Ugwu Nwankwo V. The Queen (1962)
LawGlobal-Hub Lead Judgment Report
The appellant, who was convicted on three counts by Sir Louis Mbanefo, C.J., Eastern Region, on the 21st June 1961, appeals on a point of law and on other grounds relating to the facts of his case.
The three counts in question are No. 3, No. 4 and No. 5 of the information; they are counts of stealing contrary to section 390(6) of the Criminal Code. The particulars of the third count are given here for the sake of the point of law raised; they are:–
Ugwu Nwankwo, between the 23rd of March, 1959, and the 10th of April, 1959, at Afikpo in Abakaliki Province being a clerk employed by the Afikpo District Council stole the sum of £80 property of the said Council.
In count 4, the period is between the 21st day and the 28th day of April, 1959, and the sum of £97; and in count 5 the period is between the 28th day of April, 1959, and the 5th day of May, 1959, and the sum is £85. Each of the said three sums was made up of a number of items of money received by the appellant; it is an aggregate or gross sum relating to one receipt book in each case of rates collected by the appellant from certain ratepayers. The point made is that those counts are bad in law.
Mr. Aniagolu has argued that counts 3, 4 and 5,were bad for duplicity; which means that each contains two or more offences, and sins against the provision in S. 156 of the Criminal Procedure Act that:-
For every distinct offence with which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in Sections 157 to 161.
The prop for the counts is section 152(2), which was amended in 1953, and provides that:–
Where the accused is charged with criminal breach of trust, fraudulent appropriation of property, fraudulent falsification of accounts or fraudulent conversion it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed without specifying particular items or exact dates and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 156.
(The amending Act of 1953 deleted the words “save that the time included between the first and the last of such dates shall not exceed one year”, which were in the Ordinance as originally enacted).
On the meaning of Section 152(2) learned Counsel has quoted what was said by this court in The Queen v. Aniemeke and another, (1961) All NLR 43; [196111 SCNLR 75. There the appellants were convicted of stealing 59 boxes of cigarettes; and the Court observed on S.152(2) that it does not apply to the present case as the use of the words “gross sum” in this subsection shows that it applies only to fraudulent appropriations of money in the circumstances set out in the sub-section and not to misappropriation of other kinds of property.
Consequently, it could not be invoked in a case in which the charge was one of stealing, not money, but cigarettes. The court went on to say:–
The subsection is designed to deal with what is known as a general deficiency, and there can be no doubt that the Legislature provided an exception in such cases on account of the difficulty of ascertaining the time at which any particular sum of money has been misappropriated in these cases.
Learned Counsel has pointed to the words “general deficiency” in the above dictum, and argued that they mean a shortage; and he has cited R. v. Okorodudu, 12 W.A.C.A. 129 and R. v. Ofoni 6 W.A.C.A., 1, which is mentioned in Okorodudu; But Okorodudu is a case of 1947, and the question there was different: it was whether “the appellant converted these four specific sums or any part thereof to his own use”, and the appeal was dismissed. Learned Counsel for the appellant sought to argue that it was a case of general deficiency; and there are dicta on that type of case to which he has drawn attention, viz:
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; which is a statement of the general principle taken from Archbold (31st edition) p. 503. A good deal of water has flowed under the bridge since then, and learned Counsel for the appellant has, very properly, drawn our attention to these cases:
R. v. Robertson, 25 Cr. App. R. 208;
R. v. Lawson, 36 Cr. App. R. 30; and
R. v. Tomlin, (1954) 2 Q.B. 274; 38 Cr. App. R.82.
Robertson was a case of obtaining by false pretences in which the two accused were charged in one count with the obtaining of food on diverse dates between the 14th June, 1935, and the 27th February, 1936. The count was improper, but the case is irrelevant to our S.152(2).
