J. A. Onibaniyi & Anor V. The State (1972) LLJR-SC

J. A. Onibaniyi & Anor V. The State (1972)

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UDO UDOMA, J.S.C. 

The appellant, a Produce Inspector, was tried together with another accused person – an employee of the Kabba Co-operative Produce Marketing Union Ltd. – and both of them were convicted in the High Court of Kwara State Judicial Division, holden at Ilorin on a charge containing eighteen counts, only eight whereof, namely, the first, second, fourth, sixth, eighth, tenth, seventeenth and eighteenth concerned the appellant and are the subject matter of this appeal. The other convicted person, who was the first accused in the proceedings in the High Court and who will hereafter be referred to as the first accused, has not appealed.

On the first and second counts, the appellant was charged jointly with the first accused with criminal conspiracy to defraud the Kabba Co-operative Produce Marketing Union Ltd. of the sum of 53pounds. 3s. 7d on 14th October, 1966 and also of another sum of 53pounds. 3s. 7d on 26th October, 1966 respectively, thereby committing offences contrary to and punishable under Sections 97 and 314 of the Penal Code. The appellant was then alone charged on the fourth and sixth counts with abetting the commission of the offence of criminal breach of trust contrary to and punishable under Sections 85 and 314 of the Penal Code; on the eighth and tenth counts with abetting the commission of falsification of account contrary to and punishable under Sections 85 and 371 of the Penal Code; and on the seventeeth and eighteenth counts with the falsification of account by making false entries contrary to and punishable under Section 371 of the Penal Code.

In his judgment, after a review of the evidence, the learned trial Judge (Adesiyan, J.), accepted the case of the prosecution. He rejected the evidence of the first accused, the appellant having chosen not to give evidence or call witnesses. The learned trial Judge found as a fact and held that the first accused never at any time purchased, as had been testified to by him, 20 bags of cocoa made up of 10 bags alleged to have been bought by him on14th October, 1966 and another 10 bags on 26th October, 1966 respectively, and on each occasion for the sum of 53pounds.3s. 7d out of the funds of his employers in his possession, the 20 bags of cocoa being the fons et origo and indeed, the real basis of the whole case against the first accused and the appellant. The learned trial Judge also found as a fact that Osheni & Co. Abocho, to which the first sum of 53pounds. 3s. 7d is purported to have been paid for 10 bags of cocoa on 14th October, 1966, was a  non existent company and that it neither sold cocoa to the first accused nor received the money alleged to have been paid to it as the price of the cocoa. Similarly, he held in effect that Musa Issa Abocho, Sule Agbaja and Joseph Agbaja to whom the second sum of 53pounds. 3s. 7d for the second set of 10 bags of cocoa was alleged to have been paid on 26th October, 1966 as recorded in the cocoa purchase book, Exhibit ’12’ in the proceedings, were fictitious names and that they never sold cocoa to the first accused as falsely shown by him in receipt No. 14402, that is, Exhibit 1A in the proceedings.

Following upon the finding that the 20 bags of cocoa were never bought at all and therefore non-existent at the time when the appellant purported to have examined, graded and later check-tested them, the learned trial Judge held that the entries made by the appellant on 14th October, 1966 and 26th October, 1966 respectively in Exhibit ‘3’ in the proceedings, that is, a cocoa register in custody of the first accused and in the Produce Inspectors’ duty posting book, Exhibit ‘8’ in the proceedings, formerly property of the former Northern Region Government, but now, of the Kwara State Government, but in the custody of the appellant, to the effect that, having been posted for grading and check-testing duty, he had in fact graded the 20 bags of cocoa and subsequently check-tested the same, were false.
From these findings, the learned trial Judge held specifically that the appellant had conspired with the first accused to, and that the first accused did successfully, defraud the Kabba Co-operative Produce Marketing Union Ltd. of the sums of 53. 3s. 7d on 14th October, 1966 and of 53. 3s. 7d on 26th October, 1966 respectively. He thereupon convicted the appellant of all the offences with which he was charged. He sentenced him to various but concurrent, where appropriate, terms of imprisonment. The appellant has now appealed to this court against his conviction.

Originally three grounds of appeal were filed. At the hearing however, Mr. Mustapha Akanbi, learned Counsel for the appellant abandoned the second ground of appeal, which was accordingly struck out. He argued the remaining two grounds of appeal together. These grounds were in the terms hereunder set forth, namely,
(1) That the judgment of the trial court is unreasonable, unwarranted and cannot be supported having regard to the evidence.
And
(2)  That the trial Judge was wrong in law to have convicted the appellant on a charge of criminal breach of trust as it was wrong for the appellant to have been charged with both conspiracy and the offence of criminal breach of trust at the same time.

In arguing these grounds, learned Counsel severely criticised the learned trial Judge for having accepted the case of the prosecution against the appellant, which case, he contended, depended to a large extent on the evidence of only two witnesses, namely, Mohammed Sanusi (P.W. 2), the Produce Officer who, at all times material to the alleged commission of the offences in 1966, was stationed at Lokoja, the appellant then as well as up to the time of his trial was serving under him as a Produce Inspector; and James Ekundayo Akerele (P.W.3), the Supervisor in charge of Produce, employed then by Messrs John  Holt Ltd., Lokoja; and that the learned trial Judge erred in convicting the appellant at all as the only evidence linking him with the offences based, as it was principally on the testimony of Mohammed Sanusi (P.W. 2) is that he had signed Exhibits ‘3’ and ‘8’ and made entries therein.

Learned Counsel then drew the attention of the court to the offence of criminal breach of trust as defined in Section  311 of the Penal Code as involving dishonest appropriation, or conversion, or use, or disposal of property over which a person has dominion; and to Section 16 of the Penal Code wherein it is stated that a person is said to do a thing “dishonestly” who does that thing with the intention of causing a wrongful gain to himself or another or of causing a wrongful loss to any other person; and contended that there was no evidence before the learned trial Judge of an intention on the part of the appellant to cause a wrongful gain in making the entries in Exhibits ‘3’ and ‘8’ purportedly held to be false. It was also the contention of learned Counsel that there was before the court no positive or direct evidence of any agreement between the first accused and the appellant to commit any criminal offence, or that the appellant knew at the time of making the entries in question that the first accused was going to defraud anyone; and that the appellant having been charged with abetting the commission of a criminal offence ought not to have been charged at the same time with criminal conspiracy.

Finally, it was submitted by the learned Counsel for the appellant that the evidence given by James Ekundayo Akerele (P.W. 3) as to the 20 bags of cocoa was conflicting, because the latter had said that when he went to the Produce Store to check, he had found that the 20 bags of cocoa, the waybills of which he had signed as having received, were “missing”; and that that statement was tantamount to an admission by James  Ekundayo Akerele (P.W.3) that he had in fact received the 20 bags of cocoa for, if it were not so, he could not have described them as “missing”; and that that conflict was not resolved by the learned trial Judge. That being so, learned Counsel submitted that on the authority of Clark Ejuren v. Commissioner of Police (1961) All NLR 478 the conflict ought to have been resolved in favour of the appellant.
For the respondent, Mr. Shittu, Ag. Senior State Counsel, pointed out that the criticism of the learned trial Judge by the learned Counsel for the appellant was misdirected. He submitted that the learned trial Judge was entitled, having had the opportunity of hearing the witnesses who testified before him and of observing their demeanour, to accept and act upon such evidence as appears to him reasonable. Further learned Counsel contended that the charge of conspiracy as laid was quite proper and in due compliance with the provisions of Section 212 of the Criminal Procedure Code, which is to the effect, in so far as the same is relevant to the point in issue, that “for every distinct offence of which any person is accused there shall be a separate charge.” Learned Counsel then submitted that there was a clear and unequivocal evidence that the appellant graded a non existent 20 bags of cocoa and thereafter irregularly check tested the same without being assigned to do so by his superior officer, which resulted in the Kabba Co-operative Produce Marketing Union Ltd., the employers of the first accused, losing 53. 3s. 7d on 14th October, 1966 and an equal sum of money on 26th October, 1966. Finally, learned Counsel submitted that the learned trial Judge, having accepted the evidence given by the witnesses for the prosecution, was justified in convicting the appellant as he did.

Since the main attack by the appellant in this appeal is directed against the evidence which was accepted by the learned trial Judge in convicting him, we consider it necessary to examine the evidence in some detail as given by the witnesses upon whose evidence the learned trial Judge had placed great reliance. We would, however, start off by dealing first with the two points of law which were raised in the course of the arguments by learned Counsel. And we state at once that we respectfully agree with the principle of law enunciated in Clark Ejuren v. Commissioner of Police (supra) to the effect that if, on appeal from a conviction on a criminal charge, the record of evidence shows that the trial court heard witnesses who gave two conflicting versions of an essential fact and that court failed to make any specific finding on that fact, the Supreme Court as a Court of Appeal cannot choose between the two versions of the fact in order to make a finding of fact against the appellant which the trial court did not make; and that, in the absence of a specific finding by the trial court of an essential fact in the conflicting evidence so adduced, the only conclusion the appellate court can draw from such conflicting evidence is that which is favourable to the accused. Nonetheless, we are of the view that Clark Ejuren V. Commissioner of Police (supra) is completely irrelevant to the facts and circumstances of the present case on appeal. We disagree with the submissions by the learned Counsel for the appellant that the evidence disclosed that the learned trial Judge heard witnesses who gave two conflicting versions of an essential fact, and that he failed to resolve such conflict. We think that this submission on the part of the learned Counsel for the appellant is based on a misapprehension of the evidence in support of the case for the prosecution. We propose to deal with this aspect of the matter more fully when considering the evidence which was accepted by the learned trial Judge.
The other issue of law argued concerns the charge of conspiracy. The point made was that the charge of conspiracy ought not to have been joined with the charge of abetting the commission of the offence of criminal breach of trust. We must confess that it was rather difficult to comprehend what the learned Counsel for the appellant meant to convey by this submission. As we understand it, the complaint by the appellant appears to be based on a misconception of the principles of law involved – an assumption that the conspiracy charged is an incident of the criminal breach of trust also charged and therefore must merge in the latter.

