3PLR – ABUAH V. QUEEN

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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ABUAH

V.

QUEEN

FEDERAL SUPREME COURT OF NIGERIA

F.S.C. 243/1961

30TH OCTOBER, 1961

 

OTHER CITATIONS

LN-e-LR/1961/5 (FSC)

BEFORE THEIR LORDSHIPS

SIR ADETOKUNBO ADEMOLA, C.J.F. (Presided)

LIONEL BRETT, F.J. (Read the Judgment of the Court)

EDGAR IGNATIUS GODFREY UNSWORTH, F.J.

 

BETWEEN

A.C. ABUAH

AND

THE QUEEN

 

ORIGINATING STATE:

Aba, Abia State

 

REPRESENTATION

Williams (with him Moore) -for the Appellant.

Nwokedi Senior Crown Counsel -for the Respondent.

 

MAIN ISSUES

CRIMINAL LAW AND PROCEDURE: Forgery – fraudulent thumb­-printing of a document to the prejudice of the interest of an illiterate – Effect of a verification by a legal practitioner of a fraudulently thumb-printed document –

CRIMINAL LAW AND PROCEDURE:- Forgery – Proof of  – Whether intent to de­fraud must be proved – Criminal Code, Cap. 42, sections 419, 464 (b), 465, 468 – Effect

ETHICS – LEGAL PRACTITIONER:- forgery, uttering and obtaining by false pretences – When lawyer’s act on behalf of a client is not bona fide – How treated

PRACTICE AND PROCEDURE – EVIDENCE – Evidence of Co-accused – Incriminating evidence – Whether corroboration required in law – Whether safe to convict on the evidence of a co-accused person without corrob­oration.

INTERPRETATION OF STATUTE:- Criminal Code, Cap. 42, sections 419, 464 (b), 465, 468 – Interpretation of

 

 

 

 

MAIN JUDGMENT

BRETT, F.J. (Delivering the Judgment of the Court):

The appellant, who is a legal practitioner, was convicted in the High Court of the Eastern Region on three counts charging him with forgery, uttering and obtaining by false pretences.

 

The evidence for the prosecution established that on the 26th May, 1960, the appellant appeared in the Magistrate’s Court, Aba, for one L.L. Akande, and on his behalf accepted an offer of £100 in full and final settle­ment of a claim under the Workmen’s Compensation Ordinance. The money had been paid into Court and the order of the Court was that it should be paid to Akande. Akande asked the appellant if he could draw his money the same day, and the appellant told him to go away and wait for the Court to write to him. Five days later, as he had not heard from the Court, Akande went to see the appellant and received the same answer, and after another three days he saw the appellant again and was told to come back in the even­ing. When he went back in the evening the appellant told him that he had re­ceived the money, but refused to hand it over because they could not agree on what fee the appellant was entitled to. The reason why this had not been settled before was that Akande had originally been represented by another practitioner, who was acting without a fee, and that the other practitioner had “transferred” the case to the appellant on leaving Aba. They sub­sequently reached agreement on a fee of £20, and the appellant paid the ba­lance of £80 to Akande on the 29th August, 1960, but according to Akande this was after he had complained to the Police. Akande denied that he had ever authorized the appellant to draw the money on his behalf.

 

The circumstances in which the appellant drew the money were that after the Court had made its order he asked the Registrar if he could draw the money, and was told that he must produce a written authority from Akande. Later Joseph Nzekudu, a boy of eighteen who was employed by the appellant as a typist, and who was charged jointly with him, went to the cashier of the Magistrate’s Court and produced a document which was pro­duced as Exhibit A at the trial. It read as follows:­

 

1. CHUKWUEMEKA ABUAH, F.R. (ECON.) S., B.L.,

Solicitor and Advocate of the Supreme Court of Nigeria

Emeka Chambers

65, Pound Road

Phone 81: P.O. Box 497

Aba, Nigeria.

27th May, 1960.

The Registrar, Magistrate’s Court, Aba.

Sir,

 

M.C.C. LTD. v. L.L. AKANDE Suit No. MA/WC.4/60 COMPENSATION FOR £100

 

I, the undersigned, do hereby authorise my Solicitor, A.C. Abuah Esq., of 65 Pound Road, Aba, to withdraw on my behalf the sum of £100 (One hundred pounds) paid into the Registry in my favour by the Plaintiff in the above named case, in compliance with the Court’s Order of 26th May, 1960.

 

I am most grateful, Sir, Yours obediently,

 

X L.L. AKANDE, H.R.T.I.

 

The above was prepared by me at the request of the applicant, to whom the contents were read and interpreted to in Yoruba language and he seemed perfectly to understand same before affixing his right thumb impression hereto.

 

By me (Sgd.)

1. CHUKWUEMEKA ABUAH

 

On the strength of this document the cashier prepared the necessary vou­chers and on the 3rd June the money was paid in cash to the appellant, who signed a receipt for it personally. When the matter was investigated it was found that the thumb impression was not that of Akande but that of Joseph Nzekudu, and the prosecution called evidence to prove this. No evidence was called to show that the signature to the verification was that of the appel­lant, but the document as a whole was plainly a forgery.

