Kayode Idowu V. The State (1998)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

In the High Court holden at Ilesa, Oyo State, the appellant along with one other person were charged with the offences of:-

(1) conspiracy to commit a felony, contrary to and punishable under section 516 of the Criminal Code, Cap. 30, Laws of Oyo State of Nigeria 1978;

(2) forgery, contrary to section 465 and punishable under section 467 of the Criminal Code Cap. 30, Laws of Oyo State of Nigeria 1978; and

(3) stealing, contrary to and punishable under section 390(9) of the Criminal Code, Cap. 30, Laws of Oyo State of Nigeria 1978.

The particulars of offence in all the three counts of charge stated that the offences were committed

“at different times between the months of May, 1988 and January, 1990. ”

They pleaded not guilty. I will have something to say on these dates later on in the judgment.

At the trial, three witnesses testified for the prosecution.

The two accused persons each testified in his own defence but called no witnesses.

The case for the prosecution was simply that the appellant was employed as an accounts clerk in September, 1987, by the complainant, S. A. Oguntimehin Enterprises Limited, a fish distributor. As an accounts clerk the appellant coordinated all the accounts in the company and checked the cash sheets (Exhibit 2) of the cashier. The cashier happened to be the other accused person. It was also part of the duty of the appellant to deposit money collected by the cashier in the bank every Monday. This he did together with the Managing Director of the company, Mr Samuel Adegbite Oguntimehin who testified as P.W.1 at the trial. The appellant left the services of the company in August, 1989. Sometime in 1990 the Managing Director of the Company (P.W.1) said he observed some alterations in the cash sheets kept and maintained by the other accused person. He raised an alarm. The auditors, a firm of chartered accountants, Z. O. Ososanya & Co. were called in. They submitted a report (Exhibit A). They discovered that N117, 870.50 money of the complainant/company were missing. A complaint was lodged with the police and the appellant and his co-accused were arrested. The appellant in the course of police investigation made statements, Exhibits F – FA. to the police. Some items were also recovered from the house of the appellant as per Exhibil H in the proceedings.

The appellant in his statements as well as evidence before the court denied that he conspired with the co-accused or anyone at all to commit forgery or to steal the sum of N 117,870.50 as alleged.

The learned trial Judge in a reserved judgment found the appellant and the co-accused guilty as charged and sentenced them accordingly.

Aggrieved by the decision of the trial High Court, the appellant appealed to the Court of Appeal holden al Ibadan. Only the appellant filed his brief of argument wherein seven issues were formulated for determination by that court. In a considered judgment the Court of Appeal unanimously dismissed the appeal.

Still aggrieved by the decision of the Court of Appeal, the appellant has further appealed to this court. Parties filed and exchanged briefs of argument as provided by the rules of court. These were adopted and relied upon at the hearing of the appeal. Additional oral submissions were also made by the parties.

In the appellant’s brief Chief Akpofure, learned counsel for the appellant submitted five issues as arising for determination in the appeal. But the most important single issue which in my view needs to be considered is issue (1) which reads:-

“Whether the Justices of the Court of Appeal were right in law when they agreed with the learned trial Judge holding that the prosecution has proved the appellant’s guilt beyond reasonable doubt.”

The learned trial Judge in his judgment on page 46 of the record said:-

“Before embarking upon the appraisal of the evidence proffered in this case in respect of each count with which the accused are charged and for purposes of clarity it will be better to set out at this stage the primary facts which are not in dispute. For the purposes of this case. 1st accused was employed in the establishment of S.A. Oguntimehin Enterprises Ltd. as a cashier. He is responsible for the writing out of sales invoice and collection of money from customers. He also prepares the cash sheets. The 2nd accused (meaning appellant herein) is employed in the same establishment as an accounts clerk. He co-ordinated all the accounts in the office and checks the cash sheets of the 1st accused as an internal auditor. In other words the 2nd accused’s (appellant) duty prima facie is to uncover any wrong entry or addition made by the 1st accused.”

Later on in the judgment he said on page 49:-

“The question that comes to mind is – Can the various fraudulent alterations be successful if the 2ndaccused(appellant) had performed according to expectation …. Has the 2nd accused (appellant) not acquiesced in this fraudulent alterations”

The judgment concluded on page 51 of the record as follows:-

“Exhibit A shows clearly 15 instance of alterations …. I hold the view that acquiescence of the 2nd accused (appellant) in the defrauding exercise of the 1st accused in this case amounts to conspiracy. Their common end is to defraud the company and misappropriate its fund. I am satisfied that the offence of conspiracy levelled against the two accused persons have been proved beyond reasonable doubt.

As for stealing, it is conceded that 2nd accused (appellant) does not handle cash …

Having regard to the surrounding circumstances of this case, one can draw the inference that the property owned by the 2nd accused (appellant) is over and above his income. The irresistible inference is that the 2nd accused (appellant) was sharing the fraudulent money with the 1st accused …

In the circumstances, I find the two accused guilty as charged and I convict them for the three offences accordingly.”

