Idi Fagge V. The State (1976)

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BELLO, J.S.C.

We allowed this appeal on 16th March, 1976, set aside the conviction and sentence of the appellant and ordered that he should be acquitted and discharged.

The charge upon which the High Court of Kano State convicted the appellant and sentenced him to 4 years imprisonment and ordered him to pay compensation of 1,400pounds under Section 78 of the Penal Code and in default to serve a further 12 months imprisonment reads as follows:

“That you, Idi Fagge, on or about the 28th day of June, 1972 at Kano …, being a servant in the employment of Kano State Government and in such capacity entrusted with certain property, to wit: the sum of 2,876pounds, committed criminal breach of trust in respect of the said sum of money, and thereby committed an offence contrary to section 314 of the Penal Code …”

The evidence adduced by the prosecution at the trial shows that at the material time the appellant was the Accountant for the Area Courts, Kano. Musa Usman (P.W.2), who was a Finance Clerk under the appellant, testified that on 29th June, 1972, following the instruction of the appellant, he prepared the Payment Voucher, Exhibit 1, for withdrawal of the sum of 2,876 pounds being amount deposited in the Government Sub-Treasury, Kano by the Upper Area Court. The Payment Voucher was signed on the same day by Umoru Bashir (P.W.6), the Senior Principal Inspector of Area Courts, as the officer controlling the vote.

Musa Usman (P.W.2) further testified that he presented the Payment Voucher, Exhibit 1, to the Sub-Treasury which issued to him the cheque for the sum of 2,966:17:11d pounds, Exhibit 3. The witness stated that he took the cheque to the appellant and as Umoru Bashir was not in the office, the appellant directed Musa Usman to present the cheque for Mr. Onu, the Chief Registrar, to authorise its payment by signing it. The evidence further shows that Mr. Onu, the Chief Registrar, did in fact sign the cheque; that Musa Usman (P.W.2) cashed the cheque at the Standard Bank and delivered the sum of 2,966:17:11d pounds, the proceeds of the cheque, comprising of the sum of 2,876 pounds on Exhibit 1 plus other sums in respect of some other vouchers which were for wages, to the appellant.Mr. Onu, the Chief Registrar (P.W.4) admitted having signed the cheque, Exhibit 3 and that he did so because Musa Usman (P.W.2) had informed him that the cheque was for staff salaries and wages and that he had to sign it because the Principal Inspector of Area Courts was away on leave. The Chief Registrar further testified that since he signed the cheque on 30th June, 1972, he knew nothing about it until in August 1973 when the Principal Inspector of Area Courts intimated to him that there was suspicion of fraud on the Payment Voucher, Exhibit 1, and the cheque, Exhibit 3. He denied that the sum of 2,876 pounds or any part thereof in respect of the said Payment Voucher and the cheque was ever delivered to him by the appellant. The prosecution’s case was that that sum of 2,876 pounds was money paid by the Nigerian Airways for the estate of one late Nuhu Usman and that having been entrusted with the said sum by virtue of his employment, the appellant fraudulently misappropriated it.

In his defence on oath the appellant stated that on 27th June, 1972, Mr. Onu, the Chief Registrar had given him the receipt, Exhibit 2, which was the receipt for the deposit of 2,876pounds in the Sub-Treasury by the Upper Area Court in respect of the estate of one Mohammed Muktari, that on 28th June, 1972, the appellant instructed Musa Usman (P.W.2) to prepare a voucher for the withdrawal of the said sum, which was duly prepared as Exhibit 1, presented to the Sub-Teasury and the cheque Exhibit 3 was issued therefore; that the cheque was taken to Mr. Onu, the Chief Registrar, who duly signed it as officer controlling the vote and that subsequently Musa Usman (P.W.2) brought the proceeds of the cheque to the appellant. The appellant further stated that he had taken the sum of 2,876 out of the proceeds of the cheque to the Chief Registrar who had added some other money to the said sum and then had directed the appellant to pay all into the account of Mohammed Muktari’s estate; that his Finance Clerk had paid the said sum, totalling 3,211:3:0dpounds into the account of the said estate. His witness who is the Assistant Manager of the Standard Bank, produced the Standard Bank’s payment slip, which was admitted as Exhibit 26, showing that the sum of 3,211:3:0dpounds was on 3rd July, 1972, paid into the account of “Chief Registrar Area Court re Mohammed Muktari” by an unidentified person. He said his Finance Clerk had brought the Bank payment slip to him. The appellant further testified that he had handed over his duty as Accountant of the Area Courts on 1st July 1972, and proceeded on leave; that on 4th July, 1972, the Chief Registrar had sent for him and asked him if the money had been paid in and the appellant had shown him Exhibit 26; and that since that date the appellant had not worked in the Area Courts for he was posted to another Ministry after the expiry of his leave.

