W. O. MUMUNI & ORS (APPELLANT)

v.

THE STATE (RESPONDENT)

(1975) All N.L.R. 295

Division: Supreme Court

Date of Judgment: 20th June, 1975

Case Number:

Before: Elias, C. J. N., Fatayi-Williams and Irikefe, JJ.S.C.

Appeal from the High Court, Lagos State.

Fourteen accused persons were charged before the Criminal Assizes of the Lagos High Court for forgery, conspiracy, uttering, false pretences, receiving and stealing. The prosecution alleged that some of the accused persons had by means of two forged letters (Exhibits 41 and 41A) caused the Central Bank of Nigeria, Lagos, to transfer N268,534.19 to Barclays Bank, 40 Marina, Lagos Branch to the credit of Halabi & Eliam (Nigeria) Ltd. and N252,885.90 to the United Bank for Africa, Ebute-Metta Branch, to the credit of COMECO (Nigeria) Limited.

Of the sum of N252,885.90 credited to the account of COMECO, 11th accused was alleged to have obtained N10,000 thereof by false pretences, whilst 13th accused was alleged to have received N1,000 out of the said N10,000 knowing same to have been stolen. All the accused persons were alleged to have stolen the two sums of N268,534.19 and N252,885.90.

Accused Nos. 5, 8, 10, and 14 were discharged for want of evidence, while accused Nos. 1, 2, 3, 4, 6, 7, 9, 11, 12 and 13 were convicted by the trial Judge on various counts.

On appeal to the Supreme Court against convictions.

HELD:

dismissing the appeals of accused Nos. 1, 2, 3, 4, 6 and 7 who had made confessional statements, that the learned trial Judge was right in deciding that the confessional statement of each accused had been properly proved against the maker thereof and that this was sufficient evidence to ground a conviction.

The 9th accused was convicted on counts 1, 2, 5, 6, and 11 which deal with fraudulent transfer of the sum of N268,534.19 from the Central Bank to the account of Halabi & Eliam (Nig.) Ltd. at the Barclays' Bank. He was however exonerated on counts 3, 4, 7, 8, and 12 which deal with the fraudulent transfer of the sum of N252,885.90 from the Central Bank to the account of COMECO (Nigeria) Ltd. at the United Bank of Africa.

The only evidence against him at the end of the prosecution's case was his extra-judicial statement to the Police, a palpably neutral document containing no incriminating material. He rested his case on that of the prosecution and refused to call any evidence in his defence. The learned trial Judge had purported to base his conviction on materials collected from the extra-judicial statements of some of the co-accused.

HELD:

Allowing his appeal and quashing the convictions, (1) that as at the end of the prosecution's case, there was no admissible evidence of guilt against this appellant, it was improper for the trial Court to have called upon him for his defence on some of the counts but not on the others.

(2)     that where there is absolutely no evidence against a prisoner at the end of the prosecution's case, the court is legally obliged to discharge him at that state; for to do otherwise, would be tantamount to placing upon the prisoner the onus of establishing his innocence.

(3)     that under our laws and by virtue of S. 22 (4) of the Constitution every person charged with a criminal offence shall be presumed innocent until proved guilty.

(4)     that a prisoner against whom there is some evidence calling for his explanation on oath shall not be placed in a more advantageous position at the end of the trial solely on the ground that he rested his case and declined to participate further in the proceedings. In such a case, the trial Court may properly consider against the prisoner all the evidence produced at the trial including any inculpatory evidence subsequently given by a co-prisoner.

The 11th accused was convicted on counts 3, 4, 7, 8 and 9. It was contended on his behalf that there was no evidence to justify his convictions, and that, anyway, inculpatory evidence given by 13th accused had been used against him without the trial Court warning itself on the evidence so used.

HELD:

Dismissing the appeal and affirming the convictions,

(1)     that the trial Court had before it ample evidence to justify the convictions.

(2)     that the rule as to warning on the admission of the evidence of a co-accused is a rule of practice dictated by prudence and not a rule of law.

(3)     that the failure of the trial Court to warn itself in this case has not occasioned a miscarriage of justice as there was independent evidence upon which the guilt of this appellant could be inferred even if the inculpatory evidence given by the co-prisoner were ignored.

The 12th accused was convicted on counts 1, 2, 5, 6, 11. It was urged on his behalf that there was no evidence to justify his convictions and also that as he had been convicted on like counts as the 9th accused, his case and that of the latter should enjoy or suffer the same fate.

HELD:

dismissing the appeal and affirming the convictions,

(1)     that there was ample evidence to justify his convictions.

(2)     that there was no similarity between his case and that of the 9th accused against whom there was absolutely no evidence at the end of the prosecution's case.

The 13th accused, was convicted on counts 3, 4, 5, 8, and 10. It was contended on his behalf that there was no evidence to support his convictions.

HELD:

allowing his appeal, that as the prosecution had failed to establish that the sum of N1,000 received by this appellant had come from the N10,000 paid the 11th accused, his convictions could not stand.

Cases referred to:

R. v. Aspinall 2 Q.B.D. (1876-77) 45 at 58-9

R. v. Murphy 173 E.R. 505

R. v. Griffiths 49 C.A.R. 279

R. v. Luberg & ors. 19 C.A.R. 133

R. v. Orton (1922) Victorian Law Reports 474

R. v. Sykes 8 C.A.R. 233

R. v. Kanu & anor. 14 W.A.C.A. 30

R. v. Jackson 5 C.A.R. 22

R. v. Power 14 C.A.R. 17

R. v. Ajani & ors. (1936) 3 W.A.C.A. 3

R. v. Gyang & anor. 14 W.A.C.A. 584

Police v. Ogbozor [1964] 1 All N.L.R. 9

R. v. Hogan (1922) 16 Cr. App. R. 182

R. v. Abbot [1955] 2 All E.R. 899 at 902

R. v. Agwuna (1949) 12 W.A.C.A. 456

R. v. Prater 44 C.A.R. 83

Ukut v. The State [1965] 1 All N.L.R. 306

Okolo v. The State (1974) 2 S.C. 73

Statutes referred to:

Criminal Code, SS. 516, 467 (2) (h), 419, 427, 390 (a)

Constitution of the Federation, S. 22 (4)

Evidence Act. S. 11

APPEAL from the High Court, Lagos.

SUIT No. S.C. 11 2/74

A. K. I. Makanju for 1st Accused/Appellant.

J. A. Cole (with him S.M. Olakunri) for 11th Accused/Appellant.

F. O. Akinrele for 12th Accused/Appellant.

Chief C. K. J. Amachree (X. M. Akinsete and C. N. Okoli with him) for 13th Accused/Appellant.

9th Accused/Appellant in person.

G. A. A. T. Jinadu Deputy Director of Public Prosecutions Lagos State for Respondent.

IRIKEFE, J.S.C. (Delivering the Judgment of the court)-Before the criminal assizes of the Lagos High Court, the charges as finally formulated in these proceedings read thus:-

1st Count-Conspiracy to forge contrary to Section 516 of the Criminal Code.

Particulars of Offence

That you:

(1)     Wahabi Onasanya Mumuni (m)

(2)     Kadiri Adebisi (m)

(3)     Monday Enyinna (m)

(4)     Augustine Ekpo (m)

(5)     Peter Okun (m)

(6)     Okon Archibong (m)

(7)     Kingsley Eluwa (m)

(8)     Ishola Kazeem-Alias Baba Kudi (m)

(9)     Fred. Ndiwe (m)

(10) Udoma Onwuka Ebule (m)

(11) Hiranand Moorjani (m)

(12) Badreddine Aref El-Yaffi (m)

(13) Ayodele Ogundepo (m)

(14) Richard Pepple (m)

on or about 11th October, 1973, conspired with one another to commit a felony to wit: the forgery of a letter reference No. C/0062/Vol. 7/646 dated 11th October, 1973 for the transfer of the sum of N268,534.19 from the Lagos State Government account with the Central Bank of Nigeria, Lagos to the account of a limited liability company called Halabi and Elian (Nigeria) Ltd., with the Barclays' Bank at 40 Marina, Lagos Branch.

