–
REX
V.
PETERS UDO AKPABIO
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
3RD OF MAY, 1944
2PLR/1944/45 (WACA)
–
OTHER CITATION(S)
2PLR/1944/45 (WACA)
(1944) X WACA PP. 181 – 185
LEX (1944) – X WACA PP. 181 – 185
–
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
BAKER, J.
BROOKE, J.
–
BETWEEN:
REX – Respondent
AND
PETERS UDO AKPABIO – Appellant
–
ORIGINATING COURT(S)
Appeal from the decision of the High Court, Calabar
–
REPRESENTATION
N. G. Hay — for Crown
A. Alakija — for Appellant
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Stealing by Agent: section 390(8)(b) of the Criminal Code – Fraudulent False Accounting: section 438(c) of the Criminal Code – Fraudulent Intent – Onus of proof.
–
CASE SUMMARY
The defendant was charged –
(1) with stealing £4 10s. 5d. entrusted to him as Honorary Treasurer of a Union Branch to pay into a Win-the-War Fund;
(2) with omitting to enter that sum in the Branch book with intent to defraud;
(3) with stealing £7 entrusted to him as such Treasurer to pay into the said Fund.
The facts were that on 22nd November, 1941, he was handed £4 10s. bd., for which he did not account in the Branch book, but which he paid into the Government Local Treasury on 16th April, 1943. He admitted receiving another £15 in all, £8 of which he paid into the Treasury on 16th April, 194-3, and £7 on 26th April, 1943. The trial Judge found that though suspicious the retention of the £4 10s. 5d. for a long time did not establish stealing by conversion and acquitted the defendant on count 1.
On (2) the Judge thought the defendant was a servant or clerk of the Union with a duty to account and that his omission to account for the £4 10s. 5d. sufficiently indicated a fraudulent intent, and convicted the defendant on count 2. As regards count (3) the Court thought that as at the meeting of 17th April, 1943, the defendant did not say the £7 had been received and had not paid it in on 16th April, he did not believe defendant’s story of receiving the £7 between 17th and 22nd April, when he admitted receiving the £7 to a witness, and found that defendant had received the £7 prior to 16th April and was guilty of fraudulent conversion, whereupon he convicted him on count 3.
–
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal) that:
1. as defendant chose to do the duties of a treasurer, he was, though unpaid, acting in the capacity of a clerk or servant to the Union, but that in view of the acquittal on the first count of stealing by an agent regarding the £4 10s. 5d., the necessary intent to defraud could not be held as proved on the second count of fraudulent false accounting.
2. in regard to the third count, that the onus of proving receipt of the £7 prior to 16th April, 1943, being on the prosecution, which it failed to discharge, he should not have been convicted on the ground that he failed to disprove receipt prior to that date, there being no onus on him.
–
–
MAIN JUDGMENT
The judgment of the Court was delivered by the President:-
In this case the Appellant was charged in the High Court of the Calabar-Aba Judicial Division upon three Counts with the particulars as shown:-
“STATEMENT OF OFFENCE 1st Count
Stealing by Agent contrary to section 390(8)(b) of the Criminal Code.
”PARTICULARS OF OFFENCE
“Peters Udo Akpabio on or about the month of January, 1942 in Ikot Ekpene Division of the Calabar Province did steal the sum of £4 10s. 5d. which had been entrusted to him as Honorary Treasurer of the Ikot Ekpene Branch of the Ibibio Union for him the said Peters Udo Akpabio to pay into the Win-the-War Fund.
”STATEMENT OF OFFENCE 2nd Count
Fraudulent False Accounting contrary to section 438(c) of the Criminal Code.
”PARTICULARS OF OFFENCE
“Peters Udo Akpabio on or about the month of November, 1941 at Ikot Ekpene, in the Calabar Province while acting in the capacity of Honorary Treasurer of the Ikot Ekpene Branch of the Ibibio Union did with intent to defraud omit a material particular from the book of the said Branch of the Ibibio Union to wit: did omit entry of the sum of £4 10s. 5d. received on the said day from Mr. John Udo Udo Ebong.
”STATEMENT OF OFFENCE 3rd Count
“Stealing by Agent contrary to section 390(8)(b) of the Criminal Code.
