INSPECTOR-GENERAL OF POLICE (APPELLANT)
GEORGE OGUNTADE (1st RESPONDENT) FATAI BALOGUN (2nd RESPONDENT)
(1971) All N.L.R. 370
Division: High Court of Lagos
Date of Judgment: 11th January, 1971
Case Number: APPEAL No. LD/33 CA/1970
Before: Taylor C.J.
Appeal from the Magistrate's Court.
(1) It is not correct to say that it is a cardinal principle of law that if there is any doubt at all however slight the benefit should go to the accused person. The correct statement of the law on this point superimposes the word "reasonable" between "any" and "doubt".
(2) In this case, since the 2nd accused/respondent admitted that the 1st respondent entrusted the whole amount to him for the specific purpose of purchasing a house and that he made use of part of the money for other purposes, the case against him was proved beyond any shadow of reasonable doubt and the appeal against his acquittal must be upheld.
(3) The evidence against the 1st accused/respondent did not establish the charge against him. He was no doubt grossly negligent in handing over client's money to one who on the evidence appears to be no more than an estate agent tout without taking the necessary precautions. He acted in gross breach of his duty as a solicitor in not putting through the agreement of sale and purchase and payment of the purchase price himself. But all these do not add up to his guilt. They do not go to show that he was in any way a party to the stealing of the sum of £700 under the circumstances set out in Orizu & anor v. The Queen. The appeal therefore must fail in that the prosecution had not established the charge against him.
(4) The law requires the court to consider the case against each accused separately, and the fact that one accused is discharged, except in a conspiracy case, does not mean the automatic discharge of the other accused person even where such discharge is as a result of the existence of a reasonable doubt as distinct from a slight doubt.
Appeal in respect of 1st Accused/Respondent dismissed: Appeal in respect of 2nd Accused/Respondent allowed.
Case referred to:
Orizu and anor. v. The Queen 1954 14 W.A.C.A. 455.
Act referred to:
Criminal Code S.390(8)(b)
APPEAL from the Magistrate's Court
APPEAL No. LD/33 CA/1970.
Alao for the Appellant.
Jibowu and Akinleye for the 1st Respondent.
Solesi for the 2nd Respondent.
Taylor, C.J.:-The two respondents were charged with the offence of stealing the sum of £700 entrusted to them by one Lawal Adebayo Abudu for the purpose of purchasing a house contra S.390(8)(b) of the Criminal Code.
The undisputed facts are that the 1st respondent, a member of our honourable profession was paid a sum of £1,550 by a client Lawal Adebayo Abudu on the 25th May, 1967, for the sole purpose of purchasing a house for the latter. This sum was made up as follows: £1,150 was to be the cost price of the house and £400 for the land. A further sum of £20 was paid as part payment of professional fees in respect of preparation of a conveyance leaving a balance of £6. These three sums are all evidenced by three receipts exhibits D.3, D.4 and D.5 respectively. The negotiations in respect of the property at Onafowokan Street, Shomolu, broke down, and the accused persons began negotiations in respect of another property at 44 Olateju Street, Mushin, belonging to the 2nd P.W. Elizabeth Idowu. So far the facts stated are common to both appellant and respondents. I would at this stage mention that the 2nd respondent was working hand in hand with the 1st respondent in this particular task. The 1st respondent gave evidence that the 2nd respondent was his maternal uncle and that they were intending to establish an "estate business" which seemed to have floundered before it was floated. It is also not in dispute that out of the sum of £1,550 a sum of £850 was paid out for the house to be purchased for the complainant, and that the balance which is £700 should still be in the possession of the respondents.
The 1st respondent admits receiving these sums and says that he gave the money received by him to the 2nd respondent with the object of paying the money to the vendor of the property. The 2nd respondent admits that this sum of £1,550 was handed to him by the 1st respondent for this purpose and he further admits that he did not pay all of it to the vendor of the property. In his evidence in Court he said he paid £850 to the vendor Elizabeth Idowu and similarly in his statement to the Police exhibit "B". This sum of £850 is admitted by Elizabeth Idowu, P.W.2, as the sum received by her. The sole question is what has happened to the balance of £700? and why was it not paid back to the complainant as the balance remaining from the sum of £1,550 paid to them?
The learned Chief Magistrate in a highly contradictory judgment acquitted the accused/respondents. The judgment is highly contradictory because when a tribunal presided over by a legally trained officer states that:-
"I have carefully gone through the voluminous evidence and I have read the authorities cited and the cases that I consider applicable and these are my observations:-
(1) That there is overwhelming evidence in this case in support of the charge, under s. 390(8)(b) of the Criminal Code. I believe the prosecutions witnesses...."
one expects to find a verdict of Guilty, for that is the only inevitable result of the finding of "overwhelming evidence in support of the charge" not to talk of the additional belief of the witnesses for the prosecution who have supplied such overwhelming evidence. But that is not all, for the learned trial Chief Magistrate went on to make the following remarks in support of the proof of the case against the respondents:-
She says of the 1st respondent:-
"Why should a lawyer think that a layman keeping the money in the house is better able to keep it, more so when it was to his knowledge that the vendor was not paid within nineteen days that he gave the money out."
and a little later on that:-
If the 1st accused had read and had interpreted the document as he claimed, he should have discovered that the inception date bears August 1967 whereas he stated on oath that the document was executed on 22nd June, 1967. An intelligent and learned person of his calibre would have seen what he called a typographical error by his clerk. I believe the 3rd P.W. who said that the lawyer 1st accused did not read it, he simply made 2nd P.W. and the 3rd P.W. to thumb impress it. Is that compatible with an unfraudulent intent?"
Stopping there for a moment and looking at the relevant exhibits "A" and "D.6" the copy, one finds it hard to believe that either of these could and did emanate from the Chambers of a member of this honourable profession. As the learned Chief Magistrate remarked it began with the words:-
"This Agreement entered into this ... day of August 1967."
and ends with the following:-
"Dated this 22nd day of June 1967."
And yet in his evidence in Court he deposed not only that he gave the particulars to his Clerk to prepare same, but also that he read it out or interpreted it to the illiterate vendor.
The judgment continues after the question posed by the court as to compatibility with a fraudulent or non-fraudulent intent in these words:-
"It was held in the case of Nwafor Orizu and Joseph Orizu v. The Queen 1954 14 WACA that para. (f) s. 383(2) of the C. Code clearly applied to that case. There it was held that if money deposited for a specific purpose is neither used for that purpose nor returned on demand or at a reasonable time thereafter, that the offence of stealing is committed?"
On the following page she said of the same 1st respondent:-
"...Whereas he knew that £850 was paid out in respect of the house purchased for 1st P.W. when he did not do that what was his intention? Was it not the one in Orizu's case? I am not impressed by the 2nd accused's vague defence at all, he impressed me as a person who is looking for money by fair or foul means all the time, and I don't believe his fake story that an alleged Tuedo took any money from him...in my view he (2nd respondent) is a wicked person who make any person suffer to get money..."
Finally she remarks about the 1st accused/respondent:-
"...the 1st accused person should realise that this is a very dirty game and a breach of professional conduct of the Bar..."
With all these trenchant remarks the court proceeded to acquit both accused/respondents on a reasoning I find hard to understand and on a most inaccurate statement of the law as to the onus of proof. The judgment on this point reads as follows:-
"Yet it is a cardinal principle of law that if there is any doubt at all however slight the benefit should go to the accused person."
I believe the correct statement of the law on this point superimposes the words "reasonable" between "any" and "doubt". A little later on, the learned Magistrate ended the judgment with these words:-
"Since the two accused persons are charged together they are both offered the benefit of the slight doubt in my mind."
Here again is an infraction of the rule which requires the court to consider the case against each accused separately, and the fact that one accused is discharged, except in a conspiracy case, does not mean the automatic discharge of the other accused person even where such discharge is as a result of the existence of a reasonable and I repeat reasonable doubt as distinct from a slight doubt.
As far as the 1st accused/respondent is concerned what the learned trial Chief Magistrate had to consider was whether, on the admission by the 2nd respondent that the 1st respondent gave him the £1,550 in order to purchase the property, his action went beyond that of a grave breach of professional etiquette and amounted to his knowing of and being a party to depriving the 2nd P.W. of the balance of £700 due to him. The 1st accused denies any knowledge of the actions of the 2nd accused with respect to the manner in which the sum of £700 was used by the said 2nd accused. The 2nd accused in his evidence said inter alia that:-
"1st accused was not happy when he learnt that I had lent part of the money to a third party and that 2nd P.W. had not been paid in full. He (1st accused) advised me to make effort to refund the money and that I should report Tuedo to the Police..."