Lawson is a case of 1952 and was decided by Lynskey, J., on circuit; it was approved in Tomlin in the Court of Criminal Appeal in 1954. In Lawson the count was one of fraudulent conversion of a sum, not on divers days be-tween April 1st, 1950 and July 1st, 1951, but a conversion on a day between those days; and the learned Judge held that the count was good. He referred to the case of Balls, 1871, Law Reports, I Crown Cases Reserved 328, which was decided by what is described as “an extremely strong court”, consisting of Cockburn, C.J., Welles, Mellor and Montague Smith, JJ., and Channell B. The Lord Chief Justice said in that case:–
It is quite true that if a man receives a number of separate sums and has to account for each of them separately, only three instances of failure to account can be proved under one indictment. Thus, if there were to be one accounting on Monday and one on Tuesday and one on Wednesday, and so on, only three defaults could be charged and proved; though even in such a case, evidence of other instances might be given in order to show that the instances charged were not merely accidental, but that what was done was done intentionally and fraudulently. But here no difficulty of that nature arises. I agree that the prisoner might have been indicted for embezzling in all the separate small sums received by him. But it appears that his duty was to receive small sums from time to time; to send in the weekly accounts every Tuesday; and every Tuesday to pay the gross amount received by him during the preceding week into the Bank. It is true that each of the small sums received had to be accounted for; but he might well be charged with embezzling the aggregate amount, and evidence of the individual items was admissible to show how this aggregate was made up. It would be very mischievous, if, in such cases as these, servants could not be indicted for embezzling the aggregate amounts for which they failed to account. No doubt, in such cases, there is an embezzlement of each of the smaller sums going to make up the total not accounted for; but there is nonetheless an embezzlement of the whole.
I pause to explain why it was said that only three instances could have been charged and proved: it was because of the special statutory rule in S.71 of the Larceny Act, 1861, which allowed only three acts of embezzlement to be charged or proved under one indictment. In Tomlin, after referring to that rule, the Court of Criminal Appeal went on to observe as follows (at p. 280 of 1954, 2 Q.B.):–
Accordingly, there was strong ground in 1871 for contending that where a number of small sums were separately embezzled, one could not add them all together and treat it as one embezzlement of the whole; yet in Balls’ case the first count charged the embezzlement on December 5th of the aggregate of ten different payments made by ten different persons during the preceding week, and similarly the second count related to the aggregate of ten payments, and a third count to the aggregate of eleven payments.
The Court adopted the decision in Balls’ case as a binding decision, and could see no valid distinction between it and the case of Tomlin.
Both Tomlin and Lawson refer to the dictum in Morris, 1933, 24 Cr. App. R., where it was said at p: 107:
With regard to the fourth count, it is quite obvious that the appellant was charged with the fraudulent conversion of a general balance alleged to be due and that is a course which cannot properly be taken.
It was cited in Kwame Aboah, 14 W.A.C.A., 252, decided on 30th January, 1933. In Ofoni’s case the cases cited from Archbold were R. v. Lloyd Jones, 1838, 8 Car. & P. 288, and R. v. Wolstenholme, 1869, 11 Cox 313, both cir-cuit cases and therefore not binding nor satisfactory authorities for the reasons given in Tomlin, at p.280. As regards the dictum in Morris, the Court of Criminal Appeal said this in Tomlin’s case:
The judgment in Rex v. Morris contains only one sentence, at p. 107, which concerns the question now under consideration, and no reasons appear to have been given or cases cited either in the argument or in the judgment for the proposition affirmed. In particular Balls’ case was apparently not mentioned. In these circumstances, Lynskey, J., in Rex. v. Lawson thought it right to hold that `if the evidence for the prosecution……. makes it clear to hold that there has been a fraudulent conversion of either the whole or a part of a general balance at one time, it is proper to charge the conversion of a general balance on a day between specified dates’.
That disposes of the dictum in Rex v. Morris.