 

It is submitted on behalf of the appellant that the evidence summarised above disclosed no prima facie case against him, and that the trial Judge was wrong in overruling, a submission to this effect and in taking into account the incriminating evidence later given by his co-accused Joseph Nzekudu. It is said first that there is nothing to show that the appellant signed the verifica­tion and secondly that if he did it was not the verification but the thumb im­pression that made the document a forgery.

 

There is no substance in these submissions. As regards the second point, when a document purports to bear the thumb impression of an illiter­ate and averification by someone else, the two are inseparable and if Exhibit A is considered as a whole the verification is an essential part of the forgery, since without it the thumb impression would not have been accepted as genuine. As regards the appellant’s complicity, he knew that he would not be able to obtain the money unless he produced Akande’s authority; the only document ever produced which purported to be Akande’s authority was Exhibit A, and on the strength of it the appellant personally received the money. If these facts remained unchallenged and unexplained it is impossible to say that the court would not have been justified in convicting the ap­pellant, and he clearly had a case to answer on all three counts.

 

After the submission that there was no case to answer had been re­jected, the appellant gave evidence himself, and two witnesses were called on his behalf. His co-accused, Joseph Nzekudu, also gave evidence. The ap­pellant’s evidence was that Exhibit A was prepared on his instructions for Akande to execute, and that while it was admittedly not executed in his pre­sence he signed the verification and inserted the name L. L. Akande bet­ween the thumb impression and the letters “H. R.T. L” in good faith, relying on the statement of his clerk, Friday Ekeke, that Akande had visited the of­fice in his absence and affixed his thumb impression. Friday Ekeke was not called as a witness by either side, and the two witnesses called for the appel­lant carried the matter no further. If the appellant’s story was true his con­duct was culpable in a professional man, but clearly did not amount to the of­fences with which he was charged.

 

When Joseph Nzekudu came to give evidence he admitted that he had affixed his thumb impression to Exhibit A, and said that he had done so on the instructions of the appellant. The trial judge believed him, and relied in part on his evidence in convicting the appellant. In assessing the credibility of Joseph Nzekudu’s evidence the judge said “I have taken into considera­tion the fact that the evidence of the second accused is the evidence of a co-­accused and that although it needs no corroboration in law, it is not safe to convict on it without corroboration but I am of opinion that in this case there is sufficient corroborative evidence to connect the first accused especially Exhibit A”. No complaint is made of the judge’s statement of the rule of practice, which was, if anything, unduly favourable to the appellant, but it is submitted that he was wrong in holding that there was corroborative evi­dence implicating the appellant. We disagree. Not only did the false verifica­tion in Exhibit A, by itself, afford a prima facie case against the appellant, but further corroboration is to be found in Exhibits J, K and S. Exhibits J and K are the statements made by Joseph Nzekudu and Friday Ekeke to the Police at the start of their inquiries, and allege that Akande put his thumb impression to an authority to withdraw the money. They are in identical terms not only with one another but with Exhibit S, which is admittedly in the handwriting of the appellant. The appellant said he copied Exhibit S for his own records from a draft of Exhibit J shown to him by Joseph Nzekudu, but this fails to explain how Friday Ekeke came to make a statement in iden­tical terms, and Joseph Nzekudu’s explanation, that the appellant instructed them both what to say in the hope of concealing the truth, seems the more probable one.

 

The final submission on behalf of the appellant deals with the intent with which he made Exhibit A and used it to obtain the money. On the facts found proved it was undoubtedly a false document within the meaning of s. 464 (b) of the Criminal Code, as a document of which “the whole or some material part purports to be made by or on behalf of some person who did not make it or authorise it to be made.” Section 456 of the Code provides that “A person who makes a false document or writing knowing it to be false, and with intent that it may in any way be used or acted upon as genuine, whether in Nigeria or elsewhere, to the prejudice of any person, or with in­tent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act, whether in Nigeria or elsewhere, is said to forge the document or writing.” Whether or not the first of the alternative intents was proved in this case, the second clearly was, and since s. 468 of the Crim­inal Code defines the word “fraudulently” in relation to the offence of utter­ing a forged document in identical terms all the ingredients of the first two counts of the information have been proved.

 

It is said, however, that the relationship between the appellant and Akande gave the appellant an implied authority to withdraw the money on Akande’s behalf, or at least that the appellant had a bona fide belief to that effect, and that for the purpose of the charge of obtaining by false pretences there was no intent to defraud either the Treasury or Akande. Granted that the appellant’s motive was to put himself in a stronger bargaining position in respect of his fees, it is submitted that that would not make his intent a fraudulent one within the meaning of s.419 of the Criminal Code. We are un­able to agree. Akande was defrauded, in being put at a disadvantage in the discussions over the appellant’s fees and being made to wait for his money until the matter was settled to the appellant’s satisfaction. The appellant may not have intended that the Treasury should in fact suffer any loss, but it would appear that it was also defrauded by being induced to part with the money to a person not entitled to it. If the appellant had, for example, be­come insolvent before passing the money to Akande, Akande could have claimed it from the Treasury, and the Treasury could not have been heard to say that the payment to the appellant had discharged its indebtedness to Akande. We would refer in this connection to the decision of the House of Lords in Welham v. Director of Public Prosecutions, (1961) A.C. 103, as to the meaning of an intent to defraud in the Forgery Act 1913, which seems in­distinguishable.

 

All the grounds of appeal therefore fail, and the appeal is dismissed.

 

Appeal Dismissed