E.O Okonofua & Anor V. The State (1981)
LawGlobal-Hub Lead Judgment Report
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.
In spite of the overwhelming evidence implicating the 1st appellant, he did not offer any explanation except in his statement, Exhibit 14, wherein he simply said: ” I am innocent of this offence.” He did not give evidence at the trial. He did not make statement from the dock and did not call any witness.
In his defence the 2nd appellant denied entering into any conspiracy or procuring and counselling anyone to steal. He testified that all his actions were motivated by the exigencies of the ending of the financial year; that although he knew when he certified the payment vouchers that the foodstuff had not been supplied, he acted in good faith believing that they would be supplied later.
The learned trial Judge, after having considered the evidence meticulously, believed the evidence adduced by the prosecution and rejected the defence of the appellants. He found:
(1) that the appellants conspired together and with the contractor (P.W.3) to obtain money under false pretences with intent to defraud;
(2) that the 1st appellant aided the contractor (P.W.3) to obtain by false pretences with intent to defraud the sums of 2621.50 and N475;
(3) that the 2nd appellant procured, counselled and aided the contractor (P.W.3) to obtain by false pretence with intent to defraud the sum of N2621.50, N475 and N2000;
(4) that the 1st Appellanat knew when he signed the certificates on the Payment Vouchers for 2621.50 and N475, exhibits 5 and 4 respectively, that the foodstuff thereon had not been supplied and that the certificates were to his knowledge false. The same knowledge applied to the 2nd appellant in respect of the Payment vouchers for N2621.50 N475, and N2000.
Exercising his power under Section 174 (2) of the Criminal Procedure Act, the learned trial Judge convicted both appellants of counts 1, 2 and 3 of conspiracy to obtain by false pretence with intent to defraud and of obtaining by false pretence with intent to defraud contrary to Section 359 of the Code. He also convicted the 2nd appellant of count 4 of the same offence. He further convicted the 2nd appellant of counts 5, 6 and 7 as charged and the 1st appellant of counts 5 and 6. He gave the benefit of doubt to 1st appellant and acquitted and discharged him of counts 4 and 7. He sentenced both to several terms of imprisonments.
The Federal Court of Appeal allowed the appeal of the two appellants in respect of their convictions on the 1st count and set aside the convictions and sentences on that count. The appeals against the convictions on the other counts were dismissed and the convictions and sentences were confirmed. Being dissatisfied with the decision of the Court of Appeal, the appellants have appealed to this court, in the case of the 1st appellant on the following grounds:
“(i) The Court of Appeal erred in law in confirming the conviction of the appellant on the counts relating to false pretences and false claim by officials after discharging and acquitting the appellant on the count charging conspiracy, when without the count of conspiracy, only the evidence relating to the appellant (and not that relating to the acts and omissions of the co-accused) could be used against the appellant.
(a) Since there was no conspiracy between the appellant and the co-accused, evidence relating to each accused person should be independently considered. The Federal Court of Appeal did not draw this line in its consideration of the case of the appellant.
(b) If the Federal Court of Appeal had drawn this line and considered the evidence independently, it would not have affirmed the conviction of the appellant (the appellant was not in any way connected with the counts charging false pretence and on the other counts there had been a finding that the only reason why moneys involved were paid to the third prosecution witness was the representation made by the co-accused by signing the certificate of honour and that the elements of the offences charged were not proved.
(ii) The Federal Court of Appeal erred in law in confirming the conviction of the appellant after holding in effect that the complaints in Ground 2 (on corroboration) and Ground 5 (failure by the prosecution to call material witnesses) were sustained; but instead holding that there was no miscarriage of justice.
(a) Section 20(i) the Federal Court of Appeal Decree (1976) No.43 is not intended to cover a case where a court did not specify that there was in fact corroboration and/or what is taken to be such corroboration of the evidence of an accomplice.
(b) The Federal Court of Appeal took a strained view of its powers under Section 20(i) of No. 43 of 1976 in respect of miscarriage of justice.
