3PLR – AKINLOYE V. WEY

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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AKINLOYE

V.

WEY

SUPREME COURT OF NIGERIA

SC. 601/1964

10TH JUNE, 1966.

3PLR/1966/21  (SC)

 

BEFORE THEIR LORDSHIPS:    

SIR ADETOKUNBO ADEMOLA, C.J.N. (Presided and Read the Judgment of the Court)

SIR LIONEL BRETT, J.S.C.

SIR VAHE ROBERT BAIRAMIAN, J.S.C.

GEORGE BAPTIST AYODOLA COKER, J.S.C.

CHUKWUNWEIKE IDIGBE. J.S.C.

 

BETWEEN

1. HENRY AKINOLA AKINLOYE
2. ONWURA ZONYEUMO CHIAZOR
3. SAMUEL AKINOLA DUYILE

 

AND

COMMODORE J.E.W. WEY

 

REPRESENTATION

Chief F. R. A. Williams (with him, S.A.S. Sowemimo) – for the 1st Ap­pellant

Chief F.R.A. Williams (with him, Adesanya and Akesode) – for the 2nd Appellant

1. O. Akinrele – for the 3rd Appellant
2. S. Arthur-Worrey, Legal Adviser to the Ministry of Defence – for the Respondent

 

MAIN ISSUES

CRIMINAL LAW AND PROCEDURE – Charges – Alternative charges cancelled by Judge Advocate after verdict of “guilty” had been pro­nounced – Whether proper.

CRIMINAL LAW AND PROCEDURE – Charges – Paucity of particulars – Failure of defence Counsel to ask for further and better particulars – Ef­fect.

CRIMINAL LAW AND PROCEDURE – Charges laid under S.48 Navy Act, 1964 to cover period when Act was not in force – Whether convic­tion recorded thereunder sustainable.

WORDS AND PHRASES – “Lose” in S.64 of Navy Act – Meaning of

 

MAIN JUDGEMENT

ADEMOLA, C.J.N. (Delivering the Judgment of the Court):

The appel­lants have appealed against the judgment of a Court Martial before which they were arrainged on 15 charges under the Navy Act 1964. The charges laid are as follows:­

 

First Charge:

 

Between May, 1964 and June, 1964, they Commander Henry Akinola Akinloye and Lieutenant Samuel Akinola Duyile while performing the duty of Fleet Supply Officer, and Stores Purchas­ing Officer respectively, Nigerian Navy, did cause the loss of cer­tain public property, namely Four Thousand, Five Hundred and Eighty-Six Pounds. Ten Shillings and Eight Pence (£4,586. 10.8d) by failing to ensure that prices charged by the Omotola Builders for the supply of hardware to the Nigerian Navy, were not in ex­cess of that approved by the Armed Forces Tenders Board.

 

Second Charge:

 

Between May, 1964 and June, 1964, they Commander Henry Akinola Akinloye and Lieutenant Samuel Akinola Duyile while performing the duty of a Fleet Supply Officer, and Store Pur­chasing Officer respectively. Nigerian Navy, did cause the loss of certain public property, namely Four Thousand, Nine Hundred and Seventy-Four Pounds and Seventeen Shillings (£4,974.17.0d.) by failing to ensure that the prices charged by James Construction Company for the supply of Timber to the Nigerian Navy were not in excess of that approved by the Armed Forces Tenders Board.

 

Third Charge:

 

Between March and July, 1964, he Commander Henry Akinola Akinloye did cause the loss of certain public property namely, Seven Thousand, Eight Hundred and Sixteen Pounds and Ten Pence (£7,816.0.10d.) by failing to ensure that due economy was observed in the excess prices charged by the Woodland Group Printers for the supply of stationery to the Nigerian Navy, con­trary to the provisions of Commodore’s Temporary Memoranda Nos. and 252 and Commodore’s Standing Orders Nos. 1904 and 1905.