For the proper appreciation of this submission we think it is necessary  to refer to the definition of criminal conspiracy as contained in Section 96 of the Penal Code, Cap. 89 which is as follows:-

“96(1) When two or more persons agree to do or cause to be done –
(a)  an illegal act; or
(b)an act which is not illegal by illegal means, such an agreement is called a criminal conspiracy.
(2)  Notwithstanding the provisions of subsection (1), no agrement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.”

In the present case on appeal we think that in view of the above definition the short answer to the appellants complaint was given by the learned Counsel for the respondent when he pointed out that the appellant was not charged with conspiracy simpliciter. The conspiracy charged was a criminal conspiracy to defraud the Kabba Co-operative Produce Marketing Union Ltd. of the sum of 53pounds. 3s. 7d on 14th October, 1966 and the like sum on 26th October, 1966 respectively, which constituted specific offences contrary to and punishable under Sections 97 and 314 of the Penal Code and therefore separate and distinct from the offence of abetting the commission of a criminal breach of trust contrary to and punishable under Sections 85 and 314 of the Penal Code. The charge of criminal conspiracy was therefore properly and correctly laid in due compliance with the provisions of Section 212 of the Criminal Procedure Code. This ground of complaint lacks substance. It is accordingly rejected.

We turn to consider the evidence; and the main point of complaint by the appellant in this regard was, by way of recapitulation, that the conviction of the appellant was based on the evidence of Mohammed Sanusi (P.W.2) and James Ekundayo Akerele (P.W.3) and that the evidence given by the latter as to the 20 bags of cocoa was conflicting and unresolved because he had said that when he went to the Produce Store to check, he had found that 20 bags of cocoa, the waybills whereof had already been signed as already received by him were “missing” and that the statement that the 20 bags of cocoa were “missing” was tantamount to an admission that he had, at some time in fact, received the 20 bags of cocoa and stored them in the store and that the learned trial Judge should have so found.
In the interest of accuracy we set out hereunder the relevant evidence on the point given by James Ekundayo Akerele (P.W. 3) which was as follows:-

“In October, 1966 when I went round on periodical checks, I found 20 bags of light crop grade 1 cocoa missing. x    xxx  I went back to my office and checked my records. x   x  I returned to the store and reported the shortage to accused 1. When I was making a check in my office I discovered two waybills sneaked inside my tray. x    x    x    The extra two waybills contained 10 bags each. I went back to accused 1 with the extra two waybills. I told him that I suspected the two waybills and I would like to check his records. I discovered from his record that the first 10 bags had no application for grading and also no application for check-testing. I discovered similar things on the second 10 bags. I asked for the register being kept by  him, he gave me. I discovered from the register that the columns which should  be signed by two different Produce Inspectors were signed by only one Produce Inspector on each of those 10 bags. This accounted for the missing 20 bags. (Exhibits ‘5’ and ‘7’) (were) the two waybills (and) were prepared by accused 1.

xxxx  I never received the produce shown on Exhibits ‘5’ and ‘7’, but I signed them in error.

xxxx The entries which I said were signed by one Produce Inspector instead of two are in Exhibit ‘3A’. It was accused 2 who signed the two columns for grading and for check-testing in Exhibit ‘3A’. I then made a report to the Produce Officer i/c of the station and to the Co-operative Union – Kabba. xx x  I identify the writing in Exhibit ‘8A’ as that of accused 2.”

