Foster-Sutton, P. The appellant was charged jointly with two other men, Olaiwola Ogunyemi and Isaac Onawoga, on a number of counts including one, upon which they were all three convicted, charging them with conspiracy to commit a felony, contrary to section 576 of the Criminal Code, in that they “on the 17th day of September,1951, at Ibadan, in the Province of Ibadan, conspired to commit a felony, to wit, to tamper with a postal matter”.
The appellant was sentenced to nine months imprisonment with hard labour. The facts of the case are fully and clearly set out in the learned trial judge’s Judgment. It is, therefore, sufficient to say here that the appellant is a lawyer practising his profession in Ibadan, and the other two persons charged with him were employees at the Post Office in Ibadan. The appellant’s Counsel argued four grounds of appeal, but we only consider it necessary to deal with the following:- ..The decision is wrong in law in that the appellant being a person who cannot commit any offence under the provisions of section 163 of the Criminal Code he cannot be indicted or convicted for conspiracy to commit the aforesaid offence.
“The learned trial Judge wrongly considered the statement of the witness Eric Parr and the documents referred to by him in his said statement as evidence when the statement and documents were not proved in Court in the manner required by law.
“The decision is wrong in law in that there is no evidence from which it can be reasonably inferred that the appellant conspired with the other accused persons to commit the acts alleged to amount to an offence under section 163 of the Criminal Code.”
As to the first ground-appellant’s Counsel argued that as the conspiracy charged was to commit an offence under section 163 of the Criminal Code, and that section only applies to persons “employed by or under the Posts and Telegraphs Department”, the appellant, not being so employed, could not be convicted of conspiring to commit the offence since he could not be convicted of the offence itself; and he cited the case of Rex v. Crossman and Leyland-Ex parte Chetwynd (1) in support of his contention. It is true that Archbold cites the case in support of the proposition that the point is “well worthy of argument”, but we can see nothing in the report of the case in Volume 24 of the Times Law Reports to justify either the submission of Counsel or the statement in Archbold to which I have referred. In that case, a warrant having been issued by a Magistrate against the mother of a child and two other persons upon a charge of conspiring to take the child out of the custody of its guardian, the Court refused to direct the Magistrate to withdraw the warrant, it not having been clearly shown that the mother, notwithstanding the protection in the proviso to section 56 of the Offences Against the Persons Act, 1861, was not guilty of the offence of conspiracy charged against her. The Court, however, in the absence of the mother, who was out of the jurisdiction, declined to decide whether she was liable for the conspiracy.
In our view a person may be charged and convicted of conspiracy to commit a crime of which he could not, if he stood alone, be convicted, and we are fortified in that view by the Judgment of Lord Coleridge, C.J., in Regina v. Whitchurch (2), and by the generally accepted definition of the offence of conspiracy given by Willes, J., on behalf of the Judges in Mulcahy v. R. (3), where he said:-
“A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as a design rests in intention only it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means.”
The gist of the offence of conspiracy lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, but in the forming of the scheme or agreement between the parties. As Bruce, J., says in Rex v. Plummer (4), “the external or overt act of the crime is concert, by which mutual consent to a common purpose is exchanged”.
Counsel for appellant then submitted that the deposition of Eric Parr, surveyor, Posts and Telegraphs Department, had been wrongly admitted in evidence at the trial because it was not properly proved, Counsel for the Crown having merely applied for the deposition to be read after producing a notice in the official Gazette showing that the witness was out of the country on leave.
The deposition was admitted by the trial Judge under the provisions of section 34 of the Evidence Ordinance (Cap. 63) which for convenience of reference reads as follows:-
“34. (1) Evidence given by a witness in a judicial proceeding, or before to any person authorised by law to take it, is relevant for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable:-
“Provided-
“(a) That the proceeding was between the same parties or their representatives in interest;
“.(b) that the adverse party in the first proceeding had the right and opportunity to cross-examine; and
“(c) that the questions in issue were substantially the same in the first as in the second proceeding.
