Abioye v. State (1987)

[1987] 2 .
Abioye v. State

            
1.
T. A. ABIOYE

            
2.
LAWRENCE A. ADENIRANYE

            
3.
OLUSOLA ADEDEJI

V.

THE STATE

COURT OF APPEAL

(KADUNA DIVISION)

CA/K/57/85

ABUBAKAR BASHIR WALI, J.C.A. (Presided),

EPHRAIM OMOROSE IBUKUN AKPATA, J.C.A. (Read the Leading Judgment)

JOSEPH DIEKOLA OGUNDERE, J.C.A.

WEDNESDAY, 10TH DECEMBER, 1986

CRIMINAL LAW – Conspiracy – Meaning of under Penal Code and Criminal Code.

CRIMINAL LAW – Suspicion – Effect.

CRIMINAL LAW AND PROCEDURE – Substantive charge and conspiracy – Acquittal on substantive charge – Effect on conspiracy charge.

Issue:

Can an accused person acquitted of committing the substantive offence be convicted of conspiracy?

Facts:

The appellants were charged (1) under section 97 Penal Code with conspiracy to do an illegal act and removing from Societe-General Banks Computer Room signature cards of Kwara State Government and Ilorin Local government authority; (2) abetting the commission of the offence of forgery punishable under section 85 Penal Code and (3) stealing the sum of N375,180.50k and N178,851, the properties of the state government and the local government respectively punishable under section 286 of the Penal Code.

The evidence of the prosecution against the appellants was that the 1st accused/appellant, the computer room supervisor of the bank was away on leave

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between November – December, 1979 and PW3 look over from him. On a certain day when PW3 was in charge of the computer room, the 3rd accused/ appellant, the accountant whose duty did not involve doing anything in the computer room walked into the computer room and removed unspecified number of signature cards from the room and proceeded to produce photocopies from them in another section of the bank.

Not long after the 3rd appellant had removed and photostated some signature cards, certain cheques in custody of the 2nd appellant (a clerk in the bank having custody of the banks cheques between November 1979 and May 1980) found their way into the hands of certain person or persons who forged the signature of the respective signatories to the accounts on six cheques and withdrew a total amount of N375,180.50k from the account of the State Government and N178,851.28 from the account of the local government. Before these cheques were encashed they were verified and approved for payment by the 1st appellant who had returned from leave.

The trial judge discharged and acquitted the three appellants in respect of the 3rd charge of stealing. The 3rd appellant was also discharged on the 2nd charge of abetting while all the appellants were found guilty of the 1st charge of conspiracy and each of them was sentenced to a term of three years imprisonment.

Being dissatisfied the appellants appealed to the Court of Appeal. It was contended by the appellants that since they were acquitted of committing the substantive offence it was wrong to convict them of conspiracy –

Held:

1.
To some extent it is a general principle of law that an accused person cannot be convicted of conspiracy where he has been acquitted of committing the substantive offence.

2.
It is not in every case that an accused person who has been acquitted In respect of the substantive offence must be acquitted of the offence of conspiracy; thus where a co-accused admits the conspiracy and or there is other evidence to sustain the conspiracy count even though other counts fail the court can still convict on the conspiracy count.

3.
In an information where accused persons are arraigned on substantive charges as well as on conspiracy, it is advisable for a Judge to deal in his judgment with the substantive charges first as acquittal or conviction in those charges have a probative value on the charge of conspiracy.

4.
Since in the instant case the same facts were adduced in evidence to prove the count of conspiracy to commit forgery as well as other counts of forgery and stealing, and the two substantive counts having tailed and there being no other evidence to support the count of conspiracy, the trial court should have discharged the accused persons on the count of conspiracy as well.

5.
More often than not it does not require direct evidence to establish conspiracy.

6.
It is wrong to infer from the failure of a bank official to detect a number of forged cheques and nothing more, that he conspired with others to commit forgery and theft.

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7.
In a Criminal Case if the conclusion reached is only a reasonable conclusion but not the only irresistible inference the guilt of the accused cannot be grounded on it.

8.
Whilst under the Penal Code, criminal conspiracy involves an agreement to do an illegal act and in addition the doing of the act in pursuance thereof, under the Criminal Code, it is the agreement to do an unlawful act that constitutes the offence of conspiracy.