(c) If the facts obtained by reference by the court of trial to the proofs of evidence not tendered in evidence were excluded, there would be nothing on the printed record on which that court could have held that Onaivi and Ukoha were not material witnesses.
(d) Onaivi and Ukoha were in fact material witnesses.
(iii) The Federal Court of Appeal erred in law in overruling the submissions relating to Section 174(2) of the Criminal Procedure Act, namely: that an accused person should be given sufficient notice of the intention of the court to rely on Section 174(2) to return a verdict of guilty of false pretences in a charge of stealing, so as to enable the accused person to produce evidence in defence or rebuttal of the envisaged offence. The procedure adopted breached the principles of natural justice.”
It appears the 1st ground of appeal and the argument of learned counsel for the 1st appellant were based on two remises, which are: Firstly, that the Court of Appeal set aside the conviction on count 1 because that court had found the 1st appellant was not a party to the conspiracy to obtain the money by false pretences with intent to defraud. Secondly, if the evidence relating to the conspiracy is expunged from the record because of the first premise, there is no other evidence showing that the 1st appellant knew the goods had not been supplied.
In my opinion, both premises are wrong. The Court of Appeal did not disturb the finding of fact made by the learned trial Judge that the 1st appellant was a party to the conspiracy with intent to defraud. The Court of Appeal set aside his conviction on the conspiracy count on procedural ground only, namely, in the view of that court Section 174 (2) of the Criminal Procedure Act does not empower a court to convict a person of conspiracy to obtain by false pretences with intent to defraud when the person has been charged with conspiracy to steal. The finding of fact that the 1st appellant was a party to the consipracy to obtain by false pretences, and there is overwhelming evidence supporting it, remains in the record. The 1st appellant only escaped conviction and punishment for that offence because he had not been charged with it.
The submission that there is no evidence proving that the 1st appellant knew the foodstuff had not been supplied is also untenable. There is the evidence of his confession to the Commissioner of Police, Alhaji Tinubu (P.W.14). there is also the evidence of Sgt. Olaleye (P.W.27) whom on 20th March, 1975 the 1st appellant caused to falsify the estimate for the supply of bread worth N475, Exhibit 2, that the sergeant had received the bread on 11th February, 1975 when the 1st appellant knew that the sergeant had not received any bread. I cannot imagine any more convincing evidence discharging the burden of proof that the 1st appellant knew, when he certified the Payment Vouchers, that the foodstuff had not been supplied.
The complaint in the 2nd ground of appeal is partly concerned with the passage in the judgment of the learned Justices of the Court of Appeal which reads:
“With respect to 3P.W. Adebayo Oriekun, apparently this witness is an accomplice and there is no doubt that his evidence formed the bulwark on which the case of the prosecution rested. It is settled law that evidence of an accomplice requires corroborative and from the records the learned trial Judge had this eminently in his mind, although it is true as submitted by Chief Chukura the learned Judge did not specifically proceed to itemize what he considered were corroborative evidence. We agree with Mr. Oluborode the learned Director of Public Prosecution, Oyo State, that there were in fact corroborative evidence and that the various documentary evidence viz the certificates on the payment vouchers Exhibits 5, 4 and 10, the relative L.P.Os Exhibits 6, 7 and 8, which were tendered by 8P.W. relate to the various amounts in the charges against the appellants. These documentary evidence which were thoroughly evaluated by the learned Judge afford corroborative evidence. See R.v Abuah (1961) ANLR 635. There was likewise the extra-judicial confession by each of the appellants to 14 P.W. Alhaji Tinubu; See R.v. Kufi (1960) WMLR 1. There was also evidence of 7P.W. Samuel Edu the Storeman who testified that no foodstuffs were supplied by 3P.W. All these afford issues of independent evidence of 3P.W. with respect to the offences with which appellants were charged…..