 

Fourth Charge:

Between March, 1964 and July, 1964, Commander Henry Akinola Akinloye did negligently perform the duty imposed upon him as the Fleet Supply Officer Nigerian Navy, in that he failed to ensure that the prices charged by the GBOLBAL Nigeria Company were “Fair and reasonable” according to cur­rent local rates, contrary to the provisions of the Financial In­structions paragraph 510 of 1962.

 

Fifth Charge:

 

Between May and July, 1964, he Commander Henry Akinola Akinloye did fail to comply with Commodore’s Temporary Memorandum No.188 dated 21st May, 1963, being provisions known to him.

 

Sixth Charge:

 

Between March and July, 1964, he Commander Henry Akinola Akinloye was guilty of neglect to the prejudice of good order and naval discipline in not taking proper precautions to ensure that the prices charged by contractors for the supply of hardware, timber and stationery to the Nigerian Navy were “Fair and reasonable according to current local rates in accordance with paragraph 510of the 1962 Financial Instructions, thereby causing the Nigerian Navy to lose the sum of Twenty-nine Thousand, Two Hundred and Twenty-one Pounds and Sixteen Shillings (£29,221. 16s. 0d).

 

Seventh Charge:

 

Between October, 1963, and March, 1964, he Lieutenant Com­mander Onwura Zonyeumo Chiazor while performing the duty of Fleet Supply Officer, Nigerian Navy, did cause the loss of cer­tain public property, namely Twenty-Four Thousand and Eighty-Four Pounds and Eight Pence (£24,084.0s.8d.) by failing to ensure that due economy was observed in the prices charged by Omotola Builders for the supply of hardware to the Nigerian Navy contrary to the provisions of Commodore’s Temporary Memoranda Nos. 188 dated 21st May, 1963, and 252 dated 31st December, 1963.

 

Eighth Charge:

 

Between October, 1963, and March, 1964, he Lieutenant Com­mander Onwura Zonyeumo Chiazor while performing the duty of Fleet Supply Officer, Nigerian Navy, did cause the loss of cer­tain public property, namely, Three Thousand, Three Hundred and Ninety-eight Pounds Seventeen Shillings and Ten Pence (0,398.17s. 10d.) by failing to ensure that due economy was ob­served in the prices charged by the James Construction Company for the supply of timber to the Nigerian Navy contrary to the pro­visions of Commodore’s Temporary Memoranda Nos. 188 dated 21 st May, 1963, and 252 dated 31st December, 1963.

 

Ninth Charge:

 

Between October, 1963 and March, 1964, he Lieutenant Com­mander Onwura Zonyeumo Chiazor while performing the duty of Fleet Supply Officer, Nigerian Navy, did cause the loss of cer­tain public property namely, One Thousand and Seventy-eight Pounds, Fifteen Shillings and Five Pence (£1,078.15.5d.) by fail­ing to ensure that due economy was observed in the prices charged by the Woodland Group Printers for the supply of stationery, to the Nigerian Navy contrary to the provisions of Commodore’s Temporary Memoranda Nos. 188 dated 21st May, 1963, and 252 dated 31st December, 1963.

 

Tenth Charge.

 

Between October, 1963 and March, 1964, he Lieutenant Com­mander Onwura Zonyeumo Chiazor did negligently perform the duty imposed upon him as the Fleet Supply Officer, Nigerian Navy, in that he failed to ensure that the prices charged by the Gbolbal Nigeria Company were “Fair and reasonable” according to current local rates contrary to the Financial Instructions parag­raph 5111 of 1962.

 

Eleventh Charge:

 

Between October, 1963 and March, 1964, he Lieutenant Com­mander Onwura Zonyeumo Chiazor, while performing the duty of Fleet Supply Officer, Nigeria Navy, did fail to comply with Commodore’s Temporary Memoranda Nos. 188 dated 21st May. 1963 and 252 dated 31st December, 1963 being provisions known to him.

 

Twelfth Charge:

 

Between October. 1963 and March, 1964, the\ Lieutenant Com­mander Onwura Zonyeumo Chiazor and Samuel Akinola Duyile while performing the duty of Fleet Supply Officer and Stores Purchasing Officer respectively, Nigerian Navy, were guilty of neglect to the prejudice of good order and naval discipline in not taking proper precautions to ensure that money charged by con­tractors for the supply of hardware, timber and stationery to the Nigerian Navy were “Fair and reasonable according to current local rates” in accordance with Commodore’s Temporary Memoranda, Commodore’s Standing Orders and Financial In­structions, thereby causing the Nigerian Navy to lose the sum of Twenty-eight Thousand, Five Hundred and Sixty-one Pounds, Thirteen Shillings and Eleven Pence (£28,561.13s.11d.)

 

Thirteenth Charge:

 

Between October, 1963 and July 1964, he Lieutenant Samuel Akinola Duyile while performing the duties of a Store Purchas­ing Officer did cause the loss of certain public property, namely. Eight Thousand, Eight Hundred and Ninety-Four Pounds. Six­teen Shillings and Three Pence (£8.894.16s.3d) by failing to en­sure that prices charged by the Woodland Group Printers for the supply of stationery to the Nigerian Navy were “Fair and reason­able according to current local rates.”

 

Fourteenth Charge:

 

Between October. 1963 and July, 1964, Lieutenant Samuel Akinola Duyile did negligently perform the duty imposed upon him as the Stores Purchasing Officer, Nigerian Navy, in that he failed to ensure that prices charged by the Gbolbal Nigeria Com­pany were “Fair and reasonable” according to current local rates.

 

Fifteenth Charge:

 

Between October, 1963 and July, 1964, he, Lieutenant Samuel Akinola Duyile while performing the duties of a Stores purchas­ing Officer did fail to comply with paragraph 510 of the 1962 Fi­nancial Instructions and Commodore’s Temporary Memoran­dum No. 188 dated 21st May, 1963, being provisions known to him.

 

These charges can be grouped under four sections of the said Navy Act as follows:­

 

Group A: under Section 64 of the Act, the following charges, that is to say, Nos. 1,2,3,7,8,9 and 13

 

Group B: under Section 40 of the Act, the following charges, that is to say, Nos. 4, 10 and 14.

 

Group C: under Section 48, that is to say, charges Nos. 5,11 and 15.

 

Of these, they were acquitted on charge No. 4 in Group A.

 

The 1st appellant at the material time was a Commander in the Navy, and his duties were those of Fleet Supply Officer; the 2nd appellant was Lieutenant Commander and in the absence of the 1st appellant on study course in England performed the duties of Fleet Supply Officer, whilst the 3rd appellant a Lieutenant, was the Stores Officer. The charges relate to the period October, 1963 to July 1964; the 1st appellant was abroad from Oc­tober, 1963 to March 1964 and the 2nd appellant acted for him during the period, but he took over and performed the duties from March to July, 1964.

 

The complaint in the charges was that certain goods, namely, hardware, timber and stationery were purchased locally in Local Purchase Orders and Works Orders made out by the 3rd appellant as Store-Keeper, and that pay­ments were sanctioned by the Fleet Supply Officer, namely 2nd appellant during the period October, 1963 to March, 1964 to July, 1964, as officer in charge of expenditure; that the amounts so paid at different times were very much in excess of the value of the goods and that an amount of about £60,(0(1 was wasted out of Navy funds during the period. The contractors to whom these overpayments were made are said to be (i) Omotola Builders, (ii) James Construction Co., (iii) Woodland Group Printers, and (iv) Gbolbal Nigeria Company.

 

As can be seen from the charges as set out above there was no allegation that the monies were fraudulently misapplied or that the goods were not bought. The allegations were that the appellants were careless in making these excessive overpayments. The appellants themselves did not dispute the fact that the overpayments alleged in the relevant counts were made. We shall however come to consider their defence at a later stage.

