Albert Omowale Domingo Vs The Queen (1963)

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BREIT, EJ.

The appellant was tried in the High Court of Western Nigeria on an Information containing eighteen counts. The first was for stealing, contrary to s. 331 (5) of the Criminal Code of Western Nigeria. The thirteenth, fourteenth, fifteenth, sixteenth and seventeenth were for stealing contrary to s. 390 of the Criminal Code of Nigeria. The eighth, ninth, tenth and eighteenth were for forgery contrary to s. 467 of the Criminal Code of Nigeria.

The eleventh and twelfth were for making a false statement contrary to S. 9 of the Registration of Business Names Act, now repealed. The second to seventh inclusive were for being interested, as a public officer, in a contract or agreement and abuse of office; as the appellant was acquitted on these six counts it is unnecessary to give further particulars of them. The first count reads as follows:-

“STATEMENT OF OFFENCE-1ST COUNT

Stealing contrary to section 331 (5) of the Criminal Code, Cap. 28, Volume 1 of the Laws of the Western Region of Nigeria, 1959.

PARTICULARS OF OFFENCE

Albert Omowale Domingo (m) between the month of August, 1959, and the month of February, 1961, at Ibadan in the Ibadan Judicial Division, being a servant employed by the Western Nigeria Printing Corporation, Ibadan, stole goods valued at #19,765’11.10d. (Nineteen thousand seven hundred and sixty five pounds eleven shillings and ten pence) property of his employer, the Western Nigeria Printing Corporation, Ibadan.”

It was not pretended that the goods alleged to have been stolen were all  stolen on a single occasion between the dates mentioned, indeed the only evidence called to prove the alleged stealing was that of an auditor, who said that the stock was short to the value mentioned in the charge. This being so, the count was bad for duplicity, since section 152 (2) of the Criminal Procedure Act, which permits a charge to specify a gross sum in respect of which offences involving fraud are alleged, only applies to misappropriation of a sum of money and not to misappropriation of other kinds of property: R. v. Aniemeke & anor. (1961 ) 1 All N.L.R. 43.

The count suffered, however, from another defect which in this case was, if anything, more serious, namely that it failed to specify what the goods alleged to have been stolen were. Section 152 (1) of the Criminal Procedure Act requires that the charge shall contain such particulars of, among other things, the thing, if any, in respect of which the offence was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged, and section 154 (1) provides that the description of property shall be in ordinary language and such as to indicate with reasonable clearness the property referred to.

It is fundamental that a charge of stealing should specify the property alleged to have been stolen with sufficient precision to comply with these two sections. A possible test of whether a charge is sufficiently precise is, whether a good plea of autrefois convict or acquit could be founded on a conviction or acquittal on it, and while it may not be the only test we consider that it is one which every charge ought to satisfy. The count now under consideration certainly does not satisfy that test; it makes no attempt to specify the property concerned, in fact the evidence leaves it open to doubt whether the prosecution had ever ascertained what the property consisted of Mr. Eboh, Senior Crown Counsel, abandoned any attempt to support the conviction on a charge so framed, and we are satisfied that it must be set aside.

Many of the grounds urged in support of the appeal against the convictions on counts 8 to 18 inclusive were matters of law, but a brief outline of the facts is necessary in order to explain the points of law involved. The Appellant was employed as Assistant Manager and later as Manager by the Western Nigeria Printing Corporation, which trades in exercise books and stationery. While so employed he decided that he might profitably trade in these articles on his own account, and he proceeded, under a variety of business names, to buy goods from the Corporation on credit and sell them to such persons as he could induce to deal with him instead of dealing with the Corporation direct.

He realised, however, that the Corporation might not approve of these activities, and he took various steps to conceal his connection with the firms under whose names he was trading. Counts 8, 9, 10, 11, 12 and 18 arise out of the steps which he took to this end. Counts 13 and 14 relate to frauds on his trading associates in diverting to his own use money given to him to pay the Corporation for goods purchased from it. Counts 15, 16, and 17 relate to occasions when he used the Corporation’s vehicles for the delivery of goods which he had sold on his own behalf, and gave the drivers cash from the funds of the Corporation for incidental expenses on the journey.

Two of the names under which, in association with other persons, the Appellant traded were the Independence Stationery Supply Agency and the Osude (Moonlight) Stationery Supply Agency, and the appellant personally arranged for the registration of these names under the Registration of Business Names Act. For this purpose it was necessary to complete Form A in the First Schedule to the Registration of Business Names Regulations, which is required to be signed by all the partners in the firm and to state the present Christian name and surname, any former Christian name or surname, and the usual residence and other business occupation of each of the partners. In completing these forms the appellant did not insert his own names, which are Albert Omowale Domingo, but instead he inserted in one case the names Olatunji Akinola Domingo; in the space for the signatures of the partners he wrote “A. O. Domingo” or “O. A. Domingo” which could stand equally for Albert Omowale Domingo and for Akinola Olatunji Domingo.

The appellant has one son aged about 9 called Akinola Domingo and one aged about 8 called Albert Olatunji Akinola Owolabi Omowale Domingo, and in a statement made to the police he said that his children were partners in the the firms. He went and gave the names of my children as Olatunji for my first son and Akinola, the second; all Domingos . . . I signed O.A Domingo at column I on behalf of my children.” The two boys were called as witnesses for the prosecution. Akinola said that he had authorised his father to sign his name on the form, but the judge thought this unworthy of belief, and it is not suggested that he was wrong. Albert confirmed that his name was used by the appellant for business purposes and in the completion of the forms.