9.
Suspicion however strong, is not legal evidence on which to convict an accused person.

Nigerian Cases Referred to in the Judgment:

Enahoro v. R. (1965) 1 All NLR 125

Haruna v. State (1972) 8-9 SC 172

Ikhane v. The Commissioner of Police (1977) 6 SC 119

Ikonne v. State (1981) 2 NCR

Nnaji v. I.G.P. (1952) 2 FSC 18

Ogbozor v. I.G.P. (1964) 1 All NLR

Foreign Cases Referred to in the Judgment:

R. v. Cooper and Compton 32 Cr App. Report 102 (1947) 2 All ER 701

R. v. West (1948)1 KB 709

Nigerian Statutes Referred to in the Judgment:

Criminal Code Act

Evidence Act 1962, Laws of the Federation, Section 11

Penal Code Sections 97, 286, 96(2)

Appeal:

This was an appeal from the decision of Ilorin High Court which convicted the appellants. The Court of Appeal however allowed the appeal.

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Kaduna

Names of Justices that sat on the Appeal: Abubakar Bashir Wali, J.C.A. (Presided): Ephraim Omorose Ibukun Akpata, J.C.A. (Read the Leading Judgment): Joseph Diekola Ogundere, J.C.A.

Appeal No.: CA/K/57/85

Date of Judgment: Wednesday, 10th December 1986.

High Court:

Name of High Court: High Court of Justice, Ilorin Name of Judge: Oyeyipo, .J. (Now C.J Kwara State)

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Counsel:

P. A. Olorunnisola – for I st Appellant.

David Babalola – for 3rd Appellant

R.A. Afolabi DDPP (Kwara State) – for Respondent.

AKPATA, J.C.A. (Delivering the Leading Judgment): What is conspiracy? Does it require direct evidence to establish it? Can an accused person acquitted of committing the substantive offence be convicted of conspiracy? Can it be inferred from the failure of a bank official to detect a number of forged cheques that he conspired with others to commit forgery and theft? These are the questions which have surfaced in this appeal.

Between November 1979 and February 1980 Olusola Adedeji, the 3rd appellant, was the Accountant of the Societe Generale Bank Nigeria Ltd. Ilorin. The 2nd appellant, Lawrence Adeniranye, who did not prosecute his appeal was a clerk in the Bank having custody of the Bank’s cheque between November 1979 and May 1980. The 1st appellant, Timothy Abioye, was the Computer Room Supervisor of the Bank and his duty was to verify all signatures on cheques presented by customers he being in charge of specimen signature cards.

Sometime in April or May 1980 it was discovered that some cheque leaves which were forged had been encashed and debited against the accounts of Kwara State Government and Ilorin Local Government. As a result of investigations carried out charges were preferred against the three appellants at the High Court of Justice Ilorin to the following effect:

(1)
Conspiring to do an illegal act and removing from the Bank’s Computer Room signature cards of the Kwara State Government and Ilorin Local Government Authority, thus facilitating the forgery of the signatures of the signatories to the cheques of the State Government and the Local Government and the stealing of total sum of N375,180.30 and N178,851.28 belonging to the State Government and the Local Government respectively, punishable under Section 97 of the Penal Code.

(2)
That the 3rd appellant abetted the commission of the offence of forgery hy making available to some persons the said signature cards from which the Specimen signatures were forged, punishable under Section 85 of the Penal Code.

(3)
Stealing the sum of N375,18030 and N178,851 the properties of the State Government and the Local Government respectively, punishable under Section 286 of the Penal Code.

The three accused persons were discharged and acquitted in respect of charge 3. The 3rd accused was also discharged in respect of charge 2. All the accused persons were found guilty of the first charge and each was sentenced to a term of three years imprisonment. The three accused persons filed notices of appeal, and as I have pointed out the 2nd accused did not prosecute his appeal before us.

[1987] 2 .
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(Akpata, J.C.A.)
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Before dealing with the substance of the appeal, it is necessary to give a synopsis of the facts of the case adduced before the learned trial Judge Oyeyipo, J. (now the Chief Judge of Kwara State). Going by the case for the prosecution, the 1st accused, the Computer Room Supervisor, was on leave between November to December 1979. PW3, Idowu Morakinyo, took over from him. On a certain day when PW3 was in-charge of the Computer Room, the 3rd accused, the Accountant, whose duty did not involve doing anything in the Computer Room, walked into the room and removed unspecified number of signature cards from the room and proceeded to produce photo-copies from them in another Section of the Bank. While taking the signature cards away he refused to let PW3 look at them when he requested him to show them to him.

