The prosecution evidence showed that the appellant had a duty to check the pay sheet and that ostensibly he had done so, and it was not for the trail Court to speculate at that stage whether it was a case of fraud or of negligence on his part; and as there was nothing tending to establish neglect of duty rather than fraud, there was a prima facie case for the appellant to answer.

Appeal dismissed

APPEAL from the High Court of Eastern Nigeria.

C. A. Oputa for the Appellant.

F. O. Offiah, Crown Counsel, for the Crown.

Brett, Ag. C.J.F. (delivering the Judgment of the court):-The appellant was convicted in the High Court of Eastern Nigeria on counts charging conspiracy to defraud, stealing by clerks or servants and false claims by officials. The case for the prosecution against the appellant depended entirely on circumstantial evidence so far as the existence of a fraudulent intent was concerned, and the appellant's Counsel made a submission that there was no case to answer. When this was overruled the appellant elected to stand on his submission; he did not give evidence or make any unsworn statement, and his Counsel did not address the court further. His co-accused Stephen Nwosu, however, gave evidence on oath in which he maintained that he was merely a subordinate party to the offences charged and that the appellant was the real instigator of them and the chief participant. In convicting the appellant the judge took into consideration not only the evidence called by the prosecution but also that of Stephen Nwosu, as well as the appellant's own omission to give evidence.

It is common ground that if the judge was right in holding that there was a case to answer, he was entitled to take the evidence of Stephen Nwosu into consideration as against the appellant, but the submission now made on behalf of the appellant is that the judge was wrong in holding that there was a case to answer, and that as the appellant refused to take any part in the subsequent proceedings he is entitled to have his conviction quashed. That question will only arise in this case if we uphold the submission that the evidence for the prosecution disclosed no case which the appellant ought to have been called on to answer, and we now proceed to examine that submission. The case against the appellant as disclosed by the evidence for the prosecution was summarised by the trial Judge as follows:-

"The first accused, in July, 1959, was acting as Treasurer of the Oratta County Council. On July 31st, a pay sheet for road labourers, prepared by the second accused was presented to the first accused. It was his duty to check it and see that it was correct. He signed a certificate to the effect that he had checked it and found it correct and paid out the sum of £810-17s-1d on a payment voucher. In fact the pay sheet was not correct at all, because the total of the various items on it only amounted to £691-17s-1d. There are six pages and the inflation is on the fifth. It can be seen that the total was originally for the correct figure. This was erased-not very thoroughly-and the higher figure substituted. The first accused therefore paid out £119 more than he should and the amount has disappeared-t has been stolen from the Council."

In a sentence, the appellant paid out £119 too much on the strength of a pay sheet which bore obvious alterations, which it was his duty to check, and which he had signed as correct. If he had overlooked the alteration through failing to carry out his duty of checking the pay sheet that would, no doubt, be proof of negligence and not of fraud and if the evidence was equally consistent with either the appellant was entitled to be acquitted. But once the prosecution had proved what the duty of the appellant was and that he had ostensibly carried out that duty, it was not for the court to speculate on whether he had negligently failed to perform it, when there was no evidence on the point, and it was a matter specially within the appellant's own knowledge whether he had in fact checked the pay sheet. As the evidence stood at the close of the case for the prosecution we are of the opinion that the judge was right in holding that in the absence of anything tending to establish a neglect of duty rather than fraud there was a prima facie case for the appellant to answer. That being so, it is agreed that the appeal must fail, and it is dismissed.