N. O. Amadi & Ors. V. The State (1993)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.S.C.

On Thursday, the 23rd September, 1993, when this appeal was argued, Mr. Onyeike, Legal Officer, Lagos State who represented the state told this court that he was not supporting conviction and sentence of 1st, 2nd and 3rd appellants. Having gone through the record I agree that learned legal officer is right. Consequently, I allowed the appeal argued by learned counsel for each appellant, discharged and acquitted them. I indicated then that I would give my reasons later. I now give my reasons.

The appellants together with five other accused persons were arraigned before Oladipo Williams, J. of Lagos High Court for offences of conspiracy to steal, conspiracy to commit forgery, stealing, forgery, uttering a false document and inducing delivery of money by false pretences.

The facts for the prosecution’s case were that six United Bank for Africa (U.B.A.) cheques belonging to NEPA were stolen from that Authority’s premises. The stolen cheques were later forged and fraudulently uttered to U.B.A which was induced to deliver them (the cheques) to the Bank of India, Lagos, with the pretence that a company known as Sadayan Overseas Industrial Company Limited was the owner of the sums of money expressed on the six cheques. The six cheques were exhibit I for the sum of N375,750.57, Exhibit 24 for N367,570.76, Exhibit 25 for N200.083.76, Exhibit 26 for N125,500.500, Exhibit 27 for N325,657.57 and Exhibit 28 for N375,250.75.

After the conclusion of hearing and evidence the learned trial judge, in a considered judgment, accepted that all the above listed cheques had been forged and large sums of money stolen. He found guilty and convicted the 1st, 2nd, 5th and 7th accused persons and sentenced them to various terms of imprisonment. The 4th and 6th accused died before the conclusion of the trial. The 3rd and 8th accused were found not guilty of the offences charged and were discharged and acquitted.

Dissatisfied with the trial courts’ decision the 1st, 2nd, 5th and 7th convicted persons appealed to the Court of Appeal. In a unanimous decision learned justices of the Court of Appeal dismissed the appeal. On further appeal to this court, Mr. N.D. Amadi, Mr. Daniel Okoroafor and Mr. Collins Ubaniocha filed notices and grounds of appeal. Only three appellants remain to prosecute the appeal from the decision of the Court of Appeal. The 1st accused, Mr. Orepekan had been released following the state pardon granted to him by the Lagos State Government. This appeal concerns Mr. N.D. Arnadi as the 1st appellant, Mr. Daniel Okoroafor as the 2nd appellant and Mr. Collins Ubaniocha as the 3rd appellant.

Mr. Ben Nwawjie, S.A.N formulated the following four issues for determination of the appeal of the 1st appellant:

“(i) Whether imprudent or negligent conduct can sustain a charge of stealing or conspiracy under the Code as held by the lower courts.

(ii) Whether the finding or conclusion that “the appellant must know when and how the cheque, exhibit 27, was removed from the relevant pad” was perverse and unsupportable from the evidence adduced at the trial.

(iii) Whether the sentence is not erroneous in law or too harsh.

(iv) Whether the decision is unreasonable and unsupportable having regard to the evidence led at the trial.”

Mr. Nwazojie referred to 1st appellant’s conviction on count of conspiracy to steal and the second count of stealing six blank cheque leaves belonging to NEPA and valued at 12 kobo. In finding 1st appellant guilty the learned trial judge said:

“I have no doubt at all in my mind that the 2nd accused must know when and how the cheque, exh. 27 was removed from the relevant pad or that he was grossly negligent up to the point of abandoning his duties entirely”

It was this finding which convinced the Court of Appeal to affirm the conviction of the 1st appellant. Mr. Nwazojie, S.A.N., submitted that the conviction of the 1st appellant for stealing the six cheques rested on the finding of the learned trial judge that 1st appellant was grossly negligent. The learned S.A.N. argued that negligence is not a mental element of stealing under the Criminal Code. Section 383 of the Code sets out six intents which must be proved in order to sustain a conviction for stealing. The conviction of 1st appellant was not based on any of those intents. The learned counsel distinguished the case of Edu v. C.O.P 14 WACA 163 in which Bairarnian J. (as he then was) was mistakenly held by both the trial court and the Court of Appeal to have decided that gross negligence is an element of an offence of stealing. Edu was convicted of an offence under S. 173(2) of the Criminal Code in which negligent act was made an ingredient of the offence. The section provides: