Asuquo Ekpenyong V The State (1967)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C.

Asuquo Eyo Ekpenyong, to whom we shall refer as the prisoner, was tried in the High Court of Lagos on sixteen counts, which may be sorted out as follows:

A. Forgery of cheques: counts 1, 4, 7, 10, 13.

B. Uttering of forged cheques: counts 2, 5, 8, 11, 14.

C. Stealing of money, the property of the Bank of West Africa: counts 3, 6, 9, 12, 15, 16.

The trial judge (Lambo, J.) convicted him on all counts- Case No. LA/4C/1967, on May 29th 1967 – and he has appealed against conviction.

The prisoner opened an account in a business name in the Bank of the North Ltd, with an amount of £60; a few days later he began paying Into k forged cheques drawn on the Bank of West Africa – five of them within the first fortnight of December 1965; and in those days drew cheques on his account: whence the counts of forgery, of uttering, and of stealing.

So far as the stealing counts are concerned, state counsel concedes that the conviction on them was wrong in law. When a person has an account which is in credit, the bank is his debtor to the extent of the credit balance; and when he draws money on his account the money he is paid is the money of the bank. In this case the prisoner had his account with the Bank of the North Limited, and the amounts in the counts of stealing were the amounts which he drew on his account in that Bank; so it could not be said that those amounts were the property of the Bank of West Africa – which is what the counts on stealing allege. The court therefore indicated at the hearing on 30th November, that the convictions and sentences on those counts would be quashed.

That opened up the problem of the sentences passed by the trial court on the forgery and uttering counts – three years on each count, with all the terms to run concurrently. We thought that as the amounts involved were In the neighbourhood of £10,000, three years would be too little; moreover, the trial judge passed six sentences on the counts of stealing – two years on count 3, four years on count 6, one year on count 9, two and half years on count 12, two and a half year on count 15, and three years on count 16 – and ordered them to run consecutively, thus making a total of fifteen years. We therefore drew attention to the provisions of s.27(1) of the Federal Supreme Court Act,. 1960, and adjourned to 2nd December, so that counsel should have an opportunity of considering that subsection, which provides that:

“27(1) If it appears to the Supreme Court that an appellant, though not properly convicted on some count or part of the information or charge, has been properly convicted on some other count or part of the information or charge, the Court may either affirm the sentence passed on the appellant at the trial, or pass such sentence in substitution therefor as it thinks proper, and as may be warranted in law by the verdict on the count or part of the information or charge on which the Court considers that the appellant has been properly convicted.”

Counsel had an opportunity before the adjourned hearing of looking at the relevant cases, which are –

(1) O’Grady, (1941) 28 Cr. App. R.p. 33.

(2) R. v. Lovelock (1956) 1 W.L.R. p.1217.

(3) The Queen v. Edirimanasingham (1961) A.C. p. 454 (P.C).