MUKORO-MOWOE V. THE STATE

1973-LCER-8037-SC

Other Citations

IN THE SUPREME COURT OF NIGERIA

On Friday, the 30th day of March, 1973

SC.206/1972

Before Their Lordships

TASLIM OLAWALE ELIAS….. Justice, Supreme Court

ATANDA FATAYI-WILLIAMS….. Justice, Supreme Court

AYO GABRIEL IRIKEFE….. Justice, Supreme Court

Between

FRANK MUKORO-MOWOE

Appellant

And

THE STATE

Respondent

HELD:

Appeal dismissed

RATIO DECIDENDI

WORDS AND PHRASES – “PROCURE” – Meaning of

Generally, to speak of one person “procuring” another person to commit an offence clearly implies that the offence is later committed, whereas there is no such implication in the word “counselling”, but since section 7 of the Criminal Code only applies when an offence is actually committed, the distinction is unimportant. It is sufficient to say, therefore, that for the purpose of section 7 (d), the word “procure” should be given its ordinary meaning which imports effort, care, management or contrivance towards the obtaining of a desired end; moreover, because of the above provisions, it is immaterial whether the procurer is present at the time of the act complained of or not. The provisions of section 7, to our mind, covers a case where an offence, such as in the case in hand, is committed by the procurer through an innocent agent. (See R. v. Buill Cox C.C. 281 and R. v. Manley 1 Cox C.C. 104). Per A. FATAYI-WILLIAMS, J.S.C. at P.17, Para. C.

A. FATAYI-WILLIAMS, J.S.C. (Delivering the Lead Judgment): On 29th June, 1972, at the Warri High Court, the 1st accused (now appellant), a legal practitioner, was convicted on six counts-one of conspiracy to commit a felony, three of personation, one of forgery and one of stealing. One Robinson Oye who was tried with him as the 2nd accused was also convicted on all the counts except stealing.

P. 1

The particulars of the first count of conspiracy stated that the accused and one Robinson Oye on or about the 10th day of February, 1967 at Warri, conspired with each other and with other persons unknown to commit the felony of personation. Those of the second, third and fourth counts stated that the accused and Robinson Oye at the same time and place and with intent to defraud counselled and procured Victoria Oye to personate one Okuvberi Bomiaye, David Kome to personate one Michael Okhofasa Bomiaye, and Oshogbo Adehor to personate one Martin Bomiaye. The particulars also stated that the respective personation took place during the swearing to an affidavit with respect to the estate of the late Madam Udoro Elijah. The particulars of the count of forgery stated that the two accused persons forged an affidavit of dependency dated 10th February, 1967, sworn to by Robinson Oye (the second accused) and purported to have been sworn to by Martin Bomiaye. That of stealing stated that Frank Mukoro Mowoe on or about the 30th day of July, 1967 at Warri, stole the sum of 400(pounds) the property of Martin Bomiaye, Michael Okhuofasa, Okuvberi Bomiaye and Robinson Oye.

The facts giving rise to the prosecution and of the accused may be summarised as follows. Some time in 1965, Madam Udoro Elijah died in a motor accident in Warri. She was survived by three children, namely: Martin Bomiaye (8th P.W.) who is the eldest of the three, Michael Bomiaye and Okuvberi Bomiaye. She was also survived by her younger brother Robinson Oye (2nd accused). At the time of his mother’s death, the 8th P. W. was a soldier attached to the 9th Brigade of the Nigerian Army, and stationed in Lagos. He went to Warri for the funeral ceremonies. On his return to Lagos after the funeral, the 8th P.W. received a letter from Robinson Oye in which he stated that an insurance company had agreed to pay the sum of 1,000(pounds) as compensation for the death of Madam Elijah Robinson Oye also wanted the 8th P.W. to go to Warri to see him about the matter but he replied that he could not go because the civil war was on and the Mid-West had then been occupied by the rebel forces.

P. 2

A few months later, the 8th P.W. went to Warri. When he asked Robinson Oye about the 1,000(pounds) paid by the insurance company, Robinson Oye said he had claimed the money in accordance with some arrangement between him and the lawyer whom he (Robinson Oye) had engaged for the matter. The lawyer is Frank Mukoro Mowoe, the first accused (now appellant). The 8th P.W. then went to see the appellant. He asked him if he knew anything about an insurance claim in respect of which he had received instructions from Robinson Oye. The appellant at first replied that he knew nothing about the claim. As the 8th P.W. was about to go away, the appellant called him back and then told him all about the claim. The 8th P. W. narrated what he was told as follows:

“He said that the insurance company paid him 1,000(pounds) in respect of my mother’s death and he shared it with the 2nd accused my uncle.
I asked for the name of the insurance company and the papers which passed between him and the insurance company. The 1st accused told me that the papers had been forwarded to India. He did not tell me the name of the insurance company.”

