Sam Aigbe & Anor V. The State (1976)

LawGlobal-Hub Lead Judgment Report

BELLO, JSC 

The appellants were jointly arraigned with one Lt. K.O. Osumah in the High Court of Mid-Western State (now Bendel State), Benin Judicial Division, before Ighodaro, J. During the trial Lt. Osumah was convicted of armed robbery by the Kwara State Robbery and Firearms Tribunal and was executed.

Thereafter the trial of the appellants proceeded and it resulted in their convictions of several offences and sentences to various terms of imprisonment. PAGE| 2  The offences were related to four cheques that were stolen from the office of the Administrator-General of the State. They were cheques Nos. 0485, 0470, 0471 and 0473. The cheques were later recovered but after each had been forged and sum of money from the account of the Administrator-General in the Barclays Bank, Benin, had been withdrawn thereunder.

The evidence shows that cheques Nos. 0485 for £1200 and 0473 for £8500 were paid into the accounts of O. Akenzua at the National Bank, Benin, and of one Jimoh Ahmed at the African Continental Bank, Benin, respectively; that cheques No. 0470 for £855.17s.0d and 0471 for £791 were paid in cash to Johnson Adewunmi and Edward Adeola respectively. All the payments and deposits were made in February 1969.  The evidence further shows that all the cheques in question were purported to have been signed, as the drawers, by O. Akenzua who was then the Administrator-General and by G.R. Ebosele who was a Higher Executive Officer (Accounts) in the Administrator-General’s office. These were the two officers having the authority to sign cheques drawn by the Administrator-General.

Upon the totality of the evidence the learned trial Judge found that the purported signatures of the two officers on the cheques were simulated and none of the cheques was in fact signed by either officer.  With this short summary of the background of the case, we would consider the appeals of the appellants separately.  The 1st appellant was a clerical officer in the office of the Administrator-General at the material time. His duties included preparation of cheques, presenting the prepared cheques to G.R. Ebosele (P.W.7) and then to O. Akenzua (P.W.32) for their signatures and thereafter delivering or dispatching the signed cheques to the persons for whom the Administrator-General authorised making the cheques. The cheques were contained in a cheque book kept in a safe by Ebosele (P.W.7) but the 1st appellant had always access to the book whenever there was a need to draw a cheque. The 1st appellant also kept a cash book and ledgers. It was his responsibility to make entries of all cheques into these documents. The evidence shows that the cheque No. 0485 was not entered in the cash book but the other three cheques were entered without any detail of payments. The Higher Executive Officer (P.W.7) testified that the 1st appellant had dealt with the cheque book from which the four cheque leaves had been removed.  On 3rd March, 1969, the 1st appellant attended his office to hand-over his duty as he was to go on leave that day.

In course of the handing over to Michael Oyenna (P.W.26), the 1st appellant told the latter that the four cheques the subject matter of this case together with one other cheque were missing. Michael Oyenna advised the 1st appellant to report to his superior officer and police arrested the 1st appellant shortly after the report. It is evident that the 1st appellant did not report to anyone of the missing cheques until that day during the handing over.

In addition to the circumstantial evidence pointing to the appellant as a party criminis, the evidence of two prosecution witnesses directly implicated him with the commission of the offences. They were Lazarus Ahuizu (P.W.13) and A.S.P. Patrick Nwamanna (P.W.15) who is a hand-writing expert.  Lazarus Ahuizu, an expert forger, testified that on 10th February, 1969, at Ibadan the 2nd appellant had given him specimen signatures of Akenzua and Ebosele and had commissioned him to practise simulation of the signatures for the purpose of doing some cheques business at Benin.

He stated that after he had practised and perfected his nefarious art, he set out in company of the 2nd appellant and two others for Benin where in the house of Lt. Osumah he met the 1st appellant who was introduced to the witness as the procurer of the cheques from the Ministry of Justice. It was in that house, according to the witness, that he simulated the signatures of Akenzua and Ebosele on the cheques in question. He said he was given £823 as his share out of the proceeds of the cheques while 2nd appellant got £863 and Lt. Osumah kept £805 as share for the 1st appellant. The others also got their shares.  The handwriting expert testified that after he had compared and analysed the specimen handwritings of the 1st appellant with the disputed writings on the cheques in question and a National Bank Teller (Exhibit 30) upon which the sum of £1200 was deposited in the account of Akenzua, he came to the conclusion that the 1st appellant was the author of the writings on the face of the cheques and the endorsement “E. Adeola 27 Yoruba Road, New Benin”, on the cheque 0471. He was also of the opinion that the 1st appellant wrote the teller, Exhibit 30.

