B.A.L. Odunsi Vs The State (1969)
LawGlobal-Hub Lead Judgment Report
The appellant was charged in the High Court of Lagos on five counts as follows:-
1st count-Falsification of accounts by an officer of a corporation contra section 435(2)(a) of the Criminal Code. 2nd count-Fraudulent false accounting by an officer of a corporation contra section 435(2)(c) of the Criminal Code. 3rd count -Stealing by an officer of a corporation contra section 390(7) of the Criminal Code. 4th count -Stealing by an officer of a corporation contra section 390( 7) of the Criminal Code. 5th count – Fraudulent false accounting by an officer of a corporation contra section 435(2)(b) of the Criminal Code. At the trial. the 2nd count was abandoned.
“The appellant was however found guilty on two counts only. namely counts 1and 5, and sentenced to a term of 12 months I.H.L. on each count to run concurrently. He has appealed to this Court against his convictions and sentences. We heard the appeal on the 4th and 15th July last and after due consideration, we allowed the appeal on the latter date, when we stated we would, give our reasons later.
The case against the appellant before the learned trial judge is briefly as follows:-
Between 1st February, 1965 and 18th February, 1966, he was an assistant accountant at the Nigerian Broadcasting Corporation and in the, performance of this duty the appellant did not handle cash but supervised, the cashier by checking his books and by seeing to it that he paid monies regularly into the bank. On two occasions during this period, namely ”
Between 28th April, 1965 and 30th June. 1965 and also between 8th August August, 1965 and 18th February, 1966, the cashier Mr. Odugbemi was away on leave and the appellant, in addition to his normal duties, took over Odugbernis duty as well. There was no handing over notes on either occasion but the appellant collected monies from the assistant cashiers and deposited them in the bank. The offences with which the appellant was charged were said to have been committed during these two periods. The two principal witnesses for the prosecution in the court below were one David Otunubi Olufowote, the Chief Accountant at the Nigerian Broadcasting Corporation and one Julian da Silva acting Senior Auditor to the Corporation. It would appear that whilst da Silva gave evidence about the 1st count only, Olufowote’s evidence covered both the 1st and the 5th counts. In this matter the appellant having been discharged by the learned trial judge on other counts, the duty of this Court is limited to the two counts 1 and 5 and the evidence before the lower court in support of those counts. In essence the complaint on the 1st count was that in the receipt cash book (exhibit ‘B’) a book kept by the appellant at the material time, an entry at page 27 of the exhibit and under the date 16th September, 1965, showing a figure of £3.635. J 5s.11 d. is incorrect and had been falsified, the original figures being £5, J 35.15s. 11d. The prosecution stated that these alterations were made by the appellant (and in his handwriting). This amount represents an amount paid by the International Advertising Service to the Nigerian Broadcasting Corporation presumably by cheque. It appears however from the evidence of Olufowote that this alteration does not affect the total figures for the end of September at page 30 of exhibit which is shown at £228,953.12s.7d. The only material evidence given by Mr. da Silva was that when he posted another book (exhibit ‘C’) he found the figure £5,135.15s.11d, in exhibit ‘B’, and not the present figure £3,635.15s.11d. Silva stated that the alteration is in the handwriting of the appellant. On the 5th count, the fraudulent false accounting complained of is that in exhibit’ B’, at page 52 the total amount in the book for January when added up is £81 ,399.12s.8d. and not £79,399.12s.8d, as entered up by the appellant. Evidence relating to this was given by the Chief Accountant, Olufowote, who stated that he had added up the figures in the book exhibit ‘B’ from pages 47 to 52 which show the intake for the whole of January, 1966. In regard to this 5th count, the appellant stated that his assistant Mr. Olaniyan totalled up the amount in pencil and he inked it. He would have had the opportunity of reconciling the January account later and would have corrected it, as he was entitled to do, but he was stopped from work on 18th February, 1966, and later charged. The learned judge disbelieved the appellant that his assistant totalled up the amount, and in his summing up he said:-
“I do not believe his (accused’s) story that he merely copied out what another officer had worked out. I think this and the alteration involved in count 1 were done so as to reduce the total bankings to be made by the accused by a total by which the accused’s bankings in the two periods had been short of the receipts as shown by the evidence.”
