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REX
V.
TOM ANYADIEGWU
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
16TH DAY OF APRIL, 1943
2PLR/1943/28 (WACA)
OTHER CITATION(S)
2PLR/1943/28 (WACA)
(1943) IX WACA PP. 67 – 69
LEX (1943) – WACA PP. 67 – 69
BEFORE THEIR LORDSHIPS
KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
REX — Respondent
AND
TOM ANYADIEGWU — Appellant
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REPRESENTATION
S. A. McKinstry — for Crown
J. I. C. Taylor — for Appellant
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PRACTICE AND PROCEDURE ISSUE(S)
CRIMINAL LAW AND PROCEDURE:- Stealing by clerks and servants contrary to section 390(6) of the Criminal Code — Conversion of employer’s monies
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CASE SUMMARY
The appellant was employed as the Treasurer of the Elu Elu Native Administration. In the course of his duty he kept a cash book, and in it he entered as paid three sums of money totalling £6 10s 0d which in fact were not then paid. In so doing he acted in accordance with the approved accounting practice of the Native Administration. He kept the moneys of his employers in two safes. On 19th November, 1942, he transferred a sum of £6 10s 0d from one of the safes to the other. On 23rd November, 1942, the money in the second safe was checked in appellant’s presence, and a shortage was discovered. The appellant concealed the fact that he had transferred £6 10s 0d to that safe. Had he mentioned it, the shortage would have been increased by £6 10s 0d. He was suspended from duty next day. The three sums amounting to £6 10s 0d, which he had entered in the cash book as paid, still remained unpaid. He was charged with stealing these three sums, and was convicted, the trial Judge that there had been a conversion of these sums by him to his own use.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held: The moving of the three sums by the appellant from one safe belonging to his employers to another safe belonging to his employers did not in law amount to a conversion of them to his own use. Conviction and sentence quashed.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.
The appellant was charged in the High Court of the Enugu-Onitsha Division on two counts of Fraudulent False Accounting (section 438(b) of the Criminal Code), and on four counts of Stealing by clerks and servants (section 390(6) of the Criminal Code). Upon the first, third and sixth counts the appellant was acquitted. On the second, fourth and fifth counts (all Stealing by clerks and servants) he was convicted and against these convictions he has appealed to this Court.
The appellant was at the material times a Treasurer employed by the Elu Elu Native Administration and all the charges related to his dealings in that capacity. It was, inter alia, his duty as Treasurer to receive monies on behalf of the Native Administration and to make certain payments to employees of the Native Administration. In the course of his duty he kept a cash book and in that cash book he entered the following amounts as paid:-
£ s d
2 7 6 to Anyasoh
3 0 0 to four Court Messengers
and 1 2 6 to three Court Messengers
whereas in fact none of these amounts was paid. The three charges of stealing on which the accused was convicted related respectively to these three amounts and the Court below, expressly “on the accused’s own evidence” convicted him as stated, apparently holding that as regards the other evidence in the case the appellant was entitled to the benefit of some doubt. It follows that we must consider this appeal on the same evidential basis.
The “accused’s own evidence” so far as material may be taken from the learned Judge’s summary of it as follows:-
“Accused stated in evidence that be bad kept the monies £2 7s 6d, £3 and £1 2s 6d hi the green safe for some time but when the District Officer gave him £259 from the District Officer’s Safe on 19.11.42; he (accused) removed these monies from the green safe and put them in his other (cemented in) safe. Why he should have done so is not clear, but that is his statement. According to him, when Mr. Brown made his check, these monies were mixed with the other money in the Treasurer’s safe. Not one word did the accused say to Mr. Brown about these monies during Mr. Brown’s check and clearly Mr. Brown had no knowledge that the money in the safe included these amounts.”
• • •
“Mr. Brown had no idea that these sums £2 7s 6d, £3 and £1 2s 6d were included in the monies he was counting. Accused said nothing about them.
“The result was that Mr Brown ascertained at that time a certain shortage finally reduced sometime later to £17 15s 3d. Had accused told him about these sums the shortage would have been increased by £2 7s 6d, £3 and £1 2s 6d i.e. £6 10s.
“If accused’s evidence is true, he deliberately used £6 10s belonging to the Treasury to reduce a shortage in his cash. He says that he put these monies in the Treasury safe, on transfer from Green safe, on 19.11.42. He says of course that he had no idea that there was a shortage in his cash until Mr Brown’s check on 23.11.42.
“I can hardly believe that, but even if his evidence on this point is true, he deliberately concealed from Mr. Brown during his check that there was in the Treasury safe £6 10s which could not be taken into account in striking a balance according to the books.
“Unless Mr. Brown knew about this £6 10s he could not strike correct balance.”
The learned Judge having so stated the accused’s own evidence went on to hold that the moving of these three sums totalling £6 10s 0d from one safe belonging to his employers to another safe belonging to his employers was in law converting them to his own use, namely to reduce the shortage of his cash by that amount. We are unable to accept this conclusion in law. The accused was entitled to keep these sums in either of the safes. Both the amounts and the safes were the property of his employers and, when Mr Brown came to check, the appellant was quite right to include in the money to be checked these particular amounts as part of the money in his hands belonging to his employers which in fact it was.
The appellant had incorrectly (but apparently in accordance with the approved practice in Native Administration accounting) entered these amounts in the cash book as paid so that if the appellant’s cash were correct Mr Brown on checking with the cash book figures would have found an apparent surplus of £6 10s 0d. In fact Mr Brown found even on the basis that this £6 10s 0d had been paid out, a general deficiency of cash amounting to £17 15s 3d. With the appellant’s liability-criminal or civil-in regard to that general deficiency or the incorrect entries in the cash book, we are not concerned in this appeal. It is enough for the purpose of this appeal that we hold that the moving of this £6 10s 0d from one Native Administration safe to another so that it should be included in the checking of the money in his hands for his employers cannot possibly be regarded as conversion of the £6 10s 0d to the appellant’s own use.
Taking that view of the matter we allow the appeal, quash the convictions appealed against, and substitute therefor verdicts of acquittal. The appellant is discharged.