Foster-Sutton, P. Both of the appellants were convicted on the first count of the information which charged them with conspiring together and with other persons unknown to defraud such persons as might be induced to deposit money with them as officers or agents of a body known as the American Council on African Education Incorporated. and the first appellant was convicted on six counts charging him with stealing contrary to section 390 of the Criminal Code.
The facts of the case are fully set out in the judgment of the learned trial Judge, we do not think, therefore, that any good purpose would be served by a recapitulation of them.
Mr. J. I. C. Taylor, who appeared for both appellants, leading Mr. D.O. lbekwe. intimated at the commencement of his argument that he intended to : rely on the additional grounds of appeal, with the exception of ground 6 which he abandoned, and he later abandoned ground 2 when it became apparent that a new information had been filed in due form.
The first submission made was that “ the learned trial Judge erred in law in dealing with counts 2-7 together instead of considering the facts on each count separately to see whether they each constitute the offence of stealing, and thereby misdirected himself “.
We indicated at the conclusion of the argument on this ground that we were unable to agree with the contention because it appeared clear to us that, taking the judgment as a whole, the learned trial Judge did consider each count separately and that he directed his mind to the evidence in relation to each one of them.
The second ground argued was that ..the learned trial Judge erred in law in placing reliance on the evidence of Moneke without considering whether Moneke was not an accomplice and thereby warning himself “.
Michael Moneke was the fifteenth witness called by the prosecution. In March, 1946, he left his employment with the United Africa Company, to whom he was employed as a clerk at a salary of £5 5s. 0d. a month, and accepted employment with the American Council on African Education Incorporated as a typist at a salary of £3 a month. He stated that he did this because he had previously applied to the Council for a scholarship and that the first appellant who was sponsoring the Council's scholarships informed him that before he could be considered for a scholarship he would have to work at the office of the American Council on African Education in Port Harcourt. According to Moneke he worked as a typist under one Ndukwe Egbuonu who was the “Administrative Secretary” until the year 1947 when Egbuonu obtained. a scholarship from the Council and left for America to pursue his studies. Moneke then became Administrative Secretary, still on a salary of £3 a month, and he then worked directly under the first appellant, until the latter left for America in about October, 1947, when he worked under the second appellant.
Moneke left the Council's employment in October, 1950, by which time he was receiving a salary of £9 a month, because he was dissatisfied with his salary and apparently disappointed because a scholarship had not been awarded to him.
The first appellant appears to have been the President General of the American Council on African Education “ both in Nigeria and in America. He stayed in America until some time in the year 1949 when he returned to Nigeria, and during that period the second appellant acted as President of the Council in Nigeria.
Mr. Taylor strongly urged that the witness Moneke was so involved in the whole business that he ought to have been held by the trial Judge to be an accomplice, and he went through the witness's evidence in some detail, submitting that a proper consideration of it discloses that he took a leading part in managing and controlling the affairs of the Council.
It does appear from his judgment that the learned trial Judge did not expressly direct himself to the question whether Moneke was, or should be regarded as, an accomplice. What he said, speaking of this witness, is this: “I am satisfied beyond doubt that Michael Moneke is a witness of truth. All counsel succeeded in doing was to show that the witness was not quick in the uptake and no more.
I therefore accept his evidence, especially, as his testimony is corroborated on all material points by numerous documentary exhibits and other independent witnesses “. In this connection it is, we think, relevant to observe that the counsel who appeared for the appellants in the Court below did not, when making his final address, invite the trial Judge to regard Moneke as an accomplice.
After carefully considering this witness's evidence and counsel's submissions on the point we were unable to agree that the learned trial Judge ought to have regarded the witness as an accomplice.
It appears to us that although after he assumed the post of Administrative Secretary in the year 1947, he took a leading part in the running of the Council’s office at Port Harcourt, in spite of his rather high sounding title, he was nothing more than a bookkeeper, cashier, that he was merely an employee under the direction and control of /the appellants who were the persons who understood all the ramifications of the American Council on African Education Incorporated, not the witness Moneke.
In any event we are of the opinion that there was evidence before the Court in respect of each count in the information, quite apart from that of the witness Moneke, upon which the appellants could properly have been convicted, and we feel in no doubt that without his evidence the Court would inevitably have come to the conclusion that the case against the appellants had been proved beyond all reasonable doubt.
It is also our view that there is no substance in the points raised by grounds 4 and 5 of the additional grounds of appeal.
It is clear from the various receipts given for the sums of money mentioned in counts 2 to 7, that each amount was deposited for a specific purpose, and we concur with the learned trial Judge's observations where he says, speaking of the first appellant, “His plain duty was either to have sent the particular students, in whose interest the deposits had been made, to America as he agreed to do, or refund the deposits to those who had made them. I am satisfied that he did neither. He did not refund the moneys on demand or at a reasonable time thereafter” .
Sub-sections (1) and (2) of section 383 of the Criminal Code (Cap. 42), provide that:-
“(1) A person who fraudulently takes anything capable of being stolen, or fraudulently converts to Ws own use or to the use of any other person anything capable of being stolen, is said to steal that thing.
“(2) A person, who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents:-
“(f) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.”
Mr. Taylor argued that the learned trial Judge erred in law in holding, when erring to counts 2 to 7, that the provisions of section 383 (2) (f) of the Criminal Code “ are quite apposite in each case “.
We are unable to agree with counsel's contention because, as it seems to us, it difficult to envisage a case where the paragraph in question could more clearly apply.
For these reasons the appeal of each appellant was dismissed.