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F.S.C. 387/1962








SIR VAHE BAIRAMIAN, F.J. (Read the Judgment of the Court)



CRIMINAL LAW AND PROCEDURE – Charge of stealing a particular sum – Prosecution proving only a portion -Whether conviction possible.



Chief F.R.A. Williams, Q.C. and H.O. Davies (with them, Ademola) – for the Appellant.

  1. Omo Eboh, Asst. D.P.P. (West) – for the Respondent.


BAIRAMIAN, F.J. (Delivering the Judgment of the Court): The appellant, who was convicted by the Chief Magistrate, Ibadan, on the second of two counts in the charge, failed in his appeal to the High Court, and appealed further to the Federal Supreme Court. At the hearing, on the 18th January, his appeal was allowed, and the reasons will now be given.

The first count was that the appellant stole £37 1s. Od. in August, 1957, the second that he stole £43 17s. id., both sums being the property of the Ibadan District Amateur Football Association (IDAFA for short).


The appellant was at the time a transport officer of Ibadan University College, also a member and officer of IDAFA. Prosecuting counsel, in opening the case before the magistrate, said the evidence would show that transport was hired from the College to take players from Ibadan to Sapele, and that after Sapele the team went to Warri; that the same transport took the players back to Benin, where the vehicle broke down; and that another vehicle conveyed them back to Ibadan. The prosecution’s case was that IDAFA gave the appellant £371s. 0d. in cash before the team left Ibadan for their transport, and that on their return IDAFA gave him a cheque for £43 17s. Id. for transport in respect of the same vehicle, and that it was later known that it was not accounted for to the use of the College.


The magistrate wrote in his judgment that –


“The fact that these events took place in 1957 almost five years will lead to some misrepresentation of facts on both sides not with motive to mislead the court but largely due to lapse of memory.”


He went on to say that the prosecution witness who set the case in motion was animated by a feud he had with the appellant, not by a desire to serve the ends of justice.


The learned magistrate considered the evidence on the first count and dismissed the count by comparing exhibits H and D – a comparison which showed that it was not possible on the 5th August, 1957, for the £371s. Od. to have been for transport to “Warri”; that attribution by the witness Amole was due to lapse of memory.


In regard to the second count, the judgment refers to certain facts as not in dispute. The dominant fact was a letter from the appellant, as secretary of IDAFA, to the treasurer (Amole) telling him (among other things) that at the meeting of the Management Committee on 9th September, a bill of £43 17s. ld. was approved for “Hire of transport to Sapele and Warri”. The tre­asurer issued a cheque for that amount, and the appellant paid it into his per­sonal bank account. In April 1958, the witness Ilori petitioned against the appellant on the ground that the latter had not settled the College bill for transport. The Chief Engineer of the College asked him to settle the bill, and on the 9th May, 1958, the appellant raised a job note for £15.


The appellant gave it as his defence that the £43 17s. ld. was not for the College only: there were some other expenses besides, and they were shown in a voucher, which, however, the prosecution did not produce.


The learned magistrate examined the evidence on other claims, and concluded that the appellant told the Management Committee in Sep­tember, 1957, that the amount of £43 17s. 1d. was due to the College for transport, and made a finding that it was not for anything else.


As for the rate of transport, the magistrate thought it should have been 2s. 0d. a mile, not 1s. 0d.; and as for the voucher of which the appellant spoke, although Amore said that a voucher was prepared, the magistrate thought his memory was wrong. It remains to add that it was the duty of Ilori to prepare a chit and start the ball rolling for getting payment. Ilori said he did, and that the appellant tore it up. Ilori is the clerk who had the feud with the appellant. In that regard the magistrate believed him.


The appellant was convicted on the second count as charged. The core of the magistrate’s judgment is that in the letter Exhibit E, the appellant spoke of £43 17s. Id. as having been approved for “Hire of transport to Sapele and Warri”: but, says the judgment of the High Court Judge on ap­peal –


“I can find no justification for the learned magistrate’s find­ing at p.4011. 37 – 39 when he said ‘it has been satisfactorily proved that the £43 17s. ld. was not meant for anything else than for the transport of Uni­versity College Ibadan.’


At best all that can be said is that there was some confusion in the prosecution’s stories on this matter, and in the circumstances the most judicious thing to do was for the court to resolve the evi­dence in favour of the appellant and to say that the said confusion lent some support to the appellant’s story, however weak it might do (? be).”


That, in homely language, knocked the bottom out of the magistrate’s judg­ment, according to the submission for the appellant. Before the magistrate, the prosecution presented their case on the basis that the sum in the second count was for hire of transport, and the magistrate rejected the defence that it was for anything else besides. Once the magistrate’s view was reversed, the door was opened for the defence story however weak it might be and en­titled the appellant to acquittal, if not on the ground that he had proved his defence, at any rate on the ground that the prosecution had not proved their case beyond reasonable doubt. If there could be confusion in the minds of the witnesses for the prosecution, so there might be in the mind of the appel­lant after the lapse of four and a half years; he might not be able to recollect – he could hardly be expected to recollect what the precise items and sums were that made up the amount of £43:17s: Id. in the second count.


Chief Rotimi Williams pointed out that the judgment of the High Court virtually meant that the appellant should have been convicted on a finding that he had stolen £43:17s.1d. less E15 for transport payable to the College, because he had not properly accounted for the balance of £28:17s:1d. The learned Counsel dealt with some details of the arithmetic in the judgment under appeal and said that really the account in the judgment reduced the amount to something like £13. He conceded for the purposes of the argu­ment that it was open to the court before which the person was accused of stealing a certain amount of money, to convict him of the offence of stealing if it was proved that he had stolen a portion of the amount alleged in the charge. But his point was that having regard to the particular circumstances of this case, and to the way in which the case was presented by the prosecu­tion before the Magistrate, it was not the sort of case in which in fairness to the appellant, he could have been convicted on the ground of not being able to account for a sum of money which he had received.


This judgment is confined to the particular circumstances of the case, and regard was had at the hearing to the fact that the case was presented by the prosecution on a certain basis, and it was on that basis that the defendant was notified that he should defend himself; and regard was also had to the fact that there did not seem to be any particular method of accounting ob­served by the Football Association. There may well be cases in which the in­ability to account for money received may be evidence of stealing money. This, however, was a peculiar case. There was auditing from time to time; vouchers were submitted to show the various items which made up the sum of money which was authorised for payment out and handed to the appel­lant; the evidence on whether a voucher showing the items relating to the second count had been prepared or not was confused and inconclusive; and in any event the paramount fact in the case was that the prosecution accused the appellant of stealing £43:17s:1d. which he was given to pay to the College for transport.


Mr. Omo Eboh in answering for the respondent accepted without hesi­tation the fact that the prosecution’s case was solely that as presented before the Magistrate. He could not support the approach and reasoning in the judgment under appeal. He told the Court that the conviction stood or fell according as there could be a finding that the appellant was given £43 odd to pay the College for transport; alternatively on a finding that he did not pay at the time the £15 to the college which he admitted was due. Otherwise he could not justify the conviction on the ground of the High Court finding re­lating to the £28 odd, unaccounted for, on which the High Court upheld the conviction.


Mr. Omo Eboh recognised that he was faced with this difficulty: the ap­pellant was not complaining against the Judge’s finding that the magistrate was not justified in deciding that the £43 odd was not meant for anything other than for the transport of University College, Ibadan, or against the Judge’s implied finding that the appellant was not guilty of stealing the £15 he was so late in paying for that transport; consequently those findings were not in issue for argument in the appeal and could not be canvassed on behalf of the respondent. Having regard to the case presented by the prosecution against the appellant at his trial before the magistrate, Mr. Omo Eboh told the Court that he could not ask the Court to uphold the conviction on either of the two bases on which, but for the Judge’s findings to the contrary, it could have stood, viz –


(a)     that the £43 odd was given to pay the College for transport, or


(b)     that the appellant stole £15 of that money, being £15 for such transport.


The net effect was that learned counsel for the respondent could not support the judgment under appeal, and that judgment was therefore set aside.


BRETT, F.J.: I concur.


TAYLOR, F.J.: I concur.


Appeal Allowed.


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