IN THE SUPREME COURT OF NIGERIA
ON Friday, the 15th day of February 1963
ALBERT OMOWALE DOMINGO ............................................. APPELLANT
THE QUEEN ............................................................... RESPONDENT
Appeal by convicted person.
A. The first count accused the appellant of stealing over a certain period unspecified goods worth a certain amount. It was not a single theft: the case was that the stock of goods was found to be short to that amount in value. Sections 152(1) and 154(1) of the Criminal Procedure Act require that the particulars of the charge shall describe the property referred to with reasonable clearness, to give the accused sufficient notice of the offence charged. Section 152(2) permits a charge to specify a gross sum when the offence is misappropriation of money, and does not apply to goods.
(a) The first count was bad for duplicity in that it related to stealing of goods on more occasions than one.
R. v. Aniemeke  All N.L.R. 43.
(b) It was also badly defective in that it did not specify the goods alleged to have been stolen.
On Held (b): A count should be sufficiently precise to enable a plea of autrefois to be founded on the conviction or acquittal under the count.
B. The appellant was assistant manager and later manager of the W.N. Printing Corporation, which traded in books and stationery. He bought these on credit and sold to others. To screen his misdoings, he used business names. In registering two of them, he did not insert his own names (Albert Omowale Domingo) but in one application form he wrote Akinola Olatunji Domingo and signed A.O. Domingo, and in the other he wrote Olatunji Akinola Domingo and signed A.O Domingo. He had a son of eight called Akinola Domingo, and a son of nine called Albert Olatunji Akinola Owolabi Omowale Domingo.
Count 8 (briefly put) alleged that he made a false document by filling in and signing in the application Form the name 'Olatunji Akinola Domingo' when no such person existed, with intent to induce the Registrar of Business Names to register the business name of "Independence Stationery Supply Agency." Those allegations showed that the Form was a false document within section 464(c) of the Criminal Code and that the making of it with the said intent was a forgery within section 464.
Count 9 was on similar lines
It was argued for the appellant that the Registrar of Business Names had no duty to inquire into the genuineness of the particulars in the application: his duty was merely to register the business name. It was also argued that merely assuming and signing a fictitious name, without any intention to defraud thereby although the transaction might be fraudulent in other respects, was not forgery.
(a) Having regard to the purpose of the registration of Business Names Ordinance, unless the Registrar believes the application form to be genuine, he has a duty to refuse to register the business name.
(b) The application form was a false document in that a material part purported to be made by a person who did not make it, or who did not in fact exist; and it was a forgery because the document was made with intent that the Registrar, in the belief that it was genuine, should file it and issue a certificate of registration.
C. The appellant opened an account at a bank in a business name; on the signature card he described the proprietor as 'Akinola Olatunji Domingo' and gave a mandate to one 'A. James' to operate the account; he signed those two names on the card: but both names were fictitious; and the Bank's evidence was that had they known it, they would not have opened the account.
The argument for the appellant was the second argument under B.
Although the Bank may not have been prejudiced, they did, in the belief that the signature card was genuine, open an account which the Bank would not otherwise have done, and that brought the case within the principle stated in Held (b) under B above.
The above covered counts 10 and 18 on the signature card and on the mandate involved).
D. See the brief statement under B of what count 8 alleged, it specified the intent with which the forgery was made. See section 465on the definition of forgery. A model of a count is given in Form 23 in the Third Schedule to the Criminal Procedure Act; it is as follows:-
"Statement of Offence-First Count
"Forgery, contrary to section 467(2) of the Criminal Code.
"Particulars of offence-
"A. B., on the-day of-, 19, in the province of-forged a certain will purporting to be the will of C.D)."
A count of forgery is sufficient if it alleges that the accused person forged a document and specifies what made the document false: the allegation of forgery implies one of the intents in section 465, and there is no need to set forth an intent in the count; but if the count alleges a particular intent, the prosecution is committed to proving the intent alleged.
Appeal allowed on the first count and dismissed on the others.
Other cases referred to:
R. v. Martin (1879) 5 Q.B.D. 34; 14 Cox 375; R. v. Whyte (1851) 5 Cox 290; R. v. Dunn (1765! 1 Leach C.C. 57; 168 E.R. 131.
APPEAL from the High Court of Western Nigeria.
Chief O. Moore, Q.C. (with him Otuyelu and J. O. Fiberessima) for the Appellant.
7. Omo Eboh, Assistant Director of Public Prosecutions (West) for the Respondent.
Brett, F.J. (delivering the judgment of the court):-The appellant was tried in the High Court of Western Nigeria on an Information containing eighteen counts. The first was for stealing, contrary to section 331(5) of the Criminal Code of Western Nigeria. The thirteenth, fourteenth, fifteenth, sixteenth and seventeenth were for stealing contrary to section 390 of the Criminal Code of Nigeria. The eighth, ninth, 10th and 18th were for forgery contrary to section 467 of the Criminal Code of Nigeria. The 11th and 12th were for making a false statement contrary to section 9 of the Registration of Business Names Act, now repealed. The second to seventh inclusive were for being interested, as a public officer, in a contract or agreement and abuse of office; as the appellant was acquitted on these six counts it is unnecessary to give further particulars of them. The first count reads as follows:-
"STATEMENT OF OFFENCE-1ST COUNT
Stealing contrary to section 331(5) of the Criminal Code, Cap. 28, Volume 1 of the Laws of the Western Region of Nigeria, 1959.
PARTICULARS OF OFFENCE
Albert Omowale Domingo (m) between the month of August, 1959, and the month of February, 1961, at Ibadan in the Ibadan Judicial Division, being a servant employed by the Western Nigeria Printing Corporation, Ibadan, stole goods valued at £19,765-11s-10d. (Nineteen thousand seven hundred and sixty-five pounds eleven shillings and ten pence) property of his employer, the Western Nigeria Printing Corporation, Ibadan."
It was not pretended that the goods alleged to have been stolen were all stolen on a single occasion between the dates mentioned, indeed the only evidence called to prove the alleged stealing was that of an auditor, who said that the stock was short to the value mentioned in the charge. This being so, the count was bad for duplicity, since section 152(2) of the Criminal Procedure Act, which permits a charge to specify a gross sum in respect of which offences involving fraud are alleged, only applies to misappropriation of a sum of money and not to misappropriation of other kinds of property: R. v. Aniemeke & another (1961) I All N.L.R. 43. The count suffered, however, from another defect which in this case was, if anything, more serious, namely that it failed to specify what the goods alleged to have been stolen were. Section 152 (1) of the Criminal Procedure Act requires that the charge shall contain such particulars of, among other things, the thing, if any, in respect of which the offence was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged, and section 154 (1) provides that the description of property shall be in ordinary language and such as to indicate with reasonable clearness the property referred to. It is fundamental that a charge of stealing should specify the property alleged to have been stolen with sufficient precision to comply with these two sections. A possible test of whether a charge is sufficiently precise is, whether a good plea of autrefois convict or acquit could be founded on a conviction or acquittal on it, and while it may not be the only test we consider that it is one which every charge ought to satisfy. The count now under consideration certainly does not satisfy that test; it makes no attempt to specify the property concerned, in fact the evidence leaves it open to doubt whether the prosecution had ever ascertained what the property consisted of Mr Eboh, Senior Crown Counsel, abandoned any attempt to support the conviction on a charge so framed, and we are satisfied that it must be set aside.
Many of the grounds urged in support of the appeal against the convictions on counts eight to 18 inclusive were matters of law, hut a brief outline of the facts is necessary in order to explain the points of law involved. The appellant was employed as Assistant Manager and later as Manager by the Western Nigeria Printing Corporation, which trades in exercise books and stationery. While so employed he decided that he might profitably trade in these articles on his own account, and he proceeded, under a variety of business names, to buy goods from the Corporation on credit and sell them to such persons as he could induce to deal with him instead of dealing with the Corporation direct. He realised, however, that the Corporation might not approve of these activities, and he took various steps to conceal his connection with the firms under whose names he was trading. Counts eight, nine, 10, 11, 12 and 18 arise out of the steps which he took to this end. Counts 13 and 14 relate to frauds on his trading associates in diverting to his own use money given to him to pay the Corporation for goods purchased from it. Counts 15, 16, and 17 relate to occasions when he used the Corporation's vehicles for the delivery of goods which he had sold on his own behalf, and gave the drivers cash from the funds of the Corporation for incidental expenses on the journey.
Two of the names under which, in association with other persons, the appellant traded were the Independence Stationery Supply Agency and the Osude (Moonlight) Stationery Supply Agency, and the appellant personally arranged for the registration of these names under the Registration of Business Names Act. For this purpose it was necessary to complete Form A in the First Schedule to the Registration of Business Names Regulations, which is required to be signed by all the partners in the firm and to state the present Christian name and surname, any former Christian name or surname, and the usual residence and other business occupation of each of the partners. In completing these forms the appellant did not insert his own names, which are Albert Omowale Domingo, but instead he inserted in one case the names Olatunji Akinola Domingo; in the space for the signatures of the partners he wrote "A.O. Domingo" or "O.A. Domingo" which could stand equally for Albert Omowale Domingo and for Akinola Olatunji Domingo. The appellant has one son aged about nine called Akinola Domingo and one aged about eight called Albert Olatunji Akinola Owolabi Omowale Domingo, and in a statement made to the police he said that his children were partners in the firms. He went on-"I gave the names of my children as Olatunji for my first son and Akinola, the second; all Domingos .... I signed O.A Domingo at column 1 on behalf of my children." The two boys were called as witnesses for the prosecution. Akinola said that he had authorised his father to sign his name on the form, but the judge thought this unworthy of belief, and it is not suggested that he was wrong. Albert confirmed that his name was used by the appellant for business purposes and in the completion of the forms.
Chief Moor, who appears for the appellant, does not dispute that on this evidence the judge was right in finding the charges under section 9 of the Registration of Business Name Act proved, but he submits that what the appellant did not constitute forgery. The particulars of Offence in counts eight and nine are identical for all purposes relevant to this submission and it will be enough to set out the particulars contained in count eight, which are:-
"PARTICULARS OF OFFENCE
Albert Omowale Domingo (m) in the month of August, 1959, at Ibadan in the Ibadan Judicial Division made a false document by filling in the name "Olatunji Akinola Domingo" and signed the name "Olatunji Akinola Domingo" on an application-Form A used for the purpose of obtaining a Certificate of Registration of Business Names, purporting the document to be filled and signed by an existing person known as and called by the name of "Olatunji Akinola Domingo" when such person known as and called "Olatunji Akinola Domingo" does not, in fact, exist, he knowing the document to be false, and with intent that the Registrar of Business Names may, in the belief that the said document was genuine, be induced to accept the said application-Form A for the purpose of registering the name "Independence Stationery Supply Agency" as a business name."
Before coming to a consideration of Chief Moore's submissions, and of the authorities on which he relies, it will be convenient to set out the relevant portions of the Criminal Code. Section 464 provides that:-
"A document or writing is said to be false-
(b) if the whole or some material part of the document or writing purports to be made by or on behalf of some person who did not make it or authorise it to be made, or if, in a case where the time or place of making is material, although the document or writing is made by or by the authority of the person by whom it purports to be made, it is with a fraudulent intent falsely dated as to the time or place of making; or
(c) If the whole or some material part to the document or writing purports to be made by or on behalf of some person who does not, in fact, exist;
Section 465 defines the forgery of a document or writing as follows:-
"A person who makes a false document or writing knowing it to be false, and with intent that it may in any way be used or acted upon as genuine, whether in Nigeria or elsewhere, to the prejudice of any person, or with intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act, whether in Nigeria or elsewhere, is said to forge the document or writing."
It is pertinent to point out that whereas in England the intent necessary to constitute forgery under sections 2 to 5 of the Forgery Act, 1913, is either an intent to defraud or deceive, and the intent alleged must be stated in the indictment (though not an intent to defraud or deceive any particular person) the effect of section 465 of the Code is that an allegation in a charge that a person forged a document carries with it by necessary implication the allegation that one, if not both of the two, intents set out in the section was present, and that a charge merely alleging that the accused person forged a document and specifying what made the document false is sufficient in law without a detailed account of the intent alleged such as is contained in counts eight, nine, 10 and 18 of the information in this case: see precedent No. 23 in the Third Schedule to the Criminal Procedure Act. This does not, of course, relieve the prosecution of the burden of proving that one of the intents set out in section 465 of the Code was present, but as a matter of pleading it is unnecessary and perhaps unwise to specify the intent in such detail as was given here. In the present case the Crown is committed to proving the intent specified in the information: it is not open to the court to consider whether the evidence disclosed an intent such as would constitute forgery on other grounds, and if the appellant can show that the intent specified in the information was not proved he is entitled to be acquitted. The arguments for the appellant have, therefore, quite rightly been directed to that particular intent.
The essence of Chief Moore's submission is that the Registrar of Business Names has purely ministerial functions; that he has neither the right nor the duty to inquire into the accuracy of the statements contained in an application for registration; and that his sole duty under section 10 of the Registration of Business Names Act is to file the statement furnished to him under the Ordinance and issue a certificate of registration. If this is so, Chief Moore submits that the Registrar is not called on to form any belief as to the genuineness of the application from and that it cannot be said that he has "in the belief that the document was genuine been induced to do or abstain from doing any act."
We agree that registration of a business name is normally carried out as a matter of course, and that the Registrar accepts no responsibilities for the correctness of the particulars in the statement which he files. The certificate issued by the Registrar merely certifies that the name contained in it has been registered and contains no further particulars except the serial number of the registration. It has not been suggested that in filling a form containing untrue statements and issuing a certificate of registration the Registrar would be committing a criminal offence, even if he knew that the statements were untrue.
However, that is not enough to conclude the matter in the appellant's favour, and it becomes relevant to consider the purpose of the Registration of Business Names Act. The law does not prohibit anyone from carrying on business either alone or in partnership with others under a name assumed for that purpose, but in order to enable persons doing business with the individual or partnership to discover who the person or persons behind the name are the law requires these particulars to be registered, and the true names of the individual or the partners have to be shown in all trade catalogues, trade circulars and business letters sent out under the registered name. In this Act, as in much other legislation affecting business transactions, the legislature has no doubt proceeded on the assumption that most people will act with that degree of honesty without which business in the modern world, with its elaborate arrangements for giving and receiving credit, would be impossible. The Registrar of Business Names is therefore not bound to inquire into the correctness of the particulars submitted to him. It may even be true to say that he is not called on to form a belief as to the correctness of every detail. But as regards the genuineness of the whole application form, including the question whether it shows the true names of the persons doing business under the registered name and is signed by the, we consider that the correct statement of the position is that the Registrar is entitled to assume it if he has no reason for any doubts about it, but that unless he does believe the form to be genuine it is his duty to refuse to register the name. If, for example, he were to see his own name stated as that of a member of a firm with which he had no concern it would be absurd to say that he was obliged to register the name of the firm. We must therefore reject Chief Moore's submission on this point.
In addition to this submission, or as an alternative to it, Chief Moore has referred to the statement in Archbold, 34th edition, section 2148-"But merely assuming and signing a fictitious name, without any intention to defraud by the use of such fictitious name, although the transaction may be fraudulent in other respects, was not forgery: R. v. Martin (1879) 5 Q.B.D. 34; and of R. v. Whyte 5 Cox 290 The case of R. v. Martin and that of R. v. Dunn (1765) 1 Leach c.c. 57, 168 E.R. 131, which was followed in R. v. Martin, were concerned with forgery with intent to defraud, and the distinction drawn by the court was between a document which was itself the means by which credit was obtained and one issued in discharge of credit already allowed on other grounds to the person issuing it. In R. v. Dunn the majority of the judges "agreed that in all forgeries the instrument supposed to be forged must be a false instrument in itself; and that if a person give a note entirely as his own, his subscribing it by a fictitious name will not make it a forgery, the credit there being wholly given to himself, without any regard to the name, or without any relation to a third person. But they thought that an instrument which is altered as the act and instrument of another, and in that light obtains a superior credit, when in truth it is not the act of the person represented, is strictly and properly a false instrument." In the present case the Forms were unquestionably false documents as defined in section 464 of the Criminal Code, since a material part of them purported to be made by a person who did not make them, or who did not in fact exist, and on the grounds which we have already stated we are of the opinion that they were made with intent that the Registrar of Business Names should in the belief that they were genuine, file them and issue a certificate of registration. The making of these documents clearly came within the definition of forgery in the Code, and the appeal against the conviction on counts eight and nine must be dismissed.
