KINGDON, CHIEF JUSTICE, NIGERIA BUTLER LLOYD AND CAREY, JUDGES. The appellant was charged and convicted in the High Court, Enugu-Onitsha Division on ten counts, four being of stealing by a clerk or servant contrary to section 390 (6) of the Criminal Code, four being of, fraudulent false accounting contrary to section 438 (c) of the Criminal Code, one being of obtaining property by false pretences contrary to section 419 of the Criminal Code, and one being of stealing contrary to section 390 of the Criminal Code. The appellant was the Manager of the Asaba branch of the United Africa Co. Ltd.
The particulars of the 1st count of stealing by a clerk are as follows: - “Antbony Empson Ofoni between the 4tb June 1939 and the 1st July 1939, at Asaba in the Province of Benin, being a clerk of the United Africa Company Limited stole from the said United Africa Company Limited £304 19s. l1d.” It appears from the evidence that on the 4th June, 1939 the stock, cash and books of the Company in charge of the appellant were checked by the District Manager and found to be correct, On 27th June the Company’s Auditor visited Asaba and on the 30th June the appellant reported to the Auditor a discrepancy of £305 in his cash. On the 1st July when the Auditor of the Company checked the cash and accounts he found a shortage of £304 19s. l1d. as to which the appellant could offer no explanation. The appellant was in entire charge of the branch and the books of the Company and had two safes embedded in concrete with bars and padlocks provided for them and the only keys of the safes and padlocks were kept by the appellant.
There had been transactions since the checking on the 4th June and the balance on the 1st July as shown by the books kept by the appellant, which appeared to be in order, was £1,328 7s. 3d. Appellant could only produce to the Auditor £1,023 7s. 4d. and, though given opportunity, could not explain why he was short of £30419s. l1d.
It is this sum and in these circumstances that the appellant was charged with stealing in the first count.
His Counsel has argued that there was no evidence to support this conviction, relying on the cases of R. v. Lloyd Jones 8.c and p.288 and R. v. Wolstenholme 11 Cox 313, as authority for the proposition that it is not sufficient to prove at the trial a general deficiency in account. 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.
The learned Trial Judge himself in summing up referred to the first count as charging stealing general deficit” , and he found there was no direct evidence that the appellant stole the 304 19s. l1d. He held that “this evidence “, i.e. that which is substantially set out above, “discloses circumstances in which this large sum disappeared, leading only to the conclusion that the accused took it the evidence, on other conclusion is reasonably possible. He does not specily the Circumstances to which he refers, and the only one which we can find is the fact that the Appellant alone had the keys of the safes.
The cases supra on which appellant’s Counsel relies are quoted in the last and earlier editions of Arehbold on the subject of general deficiency of moneys and would seem to reflect the established law.
In our opinion the learned Judge misdirected himself as to the law in convicting the appellant in respect of a general deficit of £394 19s. l1d. as charged in the first count, and the conviction on this count must be quashed. The second count charges the obtaining of property by false pretences in that the appellant, on or about the 4th June, 1939 with intent to defraud obtained from the United Africa Co. Ltd. £13 4s. 5d. by falsely pretending that he had authority to weigh and sell 7 drums of palm oil.
The facts of this transaction, as found by the Trial Judge, are that the appellant pretended that he had the authority of the owners of 7 casks of palm oil lying on the Company’s premises in charge of appellant to sell them to the United Africa Co. Ltd and that he sold them to the Company and obtained from the Produce Clerk of the Company £13 4s. 5d. which he did not pay to the owners and that the pretence that he had the owners’ authority was false, in that the owners had instructed the appellant that he should retain the oil until such time as, on further instruction, when the price rose, he should be authorized by them to sell.
The Company obtained the oil and, as stated, the price paid therefor to the appellant was not handed over to the owners, but there is nothing to show that any demand was made therefor prior to the arrest of the appellant. So much was established by the evidence of the witnesses for the prosecution and, the Judge having over-ruled a submission that there was no case to answer, the appellant in evidence said he had paid over the £13 4s. 5d. to the agent of the owner. The agent and the owner both denied this and the Judge believed them.
On these facts the Trial Judge held that all the necessary ingredients of the offence of obtaining money by false pretences were present-the false pretence, the obtaining thereby and the intent to defraud.
The false pretence and the obtaining of money were clearly proved and the question arises-was there sufficient evidence of intent to defraud? If there were nothing to show that the appellant had any intention other than to hand the money received to the owners when he saw them, it would be difficult to infer the intention to defraud; but the appellant himself furnishes the evidence of intent by alleging (as the Trial Judge found, untruly) that he had paid over the money. We are entitled to look at the case as a whole and consequently to act upon this evidence supplied by the appellant himself. The appeal against conviction on this count fails.
Counts 3, 5 and 7 charged the appellant with fraudulent false accounting in that he, being a clerk of the United Africa Co. Ltd. with intent to defraud, on three specified dates omitted from or in a cash book belonging to his employers a material particular, that is to say the receipt of three separate sums of £7, £8 and £2 12s. 6d. from Orakpo, Okeze and Okeze respectively and in counts 4, 6 and 8 the appellant was charged with the stealing of these three sums from the United Africa Co. Ltd. he being the clerk of the United Africa Co. Ltd.
As regards these six counts the learned Trial Judge has made specific findings of fact which are justified by the evidence establishing unquestionably the commission of the six offences therein charged and we see no reason for interfering with his decision thereon.
The 9th count is another charge of fraudulent false accounting in that the appellant in similar circumstances with intent to defraud omitted to enter in the cash book of his employers the receipt of a sum of £33 9s. 2d. on a date specified in the count. Here again the Trial Judge has found facts on the evidence which justified him in finding the appellant guilty on this count and we see nothing in the argument of Counsel to induce us to question that finding.
As regards the l0th count there was an application to amend the charge from stealing £15 from one Onochie to stealing by a servant the sum of £14 9s. 2d. Only the amendment of the sum was allowed, the charge therefore remained one of stealing from Onochie and it was of this offence that the appellant was convicted.
This £14 9s. 2d. is part of the sum of £33 9s. 2d. paid by Onochie of which the appellant omitted to enter the receipt in the cash book as charged in the 9th count.
The Trial Judge having found that the appellant received the £33 9s. 2d. as clerk of his employers and omitted to enter its receipt in his employers’ cash book, it is not consistent to hold that the £14 9s. 2d. was stolen from Onochie and for this reason the conviction on the l0th count cannot stand. The fact that appellant under pressure from Onochie gave the latter an IOU for £15 upon which Onochie has since obtained judgment against the appellant does not in our view alter the situation.
The £14 9s. 2d. was in excess of the amount owed to the United Africa Co. by Onochie and was received by appellant as clerk of the Company on account of purchases to be made in the future by Onochie.
In the result the appeal is allowed upon counts 1 and 10, and dismissed upon the other counts. The convictions and sentences upon counts 1 and 10 are quashed and it is directed that upon each of these counts a judgment and verdict of acquittal be entered. The convictions and sentences upon counts 2-9 inclusive are upheld.