N. O. Amadi & Ors. V. The State (1993)
LawGlobal-Hub Lead Judgment Report
MOHAMMED, J.S.C.
On Thursday, the 23rd September, 1993, when this appeal was argued, Mr. Onyeike, Legal Officer, Lagos State who represented the state told this court that he was not supporting conviction and sentence of 1st, 2nd and 3rd appellants. Having gone through the record I agree that learned legal officer is right. Consequently, I allowed the appeal argued by learned counsel for each appellant, discharged and acquitted them. I indicated then that I would give my reasons later. I now give my reasons.
The appellants together with five other accused persons were arraigned before Oladipo Williams, J. of Lagos High Court for offences of conspiracy to steal, conspiracy to commit forgery, stealing, forgery, uttering a false document and inducing delivery of money by false pretences.
The facts for the prosecution’s case were that six United Bank for Africa (U.B.A.) cheques belonging to NEPA were stolen from that Authority’s premises. The stolen cheques were later forged and fraudulently uttered to U.B.A which was induced to deliver them (the cheques) to the Bank of India, Lagos, with the pretence that a company known as Sadayan Overseas Industrial Company Limited was the owner of the sums of money expressed on the six cheques. The six cheques were exhibit I for the sum of N375,750.57, Exhibit 24 for N367,570.76, Exhibit 25 for N200.083.76, Exhibit 26 for N125,500.500, Exhibit 27 for N325,657.57 and Exhibit 28 for N375,250.75.
After the conclusion of hearing and evidence the learned trial judge, in a considered judgment, accepted that all the above listed cheques had been forged and large sums of money stolen. He found guilty and convicted the 1st, 2nd, 5th and 7th accused persons and sentenced them to various terms of imprisonment. The 4th and 6th accused died before the conclusion of the trial. The 3rd and 8th accused were found not guilty of the offences charged and were discharged and acquitted.
Dissatisfied with the trial courts’ decision the 1st, 2nd, 5th and 7th convicted persons appealed to the Court of Appeal. In a unanimous decision learned justices of the Court of Appeal dismissed the appeal. On further appeal to this court, Mr. N.D. Amadi, Mr. Daniel Okoroafor and Mr. Collins Ubaniocha filed notices and grounds of appeal. Only three appellants remain to prosecute the appeal from the decision of the Court of Appeal. The 1st accused, Mr. Orepekan had been released following the state pardon granted to him by the Lagos State Government. This appeal concerns Mr. N.D. Arnadi as the 1st appellant, Mr. Daniel Okoroafor as the 2nd appellant and Mr. Collins Ubaniocha as the 3rd appellant.
Mr. Ben Nwawjie, S.A.N formulated the following four issues for determination of the appeal of the 1st appellant:
“(i) Whether imprudent or negligent conduct can sustain a charge of stealing or conspiracy under the Code as held by the lower courts.
(ii) Whether the finding or conclusion that “the appellant must know when and how the cheque, exhibit 27, was removed from the relevant pad” was perverse and unsupportable from the evidence adduced at the trial.
(iii) Whether the sentence is not erroneous in law or too harsh.
(iv) Whether the decision is unreasonable and unsupportable having regard to the evidence led at the trial.”
Mr. Nwazojie referred to 1st appellant’s conviction on count of conspiracy to steal and the second count of stealing six blank cheque leaves belonging to NEPA and valued at 12 kobo. In finding 1st appellant guilty the learned trial judge said:
“I have no doubt at all in my mind that the 2nd accused must know when and how the cheque, exh. 27 was removed from the relevant pad or that he was grossly negligent up to the point of abandoning his duties entirely”
It was this finding which convinced the Court of Appeal to affirm the conviction of the 1st appellant. Mr. Nwazojie, S.A.N., submitted that the conviction of the 1st appellant for stealing the six cheques rested on the finding of the learned trial judge that 1st appellant was grossly negligent. The learned S.A.N. argued that negligence is not a mental element of stealing under the Criminal Code. Section 383 of the Code sets out six intents which must be proved in order to sustain a conviction for stealing. The conviction of 1st appellant was not based on any of those intents. The learned counsel distinguished the case of Edu v. C.O.P 14 WACA 163 in which Bairarnian J. (as he then was) was mistakenly held by both the trial court and the Court of Appeal to have decided that gross negligence is an element of an offence of stealing. Edu was convicted of an offence under S. 173(2) of the Criminal Code in which negligent act was made an ingredient of the offence. The section provides:
“Any person who –
(2) being employed by or under the department of Posts and Telecommunications, negligently loses any postal matter or telegram or negligently retains or delays, or permits the detention or delay of, any postal matter or telegram, is guilty of a simply offence, and is liable to a of fine ten pounds.”