As he already knew of an Indian insurance company in Lagos, the 8th P. W. returned to Lagos and went to their office in Balogun Street to enquire about how much they had paid as compensation for his mother’s death. The person he saw there refused to disclose the amount. Instead, he asked for a specimen of his signature, and after obtaining the specimen, he took it to another part of the office. He later returned, gave the 8th P. W. some information, and advised him to consult a lawyer.

In view of the information given to him at the office of the insurance company the 8th P.W. went home and wrote to the Solicitor-General of the Mid-Western State.The letter to the Solicitor-General (exhibit A1) is dated 17th July, 1968 and it reads:

“Dear Sir,

A complaint about my mother’s estate .

This is to complain to you about what has been done to my mother’s estate by Barrister Frank Mowoe of Warri and one Mr Robinson Oye my uncle.
On the 25th of April, 1965 my mother, the only one remaining of my parents, my father being dead before I was five years old, died in a motor accident thus leaving me, a junior brother and a sister orphans.

The case was taken to court at Warri and the court awarded one thousand pounds (1,000(pounds)) to my mother’s estate.

P. 3

Mr Frank Mowoe, the lawyer who handled the case and Mr Robinson Oye the said uncle of mine, bargained and shared the 1,000(pounds) or more as they refused disclosing to me the exact amount the insurance company paid, within themselves leaving we the children of the deceased to feel more the pains of being orphan children.

I beg for your entire co-operation so as to recover this money from those who have shamelessly bargained to make me more miserable.”

The 8th P. W. also went and complained to Mr Edwin Clarke, the Mid-West State Commissioner for Finance (7th P.W.). Mr Clarke is a lawyer. He is also a relation of the deceased Madam Elijah. The 7th P. W. advised him to write to the Secretary of the Warri Branch of the Nigerian Bar Association which he did. This second letter (exhibit A) contained the same complaint as in (exhibit A1). A few days after he had been seen by the 8th P. W., Clarke went to Warri and confronted the appellant and Robinson Oye and their middleman with the complaint made to him. He asked the appellant how much he had collected from the insurance company on behalf of the estate of the deceased and he told him that he collected 1,000(pounds). The appellant also told him how he and the 2nd accused had agreed to share the amount equally. The 7th P. W. described what further transpired at the confrontation as follows:

“I asked the 2nd accused in the presence and to the hearing of the 1st accused if he was not aware that the deceased had children. The 2nd accused said that he was well aware that the deceased had surviving children the first son being over 26 years old then. I told the 2nd accused how they came about the money and asked him to tell me the truth as to how they came to claim the money and asked him to tell me the truth as to how they came to claim the money. It was then the 2nd accused told me in presence and to the hearing of the 1st accusead that were expected to swear to an affidavit and he took two boys and his daughter to the 1st accused for the affidavit. I turned to the 1st accused and asked him if in fact the 2nd accused brought two boys and a girl to him who were made to swear to an affidavit and whether he as a lawyer did not know that that was a criminal matter knowing fully well that the three children were in fact not the real children of the deceased.

At this juncture the 1st accused started to tremble. The second accused said that the 1st accused told him that there was nothing wrong in making the children to swear to the affidavit as time was running against them. The 1st accused said that the 2nd accused was the cause of the trouble by not giving a portion of the 450(pounds) paid to him to the children of the deceased.”

P. 4

After the 7th P. W. had told the appellant that he would like to see all the documents exchanged between him and the insurance company which paid the money and the appellant had agreed, the meeting broke up. Later that day, the 7th P.W. contacted Dr Odje and Mr Ogbobine (the Chairman of the Warri Branch of the Nigerian Bar Association) about the complaint and both promised to look into it.

When the appellant failed to produce the documents asked for, the 7th P. W. became suspicious, so he and the 8th P. W. went to the office of the insurance company in Lagos. There, on enquiry, they discovered that the appellant had been paid the sum of (pounds)1,400 which is 400(pounds) more than the amount stated by him. On his return to Benin City that day, the 7th P. W. telephoned Dr Odje and informed him of his discovery. The 8th P.W. also wrote about his doscovery to Robinson Oye, the 2nd accused.

As a follow-up to the letter (exhibit A1), the 8th P.W. went to Benin City to see the Solicitor-General. The same day, the 8th P.W. saw another lawyer (Dr Odje, 2nd P.W.) on the premises of the Ministry of Justice at Benin City. He repeated his complaint to Dr Odje who also promised to bring the matter up at the next meeting of the Warri Bar Association. The 8th P. W. then returned to Lagos.

