Alhaji R.A. Afolabi (Trading As Ifelodun Bros). V Polymera Industries (Nig.) (1967)

LawGlobal-Hub Lead Judgment Report

TAYLOR, F.J.

The appellant, a Storekeeper employed by Messrs. G. B. Ollivant (Nigeria) Ltd. at their Shell Depot in Ibadan, was convicted by the Chief Magistrate Ibadan on all the twelve counts on which he was charged with stealing specific items of goods the property of his employer. This conviction was upheld on appeal to the High Court, against which Judgment the appellant has filed eight grounds of appeal in addition to the two contained in the Notice of Appeal. In arguing these grounds of appeal learned Counsel urged that:-

1. The learned Judge on appeal misdirected himself in upholding the judgment of the trial Magistrate convicting the appellant of stealing twelve items out of the twenty-three shown on Exhibit “A” when there was no evidence before the Court as to which of these items were normal shortages and which the appellant sold and converted to his own use.

2. The learned Judge on appeal erred in upholding the Judgment of the trial Magistrate convicting the appellant when material witnesses, like the appellant’s assistants and labourers were not called and important documents like waybills for inter-depot transfers, and invoices, were not tendered in evidence.

3.The learned Judge on appeal was wrong in law in his decision, having regard to the decision in Waziri Chingi v. The Queen F.S.C. 137/1958

4. The learned Judge on appeal misdirected himself by non direction on the effect of s. 386 of the Criminal Code with regard to the evidence before him.

The trial Magistrate, after reviewing the evidence for the Prosecution and the Defence, went on to say that:-

I am quite satisfied that the evidence for the prosecution is true and I accept it. I am quite satisfied that the accused told the Prosecution Witness 1 that he sold the stock, which he had no right to do, and used the money for his election expenses. This evidence is supported by that of Prosecution Witness 2. The Prosecution Witness 1 does not seem even interested in the prosecu-tion of the accused, and I can find no reason why he should have lied against the accused as the accused has suggested.

The trial Magistrate then went on to deal with other evidence led by the Crown as to the action of the appellant before and at the time his stock was checked and found that such action was meant to deceive. On appeal the fol-lowing passage in the judgment of the learned Judge on appeal shows the im-portance he himself placed on the alleged admission made by the appellant; it reads thus:-

It is my view that having regard to the evidence and the admission alleged to have been made by the appellant to the Man-ager and to the 2nd Prosecution witness, the learned trial Magis-trate was justified in coming to the conclusion that larceny of the items contained in the charges was proved.

and a little lower down in the judgment that:-

It is my view that as the appellant admitted that he had sold some of the stock and used the proceeds for his election expenses, there was no necessity to have called any of the assistants and labourers to give evidence for the prosecution.

We have considered the point, which is important, in our view, of the effect of the admission made by the appellant who was charged with stealing not all the twenty-three items in Exhibit ‘A’, but only twelve out of the twenty-three. On this point the 1st Prosecution Witness says:-

As a result, I called for the accused and enquired from him how the shortage in his stock had occurred. The accused told me that he had been busy with his Election Campaign, and that he had taken certain of the Shell stock, and sold them to assist in his expenses. The accused did not say how much he used.