2nd Count-Conspiracy to steal contrary to Section 516 of the Criminal Code.

Particulars of Offence

That you:

(The 14 accused persons) on or about 11th October, 1973, at Lagos, conspired to commit a felony, that is, to steal the sum of N268,534.19, the property of the Lagos State Government.

3rd Count-Conspiracy to forge contrary to Section 516 of the Criminal Code.

Particulars of Offence

That you:

(The 14 accused persons) on or about 11th October, 1973, conspired with one another to commit a felony to wit: the forgery of a letter reference No. C/0062/Vol. 7/647 dated 11th October, 1973 for the transfer of the sum of N252,885.90 from the Lagos State Government account with the Central Bank of Nigeria, Lagos to the account of a Limited Liability Company called COMECO (Nigeria) Ltd. with the United Bank for Africa Limited, Ebute-Metta

(Hereinafter called U.B.A.).

4th Count-Conspiracy to steal contrary to Section 516 of the Criminal Code.

Particulars of Offence

That you:

(The 14 accused persons) conspired to commit a felony, that is to steal the sum of N252,885.90, the property of the Lagos State Government.

5th Count-Forgery contrary to Section 467 (2) (h) of the Criminal Code.

Particulars of Offence

That you:

(The 14 accused persons) on or about the 11th day of October, 1973 at Lagos in the Lagos Judicial Division forged a document to wit: a letter reference No. C/0062/Vol. 7/646 dated 11th October, 1973 for the transfer of a sum of N268,534.19 purporting same to have been signed by one I.E. JOHNSON (m) the Accountant-General of Lagos State and one B.A. KARIM (m) the Deputy Accountant-General of Lagos State.

6th Count-Uttering a false document contrary to Section 468 of the Criminal Code.

Particulars of Offence

That you:

(The 14 accused persons) on or about the 12th day of October, 1973 at Lagos in the Lagos Judicial Division, knowingly and fraudulently uttered a false document to wit: a letter reference No. C/0062/Vol. 7/646 dated 11th October, 1973 for the transfer of N268,534.19 purporting same to be signed by one I. E. JOHNSON (m) the Accountant-General of Lagos State and one B. A. KARIM (m) the Deputy Accountant-General of Lagos State.

7th Count-Forgery contrary to Section 467 (2) (h) of the Criminal Code.

Particulars of Offence

That you:

(The 14 accused persons) on or about the 11th day of October, 1973 at Lagos in the Lagos Judicial Division forged a document, to wit: a letter reference No. C/0062/Vol. 7/647 dated 11th October, 1973 for the transfer of a sum of N252,885.90 purporting same to have been signed by one I. E. JOHNSON (m) the Accountant-General of Lagos State and one B. A. KARIM (m) the Deputy Accountant-General of Lagos State.

8th Count-Uttering a false document contrary to Section 468 of the Criminal Code.

Particulars of Offence

That you:

(The 14 accused persons) on or about the 12th day of October, 1973 at Lagos in the Lagos Judicial Division knowingly and fraudulently uttered a false document to wit: a letter reference No. C/0062/Vol. 7/647 dated 11th October, 1973 for the transfer of a sum of N252,885.90 purporting same to have been signed by one I. E. JOHNSON (m), the Accountant-General of Lagos State and one B. A. KARIM (m) the Deputy Accountant-General of Lagos State.

9th Count-Inducing delivery of money by false pretences contrary to Section 419 of the Criminal Code.

Particulars of Offence

That you:

Hiranand Moorjani (m) on or about the 18th day of October, 1973 at Lagos in the Lagos Judicial Division by false pretences and with intent to defraud induced the United Bank for Africa Limited, Ebute-Metta to deliver the sum of N10,000 to D. A. RAMAN (m) by falsely pretending that the sum of N252,885.90 which had been transferred by the Central Bank, Lagos for the credit of the account of Messrs COMECO (Nigeria) Limited with the said United Bank for Africa, Ebute-Metta was a sum of money payable to the said company by the Lagos State Government and you the managing director of the company were thereby entitled to withdraw the said sum of N10,000 from the said account.

10th Count-Receiving stolen property contrary to Section 427 of the Criminal Code.

Particulars of Offence

That you:

Ayodele Ogundepo (m) on or about the 18th day of October, 1973 at Lagos in the Lagos Judicial Division received the sum of N1,000 the property of the Lagos State Government knowing the same to have been stolen.

11th Count-Stealing contrary to Section 390 (a) of the Criminal Code.

Particulars of Offence

That you:

(The 14 accused persons) on or about the 18th day of October, 1973 at Lagos in the Lagos Judicial Division stole the sum of N268,534.19 the property of the Lagos State Government.

12th Count-Stealing contrary to Section 390 (a) of the Criminal Code.

Particulars of Offence

(The 14 accused persons) on or about the 18th day of October, 1973 at Lagos in the Lagos Judicial Division stole the sum of N252,885.90 the property of the Lagos Government.

As could be seen from the above, all the accused persons were affected by counts 1, 2, 3, 4, 5, 6, 7, 8, 11 and 12, while only the 11th accused and 13th accused were affected by the 9th and 10th counts respectively.

At the trial in the Lagos High Court, the 5th, 8th, 10th and 14th accused were discharged for insufficient evidence at the close of the prosecution's case, while the others were later convicted on various counts as hereinafter appears.

If we might borrow the language of the learned trial Judge (Odesanya J.) the story behind this case of colossal fraud, is as fascinating as it is uninvolved.

It seems, from the account given by the prosecution, that some of those who stood their trial in this case, had made themselves thoroughly conversant with the procedure employed by the Lagos State Government in settling its financial obligations. They knew, for instance, that bills for under N20,000 are paid by cheques which are signed by any two of four approved signatories (See Exhibit 82), one such signatory being P.W. 4-ISSAC EBUN JOHNSON, the Accountant-General of Lagos State.

For payments of N20,000 and above, in which category this case falls, a letter issues from the Lagos State Government to the Central Bank, who are the bankers to the Lagos State Government, directing the Bank to credit the amount to the account of the firm or person entitled thereto.

Two such genuine letters are Exhibits 64 and 64A. Each letter is initialled by Mr B. A. Karim, the Deputy Accountant-General and counter-signed by Mr I. E. Johnson, the Accountant-General. Mr Karim's office at 23A, Marina-Lagos is separated from Mr Johnson's Office at the City-Hall-Lagos by a distance of under one mile.

There is evidence that such letters, after signature, are carried by hand by messengers from Karim's office to Johnson's office for the latter's counter-signature. In the present case, this transit exercise afforded the messengers an opportunity for getting acquainted with the contents of such letters, and, as it turned out, the temptation to divert the funds of the Lagos State Government to spurious destinations by means of forged letters, proved irresistible.

One curious feature of the forgery disclosed-in this case, is that the reference numbers on the genuine letters Exhibits 64 and 64A-that is C/0062/Vol. 7/646 and C/0062/Vol. 7/647 had been used on the forged letters Exhibits 41 and 41A. The forged letters, written on 11th October, 1973 had been stamped as received by the Central Bank on 12th October, 1973; while the genuine letters, Exhibits 64 and 64A, written on 15th October, 1973 had been stamped as received by the Central Bank that same day.

As on 15th October, 1973, the four letters, both genuine and spurious, would have been available in the appropriate file at the Central Bank; and some, at least, of the officials of that Bank who dealt with the file, would, if they were not themselves parties to this conspiracy, have been alerted to the fraud.

