Gabriel Adaoju Wilcox Vs The Queen (1961)
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DE LESTANG, C.J.
The appellant was convicted in the High Court of the Eastern Region of Nigeria at Uyo of uttering a forged cheque and stealing £2,179 thereby. The cheque in question purported to be signed on the front and at the back by one NWOBU, who was at the time the Sub-Treasurer at Uyo. The payee’s name on the cheque was also crossed out and “S.T. Uyo” substituted. This alteration too purported to be initialled by NWOBU. Two employees of the Bank and the appellant testified that the signatures and initials were those of NWOBU, but NWOBU himself denied that they were his. The learned Judge found that the signatures were forgeries, and in arriving at his decision used a magnifying glass to compare them with two genuine signatures of NWOBU. It is contended by Mr. David, on behalf of the appellant, that the learned Judge was wrong to do this and he referred us to R. v. Rickard, 13 Cr. App. R. 140, and in particular to R. v. Tilley, a recent decision of the Court of Criminal Appeal in England briefly reported in The Times of the 28th July, 1961, in which the Court endorsed the statement of principle enunciated by Salter J., in R. v. Rickard that a jury should not be left to decide, unassisted, the question of hand-writing on their own. Reg. v. Tilley is, in our view, clearly distinguishable from the present case. Secondly, it appears from the brief report in the case in The Times that at no time had the prosecution alleged that it was the accused who had written the document and the matter was raised by the learned Chairman himself for the first time in his summing up to the jury. This was, of course, clearly wrong.
It is not unusual for the Courts, in a clear case, to form their own opinion as to hand-writing and in R. v. Smith, 3 Cr. App. R. 87, as well as in Rex v. Rickard, upon which Mr. David relies, the Court of Criminal Appeal in England formed its own opinion by comparing the hand-writing alleged to be that of the appellant with a genuine specimen of his hand-writing. So also did the West African Court of Appeal in R v Appeah, 13 W.A.C.A. 173. In the present case, the dissimilarities between the signatures on the cheque and the genuine signatures of Nwobu are apparent to the naked eye and, in our view, the course pursued by the learned Judge was not improper in the circumstances.
What has caused us some concern in this appeal is the learned Judge’s examination of Exhibit ‘M’. This is a Book kept by the Bank in which all cheques emanating from the Treasury are entered, and evidence was given that the entry concerning the cheque in question had been partly erased. There was no suggestion by the prosecution what the words erased were.
The learned Judge, however, examined the erasure by means of a magnifying glass outside the Court and said in his judgment “that the name ‘Smyth’ was written there and other letters erased leaving only the letters ‘S’ and `T’”. The independent examination of exhibits by a Court was considered in Muhammadu Duriminiya v. Commissioner of Police, (1961) N.R.N.L.R. 70, in which the Court said this:– “The magistrate examined the books, but apparently not in court – for the record does not show that he observed or was shown any entries in court, except the few we have mentioned – and in examining them out of court, as appears from his judgment, he observed numerous points which ought to have been brought out in court at the hearing but were not. In doing this, the magistrate was not trying the case, he was investigating it.
A trial is not an investigation, and investigation is not the function of a court. A trial is the public demonstration and testing before a court of the cases of the contending parties. The demonstration is by assertion and evidence, and the testing is by cross-examination and argument. The function of a court is to decide between the parties on the basis of what has been so demonstrated and tested. What was demonstrated in court at this trial failed to support the prosecution case, and the magistrate should have dismissed the case. It was no part of his duty to do cloistered justice by making an inquiry into the case outside court – not even by the examination of documents which were in evidence, when the documents had not been examined in court and the magistrate’s examination disclosed things that had not been brought out and exposed to test in court, or were not things that, at least must have been noticed in court.”
We respectfully agree with these observations and consider that the course pursued by the teamed Judge in regard to Exhibit “M” was not correct. Nevertheless, since there was, apart from this, abundant evidence to support the learned Judge’s findings, and since we are satisfied that had he ignored Exhibit “M” he would have come to the same decision, we think that this is a proper case to apply the proviso to Section 26(1) of the Federal Supreme Court Ordinance, as no substantial miscarriage of justice has actually occurred; the appeal is accordingly dismissed.
Other Citation: (1961) LCN/0891(SC)