Gregory Godwin Daboh & Anor v. The State (1977)
LawGlobal-Hub Lead Judgment Report
SIR UDO UDOMA, J.S.C.
This appeal is against the conviction of the two appellants by the High Court of Lagos State in Lagos on two counts in which they were charged, firstly, that they both conspired together on 14th July, 1970 in Lagos to commit a felony, that is to say, to induce by false pretences the Registrar of Insurance in the Federal Ministry of Trade, to deliver the Certificate of Registration as an Insurer to the Nigerian States Assurance Corporation Limited and thereby committed an offence contrary to Section 516 of the Criminal Code; and secondly, that the two appellants on the same day with the intent to defraud, induce the Registrar of Insurance, Insurance Division, Federal Ministry of Trade, Lagos, to deliver the Certificate or Registration as an Insurer to the Nigerian States Assurance Corporation Limited by falsely pretending that the Nigerian States Assurance Corporation Limited aforesaid had a credit balance of N50,000.00 in its account with the Bank of the North Ltd., and thereby committed an offence contrary to Section 419 of the Criminal Code.
On conviction, the appellants were each sentenced to two years imprisonment on the first count, -and 18 months imprisonment on the second count; and sentences were ordered to run concurrently.
They have both appealed to this court against their conviction.
In view of the submissions made to us in respect of charges against the first appellant, that the learned trial Judge was wrong in law in overruling the submission of no case to answer made on behalf of the first appellant, it is necessary to examine more carefully and in greater detail the case of the prosecution.
The case of the prosecution in support of the charges against the appellants was that on 31st January, 1969, by a formal application duly completed and signed by the first appellant as Executive Director, The Nigerian States Assurance Corporation Limited, applied to the Registrar of Insurance, Federal Ministry of Trade, to be and was duly registered as an Insurer after other requisite forms had also been duly completed and submitted. The Nigerian States Assurance Corporation Limited was then called upon to deposit the sum of N50,000.00 with a bank, and after having done so, to communicate that fact to the Registrar of Insurance, Federal Ministry of Trade to enable the latter to grant and deliver to the company a Certificate of Registration as an Insurer.
Subsequently, on 14th July, 1970, the first appellant, as the Executive Director of the Nigerian States Assurance Corporation Limited met the second appellant, who at the material time, was the Manager in charge of the Bank of the North Limited, Apapa branch, at his office. The second appellant then introduced the first appellant to Kafaru Ajala (P.W.6). then Accountant of the Bank of the North Limited, Apapa branch, and told him that the first appellant, as the Executive Director of the Nigerian States Assurance Corporation Limited would be opening two accounts for his company with the Bank of the North Limited, Apapa branch.
The second appellant, at the same time, handed over to Kafaru Ajala, a cheque No. 004422 bearing that date for the sum of N50,000.00 which had been issued by the first appellant from a cheque book numbered from 000361-000480, Exhibit 45, supplied by the United Bank for Africa Limited, Benin City branch to the Nigerian States Assurance Corporation Limited as its customer.
The cheque, which was drawn on the United Bank for Africa Limited, Benin Branch in favour and to the credit of the Nigerian States Assurance Corporation Limited was for the opening of a current account with the Bank of the North Limited, Apapa Branch.
On receiving the cheque, Kafaru Ajala spoke to the first appellant. He asked him for the resolution of his company appointing the Apapa Branch of the Bank of the North Limited as its bankers, the Articles of Association of the company, and the Certificate of Incorporation of the Company. The first appellant promised to bring these items to the bank during his next visit.
The second appellant then instructed Kafaru Ajala to get the cheque no. 000422 for N50,000.00 receipted for under Credit Advice. Kafaru Ajala thereupon gave the cheque, No. 000422, to Patrick Ikechuku Olisa (P. W .5), the shorthand typist employed by the bank and dictated to him for taking down in writing the wording of the Credit Advice in the following words:
“Proceeds of cheque No. so and so N50,000”
or words to that effect. When as worded, the Credit Advice was passed on by Patrick Ikechuku Olisa to the second appellant, it was disapproved and torn off by the second appellant.
On the instructions of the second appellant, Patrick Ikechuku Olisa typed out another Credit Advice which reads:
“Proceeds of Deposit made up by you N50,000”
which is what appears in Exhibit P28 and was signed by both the second appellant and Kararu Ajala. The Credit Advice, Exhibit P28 was thereafter delivered to the first appellant as a receipt for the payment of the sum of N50,000.00 covered by cheque No. 000422 of 14th July, 1970.
