Victor Olatunji Ogunade & Anor. V. The Attorney-general Of The Federation (1971) LLJR-SC

Victor Olatunji Ogunade & Anor. V. The Attorney-general Of The Federation (1971)

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Parties

1. VICTOR OLATUNJI OGUNADE
   2. TAOFIKI AYINLA IBRAHIM Appellant(s)

AND

THE ATTORNEY-GENERAL OF THE FEDERATION  Respondent(s)

UDO UDOMA, J.S.C. 

The two appellants, Victor Olatunji Ogunade and Taofiki Ayinla Ibrahim were tried and convicted in the High Court of Lagos by Kassim,J. Upon a complaint which reads as follows:-

”The complaint of Antigha Ekpe Nyong, Senior State Counsel in the Department of Director of Public Prosecution of the Federal Ministry of Justice who upon oath states:

“That the defendants on or about the 11th day of November 1969 at No.9 Turton Street, Yaba in the Lagos State jointly had in their possession five thousand one pound Federal Republic of Nigeria former currency notes (which immediately before the conversion date were in circulation in Nigeria as legitimate currency of Nigeria) after the time fixed under Decree No.51 of 1967 for their conversion in Lagos State, and thereby committed an offence contrary to section 1B(I)(a) and punishable under section IB(1)(f) of the Central Bank (Currency Conversion) (Amendment) Decree 1968.”

They were each sentenced to a fine of 5,000pounds or two years imprisonment H.L. and three years I.H.L. sentence to run consecutively.

In his judgment, the learned trial Judge held that the case against both appellants has been proven and that the “learned counsel for the first defendant was, therefore, wrong when he said that A and B could not be in possession of the same thing at the same time.”

Both appellants have now appealed to this Court against their conviction. Both complain against the judgment: and the substance of their complaint is that the learned trial Judge erred in law in holding that the appellants jointly had in their possession currency notes, the subject matter of the charge, at the same time and place and that such joint possession at No.9 Turton Street, Yaba was not established on the evidence. There is no complaint against the facts as found by the learned trial Judge. The complaint is that the facts did not establish the offence charged; and as the decision of this court in this appeal must turn on the facts, it is necessary to examine the evidence which was before the court and which the court accepted.

The case for the prosecution, which was accepted by the learned trial Judge, was briefly that as a result of an information received, A.S.P. Abdulahi Jika (P.W.1) met Raymond Chidiak (P.W. 2), a transporter at, Mogambo Hotel at Maryland in Ikeja early in November, 1969. He introduced himself to him as Alhaji Usman 5 who was also in the transport business. On 7th November, 1969 both of them met again and AS.P. Abdulahi Jika (P.w.1) told him that he had just returned from lbadan in connection with his transport business and requested Raymond Chidiak (P.w. 2) to introduce him to sellers of old Nigerian Currency notes, as he was anxious to buy them. Thereupon Raymond Chidiak (P.W. 2) took him and introduced him to the first appellant at his house as Alhaji Usman – a transporter. The first appellant was in turn also introduced to AS.P. Abdulahi Jika (P.w. 1) as a Manager at the Central Bank, Lagos, Raymond Chidiak (P.w. 2) then told the first appellant that AS.P. Abdulahi Jika (P.w. 1) was interested in buying old Nigerian Currency notes. There and then the first appellant told A.S.P. Abdulahi Jika (P.W.1) that he had in his possession 250,000 old Nigerian pound notes for sale. The first appellant and A.S.P. Abdulahi Jika (P.W.1) then negotiated the price and the first appellant finally agreed to sell the notes to A.S.P. Abdulahi Jika (P.w. 1) at 3s per pound note. They both agreed to meet again at Chidiak’s house the following day, that is, on 8th November, 1969 at 4 p.m. A.S.P. Abdulahi Jika (P.w.1) and Raymond Chidiak (P.w. 2) thereafter drove away in the latter’s car; and at the Niger Palace Hotel where he had previously told Raymond Chidiak (P.W. 2) he was putting up, Abdulahi Jika (P.w. 1) alighted from the car and Raymond Chidiak (P.W. 2) drove away. A.S.P. Abdulahi Jika (P.w.1) having lost sight of Raymond Chidiak (P.W.2), also drove away in his own car.

