E.O Okonofua & Anor V. The State (1981)

LawGlobal-Hub Lead Judgment Report

BELLO, J.S.C. 

The 1st appellant was the Chief Superintendent of Police in charge of No. 4 Squadron of the Police Mobile Force, Ibadan and he controlled the rations vote for the Squadron. The 2nd appellant was Assistant Superintendent of Police and was the second in command of the Squadron. He was responsible for ordering rations to be supplied to the squadron and for certifying receipt  of rations ordered.

The case for the prosecution in the High Court, Ibadan was that in their exuberance to spend the rations vote before it lapsed at the end of the 1974-1975 financial year, the two appellants conspired together to steal and  in furtherance of the conspiracy stole several sums of money amounting to N5096.00 from the vote. The two appellants were charged together on information containing seven counts: Count 1 of conspiracy to steal contrary to Section 443; counts 2,3 and 4 of stealing the sums of N1,744.50, N475 and N2000 respectively contrary to Section 324 (2) (a) counts 5, 6 and 7 of making false statement by officials in Payment vouchers for the payments of the said sums contrary to Section 87 of the Criminal code, Cap. 28, Laws of Western Nigeria, 1959.

The fraud was hatched and perpetrated through the instrument of a contractor, G.A. Oriekun (P.W.3). He testified that on 18th March 1975 one P.C. Okoha invited him to the office of 1st appellant who told the witness that it was the 2nd appellant that had sent for him. At the office of the  2nd appellant, the 2nd appellant and P.W.3 agreed to make a deal in which P.W.3 would submit an invoice for the supply of food items to the value of N2621.50 to the Squadron on the understanding that he would not supply all the items to the invoice and the money for the items not supplied would be shared in the proportion of one third to P.W.3 and the two-thirds to the 2nd appellant and his confederates.

Pursuant to the arrangement P.W.3 prepared the estimate, Exhibit 1, for the supply of food items valued at N2621.50. Acting on the instruction of the 2nd appellant, Sgt. Edun (P.W.7) signed the estimate on the 19th March, 1975 in the presence of P.W.3 .  The Local Purchase Order dated 17th March, 1975, Exhibit 7, signed by the 1st appellant was purported to have been the order for the food items. On 20th March, 1975, the 2nd appellant passed the estimate, exhibit 1, to Sgt. Olaegbe (P.W.8) with instructions to prepare a payment voucher for the same. P.W.8 prepared the payment voucher for N2621.50, exhibit 5, showing the goods had been supplied. Two certificates were endorsed on the voucher, one signed by the 1st appellant as the officer controlling expenditure which reads:

” I certify the above amount is correct and was incurred under the authority qouted above: that the services had been duly performed, that the rate/price charged is according to regulations/contract fair and resonable: that the amount of N2621.50 may be paid under the Head, Subhead and items shown.”

The  Certificate signed by the 2nd appellant reads:

” I certify on honour that the foodstuffs were actually supplied by the contractor and utilised for the purpose intended in the interest of public service.”

On 27th March, 1975 the Police Pay Officer paid to P.w.3 the full amount of N2621.50 through the cheque for N3096.50, Exhibit 3. The cheque included another payment of N475 which I shall consider in due course. P.W.3 testified that he had not supplied any foodstuff at the time he was paid in full and that he later supplied some foodstuff worth N877 and no more. Sgt. Edun (P.W.7) the store-keeper confirmed that only some of the items ordered in exhibit 1 had been delivered to him by the contractor (P.W.3) about two weeks after 19th March 1975, when the sergeant signed exhibit 1.
The foregoing is the summary of the evidence adduced by the prosecution relating to counts 2 and 5.

The deal giving rise to counts 3 and 6 is as follows: The contractor testified that around 20th March 1975 the 2nd appellant asked him to assist him to recover the sum of N475 which he (the 2nd appellant) had spent in buying  bread for the Squadron and he asked P.W.3 to back-date the estimate to 11th February, 1975. Consequently, P.W.3 prepared back-dated estimate for the supply of bread valued at N475, Exhibit 2. It is significant to observe that the Local Purchase Order, Exhibit 6, purporting to be the order for the bread was signed by the 1st appellant and that on 20th March, 1975, the  1st appellant requested Sgt. Olaleye (P.W.27) to sign the estimate, Exhibit 2 as having received the bread stated therein on 11th February, 1975. In good faith the sergeant signed the estimate though he did not receive a loaf of bread. On the same date the 2nd appellant passed the estimate to Sgt. Olaegbe (P.W.8) who prepared the Payment Voucher for N475, Exhibit 4. Two certificates, similar to the certificate on Exhibit 5 which I have earlier on quoted, were signed by the two appellants on the voucher, Exhibit 4. P.w.3 was paid  the full amount through the cheque for N3096.50, exhibit 3, though he did not deliver any bread.

The evidence relating to counts 4 and 7 was concerned with the transaction founded on the estimate dated 29th March, 1975, Exhibit 8, which P.W.3 said he had also prepared at the request of 2nd appellant for the supply of foodstuff worth N2000. He said the 2nd appellant signed the bill as having received the foodstuff at the very moment P.W.3 prepared it. Sgt. Olaleye (P.W.27), who was familiar with the signature of the 2nd appellant, identified the signature of the officer who received the goods on exhibit 8 as that of the 2nd appellant. The foodstuff was purported to have been ordered by the Local Purchase Order dated 29th March, 1975, signed by the 1st appellant. On the very 29th March, 1975 the 1st appellant instructed Sgt. Olaegbe (P.W.8) to prepare a voucher for N2000 without any supporting document and the sergeant was reluctant to do so until after the 2nd appellant had given to him the estimate, Exhibit 8, that the sergeant prepared the Payment Voucher for N2000, Exhibit 10. The two appellants signed the certificates of supply and performance on the voucher and the  contractor (P.W.3) was paid the sum of N2000 as per cheque, Exhibit 9, though he did not supply any food items.

It is  pertinent to mention evidence relating  to the conduct of the appellants during the investigation of the case. On 16th May, 1975 the 1st appellant told Assistant Commissioner of Police, Johnson Odu (P.W.10) that all the foodstuff in question had been supplied and was in the store but when the Assistant Commissioner of Police invited the 1st appellant to check the store, he evaded stock-taking until on 5th July, 1975 when the Assistant Commissioner of Police had caught him by surprise. No foodstuff was found in the store. Earlier, ASP Makinde (P.W.15) had checked the store and found nothing on 2nd May, 1975.

The Commissioner of Police, Ibadan, Alhaji Tinubu (P.W.14) testified that the 1st appellant has confessed to him that there were deals whereby several sums of money had been paid out to a contractor on the pre that the contractor had supplied foodstuff to the Squadron. The 1st appellant begged the Commissioner to be lenient to suspend the investigation and offered to buy food stuff to put in the store. The Commissioner refused to accede to the request and ordered investigation to continue.

Finally on 23rd May, 1975 the 2nd appellant delivered to ASP Makinde (P.W.15) the sum of N202.50, exhibit 26, which the 2nd appellant informed the  witness was the money collected from his confederates as refund of part of the booty of the  fraud.