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REX
V.
EFFIONG EDET ITAH
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
29TH DAY OF JANUARY, 1943
LEX (1943) – WACA PP. 35 – 39
OTHER CITATION(S)
2PLR/1943/39 (WACA)
(1943) IX WACA PP. 35 – 39
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
BUTLER LLOYD, J.
BAKER, J.
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BETWEEN:
REX – Respondent
AND
EFFIONG EDET ITAH – Appellant
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ORIGINATING COURT(S)
JACKSON, ASSISTANT JUDGE, IN THE CALABAR-ABA JUDICIAL DIVISION OF THE HIGH COURT
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REPRESENTATION
J. I. C. Taylor — for Appellant
E. H. Hunter — for Crown
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PRACTICE AND PROCEDURE ISSUE(S)
CRIMINAL LAW AND PROCEDURE:- Fraudulent False Accounting contrary to section 438(b) of the Criminal Code— Evidence of intent to defraud — Duty of prosecution thereto
EMPLOYMENT AND LABOUR LAW — DUTY OF EMPLOYEE:- Sales clerk authorised to give out promotional ‘dashes’ of goods — Duty to keep accurate records thereto — Failure thereto — When would be ground for criminal prosecution
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CASE SUMMARY
The appellant was employed by the Compagnie Francaise de L’ Afrique Occidentale as a sales clerk. He was authorized to give “dashes” of goods to regular customers and in support prepare vouchers which were verified by the Agent and debited at the end of each month to the shop expenses.
The appellant did give “dashes”, and accounted for them in this way, but concurrently in returns which he rendered periodically to the Agent he made entries making it appear that a larger number of goods had been sold than had in fact been sold, and showing a smaller balance of stock in hand than was truly there, or should have been there. Deficiencies thus concealed were discovered at an audit and taking of stock. In his defence, the appellant put forward the explanation that the missing goods had been “dashed” to customers, and alleged that the entries were not false they were made with the knowledge and consent of the Agent to evade a mercantile agreement directed against the practice of giving such ”dashes”.
This defence was disbelieved, and finding that the entries were false and unauthorised and had been consistently repeated, while the established method of accounting for “dashes” had not been followed, with the consequence that shortages of stock had been “concealed”, the trial Judge held that there was evidence of an intent to “defraud”, and found that the entries had been made with intent to defraud.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held, (Appeal dismissed) –
There was ample evidence upon which the trial Judge could find that the appellant made the false entries with intent to defraud by carrying out an unapproved system which afforded no check upon the amount of goods given away.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, BUTLER LLOYD AND BAKER, JJ.
The appellant was charged before Jackson, Assistant Judge, in the Calabar-Aba Judicial Division of the High Court upon 18 counts of “Fraudulent False Accounting contrary to section 438 (b) of the Criminal Code”; the particulars given of the first count were
“That Effiong Edet Itah on the 16th day of March, 1940, at Calabar, in the Calabar Province, being a clerk or servant employed by C.F.A.O., Calabar at its Edem Street Branch Shop, Calabar with intent to defraud made or was privy to making a false entry in a book of accounts belonging to his employer to wit the ‘Recapitulation des Recettes et Rendements ‘ purporting to show that on the said day the total cost value of sundry goods sold at the said shop was £13 5s whereas in truth and in fact it was £11 5s.”
The particulars under the other seventeen counts were of a similar nature. The appellant was convicted upon all 18 counts and was sentenced to 12 months I.H.L. upon each, the sentences to run concurrently.
The sole ground of appeal, is that the learned trial Judge misdirected himself in finding that there was intent to defraud.
The facts and the Judge’s reasons for convicting are best shown from the following extracts from his judgment:-
“The accused was employed by Messrs Compagnie Francaise de L’Afrique Occidentale as a sales clerk in their Branch Shop at Edem Street, Calabar.