Thereafter the cheque No. 000422 for N50,000.00 was passed on to the clerk in charge of clearing cheques, Rasaq Omotayo Ashiru (P.W4) who, on receiving it, registered the same in “the cheques for collection register” of the bank, Exhibit P4. Then contrary to normal practice and the usual course of business, instead of the cheque being treated as for collection by the passing of entry for the same by Rasaq Omotayo Ashiru, on the instructions of the second appellant, the entry in the register was cancelled by Rasaq Omotayo Ashiru and the cheque returned to Kafaru Ajala, who later handed it over to the second appellant. No action was ever taken to have the cheque cleared and the proceeds released. The cheque was subsequently said to be lost, apparently in the hands of the second appellant.
The first appellant, after having received the Credit Advice, requested that the bank should write a letter addressed to the Registrar of Insurance, Federal Ministry of Trade, certifying that the Nigerian States Assurance Corporation Limited had a deposit of the sum of N50,000.00 standing to its credit and in its favour.
The request by the first appellant was promptly complied with; and as a result, a letter, Exhibit P27, which was signed by both Kafaru Ajala and the second appellant was written, addressed and sent to, and later received by the Registrar of Insurance, Federal Ministry of Trade.
The second appellant then told Kafaru Ajala that the first appellant was expecting the sum of N100,000.00 to be telegraphically transferred through the United Bank for Africa Limited, Lagos, and that as soon as the money arrived, it would be split into two and paid into the Bank of the North Limited, Apapa branch, in such a way that N50,000.00 would be paid into a fixed deposit account and the balance of N50,000.00 into a current account – all to the credit and in favour of the Nigerian States Assurance Corporation Limited.
On 27th July, 1970, a letter, Exhibit P27 A, signed by the second appellant alone was also addressed to, and later received by the Registrar of Insurance, Ministry of Trade, Insurance Division, confirming the assurance already given in a letter addressed to the Registrar of Insurance by the Nigerian States Assurance Corporation Limited, that the deposit of N50,000.00 with the Bank of the North Limited, Apapa Branch, would never be withdrawn from the bank by the first appellant without the prior consent and approval of the Registrar of Insurance. The duplicate of this letter was handed over to, and received by the first appellant.
On receiving the letters, Exhibits P27 and P27A, certifying that the Nigerian States Assurance Corporation Limited had a deposit of N50,000.00 with the Bank of the North Limited, and that the sum would’ never be withdrawn from the bank by the first appellant without the prior knowledge and consent and approval of the Registrar of Insurance, the latter issued and granted to the Nigerian States Assurance Corporation Limited the Certificate of Registration as an Insurer dated 11th August, 1970, Exhibit P42, under the Insurance Companies Act 1961, authorising the company to carryon specified classes of insurance business. The Certificate of Registration, Exhibit P42, was handed over to and received by the first appellant, who also signed for it.
By its letter dated 6th October, 1970, Exhibit P43, written from its Head Office in Kano, the Bank of the North Limited informed the Registrar of Insurance, Federal Ministry of Trade that it was not correct that the Nigerian States Assurance Corporation Limited ever had at any time a deposit of the sum of N50,000.00 to its credit and in its favour with the Bank of the North Limited, and that the Bank of the North Limited had not at any time held to the credit and in favour of the Nigerian States Assurance Corporation Limited, any deposits in the sum of N50,000.00. By that letter, the Bank of the North Limited repudiated and deprecated the information and representation which its Apapa branch had communicated and held out to the Registrar of Insurance, Federal Ministry of Trade as contained in its letters, Exhibits P27 and P27 A.
The Registrar of Insurance therefore addressed to the first appellant his letter dated 12th October, 1970, Exhibit 2D2, calling for the original copies of the bank statements, cash books and such other documents of the Nigerian States Assurance Corporation Limited “as would establish that the company is operating within the margin of solvency as defined under Section 4 of the Insurance Companies Act, 1961.”
When the first appellant failed to comply with the request within stipulated time, the Registrar of Insurance, Federal Ministry of Trade, cancelled the Certificate of Insurance granted to the Nigerian States Assurance Corporation Limited; and the fact of the cancellation was published as Government Notice No. 1225.
The extra-judicial statements of the first appellant, Exhibits P15 and P16, which were made to the Police were also tendered and admitted as forming part of the case for the prosecution.
At the close of the case for the prosecution, learned counsel representing the first appellant made a submission that the prosecution had not made out a prima facie case against the first appellant to warrant his being called upon for his defence and therefore that the first appellant should be discharged.
The learned trial Judge, after having given consideration to the submissions made to him, upheld the submission in respect of the first count, and discharged both appellants, but overruled it in respect of the second and third counts, now the subject of this appeal, the particulars whereof are set out in the first part of this judgement. It should be noted that the charge against the appellant originally contained three counts.
As a result of the ruling, the first appellant refused to take any further part in the proceedings of the trial and rested his case on the submission of “no case”. The second appellant, unlike the first appellant, gave evidence in his defence.
