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GEORGE ABEL AYO SCOTT
V.
THE KING
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, +NIGERIA
15TH DAY OF FEBRUARY, 1950
2PLR/1950/45 (WACA)
OTHER CITATION(S)
2PLR/1950/45 (WACA)
(1950) XIII WACA PP. 25-29
LEX (1950) – XIII WACA 25-29
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BEFORE THEIR LORDSHIPS:
VERITY, C.J., NIGERIA
RHODES, J.
BAIRAKIAN, J.
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BETWEEN:
GEORGE ABEL AYO SCOTT — Appellant
AND
THE KING — Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. 3151.
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REPRESENTATION
J. E. C. David — for Appellant
Lloyd, Crown Counsel — for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Forgery — Whether person with general authority to sign cheques who fraudulently makes out cheques on behalf of his principal knowing that the amount is not payable is guilty of forgery
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CASE SUMMARY
The appellant was convicted on eleven counts relating to forgery and false pretences in respect of two cheques and a cheque order form made out by him.
The appellant was the senior cashier in charge of the Pay Office of the Lagos Treasury and had a general authority to sign cheques for the payment of money out of Government’s account with the Bank of British West Africa, but every cheque had to be countersigned by the Colony Treasurer or the Accounting Assistant.
The first four counts related to a cheque for £110 10s. 5d. made out and signed by the appellant and fully countersigned, payable to one, D. O. Okoro, for foodstuffs supplied to the Medical Department. In fact, D. O. Okoro had already been paid this sum and, therefore, nothing was due to him. The appellant cashed the cheque by means of a forged endorsement of D. 0. Okoros name. It was proved that the appellant acted fraudulently.
Counts 5-8 related to a cheque for £41 1s. 4d. also fraudulently made out by the appellant in favour of one, M. S. Bojike, in a similar manner, but it was not proved that the appellant endorsed or cashed the cheque.
Counts 9-11 related to a forged cheque order form, but involved no important point of law and do not, therefore, merit consideration.
The main question on this appeal was whether the appellant’s acts in relation to counts 1-8 constituted forgery. It was argued that, although the cheques were fraudulent they were not forgeries. The Crown contended that, although the appellant had a general authority to sign cheques, the Government would not have authorised him to sign cheques for moneys that were not due, and that having fraudulently acted in excess of his authority he was guilty of forgery.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (upholding conviction on Counts 1, 2, 3, 4, 8 and 11; while allowing the Appeal on Counts 5, 6 and 7) that:
1. Where a person has a general authority to sign cheques and fraudulently acts in excess of that authority, he is not guilty of forgery.
2. The cheque for £110 10s 5d. was not a forged document, but the endorsement thereon was forged, and the Judge’s finding that the endorsement was false and that the appellant cashed the cheque imports of necessity the irresistible inference that the appellant either forged the endorsement himself or procured someone to forge it for him, and he was accordingly rightly convicted on counts 1 and 2 of forging a document and uttering it.
3. In respect of counts 5 and 6 the cheque was not forged, and as the appellant was not proved to have endorsed the cheque or to have cashed it, he was not guilty of forging the cheque or uttering it, but was rightly convicted of false pretences on count 8 as he obtained the cheque by the false pretence that it was due to one, Bojike.
Cases referred to:
(1) Rex v. Bateman (1845), 1 Cox, 186.
(2) Morison v. London County & Westminster Bank, Limited (1914), 3 K.B. 356.
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MAIN JUDGMENT
The following Judgment was delivered:
BAIRAMIAN, J.
This is an appeal against conviction on the ground that the “facts proved do not constitute forgery”.
The appellant was convicted on the 25th October last on an information with eleven counts relating to three matters:-
(1) A cheque in favour of one, D. Okoro, for £110 10s 5d;
(2) A cheque in favour of one, M. S. Bojike, for £41 1s. 4d; and
(3) A cheque Order form for a cheque for £450.