”PARTICULARS OF OFFENCE
”Peters Udo Akpabio on or about the month of April, 1943, at Ikot Ekpene in the Calabar Province did steal the sum of £7 which had been entrusted to him as Honorary Treasurer of the lkot Ekpene Branch of the Ibibio Union for him the said Peters Udo Akpabio to pay into the Win the War Fund’,
The Appellant was acquitted upon the first Count but convicted upon Counts 2 and 3 and sentenced to 12 months I.H.L. on each Count, the sentences to run concurrently.
Against these convictions he has appealed to this Court.
The undisputed facts found by the learned trial Judge are—
“that accused was the honorary or unpaid Treasurer throughout the period under review of a local branch, situated in Ikot Ekpene, of an association known as the Ibibio Union, a co-operative society, so named after the indigenous tribe inhabiting that area. He held also during the same period, the paid official position of Native Administration Treasurer of the Ikot Epene Division.
“At a meeting of the Union held on 22nd November, 1941, the accused, as treasurer of the Union, was handed by John Ebong, the auditor of the whole Union, the sum of £4 10s. 6d., the proceeds of a “rally”, held on 8th November, to collect funds for a fund known as “Win the War Fund”.
“This sum was not accounted for in any way in any of the books of the Union, and was paid into the Government local treasury by accused on 16th April, 1943. . . . The sum of £4 10s. 5d. is the subject matter of the first two charges.
”At the meeting held on 22nd November, 1941, it was also decided that the Union members in all Court areas, nineteen in all, should each contribute a sum of £1 to the Win the War Fund. This fact also is admitted by accused, and so is not in dispute, also that no sum contributed in the way was accounted for by accused in the books of the Union. He admits receiving the sum of £16 in all from the Courts. This sum of £I5 was paid in by accused, in two instalments, one on I6th April, I943, to the Treasury (a sum of £8) and the balance, £7, on the 26th April, 1943, also to the Treasury.”
The Judge set out the main facts in issue as follows:-
”First, whether accused was aware that he was expected to account for these sums or any sum, in respect of ‘Win the War’ as distinct from the ordinary funds of the Union passing through his hands, and second, whether he was expected to pay them over immediately to Government as received, or to retain them in his hand indefinitely, until all were received. Third, whether the sum of £7 paid in by him on 26th April, 1943, was received from the Courts between I7th and 26th April, 1943.”
In effect the learned trial Judge answered the first and the first part of the second of these questions in the affirmative, and the third question in the negative.
In acquitting the Appellant on the first Count the Judge said:-
“The mere retention of the sum of £4 10s. 5d. for so long and in such circumstances, though it raises grave suspicions as to his good faith does not in my opinion involve an overt act definite enough to amount to the conversion of it so as to establish the offence of stealing under section 890.”
Upon the second Count the learned trial Judge first considered whether the Appellant was a clerk or servant of the Union within the meaning of the definition of those terms given in section 1 of the Criminal Code and held that he was.
The Judge further held that it was the duty of the Appellant to account for the sums received as contributions to the Win the War Fund and that the Appellant had not accounted for them in any way.
The learned trial Judge then considered the question of fraudulent intent and held.
“The retention of the money therefore in such circumstances is to my mind in my capacity of jury, sufficient indication of fraudulent intention on the part of the accused when he omitted the entry of the receipt of the sum of £4 10s. 5d. in his cash book which without doubt was a particular material to the welfare of the Union. His action can bear no other interpretation.”
The Judge thereupon recorded a verdict of “guilty” upon Count 2.
Upon the third Count the learned trial Judge said:-
”If accused at the meeting of 17th April, had produced this amount, or had paid it in with the other monies on 16th April, or had even announced its receipt, I think that he would on that account have been entitled to an acquittal on a charge of stealing it. He did none of these things.
”He stated, of course, that this amount had not then been received, and that he informed the meeting the number of Courts that had paid and that the remainder, among them these seven referred to, were ordered to pay up at once under penalty. What penalty could have been enforced so as to cause seven Court areas to collect and pay in a sum of £l each within five days was not specified.
”I therefore feel bound to believe the evidence of the witness, Ekam, the Secretary, and those who supported him, that no reference was made by accused at that meeting, to the number of Courts that had not paid, and that when he told the meeting that the sum of £12 10s. 6d. paid in by him was the total received by him in respect of the war fund, he was not speaking the truth, and that it was only on being pressed by Ekam at a subsequent meeting that he admitted the receipt of the £7, paid in later by him on 26th April.
“I do not believe, and it is unsupported by any evidence other than that of accused, though such support should easily be forthcoming that accused did in fact receive this sum between the ith April and the 22nd when he admitted its receipt to Mr. Elam; and I do not believe that he informed this witness that he had received these amounts within the previous five days.
“I therefore find that accused did in fact receive this sum of £7 prior to 16th April, 1948, and was unable to produce it on that day or next, and so was obliged to conceal its absence by false hood at the meeting of 17th April.
“I can only conclude, and so find, that accused converted this sum to his own use or with intent to use it at will, and therefore did it fraudulently in accordance with the definition contained in section 383 (f) of the Criminal Code, even if in fact he hoped or intended subsequently, to repay it to the Union.
The Judge thereupon convicted the Appellant upon the third Count.
The grounds of appeal are 6 in number, Nos. 1, 2, 5 and 6 attack the conviction on Count 2, they are—
1. The prosecution failed to prove that I was a clerk or servant of the Ibibio Union, Ikot Ekpene Branch.
2. Because the prosecution failed to prove that any legal duty was imposed upon me to enter up the sum of £4 10s. 6d. in the Cash Book it being not exactly Union money.
5, Because omission of £4 10s. 5d. is not omission of a material particular.
6. Because the omission to insert the £4 10s. 5d. in the Cash Book is consistent with my innocence.”
Ground 1 raises a nice point of law which seems never to have been definitely decided, viz.: whether an Honorary Treasurer oi a Union is a person employed or acting in the capacity of clerk or servant to the Union?
In passing we should point out that the particulars would have been better worded-
“While acting in the capacity of a clerk or servant to wit, as Honorary Treasurer, of the Ikot Ekpene Branch, etc.”
Difficulty arises in deciding whether a person is acting in the capacity of a clerk or servant when, as in the case of Outlines of Criminal Law puts it like this:
“A periodical salary or wage is some evidence of the recipient’s being a servant; hence it is common for societies to pay their treasurers a nominal yearly sum, such as a shilling, to secure the protection of the law of embezzlement.”
But the true test appears to be indicated by the words of Brett. J. in Reg. v. Foulkes (13 Cox’s Criminal Cases p. 63 at p. 67).
The prisoner undertook to do certain things for his father in the way in which a clerk does for money; and as long as he chose to do them — although it may have been voluntarily on his part-he was bound to do them honestly, a clerk would have done them. As he did dishonestly, I think he was liable under the circumstances for embezzlement.”
Applying that test, we think that although the Appellant performed the duties of Treasurer voluntarily and without payment, so long as he chose to do them he was acting in the capacity of a clerk or servant to the Union.
This ground therefore fails.
As to grounds 2 and 5 the sum of £4 10s. 5d. was not ordinary revenue of the Union and it was incumbent upon the Prosecution to show that it was the duty of the Appellant to pass the sum through the books of the Union. There was evidence-though, in our view, not very satisfactory evidence-to that effect.
The Judge accepted the evidence and we cannot overrule him on this question of fact. These grounds of appeal therefore also fail.
Ground 6 puts in issue, inter alia, the question of whether intent to defraud was proved ; and on this point learned Counsel for the Crown in this Court has intimated that he does not seek to uphold the conviction since he thinks that the acquittal on Count 1 automatically negatives a finding of intent to defraud upon Count 2.
We agree with him, and of course, with Counsel for the Appellant that, in view of the acquittal on the first Count the necessary intent to defraud cannot be held to have been proved upon the second Count.
This ground of appeal succeeds and the conviction on Count 2 cannot be sustained.
Grounds 3 and 4 of the grounds of appeal which attack the conviction upon Count 3 are as follows:
“3. The prosecution failed to discharge the onus of proof of the alleged theft of £7.
4. Because there was no theft or conversion of £7.”
These grounds put in issue of the correctness of the finding that the Appellant received the sum of £7 prior to the 16th April. As to this the learned trial Judge seems to have overlooked that the onus was upon the prosecution to prove the earlier receipt, and not upon the Appellant to disprove it. In fact the only direct evidence on the point is that of the Appellant himself that he had not yet received the money on the 16th April. If in fact the money was paid earlier the Prosecution could and should have called the respective payers to prove the dates of payment; by omitting to do so the Prosecution failed to call the best evidence available and failed to discharge the onus of proving the case for the Crown.
Counsel for the Crown in this Court has intimated that he cannot support the conviction on this Count, and we agree that it cannot he sustained.
The appeal is allowed, the convictions and sentences upon Counts 2 and 3 are quashed and it is directed that in respect of all Counts a judgment and verdict of acquittal be entered.
The Appellant is discharged.
–