“(2) A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section:
“(3) In the case of a person employed in the public service who is required to give evidence for any purpose connected with a judicial proceeding, it shall be sufficient to account for his non-attendance at the hearing of the said judicial proceedings if there is produced to the court, either a Gazette or telegram or letter purporting to emanate from the head of his department, sufficiently explaining to the satisfaction of the court his apparent default.”
The deposition in question was taken by the Magistrate under the provisions of Part XXXVI of the Criminal Procedure Ordinance (Cap. 43), during the course of a Preliminary Enquiry into the Indictable Offence of which the appellant was eventually convicted in this case.
The deposition of the witness was duly signed by the Magistrate at the end thereof which authenticated it under section 322 of the Criminal Procedure Ordinance, and Exhibit “A”, which was put in evidence through the witness, was marked in accordance with the provisions of section 321 of the same Ordinance.
It is clear from the note made by the Magistrate at the end of the witness’s examination-in-chief that the appellant was informed of his right, and given an opportunity, to cross-examine; and the deposition was duly transmitted to the Registrar of the Court before which the trial in this case was held, in compliance with the provisions of section 330 of the Criminal Procedure Code.
Section 114 of the Evidence Ordinance provides that, “Whenever any document is produced before any court, purporting to be a record or memorandum of the evidence, given by a witness in a judicial proceeding , taken in accordance with law, and purporting to be signed by any judge or magistrate, the court shall presume:-
" (a) that the document is genuine;
“(b) that any statements as to the circumstances in which it was taken, purporting to be made by the person signing it, are true; and
“(c) that such evidence, was duly taken.”
Section 34 of the Evidence Ordinance makes the evidence given by a witness in a judicial proceeding relevant for the purpose of proving, in a subsequent judicial proceeding, the truth of the facts which it states, providing that the conditions set out in paragraphs (a), (b) and (c) of the proviso to sub-section (1) of the section are present, and there can be no question that they were in the .case under consideration here.
In our opinion, providing the requirements of the sections of the Ordinances, to which I have referred, have been met, the deposition of a witness taken at a Preliminary Enquiry, and produced from the custody of the Registrar of the Court before which the trial is held, may properly be admitted in evidence without further proof. That being so it follows that, in our view, the trial Judge rightly admitted in evidence the deposition in question in this case.
As to the last ground-the case for the prosecution was that the appellant handed Exhibit “A”, which was the envelope addressed to “The Director, Messrs; C. Zard and Co., Ltd., P.O. Box 114, Ibadan,” containing the letter,
“Exhibit “F”, and the cheque for £1,000, Exhibit “G”, to the first accused early on Monday morning, the 17th September, 1951, to send by registered post for him and that he then conspired with him to make it appear that the letter the had been posted on Saturday, the 15th September, 1951.
There was no direct evidence of the alleged conspiracy, but the Prosecution relied on the evidence of:-
(a) Feiz Khalil who gave evidence that he lent Exhibit “G” as a blank cheque to defence witness K. T. Daryanani on a, Saturday between 3 and 4 p.m. He said that he could not remember” what date, nor the month. But I know it was a Saturday” and he went on to say that on the Friday, the day before he lent the blank cheque, he was in Lagos, had not returned until late in the evening and no one had come to see him that evening.
(b) Samuel Alabi, transit clerk to Feiz Khalil, who swore that Daryanani borrowed the cheque from his employer on a Saturday between 3 to 5 p.m. in September, 1951; apparently when Khalil lent the blank cheque he asked Daryanani to put his name and the date on the counterfoil of the cheque, and the witness gave evidence that on the following Monday morning 17th September, 1951, his employer asked him to look at the counterfoil to see if Daryanani had done so and he found that he had.
In this connection it is important to note that the counterfoil, Exhibit “V”, bears the following inscription:- “Loaned the slip to J. T. Chanrai and Co. (Nig.) Ltd., on 14.9.51. “KTD” and there is no suggestion that the witness expressed surprise at the date it bore;
(c) Reji Akande, motor driver to Khalil, who gave evidence that he drove his employer to Lagos” one day in September, 1951. It was a Friday, I don’t know which Friday. We left Ibadan early morning and got back to Ibadan after dark,”
(d) a statement given by the appellant to the police in which he admitted handing Exhibit “A” to the first accused with a request that he send it by registered post for him, alleging that he had done so on Saturday 15th September at about 8 a.m. and
(e) the first accused who gave a statement admitting that the letter “A” was not in fact posted until Monday morning the 17th September, 1951, but that he had made it appear, by altering the date stamp,. that it had been posted on Saturday the 15th September.
