Felicia Akinbisade V State (2006)
LAWGLOBAL HUB Lead Judgment Report
TOBI, J.S.C.
The case of the prosecution is as follows: The appellant and Mr. Okusanya were staff of the Internal Revenue of the Ministry of Finance, Abeokuta, Ogun State. The appellant was the cashier at the Capital Gains Tax section. Mr. Okusanya worked in the litigation division of the department. The appellant was in charge of withholding tax, being tax deducted from monies paid to contractors by Contract Awarding Agencies.
The appellant together with Mr. Okusanya fraudulently opened an account No. GA 400004 at the Co-operative Bank, Ijebu-Igbo on the false authority of PW1, the Director of Internal Revenue, Ministry of Finance, Abeokuta. PW1 denied giving such authority to open the account. There were several lodgements and withdrawals from the said account. The account was operated by the appellant and Mr. Okusanya in different assumed names.
The authorities of the bank became suspicious that account No. GA 400004 was fraudulent. PW2, the Bank Manager, went to the Internal Revenue Office at Abeokuta on 14th April, 1992 to make enquiries. Following the result from the enquiries, the bank became discreet about honouring the cheques drawn on the account. On 15th April, 1992, the appellant was arrested in the bank with three cheques totaling N915,000.00 with which she wanted to withdraw from the account. She called herself the false name of Mrs. S. B. Arowolo.
She was duly arrested and charged along with Mr. Okusanya. While she was charged for conspiracy to steal, stealing of the sum of N1,802,920.41 and uttering a document, Mr. Okusanya was charged for uttering some Co-operative Bank cheques. The defence of appellant was that on 15th April, 1992, she went to Co-operative Bank, Ijebu-Igbo to see the Bank Manager. Mr. Adeboye in respect of an allocation paper for cement which she got from WAPCO, Sagamu Depot. She wanted to sell the allocation paper to Mr. Adeboye. It was while she was waiting for Mr. Adeboye in the bank hall that she was accosted by PW5 (the Bank’s Inspector) who asked her about what she came to do at the bank. It was at that juncture that PW5 gave her a bank draft and asked her to sign a record book. When she refused to sign, PW5 gave her some slaps and she had to sign. That is her story and so be it in her own way.
The learned trial Judge convicted the appellant as charged. He discharged Mr. Okusanya of the only charge preferred against him. The Court of Appeal dismissed the appeal of the appellant. She has come to us.
Briefs were filed and exchanged. The appellant formulated three issues for determination:
“(A) Whether the N1,802,920.41 was proved to belong to the Ogun State Government and if not, whether the affirmation of the judgment of the trial court was justified.
(B) Whether the court below was right in law in affirming the conviction of the appellant for uttering exhibit S in the absence of credible evidence.
(C) Whether the fact that exhibit XIV, which is the report of the handwriting expert, did not State that the appellant wrote the mandate on the face of exhibits IX1, IX2, IX3, IX, I is a justification to discharge and acquit the appellant of the charge of uttering of the said exhibits.”
The respondent also formulated three issues for determination:
“(i) Whether the N1,802,920.41 lodged into the fraudulent account No. GA 400004 was proved to belong to the Ogun State Government and if so, whether the affirmation of the judgment of the trial court was justified.
(ii) Whether the court below was right in law in affirming the conviction of the appellant for uttering exhibit S which was the false mandate used to open the fraudulent Account No. GA 400004.
(iii) Whether there is justification to discharge and acquit the appellant on the charge of uttering exhibit IXI, IX2, IX3, IX and I simply because exhibit XIV being the handwriting expert report did not State that appellant wrote the mandate on the said exhibit IX1, IX2, IX3, and I.”
