BENJAMIN THOMAS OPOLO (APPELLANT)

v.

THE STATE (RESPONDENT)

(1977) All N.L.R. 312

Division: Supreme Court of Nigeria

Date of Judgment: November 4th, 1977

Case Number: SC.355/76

Before: (Fatayi-Williams, Bello, Obaseki; JJ.S.C.)

The appellant was charged in the High Court of Mid-Western State, now Bendel State with obtaining money by false pretences with intent to defraud punishable under section 359 of the criminal code cap 28 volume 1 Laws of the Western State of Nigeria, 1959, applicable in the Mid-Western State of Nigeria. He was convicted and sentenced in the Mid-Western State of Nigeria. He was convicted and sentenced to 18 months imprisonment or a fine of N400.00. It is against this conviction and sentence that the appellant has appealed to the Supreme Court.

The appellant was in the employment of the Eastern Nigeria Broadcasting Corporation up to 1966 when on account of the national crisis of that year he returned to the Mid-West. In order to obtain the benefit of the absorption policy of the state, the Appellant applied for employment by filling the application form which was admitted at the trial as Exhibit A wherein he stated he had been a radio/Television New Editor (Permanent) on a salary of £720 per annum in the employment of Eastern Nigeria Broadcasting Corporation Enugu. Relying upon the information supplied by the Appellant, the Government of the Region offered him a post equivalent to his former grade and employed him as Information Officer on a salary of £720 per annum with effect from 13th April, 1967. The appellant performed the duties of that office and received the salary attached thereto from 13th May to 31st October 1970 when he was interdicted in connection with this case.

Although seven witnesses testified for the prosecution at the trial, not a single witness had personal knowledge of the former employment of the appellant. The only evidence adduced by the prosecution purporting to contradict the appellant's assertion was Exhibit B and L. Exhibit B was a letter signed by one S.K. Agbugba for the Director-General of the Eastern State Broadcasting Corporation, purporting to show that the appellant had left the service of the corporation as a news-reporter on a salary of £340. The other document, Exhibit L was the dispositions of Samuel Kano Agbugba, an administrative officer in the Eastern State Broadcasting Service stating that he did not know the Appellant but that he had kept a record of one B.T. Opolo who was an employee of the Eastern Nigeria Broadcasting Corporation in Opolo's personal file. He then produced the file, which was admitted in evidence at the preliminary inquiry as Exhibit A, and thereafter he proceeded to depose from the records in the file to the employment of the Appellant with the corporation.

HELD:

(1)     The only evidence adduced by the prosecution purporting to contradict the Appellant's assertion and upon which the trial Judge found the assertion to be false was Exhibits B. and L Exhibit B was a letter dated 12th October 1970 signed by one S.K. Agbugba for the Director-General of the Eastern State Broadcasting Service addressed to the Permanent Secretary, Ministry of Information Officer, Information Department, Benin City, purported to show that the Appellant had left the employment of the Eastern Nigeria Broadcasting Corporation as News Reporter.

(2)     In criminal proceedings, all facts except as may be permitted by law must be proved by direct oral evidence of a witness who has personal knowledge of the facts in issue. A letter such as Exhibit B, written by a person who has not been called as witness is inadmissible and cannot be used for the purpose of treating its contents as evidence of the facts stated therein. The trial Judge therefore erred in law by admitting Exhibit B and by relying upon its contents in his judgment.

(3)     The other document relied on by the trial Judge was Exhibit L, which was the depositions of Samuel Kano Agbugba, an administrative officer in the East Central State Broadcasting service. The depositions were admitted at the trial under section 34 of the Evidence Act. Though the trial Judge acted property in admitting the depositions under the circumstances of the case, he was in error in attaching any weight to their contents.

(4)     It is apparent from the depositions in Exhibit L that the deponent did not know the appellant and had no personal knowledge of his former employment. His evidence was therefore hearsay. In this connection; the file was the primary evidence which, although it formed part of the depositions, for some inexplicable reason, the prosecution failed to produce at the trial.

The effect of the non-production of the personal file was to invoke the presumption under section 148(d) of the Evidence Act that the evidence contained in the file would have been unfavourable to the prosecution if it had been produced.

Appeal allowed

J.O. Sadoh Esq for the Appellant

M.E. Agidee Esq. Acting Legal Adviser for the Respondent

Statute referred to:-

(1)     Criminal code Cap. 28 Volume 1 Laws of the western state of Nigeria, 1959, applicable in the Mid-western state of Nigeria.

Bello, J.S.C.:-We allowed this appeal on 22nd September, 1977, set aside the conviction and sentence of the Appellant and ordered that he should be acquitted and discharged. We further ordered that the fine of N400.00 if paid, should be refunded to him. We now state our reasons for allowing the appeal.

The charge upon which the High Court of the Midwestern State, now Bendel State, sitting at Benin City convicted the Appellant and sentenced him to 18 months imprisonment or a fine of N400 reads as follows:-

"STATEMENT OF OFFENCE

Obtaining money by false pretences punishable under Section 359 of the Criminal Code, Cap. 28, Volume I, Laws of the Western State of Nigeria, 1959, applicable in the Midwestern State of Nigeria.

PARTICULARS OF OFFENCE

Benjamin Thomas Opolo (m) between the months of February 1967 and October 1970 at Benin City in the Benin Judicial Division, with intent to defraud, obtain the total sum of N3,276:49K(£1,638:4:11d) from the Midwestern State Government by falsely pretending that he was an Editor for Radio/Television News in the employment of the former Eastern Region Broadcasting Corporation on a salary of N1440(£720) per annum at the time he was sent out of the said Region following the crisis in the Federation and by means of such pretences, he was absorbed by the Public Service of the Midwestern State of Nigeria into the Ministry of Information as an Information Officer on a salary of N1440 (£720) per annum, when he knew he was in fact an ordinary News Reporter in the employment of the said former Eastern Region Broadcasting Corporation on a salary of N680.00(£340) per annum."