They would have had before them two distinct sets of letters carrying similar reference numbers but conveying clearly conflicting instructions.

The evidence shows that, notwithstanding the above state of affairs, the Central Bank, nevertheless, proceeded to implement the instructions contained in the forged letters (Exhibits 41 and 41A) by effecting transfers of the sums listed therein to the nominated banks.

In consequence of the above, the two huge sums of money (that is N252,885.90 and N268,534.19) had by 16th October, 1973 successfully arrived at the recipient banks.

For the conspirators, the two following days were crucial. It seems that there was a break-down in communication somewhere. It was brought out in evidence that some of them began to have second thoughts about the good intentions of their fellow conspirators, and decided there and then to give the game away.

By noon on 18th October, 1973 the financial empire conceived and nurtured by the conspirators had come tumbling to the ground and they had only the paltry sum of N10,000 quickly withdrawn that morning by MOORJANI, 11th accused, to show as the reward for their undoubted industry. The Lagos State Government, once it had been alerted, moved quickly and the two bank accounts were frozen.

It seems to us that the security aspect of the pattern of payments set out above leaves much to be desired and that the sooner steps are taken by the authorities concerned to tighten same, the better.

The 1st, 2nd, 3rd, 4th, 6th, 7th, 9th, 11th, 12th and 13th accused persons have now appealed to this Court against their respective convictions and sentence as hereafter appears:-

1st accused-against his convictions and sentence on counts-1, 2, 3, 4, 5, 6, 7, 8, 11 and 12.

2nd accused-against his convictions and sentence on counts-1, 2, 3, 4, 5, 6, 7, 8, 11 and 12.

3rd accused-against his convictions and sentence on counts-1, 2, 3, 4, 5, 6, 7, 8, 11 and 12.

4th accused-against his convictions and sentence on counts-1, 2, 3, 4, 5, 6, 7, 8, 11 and 12.

6th accused-against his convictions on counts-1, 2, 3, 4, 5, 6, 7, 8, 11 and 12.

7th accused-against his convictions and sentence on counts-1, 2, 3, 4, 5, 6, 7, 8, 11 and 12.

9th accused-against his convictions and sentence on counts-1, 2, 5, 6 and 11.

11th accused-against his convictions on counts-3, 4, 7, 8 and 9.

12th accused-against his convictions on counts-1, 2, 5, 6 and 11.

13th accused-against his convictions on counts-3, 4, 7, 8 and 10.

As we indicated above, similar convictions were recorded against the 1st, 2nd, 3rd, 4th, 6th and 7th accused persons, and as their appeals appear to raise identical issues of law, we propose to deal with them together.

The conviction of the 1st accused would appear to rest entirely on his confessional statement-Exhibit "52". Although at the close of the case for the prosecution the court had ruled that he had a case to answer on all the counts charged, he had chosen not to call any evidence. It was submitted on his behalf by learned Counsel that the decision in so far as it related to him was unreasonable, unwarranted and cannot be supported having regard to the evidence. To say the least, we find this submission most strange in view of what transpired at the trial. Not having elected to call evidence, all the evidence produced at the trial would clearly seem to point in only one direction; and as the learned trial Judge had held after a trial within a trial that the statement Exhibit 52, was a free and voluntary confession by the accused of the prominent role he played in this matter, such unchallenged evidence would be sufficient to sustain his conviction.

This statement of the 1st accused, Exhibit "52" is as interesting as it is revealing and presents a complete picture of the conspiracy and the substantive offences with which this case is concerned. Part of it runs thus:-

"I was employed in 1969 in Ministry of Finance Lagos State, been time I was posted to the P.A. (Admin.) I was to despatch letters to various ministries. Then Mr Adebisi came to me one day at home he asked me how we can do transfer money from Central Bank to Commercial Banks. I told him if you are ready I will bring the documents.

I was at 23A Marina Lagos. Then when the messenger of (D.A.G.) Deputy Accountant-General is not in, I will help him to despatch his letters. I told Mr Adebisi have you seen Mr Ishola Kazeem about this matter you brought to me, he said he had seen him, then Mr Adebisi said that Mr Kassim will meet him at home tonight. The reason why I asked him this question is because when we fail about prepared vouchers, which Kassim participated. I gave all the documents relating to funds transfer to Mr Kassim in his house sometime September, 1973. This document contain the file reference number and the contents of transfer, the Lagos State Accounts No. in Central Bank and the signature of Accountant-General and his Deputy Accountant-General who authorise the funds transfer from Central Bank to other places.

I got this letter through the one they are going to despatch to Central Bank by the messenger of Deputy Accountant-General, then I photostat it in our office. It was the photostat copy of the letter I made out and which I gave to, Ishola Kassim. I was later informed by Adebisi that Mr Eluwa is the person who made bank arrangements before this I saw Eluwa at Kingsway Stores and P.Z. Stores sale, he stop me did I know him, I said I didn't know, he said he was the person they called Eluwa, we greet ourself. He then told me that Mr Adebisi have seen him about Funds Transfer and said the arrangement is going on. Mr Adebisi and Ishola Kassim came to my house that they will come and collect me to go and type the letters, which the place is unknown to me until we see at Archibong's house along Lawanson Road, Suru-lere. Mr Ishola Kassim came along with photo-copy I gave to him.

These are the people who were present where the letter was typed:-Eluwa, Monday, Archibong, Adebisi, Ishola Kassim and after Ekpo have collected the specimen signature he went outside. Adebisi and Ishola Kassim cut the specimen signature from the photostat copy of the original I made out from the office with razor blade and gave it to Ekpo, and he went his home. Monday accompany with a boy who brought the typewriter to Archibong's house. I don't know the boy and where they brought the typewriter.

The type of typewriter they brought is Imperial 80. I gave about eight letter headings of the Ministry to Ishola Kassim along with the photocopy of the letter mentioned before. Mr Kassim brought letter headings together with photo-copy of the letter to Archibong's house that day. We used this document to prepare two Funds Transfer from Lagos State Accounts in Central Bank Lagos to two difference banks account, one at U.B.A. Ebute-Metta, the other one Barclays Bank Marina. I cannot remember the owners of these two accounts. Also I cannot remember the total amount of the money transfer with those two letters. I type the two letters at Archibong's house. I type up to two letters in original and duplicate for each transfer. Mr Adebisi took it to Mr Ekp's house for signature. Mr Adebisi brought the original of these two letters to me, on a Friday morning at my house in the month of October, 1973. The two letters were already signed. Then I despatched it to the Central Bank Lagos. I can't identify the two letters if I see them. Mr Adebisi said that the account holder will get ? Central Bank of Lagos Official ¼ and the rest will be among us. Mr Adebisi bought the despatch book for these purpose which I used for the despatching the letters to the Central Bank.

After I have despatch them, I gave the despatch book to Ishola Kassim to show that I have dispatch it. These two letters shown to me by the police are the very letters of transfer of money which I typed in the house of Archibong and which I dispatch for the Central Bank.

The reference No. of the first letter is C/0062/Vol.7/646 dated 11th October, 1973 which amount is N268,534.19 to the account of Messrs HALABI & ELIAN (Nig.) Ltd. P.O. 6462-Lagos-Nigeria and the second letter ref. No. is C/0062/Vol. 7/647 dated on the 11th October, 1973 which amount is d252,885.90 to account of Messrs COMECO (Nig.) Ltd.-19 Obun-Eko Street-P.O. Box 1482-Lagos-Nigeria.

After about seven days Mr Adebisi and Ishola Kassim came to my house and told me that everything has spoiled, that Accountant-General has got information about this transfer."

The above statement recorded in the 1st accused's own handwriting, though evidence against the maker only, contains all the infrastructure on which the prosecution's case was built.