The appellant was the Senior Cashier in charge of the Pay Office of the Lagos Treasury and had a general authority to sign cheques for the payment of money out of Government’s Account at the Bank of British West Africa; but every cheque he signed had to be countersigned either by the Colony Treasurer or the Accounting Assistant, to whom it was sent after appellant had signed it. Cheques were prepared on the basis of payment vouchers sent in by the various Departments, and each cheque going up to be countersigned was accompanied by a voucher in support. The appellant, however, succeeded in having three cheques countersigned, the vouchers for which were spurious; but these vouchers have disappeared.
As regards the cheque in favour of D. Okoro, which is the subject of counts 1 to 4, there was, in fact, a contractor by the name of D. 0. Okoro, who supplied foodstuffs to the Medical Department, but cheques were made out indiscriminately with “D. O. Okoro” or “D. Okoro” as his name. There was a genuine debt due to him of £110 10s. 5d., for which he was paid by cheque on 14th July, 1948. On the 19th July another was made out for the same amount in favour of D. Okoro; it was signed by the appellant and sent up to the Colony Treasurer, who countersigned it. The appellant presented it at the bank, saying that the endorsement was Okoro’s and received the money. In fact, the contractor had not endorsed the cheque or authorised it to be endorsed on his behalf.
In respect of this second cheque the appellant was convicted on four counts:-
Count 1: that he “forged a certain document purporting to be a cheque, etc.”, contrary to section 467 (2) (h) of the Criminal Code;
Count 2: that he uttered it, contrary to section 468;
Count 3: that he obtained the sum on the cheque by falsely pretending that it was a “genuine document” and that he was authorised by D.O. Okoro to receive payment, contrary to section 419; and
Count 4: that he obtained the cheque from Government by falsely pretending the sum on it was due to D. O. Okoro, contrary to section 419.
Count 4 is not affected by the question of forgery in this appeal; and Count 3 can stand if the cheque was not a forgery because there is still left the false pretence made at the bank that Okoro authorised the appellant to receive the money, which is sufficient to support the conviction on Count 3. But the conviction of forgery on Count 1, and of uttering on Count 2, was based on the view that the appellant in signing the cheque was guilty of forgery.
Mindful of the fact that the appellant had a general authority to sign cheques, the learned Counsel for the Crown sought to support the conviction on the ground that Government could not have authorised the appellant to sign cheques for moneys that were not due: his authority was limited to the signing of cheques for moneys that were truly payable, and he cited in support of his argument the case of R. v. Bateman (1), in which Erie, J., said as follows:-
“If a cheque is given to a person with a certain authority, the agent is confined strictly within the limits of that authority, and if he chooses to alter it the crime of forgery is committed. If the blank cheque was delivered to him with a limited authority to complete it, and he filled it up with an amount di1ferent from the one he was directed to insert, or if after the authority was at an end he filled it up with any amount .whatever, that would clearly be forgery.”
It will have been observed that the learned Judge equates the case of filling up a blank cheque with an amount different from the one directed with the case of filling it up with any amount whatever after the authority was at an end. The latter is clearly a case of a cheque made without authority; when considered, the former will also be seen to be a case of a cheque made without authority. Before the amount is filled in, a blank cheque is not complete as a cheque on which payment can be made; it is only when the amount is filled in that the cheque can be truly said to be made. If the amount authorised to be inserted is £20, but an amount of £50 is inserted instead, a cheque has been made without authority, the making of which purports to have been authorised. Thus exceeding a limited authority as to the amount with which a blank cheque may be filled up is, in fact, a making of a cheque without authority. Patterson, J., agreed with Erle, J., that it would be forgery “if the prisoner filled up the cheque with a di1ferent amount, and for different purposes than those which his authority warranted”. These concluding words were doubtless meant to stress the need of showing besides, that the cheque made without authority was made for a fraudulent purpose so as to constitute the crime of forgery. R. v. Bateman (1) would therefore seem not to be quite apposite to a case such as the one in hand in which the appellant was not filling up amounts in cheques signed in blank, but himself had a general authority to make out and sign cheques on behalf of Government. The crucial question in this case is whether a cheque fraudulently made out for a payment which is not due and owing from his principal by an agent who has a general authority to make out cheques on his behalf is not merely fraudulent but a forgery besides.