The case for the prosecution at the trial was that by false pretences and with intent to defraud the Appellant had obtained employment from the Midwestern State Government to a higher post than that to which he would have been employed and thereby had defrauded the Government of the salary attached to the higher post. The alleged false pretence were contained in his application for the employment.

In 1966 it was the policy of the Midwestern Region Government to absorb all indigenes of the State, who returned to the State on account of the national crisis of that year, into the services of the State by offering them appointments equivalent to their status and to the posts they had held in their previous places of work in the other Regions from which they had held returned. With this in view the returnees completed application forms wherein they gave information about their former places of work, qualifications, posts held, and the salaries they were earning. On the strength of that information the returnees were given employment in compliance with that policy.

The evidence shows that the Appellant was in the employment of the Eastern Nigeria Broadcasting Corporation up to 1966 when on account of the crisis he returned to the Mid-west. In order to obtain the benefit of the absorption policy of the State, the Appellant applied for employment by filling the application form, which was admitted at the trial as Exhibit A, wherein he stated that he had been a Radio/Television News Editor (Permanent) on a salary of £720 per annum in the employment of the Eastern Nigeria Broadcasting Corporation, Enugu. Relying upon the information supplied by the Appellant, the Government of the Region offered him a post equivalent to his former grade and employed him as an Information Officer on a salary of £720 per annum with effect from 13th April, 1967. The Appellant performed the duties of that office and received the salary attached thereto from 13th May 1967 to 31st October 1970 when he was interdicted in connection with this case.

It was not in dispute that the Appellant was in the employment of the Eastern Nigeria Broadcasting Corporation. The false pretences were, as the charge averred, that he presented himself as a Radio-Television News Editor on a salary of £720 per annum when he was in fact a News Reporter on a salary of £340 (old scale) and that if the true facts had been known at the time of his absorption he would have been employed as Assistant Information officer on a salary of £680 per annum (new scale). The case for the Appellant at the trial was that he was in fact what he presented himself to have been, i.e. a Radio/Television News Editor on salary of £720 per annum.

The trial Judge did not believe the Appellant. He accepted the case for the prosecution and found that the Appellant had falsely pretended to be a Radio/Television News Editor on a salary of £720 and that false pretence induced the Government of the Midwestern State to employ him as an Information Officer. He further found that the Appellant had defrauded the Government of the salary attached to that office.

The only ground argued at the hearing of the appeal against his conviction was that the learned trial Judge erred in law in convicting the Appellant when the ingredients of the offence had not been proved. The learned Counsel for the Appellant contended that the conviction cannot stand as there is no reliable evidence rebutting the assertion of the Appellant that he was a Radio/Television News Editor, and that on the contrary, the deposition of Samuel Agbugba, Exhibit L, upon which the prosecution relied as furnishing evidence in rebuttal, went to confirm that assertion. The learned Acting Legal Adviser, who appeared for the Respondent quite rightly in our view, supported the submission of learned Counsel for the Appellant and indicated that he could not support the conviction.

It may be pointed out that although seven witnesses testified for the prosecution at the trial, not a single witness had personal knowledge of the former employment of the Appellant and for that reason none of the witnesses was competent to contradict the Appellant's assertion in that regard.

The only evidence adduced by the prosecution purporting to contradict the Appellant's assertion, and upon which the learned trial Judge found the assertion to be false, was Exhibits B and L. Exhibit B was a letter dated 12th October 1970 signed by one S.K. Agbugba for the Director-General of the East Central State Broadcasting Service addressed to the Permanent Secretary, Ministry of Information and Home Affairs, Enugu, and copied to the Chief Information Officer, Information Department, Benin City, purported to show that the Appellant had left the employment of the Eastern Nigeria Broadcasting Corporation as a News Reporter on a salary of £340 (old scale). We may pause to state here that in criminal proceedings, all facts, except as may be permitted by law, must be proved by direct oral evidence of a witness who has personal knowledge of the facts in issue. A letter, such as Exhibit B, written by a person who has not been called as a witness is inadmissible and cannot be used for the purpose of treating its contents as evidence of the facts stated therein. The learned trial Judge therefore erred in law by admitting Exhibit B and by relying upon its contents in his judgment.

The other document relied on by the trial Judge was Exhibit L which was the depositions of Samuel Kano Agbugba, an administrative officer in the East Central State Broadcasting Service. The depositions were admitted at the trial under section 34 of the Evidence Act. Though the learned judge acted properly in admitting the depositions under the circumstances of the case, we think that he was in error in attaching any weight to their contents. The deponent stated in the depositions that he did not know the Appellant but that he had kept a record of one B.T. Opolo, who was an employee of the Eastern Nigeria Broadcasting Corporation in his (Opolo's) personal file. He then produced the file, which was admitted in evidence at the preliminary inquiry as Exhibit A, and thereafter he proceeded to depose from the records in the file to the employment of the Appellant with the Corporation.

As it is apparent from the depositions, the deponent did not know the Appellant and had no personal knowledge of his former employment. His evidence was therefore hearsay. In this connection, the file was the primary evidence which, although it formed part of the depositions, for some inexplicable reason, the prosecution failed to produce at the trial. The effect of the non-production of the file was to invoke the presumption under section 148(d) of the Evidence Act that the evidence contained in the file would have been unfavourable to the prosecution if it had been produced. The learned trial Judge therefore erred in his assessment of the depositions by his failure to resolve the presumption in favour of the Appellant.