Learned counsel for the appellant, Mr. Joseph Nwobike, submitted on issue No.1 that the prosecution did not prove that the money belonged to the Ogun State Government. The identification of the ownership of the money purportedly stolen is very critical to the establishment as whether the money was stolen in the first place, counsel argued. He relied on section 138(1) and (2) of Evidence Act and the following cases, Alonge v. I.G.P. (1959) 4 FSC 203, (1959) SCNLR 516; Lori v. State (1980) 8-11 SC 81; Onafowokan v. State (1987) 3 NWLR (Pt.61) 538; Odiba v.Azige (1998) 9 NWLR (Pt.566) 370 and Idowu v. State (1998) 9-10 SC 1 at 5; (1998) 11 NWLR (Pt. 574) 354.
On issue No.2, learned counsel submitted that the Court of Appeal was wrong in law in affirming the conviction of the appellant by the trial Judge for uttering exhibit S in the absence of credible evidence. He said that failure on the part of the prosecution to send the exhibit to the handwriting expert to determine the maker of it was prejudicial to the case of the prosecution. To learned counsel, there was no credible evidence linking the appellant with the uttering of exhibit S and to that extent the prosecution did not discharge the burden placed on it. He relied on Atano v.Attorney-General of Bendel State (1988) 12 SC. 59; (1988) 2 NWLR (Pt.75) 201; Obiakor v. State (2002) FWLR (Pt.13) 299 at 313; (2002) 10 NWLR (Pt.776) 612; Idowu v. State (supra); Ahmed v. State (1999) 7 NWLR (Pt.612) 641; Amusa v. State (1986) 3 NWLR (Pt.30) 536; Nnolim v. State (1993) 3 NWLR (Pt.283) 569; Nwosu v. State (1986) 4 NWLR (Pt.35) 380.
Taking issue No.3, learned counsel submitted that the prosecution did not prove the uttering of exhibits IX1, IX3, IX and I by the appellant. He argued that the report of the signature expert did not in anyway show that it was the appellant that wrote the mandate on the cheques. He relied on section 149(d) of the Evidence Act. He urged the court to allow the appeal. Learned counsel for the respondent. Mrs. A. A. Babawale, submitted on issue No.1 that the prosecution proved that the money belonged to the Ogun State Government. She relied on the decision of the Court of Appeal and pointed out that the fraudulent account No. GA 400004 was opened in the name of Ogun State Government and the money lodged into the account were purportedly lodged on behalf of the Ogun State Government. Except when required for the purpose of describing an offence depending on any special ownership of property, allegation concerning ownership of stolen property are treated as immaterial, but where the owner is known, it is more satisfactory if he is named as such in the charge. She relied on Adewusi v. The Queen (1963) 1 All NLR 316; (1963) 2 SCNLR 245.
On issue No.2, learned counsel quoted from the judgment of the two lower courts and urged this court not to disturb the concurrent findings of the courts. On whether one Mr. Amure ought to have been called as a witness, counsel contended that the prosecution is not bound to call every available witness. She relied on Iziren v. The Stale (1995) 9 NWLR (Pt.420) 385 at 390.
Taking issue No.3, learned counsel argued that it is plain mischief for appellant’s counsel to only pick a part of the expert’s report in favour of his argument that exhibit XIV did not indicate the mandate on the face of exhibits IX1, IX2, IX3 and I. She pointed out that the handwriting expert found that all the writings on the reverse side of the exhibits (i.e. cheques) were made by the appellant. She relied on section 1 of the Criminal Code of Ogun State on the definition of utter and the relevant portion of the decision of the Court of Appeal.
Reacting to the submission of learned counsel for the appellant that the prosecution should have gone the extra mile to prove who wrote the cheques and not who endorsed them, learned counsel submitted that the law does not place such onerous burden on the prosecution, which is to prove its case beyond reasonable doubt and not beyond any shadow of doubt. She relied on State v. Aibangbee (1988) 3 NWLR (Pt.84) 548 at 551. She urged the court to dismiss the appeal.
Dealing with the ownership of the money and the wider aspect of the matter, the learned trial Judge said at page 155 of the record:
“The money in Account GA 400004 belongs to the Ogun State Government. It was fraudulently deposited there. The money deposited into the Account came into the 1st accused’s possession by virtue of her employment as a cashier in the Capital Gains Tax section of the Department of Internal Revenue. Ogun State.”