PW3 drew the attention of PW2, Ganiyu Azeez, and PW12, Najeem Jimoh, who were also on duty in the Computer Room to what the 3rd accused had done. PW3 later saw some photo-copies of the signature cards on the table of the 3rd accused on that day. Testifying on the same issue PW2 claimed that “as a result of the report, I went to the table of the 3rd accused to confirm whether he (3rd accused) in fact took some signature cards from the Computer Room. On the 3rd accused’s table I saw two photocopies of signature cards. I reported what I saw to Mr. Morakinyo. Mr. Morakinyo and I checked the Bank’s Ledger cards and we discovered that the Ledger cards had amount of N10-N32 debit. As the amount discovered in the ledger card were minimal, I did nothing further about the matter”

Not long after the 3rd accused had removed and photostated some signature-cards, certain cheques in custody of the 2nd accused found their way to certain person or persons who forged the Signatures of the respective signatories to the accounts of the State Government and the Local Government on six cheques and withdrew a total amount of N375,180.30 from the account of the State Government and N178,851.28 from the account of the Local Government. Before these cheques were encashed they were verified and approved for payment by the 1st accused who had returned from leave.

It is necessary to state at this stage that the procedure was for the 1st accused to refer cheques above his limit to the Manager, Michael Neaves, PW13, after verification for his approval. The 1st accused would refer such a cheque either to the Accountant (the 3rd accused) or to ALhaji Yusuf Salihu, PWI1 the Loans officer. The 1st accused in fact referred the cheques Exhibits 4 to 8 to PW 11 and he authorised payment.

In February, 1980 the 3rd accused resigned his appointment with the Bank following his refusal to go on transfer to Lagos.

At the time relevant to this case, Abdulrahim Salman (PW7) was the Accountant in the Ministry of Finance Ilorin and was in-charge of expenditure control and issuing out of Government cheques and reconciliation of accounts. At the time material to this case he could not reconcile his account because the Societe General Bank did not forward bank statement in respect of the State Government’s account with the Bank. As complaint to the Accountant of the Bank yielded no result, he reported the matter to the Accountant-General of the State Government Uthman Sadiq, PW8, who then Wrote the Bank.

The Bank then forwarded a Statement of account. In the process of reconciling the account, PW7 noticed an entry in the statement of account a

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strange cheque No. 119575 bearing the sum of N375,180 which has no bearing with the Government’s Cheque book in his possession. The cheque is Exhibit 9 with the forged signatures of PW8, the Accountant-General, and PW9 Suleiman Bayero, the Chief Accountant, who were two of the signatories to the Government account.

Also on 8/5/80 during reconciliation of account, Alhaji Abdulahi Onagun, PW10, who was the Treasurer to Ilorin Local Government, discovered that some “foreign” cheques were debited to the account of the Local Government. He wrote to the Bank. The foreign cheques turned out to be Exhibits 4, 5, 6, 7 and 8.

The signatures of PW 10, and PW14, Samuel Adebite the Secretary to the Local Government, were forged on the cheques. The two officers PW10 and PW14 were the signatories to the account of the Local Government with the Bank.

After necessary investigations had been carried out the accused persons were arrested by the Police. The statement of the 1st accused was taken by PW1, Sgt. Raymond Yusuf. At the trial counsel for the 1st accused objected to the statement being admitted in evidence on the ground that it was not voluntary. ‘A trial within a trial’ was conducted. The learned trial Judge in his ruling upheld the objection and accordingly rejected the statement.

The statement of the 2nd and 3rd accused persons Exhibits 20 and 21 respectively were recorded by Ibrahim Abu, Inspector of Police who was PW6.

At the close of the case for the prosecution the 1st accused opted not to testify and called no witness. Both the 2nd and 3rd accused persons testified in their defence but called no witness.

In his defence the 2nd accused testified that when as a result of investigations carried out in the Bank it was discovered that some cheque leaves were forged in respect of the accounts of the State Government and the Local Government he, the 2nd accused, checked and found that he did not issue the cheque books containing the forged cheque leaves to anybody – He however told PWI3 the Manager that when he had earlier discovered the loss of the cheque books he was scared to report the loss to him. The 2nd accused was suspended on 12/5/80.

On the same day the 3rd accused who had resigned his appointment about three months earlier came to meet the 2nd accused in the Bank to inquire if anything had gone wrong. The 2nd accused told him that nothing had gone wrong. As early as 7a.m. on the following day the 3rd accused went to meet him in his house and asked him why he had been suspended. Because PWI3 had warned the 2nd accused not to disclose the reason for his suspension to anyone so that those involved in the theft of the cheque books would not know of the discovery of the theft, he told the 3rd accused that he was suspended for insubordination.