At about 8.a.m. on 8th November, 1969, A.S.P. Abdulahi Jika (P.w. 1) called at Raymond Chidiak’s house but found him absent. He left him a note. He did not turn up at 4 p.m. as previously arranged. On 10th November, 1969, at about 9.a.m. A.S.P. Abdulahi Jika (P.w.1) called at Chidiak’s house, again the latter was absent. He decided to wait for him and did so. While waiting, there walked into the house the first appellant and another person. Conversation ensued during which the first appellant told Abdulahi Jika (P.w.1) that he had in his car which was then parked at the entrance to the house, 5,000 Nigerian pound notes. He offered to sell them to AS.P. Abdulahi Jika (P.w.1). The latter declined to accept the offer but insisted on having the whole of the 250,000 pound notes which the first appellant had previously said he had in his possession. They parted after agreeing to meet again later that day.

They met again but this time the first appellant was accompanied by the second appellant. Conversation ensued again during which the first and second appellants pressed upon A.S.P. Abdulahi Jika (P.w.1) to buy the 5,000 pound 40 notes first, promising that thereafter they would produce the balance for sale to him. The first appellant then said to A.S.P. Abdulahi Jika (P.w.1): “Look, Usman, you are a small boy, and so all of us here are in position to direct you in life, and, as such you have nothing to fear.” The second appellant also said to A.S.P. Abdulahi Jika (P.w. 1): “The three of us here are responsible people. Mr.Ogunade (meaning the first appellant) is a manager in the Central Bank and he is in charge of the currency conversion exercise in both the Rivers and South Eastern States. Myself, I am a business man and contractor for the army and I supply them with medical equipment. I have been dealing with Northerners and provided you pay for the 5,000 pound notes we are in position to sell to you old currency notes up to the value of ‘C2’a31 million. We have the money not only within Lagos Island, but also at Agege and Mushin.” A.S.P. Abdulahi Jika (P.w.1) agreed to buy the 5,000 pound notes. Thereupon they agreed to meet again on 11th November, 1969 at 10.30 a.m. to execute the deal.

On that day at about 11 a.m. A.S.P. Abdulahi Jika (P.W. 1) briefed Samuel Adeshina Adebayo (P.W. 3) Superintendent of Police attached to the C.I.D., Ikoyi and five other detectives who accompanied him to the Niger Palace Hotel where they left their vehicles and walked to No.9 Turton Street, Yaba where Raymond Chidiak (P.W. 2) lives. As he was about to enter the house, A.S.P. Abdulahi Jika (P.w. 1), who had then in his hand a briefcase containing ‘C2’a35,000 met the first appellant. He apologised to him for being late. He explained that he had to go to Apapa Wharf to see the loading of one of his vehicles. Both of them walked into the house. They met Raymond Chidiak (P.W. 2) and the second appellant already in the sitting room waiting. Thereupon the first appellant asked A.S.P. Abdulahi Jika (P.w.1) if he was ready to buy the ‘C2’a35,000 pound notes. A.S.P. Abdulahi Jika (P.W.1) said: “Yes”. The first appellant then handed over the key of his car to the second appellant and the second appellant went to the car and brought back to the house a carton containing 5,000 Nigerian pound notes. As the second appellant was about to empty the carton onto the carpet,the first appellant said that they should retire into one of the rooms to count the money. The first and second appellants, A.S.P. Abdulahi Jika (P.W.1) and Raymond Chidiak (P.w. 2) thereupon went together into a room adjacent to the sitting room and there started counting the money which was poured out unto the floor by the second appellant.

While counting the money, they heard a knock at the door; for, be it noted, A.S.P. Abdulahi Jika (P.w. 1) had deliberately left the door to the sitting room ajar and had previously told the policeman who were standing by to come into the room fifteen minutes after he had entered the house. On hearing the knock, the first appellant peeped through the window and exclaimed: ”The police have come!” The four of them immediately rushed out of the room leaving the money there, 2,000 pound notes which had already been counted by them were in the carton while the balance of 3,000 pound notes were still on the floor.

The policemen, two of whom had revolvers, surrounded the two appellants, A.S.P. Abdulahi Jika (P.W.1) and Raymond Chidiak (P.w. 2) who were then back in the sitting room. A.S.P. Abdulahi Jika (P.w.1) then cried out: “You have ruined me! This is your trick!” The first appellant immediately said to Samuel Adeshina Adebayo (P.W.3) “Please, sir, I would like to make a Statement” Samuel Adeshina Adebayo (P.W. 3) cautioned him: and the first appellant thereupon said: “I have my reputation to safeguard. I am a Manager at the Central Bank and would like you to destroy this money as I am the one who brought it to sell to Alhaji Usman.” The two appellants, A.S.P. Abdulahi Jika (P.w.1) and Raymond Chidiak (P.w.2) were taken back into the room where the counting of the money had taken place; and, after checking, the police took the 5,000 pound notes together with A.S.P. Abdulahi Jika’s brief case, the appellants and Raymond Chidiak (P.w. 2) to the Central Criminal Investigation Department and there the appellants made the statements, exhibits ‘C’ and ‘O’. The two appellants had travelled in the first appellant’s car that day to Raymond Chidiak’s house.

