Rex V. Ogba Agu (1949)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law—Possession of materials for forging West African Currency Notes and of unfinished notes—Knowledge of accused that he had possession of such articles an essential ingredient of such offences.

It is an essential ingredient of an offence contrary to section 9 (2) (c) or section 8 of the West African Currency Notes Ordinance that the accused knows that he has in his possession the articles which are the subject of the offence. Such knowledge may be proved by direct evidence or be inferred from facts which justify such inference.

Appeal from the Supreme Court of Nigeria.

Lloyd, Crown Counsel, for Respondent.

The following judgment was delivered:

Verity, C.J. In this case the appellant was convicted by Desalu, Ag. J., in the Supreme Court at Aba. The record is extremely brief and it is not clear whether the case was tried summarily or upon information after preliminary inquiry by a Magistrate. The notes of evidence are by no means voluminous and the judgment in so far as it relates to the appellant comprises no more than thirty-four words.

The offences charged are those of being in possession of materials for forging West African Currency Notes contrary to section 10 (2) (c) of the West African Currency Notes Ordinance and being in possession of unfinished notes contrary to section 8 (2) of the statute. In neither instance is the charge accurately drawn, which, coupled with the fact that no formal information is•included in the record, leads us to the conclusion that this case was tried summarily. We would express the opinion that it is desirable that cases of this nature should-be subjected to preliminary inquiry by a Magistrate before trial in the Supreme Court and that, when ever possible, they should be tried upon information.

Four persons were originally charged, of whom the appellant is the third, and the evidence is that a parcel was seen in the possession of the first accused, who threw it down upon the instruction of the second accused when he was challenged by the Police. The second accused then pointed out the appellant as the man who had brought the parcel to the spot where it was taken into possession by the second accused. The appellant thereupon said that it belonged to the fourth accused. The parcel was found to contain the articles enumerated in the charges, that is to say, materials for the making of currency notes and a number of unfinished notes. All the accused persons denied knowledge of the contents of the parcel, the fourth accused denying all connection with it, although the three other accused persons gave evidence implicating him.

The learned Judge, for reasons which are not disclosed in his judgment, expressed himself as satisfied that the first and second accused did not know the contents of the parcel, although their conduct when challenged by the Police might have been taken to indicate guilty knowledge. Having, however, accepted as a fact that these two persons had no such knowledge, the learned Judge proceeded to express the view that ” however strong the suspicion against the fourth accused may be I would not be justified in convicting him on the evidence of the three other accused who are all accomplices “. As he had just acquitted the

first and second accused of complicity we are unable to follow his reasoning in this regard.

Be that as it may, the learned Judge accepted the evidence of two of these persons as to the appellant’s possession, no doubt because it was corroborated by his own admission. He stated, however, that the fourth accused asked him to carry the parcel and rewarded him therefor, but that he had no knowledge of its contents.

In his judgment the learned Judge says :—

” The third accused has not satisfied me that he did not know the contents of the load and I am satisfied that the prosecution has proved the two charges against him beyond all doubt.”

It is to be observed that all the prosecution had proved with the assistance of his own admissions, was that the appellant, accompanied by the fourth accused and at his request, had carried the parcel from a place near the market to the motor park, and had received sixpence for his trouble.

Knowledge of possession of the articles which are the subject of the offence is, in our view, an essential ingredient of each offence. This is expressly stated in section 10 (2) (c) and is of necessary implication, we think, in section 8, for it is impossible that under the earlier part of this section, which relates to the possession of forged or altered notes, the person should know them to be forged or altered, as required by the section, unless he knew that they were in nis possession. We are not of the opinion that this implication is negatived in the second part of the section, which relates to unfinished notes, nor are we of the opinion that the legislature intended that in regard to unfinished or incomplete notes only the mere fact of physical possession, even though unknown to the accused, should constitute .commission of the offence.

It is we think, therefore, sufficiently clear that the onus lies on the prosecution to prove that the accused had knowledge of his possession of forbidden articles or at least to prove facts which would justify the inference that he had such knowledge. Only in that case does the onus lie upon the accused to prove lawful authority or excuse for his possession, a burden it would be impossible for him to discharge unless it be established that he had knowledge of the possession.

In the present case the Crown proved neither knowledge nor any facts from which knowledge could reasonably be inferred and the learned Judge erred in, as it would appear, imposing upon the appellant the burden of proving that he had no knowledge.

For this reason we allowed the appeal, setting aside the convictions and sentences and entering a verdict of acquittal on both charges.

Appeal allowed.