According to the 2nd accused “the 3rd accused felt worried and trembled”.

The 3rd accused then advised him to go to Lagos to the Bank’s Secretary and promised to help him financially if he had no money to travel to Lagos. According to the 2nd accused the 3rd accused was not used to visiting him at home. When he was later invited to the Police Station the 2nd accused told PW6 that the movements of the 3rd accused gave room for suspicion. He then told PW6 that:

“On 25/1/80 3rd accused signed and collected a cheque book for a customer named Julius A. Oyinloye. He collected this cheque

[1987] 2 .
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book in my absence and he signed for it. I also told the investigator that the 3rd accused resigned from the Bank immediately the fraud was carried out”.

He also disclosed to PW6 that one Alhaji Mohammed Said opened an account in the name of a company know it as Kenton Kwara Supply and deposited the sum of N10,000 on the same day and that he gave him cheque books the following day for the account.

He stated further that:

“It is the same day that the 3rd Accused removed Oyinloye’s cheque from my drawer that the two cheque books from which the forged cheque leaves were taken were missing. I did not report the loss to 3rd accused. This is because I felt worried about what the management might do to me about the loss. 3rd Accused had left the Bank when he came to me on 12/5/80. Exhibits 4 to 8 are cheque leaves from the cheque books that were stolen from my custody. Exhibit 9 is a cheque leave of the second booklet that was stolen”

In his defence the 3rd accused denied entering the Computer Room and removing signature cards as alleged by the 2nd, 3rd and 12th prosecution witnesses and said that no one was permitted to enter the room without the permission of the supervisor. He never had cause to photo-copy anything in the Bank. His relationship with PW3 had never been cordial. PW3 was in the habit of falsifying over-time claims. On one occasion he had to report him to the Manager and a disciplinary action was taken against him. As a result PW.3 was not given annual increment. PW2, PW3 and PW12 were all friends.

The only photo-copy machine in the Bank was on the table in front of one Sunmola and no one could photo-copy any document without the permission of Sunmola. His own table was open to every member of the staff. He sat in an open office so as to oversee everything that was going on. He testified further as follows:

“It is true that I collected a cheque book for one Mr. Oyinloye who sent a duly completed and signed requisition form through one of his clerks. The form was passed to 2nd accused who brought the cheque book to my table after making necessary entries. I never collected any cheque book from his drawer. The box containing the cheque book is always kept in the strong room. The box will be brought out on each working day but cheque books are never kept in a drawer. Cheque books are regarded as important security documents and as such are kept on a well secured box by the 2nd accused. No cheque book can be taken without 2nd accused’s permission. PW13 told me about my transfer early in November, 1979 and I told him my reasons why I would not go. I protested against the transfer and when the management insisted that I should come to Lagos on transfer, I resigned … It was Mr. Sunmola who told me that Adeniranye (2nd accused) was on suspension for insubordination. I never saw 2nd accused on 12/5/80 at all. It was one Ameh Victor Bolarin who told me that 2nd accused was no longer in the Bank to help him. I said I was going to see 2nd accused to know what has happened to him …

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It is true that I visited 2nd accused on 13/5/80 but it was not at 7 a.m. It was after 1O’clock p.m. after collecting my Children from University of Ilorin Staff School … 2nd Accused and I were very close. So it is not true that I am not used to visiting him”.

In his judgment the learned trial Judge found as a fact that the 3rd accused on or about November, 1979 entered the Computer room and removed therefrom some signature cards. The Judge went on to say:

“Having regard to what subsequently happened to the Accounts of Kwara State Government and Ilorin Local Government, it is not unreasonable to conclude that Exhibits 1 & 2 were included among the signature the evidence of 2nd accused that the 3rd accused visited him on or about 13/5/80 and that on hearing of the suspension of the 2nd accused … I accept the evidence of 2nd accused that the 3rd accused visited him on or about 13/5/80 and that on hearing of the suspension of the 2nd accused the 3rd accused felt worried and trembled. I observed the demeanor of the 3rd accused in the witness box. He quibbled and prevaricated and behaved as some one who was tenaciously bent on telling untruths”

In respect of the 2nd accused the learned trial Judge said:

“His oral evidence given on oath and his cautional statement Exhibit 20 leaves me in no doubt that he intended to make a clean breast of the allegation against him. He has however not told the whole story.”