 

Before the passing of our Navy Act which came into force on 7th May, 1964, the discipline of the Navy was regulated by the English Naval Discip­line Act 1957 as applied by the Royal Nigerian Navy Act, 1960. The sections on offences in our Act were modeled on the English Act, and some transitional provisions were made in the Third Schedule of the local Act. The only question raised in regard to the laying of the charges under the local Act in this matter concerns charges No. 11, which is laid under Section 48 of the Navy Act, 1964, and which relates to the period October, 1963, to March, 1964, a period when the Act was not in force. The English Act which was in force during that period curiously enough has not a provision analogous in express terms to our Section 48. It was argued for the defence that a charge could not therefore be laid under Section 48. The court accepts the argument and the conviction recorded therefore on Count 11 cannot be sustained and it must be set aside.

 

We now come to consider the charges (Nos. 1,2,3,7,8,9 and 13) in Group A (above) laid under Section 64 of the Navy Act 1964. The section is as follows:­

 

“64.   Any person who –

 

(a)     loses any public or service property of which he has the charge or which has been entrusted to his care or which forms part of property of which he had the charge or which has been entrusted to his care; or

 

(b)     by negligence damages any public or service property of which he has the charge or which has been entrusted to his care; or

 

(c)     by negligence causes damage to any public or service prop­erty; or

 

(d)     fails to take proper care of any animal or bird used in the public service which is in his charge; or

 

(e)     makes away (by pawning or in any other way) with any naval decoration granted to him or any clothing, arms, am­munition or other equipment issued to him for his use for naval purposes, shall, on conviction by Court Martial, be li­able to imprisonment for a term not exceeding two years or to any less punishment provided by this Act:”

 

Provided that it shall be a defence for any person charged under paragraph (a) of this section with losing any property that he took reasonable steps for the care and preservation thereof.”

 

The relevant section in the English Act similar to our Section 64 seems to be section 30 (English Act) the provisions of which are as follows:­

 

”(1)   Every person subject to this Act who –

 

(a)     loses any public or service property of which he has the charge or which had been entrusted to his care or which forms part of property of which he has the charge or which has been entrusted to his care;

 

(b)     negligence destroys or damages any public or service prop­erty or allows any such property to be destroyed or dam­aged; or

 

(c)     wastefully expends any such property, shall be liable to im­prisonment for a term not exceeding two years or any less punishment authorised by this Act.

 

(2)     It shall be a defence for a person charged under this section with losing any property that he took reasonable steps for its care and preservation.

 

A careful examination of these two sections (64 of the Navy Act, 1964 and 30 of the English Act) shows that the local section contains in one way more than the English section, and in another sense less than the English section. Paragraphs (d) and (e) of the local section are new and not in the English section, whilst paragraphs (a), (b) and (c) correspond to paragraphs (a) and (b) of the English section, but the word “destroys” has been left out; also the words “wastefully expends any such property” in paragraph (a) of the English section are not to be found in the local section. These words “wastefully expends any such property” which are left out of the local sec­tion no doubt are the words which would have been apt for the prosecution in this matter.

 

In the Group A of the Charges, the prosecution relies on paragraph (a) of section 64, which makes it an offence for one to “lose” property entrusted to him or under his charge. The particulars of offence in each of these charges allege that the appellants “did cause the loss of certain property. The case for the prosecution was that they wasted the money, and Mr.. Ar­thur-Worrey, for the Respondent has asked us to hold that the word “lose” means “waste.” He referred us to the Concise Oxford Dictionary of Current English where the word “waste” is said to mean, in one of its senses “lose.” This in our view depends on the context in which the word is used, and in our opinion the word “lose” in the context of section 64 cannot be taken to mean “waste” and in any case it was not legitimate to use the words “cause the loss of as in these charges. We therefore hold that section 64(a) of our Act (Navy Act) cannot be taken to include the word “waste” and therefore the charges alleging “cause the loss of” cannot be sustained, and charges Nos. 1,2,3,7,8,9 and 13 must be rejected and convictions under these charges must be set aside.

