HELD:

(1)     The Director of Public Prosecution was competent by virtue of s. 8(3) of the Lagos State (Interim Provisions) Decree to file the information; consequently, the information was not illegal and the trial of the appellant was valid.

(2)     The necessary intents to defraud and to deceive were sufficiently proved: the act of drawing a cheque implies, at least, that the drawer has an account with the bank, that the he has authority to draw on it for that amount, and that the cheque as drawn is a valid order for payment of that amount; it follows, therefore, that any person who forges a cheque in whole by forging the signature on the cheque and stamping or writing an account number on it must be taken to have made those three representations, all falsely; and a person can be convicted for forging the name of a fictitious person.

(3)     The false pretences laid were proved from the fact that the amounts stated in the forged cheques were paid from the account bearing the number written below the signature of the drawer of the cheque.

Onwuka v. The State (1970) 1 ALL N.L.R. 159

Attorney General (Western Nigeria) v. African Press Ltd. & Anor (1965) 1 ALL N.L.R. 6

R. v. Aiyeola 12 W.A.C.A. 324

Plymouth Corporation v. Hurell (1968) 1 Q.B. 455

Graddage v. Harringay LBC (1975) 1 W.L.R. 241 at 249

Prince Blucher, ex-parte Debtor (1931) 2 Ch 70 at 72-75

London County Council v. Agricultural Food Products Ltd. (1955) 2 Q.B. 218

Okeke v. Commissioner of Police 12 W.A.C.A. 363

R v. Patrick Osakwe 12 W.A.C.A. 366

R v. Domingo (1963) 1 ALL N.L.R. 81

Kabua Bukie Odu v. The State (1965) 1 ALL N.L.R. 25

Ligali & Laja v. The Queen 4 F.S.C. 7

R v. Page (1971) 55 Cr. App. R. 197; (1971) 2 ALL E.R. 870

R v. Crocker (1805) R & R 97; 2 Leach 987

Welham v. The Director of Public Prosecutions (1960) Cr. App. R. 125

The Queen v. Abua (1961) 1 ALL N.L.R. 635

R v. Barker 5 Cr. App. R.285

R v. Gail 30 Cr. App. R. 81

R v. Sullivan 30 Cr. App. R. 132

APPEAL dismissed.

Chief F.R.A Williams (A. Ogedengbe with him) for the appellant.

A.O. Ejiwunmi, Ag. D.P.P. Lagos State, for respondent.

Obaseki, Ag.J.S.C. (delivering the judgment of the Court):-This appeal is against the judgment of Dosumu, J., delivered on the 30th day of August 1974, in Charge No. LA/9c/74 in which he found the appellant guilty on 17 of the 19 counts in the information (i.e. counts 1, 3,5,6,7,8,9,10-11,12,13,14,15,16,17,18 and 19) in which he was charged with the offences of forgery, uttering and obtaining various sums of money by false pretences.

Aggrieved by this conviction the appellant brought this appeal to this Court.

Four grounds of appeal were originally given in the Notice of Appeal, but before the hearing of this appeal, 6 new grounds were by leave of the court substituted. These are as follows:-

(1)     The whole trial is illegal and the conviction is accordingly null and void because there was no information filed by or on behalf of the Attorney-General as required by law.

IN THE ALTERNATIVE

(2)     The learned trial Judge erred in law and on the facts in convicting the appellant in court.

PARTICULARS OF ERROR

(a) The charge is bad for duplicity.

(b) It was not established, as alleged in the charge that the appellant stole the cheques "between the months of April 1971 and August 1971."

(c) Having found that the presumption under Section 148(a) of the Evidence Act is inapplicable to the facts of this case, there remains no valid or rational grounds for the inference that the appellant stole the cheques in question.

(3)     The learned trial Judge misdirected himself in law and on the facts in convicting the appellant on count 3.

PARTICULARS OF MISDIRECTION

(a) The learned trial Judge asked himself the wrong question when he said:

"Can the accused forge the signature of a fictitious person as I have found G. Ola Coker to be?"

(b) The fact that G. Ola Coker is a fictitious person is relevant only to the issue whether or not a document is a false document. Having found that the document (Exhibit F5) was a false document, the only relevant question (as to which the learned trial Judge did not direct himself) was whether there was proof of any of the intents required by Section 465 of the Criminal Code.

(c) The learned trial Judge ought to have directed himself that the use of a false name only constituted a forgery if, in all the circumstances of the case (including the acquittal of the appellant on counts 2 and 4) identity was an immaterial factor and/or the appellant purported to be some specific other person real or fictitious.

(4)     The learned trial Judge erred in law and on the facts in convicting the appellant in counts 5,8,11, 14 and 17 of the information.

PARTICULARS OF ERROR

(d) It was not established beyond reasonable doubts that the pretence laid in each count was the effective cause of the National Bank of Nigeria Limited parting with the amount of money stated in such count.

(e) There was no proof whatsoever that the appellant made any pretence concerning the owner of Account No. 8010.

(5)     The learned trial Judge erred in law and on the facts in convicting the appellant on counts 6,7,9,10,12,13,15,16 and 18.

PARTICULARS OF ERROR

(a) The offence alleged in the Particulars of Offences on each count was that the appellant forged and uttered (as the case may be) a cheque "purporting to have been signed by the owner of Account No. 8010 with the National Bank of Nigeria Limited, Yakubu Gowon Street Branch, Lagos."

(b) None of the cheques alleged to have been forged purported to have been made by "the owner of account No. 8010 aforesaid. The decision of the learned trial Judge is unreasonable and cannot be supported having regard to the evidence.

(6)     The decision of the learned trial Judge is unreasonable and cannot be supported having regard to the evidence.

As the validity of the information and the conviction on all the 17 counts have been seriously challenged, we are setting out the information in full hereunder before proceeding with this judgment. It reads:-

IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS JUDICIAL DIVISION

Charge No. LA/9c/74

The State

v.

Christopher Awogbolade Awobotu (m)

The                day of                1974

At the sessions holden at Lagos, on the             day of                       1974,

The Court is informed by the Director of Public Prosecutions on behalf of the State that: Christopher Awogbolade Awobotu (m) is charged with the following offences:-

STATEMENT OF OFFENCE-1ST COUNT

Stealing, contrary to section 390 of the Criminal Code.

PARTICULARS OF OFFENCE

Christopher Awogbolade Awobotu (m), between the months of April, 1971, and August, 1971, at Lagos Judicial Division stole the following National Bank cheques:-

(a) No. LB-KO68939;

(b) No. LB-KO68950;

(c) No. LB-KO60883;

(d) No. LB-KO60884;

(e) No. LB-EO98074; and

(f) No. LB-P155903:

total value 12k property of National Bank Nigeria Limited.

STATEMENT OF OFFENCE-2ND COUNT

Inducing delivery of money by false pretence contrary to section 419 of the Criminal Code.

PARTICULARS OF OFFENCE

Christopher Awogbolade Awobotu (m), on or about the 25th day of August, 1971, at Lagos, in the Lagos Judicial Division with intent to defraud, induced National Bank of Nigeria Limited, to deliver to the Nigerian Office Equipment Industries Limited, a sum of £78,000 now N156,000.00 to wit: by crediting the account of the said Company with the said sum of N156,000.00 by false pretences, to wit: by falsely pretending that the owner of account No. 90080 with the said National Bank of Nigeria, Yakubu Gowon Street Branch, Lagos authorised that the accounts of Nigeria Office Equipment Industries Limited be credited with the said sum of N156,000.00.

STATEMENT OF OFFENCE-3RD COUNT

Forgery, contrary to section 467 (2)(g) of the Criminal Code.

PARTICULARS OF OFFENCE

Christopher Awogbolade Awobotu (m), on or about the 25th day of August, 1971, at Lagos, in the Lagos Judicial Division, forged a Bill of Exchange to wit: National Bank of Nigeria cheque No. LB-KO68939 dated 25th August, 1971 for the sum of £78,000 now N156,000.00 purporting same to have been signed by one G. Ola Coker.

STATEMENT OF OFFENCE-4TH COUNT

Uttering a false document, contrary to section 468 of the Criminal Code.

PARTICULARS OF OFFENCE

Christopher Awogbolade Awobotu (m), on or about the 25th day of August, 1971, at Lagos, in the Lagos Judicial Division knowingly and fraudulently uttered a false document to wit:

National Bank of Nigeria cheque No. LB-KO68939 dated 25th August, 1971, for the sum of N156,000.00 purporting same to have been signed by one G. Ola Coker.

STATEMENT OF OFFENCE-5TH COUNT

Obtaining money by false pretences contrary to section 419 of the Criminal Code.

PARTICULARS OF OFFENCE

Christopher Awogbolade Awobotu (m), on or about the 6th day of April, 1972, at Lagos, in the Lagos Judicial Division, with intent to defraud, obtained from National Bank of Nigeria Limited, a sum of £3,050 now N6,100.00 by false pretences, to wit: by falsely pretending that the owner of account No. 8010 with the said National Bank of Nigeria, Yakubu Gowon Street, Lagos, had authorised that the said sum of N6,100.00 be paid from the said account number 8010. (Italics are ours).

STATEMENT OF OFFENCE-6TH COUNT

Forgery, contrary to section 467(2)(g) of the Criminal Code.

PARTICULARS OF OFFENCE

Christopher Awogbolade Awobotu (m), on or about the 6th day of April, 1972, at Lagos, in the Lagos Judicial Division forged a Bill of Exchange to wit: National Bank of Nigeria cheque No. LB-KO68950 dated 6th April, 1972, for the sum of £3,050 now N6,100.00 purporting same to have been signed by the owner of account No. 8010 with the said National Bank of Nigeria Limited, Yakubu Gowon Street Branch, Lagos. (Italics are ours).

STATEMENT OF OFFENCE-7TH COUNT

Uttering a false document contrary to section 468 of the Criminal Code.

PARTICULARS OF OFFENCE

Christopher Awogbolade Awobotu (m), on or about the 6th day of April, 1971, at Lagos, in the Lagos Judicial Division knowingly and fraudulently uttered a false document to wit: National Bank of Nigeria cheque No. LB-KO68950 dated 6th April, 1972, for the sum of £3,050 now N6,100.00 purporting same to have been signed by the owner of account No. 8010 with the said National Bank of Nigeria Limited, Yakubu Gowon Street Branch, Lagos. (Italics our ours).

STATEMENT OF OFFENCE-8TH COUNT

Obtaining money by false pretences contrary to section 419 of the Criminal Code.

PARTICULARS OF OFFENCE

Christopher Awogbolade Awobotu (m), on or about the 9th day of June, 1972, at Lagos, in the Lagos Judicial Division, with intent to defraud, obtained from National Bank of Nigeria Limited, Yakubu Gowon Street Branch, Lagos, a sum of £500 now N1,000.00 by false pretences, to wit: by falsely pretending that the owner of account No. 8010 with the said National Bank of Nigeria, Yakubu Gowon Street Branch, Lagos, had authorised that the said sum of £500 now N1,000.00 be paid from the said account No. 8010.

(Italics are ours).

STATEMENT OF OFFENCE-9TH COUNT

Forgery, contrary to section 467(2)(g) of the Criminal Code.