He was satisfied that the signatures of PW8 and PW9 in respect of the State Government’s account and signatures of PW10 and PW14 relating to the Local Government’s account were forged on cheques kept by the 2nd accused with a view of withdrawing the amounts stated thereon from the respective accounts. He further observed:

“Again there is ample evidence which I accept that the 2nd Accused threw procedures overboard when he gave out cheque books to one Alhaji Said without proper banking procedure. This Alhaji Said was said to be the operator of Kenton Kwara Supply Company. It was into that account that the sum of N375,150.30 stolen from Kwara State Government Account was paid”.

He also held that it was the 1st accused who verified each of the cheques Exhibits 4 to 8 before they were paid. He then went on to say:

“It is indeed surprising that the 1st accused who in his capacity as Computer Room Supervisor must be regarded as an expert in the verification of signatures did not see the apparent disparity in the signatures contained in Exhibit 9 and that contained in Exhibit 1. … It is equally surprising that the rapidity with which money was being paid out of the Account of Kenton Kwara Supply Co. did not attract the attention of 1st Accused who was verifying all the cheques notably Exhibits 9, 10, 12, 13, 14,15, 16, 17 & 18”

The learned trial Judge dealt with the legal concepts of the offence of conspiracy and had no hesitation in concluding from the acts and conduct of the three accused persons there was agreement to commit illegal act to defraud

[1987] 2 .
Abioye v. State
(Akpata, J.C.A.)
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by forgery and theft. He was of the view that the fact that the 1st accused was on leave when the 3rd accused removed the signature cards from the computer room was irrelevant. He therefore convicted and sentenced the three accused persons accordingly. It is the appeal filed against the judgment that has now come up for consideration. The grounds of appeal of the 1st accused stripped of the particulars read:

I.
That the judgment of the trial court is unreasonable unwarranted and cannot be supported having regard to the evidence.

II.
The trial court misdirected itself in law and in fact in convicting the 1st accused for performing his normal duty without proof of negligence in the performance of such duty and no evidence of agreement between the 1st appellant and the others.

III.
The trial court erred in law when he convicted the appellant of conspiracy to remove signature cards of Kwara State Government and Ilorin Local Government when there is no evidence before the court that such cards were removed from the Computer room or from anywhere else through or by the appellant.

IV.
The trial court erred in law in basing conviction of the appellant and two others in inferences when all inferable evidence should in fact acquit the appellants.

V.
The trial court erred in law in passing a sentence under an apparently non-existent section because the sentence passed on the appellant exceeded that provided under S.97 of the Penal Code.

VI.
The court erred in law in convicting the 1st appellant upon the uncorroborated evidence of an accomplice.

VII.
The trial court erred in law in convicting the Appellant of conspiracy only on the ground of his verifying the cheques.

VIII.
The trial court erred in law in convicting the appellant of conspiracy when he had already acquitted him of the substantive offence.

The Grounds of the 3rd accused read:

I.
That the decision is unreasonable or cannot be supported having regard to the evidence.

II.
The trial Court erred in law when he Convicted the Appellant of conspiracy to remove signature Cards of Kwara State Government and Ilorin Local Government when there is no evidence before the Court that such cards were removed from the Computer room or from anywhere else through or by the Appellant.

III.
The trial Court erred in law in passing a sentence under an apparently non-existent Section because the sentence passed on the Appellant exceeded that provided under Section 97 of the Penal Code.

Being of some importance I wish to deal first briefly, with the first appellant’s ground 8. To some extent it is a general principle of law that an accused person cannot be convicted of conspiracy where he has been acquitted of committing the substantive offence. In the case of Nnaji and Others v. Inspector-General of Police (1957) 2 FSC 18 cited by learned counsel for the first appellant, the

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Federal Supreme Court held that the appellants in that case could not properly be convicted of conspiring to assume to act as judicial officers after they had been found not to have assumed to act as judicial officers. The decision of the Federal Supreme Court in that case was based on the case of Rex v. Cooper and Compton (1947) 2 All ER 701.

I will like to state that it is not in every case that an accused person who has been acquitted in respect of the substantive offence must be acquitted of the offence of conspiracy. (See Ogbozor v. I.G.P. (1964) 1 All NLR 9). In the case of R. v. Cooper and Compton (supra) at page 704 the Court of Appeal in England made it patently clear that “in a great many cases there is no doubt that a verdict of Guilty of Conspiracy, but Not Guilty of the particular acts charged, is a perfectly proper and reasonable one”.