Now before us, Chief Awolowo, learned counsel for the first appellant, in a well-thought out and well reasoned argument has submitted that the learned trial Judge was wrong in law in failing to uphold the submission that no prima facie case had been made out against the first appellant to have warranted his being called upon for his defence.
Learned counsel has contended that, in particular, the evidence of Kafaru Ajala who was the star witness for the prosecution, although he would not go the length of saying that he was an accomplice in so far as the case of the first appellant was concerned, was virtually destroyed and Kafaru Ajala himself discredited, and therefore, his testimony did nothing to advance the cause of the prosecution in that he said that the cheque for N50,000.00 issued by the first appellant was certified. But that evidence was contradicted by both Rasaq Omotayo Ashiru and Nelson Bello, (P.W.8), the representative of the United Bank for Africa Limited, Benin City, both of whom denied that the cheque concerned was certified as the United Bank for Africa Limited has stopped the issue of certified cheques since 1969.
Learned counsel then neatly pointed out that to establish the charge as laid in the second count successfully, it was the duty of the prosecution to prove that there was a positive agreement between the first and the second appellants to commit a felony, to wit, to induce the Registrar of Insurance to deliver the Certificate of Registration as an Insurer to the Nigerian States Assurance Corporation Limited of which the first appellant was Executive Director; and that such positive agreement was to do so by false pretences.
In respect of the third count, learned counsel contended that the three essential elements which the prosecution ought to have proven were:
(i) that there was an intent to defraud;
(ii) that the first appellant actually induced the Registrar of Insurance to deliver to the Nigerian States Assurance Corporation Limited the Certificate of Registration; and
(iii) that the inducement was by false pretences; and since the prosecution had failed to establish these elements on the evidence, submitted learned counsel, the learned trial Judge ought to have ruled that there was no case for the appellant to answer.
On the facts, learned counsel submitted that at the close of the case for the prosecution, the bulk of the facts established on the evidence was not in dispute, the element of controversy introduced by the evidence being when the United Bank for Africa cheque entered the scene a dispute arose as to whether or not the Nigerian States Assured Corporation Limited had at the material time a deposit of N50,000.00 with the Bank of the North Limited, Apapa branch.
On that issue, it was the submission of the learned counsel that the statement of the first appellant made it clear that the deposit he paid on behalf of the Nigerian States Assurance Corporation Limited was in cash for N50,000.00 and not cheque, but Kafaru Ajala and Rasaq Omotayo Ashiru had said that the only payment made in that respect was by cheque for N50,000.00 which he submitted, was not even treated properly by the bank.
Learned counsel then pointed out that on the evidence, the cheque for N50,000.00 dated 14th July, 1970, registered by Rasaq Omotayo Ashiru and the one for N50.00 only issued by the first appellant on 13th July, 1970, bear the same number 000422 and that they were both drawn on the United Bank for Africa, Benin City. Learned counsel then submitted that there was something of a mystery around the two cheques; and that such a mystery had nothing to do with the first appellant. It was entirely a matter for the bank because the first appellant was quite positive that his cheque No. 000422 of 13th July, 1970, had nothing whatsoever to do with the sum of N50,000.00 in cash which at the instructions of the Registrar of Insurance, Federal Ministry of Trade, he had paid to the Bank of the North Limited, Apapa Branch, as deposit in favour of the Nigerian States Assurance Corporation Limited.
Finally, it was the submission of learned counsel that the learned trial Judge ought to have discharged and acquitted the first appellant on the whole of the case because there was no iota of evidence of any agreement between the first and second appellants to commit any offence, let alone, a felony; that there was no evidence that the first appellant did anything to induce the Registrar of Insurance, Federal Ministry of Trade to deliver the Certificate of Registration to the Nigerian States Assurance Corporation Limited. On the contrary, contended learned counsel, on the evidence, the Registrar was induced by the letters, Exhibits P27, P27 A and P28, written on behalf of, and delivered by the Bank of the North Limited, Apapa Branch, to the Registrar of Insurance, Federal Ministry of Trade.
These are important submissions. They are impressive and require careful examination and consideration.
Before, however, embarking upon such an exercise, it is perhaps expedient here to observe that it is a well-known rule of criminal practice, that in a criminal trial at the close of the case for the prosecution, a submission of no prima facie case to answer made on behalf of an accused person postulates one of two things, or both of them at once.
Firstly, such a submission postulates that there has been throughout the trial no legally admissible evidence at all against the accused person on behalf of whom the submission has been made linking him in any way with the commission of the offence with which he has been charged, which would necessitate his being called upon for his defence. Secondly, as has been so eloquently submitted by Chief Awolowo, that whatever evidence there was which might have linked the accused person with the offence has been so discredited that no reasonable court can be called upon to act on it as establishing criminal guilt in the accused person concerned; and in the case of a trial by jury, that the case ought therefore to be withdrawn from the jury and ought not to go to them for a verdict. On the other hand, it is well settled that in the case of a trial by jury, no less than in a trial without a jury, however slight the evidence linking an accused person with the commission of the offence charged might be, the case ought to be allowed to go to the jury for their findings as judges of fact and their verdict.
