PATRICK OKPALO (APPELLANT)
COMMISSIONER OF POLICE (RESPONDENT)
(1962) N.N.L.R. 14 (1961) All N.L.R. 567
Division: High Court (North)
Date of Judgment: 24th July, 1961
Case Number: Criminal Appeal No. JD/43 CA/1961
Before: Smith, S.P. J.
Appeal from magistrate's court.
The appellant was convicted of forging and uttering a Local Purchase Order and of cheating. At the time of his arrest he produced the Local Purchase Order, but instead of handing it over to the police he swallowed it.
The Prosecution, after proving the above, offered secondary evidence of the contents of the alleged forged document. That evidence was admitted. The Accused was convicted.
On appeal the defence contended that, in a forgery case, unless the original alleged forged document is produced there can be no conviction; and that secondary evidence was improperly admitted in this case.
Secondary evidence of the contents of an alleged forged document, which has been proved to have been in the accused's possession and to have been destroyed or lost, is admissible in evidence on the trial of the accused on a charge of forging and uttering the document.
Cases referred to:-
R. v. Hall, (1872), 12 Cox C.C. 159.
R. v. Barris, (1890) 12 C.C. Ct. Cas. 822.
Law referred to:-
N.R. Penal Code, 1959, (N.R. No. 18 of 1959) sections 364, 366,
APPEAL from magistrate's court.
Ezekwe for the Appellant.
Nasir, Senior Crown Counsel, for the Respondent.
Holden, J. (delivering the Judgment of the court): Appellant was convicted of forging and uttering contrary to section 364 and section 366 of the Penal Code and of cheating contrary to section 322 of the Penal Code. The story told against him is that he went to the shop of K. Chellaram and Sons Limited in Jos on 14th February 1961, and enquired about tobacco. Next day he appeared again with a Local Purchase Order apparently issued by the Prisons Department for tobacco. He was sent away to get it properly signed. When he returned a Prison Officer in uniform was there. Seeing the uniform appellant fled but was caught. He voluntarily produced the Local Purchase Order but instead of handing it over he swallowed it. In his defence appellant maintained there was a mistake as to identity. He was not the man who presented the Local Purchase Order and he knew nothing about it. He went innocently to the shop and was arrested by mistake. The learned Chief Magistrate did not believe him. There was ample evidence to support his findings of fact. Mr Ezekwe however raised several points of law which we will consider separately.
First, Mr Ezekwe submits that as no document has been produced in evidence, there can be no conviction for forgery, on the argument that there is no evidence on which to convict. In R. v. Hall, 12 Cox 159, it was suggested (quoting from the 16th Edition of Archbold at 239) that:-
Upon an indictment for forgery it is the generally understood rule that the prisoner cannot be convicted unless the forged instrument be produced.
While the prosecution held the view that if the document were proved lost then secondary evidence of its contents could be brought in. In his Judgment Cleasby B. said:-
Without at all adopting the rule suggested, that except the forged document is in the possession of, and produced by the prosecutor the forger cannot be convicted it is sufficient for the determination of the present question to say that the principle which requires an original document to be accounted for before secondary evidence of it can be received, must be strictly observed in cases of this description, and it is of the highest importance that this should be so, because it is evident that if the prisoner has not an opportunity of showing the document itself to the jury, and asking them whether on inspection they think it to be forged or not, he is under a great disadvantage. But the prosecution here fails on another ground, viz, that the original instrument is not proved to be lost; on the contrary, it is even proved not to be lost.
The principle there laid down is followed in the 9th Edition of Phipson on Evidence at 569. R. v. Barris (1890) 12 C.C. Ct Cas. 822, is there given as an authority for saying that though not absolutely necessary to produce a forged document, yet a notice to produce laid no foundation for secondary evidence since it compelled the Judge to decide the prisoner's identity, which was for the jury. Thus it is established that circumstances can arise where secondary evidence is admissible; that a mere notice to produce will not be enough; and that the usual principles on which secondary evidence can be admitted must be strictly observed. This is reflected in the 34th Edition of Archbold, where the statement in the 16th Edition quoted supra is modified to read:-
The forged document must be produced at the trial if possible; but secondary evidence can be given if it is in the prisoner's possession and is not produced.
This appears to limit the cases in which secondary evidence is admissible to those where the document is in the prisoner's possession. This is in conflict with the wider statement in R. v. Hall (supra) which requires only strict observance of "the principle which requires an original document to be accounted for before secondary evidence of it can be received." There are several ways of accounting for a document not produced. They can be found in the 9th Edition of Phipson at 567 et seq. Relevant are No. (2) at 567, "When the Original is in the Possession of the Adversary"; No. (4) at 570, "When the Original has been lost or destroyed"; and No. (5) at 571, "When Production of the Original is physically impossible or highly inconvenient." In this case there is evidence, which the learned Chief Magistrate believed, that accused himself destroyed the document by chewing it up and swallowing it. We hold the view that secondary evidence of its contents was properly admitted.
(After referring to other submissions made on behalf of the appellant, which are not relevant to the point reported, the Judgment continued:-) Fifthly, Mr Ezekwe attacked the evidence of the contents of the document. We feel there is little strength in this. There was evidence of three separate people who read the document that it was a Local Purchase Order No. 1354 for four cases of tobacco worth £450 apparently made out by the Prisons Department. Two say it was the Local Purchase Order which appellant later destroyed in their presence. The learned Chief Magistrate's findings of fact on this are amply supported by the evidence. (After referring to a further submission made on behalf of the appellant, which related to the conviction under section 322, the Judgment concluded:-) This appeal is dismissed. The convictions and sentences are affirmed.