Mr. Aniagolu quoted to us the antepenultimate sentence in the Tomlin judgment, which reads:–
We desire to make it plain in conclusion agreeing therein with Lynskey, J., that in the ordinary case, where it is possible to trace the individual items and to prove a conversion of individual property or money, it is undesirable to include them all in a count alleging a general deficiency.
It will be useful to add the last sentence but one, which states that:–
What we are not willing to do is to elevate a rule of practice applicable to circumstances where it may be required to avoid in-justice, into a rule of law applicable to circumstances where it will defeat justice.
Thus the decision in Tomlin follows that in Balls and approves the ruling in Lawson. If the case in hand had been one of a general balance or deficiency – which is what Mr. Aniagolu has argued – his argument would have been caught in the decision in Lawson and Tomlin in the dictum in Anaimeke (supra) which he invoked, on the intention behind Section 152(2) of the Criminal Procedure Ordinance. But the present case looks more like that of Balls, where the particular items were known, as they are in the case in hand. That section 152(2) can be used in such a case is apparent from its language – “without specifying particular items” – words which imply that such items may be known. The subsection is in wide terms. Mr. Aniagolu’s argument that each of the counts is bad for duplicity is met by that subsection and fails.
From the point of view of what is desirable and what is not, the observations in Lawson and in Tomlin should, of course, command respect and offer guidance. In the present case, it may have been the fact, e.g., in regard to the third count, in regard to which the learned Judge says that the triplicate pages of the receipts seem deliberately to have been left blank, that each time the appellant issued a receipt he stole the money; but he was attached to the Isu Native Court, and he paid in his collections at the Okposi Sub-Treasury, or at the Central Treasury at Afikpo, from time to time; and if he had been charged with stealing £1 on the date he received it, he might have argued that he was not expected to pay in on that date; so advantage was taken, perhaps on that ground, of the provision in Section 152(2), which makes it unnecessary to specify exact dates.
It was not until his closing address that learned Counsel argued that the information was bad for wrong joinder of offences and every count bad for duplicity. Mr. Nwokedi, for the Crown has submitted that they are not, and, alternatively, that if they were, the appellant was not embarrassed; and he has pointed out that the point, instead of being taken immediately, was taken very late. In fairness, be it said that Counsel for the appellant did not claim embarrassment. There usually is none: for as the auditor checks, the clerk concerned learns in detail what appears to be wrong; and later, at the preliminary inquiry before the Magistrate, the auditor gives the details; so by the time the case comes up for trial, the clerk has a copy of the depositions and knows the particular items – where any such are known – which make up the gross sum charged. There is, besides, the safeguard in section 152 (4), which provides that:–
Where the nature of the offence is such that the particulars required by section 151 and subsections (1) to (3) of this section do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which the offence was committed as will be sufficient for that purpose.
It is there to be invoked where amplification is necessary.
The other grounds of appeal relate to the facts and may be dealt with together. The appellant used to obtain a receipt for any sum he paid in at Ok-posi or Afikpo and paste it in a book. There were no receipts to account for the sums which he was convicted of stealing: he had none in his hands, and none could be found in the shape of duplicates at the Sub-Treasury or the Central Treasury at those places. There was an instance of a receipt for £21-1 0s paid in by the appellant; the original should have been with him, but it was not pasted in by him in the book in which it would normally have been pasted. It has been mentioned, but it has no bearing on the counts in hand; it goes to show, however, that if he lost a receipt, his payment-in could be traced in one or the other of those places. In regard to the sums in the counts in hand, the appellant admitted receiving the moneys and having no loss: his defence was that he paid them in and obtained receipts, and that he pasted them in two books, which were lost by the Police; and at one point in his cross-examination on a certain set of receipts for moneys which were given to him, he was driven to say that they were for adjustments. This was not believed, and the learned Chief Justice thought that the “missing” books were an invention.
This is a case where on the evidence it was right to infer that the appel-lant stole the gross sums stated in the three counts; the appeal fails both on the point of law and on the facts, and is dismissed.
Other Citation: (1962) LCN/0951(SC)