In 1969, the 8th P.W. left Lagos finally and returned to settle in Warri. He went to see the appellant again and told him that he now knew that the amount paid to him by the insurance company was (pounds)1,400 and not (pounds)1,000. Even at this stage the 8th P. W. indicated to the appellant that he would like the matter to be settled out of court but the appellant still insisted that he was paid the sum of 1,000(pounds) and not 1,400(pounds). When the 8th P.W. was cross-examined about the insurance money, he replied categorically as follows:

“I did not instruct the 1st accused at any time to act for me as my lawyer. I did not authorise the 2nd accused at any time to act on my behalf. I did not at any time sign any discharge certificate for the insurance company saying that the company had paid me all the compensation necessary in respect of my mother’s death. Neither my brother Michael nor my sister signed the discharge certificate to my knowledge.

P. 5

Meanwhile, the letter (exhibit A1) was referred by the Secretary to Mr.Ogbobine (1st P.W. and now Mr Justice Ogbobine) who was then the Chairman of the Warri Branch of the Nigerian Bar Association. Mr Ogbobine invited the appellant to come round and see him about the contents of the letter. The apellant admitted to Mr Ogbobine that he had claimed the sum of 1,000(pounds) from an insurance company in Lagos on behalf of Madam Elijah-s estate, that out of this sum, he paid the sum of 100(pounds) to the middleman who introduced Robinson Oye (2nd accused) to him, and that out of the balance of 900(pounds) he took his fees of 450(pounds) and paid the balance of 450(pounds) to Robinson Oye. Mr Ogbobine later saw Robinson Oye who confirmed all that the appellant had told him. When told about the complaint to the Bar Association, the appellant told Mr Ogbobine that Robinson Oye did not tell him that the deceased woman was survived by any child. Robinson Oye also confirmed this and told Mr Ogbobine that the deceased woman was his sister and that she had no children before her death.

On hearing this, Mr Ogbobine decided to refer the mater to the meeting of the Warri Branch of the Nigerian Bar Association. A number of meetings were summoned to discuss the matter, but, according to Mr Ogbobine, only one was successful, and it was at this meeting that both sides gave their respective versions of the matter. At this meeting, the appellant confirmed to those present (which included Dr Odje and Mr Okor, the Secretary) that he only received the sum of 1,000(pounds) from the insurance company on behalf of the deceased’s estate. What transpired later after the meeting was described by Mr Ogbobine as follows

“Later as a result of the information which I received, I called the first accused and asked him if in fact he collected the sum of 1,400(pounds) from the insurance company of the estate of the deceased woman. He admitted that he actually received 1,400(pounds) and not 1,000(pounds). I later brought this information to the attention of the 2nd accused person. After this, the 2nd accused person kept worrying me that I should get the 1st accused to pay the sum of 400(pounds) to him. I told him that the question of paying the money to him was out of the question.”

P. 6

Dr Odje (2nd P. W.) also confirmed that he ws present at the meeting of the Bar Association in Warri when the appellant admitted to them that he received only 1,000(pounds) from the insurance company. He also stated that the appellant, at that meeting, said that he did not know anything about the existence of Martin Bomiaye (8th P. W.) and that the agreement reached between him and the 2nd accused before he accepted his instructions was to the effect that whatever was claimed should be distributed as follows:
10 per cent to the middleman who introduced the 2nd accused to him, and the balance to be shared equally between him and the 2nd accused. This, explained the appellant to Dr Odje, was because the 2nd accused was unable to pay any money in advance towards his out-of-pocket expenses.

Victor Okor (10th P.W.), the Secretary of the Warri Branch of the Bar Association who was present at the same meeting also confirmed that the 1st accused, after much pressure by the Chairman (1st P.W.), said he received only 1,000(pounds) from the insurance company. Immediately after the meeting, however, the appellant, he further stated, told him that the sum received by him from the insurance company was 1,400(pounds) and not 1,000(pounds).

Apparently, after the appellant and Robinson Oye had reached agreement as to the sharing of the insurance money if and when paid, they procured Victoria Oye (6th P.W.) the daughter of Robinson Oye, and her two counsins, Oshogbo Adeghor and David Kome, to respectively personate Okuvberi Bomiaye, Martin Bomiaye and Michael Owhofasah Bomiaye, the three children to the deceased. This was because the insurance company, in their letter to the appellant (exhibit T4) required an affidavit of dependancy from the claimants. The story of the procurement was told by Victoria Oye (6th P.W.) as follows. Some time in 1967, her father, Robinson Oye (the 2nd accused) told her and her two cousins that the appellant would like to see them. As a result, the three of them followed the 2nd accused to the office of the appellant. At the office, the appellant asked for their names and they told him. After writing down the three names, the appellant asked them to return the following morning at 7 a.m. The next morning, the three of them and the 2nd accused went again to the office of the appellant. The appellant told his clerk to take them to the Magistrate’s Court registry; he said he would join them there later. With the clerk, they all went to the Magistrate’s Court premises. At about 10 a.m. the appellant came to join them and took them into the registry where he had a discussion with one of the officials there. After the discussion, the appellant gave the 2nd accused a paper (exhibit E) to sign and he did. A lady then asked him to swear to an oath on the Bible and he swore as requested. The appellant then turned to the other three. What transpired at this juncture was described by the 6th P. W. as follows