It so happens that this question was argued and decided in the Court of Appeal in Morison v. London County & Westminster Bank, Limited (2). In that case, Morison had given authority to one, Abbott, to draw cheques for the purposes of his business on his banking account at the National Provincial Bank and to sign them in his (Abbott’s) name “per pro. Bruce Morison Co.”, being the name in which Morison carried on his business and kept his banking account. Some years later Abbott opened a private banking account for his own purposes with the defendants, and paid into it fifty cheques which he had drawn and, when necessary, endorsed by means of the “per pro” signature in fraud of the plaintiff, his principal. Some of the cheques, as appears at page 359, from the argument of learned Counsel for Morison, Abbott drew to pay gambling debts and applied the cheques to pay gambling debts of his own. When his principal discovered that Abbott had fraudulently drawn and applied the cheques for his own purposes, he sued the defendants for the moneys paid in on those cheques. An argument similar in substance to the one made by the learned Crown Counsel was advanced in that case on behalf of Morison, and it was contended on his behalf that the cheques were forgeries under section 24 of the Forgery Act, 1861 (from which section 473 of the Local Code appears to be ultimately derived) and the drawing of them a criminal act, included as such in the Forgery Consolidation Act, 1913. Though the case was a civil action, it is clear-indeed, it is expressly so stated at the top of page 367 in Lord Reading’s judgment – that the Court considered the question “whether Abbott in so drawing and issuing the cheques had committed the crime of forgery, and not whether he had committed a criminal offence”. On page 366 His Lordship, after setting out the contention that the cheques were forgeries, stated as follows:-
“The cheques bore genuine signatures by Abbott notwithstanding that these were made by Abbott with the intention of misapplying the cheques and the proceeds. If, as is admitted, the National Provincial Bank was entitled and indeed bound to honour cheques so signed, these were valid instruments for that purpose, and if so they cannot be forgeries in the hands of the defendants. The signature to a cheque cannot be a valid signature in the hands of one person and a forgery in the hands of another; it cannot be valid today and a forgery tomorrow.”
Buckley, L. J., at page 374, and Phillimore, L. J., at page 380, were also of opinion that the cheques were not forgeries. Having regard to the considered opinion of those learned Judges, this Court is bound to hold that the appellant in signing the second cheque in favour of D. Okoro, was not guilty of forgery. This, however, does not entirely dispose of the conviction of forgery on Count 1 or of uttering on Count 2 of the information.
As already stated, the cheque was presented at the bank by the appellant with an endorsement to enable him to receive payment; but the food contractor in whose favour the cheque was ostensibly issued neither made nor authorised the endorsement to be made; and that endorsement which purported to be made by him or on his behalf was therefore false and a forgery as it had been made with intent to defraud, and was a material part enabling payment on the cheque. Consequently, when the appellant presented the cheque at the bank with that forged endorsement he was guilty of uttering a false document knowingly and fraudulently under section 468 of the Criminal Code; and on this ground the conviction under Count 2 can be sustained.
As regards Count 1, the question arises as to who it was who forged that endorsement. This forgery was an intermediate step in the appellant’s scheme of fraud between his signing of the cheque and his presenting it at the bank. The trial Judge’s finding that the endorsement was false imports of necessity the irresistible inference that the appellant either forged the endorsement with his own hand or procured someone to forge it for him. In either case he was guilty of forgery, and on this ground the conviction under Count 1 can be sustained. In the result the conviction on each of the counts numbered 1 to 4 remains undisturbed.
