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OLUFEMI BABALOLA & ORS. V. THE STATE(1989)

OLUFEMI BABALOLA & ORS. V. THE STATE

In The Supreme Court of Nigeria

On Tuesday, the 11th day of July, 1989

SC.184/1988

 

JUSTICES

KAYODE ESO   Justice of The Supreme Court of Nigeria

ADOLPHUS GODWIN KARIBI-WHYTE   Justice of The Supreme Court of Nigeria

CHUKWUDIFU AKUNNE OPUTA   Justice of The Supreme Court of Nigeria

PHILLIP NNAEMEKA-AGU   Justice of The Supreme Court of Nigeria

ABUBAKAR BASHIR WALI   Justice of The Supreme Court of Nigeria

Between

 

  1. OLUFEMI BABALOLA
    2. DARLINGTON OMOLE
    3. JOSEPH AIYEGBAYO Appellant(s)

AND

THE STATE Respondent(s)

RATIO

FORGERY DEFINED

forgery is defined as making a false document or writing knowing it to be false, and with intent that it may in any way be used or acted upon as genuine any where to the prejudice of any person, or with intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act any where. Thus, unlike under English Law, it includes a document which tells a lie as well as one which tells a lie about itself Also includes documents made with intent to deceive as well as those made with intent to defraud. PER NNAEMEKA-AGU, JSC

NNAEMEKA-AGU, J.S.C. (Delivering the Leading Judgment): Before an Oyo State High Court holden at Ibadan. Olufemi Babalola, Mufu Talawo, Darlington Omole, Joseph Aiyejare and Adefolaji Aiyefare were charged together on a two count information. Olufemi Bahalola and Mufu Talawo were charged on the 1st count that, on the 20th day of May, 1981, they, with intent to defraud, forged Arab Bank of Nigeria limited Bank Draft No. 021731 for N15.900.00 purporting the same to have been issued by Honey Gay Nigeria Limited. Ilorin, and they thereby committed an offence contrary to section 339 and punishable under section 401(2)(g) of the Criminal Code, Laws of Western Nigeria, 1959. All the five accused persons were also charged together on the second count in that, they, with intent to defraud, obtained 8 rolls (800 square metres) of carpet from Carpet Royal (Nigeria) Ltd .. Ibadan. (to be hereinafter called Carpet Company) by falsely pretending that they were sent and authorised by Honey Gay Nigeria Limited to receive the said carpets.
Evidence called at the trial shows that the said bank draft issued from a non-existent bank. The 2nd accused had on the 16th of May, 1981, called on 5 P.W.. John Mastoroudes, the General Manager of Carpet Royal Nigeria Ltd., the carpet company and applied to be appointed a distributor of the company. 5 P.W told him he could not be so appointed until he had done good business with them for about 12 months. On the 20th of May, 1981, the 2nd accused came to him again in company of four other men and produced a draft of N15.900.00 (tendered as Exh. D1) for 8 rolls of carpet. The 1st accused was directed to the Cashier, Isaac Oluwole Banjo (7 P.W.), who prepared a cash sales invoice on the strength of the draft (Exh. D1). A copy of the cash sales invoice was tendered as Exh. O, the original of which was handed over to the 1st accused. Armed with Exh. O, the 1st accused and his companions one of whom he introduced as his director, went to Lamidi Shittu (4 P.W.). the Store-Keeper and Controller of the Carpet Company. On the strength of Exh. O, 4 P.W. prepared a delivery note, Exh. C, with which the accused persons took delivery of the 8 rolls of carpets in a Mitsubishi bus No. KD7838A, 4.P.W. identified the 1st and 4th accused as among those to whom he delivered the carpets
The bank draft, Exh. D1, was paid by the Carpet company into their hank account. But sometime later, the draft was returned unpaid with the indorsement “Bank Not Existent”

At this point, the Carpet Company reported the matter to the police. On the arrest of the 1st and 2nd accused persons, they volunteered statements. Exhs. A and B respectively, to P.W.1, Inspector Ayeni. As Exh. A., appeared to be confessional, 1st appellant was taken by Inspector Ayeni to an A.S.P. before whom he confirmed the statement. Exh. B appears to be confessional too. Both statements gave details of the part each of them played in the “business.” The police executed some search warrants in the houses of some of the accused persons. In the house of the 1st accused., P.W.6, Inspector Omole executed a search warrant, Exh. E, and recovered Exhibits F-F4, facsimile of bank drafts similar to Exh. D1. They were found in a beer carton ill the corridor of 1st accused’s house. In the house of the 3rd accused he found a roll of carpet which was identified by P.W.3, Mr. Godis, the Production Engineer to the Carpet Company, as their own.
6 P.W. also executed a search warrant in the house of the 4th accused. There he found Exh. J .’97J5 ’97 pieces of carpet already laid on the floor. They were also identified by P.W.3, Mr. Godis, as of the Carpet Company’s manufacture. In the 4th accused person’E2’80’99s statement, Exh. Q, he said he bought it from the 2nd accused in the night of 11/6/81. The 2nd accused had offered to sell it to him at the rate of N20.00 per square metre, that is N600.00 for 20 square metres. But he actually paid him N200.00 that night and later paid him N100.00 again. No body witnessed the transaction, as his wife had gone to work, he said.
Also on execution of a search warrant in the house of which Exh. C, a piece of carpet also identified by Mr. Godis as of the Carpet Company’s manufacture was recovered. In his statement, Exh. M., the 1st accused stated that he bought it from the 2nd and 3rd accused persons at the rate of N40.00 per yard. He said he paid N240.00 for seven yards. They did not issue him with any receipt because they said they forgot the receipt book at Ibadan, he claimed. The police later recovered the carpet in his house. At the close of the case for the prosecution, none of the accused persons testified in his own defence. Only the 2nd accused called one Corporal Ishola to tender a previous statement made by him as Exh. ‘S’ in which he had earlier denied the charge. Thereafter counsel for all sides addressed the court.
At the conclusion of the hearing, the court, Ayorinde, J., carefully analysed all the evidence. He held that the first count was not proved against the 1st and 2nd accused because no witness had come forward to testify that Honey Gay Nigeria Limited, Ilorin, did not exist or that, if it existed, it did not authorise the issuance of Exh. D1, nor that it did not authorise the accused persons to collect the 8 rolls of carpet on its behalf. It follows that the false pretence averred in the charge was not proved. However he held that as it had been shown that the draft Exh. D1 was forged as having been issued from a non-existent bank, stealing by trick had been proved. He therefore invoked his powers under section 174(3) of the Criminal Procedure Act and convicted each of the accused persons of stealing contrary to section 324(1) and (3) of the Criminal Code. He then sentenced the 1st, 2nd, and 4th accused to 4 years imprisonment each and 3rd and 5th accused persons to 18 months imprisonment each.
On appeal to the Court of Appeal Ibadan Division, that Court, coram: Agbaje, J.C.A. (as he then was) Kutigi and Sulu-Gambari, JJ.C.A., dismissed the appeal. The 1st, 3rd and 4th accused persons have appealed further to this court. It does not appear from the record that the 2nd and 5th accused persons appealed. I shall, however, for reasons of consistency, refer to the 1st accused as the 1st appellant, the 3rd accused as the 3rd appellant, and the 4th accused as the 4th appellant.
The 1st and 4th appellants filed their briefs. The 3rd appellant did not file any brief. It does appear that he is no longer interested in pursuing the appeal. I have nevertheless given a careful consideration to his case and am satisfied that the learned trial Judge was right in convicting him and the Court of Appeal right in confirming his conviction. The appeal of the 3rd appellant was, however, struck out.
The two issues framed for determination on behalf of the 1st appellant in his brief were whether:
“(a) the prosecution discharged its burden of proof beyond reasonable doubt that the appellant knew that Exh. D1 was a forged document, and
(b) it was safe to convict the appellant of stealing when there was no proof before the court that he presented Exh. ‘D’ fraudulently.
The respondent agreed that these were the issues for determination.
Learned counsel on behalf of the 1st appellant pointed out that the learned trial Judge decided to discharge and acquit the 1st and 2nd appellants on the 1st count because no witness came forward to testify that Honey Gay Nigeria Limited, Ilorin, did not issue or authorise the issuance of Exh. D1. He argued that by the same token, for failure to call any evidence about/from Honey Gay Nigeria Limited, he should have discharged the 1st appellant on count 2 also. He pointed out that the Court of Appeal was right to have observed the inconsistency in the verdict, but wrong to have gone ahead to confirm the conviction in count No.2. In any event, counsel contended, there is nothing to show that the 1st appellant knew that Exh. D1 was a forgery or that he took the carpets fraudulently. He submitted that from all these the prosecution failed to prove the case against the 1st appellant beyond reasonable doubt. So the Court of Appeal was wrong to have affirmed the conviction. In support of his submissions counsel cited the following cases-
Oteki v. A-C. of Bendel State (1986) 2 N.W.L.R. (Part 24) 648.
Clark v. The State (1986) 4 N.W.L.R. (Pt.35) 381.
Adio v. The State (1986) 2 N.W.L.R. (Pt.24) 581.
Onah v. The State (1985)3 N.W.L.R. (Pt.12) 236.
Okafor v. The State (1965) N.M.L.R. 20.
On the 2nd issue, he submitted that the evidence before the court of trial was not sufficient to sustain a case of stealing. It was not correct that the 1st appellant was one of the persons to whom P.W.4 released the carpets, as held by the court below, he contended, because P.W.4 could identify only the 2nd and 3rd accused persons. He therefore submitted that the Court of Appeal speculated and substituted its own views for evidence not before the court, contrary to the case of Adelenwa v. The State (1972) 10 S.C. 13: He submitted that there was lacking the proof of the necessary mens rea to sustain a case of stealing. Having been discharged on a count of forgery, this was bound to negate a finding of stealing, as there was then an absence of fraudulent intent: Onabamiro v. The State (1968) All N.L.R. 101.
In her brief, the learned counsel for the respondent submitted that the prosecution discharged the burden of proof beyond reasonable doubt and that the 1st appellant knew that Exh. D1 was forged. She drew attention to the evidence of 5 P.W., John Mastoroudes, which showed that the 1st appellant was one of those who came to the Carpet Company to present the draft, Exh. D1, and that the draft was later shown to have come from a non-existent bank. Also the evidence of 6 P.W., Jeremiah Omole, which showed that other bank drafts Exhs. F-F4, facsimile of Exh. D1, were, on execution of a search warrant, found in the house of the 1st appellant. Learned counsel drew attention to other pieces of evidence which clearly implicated the 1st appellant with the offence charged.
I wish to begin my consideration of the case for the 1st appellant by making some observations.
First:- inspite of the massive evidence against the 1st appellant in the trial court, he elected not to give evidence. He was, of course, within his constitutional right: see section 33(11) of the Constitution of the Federal Republic of Nigeria, 1979. But there is nothing in that subsection to preclude the trial court from drawing any inference which the quantum and quality of evidence called against such an accused person warrant. Hence whereas prudence dictates that an accused person should not assist the prosecution which has failed to prove every material ingredient in the case against him by giving them the opportunity of extracting it in the witness box under the fire of cross-examination, it is a reckless harzard to insist on the exercise of that right when the prosecution has made out a prima facie case which calls for the accused person’s explanation but, as did the 1st appellant in this case, he elects not to offer any evidence in explanation.