Therefore, when a submission of no prima facie case is made on behalf of an accused person, the trial court is not thereby called upon at that stage to express any opinion on the evidence before it. The court is only called upon to take note and to rule accordingly that there is before the court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged. If the submission is based on discredited evidence, such discredit must be apparent on the face of the record. If such is not the case, then the submission is bound to fail.
Looking at the case of the prosecution, it cannot be said that there was no evidence linking the first appellant with the commission of the criminal offences charged. There was evidence that it was the first appellant, as Executive Director of the Nigerian States Assurance Corporation Limited, who on 31st January, 1969, had applied for, and successfully got the Nigerian States Assurance Corporation Limited registered as an Insurer by the Registrar of Insurance, who thereupon had called for a deposit of N50,000.00 as required by law to be made in any bank by the Nigerian States Assurance Corporation Limited, and thereafter, that the fact of such deposit having been made should be communicated to him to enable him to issue the Company with a Certificate of Registration, which would entitle the Nigerian States Assurance Corporation Limited to start business operation as an Insurer.
There was also evidence that the cheque No. 000422 of 14th July, 1970 for N50,000.00 was issued by the first appellant as the Executive Director of the Nigerian States Assurance Corporation Limited, leaving aside for the moment the controversy over whether the cheque was for N50,000.00 or N50.00. There was also evidence that the cheque, though registered on 14th July, 1970, in the books of the Bank of the North Limited, Apapa Branch was lost in the hands of the second appellant; and that the proceeds thereof had never been realised.
There was evidence that the credit advice was issued by the Bank of the North Limited, Apapa branch, to the first appellant on the strength of the cheque No. 000422 for N50,000.00. There was evidence that despite the fact that the cheque No. 000422 had not been cleared, but had in fact disappeared, the letters, Exhibits P27, P27 A and P28 had been written at the request of the first appellant to the Registrar of Insurance and that it was on the strength of the representations therein contained that the Registrar was induced to issue the Nigerian States Assurance Corporation Limited with a Certificate of Registration as an Insurer. There was no evidence that the first appellant had ever been issued with a fixed deposit receipt, which should have been issued to him, if he had in fact paid deposit of N50,000.00 by cash.
There was evidence also that the Registrar’s request that the first appellant should submit the books of the Nigerian States Assurance Corporation Limited, including bank statements to him was not complied with by the first appellant. Indeed, on the evidence, the first appellant could not comply with the request because there was no bank account actively operated upon by the Company in the Bank of the North Limited, Apapa Branch.
There was evidence also that the Certificate of Registration was later cancelled when it came to the knowledge of the Registrar of Insurance that the claim that the Nigerian States Assurance Corporation Limited had a deposit of N50,000.00 with the Bank of the North Limited was false.
Then there was the extra-judicial statement, Exhibit P8, made by the first appellant and written on the letter-headed paper of the Nigerian States Assurance Corporation Limited in which the first appellant confessed that he it was who had demanded a certificate of deposit for the Registrar of Insurance for the sum of N50,000.00 which he had deposited in cash with the Bank of the North Limited, Apapa branch, the certificate being required for use by him as evidence that he had in fact made such a deposit; that a certificate of deposit No. JNN/FOI/7/70 dated 15th July, 1970 was issued to him duly signed by the second appellant and the Accountant, Kafaru Ajala; that he it was who submitted the certificate of deposit together with the bank credit advice to the Registrar of Insurance; that he it was who wrote, giving the requisite guarantee that the Nigerian States Assurance Corporation Limited would not, without the knowledge and consent of the Registrar of Insurance, on any account, make withdrawal from the deposit with the bank, the letter conveying that assurance being numbered ED00396/70UEB; that he knew when the bank wrote on 27th July, 1970 confirming that undertaking; that the cheque No. 000422 of 13th July, 1970 for the sum of N50.00 had nothing whatsoever to do with the cash deposit of N50,000.00, the only available part of the former cheque being the stump or counterfoil, the original having disappeared.
Surely, the evidence such as it was, was sufficient at that stage to entitle the learned trial Judge not to express opinion one way or the other, but to overrule any submission of no case to answer; and to rule positively that a prima facie case had been made out by the prosecution, which at the very least, called for some explanation by the first appellant. To so rule did not in any way necessarily shift the burden of proof from the prosecution unto the first appellant; nor did it mean necessarily that the first appellant was guilty of the offences charged.
