OLUSEBI & ANOR. V. THE STATE

• Pages: 199-208

OLUSEBI & ANOR. V. THE STATE

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nied confession that any issue as to self-defence arose as it did not come from

the evidence of any of the prosecution witnesses or from the accused when in the

witness box. In the circumstances we are satisfied that the comment of the learned

trial Judge was not objectionable when it is looked at in the context of his full summ-

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ing-up, which we have quoted, on the issue of self-defence. Although there was

a technical error in his summing up, as we have said, in referring to the denied

confession as the evidence of the accused, nonetheless there was in our view no

possible miscarriage of justice and we accordingly dismissed the appeal.

Appeal dismissed.

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OLUSEBI & ANOR. V. THE STATE

15

SOLA ADIO OLUBESI

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APPELLANT

V

THE STATE

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RESPONDENT

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SUIT NO. SC 248/1969

SUPREME COURT OF NIGERIA

LEWIS,

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J.S.C.

MADARIKAN,

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J.S.C.

FATAL-WILLIAMS, J.S.C.

25 22nd May, 1970

Criminal Law - Fraudulent false accounting and stealing - Meaning of "privy to

omitting" in section 438 (c) and the criminal code - Prosecution must prove

not only that accused omitted to make the entry but also that it was his

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duty to make it.

ISSUES:

1. Whether the mere knowledge of an omission to make an entry in a book of

account, makes a person criminally liable for the omission.

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2. What is the meaning of "privy to omitting" in s.438(c) of the Criminal Code?

FACTS:

The two accused persons were charged with fradulent, false accounting and

stealing. The 1st accused was the cashier of a company and it was his responsi-

bility to look after the case of the company and to write up the cash books. The

40 2nd accused was the accounting manager of the company to whom the 1st ac-

cused was responsible.

The 2nd accused had the responsibility for the preparation of the reconcilation

statement. Both accused were found guilty of the offences as charged.

The 2nd accused appealed to this court. His submission was that there was

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no duty placed on him to make the relevant entries in the cash books and so he

could not legally be charged of being privy to the omission to make these entries.

HELD:

1. The words "privy to omitting" in s.438(c) of the Criminal Code means no more

than having knowledge of the omission. Mere knowledge of an omission,

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unless it is his duty to make the entry, does not make a person criminally liable

for the omission. Much more is necessary. Under s.438(c) of the Criminal

Code, the prosecution must prove, not only that the accused omitted to make

the entry but also that it was his duty to have made it.