It is clear to me from the excerpts of the judgment above that the appellant was convicted for the offences of conspiracy and forgery, not because there was evidence of conspiracy but because he failed or was unable to detect the alleged 15 instances of alterations set out in Exhibit A (auditor’s report). He was also convicted of stealing not because there was evidence that he stole, and not because the 1st accused said that they shared it together with the appellant but simply because the “property owned by the appellant is over and above his income.” Could the High Court have been right in its conclusions My answer is certainly in the negative. A finding of fact must be based on credible evidence or reasonable inference drawn from facts presented by the prosecution in the case. In a criminal trial, it is unsafe to base a conviction on speculative findings based not on what the appellant did but on what he ought to have done (see Amadi v. The State 1993 8 NWLR (Pt.314) 644). In a charge of forgery, an essential ingredient to be proved is that the accused person forged the documents in question. In the instant case, the trial judge was clearly in error when he proceeded to convict the appellant without such evidence (see Alake v. The State (1992) 9 NWLR (Pt.26S) 260.

I have read the record and the exhibits in this case. In the first place it is clear that the 15 “alterations”, were “alterations” of the cash balances only in the cash sheets at the close of business on the respective 15 days. In other words all other cash entries in the cash sheets are correct except the cash balances for the 15 days respectively. One is even not sure whether these can in fact be called “alterations” of any thing because they represent direct entries of wrong or incorrect cash balance figures as they appeared on the cash sheets. All that the auditors succeeded in doing I think was that the cash balances for the respective dates were wrong or incorrect, being less than the actual balances when properly added together.

Secondly, it is clear from the findings of the High Court above, that it was the 1st accused or co-accused of the appellant who carried out the alterations or entered the incorrect cash balances as a cashier, single handedly. That much was admitted by the 1st accused himself. Merely failing to detect the alterations or wrong arithmetical entries of the cash balances in the cash sheets by the appellant cannot in my view be a proper ground for finding him guilty of the offence of forgery along with the co-accused. This would largely have depended on the kind of tools or materials or instruments made available to the appellant by the company for detecting such wrong arithmetical mistakes or entries and of which there was no evidence here. In addition there was no evidence of when the “alterations”, if any, were actually made. It was only presumed that they were made on each day after the close of business. The Managing Director himself testifying as P.W.1 said he only observed some alterations in the cash sheets sometime in 1990. Exhibit A shows that the first alteration was carried out on 4/5/88. The appellant had left the company far back in August, 1989. The alterations were thus never detected during the employment of the appellant. One therefore finds it hard to understand why and how the appellant could have been held responsible even for alterations or wrong entries made up to and including 20/1/90 after he had left the company.

As regards conviction for the charge of stealing which as shown above was based merely on the finding by the High Court that “the property owned by the appellant is over and above his income” and that “he therefore shared the money with the 1st accused or co-accused” is clearly untenable. I am not aware of any law that says people who owned properly above their incomes are necessarily suspects who must have got their monies or properties from particular unauthorised or illegal sources. Even if the appellant owned properties above his income. The conclusion that it was his former employer’s money that he misappropriated is to me unsupportable. What was required was evidence of how the appellant acquired each of his properties as well as evidence of all other jobs or works that he did apart from his employment with the company complainant herein. There was no such evidence in this case. Again, I cannot also understand how the appellant could have been found guilty of stealing monies which were said to have been stolen by the co-accused up to and including 20/1/90 after the appellant had left the company in August, 1989.

I must add that the chartered accountant. Mr. Adeleke who tendered the auditor’s report (Exhibit A) never explained in his evidence how he arrived at the gross sum of N117,870.50 allegedly stolen to allow for cross-examination. Neither did he explain how he came to the conclusion that the various cash balances were forged or altered, talkless of who forged or altered them. The entries which had not been the subject of oral evidence or examination in court. were not in evidence and the defect had not been cured by an examination of the cash sheets by the chartered accountant (P. W.2) outside the court and behind the appellant (see Duruminiya v Commissioner of Police (1961) NNLR 70; R v. Wilcox (1961) 1All NLR 631;( 1961) 2 SCNLR 296.

It must have been clear by now that the three charges against the appellant are necessarily fundamentally and fatally defective as well. He was being charged with offences committed both during his employment and after his employment had ceased with the company and he was convicted as such. He could only have been properly charged and convicted of offences committed during his tenure. That was not the case!

Further, the 15 “alterations” or “forgeries” occurred on different dates, months and even years. Each alteration or forgery should have been a subject of a separate count or charge and proved separately. That was not done! This is intolerable. The counts are therefore bad for duplicity to say the least. (See R. v. Aniemeke (1961) 1 All NLR 43; (1961) 1 SCNLR 75:R. v. Achie 12 WACA 209). As I said above ,here was no iota of evidence that the appellant made any false entry in the cash sheets. I hasten to say that the wrong entries of cash balances made in this case are properly instances of fraudulent false accounting or falsification of account for short, which are not in all cases forgeries. See In Re Arton (No.2)( 1896) 1 QB. 509 at 517). I must also add that proof of fraudulent false accounting does not necessarily mean that the suspect is even the thief (See R. v. Quan (1944) 10 WACA 14.

From the totality of what I have been saying above, it is clear to me that the prosecution had failed totally to prove its case against the appellant beyond reasonable doubt. The High Court was therefore completely wrong to have convicted the appellant as charged. The Court of Appeal also erred in confirming the judgment of the High Court.

The appeal therefore succeeds sand it is hereby allowed. The judgments of the lower courts are set aside. The appellant is discharged and acquitted.

SC.175/1997