Secondly: The appellant has, in this court, abandoned the more fundamental issue as to whether or not he had due notice of every ingredient of stealing of which he was convicted in place of the offence of obtaining by false pretences of which he was charged. Having been over-ruled in the Court of Appeal on the point, he does not pursue it as an issue in this court. It is my view that that court rightly applied the principles in the case of Okonofua v. The State (1981) 6-7 S.C. 1 at pp.25-26. That is that section 174(2) of the C.P.A. can be raised at any time before the stage of judgment is reached, but if the accused person fails to make use of the ample provisions in law to enable him answer the charge and meet the anticipated verdict, he cannot complain afterwards of want of due hearing. It follows therefore that this appeal will be decided on the factual issue as to whether there was sufficient evidence to sustain the verdict. Thirdly, as pointed out by the learned counsel for the respondent, what the Court of Appeal said did not amount to an approval or an endorsement of the discharge of the 1st and 2nd appellants on the 1st count by the learned trial Judge. Rather, they expressed their surprise that they should have been discharged inspite of the trial Judge’s findings that they forged Exh. D1. Their Lordships even regretted that the respondent did not appeal against the acquittal. In that state of the facts, I do not think that the appellants can make much out of the acquittal of the 1st and 2nd appellants on count one.
What was therefore the evidence upon which the 1st appellant was convicted of stealing In the first place, the 5th P.W., John Mastoroudes, the General Manager of the Carpet Company, testified that on the 20th of May, 1981, the 1st appellant came to the Carpet company with the 2nd appellant and other men and negotiated for 8 rolls of carpet and purportedly paid therefore with a bank draft Exh. D17 P.W., Mr. Banjo, the Company’s cashier also confirmed dealing with the 1st appellant in the Carpet Company on that day. The draft was later returned unpaid and marked “Bank Not Existent”. Following the arrest of the 1st appellant, among others, P.W.6, Inspector Omole, executed a search warrant Exh. E, in the house of the 1st appellant. As a result, he recovered Exhs. F to F4 – facsimile of bank drafts which are very much like Exh. D1, in a beer carton in first appellant’s corridor. P.W.6 stated that when he recovered Exhs. F-F4, the 1st appellant prostrated and begged him not to take the Exhibits away, but he refused. The witness also stated that when the 2nd accused was later arrested, the 1st appellant attacked him (2nd accused) and accused him of having exposed indiscreetly the whole affair.
In addition to these glaring facts the 1st appellant volunteered a statement, Exh. A, in which he not only confessed to the crime but also gave details of the parts played by himself and other culprits in the execution of their nefarious plan. He owned up the finding of Exhs. F-F4, fake Arab Bank drafts for various sums ranging from N3,200.00 to N20,611.80k. He told the 2nd appellant to go and buy the fake draft, Exh. D1 in the black market, that is at Bristol Hotel Lagos. The 2nd appellant bought eight fake drafts, Exh. D1, to the Cashier. P.W.7. One roll of the eight rolls of carpet was later dropped in his house. All these facts were revealed in his confessional statement. Exh. A. He confirmed this statement before a superior police officer.
There can be no doubt that all this evidence was credible, was believed by the learned trial Judge, and confirmed by the Court of Appeal. The facts amount to stealing by trick in that he and his collaborators in crime used Exh. D1 which was a fake bank draft to induce the Carpet Company to part with possession but not the ownership of the 8 rolls of carpet, valued at N15.900.00 believing that the draft was genuine.
For, I must note that under section 399 of the Criminal Code of Western Nigeria, applicable in Oyo State, forgery is defined as making a false document or writing knowing it to be false, and with intent that it may in any way be used or acted upon as genuine any where to the prejudice of any person, or with intent that any person, may, in the belief that it is genuine, be induced to do or refrain from doing any act any where. Thus, unlike under English law, it includes a document which tells a lie as well as one which tells a lie about itself (R v. Ribon (1869) L.R.I C.C.R. 200). Also the definition in section 399 includes documents made with intent to deceive as well as those made with intent to defraud – again unlike in England (see Re London & Globe Finance Corporation Ltd. (1903) 1 Ch. 728 at p. 732-733). When in the instant case 1st appellant told the 2nd appellant to go and buy Exh. D1, a bank draft at the back of Bristol hotel which he, no daunt, knew was not a bank for purposes of their using it to buy carpets from the Carpet Company, which would innocently accept it as genuine, the two alternative intents were present. There were the intents to defraud and that to deceive. The mere production of Exh. D1, which not only told a lie to wit: that it issued from an existing bank, but also told a lie about itself – that it was a genuine and duly issued bank draft – made it clearly a forgery under section 399. For those were the constituents of the intent to defraud. Also, the moment it was knowingly used to induce the Carpet Company to part with their eight rolls of carpets on the belief that Exh. D1 was a genuine bank draft, the element of intent to deceive was complete. So, the two intents were present. One would have been enough. There can be no doubt that the 1st appellant could not be convicted of obtaining by false pretences because the pretences averred on the charge were not proved. Without calling Honey Gay Nigeria Ltd., it could not be proved. But, as it is not disputed that the learned trial Judge was entitled to consider the alternative verdict of stealing and that the 1st appellant had due notice of the fact that that was being considered, it cannot be doubted that on the above facts, the 1st appellant and his accomplices obtained possession of the eight rolls of carpets animo furandi – in circumstances in which the Carpet Company wanted to part with the possession and not with the ownership of the carpets. The manner of taking, constituted stealing by trick, as held by the learned trial Judge and confirmed by the Court of Appeal. See R v. Mustafa Adegboyega (1937) 3 W.A.C.A. 199, for, consent in such a case is consent freely given and not one induced by trick, threat of violence or detriment or by fraud. See John Edo & Anor. v. C. O.P. (1962) 1 All N.L.R. 92, Oshinye v. C.O. P. (1960) 5 F.S.C. 105. Hence in the case of Murray Okechukwu v. The Queen (1964) 1 All N.L.R. 47 this court held that a person who included in his pay sheet some names of fictitious labourers and thereby got money from the Town Council was guilty of stealing and not obtaining by false pretences. I do not see any difference in principle between that case and the instant case.
The learned counsel for the appellant has argued that it was not proved that the 1st appellant had the necessary mens rea for the offence. In my opinion this is a ridiculous submission. A man who decides to go to purchase carpets with a fake bank draft procured from the black market behind Bristol Hotel. Lagos. who has stored up more of such fake notes for such future business. who had to attack the 2nd appellant for revealing the details of the so-called business and who knew that the fake bank draft he used was drawn on a non-existent bank cannot but intend to steal the carpets which he purported to buy with the draft.
I hold that the appeal of the 1st appellant is completely unmeritorious. I shall now deal with the appeal of the 4th appellant. As I have stated, the 4th appellant had a brief filed on his behalf by one Yaya Aliyu who was not in court. The wife of the 4th appellant in court informed us that she told the lawyer that the case was coming up, but that he said he was not interested. We therefore decided to treat the appeal as fully argued in the brief, in accordance with Order 6 rule 8(6) of the Rules of this Court.
The so-called brief on behalf of the fourth appellant is difficult to comprehend because of the alarming poverty of the language in which it was written and the palpable sterility of its contents. Counsel will do well to appreciate that the set-up, language, contents and arrangement of his client’s brief are the surest indices of his competence as counsel. Counsel has a duty, besides, to check the typographical errors of his clerk as well as all grammatical blunders, whether of his own or of his clerk.
As much as could be distilled from the ‘brief’, it appears that the main complaints on his behalf were that the court below used the extra-judicial statements of the 1st and 2nd appellants, who did not testify, to convict the 4th appellant and that that court wrongly used the doctrine of recent possession of the carpets to the prejudice of the 4th appellant.
If the 1st and 2nd appellants had testified or otherwise adopted their statements Exh. A & B, there would have been no doubt that the 4th appellant participated fully in the commission of the crime charged. For it appears clear from these statements that he agreed from the beginning to join in the business. He was one of those who visited the premises of the Carpet Company on the 20th of May, 1981 and it was he and the 3rd appellant who went and hired a lorry for the conveyance of eight rolls of carpet from the factory, dropped one in the house of the 1st appellant and conveyed the rest to Lagos. I must, however, warn myself that Exhs. A and B which are extra judicial statements of co-accused persons who did not testify at the trial are no evidence against the 4th appellant. See R v. Ajani & Ors. (1936) 3 W.A.C.A. 3. Also R v. Danso (1950/1951) 13 W.A.C.A. 16.