P. 7

“After my father the 2nd accused had gone out of the office, the 1st accused gave me a paper and asked me to sign over a name on the paper. I asked him if the name is Victoria Oye and he said ‘No’. The name which he asked me to sign over is Okuvberi Bomiaye. I asked the 1st accused if I should sign Victoria Oye over the typewritten name and he said that I should sign Okuvberi Bomiaye. I then signed Okuvberi Bomiaye on the paper. After I had signed a lady gave me a Bible to swear and I swore accordingly. When I was swearing, the 1st accused was in the office by me. I see (exhibit E). I signed above the name Okuvberi Bomiaye on (exhibit E) . . . After I had signed on (exhibit E), the 1st accused gave the same paper to Oshogbo Adeghor and David Kome to sign in my presence. The 1st accused asked the said Oshogbo Adeghor to sign over the typewritten name of Martin Bomiaye in (exhibit E) which he did. Next the 1st accused asked David Kome to sign over the name of Owhofasah Bomiaye and David Kome did so in my presence. Each of Oshogbo Adeghor and David Kome swore on the Bible as I did. (exhibit E) was not read to me before I signed it. I did not know the contents of (exhibit E) before I signed it. After the three of us had signed (exhibit E), the 1st accused asked us to go and we went out of the office to meet the 2nd accused. The 2nd accused asked us what we did in the registry and we told him. Thereafter we went home.”

The contents of this affidavit of dependency (exhibit E) which the four had sworn read-

”We, Robinson Oye, Martin Bomiaye, Okwofasah Bomiaye, and Okuvberi Bomiaye, each severally of 45, 18, 15, 12 years old, each severally Nigerian citizens, make oath and say as follows-

1. That we are the dependants and heirs of the late Madam Udoro Elijah.

P. 8

2. That Madam Udoro Elijah, died on the spot, in a motor accident involving Lorry No. WW.893 along the Okpari/Ughelli Road, on the 26th April, 1965.

3. That at the time of her death, we were all wholly dependent on her for our livelihood, maintenance and upbringing.
4. That with the exception of Robinson Oye, a fisherman, who was also fully dependent on her, the rest of us her children, were fully dependent on her for our schooling and livelihood.
5. That since her death, we have been left helpless and hopeless,and have tried unsuccessfully to fend for ourselves.
6. That our youngest sister, Okuvberi Bomiaye, with great difficulty, attends

school with the assistance of Robinson Oye.
7. That we make this affidavit, honestly believing the same to be true and in furtherance of our claim.”

Both Martin Bomiaye (8th P. W.) and Michael Owhofasah Bomiaye (9th P.W.) who are two of the dependents of the deceased woman, denied swearing to the affidavit in (exhibit E) or signing the document. The 9th P. W. further stated that since his mother died, he has not received a penny from the 2nd accused.

With this affidavit, the appellant went to see the manager of the insurance company in Lagos. Indeed, the affidavit was duly stamped after it had been received by the company in Lagos as follows:

”RECEIVED
LAGOS
20 FEB. 1967
THE NEW INDIA ASSURANCE COMPANY”

Sonny Bobo Amadi, the clerk responsible for motor claims in the office of the New India Insurance Company, Lagos, described the action taken on the claim as follows

P. 9

“The first accused put up a claim for 6,000(pounds) on behalf of the beneficiaries of the deceased (Madam Elijah Udoro) who were being represented by the 2nd accused. After some negotiation we paid the 1st accused 1,400(pounds).

The 1,400(pounds) was paid in two instalments. The first instalment was 1,300(pounds), and the second was 100(pounds). The two payments were made by cheques. The cheque for 1,300(pounds) was issued to the 1st accused on 19/7/67 in his name. The cheque for 100(pounds) was issued on 26/7/67 also in the name of the 1st accused.”

Solomon Bamidele (3rd P.W.), a member of the staff of the Balogun Square Branch of the Barclays Bank, Lagos, testified that both cheques (exhibits B and C) were duly honoured and paid.

