Josiah Orungua & Ors Vs The State (1970)

LawGlobal-Hub Lead Judgment Report

MADARIKAN, J. S.C.

The four appellants in this appeal were the 2nd, 3rd, 5th and 6th accused persons respectively in the Lagos High Court where they were charged along with 3 other persons on an information which was amended at the trial to read as follows:
“Statement of Offence-1st count
Conspiracy to commit felony, contrary to section 516 of the Criminal Code. Particulars of Offence
1.Josiah Orungua alias Gabriel Chike Michael Onyiuke alias Chico,
2. Michael Durojaiye,
3. John Chukwudi Oduah,
4. Mufutau Ajetunmobi,
5. Bolaji Alagba,
6. Thomas Olowa and
7. Bolaji Grillo in or about the month of April 1968, at Lagos in the Lagos Judicial Division, conspired together and with other persons unknown to commit felony to wit; obtaining money by false pretences.
Statement of Offence-2nd count
Stealing contrary to and punishable under section 390(4)(f) of the Criminal Code.
Particulars of Offence
1. Josiah Orungua, alias Gabriel Chike Michael Onyiuke alias Chico, 2. Michael Durojaiye, 3. John Chukwudi Oduah, 4. Mufutau Ajetunmobi, 5. Bolaji Alagba, 6. Thomas Olowa and 7. Bolaji Grillo, in or about the month of April 1968 at Lagos, in the Lagos Judicial Division, stole a document to wit; the copy of a deed in respect of the property known as 35 Ogunlana Drive, Surulere and registered as No. 19 at page 19 in Volume 1071 and kept in the office of the Lagos Lands Registry.
Statement of Offence-3rd count
Personation contrary to section 484 of the Criminal Code.
Particulars of Offence
Josiah Orungua alias Gabriel Chike Michael Onyiuke alias Chico on or about the 13th day of April, 1968 at Lagos in the Lagos Judicial Division with intent to defraud Azariah Olusegun Ransome-Kuti falsely represented himself to be Gabriel Chike Michael Onyiuke the registered owner of the landed property known as No. 35 Ogunlana Drive, Surulere.
Obtaining money by false pretences, contrary to section 419 of the Criminal Code.

Particulars of Offence
Josiah Orungua, alias Gabriel Chike Onyiuke, alias Chico on or about the 13th day of April, 1968 at Lagos in the Lagos Judicial Division with intent to defraud obtained from Azariah Olusegun Ransome-Kuti the sum of 3,500pounds by false pretences to wit; by falsely pretending that he was Gabriel Chike Onyiuke, the registered owner of the landed property known as 35 Ogunlana Drive, Surulere, and thereby entitled to the proceeds of the sale of the said property.
Statement of Offence-5th count
Forgery, contrary to section 467(2)(d) of the Criminal Code.
Particulars of Offence
1. Josiah Orungua, alias Gabriel Chike Michael Onyiuke, alias Chico, 2. John Chukwudi Oduah on or about the 13th day of April, 1968 at Lagos in the Lagos Judicial Division forged a document to wit; a deed of Conveyance in respect of the landed property known as 35 Ogunlana Drive, Surulere, purporting same to be signed by the registered owner, Gabriel Michael Onyiuke of 40 Modebe Avenue, Onitsha.
Statement of Offence 4th count
Uttering a false document, contrary to section 468 punishable under section 467(2) of the Criminal Code.
Particulars of Offence
1. Josiah Orungua, alias Gabriel Chike Michael Onyiuke, alias Chico, 2. John Chukwudi Oduah, on or about the 13th day of April, 1968, at Lagos in the Lagos Judicia Division knowingly and fraudulently uttered a false document to wit; a deed of conveyance in respect of the landed property known as 35 Ogunlana Drive, purporting same to be signed by the registered owner Gabriel Chike Michael Onyiuke of 40 Modebe Avenue, Onitsha.
Statement of Offence-7th count
Forgery, contrary to section 467(4)(b) of the Criminal Code.
Particulars of Offence
1. Josiah Orungua, alia Gabriel Chike Michael Onyiuke, alias Chico,
2. Bolaji Alagba, 3. Thomas Olowa, 4. Bolaji Grillo, on or about the 27th of April, 1968 at Lagos in the Lagos Judicial Division forged a document to wit; a Power of Attorney in respect of landed property known as plot No. 187 L.E.D.B., Hire Road Estate and registered as No. 19 at page 19 in Volume 1071 at the Lands Registry in the Office at Lagos purporting same to be signed by the registered owner of the said property, Gabriel Chike Michael Onyiuke of 40 Modebe Avenue, Onitsha, as the donor of the Power.

