Samuel A. Adewusi V The Queen (1963)
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The appellant, who was charged on five counts of stealing various amounts, was eventually convicted on the 4th count, particulars of which read as follows:-
“Samuel A. Adewusi (M) between the 23rd day of September, 1961 and the 20th day of January, 1962 at Ibadan in the Ibadan Judicial Division, stole the sum of #4,148’18s.8d (four thousand one hundred and forty eight pounds eighteen shillings and eight pence) property of Brandler and Rylke Ltd.”
At the hearing an amendment was sought and granted to substitute as owner of the money “Idanre District Council” in place of “Messrs Brandler and Rylke Ltd.”
The appellant was chairman of the Idanre District Council. There is a committee of the Council known as the Social Development Committee. This Committee, it would appear, was anxious to develop the Alade market. The Council therefore gave discretionary power to the Committee to sell 2,000 permits to fell timber in the Idanre forest in order to raise money for the project. The appellant as Chairman of the Council offered Messrs Brandler and Rylke a permit to take 1,000 trees at #512s.6d pertree flat but adjustments to be made later when the species of trees felled were ascertained. The firm accepted the offer and a cheque bearing the date 8th September, 1961, for #5 ,6250s.0d, was made out in favour of Chief S. A. Adewusi, Chairman, Idanre District Council. On the 9th September the appellant paid the money into his private account at Barclays Bank D.C.O., Thadan, where he had a credit balance of only #109s.9d on that date. On the same day the appellant issued three different cheques for a total amount over #500 which he utilised for his own personal needs. He continued to utilise the money for his own purposes and by the 20th January, 1962 he had a credit balance of only #7515s.8d left in his account.
Meanwhile, on the 9th September, 1961, the Council had decided to defer the issue of the permits to fell timber, and on the 20th September a letter was written to the appellant, by the Secretary to the Council, to suspend action as to the sale of permits because the Forestry Officer did not approve of the scheme and had suggested an alternative plan. The appellant, however, had acted before this change of attitude and had already been paid the sum of #5,625.
On the 22nd October, 1962 the appellant was charged for stealing the amount, since it was not paid over to the Council or to the Social Committee, nor returned to the firm of Brandler and Rylke Ltd. It would appear, however, that on divers occasions the appellant paid in all to the servant of the firm (Brandler and Rylke) a sum of #1,2097s.6d. which amount was paid to the Council for some 250 stumps of timber on different permits later issued to the firm by the Council.
The two grounds of appeal argued before us can be succinctly put as follows:-
(i) That the learned Judge erred in convicting the appellant on the charge because the money alleged stolen was not the property of the Idanre District Council but that of the firm of Brandler and Rylke
(if) The firm did fell some trees in part satisfaction of the amount of #5,625 paid to the appellant, and that the Judge has failed to take this into account.
It seems convenient to dispose of the second ground first. There was clear evidence that the firm later applied for and was given different permits by the Idanre Council. The timber taken by the firm was in respect of these permits. payments which were made to the Council by the firm’s agent, who collected some money from the appellant, was in respect of trees felled in respect of these permits which had nothing to do with the permits for the 1,000 trees.
The argument presented to us on the 1st count was that the #5,625 stolen was the property of Messrs Brandler and Rylke Ltd. and it had not passed to the Council. We feel unable to agree with this submission. The cheque was made out in the name of the appellant as Chairman of the Idanre District Council. This amount he paid into his own private account which stood on that date at #3109s.9d. No effort was made by the appellant to pay it into the Council’91s account, although it was clear the money was paid for permits bought from the Council. On the 9th September, 1961, the day the appellant paid the money into his own account, he started to spend it and he continued to spend it for his own purposes. When he became aware, on the 20th September, 1961 that the Council had decided not to proceed with the scheme he had spent a portion of the money. It was clear to the appellant that he received the money for the Idanre District Council as the forwarding letter from the firm of Brandler and Rylke (Exhibit G) shows.
Section 328 of the Criminal Code, Western Nigeria, Cap. 28 enacts:-
“When a person receives, either alone or jointly with another person, any money on behalf of another, the money is deemed to be the property of the person on whose behalf it is received, unless the money is received on the terms that it shall form an item in a debtor and creditor account, and that the relation of debtor and creditor only shall exist between the parties in respect of it.”
The argument put to us by Counsel for the appellant was that the money is the property of Messrs Brandler and Rylke and that the information as laid in the name of the Idanre District Council was bad. In our opinion, where a person receives money or goods for or on account of another, within the meaning of section 328 of the Criminal Code, and converts the money or part of it to his own use, he will rightly be convicted of stealing the money or goods, the ownership of which, in our view, is in that other. In our view, it is clear that the money is the property of the Council, and it is not necessary nowadays, except in a few cases, to allege or prove who is, in law, the owner of the goods or money stolen; indeed in an information, although it is the practice to do so it is not essential to name any person in the information. In a case of stealing golf balls, Hibbert v. McKiernan, Goddard, L.C.J., said:-
“In the present case any difficulty might have been avoided by describing the balls, or at any rate seven of them, as the property of persons unknown, and at the present day allegations concerning the ownership of stolen property are, except in a few exceptional cases, treated as immaterial” .
Obviously what Lord Goddard said depends upon rule 6 of the Indictment Rules, 1915, which is now our Sec. 154 (1) of the Criminal Procedure Ordinance, which reads:-
“The description of property in a charge shall be in ordinary language and such as to indicate with reasonable clearness the property referred to and if the property is so described it shall not be necessary, except when required for the purpose of describing an offence depending on any special ownership of property or special value of property, to name the person to whom the property belongs or the value of the property.”
The 3rd Schedule to the Criminal Procedure Ordinance, however, dealing with forms of indictment for stealing at p. 1012 Vol. II of the Laws of the Federation, shows that the owner is usually named or should be named. The position can be put thus: where the owner of the property is known, it is more satisfactory if he be so named in the information; if the owner is not known, the charge should be laid as the property of persons unknown.
In the instant case we are satisfied that the amended information stating the ownership of the money as the Idanre District Council is correct, and this ground of appeal also must fail.
The appellant therefore, in our opinion, was rightly convicted and this appeal is dismissed.
APPEAL from the High Court of Western Nigeria.
OTHER CITATIONS: (1963) LCN/1038(SC)