Mr. Tamuno who wrote the joint respondents brief wasted no time in conceding that the mental element of negligence is not an express requirement for a charge of stealing under S. 383 of the Criminal Code. The learned counsel went further, in his submission and said:
“There is no general criminal liability for negligence although there is one in the law of Torts, where negligence is a mental element of a crime a penal statute normally makes it an express requirement. For example: Police or Prison Officers negligently permitting escape of a person in lawful custody (Section 138 of the Code), negligent lose of postal matter by NIPOST Staff (Section 73(2) of the Code), negligently destroying telegraph works (Section 186 of the Code), driving a motor vehicle on a highway recklessly or negligently (Section 28(1) of the Road Traffic Law Cap. 124 Laws of Lagos State 1973). The West African Court of Appeal decision of Edu v. C.O.P. 4 WACA 163 cannot be authority for punishing negligence as proof of criminal liability. That case was decided on its peculiar fact (based on Section 173(2) of the Code.”
Having conceded that the main element upon which the 1st appellant had been convicted of stealing the six blank cheques does not exist in law, Mr. Onyieke, learned legal officer, for the respondent told this court that he could not support the 1st appellant’s conviction and sentence in count 3.
Count 1 in which the 1st appellant was convicted of conspiracy to steal is not without problems either. In attacking the conviction of 1st appellant on that count Mr. Nwazojie S.A.N. submitted that stealing was inferred from gross negligence of the 1st appellant and there was no evidence directly showing that the 1st appellant and Mr. Orepekan (who has been released through a state pardon) acted in concert with the others to commit the offence of conspiracy to steal. Learned counsel argued that the 1st appellant and Mr. Orepekan were only inferentially said to have joined the conspiracy to steal. To support this submission learned counsel referred to a finding of the trial judge at page 239, where he said:
“It is my opinion that the 4th accused (now deceased) who was at the helm of affairs on the matter of stealing and forgery acted in such a way that only very limited facts were known to those who were prepared to deal with him. Be that as it may, there was enough evidence to show that the 4th accused, P.W.2, 5th accused 7th accused started together to originate the conspiracy to steal NEPA cheques and that the 1st, 2nd 6th accused persons, by inference joined it afterwards as the NEPA men who would make available the cheques in their care. They are patently accessories to the conspiracy.
It is without doubt, from the above finding, that the learned trial judge did not receive direct and positive evidence incriminating the 1st appellant in the conspiracy to steal Learned Senior Advocate argued that if the only evidence of conspiracy is the evidence which supports the commission of the substantive offence conviction for conspiracy, but not for substantive offence, will be quashed for inconsistency See R. v. Cooper and Compton (1947) 2 All E.R. 701. This was followed by the Federal Supreme Court in Nnaji and Ors. v. Inspector General of Police (1957) SCNLR 156 (1957) 2 F.S.C. 18.
Learned counsel for the respondent had no convincing reply to offer against the above submission and therefore declined to support conviction on the count. Mr. Bankole Aluko, learned counsel for Daniel Okoroafor, the 2nd appellant, handed down a 51 page brief in support of the appeal. I must pause here to say that most of the submissions have been repeated times without number. Counsel must always bear in mind that repetition does not improve an argument.
However, the learned counsel formulated one single issue for the determination of this appeal. It is as follows:
“Whether the Court of Appeal arrived at a judicially sound and correct decision in approving the trial – conviction of the 5th accused person for the offences of conspiracy to steal, conspiracy to forge, forgery, uttering, and obtaining money by false pretences as charged in various counts of the Information, given the failure by the prosecution to prove its case on any of the relevant counts beyond reasonable doubt.”
Be that as it may, the main pivot of Mr. Aluko’s submission in this appeal centres on the evidence of the handwriting expert who gave evidence as P.W.22. The learned trial judge in his judgment explained that the handwriting expert found that it was the 2nd appellant (5th accused) who wrote exhibit 29, the bank teller by which one of the stolen cheques Exhibit 26 for N125,700.55 was paid into the “Sadayan” account at the Bank of India. Sadayan Overseas Industrial Company Limited, in the name of which the cheques were made out at the Bank of India rendered no service to NEPA. But huge withdrawals were made from that company’s account totalling about N1,433,470.70.
The learned trial judge personally compared the writing on exhibit 29 (the bank teller) and the sample of the writing of the 2nd appellant in exhibit 63 and found that the writer of the two documents was the same person.
Mr. Aluko argued strongly that the 2nd appellant was not charged of forging the bank teller but of the cheque, exhibit 26. I agree with Mr. Aluko that there is some confusion in the finding of the learned trial judge over the possession of the cheque, exhibit 26. In the judgment learned trial judge convicted 1st and 2nd accused for being in custody and control of exhibit 26 before its forgery. There is doubt therefore in the evidence over the forgery of exhibit 26. If 1st and 2nd accused were found to be in custody and control of the exhibit before it was forged, it is relevant to adduce evidence that they passed this cheque before its alteration to the 5th accused who is second appellant in this appeal. There is cloud over the chain of communication within which the cheque exhibit 26 was forged and altered at the Bank of India.