PARTICULARS OF OFFENCE

Christopher Awogbolade Awobotu (m), on or about the 9th day of June, 1972, at Lagos, in the Lagos Judicial Division forged a Bill of Exchange to wit: National Bank of Nigeria cheque No. LB-KO60883 dated 9th June, 1972, for the sum of £500 now N1,000.00 purporting same to have been signed by the owner of account No. 8010 with the said National Bank of Nigeria Limited, Yakubu Gowon Street Branch, Lagos.

(Italics are ours).

STATEMENT OF OFFENCE-10TH COUNT

Uttering a false document contrary to section 468 of the Criminal Code.

PARTICULARS OF OFFENCE

Christopher Awogbolade Awobotu (m), on or about the 9th day of June, 1972, at Lagos, in the Lagos Judicial Division knowingly and fraudulently uttered a false document to wit: National Bank of Nigeria cheque No. LB-KO60883 dated 9th June, 1972, for the sum of £500 now N1,000.00 purporting same to have been signed by the owner of account No. 8010 with the said National Bank of Nigeria Limited, Yakubu Gowon Street Branch, Lagos.

(Italics our ours).

STATEMENT OF OFFENCE-11TH COUNT

Obtaining money by false pretences contrary to section 419 of the Criminal Code.

PARTICULARS OF OFFENCE

Christopher Awogbolade Awobotu (m), on or about the 13th day of June, 1972, at Lagos, in the Lagos Judicial Division, with intent to defraud, obtained from National Bank of Nigeria Limited, a sum of £762 now N1,524.00 by false pretences, to wit: by falsely pretending that the owner of account No. 8010 with the said National Bank of Nigeria, Yakubu Gowon Street Branch, Lagos, HAD authorised that the said sum of £762 now N1,524.00 be paid from the said account No. 8010.

(Italics are ours).

STATEMENT OF OFFENCE-12TH COUNT

Forgery, contrary to section 467(2)(g) of the Criminal Code.

PARTICULARS OF OFFENCE

Christopher Awogbolade Awobotu (m), on or about the 15th day of June, 1972, at Lagos, in the Lagos Judicial Division forged a Bill of Exchange to wit: National Bank of Nigeria cheque No. LB-KO60884 dated 15th June, 1972, for the sum of £762 now N1,524.00 purporting same to have been signed by the owner of account No. 8010 with the said National Bank of Nigeria Limited, Yakubu Gowon Street Branch, Lagos.

(Italics are ours).

STATEMENT OF OFFENCE-13TH COUNT

Uttering a false document contrary to section 468 of the Criminal Code.

PARTICULARS OF OFFENCE

Christopher Awogbolade Awobotu (m), on or about the 15th day of June, 1972, at Lagos, in the Lagos Judicial Division knowingly and fraudulently uttered a false document to wit: National Bank of Nigeria cheque No. LB-KO60884 dated 15th June, 1972, for the sum of £762 now N1,524.00 purporting same to have been signed by the owner of account No. 8010 with the said National Bank of Nigeria Limited, Yakubu Gowon Street Branch, Lagos.

(Italics our ours).

STATEMENT OF OFFENCE-14TH COUNT

Obtaining money by false pretences contrary to section 419 of the Criminal Code.

PARTICULARS OF OFFENCE

Christopher Awogbolade Awobotu (m), on or about the 18th day of August, 1972, at Lagos, in the Lagos Judicial Division, with intent to defraud, obtained from National Bank of Nigeria Limited, a sum of £4,000 now N8,000.00 by false pretences, to wit: by falsely pretending that the owner of account No. 8010 with the said National Bank of Nigeria Limited, Marina Branch, Lagos, had authorised that the said sum of £4,000 now N8,000.00 be paid from the said account No. 8010.

(Italics are ours).

STATEMENT OF OFFENCE-15TH COUNT

Forgery, contrary to section 467(2)(g) of the Criminal Code.

PARTICULARS OF OFFENCE

Christopher Awogbolade Awobotu (m), on or about the 18th day of August, 1972, at Lagos, in the Lagos Judicial Division forged a Bill of Exchange to wit: National Bank of Nigeria cheque No. LB-KO98074 dated 18th August, 1972, for the sum of £4,000 now N8,000.00 purporting same to have been signed by the owner of account No. 8010 with the said National Bank of Nigeria Limited, Marina Branch, Lagos.

(Italics are ours).

STATEMENT OF OFFENCE-16TH COUNT

Uttering a false document contrary to section 468 of the Criminal Code.

PARTICULARS OF OFFENCE

Christopher Awogbolade Awobotu (m), on or about the 18th day of August, 1972, at Lagos, in the Lagos Judicial Division knowingly and fraudulently uttered a false document to wit: National Bank of Nigeria cheque No. LB-KO98074 dated 18th August, 1972, for the sum of £4,000 now N8,000.00 purporting same to have been signed by the owner of account No. 8010 with the said National Bank of Nigeria Limited, Marina Branch, Lagos.

(Italics are ours).

STATEMENT OF OFFENCE-17TH COUNT

Obtaining money by false pretences contrary to section 419 of the Criminal Code.

PARTICULARS OF OFFENCE

Christopher Awogbolade Awobotu (m), on or about the 14th day of December, 1972, at Lagos, in the Lagos Judicial Division, with intent to defraud, obtained from National Bank of Nigeria Limited, a sum of £750 now N1,500.00 by false pretences, to wit: by falsely pretending that the owner of account No. 8010 with the said National Bank of Nigeria Limited, Marina Branch, Lagos, had authorised that the said sum of £750 now N1,500.00 be paid from the said account No. 8010.

(Italics are ours).

STATEMENT OF OFFENCE-18TH COUNT

Forgery, contrary to section 467(2)(g) of the Criminal Code.