Now considering the issues of evidence outlined above applying the proviso of Section20 (1) of the Federal Court of Appeal Decree No. 43 of 1976 we have come to the conclusion that the omission of the learned trial Judge to specify what he considered was corroboration, when in fact there was such corroborative evidence, did not occasion any miscarriage of justice in this case.”
Relying on Efe & 6 Ors. v. The State (1976) 11 S.C. 75 at 81 and Sanyaolu v. The State (1976) 5 S.C 37 at 44, Chief Chukura, SAN, learned counsel for the 1st appellant contended that the Court of Appeal is not permitted to assume the role of the trial Judge and in that capacity to evaluate the evidence and to ascribe corroborative value thereto as the Court of Appeal did. However, learned counsel could not lay hand on any authority that prohibits the Court of Appeal from pointing out and acting on corroborative evidence that has been over-looked by the trial Judge.
Learned counsel further submitted that, since P.W.3 was an accomplice and because the trial Judge failed to warn himself that it was not safe to convict on the uncorroborated evidence of an accomplice and he also failed to look for corroborative evidence against each accused separately, substantial miscarriage of justice has occurred which cannot be cured by Section 20(1) of the federal Court of Appeal Act, 1976. He relied on Section 177 of the Evidence Act; Bello v. The State (1967) NMLR 1; the Queen v. Ezekpe (1962) 1 All NLR 637 and Okegbu v. The State (1979) 11 S.C. 1 at 5. Chief Chukura submitted that P.W.3 was not only an accomplice but was also an unreliable and discreditable witness.
Chief Chukura further complained that one Onaivi, the Police Senior Accountant at Ibadan, and P.C. Ukoha whose name appeared on the back of the information were material witnesses and the failure of the prosecution to call both to testify or at least, to offer both cross-examination was fatal to the convictions of the 1st appellant: R.v. Chigeri (1937) 3 WACA 201; R v. Kelfalla (1939) 5 WACA; R v. Essien (1938) 4 WACA 112 and C.O.P. v. Addae (1939) 11 WACA 42, were cited. While considering whether the evidence of both persons was essential for the just decision of the case, the learned trial Judge carefully examined the evidence before him where the names of Onaivi and Ukoha were mentioned. In the case of Ukoha, the trial Judge also made use of the proof of evidence of Ukoha which was filed with the information. He concluded that neither Onaivi nor Ukoha was an essential witness for the prosecution and the prosecutor was not bound to call either. Learned counsel contended that the Court of Appeal erred in upholding the conclusion of the trial Judge in that respect. He said the two reasons given by the Court of Appeal – (1) that the 1st appellant’s counsel did not apply for either person to be called for cross-examination and (2) that the wrongful use of the proof was cured by Section 226(1) of the Evidence Act – were untenable.
The learned Deputy Director of Public Prosecutions replied that the omission by the learned trial Judge to itemize corroborative evidence had not occasioned any miscarriage of justice since there was corroborative evidence before the trial court which the Federal Court of Appeal painstakingly set out. He submitted that the Federal Court of Appeal acted rightly in resorting to that exercise and in invoking the provisions of Section 20(1) of the Federal Court of appeal Act, 1976 and thereby held that the omission by the learned trial Judge had not actually occasioned any miscarriage of justice. With regard to Onaivi and Ukoha, he cited El Dabbah v. A-G of Palestine (1944) AC 156 and contended that the prosecution is not bound to call all the material witnesses.
The law has long been settled that where a trial Judge fails to advert his mind to the evidence on the record, a Court of Appeal is entitled to examine the evidence and make its own assessment provided that such exercise does not call for making decision on the credibility of witnesses. In Wiafe & Ors. v. The Queen (1953) 14 WACA 308, where the trial Judge failed to explain to the jury the nature of the corroboration required of the evidence of accomplices, the west African Court of Appeal found that there was in fact corroboration and concluded that it could not be said that a miscarriage of justice had occurred by reason of the omission. In Dominic Okolo & Ors. v. The State (1974) 1 All NLR (Part 1)466, after having reviewed the evidence, this court reversed the erroneous finding of the trial Judge on the ground of non-advertance that a witness was not an accomplice.