In his statement (exhibit T1) made to the police about the matter, the appellant stated that the agreement reached with the 2nd accused about the claim was that if it succeeded, they would share the proceeds fifty-fifty, but that if it did not succeed it would be labour lost. He denied that he knew that the three deponents to the affidavit (exhibit E) were not the dependants of the deceased. He said it was Robinson Oye (2nd accused) who produced them and introduced them to him as the dependants of his dead sister. He admitted, however, that the four of them deposed to the affidavit (exhibit E) before the Commissioner for Oaths in the Magistrate’s Court Registry at Warri on 10th February, 1967. With respect to the amount paid by the insurance company, he explained that a lot of correspondence was involved before agreement was reached and attached some of the letters to the statement (exhibit T1). He further explained how the agreement was reached as follows-

A representative of the insurance company arrived in Warri on the 16th of July, 1967 and after very serious bargaining the claim was finally compromised for 1,400(pounds) (Fourteen hundred pounds only). Robinson signed the insurance discharge form for this amount, and I sent it to the insurance company.

P. 10

I reported this to my client, and on an agreed date, Robinson Oye, Uborgu Okievor and I met. This amount was disbursed as agreed, and Mr Okievor got his agreed commission of 2 percent in the pounds from Robinson and I.”
There was nothing in the statement indicating that he had paid 400(pounds) out of the amount realised to any member of the staff of the insurance company.

In his defence on oath, the appellant denied taking the three children to the Magistrate’s Court to swear. He denied that the 2nd accused brought any of them to him on the day the affidavit was sworn to or that he interviewed any of them or that they told him their true names. He denied telling the 2nd accused to produce three other persons to represent the deceased’s children. He repudiated the allegation that he was in the Magistrate’s Court registry at the time the affidavit was sworn to or that he knew that the contents were false. He denied conspiring with the 2nd accused or with anybody else to procure anybody to personate any of the children of the deceased.

The appellant did admit, however, that he received the sum of 1,400(pounds) from the insurance company but said that 400(pounds) out of this amount was for the manager of the insurance company who had demanded this sum before he agreed to “compromise the claim for 1,400(pounds)”. He said the manager did not give him a receipt for the sum of 400(pounds) paid to him. He described the reaction of the 2nd accused to the payment as follows
“I told the 2nd accused the claim was actually compromised for 1,000(pounds) and 400(pounds) extra which was paid was for the manager of the company and that I had paid the 400(pounds) to the manager. The 2nd accused maintained that by our agreement he was to et 50% of the amount realised and waiver paid to the manager of the Insurance company was part of my expenses. It was out of difficulty that I agreed to this. After the cheque had been cleared I agreed to pay the sum of 700(pounds) to the 2nd accused being 50% of what the company paid to me and I had to bear the loss of the 400(pounds) paid to the manager of the insurance company alone. I paid the sum of 700(pounds) to the 2nd accused by cash in the presence of Chief Ubogun.”

P. 11

The appellant also admitted under cross-examination that he knew from the very beginning when he was briefed in the matter that he was acting not only for the 2nd accused but also for the other dependents of the deceased. He said that at no time did he tell anybody that the 2nd accused was the sole beneficiary. When questioned about the admission he made to the members of Warri Bar Association as to the amount received from the insurance company, the appellant replied:

“I paid the sum of 400( to the manager of the insurance company. At the meeting of the executive council of the Bar Association, Warri, I did not tell the 1st prosecution witness, 2nd prosecution witness, 10th prosecution witness, and others who were present at the meeting that I received only 1,000(pounds) from the insurance company which was shared 5050.
I told the Chairman of the meeting the next day that I actually received 1,400(pounds). “

The appellant had earlier stated that he did not tell Edwin Clerke (7th P. W.) at any time that the amount which he received from the insurance company was 1,000(pounds).

In his judgment, the learned trial judge completely rejected the defence put forward by both the appellant and the 2nd accused person. On the three counts of personation, he observed as follows-

“The fact that the 1st accused said in this court that he did not set his eyes on the 8th and 9th prosecution witnesses before the money claimed from the insurance company neither has he ever seen Okuvberi, goes to establish that some other children were used in place of the 8th and 9th prosecution witnesses, and Okuvberi to swear to (exhibit E) and that those three other persons personated the 8th and 9th prosecution witnesses and Okuvberi. “The learned trial judge said that the witnesses called by the prosecution impressed him as witnesses of truth. On the evidence of Victoria Oye (6th P.W.) which dealt specifically with the offences of personation and of the forgery of the affidavit (exhibit E), the learned trial judge found as follows:

