J.E.A. Iyorliam Vs The State (1973)

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ELIAS, CJN.

In Suit No. JD/46C/1972, the accused (herein appellant) was charged and convicted in the High Court, Jos, on the following two out of four charges:

“(1) That you Japan Ahangba Iyorliam on or about the 13th day of October, 1971 at Jos within the Benue-Plateau Judicial Division cheated by personation, by knowingly substituting one unknown person for a certain Innocent Chiekezi Ekwerike to the Probate Clerk as the grantee of a letter of administration, and that you thereby committed an offence under Section 321 of the Penal Code, punishable under Section 324 of the same Code.

(2) That you Japan Esaias Ahangba Iyorliam sometime between October and November, 1971 at Jos within the Benue – Plateau Judicial Division cheated the Probate Clerk. Judicial Department, Jos by dishonestly inducing him to deliver to a certain unknown person, Letters of Administration belonging to one Innocent Chiekezi Ekwerike and that you thereby committed an offence punishable under Section 325 of the Penal Code.”

The prosecution case is that the accused was consulted by a Mr.  Innocent Chiekezi Ekwerike who was a brother of a Mr. Ethelbert Anagaraku Ekwerike who died intestate at Gboko in 1966 leaving, inter alia, a balance of £554:0:3d. in his account with Barclays Bank Limited, Makurdi. When Innocent Ekwerike attempted to use his brother’s passbook to claim the money from Barclays Bank Limited, he was advised to obtain Letters of Administration from the Probate Registry in Jos on the production of which alone, he would be able to collect the money.

He accordingly applied to the Probate Registry where Mr. J.E.A. Iyorliam was Probate Registrar. Soon thereafter, Mr. Iyorliam was transferred to the Chief Magistrate’s Court, but the Letters of Administration had not up till then been issued to Innocent Ekwerike. Iyorliam nevertheless brought an unknown person to a Mr. Alfred Gaji Hassan who took over from him as Probate Registrar and introduced the latter to him as Innocent Ekwerike to whom he should hand-over the Letters of Administration personally as soon as these were ready for collection, at the same time instructing him never to post the letters.

The Letters of Administration were in due course delivered to this unknown man who had been introduced to Mr. Hassan by Mr. Iyorliam, although Mr. Hassan would appear to have handed over the letters to the unknown man both on the strength of the introduction by Mr. Iyorliam, and also as a result of a certain letter evidencing the signature of the unknown man. Mr. Innocent Ekwerike then wrote a letter on November 30, 1971 asking for the grant of Letters of Administration in respect of which he had paid an estate fee of £39:14/- and, in consequence of an exchange of correspondence between him and Mr. Hassan, the Probate Registrar, he finally called at the Registry on January 14, 1972, when he was informed that someone else had collected the Letters of Administration. It would seem that in the meantime, the Letters of Administration had been presented to the Barclays Bank Limited, Makurdi, for the purpose of withdrawing the balance of £554:0:3d. from the account of Mr. E.A. Ekwerike (deceased), but that Barclays Bank had insisted on some evidence of identity of the claimant.

Mr. Iyorliam would seem to have been of some service to this unknown man by preparing and presenting an affidavit from the Chief Magistrate’s Court sworn to by him vouching for the identity of the claimant, on the strength of which the money was paid to the claimant. This, Mr. Innocent Ekwerike found explained to him when he called at the Barclays bank and was shown by the Bank manager both the Letters of Administration and the affidavit sworn to in support of it in a court at Jos; the affidavit was to the effect that the passbook had been lost, and the signature on the stamp of the affidavit was that of Mr. J.E.A. Iyorliam, an officer of the High Court of Justice, Jos. It is interesting to note that the Bank Manager identified the person who claimed the money as Mr. Iyorliam himself.

On these facts, Kawu, Ag. J., as he then was, discharged the accused from the first and third charges against him but convicted him on the second and the third alternative charges.  The present appeal has been brought against the conviction on both charges on the following six grounds;

“(1) That the learned trial Judge misdirected himself generally on the principles of law relating to the onus of proof in criminal cases, and this misdirection led to failure of justice.

(2) That the learned trial Judge erred in law in convicting the appellant of the offences of cheating by personation (S. 324 P.C.) and cheating under S. 325 P.C. having earlier acquitted him of the offence of abetment of cheating (S. 85) when the evidence in respect of all the charges was the same

(3) That the lower court erred in law in convicting the appellant of the offences charged, on the uncorroborated evidence of P.W.3, namely, Alfred Gaji Hassan, inter alia, without the requisite warning, and this occasioned miscarriage of justice.

(4) That the learned trial Judge erred in law in convicting the appellant of the offences of cheating by personation, S. 324 P.C., and cheating, S. 325 P.C., when the onus of proof laid on the prosecution by law was not discharged.

(5) That the judgment is altogether unwarranted, unreasonable and cannot be supported having regard to the evidence.