On that evidence coupled with unusual conversations which the defence alleged had taken place between the appellant and the first accused, and the appellant and E. A. Odusonwu, who was called as a witness by the appellant and the letter, Exhibit “F”, which the prosecution suggested was really written in reply to the letter Exhibit “D”, which was proved not to have reached the hands of the appellant until after 2 p.m. on Saturday, the 15th September, the prosecution submitted that the cheque was not borrowed until late on the afternoon of Saturday the 15th September, 1951, and that the letter and cheque contained in the envelope, Exhibit “A” , could not, therefore, have been handed by the appellant to the first accused, for posting, on the early morning of 15th September; and the prosecution invited the learned trial Judge to draw the inference that the alteration to the date stamp was effected as a result of a conspiracy between the appellant and the first and second accused.
The appellant gave evidence that Daryanani and one Dawandas, who was called as a witness for the prosecution, came to his house at Ibadan on the afternoon of Friday, 14th September, 1951, as clients, to consult him upon a professional matter, that he advised them to send a cheque for £1,000 to Zard and Co., that they then went away and returned again early on Saturday morning the 15th September and that after studying some papers they handed to him he typed Exhibit “F” and enclosed it, together with the cheque for £1,000 Exhibit “G”, in the envelope, Exhibit “A”, and that having done so he handed the letter to the first accused at about 7 .50 a.m. on the Saturday morning “and asked him to help me get it registered” . He denied having entered into any conspiracy with either of the other accused.
The first accused gave evidence at the trial to the effect that the appellant, who was his landlord, had handed him Exhibit “A” early on Saturday morning the 15th September with a request that he send it for him by registered post, that he had taken it to the post office when he went on duty that morning, but through an oversight had forgotten to post it until Monday- morning the 17th September, and that as the appellant had been very good to him and he did not wish him to know of his omission, he, with the assistance of the second accused, made it appear that the letter had been posted, by registered post, on Saturday the 15th September; and the second accused gave evidence that the first accused had come to him early on Monday morning the 17th September, told him that he had forgotten to post Exhibit “A” on the Saturday, and asked him to help him to cover up his forgetfulness.
Dawandas, the second witness for the prosecution, gave evidence, which was corroborated by Daryanani who was called as a defence witness, that he was with Daryanani when the latter borrowed Exhibit “G” from Khalil, that it was borrowed on Friday, the 14th September, 1951, and that he saw Daryanani fill in the counterfoil of the cheque.
He also stated that he went with Daryanani to the appellant’s house early on Saturday morning the 15th September when the former handed the cheque for £1,000 to the appellant, thus supporting the case put forward by the appellant. Evidence given by Feiz Khalil, Alabi and Raji Akande in another case was tendered and admitted in evidence as Exhibit “Q”. In that case Khalil said that Daryanani had come to him in September, 1951, that he could not remember if he came “in the evening or afternoon or morning” and that he could not remember the day of the week he went to Lagos. Alabi said he could not remember the month Daryanani came for the cheque, but he remembered it was on a 15th of the month, and Raji Akande said he went to Lagos with his employer about” three months ago we went to Lagos on a Friday”. This evidence was given by the three witnesses on the 9th January, 1952, and their evidence at the trial in the case now before us was given on the 5th February, 1952. Their recollection appears to have improved with the passage of time.
In view of the conflict and discrepancies in the evidence of the prosecution, can it be said that the case against the appellant was proved with that certainty which is necessary in order to justify a verdict of guilty? We have come to the conclusion that the question must be answered in the negative.. Moreover, we are not satisfied that the only inference that can be draw from the evidence given at the trial is one of guilt. Upon these grounds, therefore, we allow this appeal. and quash the conviction.
Appeal allowed.