IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 27TH DAY OF FEBRUARY 1976
GEOFFREY OZIGBO .................................................. APPELLANT
COMMISSIONER OF POLICE ................................................... RESPONDENT
BEFORE: Alexander, C.J.N., Madarikan and Idigbe, JJ.S.C.
The appellant, who was charged on several counts with two other persons later acquitted, was convicted by the Senior Magistrate on a count of stealing a cheque leaf, a count of forgery of the cheque and a count of attempting to steal the amount specified in the forged cheque.
On further appeal to the Supreme Court from the High Court, his grounds of appeal complained only against the convictions of stealing and attempting to steal but his counsel, after concluding his submissions, which also covered the forgery conviction, sought leave to add a ground of appeal against that conviction.
The cheque was made payable to a fictitious partnership with a fictitious account opened by means of forged forms in a bank where the appellant worked as an accountant, and it was dishonoured by another bank on which it was drawn because the amount was in excess of the overdraft facilities allowed its customer, the owner of the cheque leaf, whose signature on it had in fact been forged.
There was no evidence that the appellant had any connection with that customer or that he had any opportunity to steal the cheque leaf; nor was there any satisfactory evidence of the date of its theft.
In regard to the forgery count, the magistrate preferred the expert evidence for the prosecution to that of the defence expert witness and further satisfied himself on the issue by making his own comparison between the writing on the forged cheque and the genuine handwriting of the appellant.
(1) On the evidence the presumption of recent possession, arising under s.148(a) of the Evidence Act, could not be invoked as regards the count of stealing, as it was not proved that the cheque leaf came into the possession of the appellant soon after the theft;
(2) Having regard to the acquittal of the appellant on the count of uttering and the absence of evidence of any other act immediately connected with stealing, there had been no act on the part of the appellant constituting an attempt to steal;
(3) Since the appellant had been represented by counsel throughout the proceedings on appeal, it was too late, after the conclusion of the submissions of counsel for the appellant, for the Supreme Court to allow an amendment of the grounds of appeal to include a fresh ground of complaint against conviction.
(a) It was not necessary for the trial magistrate to give reasons for being "more impressed" with the testimony of one expert witness than the testimony of another after having heard their evidence and observed their demeanour in the witness-box, especially after he had satisfied himself that his impression was correct by making his own comparison in the light of the expert evidence on both sides: it was not his function to go further and assume the role of an expert witness in the case; and
(b) The Supreme Court could compare and form its own opinion on the handwritings and conclude whether or not the trial magistrate's finding on the point should be disturbed.
R. v. Eagleton (1854-55) Dear. 515; 169 E.R. 826
R. v. Robinson II Cr. App. R. 124
Comer v. Bloomfield 55 Cr. App. R. 305
Powell and Wife v. Streatham Manor Nursing Home (1935) A.C. 243
R. v. Harvey 11 Cox C.C. 546.
R. v. Smith 3 Cr. App. R. 87
R. v. Rickard 13 Cr. App. R. 140
Convictions of stealing and attempting to steal set aside; conviction of forgery affirmed.
Kehinde Sofola for the appellant.
A.O. Ejiwunmi (Ag. D.P.P., Lagos State) for the respondent.
Alexander, C.J.N. (delivering the judgment of the Court)-The appellant was jointly charged with two other accused persons and convicted on three out of five counts by a Senior Magistrate's Court in the Lagos Magisterial District. These three counts read as follows:-
2nd Count-That you Adeniyi Ladipo, Geoffrey Ozigbo and Eric Nwanze between the 5th day and 6th day of March 1972 at Star Match Company Apapa, stole a Standard Bank of Nigeria Limited cheque leaf No. AK/1 581741, valued 2d. (Two pence) property of Star Match Company Apapa and thereby committed an offence punishable under section 390 of the Criminal Code.
3rd Count-That you Geoffery Ozigbo on 6th day of March, 1972 at African Continental Bank Apapa in the Lagos Magisterial District, forged a Standard Bank of Nigeria Limited Cheque Leaf No. AK/1 581741 for the sum of £2,786. 10/-(Two Thousand Seven Hundred and Eighty-six pounds, Ten shillings) purporting same to have been made by Farouk Paulus and Basil Abbou of Star Match Company Limited Apapa and thereby committed an offence punishable under Section 467 of the Criminal Code.
5th Count-That you Adeniyi Ladipo, Geoffery Ozigbo and Eric Nwanze between the 5th day and 10th day of March 1972 at Apapa in the Lagos Magisterial District attempted to commit felony to wit:-Stealing the sum of £2,786.10/- (Two thousand seven hundred and eighty-six pounds, ten shillings) property of Star Match Company and thereby committed an offence punishable under Section 509 of the Criminal Code.
The two other accused persons charged with the appellant were found not guilty and were accordingly acquitted and discharged, but the appellant was sentenced to six months imprisonment with hard labour on the 2nd count, 3 years imprisonment with hard labour on the 3rd count, and 18 months imprisonment with hard labour on the 5th count, the sentences to run concurrently.
