(CRIMINAL REVISION)

SUDAN GOVERNMENT v. OMDA IBRAHIM EL BASHER IBRAHIM

ACCR-REV-210-1964

 Principles

·  Criminal law-Criminal breach of trust-Penal Code, s,  351-mere retention of  money is insufficient to  establish dishonest intention

Accused an Omda-native local administrator-collected taxes and did not pay the money into the Government chest for 15 months. He was convicted under Penal Code, s, 351.
Held finding under Penal Code, s,  351, is quashed because mere retention of money by the accused which was reasonably explained, does not establish dishonest intention.

Judgment

Advocate: Mohammed Osman Awad…………………………….for  accsed

M. A. : . Abu Rannat C.J June 27 1964:- The accused an omda, who collected taxes on various dates, was convicted under Penal Code, s,  351, for a sum of Ł s. 141.852 m/ms. The accused paid this sum to the Government as follows:

Ł s. 109.282 m/ms. Paid to the local council after information was laid againist him;

20.570 m/ms. Paid to the investigator;

3.000 m/ms . kept by him and he was ready to pay it.

Ł s. 141.852 m/ms.

The Court found that he collected these amounts during the period February 1, 1962 -June 30, 1962 , and the information was laid on October 9, 1963. the Court found that as he did not pay this amount into the Government chest for 15 months he must be taken to have kept these amounts dishonestly.

On the face of it, the non-payment of these amount for 15 months indicates that he retained them for his own use, but I this case there are other factors which must be taken into consideration.

The accused is a nomad , who normally  does not come to Khatoum North, and that according to practice they expect the controller of collections to go to them in the area and demand payment of any amounts that had been collected by Omdas or Sheikhs. The Controller admits that he did not go to the area concerned since the end of 1961 or beginning of 1962 and that on his last visit in August 1963 he did not find the accused.

The accused arrived in Khartoum North on or about October 9.1963 , the date on which the executive officer laid information againist him, and that on the same day he paid some of this amount and after one or two days he paid the balance of it.

Before the executive officer laid the information he should have asked the accused to pay the amount due-say within two or three days –as his house is at Abu Diling, and then if he failed to pay, he could have reported him to the police with clear case of breach of trust. Professor Gledhill stated  in his work,. The Penal Codes of Northern Nigeria  and Sudan (1963) p.579 “Mere retention of money by the person entrusted with it is not normally sufficient to establish dishonest intention but if the retention is concealed by making false entries in accounts dishonest intention is reasonably inferred”.