Michael Alake V. The State (1992)
LawGlobal-Hub Lead Judgment Report
L. KUTIGI, J.S.C.
The appellant along with three others namely Ganiyu Oke. Visa Sadiq and Adewunmi Adeyinka as 2nd, 3rd and 4th accused persons respectively, faced an 18 count information at the Lagos High Court. Before the commencement of trial however, the 3rd accused person, Yisa Sadiq jumped bail and disappeared.
The prosecution therefore decided to withdraw against him.The court made no order one way or the other and the charges were not amended either. Thereafter the matter proceeded to trial against the appellant, the 2nd and the 4th accused persons only since we have no provision in our laws for trial of an accused in absentia.
The 18 count information can easily be grouped into four heads thus –
(i) Inducing delivery of money by false pretences contrary to Section 419 of the Criminal Code. This covered counts 1, 2 and 3.
(ii) Forgery contrary to section 467 (2) (g) of the Criminal Code which is covered by counts 4, 6, 8, 10, 12, and 14.
(iii) Uttering contrary to section 468 of the Criminal Code. This covered counts 5, 7, 9, 11, 13 and 15.
(iv) Stealing contrary to section 390(a) of the Criminal Code which relates to counts 16, 17 and 18.
At the trial the prosecution called a total of seven witnesses to prove its case while each of the accused persons testified in his own defence but called no witnesses. The case for the prosecution was simply that the accused persons who were all employees of the National Oil and Chemical Company (hereinafter referred to as “the company”), committed the alleged offences between the months of October and December 1983, here to Lagos. Essentially the bane of the matter involved three cheques purportedly issued by the company. They are Exhibits F, and H to the proceedings. The 1st accused/appellant was the Cash and Bank Supervisor of the company. His duties included the issuance of blank cheques for payment of bills. The 2nd accused was a batching clerk under the Cash and Bank Division of the company. The 4th accused was an Accounts Clerk and particularly a cheque writer, also in the same Cash and Bank Division of the company.
The accused persons denied the roles the prosecution said they played in the commission of the offences both in their statements to the police and in oral evidence before the court.
In a reserved judgment, the learned trial Judge, Hunponu-Wusu, J., discharged and acquitted the 2nd accused person. The 1st and 4th accused persons were however found guilty on all counts and convicted as charged. They were sentenced to various terms of imprisonment for each count ranging for 3 years to 14 years. The sentences were however to run concurrently.
Dissatisfied with the judgment of the High Court, both the 1st and 4th accused persons appealed on a number of grounds to the Court of Appeal, Lagos. The appeals were against convictions as well as the sentences.
The Court of Appeal by a majority decision (Niki Tobi and Kalgo, J.J.C.A., Ademola J.C.A. dissenting) dismissed the appellants’ appeals against convictions but allowed the appeals against the sentences. The sentences on forgery and uttering were each reduced from 14 years to 10 years. Consequently each of the appellants was to serve a sentence of 10 years since all the sentences were to run concurrently. The 1st appellant, who will from now on be referred to as “the appellant”, has further appealed to this Court.
Both sides filed briefs of argument which were adopted at the hearing of the appeal. Oral submissions were also made in expatiation of the briefs.
In his brief of argument Professor Kasunmu, learned Senior Counsel for the appellant formulated the following issues for determination –
“(1) Was the Court of Appeal right in holding that Exhibits F, G and H (to wit, the 3 cheques) are forgeries and in also confirming the conviction of the 1st Accused for forgery
(2) Can the conviction for inducing delivery of money by false pretences stand (a) if the charge of forgery of the cheques fail and (b) having regard to the particulars of the charges and what in fact led the paying Banks to effect payment
(3) Bearing in mind that the 1st Accused was not charged with conspiracy and that from the evidence before the Court it was not shown that it was he who uttered the alleged forged cheques and who also collected the sums payable on those cheques, can he ( 1st Accused) be convicted for uttering and stealing”
In the appellant’s brief it was submitted that there was no evidence that the cheques, Exhibits F, G & H, were forged by the appellant. That there was the evidence of P.W.7 (Samuel Odubiyi) in particular to the effect that appellant’s signature was not on any of the three cheques. It was also submitted that neither Adegoke Ajadi nor Cavern Lawsweerde whose signatures were alleged to have been forged on the cheques denied signing the cheques. Adegoke Ajadi testified as P.W.1 at the trial but Exhibit F. G. & H were never shown to him to deny his signature. Cavern Lawsweerde was never called by the prosecution throughout the trial. It was further submitted that none of the prosecution witnesses including the handwriting analyst (P.W.6) stated anywhere to the evidence that the appellant signed any of the cheques. That the learned trial Judge was wrong therefore to have inferred that the signatures on the cheques, Exhs. F, G, & H, were forged by the appellant. It was contended that the best evidence to establish that Ajadi and Lawsweerde did not sign the cheques was to call them to deny their signature on these documents, and that while it is generally correct to say that the prosecution has a discretion as to who to call as a witness, it is equally clear that where a vital and or material witness is not called, such a failure would be fatal to the case of the prosecution as in this case. That the prosecution failed to call the two witnesses because the signatures on the cheques were in fact genuine. That there was evidence that the banks which made payments, did so only after confirming the genuineness of the cheques (and therefore the signatures thereon) from the company’s treasurer, one Mr Agunbiade.