To that extent, learned counsel on his behalf is correct, in theory at any Crate. But the brief failed to point out where the extra-judicial statements of the co-accused were used to convict the 4th appellant. I could not find any myself. Be that as it may, assuming but not agreeing that there was such a lise, I must treat it as a case of wrongful admission of evidence. It can only result his acquittal if there was insufficient other lawful evidence to sustain the conviction: See section 226(1) of the Evidence Act; also R v. Thomas (1958) 3 F.S.C. 8; [1958] SCNLR 98.
But having said so, it is, I believe, the law that any real evidence discovered as a result of statements of co-accused, in this case, Exhs. A anti B would he admissible, but must be interpreted without reference to Exhs. A and B. See section 29 of the Evidence Act. Also R v. Barker (1941).2 K.B. 381. See also: Customs & Excise Commissioners v. Harz & Power (1967) 1
A.C. 760. Now obviously because of the revelations in Exhs. A and B. 6 P.W, Inspector Omole, executed a search warrant, Exhibit H, in the house of the 4th appellant. In consequence Exhibits J-J5. pieces of carpets, already laid on 4th appellant’s floor, and which were identified by the Production Engineer of the Carpet Company. Mr. Godis (P.W.3) to be the Company’s product, were discovered in the house of the fourth appellant. It is my considered view that, subject to any explanations, Exhs . .1 to 15 are material evidence which the court below were entitled to take into account in deciding whether the 4th appellant was a party to the crime charged.
Now, when the 4th appellant was charged and cautioned by the Police, he volunteered a statement, Exh. Q. to 9 P.W .. Sergeant Adeyemo. In Exh. Q. he stated that he bought Exhs. J-J5 from the 2nd appellant on 11/6/81. According to him
On 11/6/81 in the night one Mufutau Talawo came to my house alone that he is now selling Rug and he had used the one he wanted to use but it still remain, he said that if I like to use he would sell my own for me at the price he bought it from the Company. I told him I had no money to buy carpet, he later told me that he would sell the carpet for me at the rate of N20.00. I told him that I will buy and both of us check the one that will be enough for my parlour and it is 20 metres and the amount is N600.00. I told him to go and bring the carpet. On that 11/6/81 in the night Mufutau Talawo brought the carpet to my house and I gave him N200.00 but my wife has gone to work on that day nobody with me in the house when I bought the carpet.
He said he later paid him another sum of N100.00, bringing the total amount which he claimed to have paid to N300.00.
I must pause here to make some observations on Exh. Q. as it stands. For, in my view it raises a number of questions
1. Was 2nd accused a seller of rugs or a user who was then selling some left-over rugs
2. Why was the whole transaction of buying and selling carpets conceived, negotiated and completed in the night And there was no receipt, no other witness but just two of them
3. For a man who in his own words had no need for a carpet and did not budget for it, why the hurry And the buyer was only now, for the first time knowing the seller as a Carpet seller
4. Why should the carpet seller be so anxious as to offer to dispose of his goods at his own purchase price, only to end up selling it for less than the purchase price
5. Is the total cost of 20 metres of carpet at N20.00 each N600.00
Though the 4th appellant ended up paying only N300.00 which is far less than the ex-factory price for the 8 rolls (800 square metres).
I shall bear these life questions in mind when I shall consider the acceptance of the case for the prosecution by the learned trial Judge.
If the only evidence before the court of trial were only Exh. Q, the learned trial Judge might have found it difficult, inspite of the above queries, which might amount only to suspicion, to find against the 4th appellant. For, suspicion, no matter how strong, cannot amount to proof. See Abieke v. The State (1975) 9-11 S.C. 97. No doubt the onus was on the prosecution to prove its case beyond reasonable doubt, including displacing the claim of the 4th appellant in Exhibit Q that he purchased the carpets and was neither a thief nor a receiver.
In the discharge of this important duty, the prosecution, inter alia, called led 4 P.W., Lamidi Shittu, the store and stock controller of the Carpet Company. Part of the record of the court proceedings runs thus:
“I can now identify two of the five men who came to our factory to buy carpets. They are the 2nd and the 3rd accused. CROSS-EXAMINATION BY CHIEF OKUEYUNGBO:- NILL CROSS-EXAMINATION BY MR. BAYO AZEEZ:- I mentioned in my statement to the police that two of the persons who came to me had tribal marks. They are the 2nd and the 4th accused in court. The 4th accused had Auchi tribal marks. I mentioned that these two accused had tribal marks. I did not mention the particular type of tribal marks they have in my statement to the police”.
(Italics mine).
Surprisingly, Mr. Aransi who appeared for the 4th appellant did not ask a single question in cross-examination inspite of the very damaging evidence of 4th P.W. against his client. The learned trial Judge in his well reasoned judgment held as follows:
“The 4th prosecution witness had also identified the 2nd and 4th accused as some of the persons who came to his store on 20th May, 1981 to collect the carpets being now said to have been obtained by false pretences. That witness – the cashier in his evidence aid he could identify the 2nd and 3rd accused as two of such men but to point later and state that he could recognize the 2nd and 4th accused by the tribal marks on them. Witness referred to the tribal marks of the accused as Auchi type tribal marks. Nothing contrary to the witness’s evidence and observation as related by him has come from any other scene in these proceedings”
Later he stated that he believed the evidence of this witness, among others. Looking at the evidence as it relates to the 4th appellant there are good reasons why it should be believed:
First: After 4 P.W. stated in effect that he made a mistake to have mentioned the 3rd appellant instead of the 4th, learned counsel on his behalf did not as much as cross-examine 4 P.W. or even suggest to him that he was lying or that his testimony on the point was an afterthought. On principle, where a witness called by the prosecution gives relevant and material evidence, counsel for an accused has a duty to cross-examine on it or at least indicate that he does not accept it as true. See on this the case of Walter Berkley Hart (1932) 23 C.A.R. 212 at 207; Brown v. Dunn, 6R. 67, 76-7, H.L. 4. If he fails do so, then, unless the evidence itself is inadmissible, illegal, or not worthy of belief, particularly where the defence does not produce another piece of evidence which renders the particular evidence in question improbable, then a court of trial is entitled to accept such evidence as true.
Secondly: In this case, the 4th appellant did not testify at all in his defence or produce any other evidence to the contrary of what the 4 P.W. stated above. In the above circumstances I cannot say that the learned Judge who watched and listened to the 4 P.W. testify was wrong to have believed him on the point that 4th appellant, whom he noted had Auchi type of tribal marks was one of those who, on 20th May, 1981, came to the premises of the Carpet Company and paid for the 8 rolls of carpet with the fake bank draft, Exh. D1, and collected the carpets.
The Court of Appeal held that the above evidence of 4 P.W. was contradictory.
This view, I believe, resulted from a wrong extract from the said evidence. Quoting part of the evidence of 4 P.W., as-
Indeed the 2nd and 3rd accused have such marks,
the learned trial Justices held that the evidence was contradictory. If that were the evidence, their Lordships would have been right. But, with respects, what is on record at page 65 at lines 34 to 35 is:
Indeed the 2nd and 4th accused have such marks.
This error obviously led to the different view which the Court of Appeal expressed on the point. It was this their view of the evidence that led them to go on the doctrine of recent possession. Perhaps their Lordships were right to have held the view that the theory of recent possession applied to carpets which were removed from the Carpet Company’s stores on 20th May, 1981 and from Exh. Q got into the 4th appellants possession on 11th June, 1981 – some three weeks later, although the search warrant was not executed until 23rd August, 1981. But I am of the view that the 4th appellant’s possession of the carpets should more properly be looked at from the point of view of the fact that he was one of those who by trick on the strength of the fake bank draft, Exh. D1, on the 20th of May, 1981, took away from the stores of the Carpet Company eight rolls of carpets of which Exhs. J-J5 form a part. Looked upon from these facts, it will be seen that the Court of Appeal was right to have confirmed his conviction of stealing by trick by the Court of trial. I therefore agree with their confirmation of the judgment of Ayorinde, J., though for a different reason.
The appeal of each of 1st and 4th appellants therefore fails and is dismissed. I affirm the judgments of the High Court and the Court of Appeal.

