Adereti & Anor V Attorney General, Western Nigeria (1965)

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ADEMOLA JSC

The appellants were convicted in the High Court at Ibadan in Western Nigeria on two counts, namely:

(1) Conspiracy to steal the sum of £8,631 contrary to section 443 of the Criminal Code of Western Nigeria Law, and

(2) Stealing the amount of £8,631 the property of the National Bank of Nigeria, contrary to section 331 of the Criminal Code of Western Nigeria Law.

The 1st appellant, at the material time to the charge, that is to say, between 30th June 1960 and 30th July 1960, was the manager of the National Bank at Ibadan, and had completed at that time 20 years service with the Bank. The 2nd appellant was a customer of the said Bank, and was carrying on business as a trader at Ibadan.

The prosecution case was based on a directive (Exh. 1 ) which was a circular issued in 1956 from the Bank’s headquarters in Lagos prohibiting all managers from granting overdrafts to customers, and also forbidding them to allow customers to draw money on uncleared effects. It would appear that in the months of June and July 1960 the 1st appellant, as the manager of the Bank at Ibadan, allowed the 2nd appellant, a customer of the Bank, to overdraw his account to the tune of £8,631. This was made up of (1) monies he was allowed to draw at different times before cheques of other banks paid in by him were cleared with those banks. During that month., the 2nd appellant paid in cheques of other banks 24 times and on each occasion he was allowed by the 1st appellant to draw on the cheques before the cheque was cleared, and (2) all National Bank cheques issued by the 2nd appellant in the course of business and paid into the Bank of West Africa, and which later came to the National Bank for clearance, and were at the instance of the 1st appellant debited to the 2nd appellant’s account in the normal way.

The total loss to the Bank, according to Mr. Dawodu the auditor to the Bank who audited the account in June and July 1961, was £6,536, which represents overdraft and interest. As the charge before the court was for stealing an amount of £8,631, we can only assume that this figure represents the total amount of the overdraft on 30th July 1960, and that the sum of £2,095 had been repaid before the check by the auditor to which we have referred.

The judgment of the learned trial judge was attacked mainly on misdirection. Five instances of misdirection were referred to, but for our purpose it will be enough to mention three of the five:-

“(b) If this is done, the position will be that the 1st accused took the paid sum of money from the owners (i.e. the National Bank of Nigeria, Ibadan) by drawing cheques on the Bank, and converting it to his own use, with intent of repaying it at some future time.”

“(d) It is true that the defence has been able to establish through one of the prosecution witnesses, Tajudeen Onigbajo (8th prosecution witness) who is a graduate of the Institute of Bankers, that in normal banking practice the manager of a bank has a discretion whether or not to allow any customer to draw upon uncleared effects or to grant him overdrafts, but as I interpret the provisions of section 324(2)(f) of the Criminal Code, read along with section 329 thereof, there is an absolute prohibition in law even for a bank manager to part with the money of the bank to a customer who may intend at some future time to repay it, and the only way he can escape criminal liability for the fraudulent conversion of the sum, and therefore for stealing it is to obtain the prior sanction of the authorities of the bank for such transactions.

(e) Even without the instructions in Exhibit 1, I hold as a matter of law that if any manager of the National Bank or any other bank for that matter, parts with the bank’s money to a customer who may wish to repay it at some future time without the prior sanction of his authorities, he will be guilty of stealing.”

From the above and other instances in the judgment the main burden of the learned judge’s statement of the law in his judgment is as follows-

(I) any bank manager who gives an overdraft steals the money of the bank, unless he has the prior authority of his directors to give out the amount on that occasion or on any such future occasion for which he had their sanction, and

(2) any customer who draws a cheque for an overdraft, or who paid in a cheque and drew another for payment before the effects of the one he paid in were cleared, converted that amount to his own use, though he might have had the intent of repaying it at a future date.