The appellant was an accountant at the Apapa Branch of the African Continental Bank. His duties included opening letters of credit and authentication of entries made in the books of the Bank. One of his co-accused Adeniyi Ladipo was the accountant of a company called Star Match Limited, while the other co-accused, Eric Nwanze was the verifying clerk and officer in charge of the Current accounts Section of the Apapa Branch of the African Continental Bank, and a colleague of the appellant.
The cheque leaf, exhibit A, belonged to Star Match Limited, but was stolen from the company and forged, purporting to be drawn in favour of a fictitious firm named Emeka Edward and Co. for £2,786.10 0d, by Star Match Limited. On 1st May 1972, an account had been opened with £50.0.0d by a person or persons who could not be traced or identified subsequently, in the name of Emeka Edward & Co. at the Apapa Branch of the African Continental Bank. Star match Limited had an account at the Apapa Branch of Standard Bank of Nigeria Limited.
Five days later the forged cheque for £2,786.10.0d exhibit A was lodged at the Apapa Branch of the African Continental Bank with a view of crediting this amount to the fictitious account of Emeka Edward & Co. The cheque leaf exhibit A was afterwards found to be missing from the end of one of the cheque books of Star Match Limited. It had been extracted and drawn on the company's account at the Standard Bank of Nigeria Limited in favour of the fictitious firm named Emeka Edward & Co. for £2,786.10.0d. The cheque was purported to be signed by two of the company's authorised signatories, by name Farouk Paulus and Bassey Abbou, neither of whom had in fact signed it.
The amount for which the cheque was drawn was in excess of the overdraft facilities allowed the company by Standard Bank of Nigeria Limited, and consequently, the cheque was returned to African Continental Bank where, as previously mentioned, an account had only recently been opened in the name of the fictitious firm of Emeka Edward & Co. In order to open this account certain forms, Exhibits C to C3, were completed on behalf of the fictitious partnership. These forms purport to contain the names of the firm's two referees. Exhibit C is one of the forms of identification of the proposed customers purporting to be signed by "Alhadi Mamuda Imam," while exhibit C1 is the form of application for opening a new current account and Exhibit C2 is the form of application for opening a partnership account. Exhibit C3 is another form of identification of the proposed customers, purporting to be signed by "Cyprian Onwu", a second referee. Neither of these referees could be traced. The handwriting analyst called by the prosecution, Assistant Superintendent of Police, Patrick Nwananna, after comparing the handwriting on the forged cheque exhibit A and the forms exhibits C and C1 with the specimen handwritings of the appellant, exhibits H and H1, testified that he was of the opinion that the appellant forged the cheque and completed the forms.
The appellant denied the charge and called Johnson Ijioma, a former head of the Disputed Documents Section of the Lagos CID to testify on his behalf. Johnson Ijioma, after making his own comparisons, testified that the appellant neither forged the cheque nor completed the forms. The Senior Magistrate was not impressed with his evidence and preferred the evidence of Assistant Superintendent of Police, Patrick Nwananna.
The Senior Magistrate further had recourse to section 107(1) of the Evidence Act in order to satisfy himself on this issue. Section 107(1) of the Evidence Act provides as follows:-
"In order to ascertain whether a signature, writing, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose"
After making his own comparison of the handwritings he came to the conclusion and found as a fact that the appellant forged the cheque.
The appellant first appealed to the High Court of Lagos State. His appeal was dismissed. He then appealed to this Court, after obtaining leave from the court below. At the hearing of the appeal in this Court, learned Counsel for the appellant argued the following grounds of appeal:
"(1) The appellate court erred by upholding the conviction of the appellant on counts 2 and 5 of the charge whereas the evidence on which the prosecution relied did not lead irresistibly to his guilt.
(2) The appellate court erred by upholding the conviction of the appellant on a charge of "receiving stolen property" whereas there is no evidence to support such a charge nor was there finding by the court that the appellant received the relevant property knowing the same to have been stolen.
(3) That the conviction of the appellant on count 2 was erroneously upheld by the appellate court in that:-
(a) in order to found a conviction upon the doctrine of recent possession under section 148(a) of the Evidence Act, evidence must be called, which in this case was not, to establish the date of the theft concerned;
(b) the appellant must be shown to have stolen the cheque himself, or been party to its theft, to warrant a conviction on Count 2.
(4) That the appellate court erred in upholding the appellant's conviction on count 5, in that the allegations against the appellant were merely preparatory acts to stealing, there being no evidence, having regard to his acquittal on count 4, that he had any further dealings, with the cheque, exhibit A."
It should, however, be pointed out at once that ground 2 is irrelevant since the appellant was not convicted on a charge of receiving stolen property." Further, the learned Acting Director of Public Prosecutions of Lagos State rightly, in our view, conceded that he was unable to support the conviction of the appellant on the 2nd and 5th counts.
The short point in regard to the 2nd count is that there is no satisfactory evidence as regards the actual date or time when the cheque leaf was extracted from the company's cheque-book so as to make it possible to invoke the presumption of recent possession or to call in aid section 148(a) of the Evidence Act. Section 148(a) reads as follows:-
"148. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the court may presume-
(a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession."