The learned trial Judge was most careful and through in his treatment of the charge of conspiracy and we are not ourselves in doubt that the conclusions he reached both on the law and facts in so far as they relate to the case of the first appellant were sound.

We observe that conspiracy as a crime is complete upon agreement, and it is not necessary in order to complete the offence that any one thing should be done beyond the agreement. See R. v. ASPINALL-2 Q.B.D. (1876-77) p.45 at pp. 58-9.

Also, once a conspiracy has come into existence, other conspirators may join in it at a later stage-See R. v. Murphy-173 E.R. p. 505. Moreover, any one of the conspirators may not know the other parties but only that there are other parties, and any one may not know the full extent of the scheme to which he attaches himself-See R. v. Griffiths-49 C.A.R. p.279.

In a conspiracy trial, evidence of what one accused says in the absence of other conspirators is rendered admissible against such others on the basis that, if they are all conspirators, what one of them says in furtherance of the conspiracy would be admissible evidence against them, even though it was said in the absence of the other conspirators. This is said to be an exception to the hearsay rule-See R. v. Luberg & ors 19 C.A.R. p. 133.

Although the rules as to admissibility of evidence generally would appear to be relaxed when a charge of conspiracy is tried along with other substantive charges, the prosecution initially has a duty to lead distinct evidence of the existence of the conspiracy-and the involvement of each conspirator in it.

An Australian judge recommended the following approach in his direction to the jury in a case before him:

"Each accused is entitled at the outset to have the evidence properly admissible against him considered alone, and it is only when after such evidence so considered you find him to be a party to the conspiracy, if any, that the acts of the other conspirators can be used against him"-PER CUSSEN J. in R. v. ORTON-(1922) VICTORIAN LAW REPORTS at p. 474.

We agree with the learned trial Judge that a confessional statement properly proved is sufficient to sustain a conviction, even when such a statement is subsequently retracted at the trial. The truth of the matters admitted in the statement should, as a rule, be established by some other evidence, no matter how slight.

This test as laid down in R. v. SYKES-8 C.A.R. p. 233 was followed in R. v. KANU & ANOR. 14 W.A.C.A. p. 30.

In view of the foregoing, the 1st appellant's appeal fails.

The second accused, KADIRI ADEBISI, was convicted on counts 1, 2, 3, 4, 5, 6, 7, 8, 11 and 12. He made a confessional statement, Exhibit "53", to the police and wrote it out himself. The statement was admitted after a trial within a trial.

At the trial, he gave evidence in his own defence and denied having made Exhibit "53". The twenty grounds of "written argument of appeal" filed and adopted by him before us are all but intelligible. They are repetitive of the appellants' complaint against the admission in evidence of Exhibit "53". We are satisfied that the confession contained in Exhibit "53" was properly proved against this appellant, and that his appeal lacks merit and accordingly fails.

The 3rd accused, MONDAY ENYINNA, was convicted on counts 1, 2, 3, 4, 5, 6, 7, 8, 11 and 12. He made a confessional statement, Exhibit "50", to the police and wrote it out himself. The statement was admitted after a trial within a trial. At the trial, he gave evidence in his own defence and denied having made Exhibit "50". He then called a witness to testify on his behalf. Like the second appellant, he filed a book of grounds of appeal. The said grounds complain against the wrongful admission in evidence of Exhibit "50".

We are satisfied that the confession contained in Exhibit "50" was properly proved against this appellant and that his appeal lacks merit and accordingly fails.

The 4th accused, Augustine Ekpo, was convicted on counts 1, 2, 3, 4, 5, 6, 7, 8, 11 and 12. He is an accomplished forger and the most dangerous member of the conspiracy. He it was who forged the signatures on Exhibits "41" and "41A" by means of which the two huge sums of money were transferred from the Lagos State Government account with the Central Bank of Nigeria to the two commercial banks.

He made a confessional statement, Exhibit "54" to the police and wrote it out himself. This statement was admitted after a trial within a trial. He gave evidence in his own defence at the trial and denied the contents of Exhibit "54". He repeated the allegation made before the statement was admitted in evidence, that he had made it only after torture by the police.

His admission in Exhibit "54" that he had forged the signature of P.W. 4-Isaac Ebun Johnson, the Accountant-General of the Lagos State and of P.W. 5-Biliaminu Ayinla Karim, the Deputy Accountant-General was amply corroborated by the evidence of P.W. 17-RAUFU FASHINA, the police handwriting analyst.

His complaint before us shows that he had no respect for truth and paid but scant regard for the printed record.

The allegation about police brutality would seem at best to have a hollow ring when placed side by side with the fact that the 5th, 8th 10th and 14th accused who themselves were in police custody at the time, had made exculpatory statements voluntarily and were discharged at the end of the prosecution's case for want of evidence. Similarly, the 9th, 11th, 12th and 13th accused persons did not allege that police brutality affected in any way the statements they made. We are satisfied that this appeal lacks merit and it fails.

The 6th accused, Okon Archibong, was convicted on counts 1, 2, 3, 4, 5, 6, 7, 8, 11 and 12. Before us on appeal, learned Counsel appearing on his behalf argued only the general ground which states that the decision is unreasonable, unwarranted and cannot be supported having regard to the evidence. It is the contention of learned Counsel that, at the stage when the prosecution closed its case, there was no admissible evidence against this appellant beyond the two statements to the police, Exhibits 56 and 58. These statements, Counsel argued, cannot, taken by themselves, ground a conviction against the appellant in respect of any of the offences charged.

There was the admission by this appellant, both in his statement to the police and in his evidence on oath, that he had returned to his house on a date in October, 1973 to meet some of the other accused persons typing the forged letters Exhibits 41 and 41A. He denied knowing the contents of the forged letters but admitted that, although he had two good typewriters in his office at the time, a strange typewriter Exhibit 40 had been used to type the said letters.

Among the accused persons he had seen assembled in his office that day were the 2nd, 3rd, 7th and 8th.

When searched on being arrested by the Police in connection with this case, a diary, Exhibit 57, was found. In it, written in the appellant's own handwriting is the name HALABI & ELIAN (Nigeria) Ltd. This is the company, of which the 9th accused Fred Ndiwe is one of the directors, and into whose account with the Barclays Bank the sum of N268,534,19 belonging to the Lagos State Government had been transferred as on 15th October, 1973. He stated that one Hausaman had given him the name of the company as a dealer in cement. This was about 2 months before November, 1973. The mysterious Hausaman was not produced at the trial. The account of Halabi & Elian had been closed to commission as at 25th July, 1973, showing nil balance. (See Exhibit 17).

The account came into funds again on 15-10-73 with the reception of the Lagos State money. (See Exhibit 68). This was hardly the type of company that could be a dealer in cement at any time before the stolen money found its way into its account.

There was also the fact that, on 19-10-73 after the 12th accused had been arrested, the 9th accused had got the appellant to take the former out on bail.

On the evidence before him, we think the learned trial Judge was right in holding that this appellant was one of the conspirators and convicting him as stated earlier.

Accordingly his appeal fails.

The 7th accused, Kingsley Eluwa, was convicted on counts 1, 2, 3, 4, 5, 6, 7, 8, 11 and 12. He made a confessional statement, Exhibit 59, to the police and wrote it out himself. This statement was admitted in evidence at the trial after a trial within a trial. He also made another confessional statement, Exhibit 60. This was admitted at the trial, although it had been shown that he had earlier refused to confirm same before P.W. 7, Assistant Superintendent of Police TARFA before whom all the confessional statements were attested. Tarfa said that 7th accused had refused to affirm Exhibit 60 because he preferred the earlier statement, Exhibit 59. At the trial he again repeated the usual story of police brutality. Under cross-examination he grudgingly conceded that part of Exhibit 59 was voluntary and part false. He did not elaborate. His defence closed with the evidence of his wife. Before us on appeal, he relied on twenty grounds of appeal. The so-called grounds repeat his earlier complaints about police brutality which he urged should be a ground for us to rule that his two statements had been improperly admitted to the trial.

