Bustin Okpara (Alias Austin Okpara) V. The Federal Republic Of Nigeria
LawGlobal-Hub Lead Judgment Report
BELLO, J.S.C.
The appellant was convicted in the Federal Revenue Court sitting at Lagos of two counts on a charge alleging that he had in his possession some counterfeit American bank notes knowing the same to be counterfeit contrary to Section 5(1)(b) of the Counterfeit Currency (Special Provisions) Decree, 1974 and was sentenced to 21 years imprisonment on each count to run concurrently. We allowed his appeal on 10th March, 1977, set aside the convictions and sentences and directed that a verdict of acquittal and order of discharge be entered in respect of both counts. We now state our reasons.
The fact that the appellant had in his possession one hundred and eleven American Bank notes was not in dispute. On 19th July 1973, at the Octopus Hotel, two police officers searched the appellant and found in his possession eleven American bank notes each of $100 denomination and as the result of information given to the two police officers by the appellant thereat, the officers accompanied the appellant to his house wherein he produced and delivered to the officers one hundred other American bank notes each also of $100 denomination.
The police, suspecting the bank notes to be counterfeit, sent them to the Central Bank of Nigeria for verification. It appears that the Central Bank could not verify the authenticity or falsity of the bank notes and so in its turn the Central Bank dispatched them to the Department of Trade in the United States of America for that purpose. Thereafter, the Department of State conveyed by a letter the result of its examination of the bank notes to the Central Bank. Relying on the information contained in the letter of the Department, the Central Bank communicated the result to the police by its letter dated 21st February 1974, which was admitted in evidence at the trial as Exhibit G1. the relevant part of Exhibit G1 reads:-“Dear Sir,
I return herewith the under listed one hundred and eleven American dollars ($100 denomination) sent to us under cover of your Ar.2110/X/C/1943 dated 28th September, 1973 which have now been confirmed to be forged notes.”
The eleven bank notes found in the possession of the appellant at the Hotel were the subject of the first count while the one hundred notes produced by him at his house were the subject of the other count. In addition to the two police officers, an official of the Central Bank (P.W.3) testified for the prosecution at the trial. He simply identified Exhibit G1 as issuing from the Central Bank and informed the trial court that its content was based on the correspondence between the bank and the Department of Trade of the United States of America.
The defence of the appellant in his statements to the police and his evidence at the trial was that all the bank notes had been given to him by one Alhaji Mamoud Cisse to sell as a commission agent and that he did not know that they were counterfeit.
The learned trial Judge in his judgment, after having indicated that the evidence of the appellant showing Alhaji Mamoud to be the owner of the bank notes was irrelevant on the ground that the counts were founded on possession and not on ownership, proceeded to reject the defence of the appellant that he did not know that they were counterfeit and found that the appellant was in possession of the bank notes knowing the same to be counterfeit. He convicted the appellant accordingly.
The only ground argued at the hearing of the appeal was that the learned trial Judge erred in law in convicting the appellant when there was no proof that the notes were counterfeit. The learned counsel for the appellant contended that the evidence of the official of the Central Bank (P.W.3) and the content of the letter, Exhibit G1, were hearsay evidence in so far as it related to the falsity of the bank notes and that as such it was inadmissible in evidence. He submitted that there was no evidence of a credible witness proving the notes to be false or counterfeit within the ambit of Section 12 of the Decree.
In his reply the learned Deputy Director of Public Prosecutions who appeared for the respondent, although he conceded that the evidence of P.W.3 and the content of Exhibit G1 were hearsay evidence, nevertheless, invited us – though half-heartedly – to uphold the convictions.
