Rex V. Shaibu Yakubu (1944)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law—Criminal Code, section 467 and section 467 (3) (c)—Forgery simple or aggravated—Criminal Code section 438 (b)— Absence of Allegation of intent to defraud in particulars of charge of false accounting.

Following a report by the Defendant that he had been falsifying the books so as to cover amounts withdrawn on an Emir’s directions, the accounts were audited and Defendant, a clerk in a native treasury, was charged with forgery under section 467 (3) (c) and false accounting under section 438 (b) of the Criminal Code, and convicted of both charges. The forgery was established, but it was not proved that it related to money payable on account of the Nigeria public service. In regard to the charge of false accounting, the particulars did not allege an intent to defraud. On appeal :—

Held, that the conviction of forgery should not, in the circumstances, have been for an offence against section 467 (3) (c) of the Criminal Code, but for the lesser offence under section 467.

Held also, that intent to defraud being the essence of an offence under section 438 (b), as such intent had not been alleged in the particulars of offence, the:conviction could not be sustained.

Appeal from the High Court, Kaduna.

N. G. Hay for the Crown.

E. N. Egbuna for the Appellant.

The judgment of the Court was delivered by Harragin, C. J. :—

In this case the relevant facts may be set out shortly as follows. A clerk in a native treasury (the Appellant in this case) reported to his District Officer that for some time he had been falsifying the books in order to cover amounts withdrawn from the cash on the directions of the Emir of Kano.

In consequence of the report an audit of the accounts was made with the result that the Appellant and another clerk were charged on six counts with various offences. At the end of the case the second accused was discharged and the Appellant convicted on counts 2 and 6 which read as follows :—

“Stalement of Offence-2nd Count.

” Forgery, contrary to section 467 (3) (c) of the Criminal Code.

” Mallam Shaibu Yakubu and Mallam Atikn Katsina, on or before the 18th day of February. 1944, at Kano in the Kano Province, forged a document relating to the obtaining of money payable on account of the public service of Nigeria, to wit, an order by the Emir of Kano, for the payment of a sum of £30.

” Statement of Offence-8th Count.

” Fraudulent False Accounting, contrary to section 438 (b) of the Criminal Code.

Particulars of Offence

” Shaibu Yakubu, on the 18th day of February. 1944, at Kano, in the Kano Province, being a clerk or servant to the Kano native authority made false entry in an account book, the property of the Kano Native authority, purporting to show that on that day he had paid the sum of £126 2s. 8d. to one Wakilin Biya.”

Against those convictions he has appealed.

With regard to count 2 the Appellant is charged with an offence against section 467 (3) (c) which provides for an increased penalty for a forgery ” relating to the obtaining of any money payable on account of the public service of Nigeria “. We are not satisfied that it has been proved that this forgery relates to money payable on account of the public service of Nigeria ; in fact it purports to refer to money taken from the native treasury and advanced to the Emir at his request. There was however evidence upon which the learned Judge might find that the document was forged and he has so found and we therefore direct that a conviction be recorded against the Appellant of an offence contrary to section 467, for which a lesser penalty is prescribed. This is clearly a case in which the Court should exercise the discretion vested in it by section 11 of Ordinance No. 47 of 1933.

The objection taken to the conviction of the Appellant on Count 6 is of a very different character, for here the Crown has failed to allege in the ” Particulars of Offence ” an ” intent to defraud ” which is the very essence of the crime charged and following the judgment of this Court in Rex v. James Ernest Bandoh delivered at Accra on 26th May, 1944, in which the English authorities more particularly Rex v. James and another 12 Cox 127 are discussed we quash the conviction on this count.

In the result in view of the fact that the Appellant now stands convicted of the lesser offence of forgery we substitute for the sentence passed at the trial a sentence of 18 months’ I.H.L.