In my considered opinion, the court of Appeal acted perfectly right in examining the evidence on the record and pointing out that there was in fact corroboration of the evidence of P.W.3 whom the trial Judge had found to be an accomplice. Although the trial Judge did not warn himself that it is unsafe to convict any person upon the uncorroborated testimony of an accomplice as required by Section 177(1) of the Evidence Act, which was fully amplified in The Queen v. Omisade & 17 Ors. (1964) 1 All NLR 233 and Bello v. The State (Supra), I am satisfied that no miscarriage of justice has been occasioned by the failure and consequently, I am of the view that the Court of Appeal was entitled to cure the failure, as it had done, under the provisions of Section 20(1) of the Federal Court of Appeal Act, 1976.
I shall now deal with the complaint concerning the failure of the prosecution to call Onaivi and Ukoha. It seems to me that none of the cases cited by learned counsel for the 1st appellant is an authority for the proposition that mere failure by the prosecution to call a material witness automatically vitiates a conviction. In R v. Essien (Supra) the court allowed the appeal because the essential witness had not been called and the evidence available was not enough to support the conviction; in C.O.P. v. Addae (Supra) the conviction was quashed because the prosecution failed to adduce evidence of the utmost importance bearing upon the guilt or innocence of the appellant; in R v. Chigeri (Supra) because the evidence adduced at the trial was not sufficiently cogent to justify the convictions and in R v. Kelfalla (Supra) the Court of Appeal called and heard one of the deponents whom the prosecution had failed to call at the trial and his evidence discredited the case for the prosecution.
The correct state of the law relating to the duty of the prosecution to call witnesses, whether their names appear on the back of the information or not, has been recently stated by this court in these terms:
“The law imposes no obligation on the prosecution to call a host of witnesses. All the prosecution need do is to call enough material witnesses in order to prove its case; and in so doing, it has a discretion in the matter”
per Irikefe, JSC., delivering the judgment of the court in Samuel Adaje v. The State (1979) 6-9 S.C. 18 at 28
This disposes of the complaint on the failure to call Onaive and Ukoha.
With all due respect to the learned Justices of the Court of Appeal, I have been unable to conceive the reasons why they thought the trial Judge had erred in his making use of the proof of evidence of Ukoha, whose whereabout according to the prosecution was then unknown, for the purpose of exercising his discretion whether or not to adjourn the trial to enable the prosecution search for the witness. Speaking for myself, I think, for the judicious exercise of that discretion after having heard 27 prosecution witnesses, the trial Judge had a duty to ascertain that the evidence which Ukoha was likely to give would prima facie be essential for the just decision of the case. It appears to me that he could only so ascertain either from the proof or from oral statement of the prosecutor. It must be pointed out emphatically that the trial Judge did not use the proof as evidence in the case. He only used it to see what Ukoha was likely to testify. I see nothing wrong in this procedure. It has been the practice of Judges for a long time in such a situation. I think this court might have this practice in mind when it said:
“Moreover, we were completely left in the dark as to the nature of evidence that these witnesses would have given and what bearing, if any, such evidence would have had on the case:”
Samuel Adaje v. The State (Supra) at p.29.
Before dealing with ground 5, I consider it my duty to make some observations on the conduct of learned counsel for the 1st appellant at the trial. After the close of the case for the prosecution and a submission of no case had been over-ruled, learned counsel informed the court that the 1st appellant did not intend to give or lead any evidence and he did not wish to call any witness. The trial was then adjourned for hearing the evidence of the 2nd appellant. Learned counsel for the 1st appellant did not appear at the resumed hearing and the record shows this dialogue:
“Court to 1st accused: “Where is your counsel”
1st accused: “Yesterday my lawyer indicated that I would not be participating in the proceedings after his address of yesterday. I think that that is why he is not here.”
court: “Even if you will, as you say, not participate further in the proceedings do you want your counsel who appeared for you yesterday or any other counsel to appear for you and be in court when further proceedings continue though he will not participate therein”
1st accused: ” I do not consider it necessary that my counsel who appeared for me yesterday and who has been handling the case from the beginning should appear for me.”