PARTICULARS OF OFFENCE

Christopher Awogbolade Awobotu (m), on or about the 14th day of December, 1972, at Lagos, in the Lagos Judicial Division forged a Bill of Exchange to wit: National Bank of Nigeria cheque No. LB-P155903 dated 14th December, 1972, for the sum of £750 now N1,500.00 purporting same to have been signed by the owner of account No. 8010 with the said National Bank of Nigeria Limited, Marina Branch, Lagos.

(Italics are ours).

STATEMENT OF OFFENCE-19TH COUNT

Uttering a false document contrary to section 468 of the Criminal Code.

PARTICULARS OF OFFENCE

Christopher Awogbolade Awobotu (m), on or about the 14th day of December, 1972, at Lagos, in the Lagos Judicial Division knowingly and fraudulently uttered a false document to wit: National Bank of Nigeria cheque No. LB-P155903 dated 14th December, 1972, for the sum of £750 now N1,500.00 purporting same to have been signed by the owner of account No. 8010 with the said National Bank of Nigeria Limited, Marina Branch, Lagos.

(A.ADETOSOYE), Senior State Counsel,

for Director Public Prosecutions.

The arguments in support of each ground were presented with exceptional brilliance, eloquence and lucidity that one was tempted to forget that the facts were very much against the appellant. We shall now proceed to examine the grounds in the order in which they appear above. But before doing so, it will be helpful if we give a brief resume of the offences charged and the facts of the case.

The appellant was on the 3rd day of June, 1974 arraigned before Dosumu, J., on information containing 19 counts wherein the appellant was charged:

(a)     in count 1, with the offence of stealing, contrary to section 390 of the Criminal Code;

(b)     in counts 3,6,9,12,15 and 18, with the offence of forgery of various National Bank cheques contrary to section 467(2)(g) of the Criminal Code;

(c)     in counts, 4,7,10,13,16 and 19, with the offence of uttering various false documents to wit National Bank cheques, contrary to section 469 of the Criminal Code; and

(d)     in counts 2,5,8,11,14 and 17, with the offence of obtaining various sums of money by false pretences contrary to section 419 of the Criminal Code.

It is of particular interest to observe that in count 2, the statement of offence did not use the wording obtaining money by false pretences. Instead, it gave statement describing the offence as inducing delivery of money by false pretences contrary to section 419 of the Criminal Code. However, the appellant was found not guilty on this count and was acquitted. He was also acquitted on count 4 which charged him with the offence of uttering the cheque by which delivery of the amount of money in count 2 was alleged to have been induced.

The opportunity for these offences arose when the appellant was the Principal Accountant of the National Bank of Nigeria Limited, Marina Branch, Lagos.

He joined the service of the National Bank of Nigeria Limited in September 1970 and in April 1971, he was posted to the Marina Branch as the Branch Accountant.

Four months later i.e. on the 25th day of August 1971, according to the case of the Prosecution he forged National Bank of Nigeria cheque No. LB-KO68939 dated 25th August 1971 for £78,000.

He uttered the cheque and got the amount transferred to the account of his firm purporting the same to be signed by G. Ola Coker.

On 6th April 1972, he forged National Bank of Nigeria cheque No. LB-KO68950 dated 6th April 1972 for £3,050 purporting the same to be signed by the owner of account No. 8010 with the National Bank of Nigeria Limited. He uttered the cheque and collected the amount from the Bank.

On 9th June, 1972 he forged National Bank of Nigeria cheque No. LB-K060883 dated 9th June 1972 for £500 purporting the same to have been signed by owner of account No. 8010 with the National Bank of Nigeria Limited. He uttered the cheque and collected the amount from the Bank.

On the 15th day of June, 1972, he forged National Bank of Nigeria cheque No. LB-KO60884 dated 15th June 1972 for £762 purporting the same to have been signed by the owner of account No. 8010 with the said National Bank of Nigeria Limited. He uttered the cheque and collected the amount from the Bank

On the 18th day of August 1972, he forged National Bank of Nigeria cheque No. LB-E098074 dated 18th August 1972, for the sum of £4,000 purporting the same to have been signed by the owner of account No. 8010 with the said National Bank of Nigeria Limited. He uttered the cheque and collected the amount from the Bank.

Finally, on the 14th day of December 1972, he forged National Bank of Nigeria Limited cheque No.LB-P155903 dated 14th December 1972, for the sum of £750 purporting the same to have been signed by the owner of Account No. 8010 with the said National Bank of Nigeria Limited. He uttered the cheque and collected the amount stated therein from the Bank.

The learned trial Judge on a consideration of the evidence therefore found that the appellant organised a system of fraud and operated it from April 1971 to December 1972, by issuing false cheques for various amounts to deceive and defraud the National Bank of Nigeria Limited.

G. Ola Coker, registered as owner of Account No. 90080 with the Bank, according to the learned trial Judge, was a fictitious person apparently registered by the appellant in the Index Register of Customers, Exhibit D, to facilitate the execution of the fraud. Account No. 8010 was opened by Daudu Salawu, P.W.4, a building contractor, residing at Abidjan, at the material time. He drew no cheque on the account till December 1973, but made about 11 payments amounting to about £25,000. He gave evidence and denied the signature in cheques exhibits F, F1, F2, F3 and F4 drawn on his account and made payable by cash to self or order.

Mrs Ebunlola Olufunmilayo Sule, P.W.21, opened her Account No.04166 with the Marina Branch, in March 1972, and she was supplied with a cheque book, exhibit OO and a teller, exhibit OO1. A month later, she wrote to the Bank to transfer her account to Ilupeju Branch, and it was transferred. By this time, she had already exhausted the cheque book. She denied being supplied with cheque book containing cheques 098065 to 098085 on 5th April 1972, as shown in exhibit MM1. As at 5th April 1972, she still had four unused cheque leaves in her book.

From the evidence of Mr Lateef Agoro (Cashier No. 1) (P.W.18) Daudu Salawu (P.W.4), Mrs E.O. Sule (P.W.21) and Patrick Nwamanwa, Assistant Superintendent of Police, Handwriting Analyst and Photographer (P.W.22), the learned trial Judge found that the appellant wrote the 5 cheques, F, F1, F2, F3 and F4 and passed them to P.W.18 for payment and was paid. He also found that appellant wrote out exhibit F5 and F6 as well. Thus the findings on exhibits F, F1, F2, F3 and F4 disposed of 15 counts in the information.

With regard to exhibit F5, the learned trial Judge found only the offence of forgery proved as required by law. The offences of uttering the cheque, exhibit F5 and inducing delivery by falsely pretending that the owner of Account No.90080 with the said National Bank of Nigeria Limited, Yakubu Gowon Street Branch, Lagos, authorised that the account of Nigerian Office Equipment Industries Limited be credited with the said sum of N156,000.00 were held unproved.

When the activities of the appellant surfaced and was brought to the knowledge of Samson Olatunde Banjo, P.W.1, who was the Director of Banking Operations and Acting General Manager of the National Bank of Nigeria Limited, at the time, he contacted the accused and informed him of the information at his disposal. The accused admitted the fraud on the Bank and promised to make restoration.

The cheque leaves with which the fraud was perpetuated were never issued to customers, but came into the possession of the accused by virtue of his position or office. Subsequently, the matter came before the Police, and prosecution was instituted against the accused for the offences charged in the information. The accused was arraigned before Dosumu, J., on the 3rd day of June 1974, when he pleaded to the counts in the information. His plea of Not Guilty joined issue with the prosecution on all the counts.

The prosecution called 27 witnesses and closed its case. The defence decided not to lead any evidence and called no witness but rested its case on the evidence adduced by the prosecution. The learned trial Judge, after hearing counsel's addresses, reviewed the evidence, and gave a considered judgment wherein he convicted the accused on all but 2 of the accounts.

Having stated the facts of the case, we shall now deal with the arguments advanced in support of the grounds of appeal.

Chief F.R.A. Williams, learned Counsel for the appellant, arguing in support of ground 1, submitted that the provision of section 337 of the Criminal Procedure Law Cap 32 Vol.II Laws of the Lagos State of Nigeria which prescribed the form any information to be filed in the High Court shall take has not been followed. The said section 337 of the Criminal Procedure Law reads:-

"Every information shall bear the date of the day when the same is signed and with such modifications as shall be necessary to adapt it to the circumstances of such case may commence in the following form:

The State v C.D.

In the High court of Lagos State

The Division

The of

At the Sessions holden at

On the day of

the Court

Judicial

day 19

19

by the Attorney General on behalf of the State that C.D. is charged with the following offence or offences."

He further submitted that it was mandatory that the form be used in view of the fact that it is only in the Attorney General that power to initiate criminal proceedings in any Court of Law has been vested by the Constitution of the Lagos State (Interim Provisions) Decree 1968 No. 13 of 1968. He also observed that the information was not even signed by the Director of Public Prosecutions and submitted that it is improper for a State Counsel to sign for the Director of Public prosecutions. The learned Counsel then treated us to the historical development of the term "Law Officer" in Nigerian legislation from the colonial era to the present day and finally conceded that the definition of the term Law Officer includes State Counsel. He however submitted that the Senior State Counsel was incompetent to sign the information filed in this matter as the information was laid and filed by the Director of Public Prosecutions.

We wish to observe that the Senior State Counsel in this case signed "on behalf of the Director of Public Prosecutions." This does not make any difference according to Counsel for the appellant.

We find ourselves unable to agree with the submission of the learned Counsel for the appellant as section 341 of the Criminal Procedure Law makes it abundantly clear as to the class of officers who may sign the Information.

It reads:-

(1)     "All information shall, subject to the provisions of subsection (2) and section 342 be signed by a law officer.

(2)     Where the State Commissioner shall for reasons of public convenience think fit, an information may be signed by any other public officer or person whom the State Commissioner may designate."

(Italics are ours).

The term Law Officer in section 2 of the Criminal Procedure Law is defined as bearing the meaning assigned thereto in the Criminal Code.

In section 1 of the Criminal Code Cap 31, it is defined as follows:-

"Law Officer in respect of the Lagos State means the Attorney General and the Solicitor General of the State and includes the Director of Public Prosecutions and such other qualified officer by whatever names designated to whom any of the powers of a Law Officer are delegated by law or necessary intendment."

Dealing with the question whether a Senior State Counsel comes within the term "Law Officer", the learned Counsel for the appellant at a stage conceded that he comes within the definition, but later withdrew the concession. He however, conceded that the Director of Public Prosecutions is a Law Officer. It is apparent from the definition given above that the Director of Public Prosecutions comes within the definition. We are of the view that the definition of Law Officer in the Criminal Code is wide enough to include Senior State Counsel and State Counsel of all grades. The office of the Director of Public Prosecutions is an office in the Ministry of Justice of Lagos State by virtue of section 8(1) of the Lagos State (Interim Provisions) Decree 1968. The office of a State Counsel is similarly an office in the Ministry of Justice of the Lagos State, although of an inferior status to that of the Director of Public Prosecutions. The incumbent of both offices must be legally qualified and are charged with legal duties under the Attorney-General.

