Rex V. Raimi Abudu (Amodu) (1934)

LawGlobal Hub Judgment Report – West African Court of Appeal

Appellant charged on seven counts contra. Sec. 438 (c) of Cap. 21 and on seven counts contra. Sec. 438 (a) of Cap. 21 of Laws of Nigeria—Convicted on former but acquitted on latter by Trial Judge sitting alone.

Held: Appeal allowed and conviction quashed: word ” destroy ” discussed.

The facts of the case are sufficiently set out in the judgment. Ivor Brace for Crown.

J. C. Zizer for Appellant.

The following judgment was delivered.

DEANE, C.J., GOLD COAST.

In this matter the accused was charged for that he being a elerk or servant in the employ of the Compagnie Francaise de L’Afrique Occidentale did with intent to defraud (1) omit to make entry in the monthly summary of his employers of goods referred to in certain delivery notes contrary to s. 438 (c) of Cap. 21, (2) destroy the said delivery notes contrary to s. 438 (a) of Cap. 21 of the Laws of Nigeria.

There were seven charges of omitting to make a material entry and seven corresponding charges of destroying triplicate delivery notes. The charges were all heard together. The learned Chief Justice, who delivered a written judgment, found the accused not guilty on all the charges of de -troying the delivery notes, but convicted him on all the charges of omitting to enter in the monthly summary the goods detailed in the delivery notes—against these convictions he has appealed.

At the completion of the hearing of the appeal the Court decided that the appeal would be allowed and discharged the accused, but intimated that the reasons for the decisions would be stated later in writing.

The Compagnie Francaise de L’Afrique Occidentale, it appears, carries on a business in the Colony having its headquarters in Lagos and a number of branch shops in various parts of the Colony. The accused was employed as a clerk in the

Central Office in Lagos—When a branch shop required goods tu replenish its stock the shopkeeper would send a requisition to the Central Office, on ‘receipt of which_ it was the duty of the accused to make out in triplicate a document known as a delivery ;note– This was submitted to an Eurdpean Assistant of the Company an on its being passed by him₎ one of the triplicate notes- was passed on to the Storekeeper of the Company acting on which he would deliver the goods to the account of the requisitioning shop, one of the two remaining notes being retained in the office in a book known as the delivery note book, while the other was sent to the requisitioning shopkeeper to be filed and kept by him—From the delivery note book the accused’s duty was to enter the goods mentioned on the delivery note retained aforesaid, in the monthly summary which is made out in carbon duplicate at the end 434 every month, the original being sent to the shopkeeper to enable him to check it with the delivery notes in his possession and call attention to any mistake, the duplicate remaining in the office and accounts being made out from it.

The case sought to be made against the accused was that on the dates alleged in the charges he made out triplicate deliver3, notes for a branch shop, having received no requisition to do so from the shopkeeper, that he then by some means unexplained must have got the European Assistant to pass the delivery notes without reference to the absence of a requisition in each case, that he then sent triplicate notes to the Central Storekeeper and must have received from him the goods detailed thereon either personally or through some agent, and that in order to conceal the fraud he destroyed the triplicate notes which should have been kept in the office, and also the triplicate notes which’ should have gone to the shopkeeper (as to_ihese however he was not charged), And omitted to enter In^–the monthly summary of goods sent to the shopkeeper the goods, detailed in the triplicate notes.

Now the fact that the accused made out the triplicate notes without any requisition from the shopkeeper rests upon .the evidence of the shopkeeper alone, and one would have expected that, when evidence was being given by the shopkeeper as to what goods he had requisitioned for, he .would have produced for inspection his requisition book, or, if he did not keep one, whatever records he had of the goods ordered by him from time to time from which it might be seen that there were no requisitions made out by him for the goods detailed on the delivery note in the possession of the Central Storekeeper,—and in addition that the requisition file of the Central Office would have been produced, and some evidence given as to where it was kept, and who should be responsible for it,—but nothing of the kind was done, and the shopkeeper trusted entirely to his recollection for a matter in which mere memory can hardly be reliable—The European, too, who passed the delivery notes, and who would hardly have done _so without inspection of the requisitions, is not called as a witness—

Under the circumstances we think the nowproduetion^– of any documents of any kind showing hew goods are requisitioned for, and what becomes of the requisitions, and -the falba. of the European to give evidence in explanation of his passing the delivery notes without the requisitions, makes tho eTideme on this point very unsatisfactory.

Again, on the one side no specific loss is proved to the Company, and no explanation is given by them how it was that when their accounts were made up from the monthly summary, the necessary discrepancy with the Central Storekeeper’s figures was

i

accounted for : on the other aide there is not a tittle of evidence that these goods, or any of them, ever passed into the hands of the accused or any agent of his, the mind of the Storekeeper being a complete blank as to the person to whom the goods were delivered—In these circumstances the accused was charged with destroying the notes with intent to defraud, and had the prosecution succeeded in establishing that fact no doubt it would have gone a considerable way to establish against him a fraudulent intent in omitting the goods from the monthly summary—This charge however failed and the- accused was acquitted of destroying the triplicate notes. One would have expected then that the benefit of the acquittal would have been given to the accused, and that the possibility or probability of his having destroyed the delivery notes could not have been further imputed to him, but what happened was that while acquitting the accused the learned Chief Justice added a rider to the verdict which in effect converted it into a verdict of ” not proven “, a verdict entirely unknown to our law, and then, considering the evidence against the accused in the light of his verdict so interpreted, found the accused guilty of the fraudulent omission of the cntriFs—That the verdict was not treated as a verdict of acquittal simpliciter and without reserve, as it should have been, is clear from the language used by the learned Chief Justice in recording it. ” I accordingly find the accused not guilty “, he says. ” on counts 2, 4, 6, 8, 10, 12, 14 (the destruction of documents counts) I shoufd add however that I am satisfied upon the evidence that the documents in question either have been destroyed or are being_ suppressed by the accused,”—that the reservation to the verdict was used against the accused for the purpose of convicting him on the other charges is clear from What follows–` This is of importance since it bears upon the charges under the other counts “, and from a later passage in which, when he comes to convict him, he states I find it proved that Delivery Note No. 19843 dated 25th February, 1933, which is for ten cases of biscuits . . . . is in accused’s handwriting, and that the triplicate copy of this delivery note has been destroyed or otherwise suppressed by the accused—further that it was accused’s duty to make in the monthly summary for February, 1933, ‘the proper entry regarding these ten cases of biscuits and that he omitted to make such entry “.

Now on examining the evidence we find that, to support the Rex charge of destroying the delivery notes, the prosecution had- tor•
rely only upon the fact that the notes could not be found, and Raimi that the book in which they were kept was supposed to be under Abudu the charge of the accused–no :interest -in their destruction having ⁴`^{A “I}

been proved against the accused owing to there being no evidence Deane, C.J. that he had obtained possession of the goods—and it might be a

fair inference to draw against the accused that he had destroyed the notes if the possession of these notes had- been traced to him at a particular time and they had then disappeared without the accused being able to give any account of what he had done with them, but this is far from being the case—All the evidence we have to connect the accused with these notes is that of Mr. D’Esparbes,. the General^–Goods Manager of the Company, who stated : ” The ” accused has custody of the delivery note books during the day. ” There is one for each shop. At night they are kept in the office ” safe. A European assistant has the key of that “—which ehows that only during the day was the accused supposed to exercise controrover the delivery note books, the control over them passing every evening to a European Assistant, while from the evidence of Stephen Aina, a clerk in the employ of the Company, also a witness for the prosecution, it is clear that the delivery note books were kept on a table in the general office where accused and other clerks sat, that the other clerks filled in prices on the delivery notes sometimes after the goods had been delivered by the Storekeeper, and that the books might be handled at any time by a number of clerks—so that accused’s control over the books themselves seems to have been of a somewhat general character. When however we pass to the consideration of the delivery notes all that can be said is thakjhere is not a tittle of evidence to connect the accused with them in any way, he was _never proved to have handled them afttr they were once entered in the book, nor was he ever seen to extract one at any time or even to have had one in his possession; and as we have seen it was possible for a number of people to have abstracted them without the accuse_d necessarily knowing it.

Whether therefor we take the view of the learned Chief Justice that destruction and suppression of- a document are two different things, or whether considering that on this view of the law it would be quite impossible to convict any one of destroying a document under s. 438 (a) unless he was actually seen in the act of destroying by a witness since, in the absence of such evidence, the difficulty of saying whether the accused had suppressed or destroyed it would always present itself as an insoluble problem, we take the view- that the word ” destroy in the section is meant to cover any dealing by the accused with a document as a result of which its whereabouts or existence is unknown and it is not available in evidence, we cannot in either case get away from the position that there was no evidence that accused was guilty either

of destroying or suppressing the notes, and from the further fact

that the possibility of accused having destroyed the delivery note Raimiafter he had been solemnly declared by the Court te be not guilty

Abuduof that offence was taken into account as a factor inat

(A modu)

the verdict against him for fraudulent mission—that way of

Deane, C.J. dealing with the matter was, in our opinion, contrary to the spirit of English law which holds every man innocent until the contrary is proved, and admits only of two verdicts, ” guilty ” or ” not guilty “, the latter of which entirely exonerates the accused on the charge—and in view of the importance which the learned Chief Justice attached to this part of the case against the accused, and also owing to the extreme tenuity of the other evidence against accused, we did not think the conviction could be_ sustained and we therefore quashed it.