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REX
V.
EMMANUEL KANWE ODIAKOSA
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
16TH DAY OF OCTOBER, 1944
2PLR/1944/57 (WACA)
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OTHER CITATION(S)
2PLR/1944/57 (WACA)
(1944) X WACA PP. 283 – 285
LEX (1944) – X WACA PP. 247 – 248
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
HARRAGIN, C.J., GOLD COAST
BROOKE, J.
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BETWEEN:
REX – Respondent
AND
EMANUEL KANWE ODIAKOSA – Appellant
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ORIGINATING COURT(S)
Case stated by the Judge, Kaduna Division
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REPRESENTATION
N. G. Hay — for Crown
J. E. David — for Defendant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Charge of fraudulent false accounting, under Criminal Code, section 438 – Prima facie of omission to enter items with intent to delay discovery of cash deficit – Whether accused should be called upon – case stated
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CASE SUMMARY
Upon the prosecution only establishing a prima facie case that Defendant had omitted to enter items with intent to delay the discovery of a general deficiency in the cash of his employer, the trial Judge ruled that per se that did not amount to a prima facie case of omitting to make such entries with intent to defraud within the meaning of section 438 of the Criminal Code, and stated a case inquiring whether his ruling was right, or what should be done if wrong.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
1. The trial Judge’s ruling was wrong.
2. The defendant should be called upon for his defence and that the Judge should, at the close of the case, decide whether in fact there was an intent to defraud.
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MAIN JUDGMENT
The following joint opinion was delivered:
This is a case stated under section 191 of the Criminal Procedure Ordinance (Cap. 20) by the learned Judge of the Kaduna Division.
The particular point for decision appears in the last paragraph of the case stated and reads as follows:
“Was I correct in ruling, upon the submission made by Counsel for the accused and referred to in paragraph 5 of the case stated above, that the prosecution, having made out a prima facie case that the accused, being a clerk in the employ of the Nigerian Government, had omitted to enter in a cash (or account) book belonging to the said employers of the material items mentioned in the first and third counts, respectively, on the dates therein respectively mentioned, as set out in paragraph 3(a) of the case stated above with an intent merely to delay the discovery of a general deficiency in the cash of his employers held by him, had not made out a prima facie case of omitting to make the said entries with intent to defraud within the meaning of section 438 of the Criminal Code, under which the charges were laid?
”And if I was not correct, what should be done in the premises?”
In short this might read as follows:
It is an offence under section 438 of the Criminal Code for a clerk to omit to make an entry in a cash book in order that the Auditor should not discover a general deficiency in the cash on the day of inspection if the entries are made on a subsequent date.
The answer is clearly in the affirmative.
In the 31st Edition of Archbold’s Criminal Pleading, Evidence and Practice at page 717 the following words appear when dealing with the evidence necessary to sustain a conviction for this offence:
“Prove …. that the prisoner omitted to make the entry and that it was his duty to have made it. The intent to defraud would probably be implied by the jury if they were satisfied of the wilful false entry or omission.”
It is clear that it is for the jury to decide as a matter of fact whether there was an intent to defraud when the Crown has proved wilful omission of an entry which it was his duty to make.
Nor is it necessary that the defrauding should relate solely to a pecuniary loss as will be seen in Rex v. Bassey 22 Cr. App. R. p. 160, when it was held that a fraud committed in order to procure an “admission to the Bar is a mischief against public policy none the less because its intent is not to procure money for the offender”.
Again in the case of R. v. Firling 15 E & E.D p. 1006 it was held that “an intent to defraud means an intent to deceive in such a manner as to expose any person to loss or the risk of loss.” In this case it is obvious that to delay the discovery of a general deficiency must expose the employer to the “risk of loss”.
The answer to the question is therefore that the learned Judge was wrong in finding that an intent merely to delay the discovery of a general deficiency could not be held to be an intent to defraud.
Under the premises the accused should be called upon to make his defence and at the close of the case it will be for the learned Judge sitting as a jury to decide whether in fact there was an intent to defraud.
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