By virtue of section 8(3) of the Lagos State (Interim Provisions) Decree 1968 which reads:-

"The powers of the Attorney-General of Lagos State or that of the Legal Secretary thereof, as the case may be, under subsection (2) of this section may be exercised by him in person and through the Director of Public Prosecutions of the state acting under and in accordance with the general or specific instructions of the Attorney-General or of the Legal Secretary, as the case may be, and through the officers of the Ministry of Justice of that state, acting under and in accordance with such instruction."

(Italics are ours).

The Director of Public Prosecutions and the Senior State Counsel become officers to whom powers of the Attorney-General (who come within the definition of a Law Officer) are delegated by law or necessary intendment and by virtue of section 8(6) which provides that:-

"Except at the instance of the Attorney-General of Lagos State or the Legal Secretary thereof, as the case may require, the question whether he was given any instruction in pursuance of this section or what the instructions were shall not be enquired into by any Court of Law."

It is to be presumed by the Court in the absence of any objection by the Attorney-General that both the Director of Public Prosecutions and the State Counsel were acting in accordance with the instruction of the Attorney-General in filing this information.

The learned Counsel for the appellant cited for the assistance of the Court, three authorities which are:

(1)     Onwuka v. The State "(1970) 1 ALL N.L.R. 159;

(2)     Attorney General Western Region v. African Press Limited and another (1965) 1 ALL N.L.R. 9; and

(3)     Rex v. Aiyeola 12 W.A.C.A. 324.

They were cited in support of the proposition of law that where there is no competence to file information, the trial on that information is a nullity. We are in agreement with the learned Counsel that, that statement represents the true state of the law. But in the most recent case-Onwuka's case-this Court set out clearly the law in respect of the Lagos State, and there is in this case more in support of the respondent than the appellant in his argument on the competence of the Director of Public Prosecutions to file information.

In the case of Onwuka v. The State (1970) 1 ALL N.L.R. 159 which came before the full Court, the Supreme Court examined in detail the provisions of various subsections of section 8 of the Lagos State (Interim Provisions) Decree (No. 13 of 1968) and the competence of the Director of Public Prosecutions to institute criminal proceedings. Coker J.S.C., (delivering the judgment of the Court) said at page 166:-

"There is only one qualification to the competence of the Attorney-General of Lagos State. He is empowered to institute such criminal proceedings in any Court of Law in the State. "The Criminal Code operates in Lagos State now as a State Law, hence the Attorney-General of Lagos State is competent to institute such proceedings in respect of offences against the Criminal Code as such and by virtue of section 8(3) of Decree No. 13 of 1968, the Director of Public Prosecutions of the State is competent in the circumstances to institute such criminal proceedings including the present one."

(Italics are ours).

In the earlier case of- Attorney-General Western Nigeria v. The African Press Limited and Ayo Ojewunmi (1965) 1 ALL N.L.R. 9, Ademola C.J.N., (delivering the judgment of the Court) after giving the historical origin of section 47 of the 1963 Constitution of Western Nigeria which is almost in pari materia to section 8(3) of the Lagos State (Interim Provision) Decree 1968 (No.13 of 1968) said at page 11, letters D and E:-

"Since section 47 of the Constitution authorises the Attorney-General to exercise his constitutional powers in person or through the Director of Public Prosecutions or other officers, a prosecution instituted by the Director of Public Prosecutions ranks in law as if it had been instituted by the Attorney-General personally and no further evidence of consent is necessary."

(Italics are ours).

And in letters G to H, he continued as follows:-

"Generally, there is no need for a Judge to know what instructions the Attorney-General has given to the Director of Public Prosecutions in regard to the conduct of a case and the Courts do normally take it for granted that if the director of Public Prosecutions begins a prosecution under section 47 of the Criminal Code, he has done so in accordance with the instructions given him by the Attorney-General, for subsection (9) of section 47 of the constitution of Western Nigeria provides that:-

"(9)    Except at the instance of the Attorney-General of the Region, the question whether he has given instructions in pursuance of this section or what the instructions were, shall not be enquired into by any Court of Law."

In the case of Rex v. Johnson Jaiyesinmi Aiyeola 12 W.A.C.A. 324 cited before us, the West African Court of Appeal considered at length definition and meaning of "Institution of Prosecution."

From the above 3 authorities, we find nothing to persuade us to the view that the information filed by the Director of Public Prosecutions in this case is invalid and or that the trial of the appellant on it was a nullity.

On the question of signature, it is settled law that where a statute or piece of legislation prescribes that a particular document shall only be signed by a particular officer, it is mandatory that only that officer and no other shall sign the document. We have had the opportunity of reading the authorities namely:-

(1)     Plymouth Corporation v. Hurell (1968) 1 Q.B. 455;

(2)     Graddage v. Harringay LBC (1975) 1 WLR 241 at 249;

(3)     Prince Blucher Exporte Debtor (1931) 2 Ch. 70 at 72-75; and

(4)     London County Council v. Agricultural Food Products Limited and Same v. Vitamins Limited (1955) 2 Q.B. 218-

cited before us, and find that they confirm the law.

The question of competence whether a Senior State Counsel has authority to sign an information on behalf of the Director of Public Prosecutions therefore becomes irrelevant as the signature of a Law Officer on the information is sufficient compliance with the law. This first ground of appeal fails.

With regard to ground 2 which in (a) complains of duplicity in Count 1 in the charge, it is conceded by the learned Acting Director of Public Prosecutions of Lagos State that the charge is bad for duplicity. We are in agreement with the submission of Chief F.R.A. Williams, the learned Counsel for the appellant, that the charge is bad for duplicity. This is apparent on the face of the cheques alleged stolen which have varying dates.

As these cheques were not physically found in the possession of the appellant at the dates of recovery but were presumed to have been in the possession of the appellant on the dates appearing on them, the presumption that they were stolen on the same day cannot arise.