We do not think, therefore, that the decision of this court delivered by Irikefe, J.S.C. in Wahabi Olusanya Mumuni and 13 Ors vs. The State (1975) 6 s.c.79 cited to us by learned counsel is of any assistance to the first appellant in the case on appeal. There, the decision on the aspect of the case now under consideration was that there is absolutely no evidence against the prisoner at the end of the prosecution’s case, the court is under a legal obligation to discharge him at that stage, for to do otherwise, would be tantamount upon the prisoner the onus of establishing his innocence; and that a prisoner against whom there is some evidence calling for his explanation on oath shall not be placed in a more advantageous position at the end of trial solely on the ground that he had rested his case on his submission and declined to participate further in the proceedings. In such a case, the trial court may consider against the prisoner all the evidence produced at the trial, including any incriminating evidence subsequently given by a co-prisoner.
With both these propositions of law, we respectfully agree. In the circumstances we hold that the ground of appeal alleging that the learned trial Judge erred in the law in having ruled that the first appellant had a case to answer fails. It is rejected.
The learned trial Judge having overruled the submission of no case to answer, the trial proceeded. As already stated, the first appellant declined to participate in the proceedings any more, but the second appellant gave evidence on his own behalf.
In his defence, the second appellant’s evidence was that at the material time, he was the Manager in charge of the Bank of the North Limited, Apapa branch; that on 13th July, 1970, the first appellant came to see him in his Apapa office concerning the difficulties he was encountering in getting his insurance company licensed according to the law of the country; that he thereupon requested the first appellant to bring to him documents relating to the Insurance Company to enable him to see what help he could render him and that in the meantime, he would discuss the matter with the Accountant of the bank; that on 13th July; 1970, the first appellant opened a current account with the bank; that the first appellant came again to the bank on 14th July, 1970; that among the documents produced by the first appellant was one from Kano State Government indicating its willingness to take up to 100,000 shares in the Company; that he it was truly who introduced the first appellant to Kafaru Ajala (P.W.6); that at his office that day, the first appellant made out a cheque for N50,000.00 for the opening of a current account for the Nigerian States Assurance Corporation Limited which he, the second appellant, handed over to Kafaru Ajala; that in truth, he did tell Kafaru Ajala, that the first appellant would be having a telegraphic transfer from Kano and that as soon as the money arrived, the cheque for N50,000.00 would be passed on for collection. And as a result of his instructions, Kafaru Ajala kept the cheque clipped together with the form, Exhibit P2, which had already been completed for the opening of a current account for the Nigerian States Assurance Corporation Limited, and that the form was completed by the first appellant on 14th July, 1970.
It was the case of the second appellant in his defence, that it was at the request of the first appellant, after some discussion, that the letters, Exhibits P27 and P27 A, were written by him to the Registrar of Insurance, Federal Ministry of Trade; that he did so, even though he knew that the Nigerian States Assurance Corporation Limited had no deposit whatsoever with the Bank of the North Limited, Apapa branch, because he wanted to help the first appellant; and that he knew that Insurance Companies were required by law to show that they had a deposit of, or could account for the sum of N50,000.00 before they could be granted licence to operate as Insurers; and that by the letter, Exhibit P27, the Bank of the North Limited was committed to pay the sum of N50,000.00; that the bank was bound to pay to government i the money had been called for by the government; that he knew at the time no account was opened in favour of or for the Nigerian States Assurance Corporation Limited in the Bank of the North Limited, Apapa Branch, and that the company had no credit whatever with the bank.
It was also the evidence of the second appellant in his defence that when he committed the bank to guarantee the company the sum of N50,000.00 he had no authority from the Head Office of the Bank of the North Limited so to do; that the contents of the letter, Exhibit P27 was false to his knowledge; that he knew the Registrar of Insurance was going to act upon the representations contained in the said letter, and that was why it was so written; and that the purpose of the letter was to enable the Nigerian States Assurance Corporation to obtain a Certificate of Registration as an Insurer.
The evidence of the second appellant in the witness box had to be considered along with his extra-judicial statement, Exhibit P6, in which he had stated that the first appellant drew a cheque for N50,000.00 on the United Bank for Africa Limited, Benin City, and strongly requested him to write a letter to the Federal Ministry of Trade, Insurance Department, to confirm that the Nigerian States Assurance Corporation Limited had paid a deposit of N50,000.00 to the bank so as to enable him, the first appellant to obtain from the Registrar of Insurance a licence for the Nigerian States Assurance Corporation Limited; that he took action immediately as requested, but that as soon as the first appellant left his office, he received a telephone call from the first appellant advising him not to send the cheque for N50,000.00 to Benin City for collection as the Nigerian States Assurance Corporation Limited had not sufficient funds with the United Bank for Africa Limited, Benin City; and that up to the time of his interdiction from service the Nigerian States Assurance Corporation Limited had no funds standing to its credit to enable the cheque for N50,000 to be cleared.