We decline to do so, as we are satisfied that the contents of Exhibits 59 and 60 had been properly proved against this appellant. His appeal, therefore, fails.

The 9th accused, Fred Omekam Ndiwe, was convicted on counts 1, 2, 5, 6 and 11. This appellant is a member of the Nigerian bar and his appeal raises what appears to us to be substantial issues of law. As the record shows, he was convicted on those counts relating to the transfer of funds to the account of Halabi & Elian (Nigeria) Limited. He was, however, exonerated on those counts relating to the transfer of funds to the account of COMECO (Nigeria) Limited. There was no evidence that he was a signatory to the document of the purpose of withdrawing money from the account of Halabi & Elian with Barclays Bank. There was equally no evidence that he held any shares in the said company. At the close of the prosecution's case, the only admissible evidence against him is as contained in his extra-judicial statement to the police, Exhibit 76.

The said statement is a neutral document as it does not contain one sentence which by any stretch of the imagination can be described as self-incriminatory. The court having ruled that he had a case to answer on the counts on which he was subsequently convicted, the appellant rested his case and declined to participate further in the proceedings. The learned trial Judge, at the end of the case, reviews whatever evidence there was against the appellant and having held that he was a party to the conspiracy, purported to rely on the declarations of the other conspirators as evidence against him.

Before this appeal matured for hearing, the appellant had filed a number of grounds, but it will suffice here to set out some of those on which he relied at the hearing of his appeal, which he conducted himself. These read as follows:-

(1)     "The learned trial Judge erred in law by overruling on counts 1, 2, 5, 6 and 11 as he did, the "NO CASE" submission made on behalf of the appellant at the close of the case for the prosecution when there was no evidence on which the trial Court could safely convict and having at the same time and trial upheld appellant's submission on similar counts charged on counts 3, 4, 7, 8 and 12 of the information.

(1A) In the alternative to ground 1 above. The learned trial Judge erred in law when at the close of the case for the prosecution he wrongly overruled a submission of "NO CASE" to answer made by the defence Counsel for the appellant on counts 1 and 2 of the information having in the same case and trial upheld the submission on similar offence charged as counts 3 and 4 of the same information.

(2)     There was substantial miscarriage of justice in that at the close of the case for the prosecution the learned trial Judge misdirected himself on the facts and in the result wrongly ruled that the appellant had a case to answer on counts 1, 2, 5, 6 and 11 of the information.

(3)     The learned trial Judge erred in law and on the facts in holding that the prosecution had established its case beyond reasonable doubt when the evidence upon which the appellant was convicted was neither clear, nor reliable, nor convincing and was manifestly short of the standard required to establish any proof of guilt in a criminal trial.

(4)     The manner in which various statements made to the police became evidence against the appellant was such a serious departure from the law of procedure for the proper conduct of a criminal trial of the appellant was not a fair one.

(4A) In the alternative to ground 4 above, the learned trial Judge erred in law in that he convicted the appellant by making use of prejudicial evidence of hearsay which he, on his own, extracted from written statements to the police made previous to sworn evidence in court which evidence was inconsistent with the said statements and was adjudged unreliable by the learned judge himself."

These are powerful grounds and Ndiwe dealt with them together making the following points in a manner that cannot easily be excelled for lucidity.

(a)     If the learned trial Judge was right, in ruling as he did, that he had no case to answer on counts 3, 4, 7, 8 and 12 of the information, what other evidence was there before the court on which to justify his being called upon for his defence on counts 1, 2, 5, 6 and 11 ?

(b)     If a prisoner withdraws from a trial at the close of the prosecution's case, how far thereafter can the court go in relying on evidence subsequently given by his co-prisoners charged with like offences in establishing a conviction against him?

(c)     If a prisoner is charged on an information containing counts of conspiracy as well as of substantive offences, is the prosecution thereby absolved from proving the guilt of the prisoner beyond reasonable doubt, merely because of the presence of the conspiracy counts?

Adverting to the facts of the case in hand, we are in no doubt that, at the end of the prosecution's case, the only evidence against Ndiwe is that contained in his extra-judicial statement to the police dated 26-11-73 (Exhibit "76").

Up to that stage, the statements of the other co-prisoners can be evidence only against the makers of such individual statements.

Accordingly there being no other evidence produced by the prosecution, we are of the view that it was not open to the learned trial Judge to rule that Ndiwe had a case to answer on some of the counts charged and not on the others. It was not a matter of choice for the judge, but a mandatory obligation imposed upon him by law.

This is not the same thing as saying that the court could not err in ruling that a prisoner has a case to answer, when in fact the reverse is the case. In the event of this happening, a prisoner who withdraws from further participation in the case as Ndiwe did, would have a very bright prospect on appeal. If, however, he stupidly continued to participate in the proceedings, even though no case had been made against him, his conviction on evidence subsequently adduced would be in order.

There is a long line of authority, both English and Nigerian. Thus in R. V. Storey-52 C.A.R. p. 334 the police found on entering the defendant's flat a very large quantity of cannabis resin. In a voluntary statement not on oath, the defendant gave the police the explanation that it belonged to a man who had brought it into her flat against her will, and the explanation, if true, would have afforded a complete answer to the charge. At the close of the case for the prosecution a submission was made by the defence that there was no case to answer, but the submission was over-ruled by the judge. It was held, that the judge's ruling was right, as the defendant's statement to the police was not evidence of the truth of the facts therein, but only of her reaction to the police enquiries, and the defendant's unsworn explanation did not nullify the evidence of possession suggested by the presence of the cannabis resin in her flat.

In R. v. Jackson-5 C.A.R. p.22-the court of Criminal Appeal in England decided that if a no-case submission is not made, a judge in a criminal trial is not bound to withdraw a case from the jury, and at the end of the case the jury is entitled to consider and act on all the evidence produced against the prisoner at the trial.

In R. v. Power-14 C.A.R. p. 17-another case decided by the court of Criminal Appeal in England, Counsel made a submission at the close of the prosecution's case that there was no case to go to the jury. As Counsel participated in the further proceedings, it was held that the prisoner was properly convicted on evidence subsequently adduced. This decision was followed in R. v. Ajani & ors (1936) 3 W.A.C.A. p. 3 where all the previous decisions were reviewed.

In R. v. GYANG & ANOR.-14 W.A.C.A. p. 584-Counsel appearing for the prisoner made a no case submission which was correctly over ruled. Counsel then decided to rest his case and it was held that the prisoner was properly convicted on evidence subsequently given which implicates him.

In POLICE v. OGBOZOR (1964) 1 A.N.L.R p. 9, the prisoner, who was standing trial with another in a joint charge of conspiracy and stealing, rested his case on that of the prosecution. His co-prisoner later gave evidence against him.

It was argued that such evidence could not be used against him. This Court, without deciding this point, was content to rest the conviction of both prisoners on the conspiracy charge.

There appears to be some confusion of thought about the scope of the decision in R. v. Power (1919) 14, Cr. App. R. 17 where Darling J. who delivered the judgment of the court held as follows:-

"Lord Alverstone, in Fraser 7 Cr. App. R. 99. said:

"Where an objection is taken by Counsel unsuccessfully, and he then calls evidence, this Court is not bound to disregard the effect of that evidence.

"He then said that the court was not prepared to follow Joiner (above), but preferred the reasoning in Pearson, 1 Cr. App. R. 77 and George 1 Cr. App. R. 168. This Court today agrees that that is the correct statement of the law, and that in Joiner's case it was not put rightly. Applying the rule to this case, the court will not quash the conviction on this ground, because after the submission that there was no case had been unsuccessfully made Counsel for the appellant cross-examined Lewis and called his own client. To have been quite safe he should have taken no part in the subsequent proceedings."