Court: “do you want any other counsel to appear for you during the continuation of the proceedings though he will not, according to your wish participate further in the proceedings’
1st accused: “No”
court: “It means that you will not be represented by counsel when further proceedings in this case continue.”
1st accused: “Yes”
Court: “Case is adjourned to 28th June, 1977 for further hearing. I have decided on this adjournment because the absence of the learned counsel for the 1st accused was a surprise. I want to give the 1st accused time to reflect on what he has said about his not being represented in the further proceedings by a counsel though the counsel may not participate in the further proceedings.”
Again the learned counsel did not appear at the resumed further hearing. The trial continued in his absence after the trial Judge had recorded this additional short dialogue:
“Court to the 1st accused: “where is your counsel”
1st accused: “My counsel is not here. I do not think that it is necessary that I should be represented by counsel in the further hearing of this case.”
Learned counsel did not appear thereafter until on the day judgment was delivered.
The duty of counsel in criminal trial is stated in Halsbury’s Laws of England, 4th Ed. Vol. 3 para. 1140 p.624 thus:
“It is the paramount duty of defending counsel to ensure that an accused person is never left unrepresented at any stage of his trial. Prosecuting counsel also has a duty to be present throughout the trial, including the summing up and the return of the jury, and he should not absent himself without the leave of the court.”
I do not intend to blame learned counsel for his lapse. The record shows that he acted in that manner, not with intent to abandon his responsibility to his client or to show disrespect to the court, but because of his apparent misconception of the decision of this court in Mumini & Ors v. The State (1975) 1 All NLR (Part 1) 294. There is no doubt that he acted in good faith.
However, it must be made clear that because an accused person has exercised his discretion under Section 287 of the Criminal Procedure Act to say nothing at all and not to adduce any evidence whatever that does not excuse the defending counsel from performing his duty of representing the accused. It is his duty to be present in court throughout the trial including the return of verdict and sentence even if he intends to be mute and inactive throughout. It is a breach of his professional duty to abandon his client and to withdraw from the trial without the leave of the court.
The argument of learned counsel for the 1st appellant hinges on Section 174(2) of the Criminal Procedure Act. He conceded that in a proper case a court is eminently competent to invoke the provisions of the section to return a verdict of obtaining by false pretences for a stealing charge but he contended:
(1) that only the person who actually took delivery of the stolen thing i.e, P.W.3, can be so convicted and not person like 1st appellant, on whom Section 7 of the criminal code imposes vicarious liability;
(2) that where a person has been charged with stealing and it emerges in the course of the trial that the section may be invoked, the accused person should be informed of the possibility of his conviction of obtaining by false pretences and he should be given opportunity to defend himself of that offence: R.v. Cross & Channon (1971) 55 Cr. App. R.540 and R v. Vincent (1972) 56 Cr. App. R.281;
(3) that since at the close of the case for the prosecution the 1st appellant ceased to take further part in the proceedings, anything that took place thereafter would not affect his case because at that point he was not guilty of the charge of stealing. He relied on Mumini & Ors. v. The State (Supra).
I think the answer to the first point is short and is furnished by Section 7 of the Criminal Code aforementioned:
“7. When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it, that is to say-…..
