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23rd October, 1959.

SUIT NO. FSC 222/1959

3PLR/1959/68 (SC)









  1. E. R. OKORODUDU for the Appellant.
  2. W. E. WHEELER, Senior Crown Counsel, for the Respondent.


CRIMINAL LAW AND PROCEDURE: – Forgery of Finger-Printed document – Whether evidence of finger expert essential – Burden of proof – How discharged

EDUCATION LAW: – Access to education by women – enefits – implications for women in business and justice administration

PRACTICE AND PROCEDURE:- Proof of commission of crime – Need for same to be proved beyond reasonable doubt – Evidence Ordinance, s.137 – Propriety of convicting on “oath against oath”

CHILDREN AND WOMEN LAW: – Women in business – Education – Effect on transactions and judicial proceedings



The appellant in this case, who was convicted by the Chief Magistrate, Lagos, was originally the Principal witness for the plaintiff in a Civil Suit between Messrs Mandillas & Karaberis v. Madam Alice Olabisi Dipeolu. In that case the present appellant, giving evidence for the plaintiffs in the case, relied on a document (a receipt) which, he alleged, was thumb impressed by the defendant, Madam Dipeolu. The latter denied the allegation stating that she is partially literate and she can sign her name and has never thumb impressed any document. The learned Judge who was hearing the case thereupon adjourned further proceedings and sent the document to the Police for investigations.

The principal witness, who is now the accused or appellant in the present case was later charged before the Chief Magistrate on three counts with offences of forgery, uttering and perjury. He was convicted on the three counts. He appealed unsuccessfully to the High Court and has now appealed to this Court against his conviction.

There are a number of grounds of appeal presented to us but the two grounds which need be considered by us are the first and third grounds, which were argued together. They are as follows:

“1.     That a material witness, to wit, the finger-print expert, was not called by the Court or by the prosecution nor was his absence explained.

  1. That inadmissible evidence, to wit, hearsay report about the alleged fingerprints was admitted by the learned Magistrate which said evidence affected his decision.”

It is convenient to dispose of the third ground by saying that there was nowhere in the proceedings before the learned Magistrate evidence given about a report of finger-prints. On the contrary, the absence of a report on the thumb impressed document was conspicuous in the proceedings. The matter of the finger-print expert was first introduced by Counsel for the appellant on a submission of no case to answer; he submitted it was fatal for the case for the prosecution that he (the expert) was not called to give evidence. For the prosecution, it was stated that his evidence was not necessary and the case for the prosecution was established without it. It would appear, however, that the Police were in possession of a report which, the learned Magistrate stated in his judgment (not his note of evidence), Crown Counsel said was available to Counsel for the accused.  It was, however not made use of by him.

With regard to the first ground of appeal, Counsel argued that the offence of forgery could not have been brought home to the appellant without the evidence of the finger-print expert to prove that the thumb impression on the document was not that of the 4th witness for the prosecution, Madam Dipeolu, and that his evidence, in the circumstances, would have been the deciding factor between the evidence of Madam Dipeolu, who denied making the thumb impression, and the appellant who averred the affirmative.

Now, the commission of a crime by a party must be proved beyond reasonable doubt. The burden of proving that any person is guilty of a crime rests on the person who asserts it, and this is the law as laid down in section 137 of the Evidence Ordinance, Cap.62. The burden of proof lies on the prosecution and it never shifts; and if on the whole evidence the Court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof which the law lays upon it and the prisoner is entitled to an acquittal. But this does not mean, as argued before us, that the prosecution must call every available piece of evidence to prove its case; k is enough if sufficient evidence is called to discharge the onus which the law lays upon the prosecution.

In this appeal, Counsel for the appellant has attacked the judgment of the learned Magistrate on the ground that, the finger-print expert not having been called by the prosecution or by the Court to give evidence, the learned Magistrate has convicted the appellant on what Counsel called “oath against oath”, that is, the evidence of Madam Dipeolu as against that of the appellant; that the only evidence which would have clinched the matter one way or the other was the evidence of the expert, which was not called.

We are not prepared to say that a Magistrate may not convict on what is commonly called “oath against oath” if, as in this case, he has sufficient reason to prefer the evidence of the witness for the prosecution to that of the accused.

In the present case, the learned Magistrate in his detailed and careful judgment considered other collateral facts which, rightly in our view, he found satisfactorily proved and accepted, and which served as corroboration of the evidence of Madam Dipeolu that the document was not thumb impressed by her. Mention may be made of two or three of these facts. In the first place there was ample evidence that Madam Dipeolu had written letters to the appellant which the accused could have produced if they were thumb impressed and not signed. She was not even cross-examined about this. It was also established beyond doubt that the forged document, although it bears the date 5/12/52 could only have been made between 10/10/53 and 17/1/54 as the adhesive stamp on it was not in circulation before 1/9/53; and this is confirmed by the position of the said document (receipt) in the receipt book tendered in evidence. Although he had the opportunity to refer to it in his statement to the police and in previous litigation between himself and Madam Dipeolu, it is strange that not until the matter of the adhesive stamp was raised in this case, did the appellant say anything about a previous ‘temporary’ receipt, which he said was destroyed and that the present one (the alleged forgery) was a substitute for the ‘temporary” one. This piece of evidence by the appellant was also found to be untrue because he and Madam Dipeolu had by 1/9/53 fallen out and it was unlikely she would make a fresh receipt then.

On the face of all this evidence, it was clear to the learned Magistrate, as it is to us, that the case for the prosecution was established beyond any shadow of doubt.

We cannot on the face of this preponderance of evidence against the appellant accept the submission made by Counsel that it was the evidence of the expert that could have decided the matter. Without the evidence of the expert, in our view, the guilt of the appellant is clear.

The prosecution is not bound to call an expert in order to establish its case; it may do so in certain cases; and although the evidence of an expert, when called in certain cases, cannot be lightly disregarded, such evidence is no more than an opinion or belief, which may or may not be accepted.

This appeal must therefore fail and it is dismissed.


Appeal dismissed.



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