It seems to us quite clear that as disclosed by his testimony, the second appellant had no defence whatsoever to the charges against him. He admitted quite frankly that the letters, Exhibits P27, P27 A and the Credit Advice, Exhibit P28, were written by him when he well knew that the Nigerian States Assurance Corporation Limited did not have any funds to its credit at the material time, but that he did what he did in order to help the Nigerian States Assurance Corporation Limited to obtain a Certificate of Registration as an Insurer. The information contained in the letters, Exhibits P27, P27 A was all false to his knowledge.
After a review of the evidence, the learned trial Judge held that the first and second appellants on about 14th July, 1970, agreed together to induce by false pretences the Registrar of Insurance to grant the Nigerian State Assurance Corporation Limited a Certificate of Registration as an Insurer, and that in fact, they did so by falsely pretending that the Nigerian States Assurance Corporation Limited had a credit balance of N50,000.00 in the Bank of the North Limited, and that by virtue of Section 7 of the Criminal Code, the first and second appellants were also jointly answerable for carrying into effect their conspiracy of inducement of the Registrar of Insurance to issue to the Nigerian States Assurance Corporation Limited the Certificate of Registration, Exhibit P42, dated 11th August, 1970.
Now, the main attack by the learned counsel for the first appellant was directed to the charge of conspiracy in that, as he submitted, there was no positive evidence of any agreement between the first and the second appellants. In support of this submission, learned counsel cited and relied on Adebiyi Mejekodunmi vs. The Queen 14 W A C A 64, in which it was held that the gist of the offence of conspiracy lies not in the doing of the act or the purpose for which the conspiracy is formed, but in the forming of the scheme or agreement between the parties; and that a person may be charged and convicted of conspiracy to commit a crime of which he could not, if he stood alone, be convicted.
That view of the West African Court of Appeal, was again re-echoed in Momo Malick vs. R. Lagos No. 119 of 1953 in which the court set aside a conviction for obtaining money by false pretences, but nevertheless, upheld the conviction for conspiring with others so to obtain money.
As was stated by Bruce J. in Rex vs. Plummer (1902) 2 K. B. at page 348, “the external or overt act of the crime is concert, by which mutual consent to a common purpose is exchanged. ”
Although we respectfully agree with the propositions of law by these authorities, we are of the view that in the circumstances of the case on appeal, it would be extremely difficult to sustain learned counsel’s contention that the prosecution had failed to establish conspiracy merely because there was no positive evidence of any agreement between the first and second appellants to commit the offence the subject of the charge of conspiracy.
Generally, it may be stated that where persons are charged with criminal conspiracy, it is usually required that the conspiracy as laid in the charge be proved; and that the persons charged be also proved to have been engaged in it. On the other hand, as it is not always easy to prove the actual agreement, courts usually consider it sufficient if it be established by evidence the circumstances from which the court would consider it safe and reasonable to infer or presume the conspiracy.
In R vs. Brisac 4 East 164,171 which was cited with approval by the House of Lords in England in Mulcahy vs. R. L. R. 3 H. L. 306, 317, it was laid down as a matter of law that in criminal practice, proof of the existence of conspiracy is generally a “matter of inference deduced from certain criminal acts of the parties concerned, done in pursuance of an apparent criminal purpose in common between them.” It is well recognised in law that conspiracy may exist between persons who have never seen each other or corresponded with each other: R. v. Parnell 14 Cox 508 at page 515. Indeed, in order to convict of conspiracy, it is not necessary that the accused persons concerned should have concocted the scheme, the subject of the charge, nor that they should have originated it. If a conspiracy is formed and a person joins it afterwards, he is equally guilty with the original conspirators. See R v. Simmonds (1969) 1 Q. B. 685.
In the course of his submissions, learned counsel for the first appellant logically had to concede that Kafaru Ajala was not an accomplice in regard to the case against the first appellant. In that respect, he would appear to have accepted, with some reservations as to the cheque for N50.00 the findings of the learned trial judge that the cheque No. 000422 for N50,000.00 issued by the first appellant, which was handed over to Kafaru Ajala by the second appellant was designed as a ruse to give semblance of regularity to the scheme already agreed upon by the first and second appellants. The purpose for that, according to the learned trial Judge, was to deceive Kafaru Ajala who would appear not to have been brought into the picture before the signing of the credit advice, Exhibit P28.
There is no doubt whatsoever that from all the circumstances of the case on appeal, the only reasonable and irresistible inference to be drawn from
the evidence must be that there was a definite agreement – a scheme – a contrivance if you like – between the first and the second appellants to induce the Registrar of Insurance to issue to the first appellant as Executive Director of the Nigerian States Assurance Corporation Limited a Certificate of Registration as an Insurer. It was in furtherance of that agreement that the second appellant accepted the cheque No. 000422 from the first appellant for N50,000.00 well knowing that the Nigerian States Assurance Corporation Limited did not have that much in the United Bank for Africa Limited, Benin City Branch, and subsequently passed it on to Rasaq Omotayo Ashiru, the cheque clearance clerk.