(c) every person who aids another person in committing the offence;”
I have earlier pointed out that the trial Judge found the 1st appellant had aided P.W.3 in obtaining the money by false pretences hence the distinction, which learned counsel attempted to show, between the criminal liability of P.W. 3 as the principal offender and that of the 1st appellant as an aider is not recognised by the Criminal code. By virtue of the provisions of Section 7, the 1st appellant was deemed to have obtained the money by false pretences also. I do not think the 1st appellant would find any assistance from Mumini v. The State (Supra) in which this court decided that an accused person against whom, after the prosecution has closed its case, there is a prima facie case to answer shall not be placed in a more advantageous position at the end of the trial solely on the ground that he rested his case and declined to participate further in the proceedings; and that in such a case, the trial court may properly consider against the accused person all the evidence produced at the trial including any inculpatory evidence subsequently given by a co-accused. In the case in hand, although the co-accused gave evidence after 1st appellant had intimated his intention not to participate any further in the proceedings, the co-accused did not incriminate him and the trial Judge did not use the evidence of the co-accused adversely against him. The trial Judge convicted him solely on the evidence produced by the prosecution. The other limb of the rule in Mumini v. The State which relates to the position of an accused person against whom there is no prima facie case to answer and nevertheless, the court calls on him to enter his defence is, in my view, totally irrelevant for the purpose of this appeal.
Section 4 of the Criminal Law Act 1967 of England permits conviction of an offence other than that charged. In R.v Cross and Channon (supra), the Court of Appeal of that country laid down the rule of practice when the possibility of the application of the provisions of the section is foreseen. The rule was stated thus:
“Where it is foreseen in advance that guilt of an offence under Section 4 may be appropriate verdict such an offence should be specifically charged. If this is not foreseen in advance, but emerges in the course of the case, the defendant should be informed of the possibility of a verdict of Guilty under Section 4 before the evidence is closed; and he should be given the opportunity of an adjournment, if he so wishes to enable him to meet that particular charge. It is wrong for the issue of a verdict under Section 4 to be raised after the evidence is closed.”
I think it is just and fair that whenever it is anticipated that an accused person may be convicted of an offence other than the one with which he has been charged such possibility should be brought to his notice and that he should be given the opportunity to meet that particular offence. Nevertheless, I would not subscribe to the proposition as submitted by Chief Chukura, that it is wrong for the issue of a verdict under Section 174 (2) of our Criminal Procedure Act to be raised after the evidence is closed. Section 163 of the Act permits alteration of a charge at any time before judgment and in that event Section 165 makes provisions for recall of witness for examination or cross-examination. Furthermore, any person may be called or recalled as a witness at any stage of the trial: Section 200.
In my opinion the issue of a verdict under Section 174 (2) may be raised at any stage of the trial before judgment. The Act makes ample provisions which enable the accused person to meet the anticipated verdict, if he has any defence therefor.
The record of the case on appeal shows that in his reply to the address of learned counsel for the 2nd appellant, the learned Senior State Counsel invited the trial court to invoke the provisions of Section 174 (2) of the Criminal Procedure Act if the offence of stealing was not proved. Thereafter the trial Judge called on Mr. Awomolo, counsel for the 2nd appellant to answer and learned counsel stated that he had nothing further to urge on behalf of the 2nd appellant. The case was then adjourned for judgment.
It appears therefore that before his convictions, the 1st appellant had knowledge in advance that the court might convict him of the offences of obtaining by false pretences and had opportunity to meet, if he had so wished, those offences. Having decided not to participate in the trial at that stage, the very case of Mumuni v. The State (Supra), on which the 1st appellant relied, decreed that the 1st appellant should not be placed in a more advantageous position than the 2nd appellant. His ground 3 therefore fails. in his ground of appeal no.1, the 2nd appellant complains that the Court of Appeal erred in law in not rejecting the evidence of P.W.3 as wholly unreliable when the evidence was inconsistent and contradictory. I consider it pertinent to set out in full the portion of the judgment of the Court of Appeal on this issue:-
“And finally on the issue that the learned Judge having found that part of evidence of 3P.W. was unreliable was wrong to have relied on his other evidence. It is note worthy to observe that evidence of 3P.W. was on a number of material issues and that the piece of evidence which the learned Judge found unreliable was his testimony that he gave away the sum of N3,000 to the appellants as their share of the booty. 3P.W. said in his evidence-in-chief:-
“I gave N1000 to the 2nd accused on 8th April, 1975 and I also gave N2,500 to the 2nd accused on the 14th April 1975.”