ESO, J.S.C.: I adopt the facts as stated in this case by my learned brother, Nnaemeka-Agu. J.S.C., whose lead judgment I had the honour of a preview.
I have also gone through the reasoning of my brother and I have decided to adopt them for dismissing as he did the appeals of the first and fourth appellants.
I abide by the order made by my learned brother Nnaemeka-Agu, J.S.C.

KARIBI-WHYTE. J.S.C.: I have had the privilege of reading before now the lead judgment of my learned brother, Nnaemeka-Agu, J.S.C. I agree with his reasoning and his conclusion that the appeal of each of the 1st and 4th appellants fail and should he dismissed.
The facts of this case have been fully stated in the lead judgment. I do not intend to repeat them. I need only reiterate so much of the facts as are necessary for my consideration of this appeal. Th facts of this case stated shortly are as follows:-
The three appellants are among five persons charged in two courts, first with the offence of Forgery contrary to section 399 and punishable under S.401(2) (g) of the Criminal Code. 28 Vol. 1, Laws of Western Nigeria, 1959.
1st appellant, and Mufutau Talawo, 2nd accused were charged together in the first court with the offence of forgery, that on the 20th day of May, 1981, with intent to defraud, they forged Arab Bank of Nigeria Ltd. Bank Draft No. 021731 for N15,900.00 purporting the same to have been issued on behalf of Honey Gay Nigeria Limited, Ilorin.
All the five accused person, among who are the appellants, were in the second court, charged that with intent to defraud they obtained 8 rolls of carpet from Carpet Royal (Nigeria) Ltd., Ibadan by falsely pretending that they were authorized by Honey Gay Nigeria Ltd to receive the said carpets on its behalf.
It is pertinent to observe at once, that although the prosecution gave an impressive mass of evidence, oral and documentary in support of the offences charged, none of the appellants gave evidence in his own defence. The 2nd accused, who like the others, did not give evidence in his own behalf, however called a witness at the trial. The evidence of the prosecution al the trial was that the 1st and 2nd accused persons presented a bank draft of N15,900.00 issued from a non-existent bank, i.e. Arab Bank Ltd., Ilorin to the General Manager of Carpet Royal Nigeria Ltd. The bank draft was payment for 8 rolls of carpet. On presentation and acceptance of the bank draft purported to have been made on behalf of the Honey Gay Nigeria Limited, appellants took delivery of the 8 rolls of carrpet and carried them away. The bank draft was presented for payment by Carpet Royal Nigeria Ltd., into their bank account. Sometime later the draft was returned unpaid with the endorsement “Bank Not Existent”. The General Manager of the Carpet Royal Nigeria Ltd., P.W.3 reported the matter to the police. During investigation of the offence, facsimile of bank drafts similar to the forged one tendered as Exhibit D1 were recovered in a beer carton in the corridor of the house of 1st appellant. A roll of carpet identified by P.W.3., the Production Engineer of the Carpet Royal Nigeria Limited as of the Company’s make was found in the house of 3rd accused. Also on search conducted in the house of 4th accused, pieces of carpet, also identified by P.W.3 as of his company’s make, were found laid on the floor, 4th accused claimed in his statement to the Police Exhibit Q that he bought the carpet from the 2nd accused in the night of 11/6/81 for N600. He said he actually paid N200 that night and N100 subsequently.
Finally, a piece of carpet also identified by P.W.3 was recovered in the house of 1st accused; who claimed in his statement to the Police Exh. ‘M’ he bought the carpet from 2nd and 3rd accused persons at the rate of N40 per yard and paid N240 for seven yards. No receipt was issued to him. As I have already stated, the above was the evidence in support of the case of the prosecution against the accused persons including the appellants in this court. The learned Judge after reviewing the evidence came to the conclusion that the offence of Forgery against the 1st & 2nd accused charged in the first count was not proved. This was because there was no evidence that Honey Gay Company Limited did not exist, or if it did exist it did not authorize the issuance of Exhibit D1, the Bank Draft. Again, there was no evidence that Honey Gay Company Limited did not authorise the accused persons to collect the 8 rolls of carpet on its behalf. However, adverting to the fact that the Bank Draft Exh ‘D1’ which refers to a non-existent Bank tells a lie about itself and constitutes a forgery even if Honey Gay Limited had existed and authorised its issuance, stealing by trick had been established on the evidence. Accordingly invoking powers under section 174(3) of the Criminal Procedure Act, he convicted each of the accused persons for the offence of stealing contrary to section 324(1) and (3) of the Criminal Code. Each of the 1st, 2nd and 4th accused persons were sentenced to four years imprisonment. The 3rd and 5th accused persons were each sentenced to 18 months imprisonment. They all appealed against their conviction and sentence to the Court of Appeal.
The appeal of each of them was dismissed by the Court of Appeal. The conviction and sentence were affirmed.
Only the 1st, 3rd and 4th accused person, have appealed to this court. The 2nd and 5th accused persons have not appealed. It is convenient for me to refer to the appellants as the 1st, 3rd and 4th
appellants, consistent with their numbering in the court below. Otherwise, they would be referred to as 1st appellant, 2nd appellant (3rd accused) and 3rd appellant (4th accused).
I shall consider first the 3rd appellant who did not file any brief of argument, and had not otherwise shown further interest since filing his notice of appeal. He has not the services of counsel. The matter is not one in respect of which counsel ought to be assigned. It seems to me obvious that 3rd appellant is no longer interested in pursuing the appeal. I have carefully considered his case and I am satisfied that on the evidence before him the learned Judge was right in convicting him. The Court of Appeal was also right in the dismissal of his appeal and affirming the conviction and sentence by the trial Judge. The appeal of the 3rd appellant is however struck out for want of diligent prosecution.
It is important to observe that the 1st and 4th appellants did not give evidence at their trial. Appellants are to be taken to have admitted to the extent cross-examination of the witnesses of the prosecution has disclosed the evidence adduced by the prosecution witnesses in support of the case against them.
I shall begin with the consideration of the case of the 1st appellant.
The contention of the 1st appellant in the brief of argument filed by his counsel is that the Court of Appeal was wrong to affirm the judgment of the learned trial Judge which convicted him of the offence of stealing, even though all the elements which could sustain such a conviction were missing.
The issues for determination formulated in respect of the appeal of the 1st appellant in his brief were whether
“(a) the prosecution discharged its burden of proof beyond reasonable doubt that the appellant knew Exh. D1 was a forged document.
(b) it was safe to convict the appellant of stealing when there was no proof before the court that he presented Exh. ‘D1’ fraudulently.”
Respondent in the brief of argument filed agreed with the issues for determination as formulated by counsel to 1st appellant.
The argument of counsel to the 1st appellant in support of the issues for determination was that the learned trial Judge acquitted and discharged the 1st and 2nd appellants on the 1st count of forgery on the ground that it was not established that Honey Gay Nigeria Limited did not exist, and that if it existed there was no evidence that it did not authorise the issuance of the forged Bank Draft Exh. D1. It was therefore contended that the learned  trial Judge having acquitted and discharged the 1st appellant in respect of the 2nd count of obtaining by false pretences. could not have convicted him on the same evidence for the offence of stealing. The necessary mens rea for the offence of stealing was lacking.
It was also submitted that there was no evidence that the 1st appellant knew that Exh. D1 was a forgery or that 1st appellant took the carpets fraudulently. Accordingly, he submitted, the prosecution failed to prove the case against the 1st appellant beyond reasonable doubt. The Court of Appeal was therefore wrong to have affirmed the conviction. Counsel cited and relied on the cases of Oteki v. A-G of Bendel State (1986) 2 N.W.L.R. B (Pt.24) 648; Okafor v. The State (1965) N.M.L.R. 89. In reply to the above submissions counsel to the respondent contended that the prosecution has discharged the burden of proof beyond reasonable doubt and that 1st appellant knew that Exh. D1 was forged. Counsel pointed out from the uncontradicted evidence of the prosecution that 1st appellant was one of those on the evidence of P.W.5, John Mastoroudes, the General Manager of the Carpet Royal, who presented the forged Bank Draft ‘Exhibit D1’, to the Carpel Royal Company, subsequently discovered to have been issued by a non-existent bank. There was also the evidence of P.W.6, Jeremiah Omole, who found the facsimile of Exh. “D1” i.e. forged bank drafts, Exh. F-FA, in the house of the 1st appellant. There was also evidence of the reaction of 1st appellant on the discovery of Exh. F-FA.
The gravamen of the contention of counsel seems to me to be that if the evidence of the prosecution is not sufficient for the conviction of the 1st appellant in respect of the offence of obtaining by false pretences as charged, he cannot be convicted of the offence of stealing on the self-same evidence.
The resolution of this question demands a return to first principles of criminal justice administration. As a general rule, an accused person can only be found guilty in respect of the offence for which he is charged. It is this offence he has pleaded not guilty and in respect of which the onus is on the prosecution to establish the charge beyond reasonable doubt. But there are circumstances where the evidence adduced by the prosecution in support of the charge against the accused has failed to support a conviction for that charge fully establishes the commission by the accused of a kindred offence. It is in this respect interest rei publicae ut sit finis litium, that the courts are empowered to convict an accused person of an offence other than the one with which he is expressly indicted on the charge. Otherwise as was stated in Oyediran & Ors. v. The Republic (1967) N.M.L.R. 122 at p.125,
“It is illegal to convict an accused person of an offence on which he was not charged and unless where the conviction is in respect of a substituted offence as provided by law, it is apparent that such an accused person was neither arraigned nor tried in respect of such an offence.”
This will result in the violation of S.33(6)(a) of the Constitution 1979.
The Criminal Procedure Act has vested the courts with the power to convict for offences not expressly charged. Where in the trial for offences mentioned in Chapter 37 of the Criminal Code, the facts proved in evidence support a conviction for an offence other than that with which the accused is charged, he may be found guilty of that other offence and punished accordingly.
The general provision of S.179 of the Criminal Procedure Act enables the court to convict for the lesser offence supported by the facts proved where a person is charged with an offence consisting of several particulars –  S.179(1) or where the facts proved reduces the offence charged to a lesser offence in respect of which the accused was not charged, – S.179(2). This general provision is in addition to, and not in derogation of the special provision of section 174 of the Criminal Procedure Act. Section 174(3) which is in point in this case provides as follows-