Thus, in R. v. Hogan (1922) 16 Cr. App. R. 182, the learned Counsel for the appellant, in the course of his argument against the conviction of one Hogan who was charged with two other accused persons with conspiracy to defraud and with fraudulent conversion of funds, observed as follows:-

"At the end of the case for the prosecution I submitted that there was no case against this appellant, and declined to take any further part in the proceedings. Nevertheless, the learned judge, in his summing up, used against this appellant the evidence of the defence, including that of the two other defendants: this is contrary to the ruling in Power (1919) 14 Cr. App. R. 17 (five judges) where a conviction was quashed (though not on the ground that after Counsel had unsuccessfully submitted that there was no case against defendant subsequent evidence had admittedly produced matter for the jury), where Darling, J., giving the judgment of the court said:

'To have been quite safe he (Counsel for defendant) should have taken no part in the subsequent proceedings'-he in fact having called his client and cross-examined a witness.'

Here neither I nor defendant took any part after my submission."

To this submission, Darling, J., in dismissing the appeal, replied:-

I did not say that whenever a defendant submitted that there was no case and took no further part in the trial the judge must withdraw the case from the jury. If such a submission is good when taken, it cannot be made bad by the subsequent evidence of defendants. But here there was a case at the close of the prosecution. If a judge may not call attention to such evidence when it is against the defendant, he may not when it is in his favour, which would be a great injustice."

Again in R. v. Abbot [1955] 2 All E.R. 899 at 902, Lord Goddard, who presided over the court of Criminal Appeal in that case, had this to say about the decision in R. v. Power (supra):-

"What the court said in that case was that if the case did go to the jury, then the evidence given by the prisoners respectively was part of the sum of the evidence in the case, and that this Court when asked to quash a conviction might take the whole of the evidence into account. They did not say that the court must, but they said this Court might, take the whole of the evidence into account. They certainly did not say that, if there was no evidence given against one of two or more prisoners, the learned judge could simply leave the case to the jury to see whether when the case for the defence opened one or other of the prisoners would support the case set up by the prosecution."

(Italics ours.)

With regard to the Abbot case which he was considering and in which Abbot gave evidence after his Counsel's no case submission had been overruled by the trial Judge, Lord Goddard observed as follows:-

"Another point which it seems to me to be very necessary to take into consideration in deciding the present case is this, that with all respect it cannot be right for a judge to leave a case to the jury where the whole of the structure on which the prosecution has been built up to that moment collapses and falls, for that is what happened in this case. Once it was shown that neither Mrs Warburton nor the appellant could have taken part in the telephone conversation on which the whole of the case for the prosecution was built, it was not only the duty of the judge but it was the prisoner's right to say that the case against the prisoner had collapsed and that he was not called on to answer the case any further. If it were said to the prisoner that he should go into the box and satisfy the jury that he did not have any of this money, that would be putting the onus on the prisoner." (Italics ours).

None of the two cases to which we have referred above is authority for the proposition which has been canvassed at length before us that an accused person whose submission of no case to answer has been overruled is entitled, by taking no further part in the proceedings, to exclude the co-accused's evidence against him even when that submission is rightly overruled. The co-accused's evidence is lawful and the court may use it as it may deem fit. What R. v. Hogan (supra) decided is that where there is in law a case to answer, one of several accused persons cannot, by refusing to take any further part in the trial, make the incriminating evidence of the other defendants inadmissible against him. This view accords with that in R. v. Aqwuna (1949) 12 W.A.C.A. 456 at page 460 where the court observed as follows:-

"Appellant's Counsel further argued that the evidence was inadmissible because at the stage of the trial at which the second appellant gave his evidence, the first appellant `had refused to take further part in the trial'. We are not prepared to accede to this curious argument. If such were the law, an accused person, by the simple expedient of refusing to recognise the court and take a part in the proceedings at his trial, could stultify and defeat the ends of justice."

Where, however, there is no case for a co-accused to answer at the close of the prosecution's case, he should be acquitted by the trial Judge of the offence charged at that stage of the trial.

As Lord Goddard, L.C.J., observed in R. v. Abbot (supra), overruling the submission in those circumstances and calling upon such a co-accused to testify in his defence, the co-accused is, in effect, being asked to prove his innocence. Under our law, it is not for an accused person to prove his innocence. By virtue of the provisions of section 22 (4) of the Constitution of the Federation, he is presumed to be innocent of the offence charged until the prosecution have proved beyond reasonable doubt that he is guilty of that offence. In the light of the foregoing, it is our view that R. v. AJANI (supra) is no longer good law.

As we had indicated above, there was not a shred of evidence against NDIWE at the close of the prosecution's case, and, as he had at that stage withdrawn completely from the proceedings, the rampart on which he stood was, as it were, unassailable, and it was an error for the learned trial Judge to seek to base his conviction on the evidence garnered from the statements of other co-prisoners.

We were thus not surprised, when the learned Deputy Director of Public Prosecutions representing the State in these proceedings, with commendable candour, stated that he could not support the convictions of this appellant. We, ourselves, share this view.

Accordingly the appeal of Ndiwe succeeds.

The 11th accused HIRANDAND MOORJANI, was convicted on counts 3, 4, 7, 8 and 9. He was the Indian managing director of COMECO (NIGERIA) Limited and the sole signatory of cheques drawn on the company's account with the United bank for Africa, Ltd. (U.B.A.) Ebute Metta branch on all dates material to the charges in these proceedings. In addition to the general ground dealing with insufficiency of evidence, learned Counsel appearing before us on his behalf, relied on a number of grounds set out as hereunder:-

"(1)    The conviction of the appellant on any of the offences with which he was charged was an error in law in that the learned trial Judge failed to warn himself on the need for caution in regard to acceptance of the uncorroborated testimony of the 13th accused person and/or other accused persons who gave incriminating evidence on issues relative to the defence of the appellant.

(2)     The learned trial Judge having found that it was on the 18th October, 1973 Ndiwe spoke "about the money" to the appellant and in the absence of evidence that anybody also discussed the money issue with the appellant before the 18th October, 1973, the learned judge erred by finding that the appellant had made preparations in relation to the money on 17th October, 1973.

(3)     There is no evidence to support the finding of the learned trial Judge on the bills Exhibits 71-71C to the effect that the appellant was unable to settle the said bills. Even though the bills were accepted for settlement as given in evidence, the learned trial Judge failed to advert his mind to the respective dates of maturity of the said bills. By this erroneous finding, the learned trial Judge erroneously convicted the appellant.

(4)     The conviction of the appellant of offences appealed from is inconsistent with the finding of the court that-"Ndiwe was posing as a financier. Comeco Limited management took him seriously", particularly as there was no evidence, except that of Ayodele Ogundepo and the inference therefrom, that the appellant at all times material to the offences, had previous knowledge that the funds transferred to the account of Comeco Limited was going to accrue or had accrued from criminal practices by Ndiwe or any other person.

(5)     The conviction of the appellant was based, inter alia, on the fact that he, with knowledge of conspiracy charged made his bank account available for reception of the proceeds of the resultant crimes. In as much as the said knowledge was not established as required by law, the conviction of the appellant of the offences appealed from is wrong.

"(6)    The respective convictions of the appellant on the counts of conspiracy, forgery, uttering and stealing are erroneous in law in that there was no evidence to support the same.

(7)     In spite of the fact that the learned trial Judge directed himself on the need to isolate prima facie evidence of conspiracy from facts which ought to appear intractable therefrom, the learned trial Judge misdirected himself by applying Section 11 to find that there was evidence of conspiracy to which the appellant was a party. The appellant will contend that there was no evidence that he had fore knowledge that the sum of N252,885.90 was intended for payment into the account of Comeco (Nigeria) Ltd.

