Rex V. Onitiri (1946)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law–Nigeria Criminal Code, sections 467 and 468—Expert evidence as to forgery by police officer—Evidence Ordinance, sections 56 and 5 (a)—Interpretation of ” writing “—Interpretation Ordinance, section 3—Record of Civil Suit as evidence of uttering—Supreme Court Ordinance, section 62.

1. There is no objection to a police officer giving expert evidence for the prosecution on a charge of forgery in order to prove the falsity of the document, provided that the trial court is satisfied that he is sufficiently qualified to do so.
2. On a charge of uttering, a certified copy of the record of a civil suit wherein the accused put forward false documents to the court as genuine is admissible in the criminal proceedings to prove the uttering.

Cases referred to:

1. R. v. Wilbain and Regan, 9 Cox C.C. 448.
2. R. v. Harvey, 11 Cox C.C. 546.

Appeal from the Supreme Court of Nigeria.

The following joint judgment was delivered:

This is an application for leave to appeal against convictions, at the Lagos Assizes, on two counts of forgery, contra. section 467 of the Criminal Code, and two counts of uttering, contra. section 468. Four grounds of appeal were originally filed, and an additional one was added later, and it will be convenient to deal with this additional one first, which is ” that the learned trial Judge erred in law in treating Mr. Anthony Cooper, fifth witness, as an expert to give evidence of handwriting “.

The two counts of forgery referred respectively to two typescript receipts. The prosecution alleged that they had been forged by the appellant, after their signature by the complainant, so as to make them materially different in effect, and that this had been done partly by adding to the typescript and partly by erasure and substitution of other typescript. .

Mr. Anthony Cooper is a police officer and was called by the prosecution as one of the witnesses to prove the forgery. He had examined the receipts and had made enlarged photographs of them, and he pointed out to the Court signs which went to indicate that there had been erasures and additions to the original typescript. He was treated by the Court as an expert and allowed to give his opinion (which was that certain words had in fact been erased and others substituted, and that certain other words or sentences had been added). The appellant’s contention is that a police officer cannot be called by the prosecution to give evidence as an expert, and the argument is based on the cases of Regina v. Wilbain (1) and Regina v. Harvey (2).

We think that the law is correctly stated by Phipson at page 382 of the eighth edition in the following passage:—

” On questions of handwriting, not only specialists, but post-office officials, lithographers and bank clerks have been permitted to testify as experts (R. v. Coleman, 6 Cox 163), as well as a Solicitor who had for some years given considerable attention and study to the subject, and had several times compared handwriting for purposes of evidence, though never before testified as an expert (R. v. Silverlock (1894), 2 Q.B. 766); but not police inspectors or constables merely as such.”

In our opinion, in view of the words of the judges and the particular circumstances
of the cases of Wilbain and Crouch (1) the reference of Blackburn, J., in Regina

Harvey (2) to the witness not being a competent one relate rather to his Incompetency by reason of his lack of skill or experience than to the mere fact that he was a policeman.

Arguments based on those cases are, however, somewhat beside the point.

Section 56 of the Evidence Ordinance, 1943, provides as follows :—

56. (1) When the court has to form an opinion upon a point of foreign law, native law or custom, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, native law or custom, or science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts.

(2) Such persons are called experts.

The point was taken that typescript is not to be included in the word ” handwriting ” and that the section does not apply to expert evidence of typewriting. This argument would seem to be equally applicable to the cases cited by counsel for the appellant and referred to above.

Supposing that contention to be correct, the evidence of Mr. Cooper would be admissible, if he was an expert, because of section 5 (a) of the Ordinance which provides as follows :—

” 5. Nothing in the Ordinance shall:-

” (a) prejudice the admissibility of any evidence which would apart from the provisions of this Ordinance be admissible.”

In our opinion, however, the contention is not correct. The Evidence Ordinance does not define ” handwriting “. The Interpretation Ordinance, section 3, contains the following definition :—

” writing ” and expressions referring to writing include printing, lithography, photography, typewriting and other modes of representing or reproducing words or figures in a visible form ;

” Handwriting ” in the Evidence Ordinance is an expression referring to writing and so includes typewriting. Consequently ” any person ” can be an expert if skilled. It is for the judge to decide whether or not a person is sufficiently skilled to give expert evidence. Mr. Cooper was examined as to his credentials (so to speak) and gave them ; and the Judge allowed him to give evidence as an expert. It is not possible to say that his decision was wrong, and so this ground of appeal fails.

Ground 1 refers to the first two counts. In his judgment the learned trial Judge set out what the prosecution had to prove in order to establish the case on those counts.

This ground of appeal agrees that the requisites were correctly set out but alleges that the judge erred in his application of the law. It is to be observed that the extract from the judgment here cited by the appellant is incomplete. Had all the words used by the trial Judge in this passage been set out it would be clear that he did not refer solely to the evidence indicating strong motive but also to other factors which rightly led him to the conclusion that there was sufficient evidence upon which to convict. This ground of appeal therefore fails.

Grounds 2 and 3 can be considered together. The forgery of the receipts resulted in their appearing to be receipts for part payments on account of a sale of property at Yaba by the complainant to the appellant. Originally they had been receipts for payment of a year’s rent in advance (the appellant being a tenant of part of the property) and a small loan respectively. The appellant got possession of the key of the back door of the whole property and in the result the complainant sued him for a declaration of title. A certified copy of the

record of that suit was put in evidence by the prosecution in order to prove that in that suit the appellant stated that the two receipts (in their altered form) were the receipts given to him by the complainant, and he identified the two documents. In other words he meant them to be acted upon by the Court as genuine, which is an uttering within the definition of ” utter ” in section 1 of the Criminal Code. The prosecution did this in order to prove the uttering. It was admitted in evidence under section 62 (3) of the Supreme Court Ordinance, 1943, and ground 2 alleges that this was wrong and that ” proceedings in a civil action are not admissible in law to prove ipso facto a crime “, and ground 3 is that the conviction on counts 3 and 4 were wrong in law because there was no proof of uttering within the meaning of the Criminal Code.

In our opinion the certified copy of the civil suit was admissible in evidence. The law of this country on this point differs from that of England. In this country, section 62 (1) of the Supreme Court Ordinance puts the presiding judge in every civil or criminal case under a statutory obligation to ” take down in writing the purport of all oral evidence given before the court and minutes of the proceedings ” and to ” sign the same at any adjournment of the case and at the conclusion thereof “.

Section 62 (3) provides:-

” The record so kept as aforesaid or a copy thereof purporting to be signed and certified as a true copy by the registrar shall at all times, without further proof, be admitted as evidence of such proceedings and of the statements made by the witnesses.”

We agree with the learned Judge when he said : ” I think that the words of section 62 (3) are plain and that they are in no way whittled down by section 68 —a saving section . . . “

It is to be noted that the words of the sub-section are ” shall . . . be admitted as evidence of . . . ” and not ” as proof of ” or as ” conclusive proof “. The copy of the case becomes evidence of the uttering (which consisted of the statement identifying the receipts as genuine receipts).

It was the only evidence thereof, but it was uncontradicted evidence. The defence called no evidence at all. In these circumstances we think the trial Judge was justified in convicting the appellant on the two counts of uttering. Both these grounds of appeal fail.

The last ground of appeal was: ” Judgment against weight of evidence “. This, of course, should have been that the judgment was unreasonable and cannot be supported having regard to the evidence. It is sufficient to say that in our opinion there was sufficient evidence to support the judgment, which was in no way unreasonable.

The result is that the appeal fails on all grounds and is dismissed.

Appeal dismissed.