T. U. Akuwule And 10 Ors V The Queen (1963)

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ADEMOLA, C.J.F. 

The 1st Appellant was convicted in the High Court, Northern Region, holden at Kano, of an offence laid under sec. 315 of the Penal Code of the Northern Region relating to Criminal Breach of Trust in his capacity as a Banker; the sum involved being #100,089’978.5d.

He was also convicted of an offence under sec. 371 of the Penal Code of falsifying a clearing account relating to other Banks in what is known as the Impersonal ledger and also with forgery of a current account ledger. The other ten appellants were convicted each on a count of aiding and abetting the 1st appellant in the commission of the offence of criminal breach of trust.

The 1st appellant, who admitted the facts presented at the trial (except those relating to forgery), was at the time material to the charge the Manager of the branch of the Bank of West Africa at Fagge in Kano. He had authority to grant overdrafts to customers of the Bank up to a sum of #200 which must be reported at once. Contrary to the authority given to him, the 1st appellant granted overdrafts to the other appellants, from time to time, far above the sum of #200 and without making a report, although it was clear that some of the appellants had been bad debtors of the Bank before the 1st appellant took over, and it was to his knowledge that their credit facilities had been withdrawn; the other appellants became customers of the Bank since the 1st appellant became the Manager.

Although credit facilities for heavy amounts were given to these men without making due reports, entries of these amounts were not made in the Bank’s books. Later false returns of the clearing accounts were rendered by the 1st appellant in order to reconcile his accounts with other banks. Forgery of a page in the current accounts ledger was also proved against the 1st appellant although he denied the facts. The other appellants, Nos. 2-11, aided and abetted the 1st appellant to commit criminal breach of trust knowing full well that they were without funds in the Bank and that their accounts were not being debited with the amounts they had been drawing out; in some cases paying cheques into their accounts in the Bank, to facilitate the rendering of the returns by the 1st appellant, which cheques to their own knowledge were worthless.

As the range of arguments in this appeal relates principally to the offence under sec. 315 of which the 1st appellant was convicted, it is necessary to set out sections 311, 312 and 315 of the Penal Code-

“311. Whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of Law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust.

312. Whoever commits criminal breach of trust shall be punished with imprisonment for a term, which may extend to seven years or with fine or with both.
315 . Whoever, being in any manner entrusted with property or with any dominion over property in his capacity as a public servant or in the way of his business as a banker, factor, broker, legal practitioner or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to fine.”
The first count of the charge is as follows-
“Titus Akwule between the 1st October, 1960 and the 15th September, 1961 at Kano being entrusted with dominion over property to wit cash in your capacity as a banker to wit the Manager of the Bank of West Africa Ltd. Fagge Ta Kudu committed criminal breach of trust of a sum of #100,089’978.5d and thereby committed an offence punishable under section 315 of the Penal Code.”

The point will have to be decided whether the 1st appellant was a Banker, within the meaning of section 315 of the Penal Code and, if so, whether the property in relation to which he was said to have committed a breach of trust was entrusted to him in that capacity. Before this point, however, the important issue as to the validity of section 315 under which the 1st appellant is charged has to be considered, because Counsel for the appellants have, in the first ground of appeal, attacked the constitutional validity of the section and if that submission was upheld it would mean that the 1st appellant was tried on a charge which was wholly void, so that no question of substituting a conviction under any other section could arise. The first ground of appeal is as follows-
“The learned trial judge erred in law in convicting these appellants (Nos. 2-11) of the offence of abetting the 1st accused to commit criminal breach of trust when the said offence and the alleged offence of the 1st
accused are offences purporting to have been created by the legislature of the Northern Region which is not competent to create any of such offences. ”

The submission which was made to us is that, with reference to the division of legislative powers, Banking is a subject in the Exclusive Legislative List in our Constitution; that in accordance with section 64 of the Constitution of the Federation only Parliament can legislate on matters in the Exclusive list, which list includes Banks and Banking; that section 315 of the Penal Code, in so far as it relates to bankers, is an encroachment on the legislative powers of Parliament by the Northern Region legislature; that to the extent therefore that the section relates to Bankers, it is unconstitutional and void.

Counsel for the appellants have referred to Item 44 of the Exclusive list, which empowers the Federal Parliament to legislate on “any matter that is incidental or supplementary (a) to any matter referred to elsewhere in this list”, which under Part III of the Schedule includes “offences”; and they have argued that penal provisions on bankers are within the exclusive competence of the Federal Parliament.

Their aim is to show that count 1, which is laid under section 315, is null and void, so that not only is the conviction on that count a nullity, but the Court is also debarred from replacing it by a conviction under section 312 if it turns out that the 1st appellant was not a banker; which would also affect the conviction of all the other appellants on counts laid under sections 315 and 83.

For the Crown a number of cases have been cited on the validity of legislation by a legislature with limited powers; it will be enough if reference is made to Gallagher v. Lynn [1937J A.C., 863. The legislature of Northern Ireland had passed an Act on Milk and Milk Products, which was attacked as being ultra vires section 4 of the Government of Ireland Act, 1920, on the ground that it interfered with the trade in milk between farmers outside Northern Ireland and customers within it, contrary to the limitation not to legislate on “trade with any place out of the part of Ireland within their jurisdiction”. Lord Atkin said at page 869:-
“the short answer to this is that this Milk Act is not a law’ in respect of trade; but is a law for the peace, order and good government of Northern Ireland ‘in respect of’ precautions taken to secure the health of the inhabitants of Northern Ireland by protecting them from the dangers of an unregulated supply of milk.

These questions affecting limitation on the legislative powers of subordinate parliaments or the distribution of powers between parliaments in a federal system are now familiar, and I do not propose to cite the whole range of authority which has largely arisen in discussion of the powers of Canadian Parliaments.