 

This Court is fully of the opinion that Section 64 of the Navy Act should be amended, without delay, to include the word “destroy” and the words “wastefully expends any such property.”

 

In regard to Group B, comprising charges 10 and 14 laid under Section 40 of the Navy Act, the section provides –

 

“40.   Any person who neglects to perform or negligently performs any duty imposed on him shall be liable to dismissal with disgrace from the armed forces of Nigeria or to any less punishment pro­vided by this Act.”

This in our view, is in keeping with Section 7 of the English Act. In sub­stance, they are the same although the wording differs a little. The relevant English section reads:­

 

“Every person subject to this Act who neglects to perform or negligently performs any duty imposed on him shall be liable to dismissal with disgrace from Her Majesty’s service or any less punishment authorised by this Act.”

 

The 10th charge charges the 2nd appellant with negligence in the perfor­mance of his duty as Fleet Supply Officer, whilst the 14th charge deals with the 3rd appellant’s negligence in his performance of his duty, as the Stores Purchasing Officer. The substance of these two charges will be considered later in this judgment.

 

Group C which comprises charges 5 and 15 and laid under Section 48 of the Navy Act now comes up for our consideration. Section 48 reads:

­

”48. (1) Any person who contravenes or fails to comply with any provision of orders to which this section applies, being a provision known to him, or which he might reasonably be expected to know, shall on conviction by Court Martial be liable, to imprisonment for a term not exceeding two years or to any less punishment provided by this Act.

 

(2)     This section applies to naval regulations, standing orders or memoranda, captains or departmental orders or routine or­ders of a continuing nature.”

 

The 5th charge charges the 1st appellant with failure to comply with the Commodore’s Temporary Memorandum No. 188 dated 21st May, 1963, whilst the 15th charge dealt with the 3rd appellant with failure to comply with paragraph 510 of the 1962 Financial Instructions and the Commodore’s Temporary Memorandum No. 188 dated 21st May, 1963.

 

In regard to these two charges (5th and 15th) we pause to observe that the charges do not state in what way the two appellants failed to comply with the Commodore’s Temporary memorandum No. 188 or paragraph 510 of the 1962 Financial Instructions. The question we have to consider is whether the two charges were faulty in this respect. This court has held, in similar cir­cumstances, that where an appellant had learned Counsel to defend him at trial, and further and better particulars were not asked for, doubtless be­cause he knew enough from the nature of the charge or from other charges with which he is charged, it will be regarded that the appellant was not em­barrassed in his defence, and this court will not interfere with the conviction resulting from the charge. (See R. v. Omisade & Ors. (1964) N. M. L. R. 67; [196411 S.C.N.L.R. 394. In the circumstances therefore, we are of the opin­ion that the paucity of the particulars in Charges No. 5 and No. 15 did not embarrass the 1st and 3rd appellants in this appeal in their defence at the Court-Martial.

 

We now come to Group D embracing charges Nos. 6 and 12 laid under Section 79 of the Navy Act 1964. The section reads:­

 

“79.   Any person who is guilty of any conduct or neglect to the pre­judice of good order and naval discipline shall. on conviction by Court Martial, be liable to imprisonment by a term not exceeding two years or to any less punishment provided by this Act.”

 

This is not dissimilar, in substance to section 39 of the English Act, which provides that –

 

“Every person subject to this Act who is guilty of any act. disor­der or neglect to the prejudice of good order and naval discipline not described in the foregoing provisions of this Act shall be li­able to dismissal with disgrace from Her Majesty s service or any less punishment authorised by this Act.”

 

The 6th charge charges the 1st appellant with neglect between March and July, 1964, to the prejudice of good order and naval discipline in not taking proper precautions to ensure that prices charged by contractors for the sup­ply of various articles enumerated therein to the Nay were “Fair and reasonable according to current local rates” in accordance with paragraph 510 of the 1962 Financial Instructions thereby causing the Navy to lose the sum of £29,221.16s.0d. The 12th charge, on the other hand, deals with the 2nd and 3rd appellants for their neglect, between October, 1963 and March, 1964, to ensure that money charged by contractors for the supply of various articles enumerated to the Navy, were “fair and reasonable according to cur­rent local rates” in accordance with Commodore’s Temporary Memoranda, Commodore’s Standing Orders and Financial Instructions, thereby causing the Navy to lose the sum of £28,561.13.11d.

