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FEDERAL SUPREME COURT OF NIGERIA
5TH APRIL, 1963.
BEFORE THEIR LORDSHIPS:
JOHN IDOWU CONRAD TAYLOR, F.J. (Presided)
SIR VAHE BAIRAMIAN, F.J. (Read the Judgment of the Court)
GEORGE BAPTIST AYODOLA COKER, AG. F.J.
APPEAL – Criminal Appeal – Ground of appeal complaining of “weight of evidence” – Inappropriate therein.
CRIMINAL LAW AND PROCEDURE – Appeal – “Weight of evidence” – Wrong in criminal appeal.
CRIMINAL LAW AND PROCEDURE – Undue delay between committal for trial and actual trial – Deprecated.
Chief O. Moore, Q.C. (with him, J.E. David) -for the Appellant. M. U. Anisiobi, Senior Crown Counsel -for the Respondent.
BAIRAMIAN, F.J. (Delivering the Judgment of the Court): John Aboud was convicted by Udoma, J. on the 25th October, 1962, on three counts (Nos. 3, 6, and 9) laid under section 421 of the Criminal Code.
Count 3 reads –
“John Aboud on the 10th day of January, 1957, at Lagos by means of fraudulent trick to wit presenting one false bill of entry No. 3006 to the Customs and Excise, Lagos, obtained from the said Customs and Excise 10 bales of clothing.”
The bill of entry number in the 6th count is 7594 and the date 26th October, 1966; in the 9th count the date is 10th January 1957, and the bill of entry No. 3005.
To obtain goods from the customs an importer has to present a bill of entry in four copies – five, if he wants a copy for himself – with an attested invoice attached to the top original. In each of the three cases charged the top original bill of entry and its invoice could not be found, in spite of a search made by Mr.. Phillips and other officers in the Customs Shed, to which the documents went for physical examination of the goods, and in the Main Office. After Mr.. Phillips gave that evidence, defending counsel at the trial said he had no objection to copy bills being admitted, and they were received in evidence. Nevertheless ground 3 of the application for leave to appeal complains that no satisfactory explanation was given of the loss of the originals. The Court is of opinion that the ground is without substance.
Certain invoices were found in the shop of the appellant on the 15th January, 1957; they are in evidence as exhibits C, D and Fl, and the values on them are £921: 19: 3d., £604:19: 8d. and £1,391:11:11d. respectively. The figures on the copy bills of entry, which are exhibits B, A, and O are £46: 12: -, £55: 17: 6d. and £207 respectively. The yardage in the copy bills of entry is also false, when compared with the invoices found in the appellant’s shop. Much less customs duty was paid than was truly chargeable.
Incidentally, there is a chit in the handwriting of the appellant, attached to invoice C, which gives the duty as £394; another chit attached to invoice D, which gives the duty as £138: 16: 8d; and another chit attached to invoice Fl, which gives the duty as £551-:10d.
The fraud on the customs was gross; if the officer whose duty it was to make the physical check had done his duty, he would have seen that the quantity of goods was much greater than was shown on the bill of entry.
However, the goods were released, and the top original Bill of entry and the invoice attached to it disappeared from the Customs.
There is no complaint in the grounds of appeal about the invoices and chits found in the appellant’s shop being received in evidence. There is a complaint in ground 1 about the admission of carbon copies of the bill notices sent by the bank to the appellant, asking him to pay for the invoices. When the carbon copies were tendered, defending counsel at first objected: he said that the originals were in the file taken from the appellant’s shop. Mr.. Phillips had given evidence that the file got lost in the Customs. Moreover, there was no evidence from the appellant, to whom notice to produce the originals was given, that they were in that file. He might have destroyed them as being of no use to him after he had paid the amounts in at the bank. Defending counsel said he had no objection to the carbon copies going in, and they were received. Here again it seems to us that those copies were rightly admitted in evidence.
Incidentally, Invoice C bears the bank number 13150, which is also the number on the carbon bill notice U3; invoice D has the bank number 13231, so has the carbon bill U2; and 12018 is the bank number on invoice Fl and the carbon bill notice T. As the appellant paid in at the bank and obtained the invoices, the objection now made in ground I about the carbon bill notices has no meaning.
The person who cleared the goods from the customs was the witness Agoro; he did so as the appellant’s agent. He prepared the bills of entry from invoices, but they cannot have been the invoices found at the appellant’s shop: they must have been other invoices showing a smaller quantity of goods and a lower value – that is to say, the quantity and value in the copy bills of entry C, D and Fl. Why they are called copies is obscure: they bear signatures in ink, and they are carbon copies. This point escaped notice all along. Are they not originals in their own right? The point has not been argued; it is left alone; they are treated here as copies rightly admitted because the top originals could not be found. The bogus invoices could not be found either. Who was it that gave them to Agoro? Was it the appellant? Was it his clerk Onasanya? And who was it gave Agoro the money to pay the duty with?
One count relates to October, 1956, the other two to the 10th January, 1957. The preliminary inquiry before the magistrate took place in October, 1957; the trial was in October, 1962. In between, after the committal for trial a nolle was put in. Those concerned in criminal prosecutions and trials would do well to bear in mind that with the lapse of time the memory of witnesses weakens, and that the sooner the case is heard the better; for delay in the trial favours the accused. Naturally, a good deal was made of the memory of Agoro on who gave him the bogus invoices and on who paid for the duty or gave him the money to pay for the duty; and he was reminded of what he had said to the magistrate. The complaint in ground 2 is that
“The learned trial Judge erred in law in accepting the evidence of Rafiu Agoro in respect of exhibits A and B as he admitted under cross-examination that he received these invoices from one Olu Onasanya.”
This was the clerk of the appellant. Agoro agreed that the clerk gave him the invoices, but it was the appellant who gave him the money for the payment of the duty. The appellant himself said in his statement to the police dated 18th January, 1957 – a day close to the events –
“I used to give money to Mr.. Agoro to pay for duties and other charges. I give him cash and he goes to the Bank and pay and collect receipts. I have never given any cheque to Mr.. Agoro.”
The hint of this defence is that he gave the right amount; but the appellant gave no evidence to contradict Agoro’s evidence that the duty paid on bill of entry A was £24: 16: 8d. (instead of £403: 16: 4d.), that on £51: 10:- (instead of £334: 10: 4d) and that on B £21: 8: 8d. (instead of £399).
An importer would wish to see the receipts obtained by his clearing agent, so as to check on the duty paid, compared with the amount he gave for it. In his statement to the police the appellant says –
“I used to get from Mr.. Agoro receipts of the amount paid for duty and other charges, but in all these documents shown to me, Mr.. Agoro had not as yet sent me their receipts, but he told me he shall send them to me which he has not.”
Agoro’s evidence is that he gave the receipts to the appellant and that the appellant paid him for his services. That imports that Agoro had done all he had to do – brought the goods and the receipts; and whether he handed them to the appellant in person or to his clerk makes no difference: for the appellant would not have paid Agoro unless he had brought in his receipts with the goods.
It is significant that in his statement to the police of 18th January, 1957, the appellant said –
“I have been shown a chit attached to invoice showing the invoice value and customs duty, this chit was written by me. It includes customs rent and handling charges as well, also bank charges. I made this chit showing the amount therein from a paper I received from my customs agent by name Mr.. Agoro. I have destroyed this paper from Mr.. Agoro after I have made out the list.”
That is near the beginning of the statement. At the end of it, the appellant states that Agoro had not so far sent him the receipts for the amount paid for duty and other charges. The implication is that the appellant does not know what Agoro paid for duty. One would have expected him to attach Agoro’s note of expenses to the invoice, instead of destroying it. On the evidence the trial Judge did well to believe Agoro.
Mr. Anisiobi, for the Crown, has pointed out that the true original invoices were found in the appellant’s safe, which meant that he suppressed them. That is damning and unanswerable: for it means that he gave out other invoices for Agoro to prepare the bills of entry by; and whether he sent the other invoices direct to Agoro, as his statement is to the Police of 22nd January, 1957, or gave them to his clerk to give to Agoro, as Agoro’s evidence is, does not matter.
Agoro looked at the bills of entry carbon copies which are exhibits B, A and 0 and identified them as carbon copies of bills he prepared for the appellant from invoices giving the information he put in the bills of entry. They were bogus invoices supplied by the appellant. That was the reasonable inference on the evidence, and the ground of appeal No. 4, that –
“The verdict is unreasonable and unwarranted and cannot be supported having regard to the weight of evidence” – must fail. (incidentally, those words, “weight of’, are wrong in a criminal appeal.)
The appeal is dismissed.
TAYLOR, F.J.: I concur.
COKER, AG. F.J.: I concur.