After having confirmed the payment of 3,211:3:0dpounds into the account of the Chief Registrar on 3rd July, 1972, as per Exhibit 26, the Assistant Manager of the Standard Bank testified that on 6th July, 1972, “the sum of 3,211:3:0dpounds was withdrawn by the Chief Registrar Area Court” on cheque, Exhibit 27, from the account of Muhammed Muktari estate.

It is significant to observe that the counsel for the appellant had not cross-examined the Chief Registrar on the payment into and the withdrawal from the account of the Chief Registrar as per Exhibits 26 and 27 which were tendered by the defence. For that reason, learned counsel for the appellant, quite rightly in our view, applied for the recall of the Chief Registrar who was in fact recalled and examined by the Court. We think it pertinent to set out his evidence on recall in full:

“Exhibit 27 is shown to me. I do not know what it is for. I cannot say who brought it to me for signature. I look at Exhibit 26, I know nothing about it. I had already, in February, 1972, shared the estate of Muhammed Muktari. I did not give the money on Exhibit 26 to anyone to put in the Bank”.

In his judgment the trial judge found the prosecution did not prove that the sum of money in question, 2,876pounds, had been paid by the Nigerian Airways for the estate of the late Nuhu Usman as was their case; that though the teller slip, Exhibit 26, had purported to show that the money was for the estate of Muhammed Muktari, the Chief Registrar had distributed the money given by the Nigerian Airways for the estate of the latter since February 1972. The trial judge then proceeded with his judgment thus:

“I have already mentioned the difficulty presented in the evidence for the prosecution by the lack of direct evidence of the purpose for which the accused was entrusted with this money. However, there can be no real doubt that the correct disposal of this money by the accused was to hand it to the Chief Registrar. The accused said he did so; the Chief Registrar whom I believe said he did not. Accused wishes to cast doubt upon the Chief Registrar’s denial of the receipt of this money by the cheque Exhibit 27 both as drawer and as authorizing officer by the Chief Registrar Mr. Onu, 4P.W., I have no doubt whatever that 4P.W. has given me the true explanation of how he came to sign this cheque. He says he came to sign it in the same way as he signed Exhibit 3. On very few occasions he has been called upon as an accounting officer to sign cheque on behalf of his department.

He has done this on behalf of the Area Courts Divison of his department only when the Principal Inspector of Area Courts who normally sign such cheque, happened to be absent and he has done so trusting that the cheques were properly supported and that the account section was behaving honestly. He says that he cannot remember anything about the cheque Exhibit 27, although it is a different type of cheque from Exhibit 3. Again I say I believe him. I think he must have been lax in doing so. I have considered very carefully and with considerable concern the possibility that 4P.W. signed this cheque, Exhibit 27 in order deliberately and criminally to withdraw the money and misappropriated it. There is no evidence that he withdrew this money. I have not been told who withdrew it. Apart from the evidence of the accused who has been shown to be a blatant liar, there is no evidence to connect this money with the money which the accused is charged with dishonestly misappropriating.

To put the matter simply. The accused as a government servant received on behalf of the Chief Registrar Area Courts the sum of 2,876pounds for which before this trial he had not accounted. He has told the court that he did the proper thing with it and gave it to the Chief Registrar. There is conclusive evidence that he did not. He says he later put this money into the bank on the instruction of the Chief Registrar. There is conclusive evidence that he did not receive such an instruction. On the credible evidence before me, there is nothing to connect Exhibits 26 and 27 with this money.

I feel I must comment that this has been a very difficult case because the prosecution has been poorly presented. For example, it is surprising that nobody was called from Nigeria Airways to give evidence how and when and to whom the money for the estates of the late Nuhu Usman and the late Muhammadu Muktari was paid.