It is not in dispute that there was no direct evidence of acts of Conspiracy against the appellants. Admittedly more often than not it does not require direct evidence to establish conspiracy. The appellants were however acquitted of the charge of stealing. So also was the 3rd appellant in respect of the charge of abetting the offence of forgery. The offence of conspiracy cannot therefore be deduced from either of the alleged substantive offences which were not proved. In the circumstances such as this it requires very strong evidence, if not direct evidence, which will leave no one in doubt that the appellants indeed conspired to forge the signatures of the signatories to the cheques and steal the amounts involved.

The only evidence against the 1st appellant is that it was he who verified each of the forged cheques, Exhibits 4 to 8 before they were paid. The learned trial Judge drew the inference that he conspired with others because he was expected to be an expert in the verification of signatures and therefore ought to have detected the forgery on the relevant cheques. According to the trial Judge “the rapidity with which money was being paid out of the account of Kenton Kwara Supply Company ought to have attracted his attention”. In my view this inference is fallacious in that money was being drawn out from Kenton Supply Company with genuine cheques. It is not the function of a Computer room supervisor to query the rapidity a customer draws money from his account if the cheques are genuine.

There is the evidence that it was the duty of the 1st appellant to refer cheques above his limit to PWI3, the Manager, for approval. In the absence of PW13 he was to refer such cheque to PW11, the Loans Officer or to the 3rd appellant who was the Accountant. The forged cheques Exhibits 4 – 8 were all referred to PW3 and he approved payment. Exhibit 9, another forged cheque, as referred to PW13 who also approved payment. If all the forged cheques had been referred to the 3rd appellant for approval and he approved, one would probably have been justified in drawing the inference that they both conspired as charged.

PWI1 testified to the effect that if he entertained any doubt about any cheque he would stop payment. Although he could detect “apparent difference” between the signatures on the forged cheques and the specimen signatures while in the witness box, he stated that “it is easier to know the difference when there is suspicion about the signature than where there is no such suspicion”. He was

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saying in effect that he was able to detect the difference because he was already aware that the cheques were forged.

In his own evidence under cross-examination PW13, the Manager of the Bank, stated that when he compared the signatures on the forged cheques with the specimens signature they were similar. PW8, the Accountant General who was one of the signatories to the Government account, referring to the forged cheque, Exhibit 9, under cross-examination said “I agree that an unsuspecting person can mistake it for my true signature. I would say the same thing in respect of Alhaji Baycro’s purported signature on Exhibit 9 … Anyone not very familiar with my signature on Exhibit 1 will take my signature on Exhibit 9 as genuine” PW9, Sulaiman Bayero, expressed a similar view about his forged signature on Exhibit 9. In my view it is extremely far-fetched in the light of the evidence before the trial Judge to draw the inference that the 1st appellant conspired with anyone to steal the amounts involved in Exhibits 4 to 9. All that can be held against him is that he was either negligent or incompetent as a Computer supervisor. His conviction was baseless. It is palpably wrong to infer from the failure of a bank official to detect a number of forged cheques, and nothing more, that he conspired with others to commit forgery and theft.

In convicting the 3rd appellant for the offence of conspiracy the learned trial Judge, as I have already alluded to earlier in this judgment, was convinced that he entered the Computer room and removed therefrom some signature cards. He was of the view that “having regard to what subsequently happened to “the accounts of Kwara State Government and Ilorin Local Government, it is not unreasonable to conclude that Exhibits 1 and 2 were included among the signature cards removed by the accused”. Apart from the fact that the conclusion of the learned trial Judge is suspect, it is necessary to point out that in a criminal case if the conclusion reached is only a reasonable conclusion but not the only irresistible inference the guilt of the accused cannot be grounded on it.

In dealing with the second charge the learned trial Judge held that there was no evidence that the 3rd accused committed the offence of abetment or forgery, that is, that he did not instigate or aid anyone to commit the offence. The learned trial Judge was saying unwittingly that the 3rd appellant did not make available to anyone the signature cards or do anything to facilitate the commission of the offence of forgery. Indeed nowhere in the judgment did he specifically state that 3rd appellant must have handed the signature cards to any person or persons who forged the forged cheques. Hence he, no doubt, did not find the 3rd appellant guilty of abetting the commission of forgery.

In my view this is a classical case where an accused person should not be convicted of conspiracy where he has not been found guilty of the substantive offence. It is immaterial that the 3rd appellant “quibbled and prevaricated” in the witness box as found by the learned trial Judge. Also the behaviour of the 3rd appellant after the 2nd accused was suspended by the Bank is also irrelevant since he was found guilty of abetting the commission of the offence of forgery and stealing. He cannot, with the type of evidence adduced by the prosecution, be convicted for conspiracy.