The second appellant acted in this way because, according to him, the first appellant had complained to him of the difficulty he was encountering about getting his Insurance Company licensed according to the law of the country; and because, again according to him, “I was ready to give him full credit for this cheque even before it was being cleared.” That surely accords with the findings of the learned trial Judge.
The part of the extra-judicial statement of the first appellant to the effect that on 14th July, 1970 the money he deposited was in cash was, in our view, rightly rejected by the learned trial Judge on the grounds, inter alia, that the first appellant’s explanation as to how the said sum was made up “was more of an imagination than reality, particularly, with regard to certain items”; and that “the mode in which the said sum was made up between the dates mentioned rendered the acquisition of such a sum by the first appellant most improbable. ”
The learned trial Judge also found that, on the evidence, if that statement were true, in keeping with banking practice, the first appellant would have been issued with a fixed deposit receipt; and that none was in fact issued to him. The finding of the learned trial Judge in this respect could hardly be faulted.
It is only necessary to observe that the counterfoil or stump of the so-called cheque No. 000422 of 13th July, 1970 cannot be regarded in law as the best evidence for the proof of the correctness of the contents of the actual cheque No. 000422 said to have been lost. Since the entries as regards the date and the amount expressed thereon were made by the first appellant himself in the presence and to the knowledge of no one else except himself, such entries cannot carry greater weight than any other statement made by the first appellant; and since the entries seek to charge someone else with a debt to the credit of the first appellant, the probability is that it is a false record.
It is a matter for surprise that even though the cheque No. 000422 of 14th July, 1970, was for N50,000.00 drawn in the United Bank for Africa Limited, Benin City Branch, its counterfoil or stump also in the possession of the first appellant could not be produced or traced. And yet, the only counterfoil or stump found bearing that number but different date is supposed to have been for only N50.00. That, of course, cannot be correct, although to the learned counsel for the first appellant, it is a mystery. In our view, there is nothing mysterious about it. It is highly probable that the figure of N50.00 and the date, 13th July, 1970, were deliberately inserted by the first appellant on the counterfoil or stump of the cheque for N50,000.00 after the cheque for N50,000.00 had been issued and delivered to the second appellant in preparation and in anticipation of the sort of situation which the first appellant now finds himself.
Apart from the reference to N50,000.00 being the payment made in cash by the first appellant to the Bank of the North Limited, Apapa Branch, it seems obvious that the extra-judicial statement, Exhibit P8, by the first appellant admits without reservations that it was at his request that the credit advice for N50,000.00, Exhibit P28, itself a false statement was issued in favour of the Nigerian States Assurance Corporation Limited. The certificate, according to the statement, was intended for the Registrar of Insurance in the Federal Ministry of Trade as evidence that a deposit of that amount had in fact been made by the first appellant. It was received by the Registrar in the Federal Ministry of Trade on 22nd July, 1970.
It was also at the request of the first appellant that the Certificate of Deposit, Exhibit P27 intended for, and which was finally delivered to the Registrar of Insurance as evidence of the deposit made, was issued. He it was who submitted to the Registrar of Insurance, the Certificate of Deposit, that Bank Credit Advice and also gave guarantee to the Registrar that nothing would be withdrawn from the deposit account with the Bank of the North Limited, Apapa Branch. It was also at his request that the guarantee given by the bank, Exhibit P27 A was given to the Registrar of Insurance , Federal Ministry of Trade. It was as a result of all these documents that the Certificate of Registration, Exhibit P42 was issued and delivered to the first appellant, who himself received and signed for it.
It is clear to us that on such evidence, considered along with the evidence given by the second appellant, as well as the evidence given by Kafaru Ajala and Rasaq Omotayo Ashiru, Moses Olaniran Akinsanya, the Assistant Registrar of Insurance, Insurance Division, Federal Ministry of Trade, and Nelson Bello of the United Bank for Africa Limited, Benin City Branch, there can be no doubt whatsoever that the conclusion reached by the learned trial Judge was correct that the first appellant had conspired with the second appellant to induce by false pretences the Registrar of Insurance in the Federal Ministry of Trade to deliver the Certificate of Registration, Exhibit P42, to the Nigerian States Assurance Corporation Limited, and did so in fact induce the Registrar of Insurance aforesaid, who by reason of the false pretences did deliver the Certificate of Registration, Exhibit P42, to the first appellant as the Executive Director of the Nigerian States Assurance Corporation Limited.
In view of the conclusion we have thus reached, the grounds urged on behalf of the first and second appellants that the learned trial Judge erred in law and on the facts in holding that the appellants were guilty of the offences charged in counts two and three must fail. They are accordingly rejected.
