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SUIT NO. LD/30CA/68.

3PLR/1968/26 (HC-L)






Desalu – for the Appellant

Bada – for the Respondent



CRIMINAL LAW – Attempt to commit felony-Forgery-Voucher-Whether attempt to steal takes place before presenta-tion of voucher to cashier for encashment.




The appellant was charged on four counts but convicted on the following three counts in the court below:-

(1) Forgery of a petty Cash Voucher No. 1128 contra s.467 C.C.

(2) Uttering the same Petty Cash Voucher to Mr. G. Netts Accountant of Leventis Motors Ltd. Apapa contra s.468 C.C.

(3) Attempting to steal contra s.509 C.C.

The learned Magistrate having found the appellant guilty passed a sen-tence of 6 months I.H.L. on Count l, 3 months I.H.L. on Count 2 and 3 months I.H.L. on Count 3 to run consecutively. The appellant has appealed against the conviction and sentence and argued 2 additional grounds of appeal and four original grounds in support of this appeal. Shortly the facts were these. The appellant was a salesman employed by Messrs. Leventis Motors Ltd. Ebute Metta. He was entitled to commission on vehicles sold through him in addition to his normal salary. Before these commissions are paid out it is his duty to prepare the particulars supporting such commission. It is also his duty to prepare a Petty Cash Voucher showing the amount to which he is entitled. He presents these documents to the Sales Manager for approval and when so approved he presents them to the Chief Account for approval. If approved they are then presented to the Cashier for payment. On the relevant day the accused prepared these documents and the Petty Cash Voucher No. 1128 Exhibit ‘J’ purported to have been signed by Mr. Asterious Zotiades the Sales Manager of Leventis Motors Ltd. Then the accused presented it to Mr. Netts P .W. 1 for approval. Mr. Netts not being satisfied told the accused that he wanted to see Mr. Zotiades personally whereupon the accused seized both books and ran out of the office and out of the building down the Apapa Road where he was apprehended with the aid of some members of the Armed Forces. But this time, however, he had partly destroyed the Petty Cash Voucher Exhibit ‘J’.

Mr. Zotiades was emphatical in his evidence that he did not sign his name on Exhibit ‘J’ though the accused testified that he did. The learned Trial Magistrate held that:-

“The accused claimed in his evidence that the presented Exhibit `L’ to the 2nd prosecution witness on the 1/12/66 and that the 2nd prosecution witness signed it in his presence. I do not believe the accused on this point as it is my finding that the accused never presented the 2 documents Exhibits `L’ and `J’ to the 2nd prosecution witness before presenting them to Mr. Netts the 1 st prosecution witness at the Apapa Office of Leventis Motors Limited.”

A little later on the learned Trial Magistrate held that:-

“I agree with the submission of the Counsel for the accused that no direct evidence has been adduced to show that it was the accused who forged the signature of the 2nd prosecution witness on Exhibit `L’ as well as Exhibit `J’ but I am satisfied it was not the 2nd prosecution witness who signed it.

Direct evidence is of course not essential, if by direct evidence is meant evidence of someone who actually saw the accused make the signature com-plained of. I have said over and over again that it is not the duty of a hand-writing expert to testify that the disputed signature is that of the accused. It is merely his duty to testify as to the similarities and or dissimilarities between the disputed writing and specimen writing given to him for com-parison. It is then for the Court to make the final decision. In the case before me the evidence, circumstantial as it is, is simply overwhelming that the accused committed the forgery. There is a presumption of law that a person who is in possession of a forged instrument is the forger and more so where there is proof as in this case that he uttered the document and stands to gain by that uttering. Added to this is the behaviour of the accused when Mr. Netts informed him that he Mr. Nefs would check up from Mr. Zotiades. The act of the accused was far from being that of an innocent man.

There is no substance in the grounds of appeal argued in respect of Counts 1 and 2 and I did not call on the respondent to reply.

On Count 3 however, the burning question is whether an attempt to steal takes place before the voucher is presented to the Cashier for encashment?

In the case of Rex v. Ajani & Ors. 3 WA.C.A. 8 Kingdon, C.J., quoted at page 8 the definition of an attempt as:-

“When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is said to attempt to commit the offence”.

In the case of R v. Ring & Ors 17 Cox 491 at 492 the accused persons were held rightly convicted of attempting to commit a felony when in a crowded railway platform they hustled a woman who was entering a compartment and one of them was seen trying to find the pocket of her dress. In the case before me the accused had taken two steps towards the stealing. He had forged the signature of Mr. Zotiades and he had uttered the voucher to the Accountant, the fact that he had not taken the final step does not in my view take the case out of the definition of an attempt. He intended to steal; he began to put his intention into execution by means adapted to its fulfilment and manifested his intention by forging the signature of Mr. Zotiades and uttering the forged document.

In my view in spite of the fact that the respondent did not support the con-viction on this count, the charge was brought home to the accused and the appeal against the conviction must be dismissed.

On the appeal against the sentence the law is clear that the sentence in such circumstances as this should have been concurrent and not consecutive. For this reason the appeal against sentence succeeds and the appellant is sen-tenced as ordered by the Trial Magistrate but the sentences will run concur-rently.

In all the appellant will serve a term of 6 months I.H.L. instead of 12 months I.H.L. as ordered by the Trial Magistrate.

Appeal against conviction dismissed: Appeal against sentence allowed: Sentence ordered by trial magistrate to run concurrently.



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