Statement of Offence-8th count
Uttering a false document, contrary to section 468 and punishable under section 467 (4) (b) of the Criminal Code.
Particulars of Offence
1. Josiah Orungua, alias Gabriel Chike, Michael Onyiuke, alias Chico, 2. Bolaji Alagba, 3. Thomas Olowa, 4. Bolaji Grillo on or about the 1st day of May, 1968 at Lagos in the Lagos Judicial Division knowingly and fraudulently uttered a false document to wit; a Power of Attorney in respect of the landed property known as plot 187, L.E.D.B. Hire Road Estate and registered as No. 19 at page 19 in Volume 1071 at the Lands Registry in the Office at lagos; purporting same to be signed by the registered owner of the said property, Gabriel Chike Michael Onyiuke of 40 Modebe Avenue, Onitsha, as the donor of the Power.”
It is convenient, at the outset, to consider the 1st ground of appeal argued on behalf of the 2nd accused. It reads as follows:-
“That the learned trial judge erred in law by trying the appellant Michael Durojaiye and others on a direct information filed before him by the Director of Public Prosecution under section 340(2)(b) of the Criminal Procedure Act without a preliminary investigation being first held when such procedure had been abolilshed in the High Court of Justice in England by section 6(6) Criminal Law Act, 1967 in which case the procedure is also automatically abolished in Nigeria, pursuant to section 363 of the Criminal Procedure Act.”
It was the contention of counsel for the 2nd accused that the information on which the accused person stood trial was entitled “criminal information”; that the Criminal Procedure Act does not make provisions for the filing of “criminal information”; that by virtue of the provisions of section 363 of the Act, where there are no specific provisions in the Act, the procedure and practice for the time being in the High Court of Justice in England apply to the High Courts in Nigeria; and finally, that as “criminal information”; had been abolished in England by section 6(6) of the Criminal Law Act, 1967, the criminal information filed in the instant case was not permitted by law and it vitiated the whole proceedings.
Proceedings in this case were commenced in the Lagos High Court in the following manner. By a letter dated the 19th of October, 1968, addressed to the Chief Justice of the High Court of Lagos State by the Acting Director of Public Prosecutions, Lagos State, he sought the consent of the Chief Justice to prefer an information in accordance with the provisions of section 340(2)(b) of the Criminal Procedure Act, and attached a copy of the information to the letter. He stated, inter alia, in the letter that:
“2. Owing to the circumstances in which the offences were committed and the time taken during the investigation, added to the fact that much publicity has been given to this matter and the like, it is my view, with respect, that an early trial in this form would meet the justice of this case.
3. In order therefore to save time and expense, I have deemed it neccessary to prefer an information with the consent of a judge instead of holding a preliminary inquiry first into the matter.
5. In the absence of any rule of court in respect of the application as at present, I am making this application in compliance with section 6 of the Indictment Rules, 1933 in force in the High Court of Justice in England by virtue of section 363 of the Criminal Procedure Act.”
He also attached to the letter, the proofs of the evidence of the witnesses he proposed to call at the trial, and stated that the facts disclosed in the proofs established a prima facie case against the accused persons.
On the 21st of October, 1968, the Chief Justice gave his consent under section 340 (2) (b) of the Criminal Procedure Act to the information being pre-ferred as proposed; and, on the following day, the Acting Director of Public Prosecutions filed the information in the High Court.
In our view, section 6 (6) of the Criminal Law Act, 1967, which abolishes the power to commence proceedings by criminal information in England in no way affects the power of a judge in England to give consent that a bill of indictment be preferred under section 2(2) of the Administration of Justice (Miscellaneous Provisions) Act, 1933. The section reads as follows:
“Subject as hereinafter provided no bill of indictment charging any per-son with an indictable offence shall be preferred unless either:-
(a)…….; or
(b) the bill is preferred…….by the direction or with the consent of a judge of the High Court…….”
It will be observed that this section is in pari materia to section 340 (2) (b) of the Criminal Procedure Act which also reads as follows:
“Subject as hereinafter provided no information charging any person with an indictable offence shall be preferred unless either:-
(a)…….; or
(b) the information is preferred by the direction or with the consent of a judge…….”
save that in Nigeria what is preferred is an information not an indictment. We are satisfied that the Chief Justice was acting within his powers under section 340 (2) (b) in granting his consent to prefer the information in this case. Even though the information bears the heading-Criminal Information-yet we are in no doubt that it is substantially in conformity with the form prescribed by section 337 of the Criminal Procedure Act which provides that:
“Every information shall bear date of the day when the same is signed and, with such modifications as shall be necessary to adapt it to the circumstances of each case, may commence in the following form:-