Cheque No. LB-KO68939 bore the date 25/8/71

Cheque No. LB-KO68950 bore the date 6/4/72

Cheque No. LB-KO60883 bore the date 9/6/72

Cheque No. LB-60884 bore the date 15/6/72

Cheque No. LB-EO98074 bore the date 18/8/72

Cheque No. LB-P155903 bore the date 14/12/72

It is only in the evidence of Mrs Sule that we find that cheque No., LB-EO98074, i.e. exhibit F1 was removed long before the date it bore. We are however, not in agreement with the Acting Director of Public Prosecutions that an acquittal on the counts should follow the successful submission on duplicity.

If this objection had been raised at the court of trial, we are in no doubt that the information would have been amended. Further, we are unable to find that the conviction on this count has occasioned any miscarriage of justice. We only need to refer to the provision of section 168 of the Criminal Procedure Law Cap. 32, Vol. 11. Laws of Lagos State which reads:-

"No judgment shall be stayed or reversed on the ground of any objection which if stated after the charge was read over to the appellant or during the progress of the trial might have been amended by the Court."

We also refer to two decided cases namely:-

(1)     Okeke v. Commissioner of Police 12 W.A.C.A. 363;

(2)     R v. Patrick Osakwe 12 W.A.C.A. 266,

where the West African Court of Appeal, while upholding the ground, dismissed the appeal on the ground that there was no miscarriage of justice as the objection was not raised in the court below.

With regard to grounds 3, 4, and 5 which deal with the offences of forgery, uttering and obtaining by false pretences, it will be helpful to keep in mind the presumptions that arise when a cheque is drawn. What are the presumptions?

In the case of R v. Page (1971) 55 Cr. App. R (1971) 2 ALL E.R. 870, Phillimore C.J., (delivering the judgment of the Court of Appeal in England) said at P.874:-

"What is the law in regard to a cheque? It is set out very conveniently and very clearly in Kenny on the Outlines of Criminal Law 19th Edition 1966 p. 359 para. 346 and I am indebted to Geoffrey Lane, J., for its assistance.

It is put like this:-

"Similarly, the familiar act of drawing a cheque (a document which on the face of it is only a command of a future act) has been held to imply at least three things:

(1)     That the drawer has an account with the Bank;

(2)     That he has authority to draw on it for that amount;

(3)     That the cheque as drawn is valid order for the payment of that amount (that is that the present state of affairs is such that in the advancing course of events, the cheque will on its future presentation be duly honoured)."

The learned Counsel for the appellant in arguing ground 3 submitted that the necessary intent to constitute forgery under section 467(2)(q) of the Criminal Code was not proved in relation to exhibit F5 the cheque for £78,000. He submitted that since the appellant was acquitted on counts 2 and 4 as there was no sufficient evidence to prove the offence of inducing the Bank to pay the amount of £78,000 by false pretences and the offence of uttering, he should have been acquitted on the count of forgery. We do not accept this submission.

The offence of forgery may be complete without any publication or uttering of the instrument, for the very making with a fraudulent intention and without lawful authority, of any instrument which, by statute is the subject of forgery is of itself a sufficient completion of the offence before publication.

Though the publication of the instrument is the medium by which the intent is usually made manifest, yet it may be proved plainly by other evidence.

It is a question for the jury under all the circumstances of the case whether the instrument or document had been made innocently or with intention to defraud. See R v. Crocker (1805) R & R97 2 Leach 987. There the note was in the prisoner's possession and he never attempted to utter it. Le Blanc J., held it was a question for the jury.

In this case on appeal before us, there is evidence that the appellant wrote the cheque, exhibit F5. He initialled it as genuine and good for payment and the cheque was found in his drawer. The cheque leaf was proved to be property of the Bank not sold to anyone. The appellant was the Accountant in charge at the Bank and the cheque was paid to his firm, the Nigerian Office Equipment Industries Limited.

The findings of the learned trial Judge that:-

"There was evidence however that payment was in fact made on this cheque because it was so stamped. The initials of the accused appear in red ink on the left hand side of the cheque signifying his authority to the cashier to pay

The drawee of the cheque in question is Nigeria Office Equipment Industries Limited, which has been shown to be a Company in which the appellant is the authorised signatory" completely settled the question.

From the presumptions arising from drawing a cheque, it follows that any person who forges a cheque in whole by forging the signature on the cheque and stamping or writing an account number on the cheque must be taken to have made the three representations implied in drawing a cheque as stated above, all falsely.

We agree with the submission of learned Counsel for the appellant that the use of a false name only constituted forgery if identity was an immaterial factor and, or that the appellant purported to be some specific other person real or fictitious. But, is that not the case here? The appellant is known to all the Bank officials who testified, not as G. Ola Coker, but as Christopher A. Awobotu. His residential address differs from that stated of G. Ola Coker. There is no evidence that in the books of the Bank, he held himself out to the Bank as the owner of the account of G. Ola Coker. There was no person known to the Bank as G. Ola Coker. He therefore played the part of a fictitious person.

A person can be convicted for forging the name of a fictitious person. That was the Court's decision in the case of R v. Domingo (1963) FSC286/1962 (unreported). G. Ola Coker having been found to be a fictitious person, the learned trial Judge was perfectly justified in holding that the cheque, exhibit, F5 bearing that name is forged. The appellant had never made himself known to be G. Ola Coker and no bank official knew him to go by the false name of G. Ola Coker, which is similar to the case of the appellant in Kabua Bukie Odu v. The State (1965) 1 ALL N.L.R. 25.

The intents to be proved under the section 467(2)(g) of the Criminal Code are the intent to defraud and intent to deceive.

