J.E.A. Iyorliam Vs The State (1973)
LawGlobal-Hub Lead Judgment Report
ELIAS, CJN.
In Suit No. JD/46C/1972, the accused (herein appellant) was charged and convicted in the High Court, Jos, on the following two out of four charges:
“(1) That you Japan Ahangba Iyorliam on or about the 13th day of October, 1971 at Jos within the Benue-Plateau Judicial Division cheated by personation, by knowingly substituting one unknown person for a certain Innocent Chiekezi Ekwerike to the Probate Clerk as the grantee of a letter of administration, and that you thereby committed an offence under Section 321 of the Penal Code, punishable under Section 324 of the same Code.
(2) That you Japan Esaias Ahangba Iyorliam sometime between October and November, 1971 at Jos within the Benue – Plateau Judicial Division cheated the Probate Clerk. Judicial Department, Jos by dishonestly inducing him to deliver to a certain unknown person, Letters of Administration belonging to one Innocent Chiekezi Ekwerike and that you thereby committed an offence punishable under Section 325 of the Penal Code.”
The prosecution case is that the accused was consulted by a Mr. Innocent Chiekezi Ekwerike who was a brother of a Mr. Ethelbert Anagaraku Ekwerike who died intestate at Gboko in 1966 leaving, inter alia, a balance of £554:0:3d. in his account with Barclays Bank Limited, Makurdi. When Innocent Ekwerike attempted to use his brother’s passbook to claim the money from Barclays Bank Limited, he was advised to obtain Letters of Administration from the Probate Registry in Jos on the production of which alone, he would be able to collect the money.
He accordingly applied to the Probate Registry where Mr. J.E.A. Iyorliam was Probate Registrar. Soon thereafter, Mr. Iyorliam was transferred to the Chief Magistrate’s Court, but the Letters of Administration had not up till then been issued to Innocent Ekwerike. Iyorliam nevertheless brought an unknown person to a Mr. Alfred Gaji Hassan who took over from him as Probate Registrar and introduced the latter to him as Innocent Ekwerike to whom he should hand-over the Letters of Administration personally as soon as these were ready for collection, at the same time instructing him never to post the letters.
The Letters of Administration were in due course delivered to this unknown man who had been introduced to Mr. Hassan by Mr. Iyorliam, although Mr. Hassan would appear to have handed over the letters to the unknown man both on the strength of the introduction by Mr. Iyorliam, and also as a result of a certain letter evidencing the signature of the unknown man. Mr. Innocent Ekwerike then wrote a letter on November 30, 1971 asking for the grant of Letters of Administration in respect of which he had paid an estate fee of £39:14/- and, in consequence of an exchange of correspondence between him and Mr. Hassan, the Probate Registrar, he finally called at the Registry on January 14, 1972, when he was informed that someone else had collected the Letters of Administration. It would seem that in the meantime, the Letters of Administration had been presented to the Barclays Bank Limited, Makurdi, for the purpose of withdrawing the balance of £554:0:3d. from the account of Mr. E.A. Ekwerike (deceased), but that Barclays Bank had insisted on some evidence of identity of the claimant.
Mr. Iyorliam would seem to have been of some service to this unknown man by preparing and presenting an affidavit from the Chief Magistrate’s Court sworn to by him vouching for the identity of the claimant, on the strength of which the money was paid to the claimant. This, Mr. Innocent Ekwerike found explained to him when he called at the Barclays bank and was shown by the Bank manager both the Letters of Administration and the affidavit sworn to in support of it in a court at Jos; the affidavit was to the effect that the passbook had been lost, and the signature on the stamp of the affidavit was that of Mr. J.E.A. Iyorliam, an officer of the High Court of Justice, Jos. It is interesting to note that the Bank Manager identified the person who claimed the money as Mr. Iyorliam himself.
On these facts, Kawu, Ag. J., as he then was, discharged the accused from the first and third charges against him but convicted him on the second and the third alternative charges. The present appeal has been brought against the conviction on both charges on the following six grounds;
“(1) That the learned trial Judge misdirected himself generally on the principles of law relating to the onus of proof in criminal cases, and this misdirection led to failure of justice.
(2) That the learned trial Judge erred in law in convicting the appellant of the offences of cheating by personation (S. 324 P.C.) and cheating under S. 325 P.C. having earlier acquitted him of the offence of abetment of cheating (S. 85) when the evidence in respect of all the charges was the same
(3) That the lower court erred in law in convicting the appellant of the offences charged, on the uncorroborated evidence of P.W.3, namely, Alfred Gaji Hassan, inter alia, without the requisite warning, and this occasioned miscarriage of justice.
(4) That the learned trial Judge erred in law in convicting the appellant of the offences of cheating by personation, S. 324 P.C., and cheating, S. 325 P.C., when the onus of proof laid on the prosecution by law was not discharged.
(5) That the judgment is altogether unwarranted, unreasonable and cannot be supported having regard to the evidence.
(6) That the learned trial Judge erred in law in convicting the appellant of the offences charged when an essential element of the said offences, namely, deception on the part of the accused, was not proved conclusively and this error occasioned miscarriage of justice.”
Mr. G. Brown-Peterside, learned counsel for the appellant, announced his intention to argue grounds 1 and 3 together first, but it soon became clear that his intention was to argue all the grounds together. His first submission was that the most important element of the first offence of which the appellant was convicted is that he should have “knowingly” introduced the unknown man to Mr. Hassan as Mr. Innocent Ekwerike. It was his submission that Hassan, the Probate Clerk, was not deceived by the appellant into delivering the Letters of Administration to the unknown person as alleged in the two charges under which he was convicted, and that the deliverer of the Letters of Administration took some other factors into consideration in acting as he did, especially the fact that Mr. Hassan had in evidence stated as follows:
“The man appeared before me twice. I had no discussion with him on the day he first came to me. He did not stay long. He came again on 23.10.71. The signature in Exh. 4 is similar to the one on the correspondence between our office and the applicant from Owerri. Apart from the accused’s introduction, the signature on Exh. 4 helped to convince me the man introduced by accused was the right person.”
