T.U. AKWULE & 10 OTHERS (APPELLANTS)
THE QUEEN (RESPONDENT)
(1963) All N.L.R. 191
Division: Federal Supreme Court
Date of Judgment: 23rd May, 1963
Case Number: (FSC 325/1962)
Before: Ademola, C.F.J.; de Lestang, C.J. Lagos; Brett and Bairamian, F.J.J.
Appeal against conviction:
Briefly, section 311 of the Penal Code provides for the offence of criminal breach of trust; section 312 provides a general punishment of seven years and/or fine; section 315 provides a term of fourteen years in the case of a banker and some others (text in judgment). The first appellant was convicted of criminal breach of trust contra section 315 as a banker; he was the manager of a branch of the B.W.A. Limited
A. The point was made for the appellants that, as banking was a subject on which Parliament only could legislate (see the sections of the 1960 Constitution above cited), section 315 of the Penal Code-a Regional enactment-was unconstitutional in regard to bankers and the count laid under that section 315 was a nullity.
The 1960 Constitution of the Federation provides in section 64(2) that Parliament only may make laws on matters in the Exclusive Legislative List, in which item 43 mentions subsection (1) of section 72 (which provides that "Parliament may make laws for Nigeria or any part thereof with respect to banks and banking), and in which list Item 44 includes any matter that is incidental or supplementary, defined in Part III of the Schedule to include offences and the jurisdiction of the courts.
The 1960 Constitution of Northern Nigeria, section 4, empowers its legislature "to make laws for the peace, order and good government of the Region."
The pith and character of sections 311 and 315 is penal legislation for the peace, order and good government of the Region and therefore within the competence of its legislature; and section 315 is not legislation in respect of banks and banking but merely an incidental provision in such penal legislation.
Gallagher v. Lynn  A.C. 863, 869.
B. The second point was whether the first appellant was a 'banker'.
Under the Banking Act (Cap. 19) 'banking business' is defined as 'the business of receiving money on current account from the general public, of paying or collecting cheques drawn by or paid in by customers and of making advances to customers'. (As amended by Act No. 19 of 1962).
The first appellant was not conducting banking business as defined: the customers' accounts were with the B.W.A. Limited, and it would be the B.W.A. Limited who would be the debtor to any customer who deposited money with the bank; the first appellant was not a 'banker' but only an employee of that bank.
Copland v. Davies [1871-72]5 H.L. 358.
C. The first count alleged that the first appellant was 'entrusted with dominion over property to wit cash'. He passed cheques for his co-accused payable to firms which had accounts at other banks and allowed his co-accused credit as part of a scheme of fraud on his employers, the B.W.A. Limited The point made was that he did not give cash to the co-accused.
That would make the B.W.A. Limited a debtor to the other banks, to which the B.W.A. Limited might have to pay cash, and that was an offence within section 311 of the Penal Code; but if that view was mistaken, the court would apply the proviso to section 26(1) of the Federal Supreme Court Act on the ground that the mistake did not occasion any miscarriage of justice.
D. The next point was whether, as the first appellant was not a banker, the court could substitute for the conviction under section 315 a conviction under section 312; (and in regard to the other appellants, who were convicted under section 83-the section on abetment-coupled with section 315, a conviction under section 83 coupled with section 312, the general punishment section). Section 218 of the Criminal Procedure Code enables the court to convict of a lesser offence; and section 27(2) of the Federal Supreme Court Act gives the Supreme Court power to substitute a conviction in such a case.
The first appellant was guilty of the lesser offence under section 312 of the Penal Code, and a conviction under this section would be substituted; and the same would be done for the other appellants. Cooray v. R.  A.C. 407.
Convictions substituted (with fresh sentences).
Other case cited:-
Russell v. The Queen, 7 App. Case. 829.
APPEAL from the High Court of Northern Nigeria.
J. A. Fiberesima, for the 1st appellant.
Chief F.R.A. Williams, Q.C. (with him F. A. Thanni) for the 2nd-11th Appellants.
I.M. Lewis Q.C., Attorney-General, North (with him K. C. Nadaraja, Q.C.) for the Respondent.
ADEMOLA, C.J.F. (delivering the judgment of the court):-The 1st appellant was convicted in the High Court, Northern Region, held at Kano, of an offence laid under sections 315 of the Penal Code of the Northern Region relating to Criminal Breach of Trust in his capacity as a Banker; the sum involved being £100,089-8s-5d. He was also convicted of an offence under section 371 of the Penal Code of falsifying a clearing account relating to other Banks in what is known as the Impersonal ledger and also with forgery of a current account ledger. The other ten appellants were convicted each on a count of aiding and abetting the 1st appellant in the commission of the offence of criminal breach of trust.