On conviction in respect of counts 1, 2 and 3 for inducing delivery of money by false pretences, appellant’s counsel said he was adopting the reasoning in the dissenting jdugmetn of Ademola J.C.A as set out on pages 403 – 406 of the record. He said the appellant did not induce any bank to pay money to anyone and that this Court should set aside the convictions.
On the counts of uttering and stealing it was submitted that there was no evidence on record that the cheques (Exhibits F.G & H) were presented for payment by the appellant or at his instance by any person. He said there was no evidence that the appellant had any dealings with the beneficiaries named in the alleged forged cheques and neither were the proceeds of the cheques paid to the appellant. It was also submitted that there was no evidence that the appellant procured or aided anyone to commit the offences charged and as such there was no basis for applying the provisions of section 7 of the Criminal Code to convict him in respect of the offences of uttering and stealing.
The court was urged to allow the appeal and set aside the conviction and sentences. In his brief of argument Mr Bode Rhodes- Vivour learned counsel for the respondent submitted that the evidence showed, and the learned trial Judge so found, that Exhibits E. J. & K (the payment vouchers) and Exhibits F. G & H (the cheques) were false as they were raised on false information which the appellant knew to be false. He did not say how. He said the handwriting expert (P.W.6) in his report. Exhibit Y. confirmed that the 4th accused wrote the cheques and also signed them, but that the 4th accused claimed that it was the appellant who gave him the vouchers. Exhibits E, J & K to issue the cheques.
It was therefore proper to infer that the vouchers and the cheques must all have originated from the appellant. Since it was clear from the evidence that Exhibits E, J, K, F, G, & H told a lie about themselves, they were forgeries in law. The learned trial Judge was therefore right when he convicted the appellant for forgery of the cheques, Exhibits F, G, & H.
It was also submitted that although, there was no direct evidence of forgery, uttering and inducing delivery of money by false pretences against the appellant. but by virtue of sections 7 & 8 of the Criminal Code the appellant having done something which enabled the offences to be perpetuated was also liable as a principal offender for those offences. Again, learned counsel did not state what the appellant did. That the offences were committed through the instrumentality of the cheques which the appellant fraudulently issued. The appellant was therefore rightly convicted. The court was urged to dismiss the appeal.
I think it is quite significant that the learned Director of Public Prosecutions for the respondent, rightly in my view conceded in his brief that there was no direct evidence that the appellant committed any of the offences with which he was charged and convicted. The question now to ask is – was there enough or sufficient circumstantial evidence to warrant his conviction Straightaway my answer is that there was none. I shall explain.
Starting with the counts for forgery, I agree with Prof. Kasunmu that there was no evidence on record that any of the cheques, Exhibits F. G & H, was forged by the appellant. In fact the evidence of Mr Samuel Akinyele Odubiyi who testified as P.W. 7 made it abundantly clear that the signature of the appellant was neither on any of the cheques (Exhibits F. G. & H) nor on any of the payment vouchers (Exhibits E. J. & K). Under cross-examination on page 130 of the record the witness testified thus –
“I am supervisor to 1st accused (appellant herein) I was a cheque signatory…………..1st accused is not a signatory. I knew 1st accused’s signature and writing. 1st accused’s signature is not on Exhibit F. 1st accused’s signature is not on Exhibit J, K……..