“The prosecution bring evidence to show that on eighteen separate occasions, between March and December, 1940, the accused has made false entries in one of the books of his employers, which it was his duty to keep, namely the book known as the Recapitulation Book (Exhibit No. 2) by adding, on those occasions, to the true figure of cost value of sales figures representing sums of money of even denominations of £2, £1 or 10s, thus making it appear that a larger number of goods had been sold than was in fact the truth, and showing a smaller balance of stock in hand than was truly there, or should be there.
“Mons. Chambon, the Agent of the Company has told me in most emphatic terms that at no time did he authorise such false entries. He says that as a result of these false entries the Company has been deceived as to the true value of the stock which should properly be in the shop, and that as a result of this deceit the stock now shows a deficiency. He admitted that deficiencies in stock in these shops were not only quite normal, but that the Company’s practice was to write off at the end of any one year any such losses provided that they were not abnormal. He told me that he would not consider 1% of the annual turnover an abnormal shortage.
There is no issue that the entries are false. The accused freely admits making these entries, but his defence is that there was no intent to defraud as those entries were made, not only with the approval of Mons. Chambon, but were made by his direct instructions as a system of showing ‘set-offs’ in the ‘cash value of stocks’ against ‘dashes’ made to regular customers from the stocks in the shop.
Mons. Chambon freely admitted that ‘dashes’ or commissions have been given habitually to regular customers, but he says that such moneys are invariably accounted for in cash and not in stock. He tells me that the accused’s duty was to deduct that ‘dash’ or commission from the ‘selling price’ to the customer, for which the accused having first obtained the Agent’s consent backed the gift with a ‘chit’ or voucher which he sent to the Cashier at the Head Office in Calabar, as an adjustment voucher, the sum totals of which were at the end of the month ‘set-off’ against the Shop Expenses.
This witness, when cross-examined, was asked by defending Counsel (Mr. Anwan) if he could produce any such evidence of these ‘chits’. He said that he could, but that at no time had he been asked to produce them. Mr. Chambon, then, from document which he had with him in the box handed several such chit to Mr. Anwan (which were admitted in evidence for the defence and marked as ‘B’). Mons. Chambon added that if counsel wished him to produce others he could do so. Mr Anwan did not pursue the matter any further.
This witness testified that if goods were given from the shop as ‘dashes’ they would have to be accounted for in the same way, i.e. by a deduction to the customer from the ‘selling price’ supported by a ‘chit’ or voucher to the cashier at the Head Office.”
• • • •
I now refer to those ‘chits’ (Ex. B) which were put in evidence and which have been proved to have been signed by the accused.
“One dated 10.4.40 ‘to be deducted from selling price to customer ‘6s.’
“One dated 13.4.40 to be deducted to customer £2 12s’
“Thus for that month is shown a total sum of £2 18s 0d described by the Agent as ‘dashes’ or commission given by the accused with his approval.
“On turning to page 11 of Exhibit 31, I find recorded as ‘commission on sales’ the sum of £12 18s 0d a figure brought to the notice of the accused when a copy of that entry in this book is sent to him at the end of each month. Similar corroborative evidence is afforded by a study of the ‘chits’ signed by the accused in September, 1940, amounting to a sum of 11s 9d. The false figures inserted in the “Recapitulation Book are in every case even sums e.g. 10s, £1 or on one occasion £2.
“Now what occasion was there to set off ‘dashes’ or commission” by adding a figure to the ‘cost value of sales’ when it had already been accounted for as a deduction from the selling price and set off against the Shop Expenses for those months?”
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“After hearing the evidence and after viewing the demeanour of the witnesses I have no hesitation, whatsoever, in accepting the evidence of Mons. Chambon and of rejecting and disbelieving, that of the accused.
“Now the evidence before me shows that, in respect of each one of the 18 count with which the accused is charged, the accused has made a false entry in the Company’s Recapitulation Book. Again, I re-iterate, the accused does not suggest that the entries were made other than by him and that he knew the quality of each entry, but he denies that they are false, within the meaning of the section, as they were made with the full approval of his Agent. I have already reviewed the evidence at, some length to say why I believe that neither did Hons. Chamhoa approve of this method of accounting, but that he had no knowledge that it was being done until these entries were brought to his notice by the Auditor early in January, 1941.
“Thus by making it appear that the sales of goods at cost price are greater than they actually were, the value of the stock which should be in the shop is reduced by the corresponding augmentation of the sales value, and thus either a loss of goods or a misappropriation thereof is concealed whenever a check is made.”
• • • •
“To make a false entry in the Recapitulation Book by augmenting the ‘total value of cost sales’ was a negation of the system in vogue for accounting for such dashes, and was an act which was not only unauthorized, but was one which left no record of the particular transaction, and was such as was likely to deceive his employers and did deceive his employers, resulting in a loss of stock which was only discovered as the result of an independent audit. Why adopt this irregular method of accounting when an approved one was in force and, one by which each item of ‘dash’ or commission had its record in that system by way of vouchers and a ‘set off ‘ at the end of the month of the total of these vouchers against the shop expenses?
“To defraud is to deprive by deceit. Can this unauthorized falsification of accounts be termed anything other than deceit? I think not. Has the Company been deprived of anything by this deceit? It clearly has.
“It has been deprived of its ability to obtain an accurate check on the stock in the shop, by being led to believe by these false entries that there was a smaller value of stock in the shop than should properly have been the case. In consequence a loss of stock has been occasioned.”
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“When the gist of an offence is fraud, intent is material, and evidence of other similar acts is admissible to prove that intent. The law to me is perfectly clear that if I, as a jury, am satisfied that these entries were unauthorized and were false to the knowledge of the accused, the intent to defraud may be implied by me from those facts, and that where there is a consistent repetition of such false entries, that is further evidence to prove the intent. I have been asked to believe and to find that when the accused gave bottles of beer to customers as ‘dashes’ he set it off against the ‘total value of cost sales’. Why depart from a perfectly normal and straightforward method of accounting which was in existence during this period? I disbelieve the accused that this was his practice for the reasons already set out at some length in this judgment”
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“I find that, at the time the accused made each one of the eighteen false entries in his employer’s books, which are the subject of the counts before me, he was a clerk employed by Messrs Compagnie Francaise de L’Afrique Occidentale at Calabar and that he made these false entries with intent to defraud.”
We are of opinion that there was ample evidence upon which the learned trial Judge could find that the appellant made the false entries with intent to defraud. It is admitted that the Company has been, in fact, deprived of goods to the various values indicated in the charges. The defence that these goods were given to customers by the appellant in the Company’s interest and with the authority of the Company’s Agent was disbelieved by the Judge and with good reason as the above extracts from his judgment show. In particular the exhibits B2-9 show that during the period covered by the charges the appellant was giving “dashes”; getting approval for them, and accounting for them in the authorised manner; this is very strong evidence entitling the Judge to disbelieve the appellant’s story that it was with the Agent’s approval that he was carrying out concurrently a different system of giving other dashes, a system which afforded no check upon the amount of goods given away.
In arguing the appeal, counsel for the appellant has made much of a passage in the judgment not already quoted. It is
“The accused may have given the witness, Effiong Ntibi, ‘dashes’ of beer in ‘kind’ and there is no reason to disbelieve this fact and I do accept it.”
The Judge continued-
“but, having done so his duty of the manner in which he had to account for the ‘dash’ by deducting the value of the ‘dash’ from the selling price and supporting it with a voucher for the value, remained.”
The witness, Efiong Ntibi, did testify that the appellant used to give him two bottles of beer extra when he bought a case, but it is remarkable that he was the only witness whom the appellant could bring to corroborate in any particular his story; and even Ntibi’s evidence, accepted as it was by the Judge, does not show that the “dashes” to him were not in fraud of the Company.
The appeal is dismissed.