“When a person is charged with obtaining anything by false pretences with intent to defraud and such thing is capable of being stolen and it is proved that the defendant stole the thing he may be convicted of stealing it although he was not charged with that offence”
Thus, on a charge of false pretences the accused can be convicted of stealing where the evidence so warrants. It seems to me that to be able to convict an  accused person by virtue of S.174(3), the following must be established:
(a) The charge against the accused must be in respect of obtaining anything by false pretence with intent to defraud.
(b) The subject-mailer of the charge must be a thing capable of being stolen.
(c) The accused must have been proved to have stolen the thing.
(d) The evidence must have failed to prove the offence of obtaining by false pretences.
Applying the above principles to the facts of this case, it is accepted that
(i) The 2nd count in the information against the appellants accused appellants of the offence of obtaining by false pretences.
(ii) The subject matter of the count is 8 rolls of carpet which is a thing capable of being stolen within the definition of the offence in S.383 of the Criminal Code – See Ojiko v. I.G.P. (1956) 1 F.S.C. 62; [1956] SCNLR 171, R v. Vega (1938) 4 W.A.C.A. 8.
Thus, to support a conviction of stealing by the application of S.174(3) it must be established on the evidence that the appellants have stolen the 8 rolls of carpet.
There is the finding by the learned Judge and accepted by the Court of Appeal that appellants had by means of fraudulent tricks, i.e. Exhibit “D1” the forged Bank Draft induced the Carpet Royal Nigeria Ltd., to part with its property, namely the 8 rolls of carpet- See R v. Ninedays (1959) 4 F.S.C. 192. There was evidence that appellants actually took delivery of the 8 rolls of carpet from the Carpet Royal Nigeria Limited.
The Court of Appeal having accepted these findings cited and relied on section 324(1) of the Criminal Code in coming to the conclusion that the offence of stealing had been committed.
Section 324(1) provide as follows –
“A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own or to, the use of any other person anything capable of being stolen, is said to steal that thing”
Hence, to be sustained, the facts relied upon by the trial Judge for the conviction of the appellants, and which the Court of Appeal affirmed must satisfy the essential requirements I have outlined above.
What then are those facts relied upon Counsel to the 1st appellant submitted that after his acquittal and discharge on the offence of forgery, there was no basis for finding fraudulent intent. He cited and relied on Onabamiro v. The State (J968) All N.L.R. 101. It was contended that the possibility that Exhibit D1 was tendered to P.W.5 by mistake could not be ruled out. Counsel further submitted that the Court of Appeal erroneously thought that P.W.4 in his evidence included 1st appellant among those to whom he released the carpets. In court, P.W.4 in his testimony could only identify the 2nd and 3rd accused as among those to whom he released the carpet. It was finally submitted relying on Adelanwa v. The State (1972) 10 S.C. 13 that the court had no right to substitute its own supposition for the testimony of the 4th P.W and act on facts which were not on record. There were a few misconceptions in the contentions of counsel to 1st appellant.
There was evidence that 1st appellant was among the persons who negotiated for the purchase of the 8 rolls of carpet and purported to have paid for them with a bank draft Exh. D1, which was discovered to have been forged. On investigation of the offence and search in the house of 1st appellant. Exh. F-F4, facsimile of bank drafts very much like Exh. D1 were recovered in a beer carton in the corridor. The evidence of the reaction of 1st appellant on this discovery by prostrating and begging P.W.6 who recovered Exh. F-F4, and attacking and accusing 2nd appellant of the responsibility for exposing the whole affair, remained uncontradicted. In addition to these, there was the statement of 1st appellant to the police Exh. A, in which he confessed to the commission of the crime giving details of the part he played and the role of others. In Exh. A, he confirmed the finding of Exhibits F-F4, fake Arab Bank drafts for various sums; that it was he that told 2nd appellant to go and buy Exh. D1 in the black market. One roll of the eight rolls of carpet was later dropped in his house.
There is no doubt that all these uncontradicted credible evidence which the learned Judge believed went to show conclusively that 1st appellant had by the fraudulent use of Exh. D1. induced the Carpet Royal Nigeria Limited to deliver the 8 rolls of carpet subject matter of the offence. This was not the offence with which the 1st appellant was charged. The charge was one of obtaining property by false pretences.
The pretence for which appellants were accused was that they claimed that Honey Gay Nigeria Ltd., had issued Exh. D1 and it was that company that was negotiating the purchase of the 8 rolls of carpet. There is no doubt that in the absence of the evidence of Honey Gay Nigeria Limited, the pretences alleged on the charge could not be proved. Accordingly, the falsity of the pretence having not been established the offence charged could not be proved.
Herein the power of the trial Judge to convict for the alternate kindred offences of stealing as provided in 5.174(3) of the Criminal Procedure Act.
The evidence disclosed that 1st appellant and the others obtained possession of the eight rolls of carpet by means of the bank drafts which they knew to be forged at the time they tendered it.
Consent induced by fraud or tricks is not a real consent R v. Williams (1953) 1 Q.B, 660. The manner in which consent was obtained in this case constitutes stealing by trick as held by the learned Judge and affirmed on appeal by the Court of Appeal – See R v. Adegboyega (1937) 3 W.A.C.A. 199. See also Edo & Anor. v. C. O.P. (1962) 1 All N.L. R. 92, Oshinye v. C. O. P. (1960) 5 F.S.C. 105. This is because in the circumstances the Carpet Company could only have parted with the possession and not with the ownership in the carpets.
The contention by counsel to the 1st appellant that the necessary mens rea has not been proved seems to me to have ignored the facts of the case as established on the evidence of the prosecution which included Exh. A, the confession of the 1st appellant. The mens rea of stealing consists of an intention not only to take away the movable property in question, in this case the carpets from the possession of the owner, but also an intention to permanently deprive him of such property.
I have no difficulty in agreeing with the court below that the evidence before the court overwhelmingly established that intention. Thus, the evidence having established that 1st appellant obtained possession of the 8 rolls of carpet from the Carpet Company fraudulently, i.e. without consent of the company, and that there was a clear intention to deprive the Company of the possession of the carpets permanently, demonstrated in the manner the carpets were both shared out and sold by the appellants, and the fact that the is a property capable of being stolen, the essential ingredients of the offence of stealing were complete. Thus, though 1st appellant could not be convicted for the offence of obtaining property under false pretences with which he was charged, the conviction for the offence of stealing disclosed on the evidence is proper and valid.
The case of the 4th appellant is only slightly different in that it was decided on the briefs alone without further elaboration on the part of his counsel. Indeed the brief is somewhat unintelligible because of the many errors of spelling and arrangement of the argument. Be that as it may, it has been alleged that the conviction of the 4th appellant was based on the extra-judicial statements of the 1st and 2nd appellants, and therefore wrong. I find no justification for this criticism in the judgment of the court below or that of the learned trial Judge.
It is clear on the evidence before the court that in consequence of the search executed in the house of 4th appellant. Exhs. J-J5, pieces of carpets identified by P.W.3, as of the manufacture of the carpet Company, was discovered already laid on the floor. The explanation of 4th appellant in his statement to the Police. Exh. Q, was that he bought the carpet for N300, at the rate of N20 per sq. metre from the 2nd appellant who told him he bought it from the carpet company. He paid N200 on the night of 11/6/81 and later paid the balance of N100. Although this evidence merely raised strong suspicion that 4th appellant might have received the carpet from someone who stole or indeed himself be the thief, that alone was not sufficient to establish the proof that he is. The explanation of 4th appellant standing alone seems to me plausible. However, in other to prove the case beyond reasonable doubt, the prosecution called P.W.4, the stock controller of the Carpet
Company who released the carpets to the appellant. He identified by his tribal marks specifically Auchi tribal marks, 4th appellant as one of those to whom he delivered the carpets. This evidence was not challenged during cross-examination and remained unchallenged at the end of the trial because 4th appellant did not testify or give evidence in rebuttal. The identification of 4th appellant by P.W4 was so positive and direct as to leave no room for doubts in the mind of the trial Judge that 4th appellant could not be speaking the truth when he claimed to have bought the carpets. He therefore concluded that 4th appellant is therefore the thief. I agree, that counsel has observed that the Court of Appeal after having observed that the evidence of P.W4 relating to the identification of 4th appellant was contradictory, went on to convict was correct. The observation of the Court of Appeal resulted from an incorrect extract from the evidence relied upon. A comparison of page 116 lines 34-35 where the following appears
This witness after earlier pointing to the 2nd and 3rd accused later pointed to the 2nd and 4th accused as two of the persons who came to collect the carpet from him on that day. He could recognisc them because they had tribal marks. Indeed 2nd and 4th accused have such marks.
With page 249, lines 15 –
This piece of evidence is undoubtedly contradictory. The learned trial Judge in fact noted the contradiction but added that – indeed, the 2nd and 3rd have such marks reveals the source of the error. There is no doubt that this error made the Court of Appeal seek other evidence of 4th appellant’s involvement in the offence.
With the resolution of the identification of 4th appellant on the evidence as accepted by the learned Judge it is obvious that the participation of the 4th appellant in the commission of the offence charged emanated directly from the obtaining of the carpet by means of the fake bank draft, Exh. D1, on the 20th May, 1981 and the taking away of the 8 rolls of carpet i.e. Exhibits J-J5 from the stores of the carpet Company. There was no real consent and this amounts to stealing in our law. The Court of Appeal was therefore right to affirm the conviction of 4th appellant by the learned Judge, even for a different valid reason.
For the above reasons and for the much fuller reasons in the lead judgment of my learned brother, Nnaemeka-Agu. J.S.C., the appeal of each of the 1st and 4th appellants fails and is dismissed.
I affirm the judgment of the Court below and of the trial Court.