P. 12

“I however believe and accept her evidence when she said that she was taken by her father the 2nd accused to the chambers of the 1st accused where they were interviewed by the 1st accused and that the next morning the 1st accused asked his clerk to take her, David Kome, Oshogbo Adeghor and the 2nd accused to the Magistrate’s Court registry where the 1st accused later met them. I believe and accept the 6th prosecution witness’s evidence when she said that David Kome, Oshogbo Adeghor and herself told the 1st accused their right names before the 1st accused made her to swear to (exhibit E) as Okuvberi Bomiaye. I believe her when she said that the 1st accused told her to sign Okuvberi Bomiaye on (exhibit E). I also believe and accept the 6th prosecution witness’s evidence when she said that the 1st accused told Oshogbo Adeghor to swear to (exhibit E) as Martin Bomiaye the 8th P. W. and told the said Oshogbo Adeghor to sign Martin Bomiaye’s name on (exhibit E), which the said Oshogbo Adeghor did.

I believe and accept the 6th prosecution witness’s evidence that the 1st accused told David Kome to swear to (exhibit E) as Owhofasah Bomiaye and to sign the said Owhofasah Bomiaye’s name on (exhibit E) which David Kome did.”

The learned trial judge then observed that he had no doubt that the 6th P. W. was an accomplice to the offences of the forgery of the affidavit (exhibit E) and of the personation of Okuvberi Bomiaye. After warning himself of the danger of convicting on the uncorroborated evidence of an accomplice, he found corroboration in the evidence of Robinson Oye (2nd accused) who said that it was the 1st accused who asked him to procure any three children and that he subsequently procured the 6th P. W., David Kome and Oshogbo Adeghor to swear to (exhibit E) falsely representing themselves as the persons whose names they had signed. The learned trial judge, in this connection, also observed that the evidence of the 2nd accused, who was a co-accused, should not be treated as that of an accomplice. He further found corroboration in the statement of the appellant to the police (exhibit T1) and also in the fact that he went down on his knees and begged Edwin Clarke (7th P. W.) when Clarke asked him if he did not know that it was a crime to get other children to personate the deceased’s children.

P. 13

As for the charge of stealing the 400(pounds), the learned trial judge found as follows:

“I have no doubt at all in my mind that the 1st accused concealed the sum of 400(pounds) from the meeting of the executive of the Bar Association Warri Branch, from the 2nd accused, the 7th and 10th prosecutIon witnesses because he intended to convert the money to his own use and he actually converted it to his own use. The 1st accused disclosed to the 1st and 10th prosecution witnesses later that he actually got 1,400(pounds) because the game was up as it had been discovered by the 1st and the 7th prosecution witnesses that he actually received 1,400(pounds). I do not believe the evidence of the 1st accused when he said that he gave 400(pounds) to the manager of the insurance company. In my judgment this is an afterthought put up to mislead the court.”

The learned trial judge then found the appellant guilty of stealing the sum of 400(pounds) as charged. He also considered the totality of the evidence and found both Robinson Oye and the appellant guilty as charged in the other five counts. Robinson Oye did not appeal against his conviction.

In the appeal now before us against this decision, Chief Williams who appeared for the appellant made a number of submissions. First, he contended that as there is no provision in the Criminal Code of the Mid-Western State for the offence of conspiracy to commit a felony within the State, the conviction of the appellant for this offence was erroneous. Secondly, he submitted that the learned trial judge was in error in relying on the evidence of the 6th P. W., who was found to be accomplice, to support the conviction of the appellant on the counts of personation, forgery of (exhibit E), and conspiracy, because that evidence was not corroborated. In this connection it was also contended that the evidence of the 2nd accused being also that of an accomplice should have been treated with caution and should not have been regarded as corroboration. Chief Williams also made the point that the acts and omission relied upon by the prosecution are not capable of supporting the conviction of the appellant on the counts relating to offences of personation and forgery. The conviction for the theft of 400 was also attacked on the ground that it was based on certain assumption of facts which were not proved beyond reasonable doubt.

P. 14

With respect to the charge of conspiracy, learned counsel referred to the decision in The State v. Emezie & 4 0rs.SC. 373/1970 delivered on 15th October, 1971 (now reported in (1970-71) 1 E.C.S. L.R. p. 178) where this Court held that once section 516 of the Criminal Code of the Federation of Nigeria was omitted from the Laws of Eastern Nigeria 1963 and those Laws had come into force and no Order for its omission was made under section 5 of the Revised Edition (Laws of Eastern Nigeria) Law, 1961, the learned trial judge was right in holding that there was no case to answer on a charge of conspiracy since no such law existed in Eastern Nigeria at the material time. We were also referred to section 516A of the ferent from those of section 443 of the Criminal Code (Cap. 28 of the Laws of Western State of Nigeria which is still applicable in the Mid-Western State of Nigeria). We do not see the relevance of the above case and of the provisions of section 516 to the case in hand. The appellant was charged with conspiracy under section 443 of the relevant Criminal Code, the provisions of which read-

“443. Any person who while in the State conspires with another to commit any felony or to do any act not in the State which if done in the State would be a felony against the law of the State and which is an offence against the law of the place where it is proposed to be done, is guilty of a felony and is liable, if no other punishment is provided, to imprisonment for seven years, or, if the greatest punishment to which a person convicted of the felony in question is liable is less than imprisonment for seven years, then to such punishment.”