 

It is worth mentioning in this connection that the reference was made to paragraph 510 of the 1962 Financial Instructions only in the case of the 1st appellant because he was on leave at the time the Commodore’s Temporary Memorandum (No. 252) dated 31st December, 1963 which took effect from the beginning of 1964, was made. He apparently stated during investigations that he was not aware of it. These various Memoranda, Standing Orders, and Financial Instructions will be explained later in this judgment.

 

Before we dispose of these two charges (6 and 12), we feel it our duty to refer to a recorded incident in the Court Martial after the verdict in respect of these two charges. After the findings of guilt on the charges were pro­nounced, the Judge Advocate said that charges 6 and 12 were “alternative charges to the substantial charges’ and that it would be wrong in law to say that the accused persons were “convicted of those alternative charges”, “, he said further:­

 

“They are hereby deleted from the record of finding sheet by me and are, therefore, of no consequence to the record.”

 

He then proceeded to invite the Court Martial to cancel them, but the Pres­ident’s only remark was “You may do so before your signature.” The Judge Advocate, it seems, did so.

 

We invited arguments before us on this point and learned Counsel on both sides were in agreement that the Judge-Advocate had no authority to delete charges 6 and 12. It was suggested by one of the learned Counsel that the deletion should be regarded as merely voidable and not a nullity, and he submitted that it ought not to be disturbed as there was no cross-appeal.

 

In the opinion of this Court the deletion was made without authority and therefore null and void; the convictions which followed must therefore stand. Fortunately, there were no separate punishments inflicted on these charges; it was one general punishment passed on each appellant on all the charges in which a verdict of guilt was returned; as such there can be no ques­tion of being punished twice for one offence.

 

Before proceeding to deal with the arguments before us on appeal, we would like to refer briefly to some important Exhibits in the case and to state shortly what part they play in the system of control in the Navy. We refer to the Commodore’s standing orders, the Commodore’s Temporary Memoranda and Financial Instructions:­

 

(1)     “Commodore’s Standing Order No.1904 “dated 26th May, 1960. This states that the paymaster is responsible for the receipt, cus­tody, control and disbursement of the Navy’s Funds. This is Exhibit H (Note -The office of paymaster later became known or merged in that of Store’s Purchasing Officer).

 

(2)     Commodore’s Temporary Memorandum No. 188 dated 21st May, 1963. This is admitted as Exhibit D. It refers to Exhibit H and states that the Fleet Supply Officer “is in overall control of all expenditure authorised under the Current Expenditure voted for 1963/1964”; and in paragraph 6 he is nominated as the Control­ling Officer (inter alios) for the expenditure described in item 3 “Office and General” and in item 9 “General Stores.”

 

(3)     Next comes “Commodore’s Temporary Memorandum No. 252” and dated 31st December, 1963. This is Exhibit E. It refers to Exhibit D, and takes away from the officer controlling vote named in Exhibit D the power to issue Local Purchasing Orders. It states that beginning with 1964 all Local Purchases Orders will be issued by a central organisation under the Supervision of the Fleet Supply Officer.

 

(4)     And lastly, comes Financial Instructions No. 510 which provides as follows:­

 

“510.           The signature of the officer controlling a vote or an of­ficer signing for him, certifies to the accuracy of every detail on the voucher. He will, therefore, be held re­sponsible that the services specified have been duly per­formed, that the prices charges are either according to contracts or approved scales, or fair and reasonable ac­cording to current local rates, that authority has been obtained as quoted, that the computations and castings have been verified and are arithmetically correct, and that the persons named in the vouchers are those enti­tled to receive payment, and that stores purchased have been duly taken on charge or correctly issued for im­mediate consumption if they are expendable.”