It appears to us that to establish a case of fraudulent false accounting, it is not enough for the prosecution to prove that the total amount made up by adding figures together is wrong. It must be shown that it was not merely a clerical or arithmetical error but that it was done with intent to defraud. In this case, as far as we can see, the intent as inferred by the learned trial judge, is to reduce the total amount to be paid into the bank by the accused. The question therefore may be asked, has the prosecution proved all the amounts paid into the bank by the appellant as against monies received by him? Was it proved that the difference in the amount (2,000) in this case was never paid into the bank? This is what the learned judge had to say about the presentation of the case before him:-
“I have considered the case sought to be made out against the accused person. Whilst there is nothing intrinsically wrong in the basis of the case, it appears that the statements prepared in support of the case are so inaccurate that no reliance should be, placed on them. I agree with Mr. Abudu (counsel for the accused) that for a case of stealing to be made out against the accused person the book copies of all the receipts involved in the accounts should be produced so that proof beyond doubt can be given that the accused did receive into his hands all the amounts appearing in the receipts. This non-production affects the accounts for the second period (count 5) but even in the first period (1st count) for which all the relevant books had been produced, I have myself come across some discrepancies that lead me to have doubts on the correct amount for which the accused person can now be responsible … ”
The learned judge then proceeded to give example of such discrepancies; and finally he said:-
“I do not think that in a case like this the court should be so involved in the details of accounting as to find what amount can really be said to have been misappropriated by the accused person and I have no alternative but to dismiss the counts in the Information relating to stealing.”
We note that the statements of account to which the learned judge referred and the evidence upon which he could not wholly rely were those of the Chief Accountant, Olufowote. We observe that the whole case hung on the evidence of this witness and his alone. If his evidence is excluded there is nothing more in the whole case. In effect as the learned judge did not accept evidence relating to stealing, and the prosecution did not prove material shortage, it was certainly wrong for the trial judge to find there was intent to defraud or that the appellant was trying to cover up the shortages. In regard to the 1st count, what we have said about count 5 applies forcibly to that count. Dealing with intent to defraud on this count, the learned judge said:-
“The necessary intent can be found in the fact that since the amount that passed through the accused’s hands in September, 1965 was by the alteration reduced by the difference of £1,000 so would the amount of bankings which the accused should have made be also reduced. The reduction in the total receipts for the month concerned appear on page 30 of exhibit ‘B’.”
Earlier, the learned judge, commenting on the counts of stealing (for which the appellant was discharged), had said:-
“I wish to emphasize that I feel bound to dismiss the counts on stealing only because the prosecution has not proved the correct amount misappropriated. As will appear hereafter there can be no doubt that on the evidence appearing in the books there must have been some misappropriation. ”
Again, with respect to the learned trial judge, we fail to see the evidence upon which he found the necessary intent proved; it is not enough to allege that this is on paper or in the books but it must be proved. For example, every payment to the bank during that month of September, 1965, must be proved as against what should have been paid into the bank, so that the intent in altering the figures may be made manifest. Having regard to the findings of the learned judge himself, we find it difficult to see how he could have arrived at the fact that the intent to defraud was established. We would make one more observation, although it is a small point. This is the way the learned trial judge accepted without much ado the evidence of da Silva about the entry of two figures exhibit ‘B’ as being in the handwriting of the appellant.
There was hardly any evidence from da Silva, and indeed from Olufowote the Chief Accountant, that they were familiar with the handwriting of the appellant and that they knew how he writes his figures.
It would have been a different matter if the learned judge had found that it was only the appellant who had interest in the figures being altered and he believed the alterations were made by him.
For the foregoing reasons, we found we were unable to support the con-viction and we allowed the appeal.
Other Citation: (1969) LCN/1625(SC)