From the foregoing it is as clear as day light that there was no conflict in the evidence given by James Ekundayo Akerele (P.W. 3). If anything, the evidence shows that he it was who first detected the irregularity in the handling of the 10 bags of cocoa by the first accused and the appellant. It was that detection that led ultimately to the discovery of the alleged fraud purportedly perpetrated in the handling, grading and check-testing of the 20 bags of cocoa by the appellant. In this respect, James Ekundayo Akerele’s evidence undoubtedly corroborated and reinforced the very strong evidence given by Mohammed Sanusi (P.W.2), which may accurately be described as establishing directly the charges of abetting the commission of falsification of account and the actual falsification of account, and indirectly of the charges of criminal conspiracy and of abetting criminal breach of trust and, which evidence in brief, was to the effect that the relevant false entries in Exhibits ‘3’ and ‘8’ respectively in the proceedings were made by the appellant.
We reproduce hereunder his own evidence in so far as and to the extent that the same is relevant to the point at issue. In his evidence, Mohammed Sanusi (P.W. 2) said:-

“Accused 2 was responsible for grading duties and he could post Produce Inspectors for grading duties. There were three Inspectors then. Accused 2 was the Produce Inspector i/c of Station for grading of Produce in October, 1966, he was the person who would receive application for grading. Such application used to be in duplicate and he would minute on it  showing the time he received it and put the name of the Inspector who would do the grading. He would return the duplicate application to the storekeeper and file the original on the posting book where he would enter the date, name of the licence buying agent, his own name, name of the officer posted, followed by the signature of the officer posted, the time the officer went to check and the time he returned. On his return the officer would enter in the posting book, the quantity of the produce graded as well as the grade of the produce.

At the grading place, the Inspector will grade after which he has to countersign the storekeeper’s entries as the grading Inspector. After this, the storekeeper will apply for the nominated “check-test. In case I will do the nominated check-testing I will so  minute on the application. If I would ask it to be done by an Inspector I will so minute. I would not nominate an Inspector who has earlier graded the produce. After completion of nominated check-testing, an entry of the result of the check-test will be made in the storekeeper’s book and will be signed.

The posting book (Exhibit ‘8’) was in the custody of accused 2.

On 14/10/66 at p. 24 of Exhibit 8, 62 bags of palm kernel and 10 bags of cocoa were graded. The entries made on 14/10/66 which I have just read out were in the hand writing of accused 2. I know the hand writing of accused 2.

The application was received at 8.15 a.m. It was accused 2 that was posted to do the grading. On 26/10/66 at p. 25 in Exhibit ‘8’, accused 2 posted himself out and graded 10 bags of cocoa. The entries were made by accused 2.
I have seen Exhibit ‘3A’ at the entries dated 14/10/66 and 26/10/66. It was accused 2 who signed under the column of Inspector. It was accused 2 also who signed under the column check-tester’s signature. He also made entries of the result of his test.
On receiving Exhibit ‘8’, I checked Exhibit 3 and discovered that accused 2 posted himself out to grade and check-test on two occasions without reference to me. I looked into the application file but there was no application from the store-keeper on the two occasions.”

Thus according to the evidence as set out above and on the face of Exhibits ‘3’ and ‘8’ in the proceedings, the appellant, contrary to the well established practice prevailing at the material time in the department of Produce Inspection, posted himself both to grade and check test non-existent 20 bags of cocoa purportedly bought from certain non existent persons by the first accused. The case of the prosecution was that the appellant did this well knowing that the 20 bags of cocoa only existed in the imagination of the first accused and the appellant and that the appellant purportedly graded and check-tested the same intentionally, in consequence of an agreement which is the only irresistible inference to be drawn from the conduct of the first accused and the appellant, to cause, and did in fact cause, a wrongful gain involving on each of two occasions the sum of 53pounds.3s. 7d to the first accused at least, and a wrongful loss of such sum on each such occasion to the Kabba Co-operative Produce Marketing Union Ltd., the employers of the first accused. It was also the case of the prosecution that by lending his authority to the first accused and making the false entries in Exhibits ‘3’ and ‘8’ in the proceedings, the appellant not only had committed the offence of abetting the commission of a criminal breach of trust but had also conspired with the first accused to defraud the Kabba Co-operative Produce Marketing Union Ltd.; and, that to make the conspiracy effective and seemingly water tight and in furtherance thereof, the appellant himself committed the offence of falsification of account by making false entries in the book, Exhibit ‘8’ in the proceedings, which was in his custody, and in the produce register, Exhibit ‘3’, which was in the custody of the first accused.

It is our considered view that, having regard to the fact that the evidence given by the first accused was rejected and that the appellant had refrained from giving evidence or calling any witness to testify in his favour, which he was perfectly entitled to do, the evidence against the appellant was overwhelming. The submission of the learned Counsel for the appellant that there was no direct, positive evidence of conspiracy between the first accused and the appellant carried with it no element of conviction. We are satisfied that the case of the prosecution was proved beyond reasonable doubt and that the appellant was rightly convicted.

This appeal therefore fails. It is dismissed.

SC.235/1971