 

It may be a convenient place here to deal with arguments put before us about Commodore’s Temporary Memorandum No. 188 and Commodore’s Temporary Memorandum No. 252. It was submitted that No. 188 which re­fers to the Financial year 1963/1964, expired on the 1st April, 1964, when the new financial year commenced. We are unable to accept this submission as No. 252 does not revoke No. 188. We are of the view that No. 188, subject only to the amendment made by No. 252 continues to be in force, and will so continue until such time as it is revoked or replaced by another. Commo­dore’s Temporary Memorandum or in a Commodore’s Standing Order.

 

As we stated earlier the verdict of the Court-Martial on the charges pre­ferred against the appellants was one of guilt on all but the 4th charge in Group B. Like the verdict of a jury, it is inscrutable; we are not told by what reasoning they arrived at their verdict, but it is clear at any rate, that the ver­dict means that the appellants were negligent and were to blame for the amount of overpayments made.

 

The defence generally before the Court Martial and the arguments be­fore us for each appellant is that he was wrongly convicted having regard to his own duties. The appellants have not contended that the prices of goods, the subject-matter of the charges, were fair and reasonable according to current local rates or that they had reasons to believe they were fair and reason­able or that they took every precaution to find out that they were fair and reasonable. The case for the defence is that the allegation made by the pro­secution that it was the duty of each of the appellants to find out that the prices were fair and reasonable is a misconception of the duty of each appel­lant.

 

It was conceded by the defence that the appellants as head of their diffe­rent branches were under a duty to supervise officers under them who had to carry out specific duties relating to the purchase of the goods, and even though they might have been negligent in the way their supervisory duties were carried out they cannot be liable for such dereliction of duty on the part of their subordinate officers.

 

For the prosecution, it was however established beyond doubt that the services rendered or amount charged for supply of the goods by far exceeded what they should be, and that where prices had been approved by the Ser­vices Tenders Board, what was charged was far in excess of what was ap­proved. There was also clear evidence, which is not disputed, that the appel­lants knew, or ought to have known, the prices approved by the Services Tenders Board, and that request for goods were made by the head of each department mostly by means of Local Purchase Order showing the quantity of goods required or the extent of work to be done. Also when vouchers were prepared for payment, the appellants did sign the honours certificate that the goods were supplied or that the work was done and the prices were the correct prices for the goods or the correct value for the work done.

 

It is necessary to examine briefly the evidence for the prosecution against the denial made by the appellants. Commander Matthews was the Stores Purchasing Officer from March, 1959 until April, 1962. He deposed to the existence of various catalogues in the Store from which checks could be carried out and check the fairest and reasonable prices. He carried out these checks himself when he was in that office and sometimes he went around to various firms to see prices of goods. During the period, the 3rd ap­pellant was his assistant and he had gone out with him to check various prices of goods in order to get the fairest and reasonable prices.

As Base Store Officer, the duty of the 3rd appellant was to look at the invoice of goods, which he could check up with the catalogues in his store. There was also ample evidence of various goods bought in excess of re­quirements and prices about 300 of their ordinary value. A few examples need be mentioned here. Certificate Envelopes: with about 3,000 ordered in 1964 already in the Store and which would last a number of years, many more of these envelopes were ordered. Service Cards was another example. These cards were for use by only 250 Ratings in the Engineering Depart­ment. In January 1964 orders were placed for 5,112 more cards. In 1965 de­spite the quantity available in the Store, a quantity of 5,012 more was or­dered.

 

Another example is the Stock Card. Some 5,000 cards were ordered for which a sum of £276:0:10d was paid. The normal price would have been £92.4s.2d. There were also 500 telephone books printed for £212.10s.0d., in­stead of the normal price of £31.5s.0d. A total of 1500 large envelopes bought for f412. 10s, when the reasonable price is £61.3s.3d, thus buying one envelope for 5/6d; another consignment of 1500 at the same price was or­dered next day.