At the trial, counsel for the first appellant and counsel for the second appellant decided not to call evidence. They addressed the court on the evidence led by the prosecution, so that the evidence is just one way; and the evidence was accepted by the learned trial Judge.

. The question is: was the trial Judge right on the evidence to have convicted the appellants Was there sufficient evidence establishing the offence with which the appellants were charged Counsel for the appellants say the learned trial Judge was not right on the ground, as argued before us by Chief F.R.A. Williams, counsel for the first appellant, that in law it is impossible for two persons to be in possession of the same chattel at the same time and place; and that the charge as framed is bad in law in that it alleges joint possession in the two appellants at the same time and place. The authority for this proposition was said to be Regina v. Scaramanga (1963) 2 O.B. 807 and Regina v. Parker (1969) 2 W.L.R.

In Regina v. Scaramanga the attention of this Court was specifically drawn to a passage of the judgment in that case in which Lord Parker, C.J. said at page 5 814:

“Again in Regina v. Dovey and Gray (1851) 4 Cox 430 the jury returned a verdict of guilty against both defendants on a joint count of receiving but stated that they found Dovey received a” the property first and that later Gray received part of the property. It was held, on appeal, by Jervis, C.J. that according to the principle in Messingham’s case (I Mood C.C. 257), the allegations having been satisfied by evidence of a separate receipt by Dovey, the evidence affecting the woman ought not to have been left to the Jury. Accordingly Gray’s conviction was quashed. Indeed, it was probably because of this last mentioned case that the legislature thought it necessary to pass section 14 of the Criminal Procedure Act 1851, which is now reproduced in section 44(5) of the Larceny Act 1916.

This provides as follows:-

‘If on the trial of any two or more persons indicted for jointly receiving any property it is proved that one or more of such persons separately received any part of such property, the jury may convict upon such indictment such of the said persons as are proved to have received any part of such property.’ In our judgment, except where provided by statute, when two persons are jointly charged with one offence judgment cannot stand against both of them on a finding that an offence has been committed by each independently.”

It is difficult to see how the above quoted passage of the judgment or indeed the decision in the case is of assistance to the two appellants in this appeal since there was no finding by the learned trial Judge of separate possession by either of the appellants.

Section 1(B)(1)(a) of the Central Bank (Currency Conversion) (Amendment) Decree, 1968, expressly provides that “it shall be an offence for any person to have in his possession in Nigeria …. any note issue which, immediately before the conversion date, was in circulation in Nigeria as legitimate currency of Nigeria …..after the time …..fixed under this Decree for its conversion in the area …..has elapsed.”

It would appear that the judgment in Regina v. Scaramanga (supra) supports the case of the prosecution rather than the submission of counsel for the appellants, because the learned trial Judge in his judgment held that in accordance with the provisions of section 1(B)(1)(a) of the Central Bank (Currency Conversion) (Amendment) Decree 1968 and on the fact that the appellants jointly had in their possession the 5,000 pound old Nigerian currency notes, the subject matter of the charge, at No.9 Turton Street, Yaba at the material time.

In Regina v. Parker (supra) in which Regina v. Scaramanga (supra) was cited with approval and applied, it was made clear that in order to convict the two persons charged must be proved to have been engaged in a joint enterprise. In this connection counsel had referred us to a passage in the judgment of the court in which Donaldson, J. said at page 1065:

“In our judgment the application of the principle which formed the basis of the decision in Scaramanga’s case (1963) 2 Q.B. 807 does not depend upon whether one accused pleaded guilty and there was in consequence no ‘finding’ in relation to that accused in the sense of a verdict by a jury. The principle is wider. It is clear law that if a person is accused of stealing two articles, he can be convicted if it be proved that he stole one only. It is also clear if two persons are accused of stealing jointly, one or other or both may be convicted of that joint stealing. Alternatively, either, but not both could be convicted of stealing independently. In each of these cases the essential feature is that one offence is charged and one offence is proved. Regina v. Scaramanga (1963) 1 0.B.807 and the other decisions therein cited all proceed upon the basis that in the absence of statutory provisions, such as section 44(5) of the Larceny Act, 1916, if only one offence is charged it is not open to the court or jury to find two offences proved.”.

