Bustin Okpara (Alias Austin Okpara) V. The Federal Republic Of Nigeria

LawGlobal-Hub Lead Judgment Report

BELLO, J.S.C.

The appellant was convicted in the Federal Revenue Court sitting at Lagos of two counts on a charge alleging that he had in his possession some counterfeit American bank notes knowing the same to be counterfeit contrary to Section 5(1)(b) of the Counterfeit Currency (Special Provisions) Decree, 1974 and was sentenced to 21 years imprisonment on each count to run concurrently. We allowed his appeal on 10th March, 1977, set aside the convictions and sentences and directed that a verdict of acquittal and order of discharge be entered in respect of both counts. We now state our reasons.

The fact that the appellant had in his possession one hundred and eleven American Bank notes was not in dispute. On 19th July 1973, at the Octopus Hotel, two police officers searched the appellant and found in his possession eleven American bank notes each of $100 denomination and as the result of information given to the two police officers by the appellant thereat, the officers accompanied the appellant to his house wherein he produced and delivered to the officers one hundred other American bank notes each also of $100 denomination.

The police, suspecting the bank notes to be counterfeit, sent them to the Central Bank of Nigeria for verification. It appears that the Central Bank could not verify the authenticity or falsity of the bank notes and so in its turn the Central Bank dispatched them to the Department of Trade in the United States of America for that purpose. Thereafter, the Department of State conveyed by a letter the result of its examination of the bank notes to the Central Bank. Relying on the information contained in the letter of the Department, the Central Bank communicated the result to the police by its letter dated 21st February 1974, which was admitted in evidence at the trial as Exhibit G1. the relevant part of Exhibit G1 reads:-“Dear Sir,

I return herewith the under listed one hundred and eleven American dollars ($100 denomination) sent to us under cover of your Ar.2110/X/C/1943 dated 28th September, 1973 which have now been confirmed to be forged notes.”

The eleven bank notes found in the possession of the appellant at the Hotel were the subject of the first count while the one hundred notes produced by him at his house were the subject of the other count. In addition to the two police officers, an official of the Central Bank (P.W.3) testified for the prosecution at the trial. He simply identified Exhibit G1 as issuing from the Central Bank and informed the trial court that its content was based on the correspondence between the bank and the Department of Trade of the United States of America.

The defence of the appellant in his statements to the police and his evidence at the trial was that all the bank notes had been given to him by one Alhaji Mamoud Cisse to sell as a commission agent and that he did not know that they were counterfeit.

The learned trial Judge in his judgment, after having indicated that the evidence of the appellant showing Alhaji Mamoud to be the owner of the bank notes was irrelevant on the ground that the counts were founded on possession and not on ownership, proceeded to reject the defence of the appellant that he did not know that they were counterfeit and found that the appellant was in possession of the bank notes knowing the same to be counterfeit. He convicted the appellant accordingly.

The only ground argued at the hearing of the appeal was that the learned trial Judge erred in law in convicting the appellant when there was no proof that the notes were counterfeit. The learned counsel for the appellant contended that the evidence of the official of the Central Bank (P.W.3) and the content of the letter, Exhibit G1, were hearsay evidence in so far as it related to the falsity of the bank notes and that as such it was inadmissible in evidence. He submitted that there was no evidence of a credible witness proving the notes to be false or counterfeit within the ambit of Section 12 of the Decree.

In his reply the learned Deputy Director of Public Prosecutions who appeared for the respondent, although he conceded that the evidence of P.W.3 and the content of Exhibit G1 were hearsay evidence, nevertheless, invited us – though half-heartedly – to uphold the convictions.

In the trial of an offence under Section 5 (1) (b) of the Decree, the prosecution must prove, among other things that the bank notes found in the possession of the accused person are in fact counterfeit within the definition of Section 17 of the Decree. The section defines “bank notes” and “counterfeit” in these terms:

“bank notes” in relation to a bank note which is legal tender in Nigeria means a promissory note payable to bearer on demand issued by the Central Bank of Nigeria and in relation to a bank note which is not legal tender in Nigeria means a promissory note payable to bearer on demand issued by lawful authority in the country in which such bank note is legal tender;

“counterfeit,” in relation to a bank note or current coin of a kind which is legal tender in Nigeria, means a bank note or current coin made or issued other than by or by the authority of the Central Bank of Nigeria and in relation to a bank note or current coin of a kind which is not legal tender in Nigeria means a bank note or current coin made or issued other than by or by the authority of the body which, under the laws of the country in which the bank note or current coin is legal tender, is authorised to make or issue such bank note or current coin;”

The prosecution may discharge that burden of proof in any of the following manners: