Ogunte Ekuma V. Dominic Nwoko (1963)

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TAYLOR, J.S.C. 

The appellants were charged with conspiracy to commit a felony to wit stealing on Count 1, and on Count 2 with stealing the sum of #100 the property of the Ezzikwo County Council contrary to sections 576 and 390 of the Criminal Code respectively.

At the conclusion of the trial in the Court of the Magistrate of the Abakaliki Division, the accused persons were convicted on Count 2 and no finding or conviction was made or entered against them on Count 1. An appeal against their conviction on Count 2 to the High Court of the aforesaid Division failed. They have now appealed to this Court from the decision of the High Court.

The 1st appellant was at the material time a Councillor of the Ezzikwo County Council while the 2nd appellant was the Head master of the Umuaka Ikwo School. In January, 1961 the Ezzikwo County Council approved of a resolution to pay #200 each to some of its schools, one of such schools being the Umuaka Ikwo School. A letter was written to this School Committee asking that the names of representatives, to whom payment could be made, be submitted. The names of the two appellants were submitted. A payment voucher was prepared and payment of #200 was made to the two appellants on the 10th February, 1961. The evidence of the Treasurer of the Ezzikwo County Council on this point is as follows:
“I made payment to the 1st accused in the presence of Dominic  Nwuko the 2nd accused. The accused persons signed the payment voucher (exhibit “A”). The 1st accused signed as the recipient while the 2nd accused witnessed the payment.”

Prosecution Witness No.3, Maurice Nnorom, was a contractor engaged to build a four class room for Umuaka Ikwo School at a contract price of #1,300. He was paid in installments. In or around February, 1961, he was informed by the 2nd appellant that a sum of #200 was available and that he should come to collect same. On arrival he was presented with only #100 which he refused to accept. His evidence on this point continues thus:

“As I was going the 2nd accused called me back and said I should not refuse the money. He said he had #25 in his house to make it up to #125. I then agreed and accepted it. I issued a receipt to the 1st accused.”
A Notice to Produce was served on the 1st accused to produce this receipt, and on his failure to do so, the carbon copy was produced without objection and marked exhibit “C”.
The appellants did not deny that the #200 was indeed received by them from the Ezzikwo County Council, but say that the full #200 was paid over to the 3rd Prosecution Witness and not #100 as alleged by the prosecution. The additional #25 paid to Prosecution Witness No.3 did not come out of the #200 received as stated above.

The learned Judge on appeal confirmed the judgment of the trial Magistrate, convicting the appellants. Learned Counsel for the appellants argued the original grounds of appeal as well as grounds 1 and 3 of the additional grounds filed on behalf of the 2nd appellant only. The only points of any substance urged in his arguments and on which we called on Counsel for the Crown to reply raise two points of law:-
1. That the receipt, exhibit “C”, was wrongly admitted in evidence; and
2. That the Ezzikwo County Council were no longer the owners of the sum of #100 as averred in the particulars of the charge.
On the first point, Counsel for the appellants contends that the 1st appellant in his statement to the Police stated that the receipt was given to Councillor Noyo Chukwu, the 5th Prosecution Witness, and therefore the notice to produce was wrongly issued or served on the 1st appellant; he submitted that it should have been served on the 5th Prosecution Witness. It is clear on the evidence, and in fact the 1st appellant himself admits that the original receipt issued by Prosecution Witness No.3 was given to him, the 1st appellant. The Police Constable investigating the case, Prosecution Witness No.7, deposed that the 1st appellant denied all knowledge of the receipt. Prosecution Witness No.6, a member of the School Committee, said this about payments and receipts made to and received from the contractor, Prosecution Witness No.3, in respect of the school building:-
“The Committee pay the 3rd P. W. and the receipt is given to 1st accused for safe keeping.”

In our view the notice was rightly served on the 1st appellant and the duplicate receipt rightly received in evidence.

On the second point, learned Counsel for the appellant submitted that once the sum of ‘a3200 was paid over to the two appellants for and on behalf of the Umuaka Ikwo School the ownership passed to the latter body with the result
that the particulars  charge in this respect are bad in law.

This point was not raised in the court of trial, but was raised on appeal to the High Court which held that:-
“On this point there was evidence which was even confirmed by the defence that the Vmuaka Ikwo School was one of the Council’91s schools. In that case it seems to me that the relationship between the Council and the School Committee could not be anything more than that of a principal and an agent. The Council therefore cannot be deemed to have surrendered the ownership of the money when it was paid to the school committee. The particulars of the charge that the ‘a3 1 00 belonged to the Council are in my     opinion quite proper.”

It is pertinent to note in this connection the wording of the Payment Voucher signed by the appellants and issuing from the Ezzikwo District Council, Exhibit “A”. It reads thus:-
“Head liB Capital Works. Sub’97head 6 Building of V.P.E. Schools Dr to Chief O. Ekuma (Local and School Committee) Ezzikwo County Council School Vmuaka Ikwo. 8’972’9761 to payment of Grants for the building of Inspiring V.P.E. School Vmuaka Ikwo to Chief Ogbunte Ekuma on behalf of his local and School Committee as per attached minutes of ED.S. Committee, item 644 of 17’971’9761 and details in file E.D.C. No. 24/188 191 Sum #200’970.0d. I certify that the above account is correct, and was incurred under the authority quoted, and that the services have been duly perfomed, and that the rate/price charged is/are according to regulation/contract or fair and reasonable, and that the account of two hundred pounds can be paid under the sub head quoted.”
The sub head quoted above is the Building of the V.P.E. Schools. It seems to us beyond dispute that this sum of ‘a3200 was paid to the payees the appellants and received by them for the sole purpose and direction that it be used for the building project. On this construction, section 385 of the Criminal Code is relevant. The relevant portion provides that:
“When a person receives, either alone or jointly with another person, any money. . . whether capable of being stolen or not, with a direction in either case that such money or any part thereof, or any other money received in exchange for it, or any part thereof, shall be applied to any purpose or paid to any person specified in the direction, such money and proceeds are deemed to be the property of the person from whom the money, was received until the direction has been complied with.”

On the evidence of the appellants themselves, after receiving this sum of money, the building contractor, Prosecution Witness No.3, was sent for and informed that the #200 due to him for work done under the Sub head contained in exhibit “A” was available and that he should come for payment.

He was paid a portion of what was due to him which was also a portion of what the appellants had received by virtue of exhibit “A” for a certain purpose which was not carried out.

For these reasons we are of the view that the property in the #100 was properly laid in the Ezzikwo County Council and this ground of appeal must fail, and the appeal is accordingly dismissed. The judgement of the Court below is hereby affirmed.

F.S.S.192/1963