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IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 8TH DAY OF OCTOBER, 1976
SUIT NO: SC.23/1976
(1976) NMLR 184
(1976) 9-10 S.C.
ATANDA FATAYI-WILLIAMS, JSC
CHARLES OLUSOJI MADARIKAN, JSC
MOHAMMED BELLO, JSC
W.O. KUYATSEMI, FOR THE 1ST APPELLANT
O.O. JIBOWU, FOR THE 2ND APPELLANT – FOR THE APPELANTS
G.O.U. OKUNGBOWO – FOR THE RESPONDENTS
CRIMINAL LAW AND PROCEDURE- CONSPIRACY:- A count charging general conspiracy to commit an offence – Whether needs to state the object of the conspiracy with the same certainty as a charge for the offence conspired to be committed
PRACTICE AND PROCEDURE – EVIDENCE:- Witness – Making of multiple statement to the Police – Whether ground for discrediting the witness – Proper treatment of
PRACTICE AND PROCEDURE – APPEAL – JUDGMENT – ORDER OF RETRIAL:- Guiding principles under which the court will order a retrial when an appeal has been allowed – and do the facts of the case in hand come within any of those principles? In this respect, we refer to the following principles laid down by the Federal Supreme Court in Yesufu Abodundu & ors. v. The Queen (1959) 4 FSC 70 at pp. 73-74: “We are of opinion that before deciding to order a retrial, this court must be satisfied “(a) that there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand this court is unable to say that there has been no miscarriage of justice, and to invoke the proviso to Section 11(1) of the ordinance; (b) that leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the appellant; (c) that there are no such special circumstances as would render it oppressive to put the appellant on trial a second time; (d) that the offence or offences of which the appellant was convicted, or the consequences to the appellant or any other person of the conviction or acquittal of the appellant, are not merely trivial; and (e) that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it The provisions of Section 11(1) of the Federal Supreme Court (Appeal) Ordinance referred to above have now been re-enacted as Section 26(1) of the Supreme Court Act, 1960. The principles set out above must co-exist before a case is sent back for retrial – (see Akwa v. The Queen (1969) 1 All NLR 133). Following these principles, we are of the opinion that this is a proper case for ordering a retrial of the second appellant, particularly as he has been on bail and has not served any of the sentences passed on him.” PER BELLO, J.S.C. (Pp. 16-17, paras. C-F) –
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.
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 1200pounds and 0473 for 8500pounds 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 791pounds 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 823pounds as his share out of the proceeds of the cheques while 2nd appellant got 863pounds and Lt. Osumah kept 805pounds 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 1200pounds 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”.
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”.
(b) “Then the 3rd accused said he was taking the cheques to the 1st accused to make sure whether they were right or wrong ……… the cheques were pronounced all right”
(c) “Of the four persons, whose shares were given to the 3rd accused, I know only one of them and that was the 1st accused …….. I was told this by the 3rd accused”
when the 1st accused was not present, or being hearsay”.
We agree with the argument of the counsel for the 1st appellant that in so far as the evidence complained of under this ground referred to the 1st appellant in respect of the stealing counts, it is hearsay and is inadmissible. It is however, admissible against the other accused persons. On the other hand, in so far as the evidence complained of concerns the charge of conspiracy, it is admissible by virtue of Section 11 of the Evidence Act against all the accused persons, including the 1st appellant, as it related to things said or done by one conspirator or other in execution or furtherance of the common intention of them all. It follows therefore that the admission of the evidence in question was not wrongful. Moreover, in so far as it is inadmissible against the 1st appellant in respect of the stealing counts, the judgment of the trial Judge does not show that the trial Judge took it into account in convicting the 1st appellant on those counts. See Section 226(1) of the Evidence Act.
The result is that all the grounds argued in favour of the 1st appellant fail and his appeal will be dismissed.
We now proceed to consider the appeal of the 2nd appellant. Because of the cursory and meagre treatment given by the learned trial Judge to the evidence concerning the 2nd appellant, we consider it pertinent to quote in full the only reference he made to the evidence:
“I now come to the charge relating to Conspiracy, which learned counsel described as being “vague for uncertainty”. The 1st accused lived in Benin and the 2nd accused lived in Ibadan at one time the 1st accused was a co-tenant of the late 3rd accused. Sometime there was a meeting at the house of the 2nd accused with Ahuizu, the 13th P.W. where a paper (Exhibit 4) was handed to him to enable him to practise forging the signatures. The 2nd accused traveled to Benin with 13th P.W. and paid the fare”.