This evidence was not what the witness stated in his statement Ex. 12 which was not written by him. There he stated that he gave the sum of N2,500 to 1st appellant. Under cross-examination he said:-
“I deny the suggestion that I did not give the 2nd accused the sum of N1000. The 2nd accused did not take me to the 1st accused when I gave him, 2nd accused, the sum of N1000. At the material time I could not distinguish between the names of the 1st and 2nd accused persons.”
Under re-examination he said:
“With reference to the N2,500 I probably in Ex.12 confused the 1st accused with 2nd accused as the person to whom I handed the money.”
It will be seen that the inconsistency between the statement to police, Exhibit 12 and 3P.W.’s oral testimony in court was very well explained by 3P.W. but the learned Judge, however, decided to treat as reliable this aspect of 3P.W.’s oral evidence, that the sum of N3,500 was given by him to 2nd appellant. The learned counsel had contended therefore that the whole of undiscredited evidence of 3P.W. on other issues should also be disregarded, citing R.v. Golder (1960)1WLR 1169. We do not accede to this submission for reason that in our view the piece of evidence in question was not only immaterial issue to prosecution case, the inconsistency was satisfactorily explained in order to render the undiscredited oral evidence of the witness reliable. The case of the prosecution was that the amounts paid for unsupplied foodstuffs were stolen and not how the monies paid for such unsupplied foodstuffs were shared. In the case of Joshua v. The Queen (1964) 1 ANLR 1, where R.v. Golder (supra) was considered, the Supreme Court expressed the opinion at page 3 of the report that no weight should be attached to evidence of a witness who made previous contradictory statements in the absence of a satisfactory explanation as to why he gave such contradictory statements. The court also said: ‘In the case of a witness who had made previous statement inconsistent with the evidence given at the trial the court has been slow to act on the evidence of such a witness. The Supreme Court did not say that in all cases of inconsistency the evidence should be disregarded in toto.”
I think the learned Justices of the Court of Appeal were perfectly right in their consideration of the issues. I would only add that the trial Judge was entitled to believe P.W.3 and to rely on his evidence on the material issues, namely, that the appellants joined in a conspiracy to defraud and in furtherance thereof falsified payment vouchers and obtained money fraudulently, because the evidence was amply corroborated by the documents admitted as exhibits at the trial and the evidence of P.W.7, P.W.8, P.W.15 and P.W.27, which I summarised at the beginning of this judge Grounds 2 and 3 for the 2nd appellant raise the issue of corroboration. I have extensively dealt with this issue while considering the appeal of the 1st appellant and I have pointed out the corroborative evidence against the 2nd appellant in the foregoing paragraph. I need not add anything.
The submissions of Mr. Ajayi, SAN, learned counsel for the 2nd appellant, on grounds 4 and 5 that the convictions on counts 2, 3 and 4 cannot stand appear to be well founded. The learned Deputy Director of Public Prosecutions conceded but urged us to follow Ogu v. The State (1963) 1 All NLR 234 and substitute convictions on the cheques. In that case the appellant obtained a number of cheques by means of fraud and paid those cheques into his bank account. He later withdrew some money on the account. On appeal against his conviction on stealing of the money, this court held that on account of the law of banking if a cheque obtained by fraud is later honoured by the drawer’s bank, the payee acquires a good title to the proceeds of the cheques and he cannot be convicted of stealing the proceeds but he can be convicted of obtaining the cheques by false pretences with intent to defraud and accordingly the court substituted a conviction for the latter offence.