The 1st appellant, who admitted the facts presented at the trial (except those relating to forgery), was at the time material to the charge the Manager of the branch of the Bank of West Africa at Fagge in Kano. He had authority to grant overdrafts to customers of the Bank up to a sum of £200 which must be reported at once. Contrary to the authority given to him, the 1st appellant granted overdrafts to the other appellants, from time to time, far above the sum of £200 and without making a report, although it was clear that some of the appellants had been bad debtors of the Bank before the 1st appellant took over, and it was to his knowledge that their credit facilities had been withdrawn; the other appellants became customers of the Bank since the 1st appellant became the Manager. Although credit facilities for heavy amounts were given to these men without making due reports, entries of these amounts were not made in the Bank's books. Later false returns of the clearing accounts were rendered by the 1st appellant in order to reconcile his accounts with other banks. Forgery of a page in the current accounts ledger was also proved against the 1st appellant although he denied the facts. The other appellants, Nos. 2-11, aided and abetted the 1st appellant to commit criminal breach of trust knowing full well that they were without funds in the Bank and that their accounts were not being debited with the amounts they had been drawing out; in some cases paying cheques into their accounts in the Bank, to facilitate the rendering of the returns by the 1st appellant, which cheques to their own knowledge were worthless.
As the range of arguments in this appeal relates principally to the offence under section 315 of which the 1st appellant was convicted, it is necessary to set out sections 311, 312 and 315 of the Penal Code:-
"311.Whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of Law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust.
312. Whoever commits criminal breach of trust shall be punished with imprisonment for a term which may extend to seven years or with fine or with both.
315. Whoever, being in any manner entrusted with property or with any dominion over property in his capacity as a public servant or in the way of his business as a banker, factor, broker, legal practitioner or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for a term which may extend to 14 years and shall also be liable to fine."
The first count of the charge is as follows:-
"Titus Akwule between the 1st October, 1960 and the 15th September, 1961 at Kano being entrusted with dominion over property to wit cash in your capacity as a banker to wit the Manager of the Bank of West Africa Limited Fagge Ta Kudu committed criminal breach of trust of a sum of £100,089-8s-5d and thereby committed an offence punishable under section 315 of the Penal Code."
The point will have to be decided whether the 1st appellant was a Banker, within the meaning of section 315 of the Penal Code and, if so, whether the property in relation to which he was said to have committed a breach of trust was entrusted to him in that capacity. Before this point, however, the important issue as to the validity of section 315 under which the 1st appellant is charged has to be considered, because Counsel for the appellants have, in the first ground of appeal, attacked the constitutional validity of the section and if that submission was upheld it would mean that the 1st appellant was tried on a charge which was wholly void, so that no question of substituting a conviction under any other section could arise. The first ground of appeal is as follows:-
"The learned trial Judge erred in law in convicting these appellants (Nos. 2-11) of the offence of abetting the 1st accused to commit criminal breach of trust when the said offence and the alleged offence of the 1st accused are offences purporting to have been created by the legislature of the Northern Region which is not competent to create any of such offences."
The submission which was made to us is that, with reference to the division of legislative powers, Banking is a subject in the Exclusive Legislative List in our Constitution; that in accordance with section 64 of the Constitution of the Federation only Parliament can legislate on matters in the Exclusive list, which list includes Banks and Banking; that section 315 of the Penal Code, insofar as it relates to bankers, is an encroachment on the legislative powers of Parliament by the Northern Region legislature; that to the extent therefore that the section relates to Bankers, it is unconstitutional and void. Counsel for the appellants have referred to Item 44 of the Exclusive list, which empowers the Federal Parliament to legislate on "any matter that is incidental or supplementary (a) to any matter referred to elsewhere in this list", which under Part III of the Schedule includes "offences"; and they have argued that penal provisions on bankers are within the exclusive competence of the Federal Parliament. Their aim is to show that count 1, which is laid under section 315, is null and void, so that not only is the conviction on that count a nullity, but the court is also debarred from replacing it by a conviction under section 312 if it turns out that the 1st appellant was not a banker; which would also affect the conviction of all the other appellants on counts laid under sections 315 and 83.