In his judgment the learned trial Judge had this to say:

“Now the gist of the offence of conspiracy is bare engagement and association to break the law whether any act be done in pursuance thereof by conspirators or not”

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As the appellants were charged under the Penal Code the learned trial Judge’s view of what constitutes the offence of conspiracy, I must say with due respect, cannot be correct. It must be borne in mind that under the Penal Code, criminal conspiracy involves an agreement to do an illegal act and in addition the doing of an act in pursuance thereof. As stated by the Supreme Court in the case of Haruna v. State (1972) 8-9 SC 172 at page 200:

“… we must emphasize the fact that the definition of the offence of conspiracy which is in force in the six Southern States is different from that of the Penal Code in force in the six Northern States including North-Western State …. Conspiracy as an offence is nowhere defined in the Criminal Code (which is in force on the Southern States) but since the common law is in force in Nigeria the word must bear the same meaning as in England”.

It is the agreement to do an unlawful act that constitutes the offence of conspiracy under the Criminal Code in the Southern States, but by Section 96(2) of the Penal Code “no agreement except an agreement to commit an offence shall amount to criminal conspiracy unless some act besides the agreement is done by one or more parties to such an agreement in pursuance thereof.”

The position however is that neither under the Criminal Code nor under the Penal Code can the 1st and 3rd appellants be found guilty of conspiracy in the circumstance of this case. The appeal of each of the appellants therefore succeeds. It is allowed. The conviction and sentence of each of them are accordingly quashed. An order of discharge and acquittal is therefore entered in respect of the first charge.

WALI, J.C.A. (Presided): I have read before now the judgment of my learned brother Akpata, J.C.A. and with which I entirely agree.

The appeal of each of the Appellants succeeds and it is allowed. The conviction and sentence of each of them are set aside and in place thereof an order of discharge and acquittal is entered.

OGUNDERE, J.C.A.: I had the privilege to read in advance the judgment just delivered by my learned brother Akpata, J.C.A. and I am in complete agreement with him subject to one or two thoughts which I now contribute.

In an information where accused persons are arraigned on substantive charges as well as conspiracy, it is advisable for a Judge to deal in his judgment with the substantive charges first, as acquittal or conviction in those charges have a probative value on the charge of conspiracy. An authority for this proposition can be found in the case of R. v. Henry Gordon Cooper and Albert Edwin Compton 32 Cr. Appeal R. 102, a case involving charges of conspiracy, stealing and robbery against police officers, at pages 107-108 and 112, the court said –

“The Judge summed up the Jury. After telling the jury the nature of the very simple charges in the four cases which followed, he proceeded to deal with the evidence. Finally having directed them on the facts by way of summarising his observations, the learned Judge said: Those are the whole of the facts. You have to consider

[1987] 2 .
Abioye v. State
(Ogundere, J.C.A.)
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first of all whether you accept the evidence of the prosecution. Are you convinced by the evidence that what the prosecution say substantially happened? You cannot expect a man after a lapse of time to remember every detail exactly, but are you satisfied by the evidence of the prosecution that what they say substantially happened if you are, then you will probably have little difficulty in coming to a conclusion that these men were working in agreement … that was not only the law but the common sense of the matter. If the story of the prosecution was proved, there was conclusive evidence of conspiracy.”

(The jury convicted on conspiracy but acquitted on counts 2-9 dealing with stealing and robbery) … At page 112 the Court said –

“We cannot deal with any acquittal by a jury on the ground that on the evidence it is wrong or unsatisfactory. Therefore we are bound to accept the verdict of not guilty upon counts 2 to 9. In our view, it is impossible for us to say, having accepted those verdicts which certainly were verdicts which the jury were entitled to return that there remained any evidence at all on which the jury could in law return a verdict of guilty upon the charge of conspiracy.”

Our Court Enugu Division, in a unanimous decision per Aseme, JCA. in Ikonne v. The State (1981) 2 NCR p. 264 at p. 268 opined thus –

“In R. v. Cooper (1947) 2 All ER 701 it was held that it is undesirable to include a count of conspiracy in a count for a substantive offence where the prosecution relies merely on the evidence in proof of the substantive offence to prove that of conspiracy. Although this was disapproved of by the Supreme Court in Ogbozor v. Inspector-General of Police (1964) 1 All NLR 9, in Enahoro v. R. (1965) 1 All NLR 125 the Supreme Court considered R. v. Cooper and held in effect that a count of conspiracy may be included in the same information with counts for specific charges which may have been committed in pursuance of the conspiracy but that it is undesirable to do so where such a course would among other things lead to a situation where evidence otherwise properly admissible in proof of a conspiracy charge may be improperly applied in proof of the charge for the substantive offence.”