In Welham v. Director of Public Prosecutions (1960) Cr. App. R. 125 approved in the Queen v. Abuah (1961) 1 ALL N.L.R. by the Supreme Court, Lord Tucker in his judgment at p. 155 said of intent to defraud as follows:-

"Put shortly 'with intent to defraud' means with intent to practice fraud on someone or other. It need not be anyone in particular. Someone in general will suffice. If anyone may be prejudiced in anyway by the fraud, that is enough. At this point, it becomes possible to point the contrast in the statute between an intent to deceive and an intent to defraud. 'To deceive' here conveys the element of deceit, which induces a state of mind without the element of fraud which induces, a cause of action or inaction."

The intents have been sufficiently proved by the evidence led before the learned trial Judge.

Ground 3 therefore fails.

With regard to ground 4, we find ample justification for the learned trial Judge's finding that the pretence laid in counts 5, 8, 11, 14 and 17, that the appellant by falsely pretending that the owner of the account No. 8010 with regard to the said National Bank of Nigeria, Yakubu Gowon Street Branch, Lagos had authorised that the said sum of money stated in the cheques be paid from the said account No. 8010, was the effective cause of the National Bank of Nigeria Limited parting with the amount of money stated in each count.

We have ourselves examined the cheques, exhibits F, F1, F2, F3, F4 and F5 and find the following appearing on the face and back of the cheques.

(a)     Exhibit F dated 14th December 1972 for £750 was made payable to self or order and signed. It had on it below the signature and to the left 8010 written in ink. There were the initials and the date 14th December 1972 in green ink by the appellant. It was signed at the back by the payee. On its face, it bore the cashier's stamp and the paid stamp of No. 1 Cashier of the Bank at 55, Marina Street, Lagos with the date 14th December 1972.

(b)     Exhibit F1 dated 18th August 1972 for £4,000 was for cash or order and signed. A/C8010 was written in ink (biro) at the bottom of the signature. It bore appellant's initials in green and the date 18th August, 1972. It was signed at the back by payee. It bore the Cashier's stamp and paid stamp of Cashier No. 1 of the Bank at 55, Marina Street, Lagos and the date 18th August, 1972 at the back for £720.

(c)     Exhibit F1 dated 15th June, 1971 for £720 was for cash or order and signed. A/C8010 was written in ink below and to the left of the signature. It bore the initials in green ink of the appellant and the date 15th June, 1972 to the left bottom corner of the cheque. At the back it was signed by the payee. It bore at the back the Cashier's stamp and the paid stamp of Cashier No. 1 of the Bank and the date 15th June, 1972.

(d)     Exhibit F3 for £500 dated 9th June, 1972 was pay cash or order. It was signed and below to the left of the signature was written A/C8010. It bore the initials of the appellant and the date 9th June, 1972 in green ink. At the back it was signed by the payee. It bore the Cashier's stamp and the paid stamp of Cashier's No. 1 of the Bank and the date 9th June 1972.

(e)     Exhibit F4 for £3,050 dated 6th April, 1972 was made payable to self or order. It was signed at the bottom by the drawer and below the signature and to the left was written A/C8010. To the left of this are the initials of the accused in green and date 6th April 1972. At the back the cheque bore the signature of the payee, the Cashier's stamp and paid stamp of Cashier No. 1 of the Bank and the date 6th April, 1972.

(f)     Exhibit F5 for £78,000 dated 25th August, 1971 was made payable to Nigerian Office Equipment Industries Limited, and signed. Below the signature is 90080 printed. To the left it bore Cashier's contra stamp of the Bank and date 26th August, 1971. At the bottom left corner it bore the initials of the appellant in red and date 26th August, 1971. There was no signature at the back.

We therefore hold that the false pretences laid were obvious from the fact that the amounts stated in the forged cheques Exhibits F, F1-F4, were paid from that Account No. 8010 written below the signature of the drawer on the cheques.

The appellant having been proved to have forged the cheques F, F1, F2, F3 and F4 which are commands or instructions to the Bank to pay the amounts stated in them by the drawer to himself from Account No. 8010 and to have collected them, cannot escape the inference of those pretences arising from drawing of and presentation of a cheque for payment and collection of the payment. The writing of a cheque for payment of cash or to self necessarily implies that the writer is the owner of the account from which the cheque is to be paid. If it turns out that the signature on the cheque is not the owner's, he has falsely represented himself to be the owner of the account stated therein.

We therefore see no reason to disagree with the findings of the learned trial Judge on this issue.

We agree with the submission of the learned Counsel that the pretence laid must be proved and must be proved to be the only resistible influence operating on the minds of the Bank and we adopt with approval the decisions of the Court of Appeal in R v. Barker 5 Cr. App. R. 285, R v. Gail 30 Cr. App. R. 81 and R v. Sullivan 30 Cr. App. R. 132, and we wish to refer on this point to the case of Ligali and Laja v. The Queen 4 F.S.C. 7, where this Court cited with approval the case of R v. Sullivan (supra). Therein Ademola C.J.F., (as he then was) delivering the judgment of the Court, went on at page 12 to say:

"In R v. Sullivan (3), it was held that such proof need not in every case be afforded by the direct evidence of a witness to that effect, if the facts are such that the alleged false pretence is the only reason which could be suggested as having been the operative inducement. As it was put by Humphreys J., delivering the judgment of the Court in Sullivan's case (3) at page 136-

It is, we think, undoubtedly good law that the question of inducement acting upon the mind of the person who may be described as a prosecutor is not a matter which can only be proved by the direct evidence of the witness. It can be, and very often is proved by the witness being asked questions which bring the answer: 'I believed that statement and that is why I parted with my money,' but it is not necessary that there should be that question and answer if the facts are such that it is patent that there was only one reason which anybody could suggest for the person alleged to have been defrauded parting with his money and that is the false pretence, if it was a false pretence.