For the Crown a number of cases have been cited on the validity of legislation by a legislature with limited powers; it will be enough if reference is made to Gallagher v. Lynn  A.C., 863. The legislature of Northern Ireland had passed an Act on Milk and Milk Products, which was attacked as being ultra vires section 4 of the Government of Ireland Act, 1920, on the ground that it interfered with the trade in milk between farmers outside Northern Ireland and customers within it, contrary to the limitation not to legislate on "trade with any place out of the part of Ireland within their jurisdiction." Lord Atkin said at 869:-
"the short answer to this is that this Milk Act is not a law `in respect of' trade; but is a law for the peace, order and good government of Northern Ireland `in respect of' precautions taken to secure the health of the inhabitants of Northern Ireland by protecting them from the dangers of an unregulated supply of milk. These questions affecting limitation on the legislative powers of subordinate parliaments or the distribution of powers between parliaments in a federal system are now familiar, and I do not propose to cite the whole range of authority which has largely arisen in discussion of the powers of Canadian Parliaments. It is well established that you are to look at the `time nature and character of the legislation': Russell v. The Queen (7 App. Cas. 829) `the pith and character of the legislation'. If, on the view of the statute as a whole, you find that the substance of the legislation is within the express powers, then it is not invalidated if incidentally it affects matters which are outside the authorised field. The legislation must not under the guise of dealing with one matter in fact encroach upon the forbidden field. Nor are you to look only at the object of the legislator. An act may have a perfectly lawful object, e.g., to promote the health of the inhabitants, but may seek to achieve that object by invalid methods, e.g., a direct prohibition of any trade with a foreign country. In other words, you may certainly consider the Clauses of an Act to see whether they are passed `in respect of' the forbidden subject."
Adopting those views for our guidance, it is clear that the legislature of Northern Nigeria has power "to make laws for the peace, order and good government of the Region": section 4 of the Constitution of Northern Nigeria. There is no suggestion that in including bankers in section 315 of its Penal Code, that legislature was using its power to legislate on an offence such as criminal breach of trust as a cloak for encroaching on the field of banks and banking. The offence is created and defined in section 311; and any person guilty of it may be punished under section 312: the true nature of sections 313, 314 and 315 is that certain categories of persons (including bankers in section 315) should be liable to heavier punishment. An example of this mode of penal legislation is found in the Criminal Code of the Federation and of the other Regions. Section 390 of that Code provides a general punishment for stealing and goes on to provide heavier punishments for graver cases of the offence. That is arranged in subsections. In the Penal Code of Northern Nigeria, sections 312 to 315 could have been made or arranged as subsections in a single section dealing with punishments.
We are of the opinion that section 315 of the Penal Code is constitutionally valid insofar as it includes bankers in the category of persons liable to heavier punishment for criminal breach of trust. We are of the view that this is not legislation in respect of banks and banking but merely an incidental provision in penal legislation enacted for the peace and good government of Northern Nigeria. We therefore reject the submission of Counsel that this legislation is invalid in respect of bankers and that it is null and void.
We now come to the question whether the 1st appellant, at the material time was a banker. The learned trial Judge took the view that he was. For the Crown, it was contended that the Judge was right in holding that a Bank Manager is a banker. On the other hand Counsel for the appellants (and this includes Mr Fiberesima for the 1st appellant), argued that a Bank Manager is not a banker. Both sides have referred us to Ratanlal and Thakore on the Indian Law of Crimes, 9th edition at 1029 and 1030, that Law being the source of the Penal Code of the Northern Region.
For the meaning of Banker, we turn to our own Law. The Banking Act (Cap. 19) does not define Banker as such, but Bank is defined thus: "Bank' means any person who carries on banking business." "Banking business" is defined as "the business of receiving money on current account from the general public, of paying or collecting cheques drawn by or paid in by customers and of making advances to customers" (as amended by Act No. 19 of 1962).
Section 3(1) of the Act enacts:-
"No banking business shall be transacted in Nigeria except by a company which is in possession of a valid licence, which shall be granted by the Minister after consultation with the Central Bank, authorising it to carry on banking business in Nigeria:.."
From these provisions it is clear that a Bank can operate in Nigeria only by a company or body corporate. The word "person" in the definition of "bank" above is, therefore, used primarily in the sense of a corporation. In Copland v. Davies (1871-72) 5 H.L. 358, there is a definition of "banker" at 375 of the report, where Lord Hatherley, L. C., said:-
"..... it is not disputed that he was a banker in the ordinary sense of the word, as receiving people's moneys and giving them receipts-receipts not as for transfers of property, or for anything of that kind, but receipts acknowledging the receipt of money, and issuing pass - books and cheque books, and dealing with them in the ordinary way of a banker;"
The relationship between a Banker and a customer is that of debtor and creditor in respect of the money deposited with the Banker by the customer. This position becomes clearer when a customer asks for his money. The Bank undertakes to pay cheques of the customer drawn on his current account; thus the bank becomes a debtor for the-amount, which must be paid on demand. If the amount is not paid, the customer can sue the Bank. The action will lie against the bank, not the Bank Manager. It is, therefore, not-possible to agree with the view that the 1st appellant in this case was a Banker; if the Bank defaults, the 1st appellant, as Manager of the Bank, will not be sued; the Bank itself (B.W.A. in this case) will be sued. The cheques are drawn on the Bank of West Africa Limited and the customer's account is with the Bank of West Africa Limited the 1st appellant is no more than an official of the Bank carrying out the Bank's instructions as to the method its business should be carried out. The word "banker" in section 315 of the Code does not, in our view, include a person who is a mere employee of the bank. We would add that even if an employee of a bank could for any purpose be regarded as a banker within the meaning of the section the evidence in this case shows that the breach of trust was committed in relation to monies which were already the property of the bank, i.e., monies entrusted to the 1st appellant as an employee, not in any other capacity.
Our attention has been called to the words "to wit cash" in count one of the charge; it was argued that there was no evidence before the court that the 1st appellant converted any of the cash of the Bank of West Africa Limited to his use or disposed of it in any dishonest manner. It is true, as Counsel said, that the 1st appellant "did not give cash to the co-accused" but it is correct to say that their cheques, in favour of various firms, on the Fagge branch which he (1st accused) passed on to other banks at which the firms have money, placed the Bank of West Africa Limited in the position of a debtor to the other banks, a debt which the Bank of West Africa Limited may be called upon to pay in cash. We are unable to agree that this is not an offence within section 311 of the Penal Code. If we are mistaken in our view on this point, and it were necessary, we would apply the proviso to section 26(1) of the Federal Supreme Court Act, as we are of the view that the mistake, if it was one, did not occasion any miscarriage of justice.
It was further argued on behalf of the other appellants that all they did was to overdraw, and if the 1st appellant authorised these overdrafts contrary to his instructions, they could not be guilty of abetting any offence under section 311. We think this argument devoid of any substance when one looks at the findings of the learned trial Judge with which we have no reason to disagree-of the part played by these appellants in this gigantic fraud.
It remains for us to decide the point argued before us, whether, having regard to the opinion we have expressed that the 1st appellant was not a banker, and that the laying of the Count under section 315 was a mistake, the convictions should not be replaced by convictions of criminal breach of trust, or the abetting thereof, punishable under section 312, or under section 312 coupled with section 83 in the case of abetting.
Arguments have been put to us about the powers of the court to substitute another section for the one charged in such a case. We have given consideration to this, and we are satisfied that under section 218 of the Criminal Procedure Code, when read with section 27(2) of the Federal Supreme Court Act, 1960, we are not without power to substitute, in this case, section 312 of the Penal Code for the section 315 charged. An authority for this is the case of Cooray v. R.  A.C. 407.
We therefore discharge the conviction under section 315 of the Penal Code and substitute in case of the 1st appellant on the 1st Count a conviction under section 312.
On the question of sentence, it was pointed out that the sentence of seven years passed upon the 1st appellant is the maximum sentence which could have been passed on a conviction under section 312 of the Penal Code. It was urged, in the circumstances, that the sentence passed upon him on that count be reduced. After due consideration of the whole case, we are of the view that to reduce the sentence in any way would be minimising the gravity of the offence the 1st appellant has committed.
We therefore pass on the 1st appellant, on the substituted conviction under section 312, a sentence of seven years imprisonment with hard labour less the period he has served from the date of his conviction in the High Court, namely, 6th August, 1962, and the date of this judgment namely the 23rd May, 1963, that is to say, seven years reckoned from the 6th August, 1962. His convictions and sentences on counts two and three of the Charge remain unaffected.
In regard to the other appellants, convicted on a count of abetting the 1st appellant in his offence under sections 315 and 83 of the Penal Code, we discharge the convictions, and substitute in respect of each a conviction under sections 312 and 83 of the Code.
The following sentences are passed:-
2nd appellant five years imprisonment with hard labour.
3rd-9th appellants four years imprisionment with hard labour each
10th and 11th appellants two years imprisionment with hard labour each
and in each case the sentence dates as from the date of conviction in the High Court, namely, 6th August, 1962.