On the same issue of ownership, the Court of Appeal said at page 258 of the record:
“I have carefully considered the copious submissions of the learned counsel for the parties and since I am seised of all the facts of this appeal as culled from printed record. I am of the strong view that the main contention is the ownership of N1,802,920.41. The argument of the learned counsel for the appellant that the cheques by which the various sums were paid in favour of Ogun State Government are not in evidence is ill-conceived. There is instead evidence that thirty-four Co-operative Bank Ltd. tellers marked exhibits VIII, VIII to 33 for which the total sum of N1,802,920.41 was lodged into the Co-operative Bank Ltd. in Account No. GA 400004 in favour of the Director Internal Revenue Division, Ministry of Finance, Abeokuta. The question is: What further evidence of ownership of the sum of N1,802,920.41 does any reasonable person need There is uncontrovened evidence that the account No. GA 400004 or GA4 in the Co-operative Bank Ltd., Ijebu Igbo belongs to the Internal Revenue Division of the Ogun State Ministry of Finance, Abeokuta. Whatever money was paid into it whether validly or otherwise apparently belongs to Ogun State Government until the contrary is proved. The appellant did not do anything of the sort.”
I cannot improve on the above findings of the two lower courts. They are clearly borne out of the evidence before the court and I cannot tamper with them.
The most reliable if not the best evidence in most cases is documentary evidence. I say so because it is, in most instances, more reliable than oral or parol evidence. Although documentary evidence could be victim of forgery, by human conduct, act or intervention, the instances of forgery are less when compared with oral or parol evidence, where witnesses tell lies with ease. In the instant case, there is a plethora of documentary evidence to prove that the money was the property of the Ogun State Government. And here I join the Court of Appeal in asking the question: “What further evidence of ownership of the sum of N1,802,920.41 does any reasonable person need I do not have an answer to the question in favour of the appellant. Perhaps the appellant has and if so, what is the answer
That takes me to issue No.2. It is on exhibit S, the letter allegedly or purportedly written by PW1 by which the fraudulent Account was opened. It was the letter that authorised the opening of Account No. GA 400004. What did the lower courts say on or about the exhibit
The learned trial Judge said at page 151 of the record:
“The 1st accused must be lying when she said she knew nothing about the account. If the 1st accused knew something about the account, then she must be able to say how the account was opened at the bank. I believe that the 1st accused opened the Account herself or aided, counseled or procured someone to open the account for her else she could not have operated it. If the 1st accused did not open the account by herself but aided, counseled or procured someone to open the Account she is deemed to be guilty of the offence and may be charged with actually committing it. (Section 7 of the Criminal Code of Ogun State 1978; Yakubu Mohammed and anor. v. The State (1980) 1 NCR 140). I hold that the prosecution has proved the 3rd count against the 1st accused. The 1st accused is found guilty as charged on that count. ”
The Court of Appeal said at page 256 of the record:
“I have carefully considered the learned counsel’s submissions made on issue No.2, I am wary to a green with argument on behalf of the appellant that the inability of the PW9 giving expert evidence or expert opinion on the ownership of exhibit S is fatal. It is instead settled law that where direct evidence or expert opinion is lacking on a subject, the trial court who seised of the entire case can source cogent inferential evidence from other facts adduced at the trial of the matter to establish the guilt of an accused person. See Adepetu v. The State (supra) page 207. In the instant case, I agree with the instances portraying that the appellant had sufficient knowledge of exhibit S highlighted in the submissions of the learned counsel for the respondent.”