OPUTA, J.S.C.: I have had the privilege of a preview in draft of the lead judgment just delivered by my noble and learned brother, Nnaemeka-Agu, J.S.C., and I am in complete agreement with his reasoning and conclusions.
Five accused persons were charged before the trial court on two counts of (1st and 2nd accused on count 1 and all 5 accused persons on count 2):-
1. Forgery contrary to Section 399 of the Criminal Code and punishable under section 401(2)(g) of the Criminal Code, Cap. 28, of 1959 Laws of Western Nigeria (applicable in Oyo State).
2. Obtaining goods by false pretences contrary to and punishable under section 359 of that Criminal Code.
The prosecution called eleven witnesses. The accused persons did not testify at all in their defence. The 2nd accused, however, called one witness Sergeant Ishola Karimu as D.W.1 and closed his case.
The learned trial Judge, Ayorinde, J., in a reserved judgment considered the evidence led against the applicable law and found the 1st and 2nd accused not guilty of forgery charged in count 1. He then acquitted and discharged them on that count. On count 2, Ayorinde, J., held that the evidence led did not establish the offence of obtaining by false pretences but that, that evidence did establish the offence of stealing. He therefore found all the five accused persons guilty of stealing under section 324(1) of the Criminal Code of Western Nigeria, Cap. 28, of 1959 and convicted them accordingly, invoking the powers vested in him under section 173(3) of the Criminal Procedure Law.
On appeal to the Court of Appeal, Ibadan Division (coram Agbaje. Kutigi and Sulu-Gambari. JJ.C.A.), the appeals of all the five accused persons were dismissed and their convictions and sentence by the trial court, were upheld and affirmed.
It does not appear from the record that the 2nd and 5th accused persons questioned the decision of the Court of Appeal as they did not appeal against that decision. The other remaining three appealed. The 3rd appellant did not appear either in person or by counsel. He filed no brief either. Chief Ogundeji, learned counsel for the 1st appellant, however, informed the court that the 3rd appellant had, in fact, served his sentence. His appeal was accordingly struck out.
The 1st and 4th appellants filed their Briefs of Argument and their appeals can be considered on those briefs. In addition, Chief Ogundeji appeared for the 1st appellant. There was no appearance for the 4th appellant.
In the Brief filed for the 1st appellant, the Issues for Determination were formulated as follows:-
(1) Whether the prosecution discharged its burden of proof beyond reasonable doubt that the appellant knew that Exhibit ‘D1’ was a forged document and
(2) Whether it was safe to convict the appellant of stealing when there was no proof before the court that he presented Exhibit ‘D1’ fraudulently.
The crux of the question is whether or not the 1st appellant knew or ought to have known (hat the Bank Draft. Exh. ‘D1’ was forged. The facts of this case have been fully set out in the lead judgment. There is therefore no need to repeat them here except as much of those that go to show that the 1st appellant knew or ought to have known that the Bank Draft, Exh. D1, with which they (he. 2nd accused and 4th accused) gained possession of the 8 rolls of carpet. property of Carpet Royal (Nigeria) Ltd., was forged or else was not a genuine Bank Draft. The following facts were proved in evidence:-
1. The 1st appellant, the 2nd, 3rd and 4th accused persons went to the Manager, Carpet Royal (Nigeria) Ltd., on 20th May, 1981, with a Bank Draft purported to have been issued by Arab Bank Nigeria Ltd, Ilorin – (See evidence of P.W.5. John Mastoroudes, Manager and Isaac Oluwole Banjo. P.W.7). The Bank Draft was tendered asExh. D1. The amount on Exh. DI was N15,900.00.
2. On the strength of Exh. D1, P.W.7 issued a cash sale invoice No.0006 of 20th May, 1981. This invoice was handed over to the 1st appellant.
3. With this sale invoice, 1st appellant and his confederates took delivery of 8 rolls of carpet of 100 square metres each from the Store and Stock Controller of the Carpet Royal Nigeria Ltd., Lamidi Shittu, called as P.W.4.
4. The carpet company paid Exh. D1 into their account. It, (Exh. D1), was dishonoured as the Bank on which it was drawn was said to be non-existent in Ilorin (See evidence of Wahabi, P.W.11).
5. The carpet company then reported to the Police forwarding along Exh. D1.
6. Inspector Jeremiah Omole, P.W.6, took up the investigation. He searched the house of the 1st appellant where he recovered 5 Arab Bank Drafts from a beer carton under a table in the living room of the 1st accused but in the corridor of his house. These other Arab Bank Drafts were tendered as Exhs. F to F4. Exhibits F to F4 werefacsimile copies of Exh. D1.
7. When P.W.6 recovered Exhs. F to F4, he arrested the 1st appellant who prostrated in his living room and begged me not to take away Exhs. F to F4.
8. After the 2nd accused was arrested, there was a fight between him and the 1st appellant who accused the 2nd accused of exposing the entire plot and the participation of the various accused persons therein (evidence of P.W.6 at p.74 of the record).
9. In his statement to the Police, Exh. A, the 1st appellant admitted that he advised the 2nd accused to go and buy certified cheques or Bank Drafts in the black market. Following his advice, the 2nd accused bought 8 sheets of Arab Bank Drafts with different amount written on each sheet from Bristol Hotel Lagos. Exhibit D1 was one of those Arab Bank Drafts bought at Bristol Hotel.
10. In Exh. A, the 1st appellant gave a detailed account of how they used Exh. D1 to obtain 8 rolls of carpet from the Carpet Royal Nigeria Ltd., and how they disposed of the rolls.
No wonder, learned counsel for the respondent described Exh. A as a confessional statement.
From the facts stated above, and accepted by the learned trial Judge, the actus reus of the offences charged had been amply established. What of the mens rea In this respect, it may be relevant to reproduce what transpired during the oral submissions in court.
Court:  Who advised the 2nd accused to go to Bristol Hotel and buy Bank Drafts
Chief Ogundeji: The 1st appellant.
Court: Do people buy genuine drafts from the black market
Chief Ogundeji: It is not possible.
Court: Do you then ascribe mens rea to the 1st appellant
Ans: I will not but it is not something that is legal.
Court: The Police found some more drafts in the house of 1st appellant.
Ans: Yes.
Court: Inspite of all these, you still maintain that 1st appellant had no mens rea
Ans: Yes, I do.
Court: Can you see mens rea on a walk
Ans:  No,  it is not a concrete object. It is a mental attitude. I am not disputing that Exh. OJ is
forged. All I am saying is that the 1st appellant did not know that Exh. D1 was forged.
I have stated above the summary of the evidence adduced by the prosecution and the defence, for, although the 1st appellant never testified, yet he made a statement, Exh. A. Can one say that on all the evidence, guilty knowledge on the part of the 1st appellant has been established or in other words, that the requisite mens rea has been proved This is the solitary and crucial issue the appeal of the 1st appellant raises. And it is here I want to make my contribution.
It is not necessary here to go into the remote history of mens rea except to say that in common law offences, there are always present two essential elements:-
(a) a guilty conduct and
(b) a mind at fault.
It was the great St. Augustine who once remarked that “ream linguam non facit nisi mens rea”. Probably from there, the legalists got the now popular latin maxim – actus non facit reum nisi mens sit rea. No man, (including the 1st appellant), should according to this maxim be convicted of a crime unless his physical conduct, (the actus) is accompanied with a guilty mental element – a mind at fault, a mens rea. The intent and the act must both concur to constitute the crime:- Fowler v. Padget (1797) 7 T.R. 509 at p.514. And as Stephen. J., observed in R v. Tolson (1889) 23 Q.B.O. 168 at p.187:-
The full definition of every crime contains expressly or by implication a proposition as to the state of mind.
Following from the above, as a necessary corollary, since mens rea is a necessary ingredient of the offence charged against the 1st appellant, Chief Ogundeji maintains that its presence ought to be established by the prosecution as positively as any other fact constituting the offence and its absence or rather failure to prove the requisite mens rea beyond reasonable doubt would entitle the 1st appellant to an acquittal.