We must point out at this juncture that the above section is a merger of the provisions of section 516 and 516A of the Criminal Code of the Federation. If the word “or” in the second line of section 443 is construed disjunctively (as it should be construed bearing in mind the provisions of section 48 of the Interpretation Law of Western State of Nigeria which is also applicable in the Mid-Western State), it is beyond doubt that the section deals with two types of conspiracy which can be committed by any person while in the State, namely, conspiracy to commit a felony, and conspiracy to do an act not in the State but which is a felony if done in the State and which is also an offence against the law of the place where the act is to be done. There is therefore no merit in the contention that there is no provision in the Criminal Code of the State for the offence of conspiracy to commit a felony within the State. This ground of appeal therefore fails. The next point taken by Chief Williams is that there is no independent evidence of the conspiracy, the only evidence being that of personation from which conspiracy could be inferred, and that if there is no personation, there could be no conspiracy. While we agree with this proposition, we are also of the view that the testimony of Victoria Oye (6th P.W.) which the learned trial judge accepted, clearly showed that there was conspiracy to commit the felony of personation and that in pursuance of this conspiracy the appellant and the 2nd accused procured the said Victoria Oye to personate Okuvberi Bomiave while David Kome and Oshogbo Adeghor were also procured to personate Michael Owhofasa Bomiaye and Martin Bomiaye respectively. The learned trial judge accepted and defence that the 6th P. W. was an accomplice to the offences of personation and of forgery. This view was also urged upon us in this court. A close look at the provisions of section 414 of the Criminal Code of the Western State under which the appellant was charged shows, however, that the 6th P.W. on the available evidence, could not be regarded as an accomplice to the offence of personation.

P. 15

The section reads:

“414. Any person who, with intent to defraud any person, falsely represents himself to be some other person, living or dead, is guilty of a felony, and is liable to imprisonment for three years. “

It is quite clear that mere personation of another person, as the 6th P. W. and the other two had done in the case in hand, is no offence under section 414. To constitute an offence under the section, the personation must be with intent to defraud some person. It was never suggested by either the prosecution or the defence, nor was there any evidence to that effect, that the 6th P.W. in personating Okuvberi Bomiaye at the Magistrate’s Court registry in Warri, had any intent to defraud any person. The totality of the evidence in this respect showed that she was an innocent agent procured to personate one of the dependents of the deceased Madam Udoro Elijah. It seems to us that the intent to defraud, as shown by the evidence which the learned trial judge accepted, was, throughout, in the appellant and the 2nd accused.

While on this point, we would like to point out that the appellant was charged with and convicted of the offence of personation by virtue of the provisions of section 7 (d) of the Criminal Code which reads

P. 16

“7. When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say-

(d) any person who counsels or procures another person to commit the offence.”

It is also provided in the fourth paragraph of the same section that-

“Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission,the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with himself doing the act or making the omission. ”

Furthermore, the personation in the present case is completed as soon as the persons procured represent themselves to be the other persons. The signing of any document following the personation, while it could form the basis for the offence of forgery, has little or nothing to do with the actual offence of personation. Chief Williams, in the course of his submissions, referred us to the decision in R. v. Kake (1960) N .Z.L.R. 595 where Barrowclough, C.J. observed at p. 598 as follows