(8)     The learned trial Judge misdirected himself that the sum of N252,885.90 was paid into the account of Comeco (Nigeria) Ltd. at the request and with the aid of the appellant. The appellant will contend that the misdirection arose from the failure of the learned trial Judge to consider the defence of the appellant separately from that of the 12th accused.

(9)     The conviction of the appellant on count 9 is wrong in law having regard to absence of evidence that the appellant made any false pretence which was operative in the delivery of the relevant sum of N10,000 and particularly on the finding by the learned trial Judge that Comeco (Nigeria) Limited had had overdraft facilities at the bank concerned.

(10) The conviction of the appellant could, at best, be based on circumstantial evidence but the learned trial Judge failed to direct himself that the evidence did not point irresistibly to the guilt of the appellant.

"(11) The learned trial Judge erred in law by ruling at the end of the case for the prosecution that the appellant had a case to answer whereas no evidence inculpating the appellant had been given against him."

Learned Counsel made submissions in respect of all the above grounds of appeal and his argument may be summarised thus:

(a)     That, as at the close of the case for the prosecution, no evidence had been produced against the appellant beyond that to be gleaned from his 4 statements to the police, Exhibits 2, 3, 43 and 49, the learned trial Judge was obliged as a matter of law to have discharged him after the no-case submission made on his behalf. In support of this proposition, learned Counsel relied on R. v. Ajani- W.A.C.A. p. 3 and R. A. Abbott-[1955]2 A.E.R. p. 899.

(b)     That the defence of the appellant was consistent with guilt as with innocence and it was therefore incumbent on the learned trial Judge to have made an express finding on whether the appellant had knowledge that the sum of N252,885.90, property of the Lagos State Government, was being expected in the account of Comeco (Nigeria) Ltd. On 17th October, 1973 according to the statement and evidence of 13th accused, Ayodele Ogundepo and the account given by the appellant that it was only on 18th October, 1973 that 9th accused informed him that some sizable sum of money had been credited into his company's account at U.B.A., Ebute-Metta. Learned Counsel conceded that, if the appellant had come by the information set out above on 17th October, 1973, then conspiracy might be a reasonable inference, but not otherwise.

(c)     That it was an error for the learned trial Judge to have relied on the evidence of the 13th accused, Ayodele Ogundepo, to convict the appellant without apparently warning himself on the danger of so doing as well as seeking corroboration for evidence so given.

As authority for this proposition Counsel relied on R. v. Prater-44 C.A.R. p.83, Ukat vs. The State-[1965] 1 A.N.L.R. p. 306 and Okolo vs. The State-(1974) 2 S.C. p. 73.

(d)     That the conviction on count 9 of obtaining the sum of N10,000 by false pretences was misconceived in as much as there was uncontroverted evidence from the prosecution that COMECO (Nigeria) to Limited enjoyed overdraft facilities from U.B.A., Ebute Metta.

(e)     That the learned trial Judge erred in the application of Section 11 of the evidence Act (Cap 62, Laws of the Federation of Nigeria) to the case of the appellant.

The learned Deputy Director of Public Prosecutions appearing on behalf of the State urged us to dismiss the appeal of the appellant and affirm his convictions on all counts.

We are not persuaded by the submissions made on behalf of this appellant for the following reasons. We had set out earlier on, what a long line of cases culminating in R. v. Abbott decided and the appellant having elected to give evidence in his own defence, it was quite proper, in our view, for the learned trial Judge to have examined at the end of the trial all the evidence produced against him.

While the record suggests that the learned trial Judge had indeed relied on part of the testimony of the 13th accused, Ayodele Ogundepo as inculpatory evidence against the appellant, it had not been shown on the authorities cited to us that the consequence of so doing, meant that the appellant was entitled to have his appeal allowed.

The rule as to warning on the admission of the evidence of a co-prisoner is clearly a rule of practice dictated by prudence and not a rule of law. Each case must be dealt with on its own peculiar facts. We would like to refer to the following passage occurring at page 86 in the report of R. v. Prater 44 C.A.R. p.83 (supra).

"This Court, in the circumstances of the present appeal, is content to express the view that it is desirable that, in cases where a person may be regarded as having some purpose of his own to serve, the warning against uncorroborated evidence should be given. But every case must be looked at in the light of its own facts and in GARLAND (supra) Humphreys J., delivering the judgment of the court, used words which this Court finds completely apposite to the circumstances of the present case, namely, that if there be clear and convincing evidence to such an extent that this Court is satisfied that no miscarriage of justice has arisen by reason of the omission of the direction to the jury, this Court will not interfere."

The above views are in complete accord with those which we expressed in Ukut vs. The State-[1965] 1 A.N.L.R. p. 306 and Okolo vs. The State (1974) 2 S.C. p. 73.

In Ukut vs. The State (supra) Bairamian J.S.C. in delivering the judgment of this Court observed as follows, at page 312-

"Finally in Stannard (decided in 1962; reported in the 1964 volume of 48 C.A.R. at page 81) the court, after referring to what was said in Prater, went on to say as follows at p. 91:-

'The rule, if it be a rule, enunciated in Prater is no more than a rule of practice. I say deliberately if it be a rule because, reading the passage of the judgment as I have just read it, it really seems to amount to no more than an expression of what is desirable and what, is to be hoped, will more usually than not in cases, at any rate where it seems to be appropriate to the learned judge, be adopted. It certainly is not a rule of law, and this Court does not think that it can be said here that there was any departure in this respect from proper procedure of trial, still less, does it seem that any injustice can possibly have flowed from the undoubted fact that no warning was given in the present trial'."

The record shows in clear and unequivocal terms that there was evidence on which the guilt of the appellant could be inferred even if the so-called inculpatory evidence of the 13th accused had been ignored.

He had made four statements exhibits 2, 3, 43 and 49 which he had adopted at the trial as containing all he knew about the case. In his statement, exhibit 2, made to the police on 19/10/73 he had this to say about the source of the money paid into his company's account:-

"Yesterday 18/10/73 I came to know through the bank that some amount was credited into my company's account. I issued some cheques against payment of the documents and withdrawal of N10,000 by cash and around noon at about 2 p.m. I was informed again by the bank that our account had been embargoed by the Central Bank, as the amount which was credited into the company's account was alleged to have been forged. There was some forgery in the amount credited to the company's account. This was spot-lighted by the Central Bank. I did not know from which department this amount was credited into the company's account. As a normal procedure, the bank has to send a credit advice which we have not yet received."

The above account is in direct conflict with the account contained in his later statements to the police as well as his evidence on oath that money paid into his company's account had come from 9th accused, Ndiwe.

This then became a straight issue of fact and, even if the evidence of the 13th accused were completely ignored, we are satisfied that the lower court had before it material on which it could make the findings which it did, and that there had been no miscarriage of justice.

Similarly, we are not satisfied that the learned trial Judge had erred in the application of Section 11 of the Evidence Act to the case of this appellant.

Section 11 (1) reads-

"Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in execution or furtherance of their common intention, after the time when such intention was first entertained by any one of them is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it; but statements made by individual conspirators as to measures taken in the execution or furtherance of any such common intention are not deemed to be relevant as such as against any conspirators, except those by whom or in whose presence such statements are made."

Section 11 (2) reads-

"Evidence of acts or statements deemed to be relevant under this section may not be given until the court is satisfied that, apart from them, there are prima facie grounds for believing in the existence of the conspiracy to which they relate."

