BABALOLA & ORS. V. THE STATE

• Pages: 97-117

BABALOLA & ORS. V. THE STATE

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97

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BABALOLA & ORS. V. THE STATE

1.

OLUFEMI BABALOLA

2.

DARLINGTON OMOLE

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3. JOSEPH AIYEGBAYO

V.

THE STATE

SUPREME COURT OF NIGERIA

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ESO,

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J.S.C.

KARIBI-WHYTE,

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J.S.C.

OPUTA,

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J.S.C.

NNAEMEKA-AGU, J.S.C.

WALT,

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J.S.C.

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11th July, 1989

APPELLANTS

RESPONDENT

SUIT NO. SC 184/1988

Criminal Procedure - Charges - Conviction for offence not charged

Criminal Law - Crime - Ingredient of - Stealing - Element of

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Evidence - Extra Judicial Statements - Effect of

Words and Phrases - Stealing - Forgery - Meaning of

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ISSUES:

1.

What is the meaning of forgery'?

2.

What is the effect of extra judicial statement made by a co-accused person who

did not testify at the trial?

3.

Whether a court can convict an accused person for an offence for which he has

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not been charged.

4.

What is stealing?

5.

What are the ingredients of crime?

FACTS:

On the 20th of May 1981, the accused persons went to the Manager of Carpet

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Royal Nigeria Limited with a Bank Draft purported to have been issued by Arab Bank

Nigeria Limited, Ilorin for N.15,900.00 for the purchase of eight rolls of Carpets which

was supplied to the accused persons. The Bank draft was dishonoured as the Bank

on which it was drawn was non-existent in Ilorin.

The carpet company reported to the police forwarding the Bank draft, the police

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investigated and found some facsimile copies of Arab Bank draft in the house of the

first Appellant, the first appellant made a confessional statement of how he advised

the second accused person to go and buy the bank draft in the black market.

The learned trial judge held that the first and second accused persons were not

guilty of forgery as charged and acquitted them on that count but that the evidence

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led did establish the offence of stealing. He therefore found all the five accused

persons guilty of stealing under s.324(1) Criminal Code of Western Nigeria Cap. 28

of 1959 and convicted them accordingly.

All the accused persons appealed to the Court of Appeal, the Court of Appeal

dismissed their appeal and their convictions and sentences by the trial court were

upheld.

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NIGERIAN SUPREME COURT CASES

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[1989] 3 N.S.C.C.

The appellants still dissatisfied appealed to the Supreme Court contending that

they the accused did not have the necessary

mens rea.

HELD:

1.

S.399 of the Criminal Code of Western Nigeria defines forgery as making a false

document or writing knowing it to be false and with intent that it may in any way 5

be used or acted upon as genuine anywhere to the prejudice of any person. In

the instant case the 1st appellant told the 2nd appellant to go and buy the bank

draft at the back of Bristol Hotel which he, no doubt knew was not a bank for the

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 10

were the intent to defraud and that to deceive.

2.

Extra-Judicial Statement of co-accused persons who did not testify at the trial

are no evidence but any real evidence discovered as a result of statement of

co-accused would be admissible. Due to the extra judicial statements in exhibits

A and B a search warrant was executed in the house of 4th Appellant. In 15

consequent exhibit J - 5, pieces of carpets, already laid on 4th appellant's floor,

and which were identified by the production Engineer of the carpet company Mr.

God is (P.W. 3) to be the company's product, were discovered in the house of 4th

appellant. Exh. J to J5 are material evidence.

3.

As a general rule an accused person can only be found guilty in respect of the 20

offence for which he is charged. It is this offence he must plead to and in respect

of which the onus is on the prosecution to establish the charge beyond

reasonable doubt hut where the evidence adduced by the prosecution in support

of the charge against the accused has failed to support a conviction for that

charge but fully establishes the commission by the accused of a kindred offence, 25

the court is empowered to convict an accused person of an offence other than

the one with which he is expressly indicted on the charge.

4.

Stealing is an intention to permanently deprive him of the possession of a

moveable property. In this case the first appellant obtained the possession of the

eight rolls of carpet from the carpet company with intention to deprive the 30

company of the possession of the carpets permanently the carpet being a

property capable of being stolen, an essential ingredient of the offence of stealing

was completed.

5.

In a crime, two essential elements must be present, they are a guilty conduct and

a guilty intention. For there to be a crime the physical conduct (the

actus reus)

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must be accompanied with a guilty mind (the

mens rea).

The intent and the act

must both concur to constitute the crime. From the evidence in this case, it is

clear that the accused persons took the eight rolls of carpet belonging to carpet

Royal Nigeria Limited with fraudulent intention.

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[As to what will constitute forgery,

see:

1.

The Queen v. Abuah

[1961] N.S.C.C. Vol. 2 269

2.

Domingo v The Queen

[1963] N.S.C.C. Vol. 3 61.]

[As to

whether a court can convict an accused person for an offence for which

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he has not been charged,

see:

Akinlemibola v. C.O.P.

[1976] N.S.C.C. Vol. 10 345].

[As to

what will constitute stealing,

see:

Edo & Anor. v. C.O.P.

[1962] N.S.C.C. Vol.

2 64.]

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[As to

Ingredients of crime,

see:

Obumselu v. C.O.P.

[1958] N.S.C.C. Vol. 1 106.]

CASES REFERRED TO IN JUDGMENT:

1.

Oteki v. Attorney-General of Bendel State

(1986) 2 N.W.L.R. (Pt. 24) 648.

2.

Clark v. The State

(1986) 4 N.W.L.R. (Pt. 35) 381.