Thus, the normal rule is that in an information or charge containing counts of conspiracy to commit specific offences which constitute other counts, once the counts on specific offences fail the count on conspiracy becomes unsustainable, and must fail: Cooper & Compton. However, this proposition of the law is subject to some exceptions. Thus where a co-accused admits the conspiracy and or there are other evidence to sustain the conspiracy count, even though other counts fail the court can still convict on the conspiracy count. See Ogbozor v. Inspector-General of Police (1964) 1 All NLR 9 per Bairmian, J.S.C. at 11 and 12 where he said –

“The second additional ground of appeal complains that as the appellant was acquitted on the count of stealing which was the

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particular fraud he was accused of having conspired to commit, it was wrong to dismiss his appeal against the conviction for conspiracy;

“and R. v. Cooper and Compton (1947) 2 All E.R. 701 was cited in support.

In that case the jury convicted the appellants on the count of conspiracy but acquitted them on the counts of specific larcenies alleged against them. The verdict of guilty of conspiracy would only be supported by the general story told by the witnesses whose money was alleged to have been taken, but the verdict of not guilty on the specific counts of larceny removed that support. The Court of Criminal Appeal was therefore constrained to come to the view that –

It is impossible for us to say those being verdicts which the jury were entitled to return that there remained any evidence on which the jury could in law return a verdict of Guilty on the charge of conspiracy.

The learned Chief Justice of Lagos therefore did what was right when, after quashing the conviction on the charges of stealing be considered whether there was evidence left to sustain the conviction on the charge of conspiracy.”

This is in line with Section 11 of the Evidence Act which is now applicable throughout the Federation by virtue of Section 4, of the 1979 Constitution of the Federal Republic of Nigeria, “Evidence” being item 23 in part 1, Exclusive Legislative List in the Second Schedule of the Constitution. Thus in Enahoro v. The Queen (1965) 1 All NLR 125 at 134 to 135 the Supreme Court held as follows –

It was further submitted by learned counsel for the appellant, in regard to count 3, that the inclusion of charges of conspiracy in information operated unfairly against the appellant, since in the absence of charges “of conspiracy in the Information it would have been impossible for the prosecution to adduce evidence of acts done by other persons (not parties charged in the present Information) in proof of the complicity of the appellant in the offences laid in the Information. Counsel referred to R. v. Cooper and Crompton (1974) 32 CAR 102, and R. v. West (1948) 1 KB 709. Learned counsel for the appellant, however conceded that it was open to the prosecution to lay any or all of the conspiracies charged in the Information as overt acts to the first count. That being so, we see no substance in counsel’s submission since it is our view that if in the course of a trial the case for the prosecution suggests that a conspiracy existed between the accused and persons unknown and there is evidence which the court accepts as prima facie ground for believing in the existence of such a conspiracy, the provisions of Section 11 of the Evidence Act, Cap. 62, will apply. That Section reads –

“11(1) 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

[1987] 2 .
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written by any one person in execution or furtherance of their common intention, after the time when such intention was first entertained by any one of them, is 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.

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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.

In the present case, the evidence of the fourth prosecution witness Dr. Sanya Onabamiro, clearly formed the basis for the ruling of the learned trial Judge, at an early stage of the trial, that there was a prima facie case of conspiracy between the appellant and others. We will again refer to Section 11 of the Evidence Act later in this judgment.”

In the case in hand, the same facts were adduced in evidence to prove the count of conspiracy to commit forgery as well as other counts on forgery and stealing. The two substantive counts having failed, and there being no other evidence to support the count on conspiracy, the trial court should have acquitted and discharged the three accused persons including the appellant herein, on the count of conspiracy as well. It is trite law that suspicion however strong as in this case, is not legal evidence on which to convict an accused person. In such a situation the whole evidence led should, at least, have left the trial court in doubt as to the guilt of the accused person to entitle him to an acquittal and discharge on the conspiracy charge. See James Ikhane v. The Commissioner of Police (1977) 6 SC. 119 at 122.

In the circumstances, this appeal succeeds, the conviction and sentence of the appellant in court below is quashed, he is discharged and acquitted.

Appeal allowed.

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