We do not think it is necessary to go into details on the issue of the jurisdiction of the High Court of Lagos State to have tried the appellants. That ground was not pressed by learned counsel for the appellants, who had conceded that the High Court has virtually concurrent jurisdiction with the Federal Revenue Court in these matters.
We consider it our duty, however, to deal with the issue since it has properly been raised and argued. In that respect, therefore, suffice it to say that we accept the submissions of Mr Ejiwunmi, learned Deputy Director of Public Prosecutions, Lagos State, to whom we are indebted for the clarity with which he made his submissions.
There can be no question of the Federal Revenue Court exercising jurisdiction over a case of the kind under consideration. For, although the Company concerned in the case in hand was duly incorporated as a Limited Liability Company, there was no evidence before the High Court that it had ever started business operations as an Insurer. Indeed, what resulted in the charges against the appellants was a process whereby efforts were being made, albeit unlawfully, to get the Company to obtain registration which would have enabled it to start business as an Insurer.
The relevant sections of the Federal Revenue Court Decree No. 13 of 1973 to which our attention has been drawn are Sections 7(2) and (3) and Section 8(i) the provisions whereof are as follows:- .
“7 (2) The Federal Revenue Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters arising out of or connected with any of the matters in respect of which jurisdiction is conferred by subsection (i) of this section.
“7 (3) The jurisdiction conferred under the foregoing subsection in respect of criminal causes and matters shall without prejudice to the generality of that subsection and subject to section 63(3) below include original jurisdiction in respect of offences under the provisions of the Criminal Code being offences in relation to which proceedings may be initiated at the instance of the Attorney-General of the Federation.
“8 (i) In so far as jurisdiction is conferred upon the Federal Revenue Court in respect of the causes or matters mentioned in the foregoing provisions of this Part the High Court or any other court of a State shall, to the extent that jurisdiction is so conferred upon the Federal Revenue Court, cease to have jurisdiction in relation to such causes or matters.”
In terms of these provisions, jurisdiction is conferred on the Federal Revenue Court in respect of criminal causes or matters arising out of or connected with the revenue of the government of the Federation; Taxation of Companies; Customs and Excise; Banking; Foreign Exchange; Currency; other Fiscal Measures; the Operation of the Companies Decree; Copyright, Patents, Designs, Trade Works, etc. and Admiralty Jurisdiction.
The present charges against the appellants do not fall within the categories enumerated in the Federal Revenue Decree. The provisions of Section 7(3) relate to matters the proceedings in which are to be initiated at the instance of the Attorney-General of the Federation. In this respect, we feel content to adopt and adapt the decision in Queen vs. Azua. Owoh & Others (1962) 1 All N. L. R. 659 to the present charges of which the first and second appellants have been convicted, and to hold that they are not cognisable by the Federal Revenue Court.
In that case it was held:
(1) that the sections of the Criminal Code creating the offences of Conspiracy to Steal, Conspiracy to Defraud, Stealing, Forgery, and Uttering, are not laws with respect to any matter in the Exclusive Legislative List in the Schedule to the Constitution of the Federation; and that they have effect as if they had been enacted as Regional (State) Laws, and not as Laws of the Federation;
(2) that in respect of Regional (State) offences, the Director of Public Prosecutions of the Federation has no power to institute or undertake prosecutions before Regional (State) Courts unless such powers had been previously delegated to him in accordance .with the provisions of the Regional (State) Constitution in that regard; and
(3) that since the power to institute and undertake prosecutions for offences against the laws of the Region (State) had not been delegated to the Director of Public Prosecutions of the Federation under the provisions of the Constitution of the Region (State); and since the Director of Public Prosecutions of the Federation had not been designated under Section 341 of the Criminal Procedure Act as the person authorised to sign an Information therefore, no information had properly been filed before the trial court since the same was signed by the Director of Public Prosecutions of the Federation and that the trial and conviction were therefore a nullity. .
The substance of this decision is that unless and until the Director of Public Prosecutions or for that matter the Attorney-General of the Federation has been designated under Section 341 of the Criminal Procedure Law of a State as the proper authority to file information for the prosecution of offenders to be charged with the offences of the kind under consideration in this appeal, the appropriate court seised with the jurisdiction for the trials of such cases must be the State High Court.
In these premises we are satisfied and hold that the High Court of Lagos State had full jurisdiction and was competent to have tried the appellants of the offences with which they were charged, tried and convicted.
In all the circumstance of this case, and after having given careful consideration to the submissions addressed to us on behalf of the appellants, we have reached the inflexible conclusion that the appeal of the first and second appellants must fail. It is accordingly dismissed. The conviction and sentences are affirmed.
Other Citation: (1977) LCN/1896(SC)