The Republic v. C.D.
In the High Court of the Region
The…….Judicial Division
The…….day of, 19…….
At the sessions holden at…….on the…….day of…….19……., the Court is informed by the Attorney-General of the Federation [or A.B.] on behalf of the Republic that C.D. is charged with the following offence [or offences].”

Furthermore, we are of the view that the error of referring to the “information” as a “criminal information” was not identifying the information here in Nigeria with the abolished criminal information in England.

It is gennane to this point to refer to section 22 of the Interpretation Act, 1964, which is designed to save forms which depart from those prescribed by an enactment provided the departure is not in a material particular and is not calculated to mislead. The section provides that:
“Where a form is prescribed by an enactment, a form which differs from the prescribed form shall not be invalid for the purposes of the enactment by reason only of the difference if the difference is not in a material particular and is not calculated to mislead.”

The only defect complained of in the information filed in this case has, in our view, been cured by the provisions of section 22 of the Interpretation Act.
At the trial of the case, the facts on which the prosecution relied were that one Gabriel Chike Michael Onyiuke of 40 Modebe Avenue, Onitsha, was the registered owner of No. 35 Ogumlana Drive, Surulere, which was offered for sale together with an uncompleted building on it. Throughout the transaction for the sale of the property, the 1st accused represented himself as G.C.M. Onyiuke, the registered owner of the property. Early in April, 1968, both the 1st and 2nd accused persons went to one Olatunde Laja (P.W.l), an estate agent. The 2nd accused introduced the 1st accused to P.W.1 as Mr G.C.M. Onyiuke and he (i.e. the 1st accused) requested P.W.1 to assist him to sell his property at No. 35 Ogunlana Drive, Surulere, and promised to pay a commission of 10 per cent of the purchase price to P. W.1. This agreement was reduced into writing on the 6th April, 1968, and the written agreement was marked as exhibit A at the trial. It reads as follows:

AGREEMENT
THIS AGREEMENT made this 6th day of April, 1968 BETWEEN OLATUNDE LAJA the Director of Laja Real Estate Agencies of No. 11 Adesina Street, Mushin, Lagos State, Nigeria (hereinafter referred to as the agent of the one part) AND MR G.C.M. ONYIUKE of 40 Modebe Avenue, Onitsha, Nigeria hereinafter referred to as the Principal. WHEREBY IT IS AGREED AS FOLLOWS:-
1. That the Principal has agreed to engage the services of the agent to sell him a landed property situate, lying and being at No. 35 Ogunlana Drive, Surulere, Lagos State.
2. That the AGENT has agreed to sell a landed property for the PRINCIPAL.
3. That the Principal hereby acknowledges the receipt of 50pounds-0s-0d (Fifty pounds) only which he received from the Agent as TOKEN deposit against final payment on the said property.
4. That the Principal agrees to pay the Agent both the Token deposit and a commission of 10 per cent on the purchase price of the property on the spot, whether the principal sells through the Agent or not.
5. That the Principal agrees to execute transfer of Title immediately
the purchase price is paid to him through the Agent.
6. That if the Principal fails to pay the deposit and the Commission, the Agent shall have the right to take lawful proceedings to recover the same.
DATED at Lagos this 6th day of April, 1968.

A.C.M. ONYIUKE, Principal Signature
Witness: Name: M.A. Durojaiye.
Address: 20 Abayomi Street, Lawanson.
Occupation: Trader.
Address of Property: 35 Ogunlana Drive, Surulere, Lagos State. Selling Price: 3,500pounds (Three thousand five hundred pounds) only.
Both the Principal and the Agent agrees that this Agreement becomes Null and Void as from the 13th day of April, 1968, but that the Principal shall be only liable to refund the TOKEN deposit to the Agent immediately.”