Learned counsel also submitted that there was the possibility of a mistaken identity and that the appellant might have confused the unknown man with Mr. Innocent Ekwerike. He suggested this on the basis of the following piece of evidence by Mr. Hassan:
“At the Motor Park, I asked the man identified to me by the accused as Innocent Ekwerike why he did not come to the registry. The man told me he did not know me as Registrar of the Chief Magistrate’s Court, but know the accused only.”
We, however, consider it highly improbable that Mr. Hassan acted simply on the basis of the signature on Exhibit 4, because there is uncontroverted evidence that Mr. Hassan acted throughout under the shadow and on the directions of his predecessor in office who Mr. Iyorliam was. Mr. Iyorliam continued to point out to his successor that although he had been transferred to the Chief Magistrate’s Court, Jos, he was still very much in charge of the probate Registrar’s Office into which a junior man had stepped to act. We also do not accept the submission that the appellant might have mistaken the fake man for Mr. Innocent Ekwerike, because of the very active part he played, not only in procuring that the Letters of Administration were granted to this unknown and probably non-existent person, but also in ensuring the collection of the money with the help of an affidavit to which his signature was appended. We note that the offence of Cheating by Personation is peculiar to the Penal Code of the Northern State, and that there is probably no equivalent offence under the Criminal Code in the Southern States of the Federation. Section 321 of the Penal Code provides as follows:
“A Person is said to cheat by personation if he cheats by pretending to be some other person or by knowingly substituting one person for another or representing that he or any other person is a person other than he or such other person really is.”
Now, in so far as the first charge on which the appellant was convicted is concerned, the significant feature of the offence is that it is committed, not merely by the offender pretending to be what he is not, but also by substituting one person for another in his act of pretence. It is also to be noted that, according to the explanation attached to Section 321, the offence is committed whether the individual personated is a real or imaginary person. There is, of course, the basic question as to whether Letters of Administration can constitute ‘property’ for the purposes of the offence of Cheating. We find some support in the following passage of Ratanlal and Dhirajlal’s “The Law of Crimes”, 22nd Edition, at p. 1116, to which our attention was called by Mr. Ogebe, Ag. Deputy Director of Public Prosecution for the Benue – Plateau State:
“Whether an article is or is not ‘property’ does not depend upon its possessing a money or market value. If it has some special value for the person or persons concerned, it is ‘property’, even though its value cannot be measured in money. A health certificate is ‘property’ within the meaning of this section. So is a certificate of having passed an examination, or a ticket entitling its holder to enter an examination room, or a railway ticket, or a warrant, or a motor driving licence.”
This passage is part of the commentary of the learned authors on the offence of Cheating under Section 415 of the Indian Penal Code, which is the same as Section 320 of the Penal Code, Cap. 89 of the 1963 Edition of the Laws of the Northern States; Section 416 which deals with the offence of Cheating by Personation is the same as Section 321 of the Penal Code of the Northern States. We are accordingly of the view that the conviction on the ground of cheating by personation is well -founded. When, however, we turn to the second charge, we are in doubt as to whether the appellant could properly be convicted of this. We say this because his charge was framed in the alternative as follows: “That you Japan Esaias Ahangba Iyorliam sometime between October to November 1971 at Jos within the Benue-Plateau Judicial Division cheated a certain Innocent Chiekezi Ekwerike by dishonestly inducing the Probate Clerk in the Judicial Department, Jos, to deliver to an unknown person the Letters of Administration belonging to the said Innocent Chiekezi Ekwerike and that you thereby committed an offence punishable under Section 325 of the Penal Code.” We take note of the fact that the learned trial Judge himself, in acquitting and discharging the appellant on this charge, observed as follows:-
“This charge, as it was framed, and on the evidence adduced, does not make sense. Cheating is defined under S. 320 of the Penal Code, and the gist of the offence is deceit which induces the victim of the offence to deliver property to some person or which deceit induces the victim to do, or omit to do anything which he would not do, or omit to do if he were not so deceived. There is no evidence before me that during the period mentioned in the charge, the accused deceived Innocent Chiekezi Ekwerike, that is 4 P.W., which deception induced Ekwerike to do or omit to do anything which he would not have done if he were not so deceived. This head of charge has not been proved, and it must fail.” But, curiously enough, the learned trial Judge then proceeded to consider the alternative charge which we have reproduced earlier at the beginning of this judgment and somewhat too quickly found the appellant guilty under that charge, saying that he was “of the view that the accused must have intended to cause a wrongful gain to the other unknown man, or cause wrongful loss to the Probate Clerk.”
We think that the learned trial Judge is clearly in error here, because the “wrongful loss” was not the Probate Clerk but to Innocent Chiekezi Ekwerike so far as there was any; and this has been adequately covered by his conviction under Section 321 of the Penal Code. In any case, “the other unknown man” would be no other than the one already envisaged in the first charge of which the appellant has been convicted.
PAGE| 6 We accordingly uphold the verdict of Kawu, Ag. J., in convicting the appellant of the offence of cheating by personation under Section 321 of the Penal Code, including his sentence of 18 months’ imprisonment reckoning from the date of the conviction on December 22, 1972.
We acquit and discharge the appellant on the second charge.
Other Citation: (1973) LCN/1653(SC)