It has to be noted that this appeal is against the conviction of the 1st appellant for stealing under Section 324(1) of the Criminal Code of the Western States which stipulates:-
324-(1) 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.
In his judgment at p. 124 of the record of proceedings, the learned trial Judge found as follows:-
The 1st, (1st appellant In this court), 2nd and 4th accused can therefore be said to have obtained the possession of the goods delivered to them by trick as induced by a false document which they knew to be a forgery as they can be in erred not to be prepared to want to pay for the goods and as they have not paid for them…. For the purpose of this case, on the facts established, the accused an be said to have fraudulently taken the goods of Carpet Royal on the evidence of the 1st, 6th, 3rd, 4th, 5th and 7th prosecution witnesses which I have accepted to be true. The fraud in this case is the presentation of a forged document which induced delivery (the italics is mine to emphasize the point that the learned trial Judge found that 1st accused knew that the Bank Draft, Exh. D1 was forged).
The learned trial Judge was here dealing with an offence created by statute. Do we have mens rea in such offences
The answer to the above question will be – It depends on the statutory definition of the offence. In dealing with statutory offences therefore, great care should be taken to analyse the elements required by the particular statute to constitute the offence it creates. Each statutory offence implies a course of conduct which it is the policy of the law to prohibit under pain of punishment. This course of conduct may then constitute the actus reus of the offence charged. It is however not in all cases that the statute prescribes a mens rea. There are cases of absolute prohibition. But when a mental element becomes an essential ingredient of a statutory offence, words like with intent to, knowingly, fraudulently etc., are used. In the case now on appeal, Section 324(1) of the Criminal Code. Cap. 28, Vol. 1, Laws of Western Nigeria, 1959, did use the word fraudulently. It then imported a mens rea, a mental attitude, a guilty mind. But sub-section (2) of the self same Section 324 states:-
324-(2) Any person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents:-
(a) an intent permanently to deprive the owner of the thing of it.
(b) ………………..
(c) ………………..
(d) …………………
(e) an intent to deal with it in such a manner that it cannot be refurned in he condition in which it was at the time of the taking or conversion;
(f)……………………..
The criminal intent of the 1st appellant must thus be within the meaning of section 324(2) above. The facts of this case including the statement of the 1st appellant, Exh. A, show clearly that the Carpet Royal Nigeria Ltd., was deprived permanently of their property in the 8 rolls of carpet delivered to the 1st appellant and his confederates. That satisfies S.324(2)(a) of the Code above.
Again in his statement. Exh. A, the 1st appellant said inter alia as follows:-
“On the day the cashier got the Draft from us, eight rolls of rugs of different colours all about 200 yards valued N15.900.00 were handed over to us. Omole rented a trailer vehicle with which they, Mufu and Omole, carried the 800 yards of rugs to my house where a roll of 100 yards was dropped out of the 8 rolls while the remaining seven rolls of 700 yards were carried to Lagos in the trailer …. The 100 yards of rugs dropped were later sold ….. The sale of the 100 yards of rugs in my house yeilded some amount.. …. Mutu and Omole gave me N120.00 as my own share out of the proceed. The seven hundred yards were taken to Lagos by Mufu and Omole. They didn’t give me any money out of the proceeds and this caused a fight between us …..”
The statement of the 1st appellant above is definitely evidence against him. From the above account in Exh. A, it is clear that the 1st appellant and his co-accused intended to and did deal with the 8 rolls of carpet they obtained from Carpet Royal Nigeria Ltd., in a manner that it cannot be returned in the condition in which it was at the time of taking. This satisfied the definition of fraudulently in Section 324(2)(e) above. Having sold all the 8 rolls of the carpet, the accused persons also fall within the warm embrace of Section 324(2)(a). These two conditions constitute a fraudulent intent as required by section 324(1) of the Code.
Now whether the 1st appellant knew or did not know that Exh. D1 was forged, the facts of this case coupled with the statement of the 1st appellant, Exh. A, amply proved a fraudulent taking of the 8 rolls of carpet belonging to Carpet Royal Nigeria Ltd. That in law is stealing.
Now as to the issue of whether or not the 1st appellant knew that the Draft, Exh. D1, was forged, it is necessary here to note that it was never part of the defence of the 1st appellant that he did not know that the Arab Bank Draft, Exh. D1, was forged. His plea in the trial court was simply – ‘Not guilty on Counts 1 and 2’ (see p.19 of record). His statement to the Police, Ex. A, did not put in issue his belief in the genuineness of Ex. 01. The 1st appellant did not say in Exh. A that he believed or that he thought the Arab Bank Draft, Exh. D1, was genuine. The 1st appellant did not give evidence  in court during the trial. Whether or not the 1st appellant knew the Bank Draft, Exh. D1 was forged was never an issue before the trial court. That being so, there was no decision of the trial court on whether or not the 1st appellant knew that Exh. D1 was forged. An appeal presupposes the existence of some decision, appealed against. In the absence of such a decision on a point, there cannot possibly be an appeal against what had not been decided against a party (see Oredoyin & Ors. v. Arowolo & Ors. (1989) 4 NWLR (Pt.114) 172. Learned counsel for the appellants should be well advised to know that they can only urge on appeal, points arising from a decision of a trial court on an issue submitted to it for determination. If no such question had been submitted, it cannot form the basis of a ground of appeal or of an Issue for Determination in a Brief.
But be that as it may, the court can infer from the surrounding circumstances of this case namely:-
1. That 1st appellant advised the 2nd accused to go to the black market to purchase a bank draft.
2. That genuine bank drafts are not normally purchased in the black market.
3. That other faked Arab Bank Drafts, Exhs. F to F4 similar to Ex. D1 were found in the house of the 1st appellant.
that the 1st appellant was the brain behind this fraud. His, (1st appellant), fighting with the 2nd accused showed the extent of his annoyance with the 2nd accused that he (2nd accused) betrayed them. ‘Honour among thieves’ is the popular slogan of the criminal underworld. That honour readily turns to dishonour during the sharing of the loot when the parties quarrel and spill. I have no hesitation (if it were an issue) in holding that the 1st appellant knew that Exh. D1 was a forged draft. The 1st appellant must know that the other drafts Exhs. F to F4, found in his own house were all forged. Exhibit D1 was among the drafts (including Exs. F to F4) which the 2nd accused bought in the black market as directed by the 1st appellant. The appeal of the 1st appellant therefore fails.
The 4th appellant was correctly identified by the Store Keeper of Carpet Royal Nigeria Ltd., called as P.W.4 as one of those to whom he delivered the 8 rolls of carpet on the authority of the forged draft, Exh. D1. Some of the carpets were found laid out in his room. He is also guilty either as the thief who obtained possession of the carpet by trick or on the theory of recent possession. His conviction is well justified.
In the final result and for all the reasons given above and for the fuller reasons in the lead judgment of my learned brother, Nnaemeka-Agu, J.S.C., which reasons I now adopt as mine. I, too, will dismiss both appeals of the 1st appellant and of the 4th appellant. I affirm the judgment and sentence of the trial court and of the Court of Appeal.

WALI, J.S.C.: I have had a preview of the judgment read by my learned brother, Nnaemeka-Agu, J.S.C.; I agree that the appeal lacks merit. For the reasons stated in the said judgment, I too will dismiss this appeal and it is hereby dismissed. The decision of the Court of Appeal affirming the judgment of the trial court is hereby confirmed.

Appeal dismissed.

 

Appearances

Chief A. O. Ogundeji
3rd Appellant not represented, but filed a brief.For Appellant

 

AND

Mrs. B. O. Adeniji, Senior State Counsel, Ministry of Justice, Oyo StateFor Respondent