 

In May, 1964 various forms and envelopes were ordered from day to day and repeatedly. All these goods were received by the 3rd appellant and the vouchers for them signed by 1st appellant. Earlier in the year, namely, from January to March, 1964, various forms and envelopes were ordered al­most daily with the 3rd appellant receiving these goods and the 2nd appel­lant signing the voucher.

 

We now come to the evidence of the Technical Adviser to the Navy, Commander Abbott, who at one time controlled the Navy Control Votes. He testified that it was his duty to sign Local Purchase Orders, check prices and see that prices on the Local Purchase Orders and invoices agreed, he checked to see that the completion of the bills were correct.

 

The evidence of these two witnesses and a few others was not fanciful in any way; the performance of such duties as they deposed to stemmed from various Commodore’s Temporary Memoranda, Commodore’s Standing Orders and Financial Instructions. We have referred earlier to the text of the relevance of these Memoranda, Standing Orders and Financial Instructions. The last of these, namely Financial Instructions No. 510 enjoins an officer controlling a vote and certifying to the accuracy of every detail on the vou­cher is responsible to see “that prices charged are either according to the contracts or approved scales, or fair and reasonable according to the current local rates…”

 

The 1st appellant in his evidence said he was unaware of the Commo­dore’s Temporary Memorandum No. 188 (Exhibit D). He was obviously disbelieved by the Court-Martial, and rightly so in our view. If he was una­ware of Exhibit D, it is evidence of gross negligence on his part in the perfor­mance of his duty. Unabashed, this appellant under cross-examination said he was seeing for the first time in court Exhibit QQ (Commodore’s Standing Order No. 0203) which sets out, among others. the duties of the Fleet Supply Officer. Yet, this officer controlled the finances of the Navy. According to him he did not read Commodore’s Temporary Memorandum No. 252 (Exhibit E) which introduced a change in the use of Local Purchase Orders in favour of economy in and coordinating of expenditure. And yet, the of­ficer was the Commodore’s Financial Adviser. The greatest sin of all com­mitted by this officer is the fact that although he was fully aware that the vote for stationery was £2,000 for the year, on the 6th and 7th July, 1964, not only did he sign honour’s certificate on vouchers for an amount of over £3,000 for stationery, but payment cheques for this amount in serial numbers were signed the same day by him.

 

The 2nd appellant tried to justify his own portion of the blame by the fact that he merely acted as the Fleet Supply Officer for a brief period of 6 months and was not so conversant with the duties of the post. He however prepared the Commodore’s Temporary Memorandum No. 252 (Exhibit E) for better control of the Navy vote; it is enough to say that no Officer with u mere nodding acquaintance with the duties of the officer of Fleet Supply Of­ficer could have prepared that document (Exhibit E.).

 

We have pointed out only a few of the matters which it was possible for the Court-Martial to have taken into consideration in arriving at the conclusion it did in the case before it and which if taken into account could have helped in arriving at the verdict it did. If they are all properly considered, as they were, the conclusion is inescapable that the 1st appellant failed to com­ply with the provisions of Commodore’s Temporary Memorandum No. 188 and Financial Instructions No. 590; also that the duties of the appellants were not only to supervise officers under them as to the fairness and reason­ableness of prices of goods bought by the Navy but also that they were aware or were negligent in not finding out that these prices were not fair and reasonable, and that it was part of their duties to find out.

 

We are therefore unable to interfere with the verdict arrived at by the Court Martial on Charges 5,6,10,12,14 and 15. We dismiss the appeal in re­spect of these charges. The other charges, namely, 1,2,3,7,8,9,11 and 13, failed and the appellants are discharged on these.

 

BRETT, J.S.C.: I concur.

 

BAIRAMIAN, J.S.C.: I concur.

 

COKER, J.S.C.: I concur.

 

IDIGBE, J.S.C.: I concur.

 

Appeal allowed in part.