I have the difficulty to disagree with the positions taken by the two courts as they are clearly borne out of the evidence before the trial court. There is overwhelming evidence that the appellant operated the fraudulent account. How could she have done this without knowledge of the existence of the account I entirely agree with the learned trial Judge that if the appellant did not open the account personally. she must have aided, counselled or procured someone to open the account and that brings her in terms with section 7 of the Criminal Code of Ogun State. It is not in all cases that absence of evidence of handwriting expert is prejudicial to the case of the prosecution. While such evidence could be a desideratum in some cases, it is not invariably so. Where there is a very strong connecting link between the accused and the document to the extent that the circumstances zero on the commission of the offence by the accused, the court is entitled to draw the inference circumstantially that the accused was the author of the document and therefore the author of the crime. It is because our adjectival law realises that it is not in all cases that direct evidence of an eye witness is possible that the law has carved out a niche to assimilate or accommodate circumstances surrounding the commission of an offence; a position which leads to the admission or admissibility of circumstantial evidence.
The appellant was most miserly with the true position and refused to tell the truth when she was shown exhibit S and said at page 85 of the record: “I do not know anything about it.” The truth is that she knew so much about exhibit S. It was convenient for her to deny knowledge of the exhibit and so she denied. Unfortunately, for her the evidence before the learned trial Judge hooked her in the crime and in a most outrageous way. She could not get out of or from it, whatever the best she tried.
Let me take the third and final issue. It is on a number of exhibits. They are five in number. They are the cheques, the conduit through which the money was siphoned from the bank. The case of the appellant in a nutshell is that “the report of the signature expert did not in any way show that it was the appellant that wrote the mandate on the cheque.” To counsel, since the report was silent on who wrote the mandate on the cheques that piece of evidence made the whole evidence of the prosecution as it relates to the commission of the offence of uttering the exhibit doubtful. Counsel for the respondent described the submission as “plain mischief as appellant’s counsel only picked a part of the expert’s report in favour of his argument.” He pointed out that (he handwriting expert found that all the writings on the reverse side of the exhibit (i.e. the cheques) were made by the appellant who presented them to the bank for purposes of payment.
I am in grave difficulty to agree with the submission of learned counsel for the appellant. It is the law that for the purposes of obtaining a balanced picture in documentary evidence the entire documents must be interpreted as a whole and not in parts or pockets convenient to a party. In other words, a party cannot pick and choose extract from a document that is convenient to his case. That will be tantamount to shutting out the truth searching process in the matter before the court. And reading exhibits IX1, IX2, IX3. IX and I, I am in agreement with the submission of learned counsel for the respondent.
The appellant who had a stable tenure appointment as a civil servant in the Ministry of Finance, Internal Revenue Division, Abeokuta, was not satisfied with her monthly salary. She therefore tried her hands and her head on quick but fraudulent way of making money. Unfortunately, for her she was caught in the process and had to face charges. In order to exculpate or exonerate herself from criminal responsibility, she embarked on telling lies and lies. Her fabricated cement business and deal, which has nothing to do with her theft, took center stage in her defence, all to hide her criminality. She said in evidence that PW5, the Bank’s Inspector, forced her to sign the bank’s book. The implication of the statement is that appellant was made to sign bank’s book incriminating her in the commission of the crime. That is the meaning I can get from the word “forced.”
Contrary to that, PW5 said in his evidence-in-chief that the appellant signed for the cash. The witness said at page 47 of the record:
“She later signed our cash book for a sum of N385,000.00. In respect of the draft for N250,000.00 she also signed our record as having received the draft for N250,000.00.”
Because she needed money outside or beyond her legitimate earnings very badly she told a lie when asked by PW5 what she wanted to use the money for. She told PW5 that she worked at Apoje farm settlement and that she wanted to use the money for the payment of salaries of Apoje farm settlers. By this statement, she hid her identity as a staff of Inland Revenue Department of the Ministry of Finance, Abeokuta.
That was not the end of her lies. She gave herself a new name to enable her commit the crime without trace. That name was S. B Arowolo.
I see the appellant as a most ambitious woman, who had all the ambition and gluttony for money and more money. Unfortunately, she found herself in a web and she must pay for her criminal propensity. In other words, the appellant tried her hands and her head on short cut of making quick and cheap money but she found herself in prison. She has not my sympathy, as she deserves every bit of the pain she has gone through or she is going through.
SC.125/2005