The evidence of the prosecution’ on the issue of this cheque was shattered more when P.W.2 said that NEPA cheque was give to him to go and deposit in the Bank of India, Bread shit Street and that it was the 4th accused who gave him the cheque in his house at Ikorodu Road. The cheque had been entered in a teller before it was given to him. Exhibit 29 was the teller. The learned trial judge found also that P.W.2 and one Solomon took exhibit 26 to the Bank for lodgment. To further complicate the case of the prosecution P.W.2 told the court that he and one Solomon signed and presented almost all the forged cheques to the Bank. The witness said that it was later, on 6th October 1978 that the 5th accused took over signing the cheques after Solomon had left. It is relevant to note that P.W.2 was the accomplice whose evidence the respondent counsel conceded had not been corroborated. From the evidence of P.W.2, it is clear that exhibit 26 had been made and presented before the Bank two months before the 5th accused was alleged to have taken over the signing of the forged cheques.
I agree with Mr. Aluko that the prosecution’s case is full of unproven facts and loop-holes which, in my view, makes it unsafe to convict the 2nd appellant of the offences in counts, 4, 5, 6, 9, 12, 15, & 18 See Onubogu v. The State (1974) 9 S.C. 1. In Nwosu v. The State (1986) 4 NWLR (Pt.35) 348, this court held that where two or more witnesses testify at a criminal proceeding and the testimony of such witnesses is contradictory and irreconcilable, it would be illogical to accept and believe the evidence of such a witness. The Court of Appeal was therefore in error to affirm such convictions.
Counts 1 and 2 which were framed against the 2nd appellant jointly with the other accused persons were based on the allegation that the accused conspired to forge the cheques and steal between the months of July and August 1978. But P.W.2 who gave the evidence upon which the counts were framed told the court that he and one Solomon signed the cheques and presented them to the bank during that period. P.W.2 later told the court that the 5th accused (2nd appellant) joined the group on 6th October, 1978 when he took over the job of signing the cheques from Solomon. In his evidence P.W.2 told the trial court thus:
“In August, 1978, I went to the Bank of India in the company of Solomon we presented Exh. 38 and the certificate of incorporation..I see Exh. 38. I signed as Alabi Obene on page 3 of Ex. 38 and Solomon signed as Augustine Ejiba on the same page.”
Learned counsel for the respondent after being confronted with these contradictions told this court that he was not supporting conviction of the 2nd appellant on all the counts.
The appeal of Mr. Collins Ubaniocha, the 3rd appellant, was next argued by Mr. Babajide Bodede. The appellant has been convicted and sentenced on counts one – conspiracy to steal, count two – conspiracy to commit forgery and counts six, nine, twelve and eighteen all framed on inducing delivery of money by false pretences. Mr. Bodede formulated four issues for the determination of the 3rd appellant’s appeal. The issues are as follows:
“(1) Whether the Court of Appeal could properly affirm the conviction of the appellant when it was based solely upon the uncorroborated testimony of an accomplice.
(2) Whether the failure of the Court of Appeal to consider the issue of the corroboration of the evidence of P.W.2 constituted a miscarriage of justice.
(3) Whether the Court of Appeal was correct to accept the inference of the High Court that the appellant purchased the Volvo with proceeds of the alleged crime.
(4) Whether the Court of Appeal was correct in the circumstances of this case to affirm the conviction of the appellant on the counts of conspiracy to steal and conspiracy to commit forgery when the appellant was discharged on the substantive counts of stealing and forgery.”
The only issue not substantially considered in this judgment from the issues raised by the learned counsel for the 3rd appellant is the requirement of corroboration to the evidence of P.W.2 has been adjudged by the learned trial judge to be an accomplice. It is trite law that an accomplice shall be a competent witness against an accused person and that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. See S. 177(1) of the Evidence Act.
The sub-section however imposes a statutory duty on the trial judge to warn himself that it is unsafe to convict solely on the uncorroborated evidence of an accomplice. The omission to give the said warning, when needed, usually has the consequence of acquittal on appeal unless the appellant court, in a given case, thinks that no substantial miscarriage of justice was occasioned by the omission. See Akpan Udo Ukut and Ors. v. The State (1966) NMLR 18.
The learned trial judge in his judgment said that he observed that P.W.2 gave both relevant and irrelevant testimonies in his evidence before the court and that he would only accept that part of the evidence of P.W.2 which was corroborated. That obviously is a wrong and erroneous decision. An accomplice is a suspect witnesses hence the requirement of corroboration to his testimony. It is not for the judge to pick and choose which part of the accomplice’s evidence he could believe and which part needs corroboration.
The court can convict once it is satisfied that the evidence is reliable even without corroboration. But once the court is in doubt as to the truth of the evidence of an accomplice it is unsafe to convict an accused based on any part of that evidence. One lie in an accomplice’s testimony makes that whole of his evidence suspect and the judge ought not convict unless he receives corroboration of material particular implicating the accused.
Reading the evidence of P.W 2 from it beginning to the end disclose how unreliable the witness is and being an accomplice, who in fact took a leading part in the commission of the crime, his evidence as a whole ought to be corroborated. It is for this same reason that the learned legal officer for the respondent, quite correctly, announced that he would not support the conviction of the 3rd appellant.
In the final result and for all the reason given above, the Court of Appeal is in error to affirm the conviction and sentence of the appellants.
Consequently, I allow the respective appeals of N.O. Amadi, Daniel Okoroafor and Collins Ubaniocha. They are discharged and acquitted of all the offences in the counts framed against them.
SC.62/1990