The next four Counts, Nos. 5 to 8, relate to the cheque for £41 1s. 4d. issued on the 10th December, 1948, in favour of one, M. S. Bojike, a person unknown, to whom no money was due. The appellant signed the cheque fraudulently and had it countersigned; someone, giving his name as Bojike, received it and signed for it; and the appellant presented it at the bank and drew the money. The endorsement on the cheque was in the same handwriting as the writing acknowledging the receipt of the cheque; it was apparently made by the same person as had taken the cheque from the Treasury under the name of M. S. Bojike; and that person it was presumably who gave the cheque to the appellant to present at the bank.
In view of what has been said before, the conviction of forgery under Count 5 and of uttering under Count 6 must be set aside. Count 7 alleges that the appellant obtained the money by falsely pretending that the cheque was genuine, and that he was authorised by M. S. Bojike to receive payment on his behalf. It had been thought that the cheque was a forgery: that was the basis of the conviction on Count 7; but that basis is gone. The other false pretence alleged viz:.-that Bojike had authorised the appellant to receive payment-was not proved at all. It must have been Bojike–if that be his true name-who gave the cheque to the appellant to cash. Count 7 cannot, therefore, be sustained. But Count 8 remains unaffected by the question of forgery, as it merely alleges that the appellant obtained the cheque by the false pretence that the money was due to Bojike.
The remaining three counts – Nos. 9 to 11 – relate to a cheque order form, genuine to begin with but altered by the appellant. Prior to its coming in, there had come in from the Medical Department a payment voucher for £450, payable to a nursing sister named Miss L. N. Wilson, as an advance for the purchase of a motor car, and she was given a cheque for that sum on 14th December, 1948. On the 30th a cheque was made out for £29 0s. 8d. in pursuance of a payment voucher for salaries sent by the Medical Department, together with a cheque order form, on which this amount of £29 0s. 8d. was written in words in two places on the front of the form and in figures in three places on the back. The appellant altered the words and figures to make the cheque order form one for a cheque for £450 and wrote on it the figure 2330, a number on a previous voucher for £85 9s. 6d. net, payable as salaries which had come in on 17th December, and had no connection with the cheque order form. A second cheque for £450 was made out on 30th December in favour of Miss L. N. Wilson, ostensibly the nursing sister already paid that sum a fortnight earlier; this fraudulent cheque was signed by the appellant and countersigned by the Colony Treasurer; it was endorsed by someone and cashed at the bank-not by the true Miss L. N. Wilson. The appellant admitted altering the cheque order form and gave an explanation, which, however, did not satisfy the learned trial Judge. He gave it to a clerk to enter up the amount of £450 in the cash book; and he sent up the cheque for counter — signature as a cheque for a payment truly due. The learned trial Judge had no doubt that the appellant altered and falsified the cheque order form with a guilty mind and acted throughout with a fraudulent intent. This was indeed manifest from the fact that the same cheque order form was used by the appellant on the same day — the 30th December, 1948 — for the issue of two cheques-one for £29 0s. 8d., the original amount on the form, and another for £450, the amount to which the appellant altered the form.
It is plain from the first and the third paragraphs in section 365 of the Criminal Code that altering a genuine-document in a material part amounts to making a false document and that the appellant’s· fraudulent intent of cheating Government of £450-doubtless received at the bank by some associate of his-makes his act a forgery. He was therefore rightly convicted under Count 9 of forging the cheque order form, and of uttering a false document under Count 10. Count 11, which alleges that he obtained the cheque by the false pretence that the sum of £450 was payable to L. N. Wilson is not affected by the question of forgery argued in this appeal.
The question of forgery on which this appeal was made does not affect Counts 4, 8 and 11; but for the avoidance of error it is ordered as follows: The appeal is allowed as regards Counts 5, 6, and 7, and the conviction and sentence on each of those counts are set aside; save as aforesaid the appeal is dismissed.
Conviction on Counts 1, 2, 3, 4, 8 and 11 upheld.
Appeal allowed on Counts 5, 6 and 7.
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