Asuquo Etim & Anor V. The Queen (1964)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN JSC

The appellant were convicted in the High Court at Calabar on these three counts:

Count 1: –

Conspiracy to defraud, contrary to section 422 of the Criminal Code, in that Asuquo Etim and Olayinka Adesanya, on or about the 16th day of March,1961 at Calabar,in Calabar Province, conspired together and with other persons unknown by fraudulent documents and / or fraudulent representations to defraud the Danish Nigeria Agricultural Co.Ltd.

Count 2:

Forgery, contrary to section 467(4) (d) of the Criminal Code, in that they, Asuquo Etim and Olayinka Adesanya, on or about the 16th day of March, 1961, at Calabar, in Calabar Province, forged a document, to wit, a document intended by them to be used as a writ issued by the authority of the High Court , Calabar, for the attachment and sale of the immovable property of the Danish Nigeria Agricultural Co. Ltd.

Count 3:

Uttering False Documents, contrary to section 468 of the Criminal Code, in that Asuquo Etim and Olayinka Adesanya on or about the 16th day of March, 1961 in Calabar, in Calabar Province, knowingly and fraudulently uttered a false document, to wit; a document intended by them to be used as a writ, issued by the authority of the High Court, Calabar, for the attachment and sale of the immovable property of the Danish Agricultural Co. Ltd.

The first appellant was the Registrar of the High Court at Calabar, the second the solicitor of the Cameroons Produce Co. Ltd. He brought a suit in the High Court in the Southern Cameroons on their behalf against the Danish Nigeria Agricultural Co. Ltd. in December, 1958; in December, 1959 he obtained there an order of interim attachment, which was sent to Calabar, and under it thirty farm houses, offices, stores, an electric plant, two locomotive engines, and thirty-two trailers, were attached at the Danish company’s plantation at Ifiang near Calabar on the 30th January, 1960; and on the 1st February, 1961, he obtained judgement for  £5,449-12s-4d plus 140 guineas costs, which he registered at the High Court, Calabar, for execution. For clearness sake, the first appellant will be referred to as the Registrar and the second as the Solicitor.

On the Solicitors application the Registrar issued a writ of attachment and sale against goods (exhibit C) on the 8th March, 1961, and on the same day issued a notice thereof to the Danish Company (exhibit A); and the sale was advertised to take place on the 16th March, 1961.

On the 16th March the Solicitor went to the Bailiffs office in order to go with him to the Danish Co.s estate. He looked at the Inventory of what had been attached in January, 1960, under the Order of interim attachment, which included thirty farm houses, and wanted these to be sold too, saying that the purchasers would only buy the iron roof sheets; but the Bailiff disagreed. About 9 a.m. the Solicitor left and went to the High Court and applied to the Registrar orally for a writ against immovables, to enable those farm houses to be sold that day, and he paid the Cashier £2-7s-6d as the fee for the writ. Taribo, the clerk who was to prepare it, had not prepared one before, and the Registrar told him to use Judgement Form 38 (exhibit D1) and Judgement Form 5 (exhibit D2) as an accompaniment.

D1 is a writ against land; D2 is a writ against goods, but on the Registrars instructions the clerk crossed out the word goods and wrote immovable property, and he entered the fee on D2 and the time of application as 9.9 a.m. The date on D1 and D2 is 16th March, 1961. There is also exhibit D, a letter from the Registrar to the Deputy Sheriff, dated 16th March, 1961, which the clerk prepared in the usual form, but he did not know that he should also prepare a notice of attachment to go with it. The clerk gave D, D1, and D2, to the Registrar for signature. It is not in dispute that he signed them.

Towards 10 a.m. the Registrar and the Solicitor went to the Bailiffs office, and the Solicitor gave him D, Dl and D2, saying he had obtained the writ. The Bailiff left D and D2 in the Sheriffs tray, and took D 1 with him to the Ifiang estate, to which he went with the Solicitor, who was there throughout the sale and pointed out to the Bailiff the houses to be sold. Thirty-four houses were sold; the purchasers dismantled them and carried off roof-sheets, door and window frames. Some movables were also sold under the writ exhibit C. They returned to Calabar after the offices had closed.

On the 17th March, 1961, the Deputy Sheriff endorsed exhibit D to the Bailiff for action, and passed it to him with D2. The Bailiff told him the sales had been concluded and gave him the proceeds. The Bailiff entered Dl and D2 in the Register of Writs with the 17th March,

1961, as the date, and on that day entered the sale in the sales Register as a sale of both movables and immovables. And on the 22nd March, the Deputy Sheriff returned by exhibit B5 the original writs of attachment and sale, as he wrote, ‘of Goods (movable and immovable)’ with a receipt for the net proceeds, and sent two copies of the sale list (exhibit B6), which describes the property sold; it includes goods and houses-which is important.

On the 19th May, 1961, the Solicitor filed in the High Court, Calabar, a motion on Notice (exhibit H) for the Court to issue a writ on movable property, meaning immovable; he put in with it an affidavit sworn to by himself that there had been a sale of goods, which realized £242-4s-0d and that no other movable property of the respondents could with reasonable diligence be found; it was not granted for reasons with which we are not concerned.

The Registrars evidence at the trial is that he did not go to the Bailiffs office on the 16th March, 1961, and did not hand exhibits D, D1, and D2, to the Solicitor or to the Bailiff. The Solicitor came to his office between 12.30 and 1 p.m., certainly before 2 p.m., and paid for the Writ on land he would cause to issue after his motion was heard and granted by the Court.

The Solicitor said that, up to the time of his leaving Ifiang, the sale had not produced enough; he was anxious to catch the plane for the Cameroons (where he resided) and promised to send the notice of motion. The Registrar accepted the fee for the writ on deposit. He admitted signing exhibits A, C, D, D1, and D2, but denied instructing the clerk Taribo on how to fill up D1 or on D2; he signed D1 in error without scrutiny. He also admitted that when a writ, whether on goods or on land, was issued, a notice of attachment should go with it; the Deputy Sheriff should have returned D1 to him as it was not accompanied by a notice of attachment, and did wrong to sell immovables on D1 and D2 on l6th March.

He did not normally issue a writ on land without a motion and order of court and application; it was because there was no such motion, order, or application for a writ on land that he did not sign a notice of attachment. That evidence does not explain why the Registrar signed the letter D on 16th March, 1961, requesting the Deputy Sheriff -to arrange for service of the enclosed one copy of Judgement Form (Writ against Land) and Judgement Form 5 and sent two forms, one of them being a Writ against Land.

The Solicitor gave evidence denying that he went with the Registrar to the Bailiff on the 16th March, 1961, or giving the Bailiff D, D1, or D2. He went to Ifiang, but left before the sale was over and was back at Calabar shortly before 1 p.m. He deposited £2-7 s-6d with the cashier for a writ on land in anticipation of a motion he intended to file, because he had difficulties over his cheques on his Cameroon bank; and he flew not later than 2 p.m. In cross-examination he admitted saying in exhibit Sl on 25th July, 1961, what, as he saw it, described the events of 16th March, 1961, correctly. There he said that to avoid unnecessary expense, he persuaded the Registrar to issue the writ pending his application, adding-

Not a single immovable property was sold at the sale. I was present myself … The iron sheets were sold as movables on my direction, I being the pointer to the bailiff …

He did not say that he left the sale before it was over, or indicate that he approached the Registrar after he had been to Ifiang

Other Citation: (1964) LCN/1181(SC)