I have earlier pointed out that counts 2 and 3 were based on the proceeds of the cheque for N3096.50, Exhibit 3, which P.W.3 had obtained on the understanding that he would supply some foodstuff with some part of its proceeds. It is clear from the evidence that unlike the cheques In Ogu v. The State which were wholly obtained by false pretences, the cheque in the case in hand was obtained partly for a lawful purpose and partly by false pretences with intent to defraud. Because of the dichotomy of the purpose for which the cheque was obtained and the split of its proceeds into counts 2 and 3, I would refrain from substituting a conviction on the cheque for the convictions on counts 2 and 3. Accordingly, I would allow the appeal of both appellants against their convictions on counts 2 and 3. The convictions of the 2nd appellant, however, on count 4 stands on a different platform. It is on all fours with Ogu v. The state. The cheque for N2000, Exhibit 9, on which count 4 was based, was wholly obtained by false pretences with intent to defraud. I would accordingly substitute a conviction under Section 359 of the Criminal Code for obtaining by false pretences and with intent to defraud the cheque for N2000 and I would affirm the sentence of three years imprisonment passed on this count.
Before reaching my decision on count 4, I have given careful consideration to ground 6, which reads:-
“6. ERROR IN LAW:
The Federal Court of Appeal erred in law in sustaining the conviction of the 2nd appellant in respect of Count Nos. 2, 3 and 4 for obtaining money by false pretences when:
(i) The false pretences by which property was allegedly obtained were never properly formulated
(ii) The offences for which the 2nd appellant was convicted is and still remains uncertain
(iii) The 2nd appellant remains convicted of a charge which was never brought to his notice before trial and was thereby deprived of a fair hearing a right guaranteed under Section 33 (6) of the constitution of the Federal Republic of Nigeria.
I must confess that I find it difficult to understand the purport of this ground of appeal. It has not been specifically amplified in the brief nor in the oral argument of learned counsel for the 2nd appellant. It is noteworthy that the charge of stealing in count 4 precisely set out the particulars of the offence and Section 174 (2) of the Criminal Procedure Act permits a conviction for the offence of obtaining by false pretences if the evidence warrants such conviction on the particulars of the offence charged. Furthermore, learned counsel has not drawn our attention to which limbs of Section 33 (6) of the constitution the 2nd appellant was deprived of . The sub-section provides:-
“6. Every person who is charged with a criminal offence shall be entitled-
(a) to be informed promptly in the language that he understands and in detail of the nature of the offence;
(b) to be given adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or by legal practitioners of his own choice;
(d) to examine in person or by his legal practitioners the witnesses called by the prosecution before any court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to the witnesses called by the prosecution; and
(e) to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”
It appears to me that ground 6 is misconceived.
Under ground 7, which is the final ground of appeal for the 2nd appellant, learned counsel argued that the Court of Appeal did not fully appreciate the defence of the 2nd appellant with regard to counts 5, 6 and 7 which was, although he admitted that at the time he signed the payment vouchers certifying that the foodstuffs had been supplied he knew the foodstuffs had not been supplied, he acted in good faith believing that the foodstuffs would be supplied later. I am satisfied from the record that the defence of good faith was fully considered by the trial Judge and he rightly, in my view, rejected it. The refund by him of part of the booty of the fraud tangibly belied the 2nd appellant’s defence that he falsified the payment vouchers bona fide. The Court of Appeal was right in dismissing that ground of appeal.
To summarise, the appeal of both appellants against their convictions on counts 2 and 3 is allowed. The convictions and sentences in respect of both counts are hereby set aside.
The appeal of the 1st appellant against his convictions on counts 5 and 6 is dismissed. His convictions and sentences are hereby reaffirmed.
The appeal of the 2nd appellant against his convictions on counts 4, 5, 6 and 7 is also dismissed. His convictions and sentences on counts 5, 6 and 7 are further confirmed. In respect of his conviction on count 4 for obtaining the sum of N2000 by false pretences, there shall be substituted a conviction for obtaining the cheque for N2000 by false pretences with intent to defraud and the sentence of three years passed by the trial court on that count is also re-affirmed.