Rex V. R. S. Okorodudu (1947)
LawGlobal Hub Judgment Report – West African Court of Appeal
Criminal Law—Larceny by clerk or servant—Nigeria Criminal Code, section390 (6)—Evidence—Larceny or General Deficiency
The mere omission to pay over moneys received by a clerk or servant does not suffice to show a conversion, nor does the mere fact of there being a deficiency as shown by the accounts, because the clerk or servant may have done no more than fail properly to enter items of disbursement in his books, or may have lost the money by negligence, or have spent it on his master’s account.
There must, in order to support a charge of larceny in this type of case, be evidence that the particular amount specified in the charge was misappropriated at a particular date and place.
Cases referred to:
- R. v. Ofoni, 6 W.A.C.A. 1.
- R. v. Nwagbani, 8 W.A.C.A. 19.
Appeal from the Supreme Court of Nigeria.
Taylor for Appellant.
Stephens, Crown Counsel, for Crown.
The following joint judgment was delivered:
This is an appeal against a conviction for stealing by a clerk or servant contrary to section 390 (6) of the Criminal Code.
The case for the Crown was that the appellant was Treasurer to the Jekri Native Administration and as such had the sole custody of the funds of that Administration kept in a safe of which the appellant kept the key. On 16th July, 1946, the appellant handed over to a new Treasurer. The cash balance which he should then have had in his hands as shown by the Cash Book kept by him was £447 2s. 2d. The appellant himself opened the safe in order that the cash therein might be checked and the sum of £8 2s. 2d. only was found. There was, therefore, a deficiency of £439. The account books were subsequently checked, the entries found to be correct and the balance shown by the accounts verified to be £447 2s. 2d. The appellant was, in the first instance, charged with stealing the sum of £439, but on his trial before the Supreme Court the charge laid was that of stealing the sum of i75 10s. 7d.
At the trial it was proved to the satisfaction of the Judge that between the 27th June and the 29th June, 1946, the appellant had received four sums totalling 03 12s. 9d.; that the total cash found in the appellant’s safe on 16th July, 1946, was 0 2s. 2d. and that there was, therefore, missing from the safe the sum charged; that the accused was proved to have been in some financial difficulty, that he had on various dates prior to 16th July, 1946, consulted a ” diviner ” in regard to shortages in his cash, the results likely to accrue therefrom and his hopes of extricating himself by resort to a ” money doubler ” ; that although there had been money missing from his safe over a considerable period he made no report of any loss; that the accused had sole access to the safe in which it was his duty to place the moneys he had received. From these facts the learned Judge drew the inference that the accused had himself removed these moneys from the safe and converted them to his own use.
At the hearing of the appeal Counsel for the appellant withdrew the third
ground of appeal, which alleged that the verdict was unreasonable and could not be supported by the evidence, and after argument intimated that he withdrew also the 5th and 6th grounds of appeal, which related to the form of the indictment. There remain therefore for consideration grounds 1, 2 and 4, which are as follows :—
- That the learned trial Judge was wrong in law in holding that the case was not one of general deficiency.
- No specific sum was proved to have been stolen.
(4) Misdirection—of which, however, no particulars are given.
In support of these grounds of appeal, Counsel contended that the evidence established no more than a general deficiency and submitted that upon well-established principles of English Law such evidence was not sufficient to justify a conviction for embezzlement. He further submitted that these principles are applicable in Nigeria to the present charge, and cited the cases of R. v. Ofoni (1) and R. v. Nwagbani (2). The general principle is stated in Archbold (31st Edition, page 503) in the following terms: ” It is not sufficient to prove a general deficiency of money; some specific sum must be proved to be embezzled, in like manner as in larceny some particular article must be proved to have been stolen.
Counsel for the appellant contends that, in regard to the sum of 039, the total deficiency, this case is entirely on all fours with the case of R. v. Ofoni (1) in that the books showed a certain amount, the cash in the safe amounted to no more than a fraction of that sum, and that the difference was a general deficiency. He further contended that the prosecution had failed to overcome the difficulty presented by these facts when they substituted for the total amount of the shortage a lesser sum (L–75 10s. 7d.) and proved that moneys to the amount of ift3 12s. 9d. had been received by the accused and L8 2s. 2d. only found in his safe. This, he submits, is proof of no more than a general shortage and does not establish that the accused having received the four sums totalling 03 12s. 9d. converted them or any part of them specifically to his own use.
On behalf of the Crown it is submitted that it has been established that the accused received four specific sums, that it was the duty of the accused to retain these sums and account for them at the end of the month; that he should therefore have had in his safe the specific sums of money so received by him; that the money was in his sole custody and inaccessible to any other person, and that when he was called upon to account for the gross amount he was unable to produce the greater part thereof, and offered no explanation for the shortage. It is contended that this is not proof of a general deficiency but of the conversion of four specific sums, or part thereof, and is sufficient to support the conviction of the accused on the charge of stealing.
It is in these days generally conceded that great difficulty is imposed upon the prosecution in proving actual conversion in such cases as this, and the tendency is to restrict rather than to extend the application of the general nile from which such difficulty arises. It is clear that the mere omission to pay over moneys received by a clerk or servant does not suffice to show a conversion, nor does the mere fact of there being a deficiency as shown by the accounts, for he may have done no more than fail properly to enter items of disbursement in his books, or may have lost the money by negligence, or have spent it on his master’s account. There must, therefore, be some evidence that the particular amount specified was misappropriated at a particular date and place.
The question really is, in the present case, whether there is such evidence. The facts as found by the learned trial Judge are not controverted. The appellant contends that they show no more than a general deficiency and that the learned trial Judge erred when he inferred from the facts established by evidence that the appellant must have removed these specific sums from the safe and by such removal have converted them to his own use.
It is pointed out on behalf of the appellant that the surds alleged to have been received by him were part only of a far larger aggregate sum received by him during the material period and that during that period the accounts show that he had paid out large sums also on account of his employer. It is pointed out also that the sum of L8 2s. 2d. might well represent any one of the smaller sums alleged to have been stolen by the appellant or represent some part of either of the larger sums which he has been charged with stealing.
The mere fact that the sums alleged to have been stolen are no more than part of a general shortage does not negative a stealing of the lesser sum, if the prosecution can establish that this lesser sum has been actually stolen by the accused person. It may well be that proof of the conversion of certain specific sums is available but not of the total sum found to be short where, for example, as is alleged in the present case, the general shortage is alleged to have arisen from the misappropriation of specific sums over an indefinite period. Proof of the taking of a part only of the aggregate sum charged does not, moreover, invalidate a general verdict of guilty on the information.
There still remains, therefore, in our view, the one question: whether the learned trial Judge, upon the facts as he found them, was right in his conclusion that the appellant converted these four specific sums or any part thereof to his own use.
On the whole of the evidence before him, on pioof of the receipt of those sums, of the absence of cash adequate to account therefor, on the conduct of the accused and the absence of any other explanation of the loss than that he himself, having sole access to the moneys in the safe, converted them to his own use, we cannot say that the learned Judge erred in the inference he drew from the facts established to his satisfaction and in the conclusion as to the appellant’s guilt which he founded thereon.
The appeal is therefore dismissed.