We entirely agree that there is no evidence to support the finding of the learned Senior Magistrate that the cheque leaf came into the possession of the appellant soon after the theft on which a further finding that he was the actual thief could be based. The appellant's co-accused Adeniyi Ladipo made inconsistent statements about his absence on leave from his duties and testified that nothing was stolen from his office before he went on leave, according to him, during a period which included 5th and 6th March, 1972. However, the trial court was satisfied that he was on duty on 5th and 6th March 1972, when the cheque leaf was alleged to have been stolen. Consequently, there is no basis for charging the appellant in the 2nd count with having stolen the cheque between the 5th day and 6th day of March, 1972. Further, there is also no evidence that he had access to the relevant cheque book or the opportunity to steal the cheque, or that he worked at Star Match Limited or was seen on or near the premises of the company on either of those days, or at any other time, and he has denied stealing the cheque leaf. We hold therefore, that the appeal against conviction on the 2nd count must succeed.
As regards the conviction on the 5th count, we agree with the contention of learned Counsel for the appellant that the very fact that the appellant was acquitted by the trial court of knowingly and fraudulently uttering the cheque (4th count), should have resulted in his acquittal on the 5th count, in the absence of evidence of any other act immediately connected with stealing (as opposed to forgery). To constitute an attempt, the act must be immediately connected with the commission of the particular offence charged and must be something more than mere preparation for the commission of the offence; see R. v. Eagleton, Dears, 515; R. v. Robinson 11 Cr. App. R. 124; Comer v. Bloomfield 55 Cr. App. R. 305.
At the end of the submissions by learned Counsel for the appellant it appeared that, although he had made some submissions relating to the conviction of the appellant on the 3rd count, the appellant had no where in his grounds of appeal complained against his conviction on this count. Counsel at this stage made a belated application for leave to amend his ground of appeal but this application was refused by us as we considered it to be too late in the proceedings and improper to entertain it at this stage, and that it would be setting a bad precedent to do so, particularly as the appellant was represented by counsel not only during the hearing of the appeal in this Court but also at the hearing of the appeal in the court below.
Nevertheless, we find it necessary to express the following views so as to leave no room for doubt or uncertainty of any kind of regards the conviction of the appellant on the 3rd count. Admittedly, the learned Senior Magistrate decided to make his own comparison of the handwritings as he was empowered to do by section 107 of the Evidence Act, and did not rely solely on the expert evidence of handwriting adduced by the prosecution in arriving at his decision to convict the appellant.
Learned Counsel for the appellant contended that since the evidence of the two handwriting analysts called by the prosecution and defence respectively was diametrically opposed, this raised a doubt which should have been resolved in favour of the appellant, particularly as it appeared that the Senior Magistrate came to a conclusion on his own view after making his own comparison. Counsel also contended that the Senior Magistrate, while stating that he was "more impressed" by the evidence of the expert called by the prosecution did not specify the reasons why he was "more impressed" and did not appear to have taken advantage of the opportunity he had of seeing the witnesses at the trial. Counsel conceded, however, that this Court is entitled to come to its own conclusion on the handwritings exhibited at the trial.
We cannot agree with the contention that a trial court, after having heard the evidence of expert witnesses and observed their demeanour in the witness-box, should inevitably go on to give reasons for being "more impressed" with the evidence of a particular witness rather than another. In our view, all the Senior Magistrate has said is that he was more impressed with the evidence (including the demeanour) of the handwriting analyst called by the prosecution and all he has done is to satisfy himself that his impression is correct by comparing the handwritings himself, in the light of the evidence of the expert witnesses. His function is not to assume the role of an expert witness himself but to form his own impressions and arrive at his own conclusions as he has done in this case, in regard to the veracity or otherwise of the individual witnesses, including the expert witnesses. The trial court clearly accepted the evidence of Patrick Nwananna the prosecution expert witness and rejected the evidence of Johnson Ijioma the defence expert witness where the trial Judge or Magistrate has come to a conclusion upon the question which of the witnesses, whom he has seen and heard, are trustworthy and which are not, he is normally in a better position to judge of this matter than the appellate tribunal, and the appellate tribunal will generally defer to the conclusion which the trial court has formed. See Powell and Wife v. Streatham Manor Nursing Home (1935) A.C. 243.
The trial court complied with the condition prescribed in R. v. Harvey, 11 Cox 546, and made its comparison with the assistance of expert evidence. In R. v. Smith 3 Cr. App. R. 87, and R. v. Rickard 13 Cr. App. 140, the Court of Criminal Appeal formed its own opinion as the handwriting alleged to be that of the appellant after confirming it with a letter written by her after conviction, and without resort to expert evidence. We have ourselves compared the specimen undisputed handwritings of the appellant with the forged documents and, in particular, the forged cheque, exhibit A, and see no reason for disturbing the findings of the learned Senior Magistrate that the appellant forged the cheque exhibit A.
If the appellant had complained against his conviction on the 3rd count charging him with forgery, we would, for the foregoing reasons, have dismissed it.
In the result, the conviction and sentence of the appellant on the 2nd and 5th counts are set aside and, in their place, we record a verdict of acquittal; but the conviction and sentence of the appellant on the 3rd count are affirmed.