The other two counts for forgery are counts 10 and 18. In July, 1960, the appellant opened an account at Barclays' Bank, Ibadan, in the name of one of his concerns called the DAOT Stationery Supply Agency. Count 18 relates to a mandate authorising "Mr A. James" to operate the account and bearing what purports to be a specimen of his signature; count 10 relates to a specimen signature card which describes Akinola Olatunji Domingo as the sole proprietor of the agency and contains what purport to be specimens of the signatures of Akinola Olatunji Domingo and A. James. Both of these persons are fictitious and the signatures were made by the appellant. Count 18 alleges that the mandate was made "with intent that the said Barclays' Bank D.C.O., Ibadan Branch, may, in the belief that the said document was genuine, be induced to accept "A. James" as Manager of "DAOT Stationery Supply Agency" and to accept the signature of "A. James" as genuine in all bank transactions enumerated in the said document." The intent alleged in count 10 was that the Bank "may in the belief that the said document is genuine be induced to accept the firm known as and called `DAOT Stationery Supply Agency" as its customer', and the appellant was alleged to have made a false document not only by inserting the signature in the name of "A. James" but by "writing in the said document that he (Albert Omowale Domingo) was the sole proprietor of the said firm known as DAOT Stationery Supply Agency." The second instance of falsity is incorrectly stated, since the name given as that of the sole proprietor was "Akinola Olatunji Domingo", not "Albert Omowale Domingo", and this instance must be ignored.
A witness from the Bank named Richmond stated in evidence as follows:-
"If the bank had known that the names A.O. Domingo and A. James on exhibit 56 belonged to the same person and were in fact signed by him, we would not have opened an account for him, because the bank would become suspicious. If the bank knew that DAOT Agency was a partnership of more than one person, we would have required to have a copy of the partnership agreement, as much factual information about each of the partners, they would have had to complete a specimen signature form like exhibit 56 and would have had to complete our Mandate Form, D.C.O. No. 26, like exhibit 50. If the bank had known that exhibits 56 and 57 were untrue, as on the face of them, we would not have opened an account for DAOT Stationery Agency."
In cross-examination he said:-
"The Bank is particularly interested in who opened the account, and not in who is mandated to sign the cheques."
Chief Moore submits that the Bank knew the appellant as the person opening the account, and that the case comes within the principle laid down in R. v. Martin, cited above. The judge accepted the evidence of Richmond as to what the Bank would have done if it had known the truth about the two documents and on Richmond's evidence it is clear that the two documents were among the means by which the Bank was induced to open the account and to accept the signature in the name "A. James" as genuine. It may be that the Bank has not been prejudice-there is no evidence on the point-but it has, in the belief that the documents were genuine, done something which it would not have done otherwise and the second of the two alternative intents set out in section 465 of the Criminal Code has been proved as alleged. The appeal fails in relation to counts 10 and 18 also.
The only ground of appeal argued on counts 15, 16 and 17 was that it was not shown that the price paid by the appellant to the Corporation for the goods which he resold did not include the cost of delivering them to Onitsha. There is no substance in this submission and we uphold the conviction on these counts.
Counts 13 and 14 are the counts relating to stealing from the appellant's business associates. There was evidence that the appellant had admitted taking the sum of £100 as an advance on his share of the profits of DAOT Stationery Supply Agency out of a sum sent to him for payment to the Corporation, and "borrowing" the sum of £459 handed to him for payment into the account of the Independence Stationery Supply Agency, and the appellant did not choose to go into the witness box and explain these transactions. No ground has been shown for interfering with the judge's finding that the appellant stole these sums.
In the result the conviction on count one is set aside, and judgment of acquittal is entered. The appeal is dismissed as regards the convictions on counts eight to 18 inclusive.