When 1st accused is sick or away, I combined his job with mine. 1st accused’s duty includes issuing cheque to cheque writers. On one of these occasions I issued cheque to cheque writer. Exhibit H is one of the cheques I issued out.”
The learned trial Judge in convicting the appellant for forgery gave as his reasons on page 2/2 of the record-
“The contention of the prosecution was that these missing cheques were used for one Issa Sadia Trading Company and Issa Sadiq World Marketing Associates as shown in Exhibits G, H & F. The 1st accussed as head of that section knew what was going on and he did not raise any eye brow when 38 cheques were returned to him as against 39 that he issued out or when 17 cheques were given to him on 30th November,1983 and only l6 were returned. l therefore hold that he knew what happened to the missing cheques and in fact he did not report to his superior until he was arrested by the Police.
So much for the 1st accused I therefore find him guilty of counts 1, 2 & 3.”‘
It is implicit from the foregoing that there was no direct evidence that the appellant forged any of the cheques. It is an essential ingredient to be proved in a charge of forgery that “the accused forged the document in question”. The learned trial Judge was therefore in error when he proceeded to convict the appellant without such evidence. Even if the appellant knew of the missing two cheques, that alone would not in my view amount to proof that he forged them, which was what the learned trial Judge appeared to have done above. And if I may ask – what about the third cheque (Exh. H) which P.W.7, who himself as supervisor of the appellant, admitted issuing above The appellant cannot certainly be held responsible for Exh. H which he knew nothing about.
The Court of Appeal in its majority judgment on the other hand while appreciating that in a charge of forgery the prosecution must prove amongst others that “the forgery is by the accused person”, erroneously proceeded to conclude that the learned trial Judge relied on the evidence of the handwriting analyst (P.W.6) to convict the appellant. That was a serious misdirection. There was nowhere in the evidence of P.W.6 where he stated that the appellant made, signed or executed any of the cheques. Equally too, there was no evidence that the appellant caused any person to make, sign or execute any of the cheques. What the 4th accused said in his statement to the police cannot be evidence against the appellant (R v. Afose (1934) (2 WACA 118). I ought to add that I agree with Prof. Kasunmu that Ajadi and Lawsweerde were vital and material witnesses in the case. They were persons whose signatures were alleged to have been forged. I think failure to call them to deny or confirm their signatures on the cheques was clearly fatal to the case of the prosecution the evidence of handwriting analyst (P.W.6) notwithstanding. Their evidence would have settled the point in issue once and for all (See R v. KUREE WACA 175: WAMBAI & ANOR v. KANO N.A (1965) NMLR 15. Appellant’s conviction for forgery cannot therefore stand.
I shall now proceed to consider the charges for inducing delivery of money by false pretences. I have already stated above that there was no evidence that the appellant forged any of Exhibits E, F, G, H, J & K. There was also no evidence that the appellant presented any of the cheques, Exh. F. G, & H. at the bank nor did he induce any bank to pay money to anybody. It is hard therefore to find any valid basis for convicting the appellant for these charges. I entirely agree with the views of Ademola, J.C.A. in his dissenting judgment when he stated on page 405 thus-
It is important to get it clear from the beginning that the appellants were not charged for making false payment vouchers i.e Exhibits E, J & K
The payment vouchers and the misstatement on them were not presented to the two banks named in counts 1, 2, & 3. What was presented to the banks were the cheques which were alleged forged. It was on the presentation of these cheques and payment of them by the banks that the conviction of the appellants………..was grounded. But the offence charged was that they made misrepresentation to the banks and the banks acted on them. What means did the appellants use in making the representation to the banks Is it payment vouchers or the cheques Banks pay on cheques and not payment vouchers. Did the cheques Exhibits F, G & H contain the mis-statement as alleged in counts 1, 2 & 3 Did the banks pay the cheques on ground of mis-statements as laid in the information
These questions were not answered throughout this case. The learned trial judge did not direct his mind to these questions let alone answer them………………..
The information laid was that the banks were induced to pay money by the mis-representation. The banks did not give evidence. This is fatal to the prosecution case. What must make the banks pay is the mis-representation made to them and not as the Judge found, of any confirmation by the complainant company through its officials -ALLI v. COMMISSIONER OF POLICE (1952) 20 NLR 107.
The prosecution in this case has failed to prove the information laid in counts 1, 2 & 3 by the failure to call the banks as to what pretence was made to them before the payment of the alleged sums. And because the findings of the learned trial judge were at variance with the information as laid, it follows therefore that the appellants could not have been rightly convicted on counts 1, 2 & 3 of the information laid.”
As for the charges of uttering and stealing I agree with Professor Kasunmu that there was no evidence that appellant was involved in the cashment of the cheques. He neither presented the cheques nor did he instigate anyone to do so. There was also no evidence that the appellant had any dealing with any of the beneficiaries named in the cheques for payment. It is also significant here again that the banks that effectively dealt with the cheques and made payments completely failed to give evidence as to what actually transpired before them. This to me is equally fatal to the prosecution’s case. The learned trial Judge on page 217 had only this to say before he convicted for uttering. –
“From the Cashier’s Register Exhibit 2 there was no authorized documentation to support Exhibits F, G, & H. The gravamen of the offence was confirmed by the 3rd accused (4th accused) who stated that he wrote them out on the instruction of 1st accused. I hold therefore that the prosecution has proved counts 5, 7, 9, 11, 13 & 15 against the 1st and 3rd accused (4th accused actually).”
Certainly the offence of uttering cannot be committed, simply in this way by showing that the cheques. Exhibits F. G. & H. were unauthorised or that 4th accused (whose job it was to write cheques) wrote them on the instruction of 1st accused (whose job it was to issue blank cheques to 4th accused for writing).
Also on stealing, the learned trial Judge stated on page 2/9 that-
“The complainant company through the 3rd, 5th and 7th prosecution witnesses testified that the company did not authorise the payment contained in Exhibits F. G & H. Though these payments were confirmed by the company according to 1st and 3rd accused, they were not authorised. However from the testimony of the 1st and 3rd accused (actually 4th accused) it was evident that these cheques were paid to the same beneficiary to whom they have prepared the cheques based on the unauthorised payment vouchers. It was therefore clear that based on this circumstantial evidence by these prosecution witnesses which point to the unmistaken belief that the 1st and 3rd accused (actually 4th accused) who perpetrated the fraud stole the money. Though the beneficiary was arrested and has since jumped bail, the 1st and 3rd accused (meaning 4th accused) cannot absolve themselves from those counts. I therefore find them guilty of stealing as contained in counts 16, 17 & 18.”
So the learned trial Judge found again that there was no direct evidence of uttering and stealing. I think he was right. But I think he was wrong when he proceeded to find the appellant guilty of stealing because according to him he “perpetrated” the fraud. There was no evidence of any perpetration of the fraud by the appellant. The learned trial Judge also had found that the beneficiary, and therefore the possible offender who might have uttered and stolen the money in the person of the 3rd accused was arrested but had jumped bail. The 3rd accused is yet to be tried for these offences. It is my view that no linkage was established between the appellant and the 3rd accused the trial. Sections 7 & 8 of the Criminal Code cannot therefore be used to ground the conviction (see OKAGBUE & ORS V. THE QUEEN (1958) 3 FSC 27; (1958) SCNLR 371. The circumstantial evidence in the case as a whole, if any at all, was not sufficient in my opinion to link the appellant with the offences charged. There is nothing in the entire evidence before the trial court that points irresistibly to the commission of the offences by the appellant. Suspicion is no substitute for proof by evidence.
On the whole the appeal therefore succeeds and it is hereby allowed. The judgment of the Lagos High Court and the majority judgment of the Court of Appeal (Tobi and Kalgo J.J.C.A.) affirming the decision of the High Court are hereby set aside. The minority judgment by Ademola JCA, is upheld.
Appellant’s convictions and sentences are hereby set aside. He is accordingly discharged and acquitted.A. G. KARIBI-WHYTE, J.S.C: I have read the judgment of my learned brother Kutigi, J.S.C. in this appeal. I agree entirely with the conclusion that the prosecution did not prove any of charges against the appellant. The conviction was not based on any evidence against the appellant. The circumstances relied upon for the conviction was not shown to be positive, direct and unequivocal pointing unmistakably and irresistibly to the appellant. The conviction was founded on mere suspicion.
The appeal therefore succeeds. The judgment of the Court below is set aside. Appellant is accordingly acquitted and discharged.
SC.289/1991