P. 17

“To constitute personation, there must be an intentional passing off in the character of another person, and like any other intent required to be established, this can only be done by considering what was in the mind of the accused himself as evidenced by his overt act. “This observation brings out the point we have already made. There is evidence that the appellant and Robinson Oye, with intent to pass them off as the children of Madam Elijah and also with intent to defraud, procured the 6th P. W. and two others to personate these children. Because there was no evidence that they had any intent to defraud, the 6th P.W. and the other two personators were innocent agents and could not therefore be regarded as accomplices. The question as to whether the evidence of the 6th P.W. was corroborated or not is, therefore, irrelevant to the conviction of the appellant on the counts of conspiracy and personation. In any case, while the learned trial judge should have treated the testimony of the 2nd accused with caution, (see Ukut v. The State [1965] All N.L.R. 306), we are, nevertheless, of the view that if corroboration had been necessary, the contents of the statement (exhibit T1) which the appellant made to the police, provide ample corroboration for the testimony of the 6th P. W. Corroboration was also provided by the testimony of Edwin Clarke (7th P.W.) as to what happened when he confronted the appellant with the allegation of the 8th P.W. There is, therefore, no merit in the points urged upon us with respect to the offences of conspiracy and personation. As for the conviction for the offence of stealing the sum of 400(pounds), the learned trial judge found as a fact that the appellant told at least three persons that he received on behalf of the estate of the deceased the sum of 1,000(pounds) whereas what he had actually received was the sum of 1,400(pounds). The explanation of the appellant, which the learned trial judge found to be an after thought, was that he paid the sum of 400(pounds) out of the amount he had received back to the manager of the insurance company, presumably as a bribe for settling the claim. The appellant must have realised that, from the moment the amount was received by him and paid into his account, it was held for and on behalf of the dependants of the deceased. In this connection we refer to the definition of stealing in section 324 (1) of the Criminal Code. It reads

P. 18

“324 (i)-A person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.”

It is also provided in subsection (2) a thereof that a person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with the intent “permanently to deprive the owner of the thing of it.”

To sustain the charge of stealing the sum of 400(pounds), it is therefore immaterial whether the appellant converts the money either to his own use or to the use of the manager of the New India Insurance Company as he had admitted. The offence was committed as soon as the amount was paid to the manager of the Insurance Company. We, therefore, have no doubt whatsoever that he was rightly convicted of stealing the amount.

The only count which has given us some anxiety is count 5 where the appellant and Robinson Dye were convicted of forging the affidavit of dependency dated 10th February, 1967 (exhibit E). With respect to this count, Chief Williams submitted that the trial judge himself was not sure as to who was procured to sign this document and that since the principal witness in respect of this count is Victoria Oye (6th P.W.) who, because of her own admission, was clearly an accomplice to the offence of forgery ,the appellant should have been given the benefit of the doubt. In reply, Mr Gbemudu, the Director of Public Prosecutions, Mid-Western State, referred us to the evidence of the 6th P.W. and submitted that since this witness was believed by the learned trial Judge, the conviction of the offence laid in count 5 was in order.

Admittedly, in dealing with the offence of forgery of (exhibit E) in count 5, the learned trial judge did not advert to his finding as to the evidence of the handwriting expert (13th P.W.) who was unable to say who signed the forged signatures in (exhibit E). This finding, it will be recalled, reads
“I wish to say here and now that the handwriting analyst’s evidence is not helpful as to the writer of items 2, 3, and 4 on (exhibit E) since he said he found it difficult to relate the specimen handwritings to the disputed ones as regards items 2, 3, and 4. It is not disputed that item 1 on (exhibit E) was signed by the 2nd accused as also found by the 13th prosecution witness himself.”

P. 19

Moreover, although he considerd the need for corroboration and concluded that there was corroboration for the testimony of the 6th P. W. vis-a-vis the charge of personation, the learned trial judge did not appear to refer to any avidence which could be considered as corroborating the evidence of the 6th P. W. with respect to the forgery of (exhibit E). He merely found as follows
“The signature of Martin Bomiaye is, admittedly, on the evidence before the court, not signed by the 8th prosecution witness but by Oshogbo Adeghor or at least any other person procured by the two persons to do so.”

Surely, if the identities of the persons procured to sign the documents are not clearly proved, not much credence could have been given to the testimony of the 6th P. W. who had described in detail how David Kome, Oshogbo Adeghor and herself had been procured by the appellant to sign the document in the names of some other persons. It is possible that the 6th P. W. was genuinely mistaken as to who signed what.

Therefore, we think for the above reasons, that the charge of forgery as laid was not conclusively proved and that the learned trial judge should have given the appellant the benefit of the doubt with respect to count 5.
The conviction in respect of the charge of forgery as laid in count 5 cannot, therefore, be allowed to stand. The appeal on this count is allowed and the conviction and sentence passed on the appellant in this respect are accordingly set aside. The appellant is aquitted and discharged on this count only.

Save as aforesaid, the appeal against the convictions for the offences of conspiracy in count one, of personation in counts two, three, and four, and of stealing in count seven is completely devoid of merit and it is dismissed.
Appeal dismissed, save as to conviction of forgery.

Counsel

Chief F.R.A. Williams (S.I. O. Giwa-Amu and Dr D.D. Mowoe with him)
for the 1st accused/appellant……For Appellant

And

A.N.E. Gbemudu, Director of Public Prosecutions, Mid-Western State
(G. O. U. Okugbowa, Senior State Counsel, with him) for the respondent……For Respondent

Add to LawKit (0)