The defence of the 1st appellant is a total denial. His statements to police and evidence at the trial were to that effect.  In his judgment the learned trial Judge treated Lazarus Ahuizu (P.W.13) as an accomplice whose evidence required corroboration. He found it amply corroborated. He believed the prosecution witnesses and rejected the defence of the 1st appellant. He convicted the 1st appellant of four counts out of the thirteen with which he had been charged. The convictions are on count 1 (conspiracy to steal contrary to Section 443 of the Criminal Code of the State), counts 5, 8 and 11 (all laid under Section 331(8) of the Code for stealing the several moneys as per cheques Nos. 0485, 0470 and 0473). He sentenced the 1st appellant to 15 months imprisonment for count 1 and 12 months for each of the other three counts.  He found the 1st appellant not guilty of count 2 relating to the stealing of the four cheque leaves laid under Section 331(4) of the Code and of the four counts charging uttering the said cheques contrary to Section 402. He discharged the 1st appellant on these counts.

We have observed that the trial Judge did not return a verdict on any of the four counts charging forgeries under Section 401 of the Code.  The appeal of the 1st appellant has been concerned with the four counts with which he was convicted. Although eight grounds of appeal have been argued on his behalf, it seems to us that all the grounds other than grounds Nos. 5 and 7 relate to issue of facts and may all be considered under the general ground that the convictions are unreasonable and cannot be supported having regard to the evidence.  The learned counsel for the 1st appellant argued that the evidence of the forger (P.W.13) ought to have been disregarded by the trial Judge on the ground that the witness had made five statements to the police and had not mentioned the 1st appellant in one of them; that without the evidence of the forger, the remaining evidence directly implicating the 1st appellant is that of the handwriting expert and it is a substantial miscarriage of justice to convict solely on such evidence. The learned counsel relied on Odu v. The State 1965 NMLR 129 to buttress his second contention.

With regard to the submission on the extra judicial statements made by the witness (P.W.13), we think the mere fact that a witness has made several statements to the police is not a ground per se for discrediting the witness but such statements may be used in accordance with the provisions of Sections 208 and 209(c) of the Evidence Act to discredit the witness. If the several statements are contradictory and inconsistent in material particular with one another and with the evidence of the maker that may be a ground for discrediting the maker as a witness. On the other hand, if the several statements are in substance consistent with one another and with the evidence of the maker that may favourably affect his credibility as a witness.  It has not been pointed out to us that the forger (P.W.13) did not mention the 1st appellant in his other four statements to the police. The learned Judge, who observed the demeanour of the witness and found ample corroboration of his evidence, believed the forger as a witness of truth. Under the circumstances, we are unable to agree with the learned counsel that the trial Judge ought to have disregarded the evidence of the forger.

Ground No. 5 attacks the charge under count 1 as being bad in law. It reads: “5. That conspiracy to steal in count 1 is bad in law for vagueness and duplicity since in the context of the various offences of stealing in counts 5, 8 and 11 in the information, it does not specify which of the said stealing”. PAGE| 5 It has been argued that the charge did not contain sufficient particulars of the offence the 1st appellant had conspired to commit in that it did not state which of the stealing – charged under counts 5, 8 and 11 – the conspiracy charge was intended to cover. The gist of the argument of the learned counsel appeared to be that if the charge was intended to cover the offences under the three counts of stealing that would be bad for duplicity.  The evidence which we have earlier summarised discloses a picture of one conspiracy which was to defraud the Administrator-General. Although the theft of the moneys by means of the three cheques, the subject matter of counts 5, 8 and 11 was committed severally, we think each theft was committed in furtherance of the one conspiracy, that is conspiracy to steal. The case of Hammersley & Ors. (1958) 42 Cr. App. R 207 is an authority on this point where the Lord Chief Justice stated at p. 215:

“It seems to the court that once it is understood what was the nature of the conspiracy, the overt acts do not show different conspiracies”. Furthermore, a count charging general conspiracy to commit an offence needs not state the object of the conspiracy with the same certainty as is required in a charge for the offence conspired to be committed. See Archibold Criminal Pleading, 28th Ed. p. 1537 para. 4070. A charge of “conspiracy to steal” without any further particulars is good in law. See Cooper and Compton (1948) 32 Cr. App. R. 102.  Ground No. 7 reads: “7. That the learned trial Judge erred in law in that he admitted inadmissible evidence including the following:

(a) “and that he (the 3rd accused) brought the cheques from the 1st accused who was working in the Ministry of Justice”.