In the case on appeal under consideration only one offence was charged and only one offence, if at all, proved on the evidence. So much was conceded by Chief Williams. The two appellants were undoubtedly engaged in a joint enterprise. They acted in guilty concert. They travelled to Raymond Chidiak’s house in the same car; and without being told in what part of the car the 5,000 pound notes were secreted the second appellant was able to fetch them from the car at No.9 Turton Street, Yaba. In the circumstances, the only reasonable and inescapable inference to be drawn from the evidence is that the second appellant had fore knowledge of the 5,000 pound notes in the car and knew also that the notes were intended to be sold to AS.P. Abdulahi Jika (P.w.1). That must be so having regard to the conversation which took place between the two appellants and A.S.P. Abdulahi Jika on the very first occasion of their meeting. At that first meeting, evidence is that the second appellant had said to AS.P. Abdulahi Jika (P.W.1) that the three of them namely, the first appellant, Raymond Chidiak (P.W.2) and himself were responsible people: that the first appellant is a Manager in the Central Bank and in charge of the current conversion in both the Rivers and South-Eastern States. He had introduced himself as a business man and a contractor for the army. He said that he had been dealing with Northerners; that provided A.S.P. Abdulahi Jika (P.w.1) paid for the 5,000 notes first they were in a position to sell him old currency notes up to the value of 31 million pounds, and that they had the money not only within Lagos Island but also at Agege and Mushin. Surely that was not information which the second appellant could have given to AS.P. Abdulahi Jika (P.W.1) unless he was in the traffic in old currency notes with the first appellant. There is incontrovertible evidence that at the time when the money was being counted in the room, the first and second appellants, AS.P. Abdulahi Jika (P.w.1) and Raymond Chidiak (P.w.2) were all jointly in posession of the 5,000 pound notes; and ipso facto the first and second appellants were also jointly in possession of the said pound notes at No.9 Turton Street, Yaba. That was the offence charged and that was the offence proved.

On the issue of possession, the learned trial Judge said:

“When the two defendants arrived at 9 Turton Street, Yaba, in the car and with exhibit ‘A’ and its contents, they were in joint possession of them. When they were counting the notes with prosecution witness one and prosecution witness two all of them were in joint possession of them. When the second defendant brought up the carton containing the notes at the request of the first, both of them were in joint possession of the notes; for possession may be actual or constructive.”

John Edward Lester, Trevor Humphrey Byast (1955) 39 Cr. App. R. 157 cited and relied upon by CHief SA Somefun, counsel for the second appellant, in support of the submission that joint possession on the part of second appellant with the first appellant was not established is distinguishable from the facts of the present case. In that case, it was found that Lester was only a passenger in a car which was owned and driven by Trevor Humphrey Byast and that most of the housebreaking implements, the subject matter of the indictment, were found in the boot of the car while some were found on the person of Byast. It was held that Lester could not be guilty of being in possession of the implements. That was so because there was no evidence that Lester knew of the existence of the implements in the boot of the car, nor was any of the implements found with him.

On the other hand in R v. George Thompson (1869) 11 COX 362 it was laid down as a matter of law that where several persons are found out together by night 10 for the common purpose of house-breaking, and one only is in possession of house-breaking implements, all may be found guilty of the misdemeanour of being found by night in possession of house-breaking implements without lawful excuse (24 & 25 Vict. C.96 section 58), for the possession of one in such case is the possession of all.

In R v. Orgi Uko and Yesufu Ashogbon (1939) 5 WACA 63 both appellants were jointly convicted of conspiracy to bring false accusation contrary to section 125 of the Criminal Code and of unlawful posession of counterfeit coins contrary to section 150A of the Criminal Code. On appeal the conviction was affirmed and the appeal dismissed. It was held that there could “be no doubt as to the guilt of the first appellant on the facts as found”; because he was clearly in actual possession of the coins before he ‘planted’ them and he had no lawful authority or excuse for such possession.” The Court then went on:

“The case of the second appellant is not so straightforward. There is no evidence to suggest that he was in actual possession of the coin at any time. The question then arises: can he be properly held to have been in constructive possession through the first appellant The point seems to be on all fours with that which arose in the case of R. v. Rogers (2 Mood 85 – referred in Archbold 30th Edition, p.1122). There it was held that when pieces of counterfeit coins are found on one of two persons acting in guilty concert, and both knowing of the possession, both are guilty of possession. On the analogy of this case, we hold that the second appellant also was properly held to have been in possession of the counterfeit coins without lawful authority or excuse.”

For the above reasons, we are left in no doubt that the appellants were rightly convicted and that they jointly had in their possession at No.9 Turton Street, Yaba, 5,000 pound Old Nigerian currency notes. This appeal is accordingly dismissed as lacking in substance.

Appeal dismissed.

SC.19/02/1971