Appeal Court 16th Jan., 1940.

Stealing by clerk or servant contra section 390 (0) of Criminal Code­General deficiency in cash--Obtaining property by false pretences contra sec. 419 of Criminal Code-Evidence of intent to defraud furnished by accused person-Fraudulent false accounting contra sec. 438 (c) of Criminal Code-Inconsistency in verdicts.

The Appellant was Manager of the Asaba branch of the United Africa Co. Ltd. and as such was in charge of the stock, cash, and books, and had sole control of the safes, of the Company. Between 4/6/39 and 1/7/39 his books showed a general shortage of £304 19s. 11d. for which he was unable to account. On or about the 4/6/39 he sold to the Company seven casks of palm oil the property of divers owners for £13 4s. ad. cash stating that he had the authority of such owners so to sell. He received the said sum of £13 4s 5d. but did not pay it to the owners. The owners made no demand for payment. Between November 1938 and April 1939 the Appellant in his capacity as clerk of the Company received three separate sums of money viz. £7, £8 and £2 12s. 6d. from three of the Company's customers and failed to record such sums in his books of account. On the :10  th May, 1939 the Appellant in similar circumstances failed to record in his books of account the receipt of £33 9s. 2d. paid to him by a customer of his Company name Onochie.

The Appellant was charged as follows ;-

(i) Under count 1 with stealing as a clerk the said sum of £304 19s. 11 d. contra sec. 390 (6) of the Criminal Code.

(ii) Under count 2 with obtaining the said sum of £13 4s. 5d. by false pretences contra sec. 419 of the Criminal Code.

(iii) Under counts 3, 5 and 7 with fraudulent false accounting in relation to the said sums of £7, £8 and £2 12s. 6d. contra section 438 (c) of the Criminal Code.

(iv) Under counts 4, 6 and 8 with stealing the said sums of £7, £8 and £2 12s. 6d. contra sec. 390 of the Criminal Code.

(v) Under count 9 with fraudulent false accounting in relation to the said sum of £33 9s. 2d. contra sec. 438 (c) of the Criminal Code.

(vi) Under count 10 with stealing a1\ a servant £14 9s. 2d. the property of the said Onochie contra sec. 390 (6) of the Criminal Code.

In his defence to count 2 the Appellant alleged that he had paid the said sum of £13 4s. 5d. to the agent of the owners but this was denied by the agent and owners. The sum of £14 9s. 2d. was a portion of the ~um of £33 9s. 2d. The Appellant was convicted by the Trial Judge on all ten counts and appealed.

Held: (I) Following R. v. Lloyd Jones, 8 c. & p. 288 and R. v. Wolstenholme, 11 Cox 313 that though it was proved that a general deficiency existed it was not proved that any specific sum had been stolen and therefore the conviction under count 1 was bad; conviction accordingly quashed.

(2) Since the sum of £14 9s. 2d. was a portion of the sum of £33 9s. 2d. the conviction under count 10 was inconsistent with the conviction under count 9 and was bad; conviction under count 10 accordingly quashed;

(3) Convictions and sentences on remaining eight counts upheld.

D. Hagley for Crown.

O. Alakija (with him O. O. Alakija) for Appellant.

I

owners when he saw them, it would be difficult to infer the intention to defraud; but the appellant himself furnishes the evidence of intent by alleging (as the Trial Judge found, untruly) that he had paid over the money. We are entitled to look at the case as a whole and consequently to act upon this evidence supplied by the appellant himself.

The appeal against conviction on this count fails.

Counts 3, 5 and 7 charged the appellant with fraudulent false accounting in that he, being a clerk of the United Africa Co. Ltd., with intent to defraud, on three specified dates omitted from or in a cash book belonging to his employers a material particular, that is to say the receipt of three separate sums of £7, £8 and £2 12s. 6d. from Orakpo, Okeze and Okeze respectively and in counts 4, 6 and 8 the appellant was charged with the stealing of these three sums from the United Africa Co. Ltd. he being the clerk of the United Africa Co. Ltd.

As regards these six counts the learned Trial Judge has made specific findings of fact which are justified by the evidence establishing unquestionably the commission of the six offences therein charged and we see no reason for interfering with his decision thereon.

The 9th count is another charge of fraudulent false accounting in that the appellant in similar circumstances with intent to defraud omitted to enter in the cash book of his employers the receipt of a sum of £33 9s. 2d. on a date specified in the count. Here again the Trial Judge has found facts on the evidence which justified him in finding the appellant guilty on this count and we see nothing in the argument of Counsel to induce us to question that finding.

As regards the l0th count there was an application to amend the charge from stealing £15 from one Onochie to stealing by a servant the sum of £14 9s. 2d. Only the amendment of the sum was allowed, the charge therefore remained one of stealing from Onochie and it was of this offence that the appellant was convicted.

This £14 9s. 2d. is part of the sum of £33 9s. 2d. paid by Onochie of which the appellant omitted to enter the receipt in the cash book as charged in the 9th count.

The Trial Judge having found that the appellant received the £33 9s. 2d. as clerk of his employers and omitted to enter its receipt in his employers' cash book, it is not consistent to hold that the £14 9s. 2d. was stolen from Onochie and for this reason the conviction on the 10th count cannot stand. The fact that appellant under pressure from Onochie gave the latter an IOU for £15 upon which Ono.chie has since obtained judgment against the appellant does not in our view alter the situation.

The £14 9s. 2d. was in excess of the amount owed to the United Africa Co. by Onochie and was received by appellant as clerk of the Company on account of purchases to be made in the future by Onochie.