In the trial of an offence under Section 5 (1) (b) of the Decree, the prosecution must prove, among other things that the bank notes found in the possession of the accused person are in fact counterfeit within the definition of Section 17 of the Decree. The section defines “bank notes” and “counterfeit” in these terms:
“bank notes” in relation to a bank note which is legal tender in Nigeria means a promissory note payable to bearer on demand issued by the Central Bank of Nigeria and in relation to a bank note which is not legal tender in Nigeria means a promissory note payable to bearer on demand issued by lawful authority in the country in which such bank note is legal tender;
“counterfeit,” in relation to a bank note or current coin of a kind which is legal tender in Nigeria, means a bank note or current coin made or issued other than by or by the authority of the Central Bank of Nigeria and in relation to a bank note or current coin of a kind which is not legal tender in Nigeria means a bank note or current coin made or issued other than by or by the authority of the body which, under the laws of the country in which the bank note or current coin is legal tender, is authorised to make or issue such bank note or current coin;”
The prosecution may discharge that burden of proof in any of the following manners:
- By the production of a certificate purporting to have been signed by an officer of the Central Bank of Nigeria duly authorised by the Governor of the Central Bank of Nigeria for the purpose of Section 41 of the Evidence Act certifying therein the bank note to be false or counterfeit: Section 1 of the Evidence (Amendment) Act, 1964; or
- By the evidence of an expert on currency matters proving the bank note to be false or counterfeit as provided for by Section 56 of the Evidence Act; or
- By the evidence of a credible witness proving the bank note to be false or counterfeit in accordance with the provisions of Section 12 of the Decree.
In both the second and third modes of proof above indicated, the provisions of Sections 75 and 76 of the Evidence Act require the prosecution to call the expert or credible witness to attend court and to give oral evidence thereat.
We agree with the contention of the learned counsel for the appellant that the prosecution failed to discharge the burden of proof in that they did not produce a certificate signed by a proper officer of the Central Bank nor did they adduce oral evidence of an expert or credible witness proving the bank notes, the subject matter of the two counts, to be false or counterfeit within the meaning of Section 17 of the Decree. Exhibit G1 which purported to show the bank notes to have been forged, is hearsay evidence and is inadmissible in law for the purpose of taking it – within the purview of Section 41 of the Evidence Act- as sufficient evidence of the facts stated therein. The official of the Central bank (P.W.3) is neither an expert nor a credible witness in the circumstances of the case because he did not testify on the falsity of the bank notes in question from his own general knowledge of currency and bank notes. He simply conveyed to the trial court the opinion of the Department of Trade of the United States of America. In the result there was no admissible evidence proving the bank notes in question to be false or counterfeit.
Consequently, we allowed the appeal on this ground.
In view of the gravity of the offences, we have considered whether this is a proper case for ordering a retrial. The principles under which this court may order a retrial when an appeal has been allowed have been stated in Yesufu Abodundu & Ors. v. The Queen (1959) 5 FSC 70 and in the cases that followed it. The principles laid down by the cases, inter alia, are: that the evidence taken as a whole discloses a substantial case against the appellant; that there is no such special circumstance as would render it oppressive to put the appellant on trial a second time; and that to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it.
Now applying those principles to the facts of the case on appeal, it may be observed that the only issue of contention at the trial was whether the appellant had rebutted the presumption under Section 4(2) of the Decree that he had known the bank notes to be counterfeit. In his submission the learned Deputy Director of Public Prosecutions, who prosecuted the case, urged the trial court to regard the appellant as an unreliable witness and to reject his evidence in rebuttal of the presumption. In dealing with that submission, the trial Judge had this to say in his judgment:
“I regret very much, however, that I do not feel able to accept this submission of the learned Deputy Director of Public Prosecutions of the Federation in this matter. I have carefully observed the demeanour of the defendant in the witness box and I am unable to agree that he is an unreliable witness. He appears to me to have striven hard to speak the truth as much as possible under the strain and stress of the trial that he was going through and, in the utter confusion in which he has found himself he had made some statements which are obviously contradictory but which, although they may have been designed to establish a fictitious innocence, are clearly not evidence of a pathological addiction to falsehood. If he were an incorrigible liar as the prosecution seem to make him appear to be how, I wonder, could they explain the fact that, without any persuasion, he voluntarily confessed the part played by him in the commission of this offence and without which most of the facts would not have come to light”
It is astonishing that after having made the above finding that the appellant was a witness of truth, nevertheless, by some tortuous reasoning which appears to contradict that finding, the trial Judge proceeded to reject the evidence of the appellant and refuse to believe him. It seems to us that having regard to the finding of the trial Judge on the credibility of the appellant as a witness, the evidence taken as a whole cannot be said to have disclosed a substantial case against him. That being the case we do not think this is a proper case to make an order for retrial.
SC.408/1975
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