Thereafter, the learned Judge considered the evidence relating to the 1st appellant and having disposed of that he simply adjudged thecase against the 2nd appellant thus:
“the 2nd accused is guilty under count 1 and the counts relating to uttering and stealing”.
He then sentenced the 2nd appellant to 20 months imprisonment for count 1 and 18 months each for counts 3, 5, 6, 8, 9, 11, 12 and 13.
The two grounds of appeal argued at the hearing of the appeal are:
“3. The learned trial Judge erred in law in passing sentence on the 2nd appellant on counts 3, 6, 9 and 12, although the learned trial Judge failed to make finding of guilt against the 2nd appellant.
It is transparently clear that apart from the brief reference to the evidence relating to the conspiracy charge, as we have quoted earlier on, the learned Judge failed to consider the evidence adduced by the prosecution in their case against the 2nd appellant. He also failed to consider the defence of the 2nd appellant. He did not state the points for determination, his decision thereon and his reasons for the decision in convicting the 2nd appellant on the conspiracy charge and the charges relating to the uttering and stealing as he is mandated to do by the provisions of Section 245 of the Criminal Procedure Act, which provides:
“245.The Judge or magistrate shall record his judgment in writing and every such judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed by the Judge or magistrate at the time of pronouncing it: provided that in the case of a magistrate in lieu of writing such judgment it shall be a sufficient compliance under this section if the magistrate
(a) records briefly in the book his decision thereon and where necessary his reasons for such decision and delivers an oral judgment, or
(b) records such information in a prescribed form”.
It has been stated in a number of cases since the Queen v. Timothy Fadina (1958) 3 FSC 11 that the observance of the provisions of Section 245 of the Act is mandatory and that failure to do so constitutes miscarriage of justice which vitiates any conviction arising therefrom.
Not only did the learned trial Judge fail to comply with the mandatory provisions of the section, he also committed other errors in his verdicts and in sentencing the 2nd appellant.
The 2nd appellant was tried on 12 counts. He was charged under count 1 with conspiracy to steal contrary to Section 443 of the Criminal Code of the State; three counts of stealing under Section 331(8); four counts of forgery under Section 401 and four counts of uttering under Section 402 of the Code. The learned Judge did not return any verdict on counts 3, 6, 9 and 12, which are the forgery counts, and nevertheless, he sentenced the 2nd appellant to 18 months imprisonment for each of these counts. Furthermore, although he found the 2nd appellant guilty on the uttering counts 4, 7 and 10, he failed to pass any sentence on any of them.
Under the circumstances of the case, it is impossible to uphold any of the convictions of the 2nd appellant. However, the evidence adduced by the prosecution, which the trial Judge failed to consider, does disclose a substantial case against him.
The power of this court to order a retrial in a criminal case is derived from Section 26(2) of the Supreme Court Act 1960, and can only be exercised where the court has allowed an appeal and set aside a conviction. (See Osoba v. The Queen (1961) All NLR p. 237 at pp. 238-239). The next question is this. What are the guiding principles under which this court will order a retrial when an appeal has been allowed and do the facts of the case in hand come within any of those principles? In this respect, we refer to the following principles laid down by the Federal Supreme Court in Yesufu Abodundu & ors. v. The Queen (1959) 4 FSC 70 at pp. 73-74:
“We are of opinion that, before deciding to order a retrial, this court must be satisfied
“(a) that there has been an error in law (including the observance of the law of evidence) or an irregularity in procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand this court is unable to say that there has been no miscarriage of justice, and to invoke the proviso to Section 11(1) of the ordinance;
(b) that leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the appellant;
(c) that there are no such special circumstances as would render it oppressive to put the appellant on trial a second time;
(d) that the offence or offences of which the appellant was convicted, or the consequences to the appellant or any other person of the conviction or acquittal of the appellant, are not merely trivial; and
(e) that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it”.
The provisions of Section 11(1) of the Federal Supreme Court (Appeal) Ordinance referred to above have now been re-enacted as Section 26(1) of the Supreme Court Act, 1960. The principles set out above must co-exist before a case is sent back for retrial – (see Akwa v. The Queen (1969) 1 All NLR 133). Following these principles, we are of the opinion that this is a proper case for ordering a retrial of the second appellant, particularly as he has been on bail and has not served any of the sentences passed on him.
The result is that the appeal of the 1st appellant is dismissed. We affirm his convictions and sentences. His bail is hereby revoked and he shall be taken in custody to serve his sentences.
We accordingly allow the appeal of the 2nd appellant, quash the convictions and set aside the sentences. We order that the case against the 2nd appellant be re-tried before another Judge of the High Court of Bendel State in the Benin Judicial Division.