the conviction on counts 1, 4, 7, 10 and 13 on forgery, and counts 2, 5, 8, 11 and 14 on uttering, shall stand; and as regards sentence, it is ordered, in substitution for the sentence passed by the High Court, that the term on each one of those counts shall be six years and that all the terms shall run con-currently so that the whole sentence shall be six years.

As to counts 3, 6, 12, 15 and 16 which relate to stealing, the appeal is allowed: the conviction and sentence on each of them is quashed and a verdict of acquittal shall be entered.

Other Citation: (1967) LCN/1363(SC)