The 1st accused gave P. W.1. a photostat copy of the deed of conveyance (exhibit B) of the property, P.W.1 in turn contacted Adeniran Olusanya (P.W.2) and asked him to assist in selling the property. P.W.2 later introduced Mr A.O. Ransome-Kuti (P.W.3) to P.W.1 as a prospective purchaser of the property. After inspecting the property, P.W.3 agreed to buy it for 3,500pounds; and he instructed his lawyer, Mr A. Akindele (P.W.9) , to prepare the necessary documents. He also went to the Lands Registry, Lagos, with another laywer, Mr N.A.B. Kotoye (P.WA) to investigate the title. After carrying out a search, Mr Kotoye was satisfied that the title of Onyiuke was genuine and he advised his client (P.W.3) accordingly. In consequence of the advice, P.W.3 paid the purchase price of 3,500pounds to another lawyer, Mr T. Alaka (P.W.6), who was then acting as Onyiuke’s solicitor. Thereafter, the 1st accused executed a deed of conveyance (exhibit C) dated 13th of April, 1968, purporting to transfer the property to P.W.3.

A few days later, it came to light that the first accused had falsely represented himself as A.C.M. Onyiuke, as all efforts by P.W.3 to recover the purchase money of 3,500pounds from the first accused failed, the matter was reported to the Police and the accused persons were rounded up and arrested. That was the background to the case, but in considering the appeal of each of the appellants, we shall examine, in greater detail, the evidence which connected him with the crime.
With regard to the second accused, he was charged with conspiracy on the 1st count; and on the 2nd count, he was charged with stealing a copy of a deed of conveyance relating to No. 35 Ogunlana Drive, Surulere.

The learned trial judge found him guilty of conspiracy for the following reasons:
1. The 2nd accused introduced the 1st accused to P.W.1 as G.C.M. Onyiuke, the owner of No. 35 Ogunlana Drive, Surulere.
2. In one of the statements which the 2nd accused made to the police (exhibit 5), he referred to the 1st accused as Mr. Chike and not as Mr Onyiuke.
3. The 2nd accused lied to P.W.2, and P.W.9 when he told them that the 1st accused was living in Apapa whereas he knew that the 1st accused was living at Ikate.
4. A few days after the purported sale of the property to P.W.3, the 1st accused confessed to P.W.1 that he was not G.C.M. Onyiuke, the owner of the property, and both the 1st and 2nd accused begged Mr A.O. Ransome-Kuti (P.W.3) to be allowed time to refund the purchase money of 3,500pounds.
5. The 2nd accused told a lie to Mr. Aibinu (P.W.5), a lawyer, and thereby got him to write a letter to Mr. Kotoye (P.W.4) in which he promised that the purchase money of 3,500pounds  would be refunded on “31-5-68 or thereabouts”.
In conclusion, the learned judge said:
“I ask myself why should the 2nd accused take upon himself to lie to both Mr. Aibinu and Mr. Kotoye about the sale of a property which never existed, especially as he knew that the sale of the house to Mr Kuti was not genuine, and considering the part which he played in the transaction. From the evidence before me I hold that the 2nd accused took part in the conspiracy to obtain the sum of 3,500pounds by false pretences.”
On the count of stealing, the learned judge found as facts that the 1st accused was not G.C.M. Onyiuke, the owner of No. 35 Ogunlana Drive, Surulere; that the deed of conveyance (exhibit B 1) was stolen by one of the officers of the Lands Registry; that it was on the strength of that deed of conveyance that the property was sold to P.W.3; that the 2nd accused witnessed the signature of the 1st accused on the deed of conveyance made in favour of P.W.3; and that the 2nd accused was present in the office of Mr. Alaka when the transaction was finalised. And on these facts, he convicted the 2nd accused on the charge of stealing.

Chief Somefun has submitted on behalf of the 2nd accused that the learned trial judge erred in convicting the 2nd accused of stealing when there was no evidence that he stole the deed of conveyance (exhibit B 1) nor was there any evidence that he counselled or procured anyone to steal it. On the count of conspiracy, it was counsel’s submission that evidence of conspiracy was completely lacking.