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It should have been possible to prove by direct evidence what the voucher on which this 2,876 pounds was withdrawn was intended for and what the money on the treasury receipt supporting it was intended for. Let me also say that counsel for the prosecution has tried hard, but obviously has had little experience of such cases. As far as I know he is a new appointee. It is a pity someone of greater experience was not assigned to this case. If he had been, it should have been possible for prosecuting counsel to tie up the various pieces of evidence which he presented, in a logical and probably in a direct form. Failing this, I have had great difficulty in sifting the evidence. Fortunately I have had little difficulty in assessing the credibility of the witnesses”. (The underlining is ours).

Several grounds of appeal have been argued at the hearing of the appeal in this court but we thought the appeal could be disposed of on the general ground that the decision is unreasonable, unwarranted and cannot be supported having regard to the evidence. It is for this reason that we have reiterated extensively the evidence relating to the charge and its assessment by the trial judge.

While we appreciate the difficulty presented to the trial judge by the failure of the prosecution to prove the purpose for which or on whose behalf the Upper Area Court had deposited the said sum of 2,876 pounds, nevertheless, it is quite clear from the evidence that the said sum had been deposited in the Sub-Treasury by the Upper Area Court; that the prosecution proved, and the appellant admitted, having received the said sum after its withdrawal from the Sub-Treasury. For this reason, we are in full agreement with the view of the trial judge that the appellant had a duty to account for it either to the Upper Area Court or to the Chief Registrar who is the principal officer of that court.

The substance of the appellant’s defence at the trial was that he had accounted for the said sum of 2,876pounds to the Chief Registrar by paying it together with some other money, all totaling 3,211:3:0d pounds, into the Chief Registrar’s account as per Exhibit 26. The trial judge found there was in fact payment of the latter sum into the account of the Chief Registrar but concluded that apart from the evidence of the appellant, who the trial judge considered a blatant liar, there was no evidence to connect this money, i.e. 3,211:3:0dpounds with the sum of 2,876pounds which the appellant was charged with dishonestly misappropriating. He then rejected the appellants defence.

With all due respect to the learned trial judge he did not, in our view, correctly assess the defence of the appellant. The Assistant Manager of the Standard Bank (D.W.1) conclusively proved that on 3rd July, 1972, the sum of 3,211:3:0dpounds had been paid as per Exhibit 26 into the account of the Chief Registrar. The prosecution did not produce an iota of evidence as to who had paid that sum and for what purpose. They did not adduce any evidence whatever as to the source of the said sum or any part thereof. On the other hand, the appellant stated that he had caused its payment and that the money, i.e. 2,876 pounds, which was the subject matter of the charge, was included in that payment. Since the prosecution failed to adduce any evidence to rebut the defence, it follows therefore that the evidence of appellant stood unchallenged and unrebutted. Under the circumstances of the case, we are of the opinion that a reasonable tribunal would not have totally rejected the defence; for even if the tribunal would not believe the appellant, it would have found that his unrebutted evidence supported by the Assistant Bank Manager had cast reasonable doubt on the case for the prosecution and would not therefore have convicted the appellant.

It is apparent from the evidence adduced before the trial court that if there had been any criminal breach of trust in respect of any money in the case, it must have been the sum of 3,211:3:0d pounds drawn on the cheque, Exhibit 27, on 6th July, 1972. There is no evidence as to who prepared this cheque, who presented it to the Chief Registrar for signature and who presented it to the Bank and cashed it. Nor is there any evidence of what was done with the money, (3,211:3:0d pounds) after it had been withdrawn from the Bank. The only identified person who dealt with the cheque, Exhibit 27, was Mr. Onu, the Chief Registrar, who signed it as the drawer and who said, with disturbing flippancy, “I do not know what it is for”. From the evidence before the trial court the appellant cannot in any way be held accountable for the sum on this cheque for not only is there no evidence connecting him with the cheque but also the evidence is that on the day it was drawn and cashed, i.e. 6th July, 1972, the appellant had been on leave. The trial judge did not advert his mind to this aspect of the case which also formed part of the defence of the appellant. In our view, it was clearly unsafe to allow the conviction and sentence to stand. We were not surprised, therefore, that the learned Principal State Counsel, who appeared for the respondent, found it difficult to support the conviction.

These are our reasons for allowing the appeal and for setting aside the conviction and sentence. When we allowed the appeal, we omitted to set aside the order for compensation and the sentence of imprisonment in default. The said order and sentence of imprisonment are hereby set aside and the compensation, if paid, shall be refunded to the appellant.

Other Citation: (1976) LCN/2365(SC)