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KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, GRAHAM PAUL, C.J., SIERRA LEONE.
The appellant was charged before Brace, Assistant Judge, in the Aba Judicial Division upon two counts one for” counterfeit- “ing coin contra. section 147 Criminal Code “ and the other for “preparation for coining gold and silver coins contra. section 148 “(3) (c) Criminal Code”. He was acquitted on the first count on the ground that there was” no evidence of making or beginning “to make.” But he was convicted upon the second count and sentenced to four years I.H.L. Both sections 147 and 148 refer only to “gold and silver coin”, an expression which by definition includes the coins of mixed metal of greater value than current in Nigeria. But the whole of the evidence relates to the preparation for making pennies, there is no suggestion that the appellant or anyone else was thinking of making coins of a higher denomination. Therefore the conviction upon the second count cannot stand. We have carefully considered whether this is a case in which we should exercise our powers under section 11 (2) of the West African Court of Appeal Ordinance and substitute a verdict of guilty of some other offence. The only possible section under the Criminal Code which comes near to fitting with the facts proved is section 154 (2), but counsel for the Crown has felt unable to ask us to record a conviction under that section for the reason that upon examination the exhibits do not appear to be adapted for making counterfeit nickel coins.
The appeal is accordingly allowed, the conviction and sentence are quashed and it is ordered that a judgment and verdict of acquittal be entered, and the appellant discharged.