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.
Thes