The evidence against the 1st accused/respondent does not in my view establish the charge against him. He was no doubt grossly negligent in handing over client's money to one who on the evidence appears to be no more than an estate agent tout without taking the necessary precautions. He acted in breach, yea, in gross breach of his duty as solicitor in not putting through the agreement of sale and purchase and payment of the purchase price himself. His preparation of exhibits "A" and "D" was in a shoddy manner and unbefitting a member of our honourable profession, but all these do not add up to his guilt. They do not go to show that he was in any way a party to the stealing of the sum of £700 under the circumstances set out in Orizu & another v. The Queen. The appeal therefore fails in that the prosecution had not established the charge against him and is dismissed.
As for the 2nd accused/respondent, if I may use the words of the learned trial Chief Magistrate the charge against him has been established by overwhelming evidence which includes his own admission that out of the sum of £1,550 admittedly received by him for a specific purpose only £850 has been used by him for that purpose and the balance has not been returned till today to the rightful owner. So unabashed and brazenly fraudulent is the 2nd accused respondent that he openly admitted using part of the money for other purposes. Further the evidence of the 2nd P.W. which was accepted by the learned trial Chief Magistrate shows that this respondent to whom client's money of £1,550 had been entrusted negotiated to pay 2nd P.W. only £1,200 to purchase the house. In his statement to the Police exhibit "B" the 2nd accused/respondent he himself said inter alia that:-
"The landlady (Elizabeth Idowu) said she would take £1,500 for the sale of the house but after bargaining she agreed to take £1,200 for the house. We told the landlady that we would have to pay £1,200 but she would make a receipt of £1,500 because the two parties, the seller and the buyer, said they would not pay us any commission. So we gave her £800 and told her that we would give her the remaining balance of £400 whenever the conveyance was out. So we gave her a receipt of £1,100 for the payment of £800, leaving a balance of £400 to be paid."
In spite of these open admissions the court found a "slight doubt" as to his guilt. As I have said the case against him was proved beyond any shadow of reasonable doubt and the appeal against his acquittal is upheld. The judgment of the learned trial Chief Magistrate is set aside as far as this respondent is concerned and I shall hear the parties on sentence; a judgment of Guilty is entered against him. I will also hear Counsel for the 1st accused as to whether this is or is not a fitting case to be sent to the Disciplinary Committee for the reasons already stated and the additional one that the sum of £1,550 was never paid into "Client's Account" as is shown by exhibits "D" and "D.1".
11th January, 1971
Mr Solesi:-I urged the court to take the view that the respondent is a first offender. I ask the court to be lenient with the respondent. The respondent is a man with a family. He should be treated leniently. The respondent has not got the money on him this morning.
Mr Alao:-This is stealing and is aggravated. Jurisdiction of learned trial Chief Magistrate is limited to 5 years.
Court:-I have heard both Counsels in this matter and have taken into account the fact that the 2nd respondent is a first offender. I would however be failing in my duty if I did not impose a punishment fitting the offence. The 2nd accused/respondent is sentenced to a term of 2 years IHL.
Mr Jibowu for 1st accused/respondent:-I start with great trepidation when I listened to the court's judgment. I am grateful for Your Lordship's dismissal of the appeal. It is not a case to be sent to the Disciplinary Committee. The court has held that the 1st respondent acted honestly. We are all human and liable to make mistakes. The first respondent has made a mistake. I must state that the failure to pay this money into client's account is not sufficiently opprobrious enough to be reported to the Disciplinary Committee. The 1st respondent imposed trust in his maternal uncle. He has been through a lot during the trial.
Mr Alao:-I have nothing to say other than to leave the matter to the court's discretion.
Court:-After listening to Mr Jibowu it may very well be true that the respondent imposed full confidence in the 2nd accused/respondent as a result of which he paid the sum of £1,550 to the said respondent when he the 1st accused should have personally paid it to the vendor of the property.
As regards the payment of this sum into his personal account it is in his favour that the full sum was still intact when it was paid by him to the 2nd respondent. Whilst he was therefore in breach of professional etiquette, the fact that he was not a party to the stealing of any part of this sum should weigh in his favour, coupled with the fact that there is no evidence of him ever tampering with any part of this sum while it was in his possession.
I hope the respondent has learnt a lesson. I will let the matter rest there.
Appeal in respect of 1st Accused/Respondent dismissed:
Appeal in respect of 2nd Accused/Respondent allowed.