Michael Alake V. The State (1992)

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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.