It is plain from the above, that Section 11 as worded, is no more than a statutory re-statement of the principles of law enshrined in the court decisions to which we have adverted earlier in this judgment, when dealing with the charge of conspiracy. Thus, taking the case of this appellant as a whole, and in particular the haste with which he proceeded to spend part of the sum of N252,885.90 once it found its way into his company's account, we think that the learned trial Judge was right in coming to the conclusion that he was a party to the conspiracy charged.

We also think that there was evidence to justify the appellant's conviction on count 9. The learned trial Judge dealt with this evidence in the following manner:

"The evidence of Adeniran is that if the N252,885.90 had not been received into the company's account the various instructions would not have been executed. The N10,000 was paid in cash to the company because Adeniran, the bank manager believed that the company had authority to draw upon the N252,885.90 paid into its account. This is the implied representation referred to in count 9."

This appeal accordingly fails.

The 12th accused, BADREDDINE EL YAFFI, was convicted on counts 1,2,5,6 and 11.

Before us on appeal, learned Counsel representing this appellant relied on the general ground that there had been insufficient proof of his guilt and four additional grounds which read thus:-

"(a) That the learned trial Judge erred in law in convicting the 12th accused on counts-1,2,5,6 and 11 of the charge when there was no evidence linking the appellant with the offence from its inception to its completion.

(b)     That the learned trial Judge erred in convicting the 12th appellant of the offences above when his conduct did not irresistibly point to his participation in the conspiracy or the specific offences charged.

(c)     That the learned trial Judge failed to make specific findings of fact on issues on which the evidence of the 12th accused did not agree with that of the prosecution witnesses and thereby came to a wrong decision on the inference to be drawn on the totality of the evidence.

(d)     That the learned trial Judge failed to direct his mind to the offence of conspiracy as a whole and the separate offences as they affect the 12th accused and thereby came to a wrong decision on the verdict."

It was contended on behalf of this appellant that, although there was evidence that the sum of N268,534.19 moved from the Central Bank to the account of HALABI and ELIAN Limited, there was nothing to identify the appellant with such evidence. It was submitted further that the money so transferred had remained intact and that the appellant had not spent any part of it. Learned Counsel argued that the account of HALABI and ELIAN had been re-opened before the appellant paid the sum of N20 into it and that it was indeed unnecessary to re-open the account for the reception of the sum of N268,534.19 as the learned trial Judge had found. There was also, in Counsel's submission, need for the learned trial Judge to have made specific findings on matters where the evidence of the prosecution and that of the defence was in conflict. One such instance of conflict was the testimony of P.W.10, Obika, who stated that the appellant had told him that he was expecting some money transfer from the Central Bank. This evidence, it was submitted, was denied and the issue remained unsolved. Learned Counsel's argument sounds most ingenious, but we find no substance in it. There was the following evidence against this appellant, which, in our view, the lower court rightly accepted. Although he had been managing the affairs of Halabi & Elian on his own showing since 1972 and there is evidence in Exhibit 17 that the company's account at Barclays Bank had been closed to commission on 25th July, 1973 with nil credit balance, the appellant only started to show interest in the account just before the sum of N268,534.19 found its way therein on 15-10-73.

He admitted in Exhibit 35, the statement he made to the police on 25-10-73 after his house had been searched that he got the 200-leaf cheque book, Exhibit 12 about two weeks previously, that is on 11-10-73 or thereabout.

On 15-10-73 as per Exhibit 67 (the signature card) he got his name entered in the books of Barclays Bank as one other person who could sign in place of Raymond Zahid Elian for the purpose of withdrawing money from the account of Halabi & Elian. On the following day, 16-10-73, he made a token payment of N20 into the account. On that day also, he had told the 10th P.W. Obika that he was expecting some money transfer from the Central Bank. The huge sum about which he was enquiring had in fact arrived on the previous day. It seems to us most significant that Obika was not cross-examined on the damaging evidence he gave.

We are satisfied that the learned trial Judge had before him evidence to justify the conclusions he reached on the case of this appellant and that any finding to be contrary would have been perverse. His appeal lacks merit and therefore fails.

The 13th accused, Ayodele Ogundepo, was convicted on counts 3,4,7,8 and 10.

The only ground of appeal relied on by learned Counsel appearing on his behalf is the general ground which alleges that the decision is unreasonable, unwarranted and cannot be supported having regard to the evidence.

It is pertinent to note that, at the end of the case for the prosecution the learned Counsel representing the State was recorded as having conceded that the appellant should only be called upon in respect of count 10, which charged the receipt of N1,000 knowing same to have been stolen.

This concession, notwithstanding, the learned trial Judge nevertheless, proceeded to call upon him to answer those counts on which he was subsequently convicted.

We should like to say, without taking up much time, that the conviction of this appellant on count 19 of the receipt of N1,000, the property of the Lagos State Government, was due either to a genuine mistake or inadvertence on the part of the learned trial Judge.

The case of the prosecution was that this sum of N1,000 came from the total sum of N10,000 which the 11th accused, Moorjani, had drawn out of the sum of N252,885.90 by means of the cheque, Exhibit "5". The prosecution clearly had a duty to prove this assertion. We shall demonstrate as a matter of Elementary Mathematics that this proof was not available at the end of the case.

We propose to set about this task in two ways. Exhibit "70" the statement of account of COMECO (Nigeria) Limited, shows that the account was in debit by N1,961.32 on 18-10-73 when the sum of N252,885.90 was paid into it. The total sum of N44,000 withdrawn by 11th accused appears to be accounted for by Exhibits 5 and 6 being a cheque for N10,000 cash and N34,000 respectively.

Exhibit 6 was later translated into two cheques for N26,000 (Exhibit 8) and N8,000 (Exhibit 8A) on the instructions of MOORJANI.

Of the cheque for N26,000 drawn in favour of International Bank for West Africa Limited, there is the evidence of P.W.12, Adeniran, the Manager of U.B.A., that N3,000 of this sum was swallowed up by the debit balance of Comeco with that bank (that is, Comeco's account with the International Bank for West Africa Limited).

All this is reflected in Exhibit "70" and it breaks down as follows:-

Total sum

withdrawn    . .       N44,000

Repayments   (a)   N23,000

                       (b)   N8,000 cheque to Bank of the North stopped.

                       (c)   N5000 Cash repaid by MOORJANI per Exhibit 72.    

                       (d)  N3,000 part of N26,000 swallowed up by overdraft of COMECO with International Bank.

The grand total would be N39,000 thus leaving out the sum of N5,000 with MOORJANI. This sum of N5,000 would be further reduced by N1,961.32 which was the overdraft on that account on 18-10-73. By this token the sum unaccounted for would be N5,000-less N1,961.32 or N3,038.68. It will be recalled that the prosecution had sought to show that MOORJANI had N6,000 to pay into the bank and that this appellant had intercepted N1,000 out of it. The prosecution's case was anchored on the premise that N1,000 was received and not an aliquot part thereof. There was certainly no pretence about this at any stage of the case.

Again if we were to approach it from MOORJANI's evidence, the following facts were not in dispute:-

(a)     P.W. 14, Raman drew out £10,000 by means of Exhibit 5 and paid N860 into Comeco's account with International Bank for West Africa Limited.

(b)     Raman said he later handed the balance of N9,140 to Moorjani who there and then put N5,000 into the safe.

(c)     This would leave a balance of only N4,140.

(d)     There was evidence from Moorjani which was not challenged that later that day (18-10-73) he gave the sum of N5,000 to 9th accused, Ndiwe.

(e)     Thus if Moorjani who had a balance of N4,140 after taking account of the N5,000 given to Ndiwe later gave N6,000 to Remedies (P.W. 15) to be paid into the bank, the extra N1,860 must exnecessari be Moorjani's own money, and not part of the N10,000.

(f)     Moorjani gave this evidence on oath and the learned trial Judge did not say he rejected this evidence.

In fact there was no material before him on which he could have done so.