Joseph Gwawoh V. Commissioner Of Police (1974)

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G. IRIKEFE, J.S.C. 

The appellant here in stood his trial before the Chief Magistrate’s Court Sapele, on the following charge:”That you, Joseph Gwawoh (m) between the month of August and September, 1971, at No.6, Itsekiri Road Extension, Sapele, in the Sapele Magisterial District, stole the sum of 35pounds property of one D.Z. Barhoumi (m) and thereby committed an offence punishable under Section 331 of the Criminal Code, Cap. 28 Vol 1 Laws of the Western State of Nigeria, 1959, also applicable in the Mid-Western State of Nigeria.”

He was convicted at the end of the said trial and sentenced to a term of imprisonment for 18th months.

Thereafter, the appellant unsuccessfully appealed against his conviction to the Sapele High Court and has now appealed to this court against the dismissal of the appeal by that court.

After hearing argument from both counsel for the appellant and that for the respondent in this appeal, we allowed the appeal, quashed the conviction of the appellant and ordered his acquittal and discharge.

We indicated at the time that we would give our reasons later, and we now do so.

The complainant in this case, one Dorinch Zakari Barhoumi, a Lebanese pools proprietor, deposed before the learned Chief Magistrate that, on a date between the months of August and September, 1970, he had handed to the appellant the sum of 60 when the latter called on him at his office. The money was to be used by the appellant in paying the tax due to the Mid-Western State Government on such sums of money as might have been paid to the complainant by stakers on football pools. There is unchallenged evidence before the court of trial that 10% of the total sum staked on pools in any week was payable to government as betting tax.

There is also evidence from the complainant that the sum of 60 which he handed to the appellant was in cash of one shilling denomination and that P.W. 2, one Benson Umudiale and P.W. 3, one Michael Ohioka, witnessed the transaction. Those two men, who were employees of the complainant at the time, gave evidence tending to corroborate the story told by the complainant. The complainant alleged that the appellant only utilised 25 out of the money handed to him in paying the tax due and denied receipt of the balance of 35 which is the subject of this charge.

In his defence, the appellant admitted having served the complainant in the past as accountant and stated that the practice was for the complainant to call at his office with the triplicate copies of stakers’ receipts for each week during the football season. From such receipts he would calculate the total sum paid by stakers and certify 10% of such sum as the tax due to the Mid-Western State Government. Having done so, the complainant would leave with him the sum due as tax as well as an additional sum of 2 representing his transport expenses from Sapele to Benin and back. After paying the tax due at Benin, the appellant would later send the receipt issued by the Government to the complainant. One such receipt is Exhibit “J” tendered at the trial of this case.

The appellant denied having received the sum of 60 from the complainant as alleged and maintained that this charge had been trumped up against him for the following reasons among others:

(a) Because on the occasion when the complainant brought to him the stakers’ returns for weeks 2 and 3 on 23/8/71 and requested that the tax due there on be calculated, he had asked for the production by the complainant of the returns for the previous week (i.e. week 1) and had been told that that was none of his business.

(b) Because he had then reminded the complainant of his earlier fraudulent dealings with the Government of the East Central State which resulted in the closure of his pools office at Enugu. In support of this allegation. the appellant produced exhibits “B” and “C” at the trial.

(c) Because he had compiled a catalogue of all the complainant’s fraudulent activities in the form of a petition Exhibit “H” which he forwarded to the Nigeria Police on 161971 and that the complainant’s subsequent report of a case of stealing 35 was a calculated attempt by him to divert the police from investigating the said allegations.

Learned counsel for the appellant before us relied only on these two grounds,which, with our permission, he argued together: