Rex V. A. E. Ofoni (1940)

LawGlobal Hub Judgment Report – West African Court of Appeal

Stealing by clerk or servant contra section 390 (6) of Criminal Code- App from General deficiency in cash-Obtaining property by false pretences in High contra sec. 419 of Criminal Code-Evidence of intent to defraud Court. furnished by accused person-Fraudulent false accountingcontra sec. 438 (c) of Criminal Code–Inconsistency in verdicts.

Facts

The Appellant was Manager of the Asaba branch of the United Africa Co. Ltd. and as such was in charge of the stock, cash, and books, and had sole control of the safes, of the Company. Between 4 /6 /39 and 1 /7 /39 his books showed a general shortage of £304 19s. ltd. for which he was unable to account. On or about the 4 /6 /39 he sold to the Company seven casks of palm oil the property of divers owners for £13 4s. 5d. cash stating that he had the authority of such owners so to sell. He received the said sum of £13 4s 5d. but did not pay it to the owners. The owners made no demand for payment. Between November 1938 and April 1939 the Appellant in his capacity as clerk of the Company received three separate sums of money viz. £7, £8 and £2 12s. 6d. from three of the Company’s customers and failed to record such sums in his books of account. On the 30th May, 1939 the Appellant in similar circumstances failed to record in his books of account the receipt of £33 9s. 2d. paid to him by a customer of his Company name Onochie.

The Appellant was charged as follows :-

1. Under count 1 with stealing as a clerk the said sum of £304 19s. ltd. contra sec. 390 (6) of the Criminal Code.
2. Under count 2 with obtaining the said sum of £13 4s. 5d. by false pretences contra sec. 419 of the Criminal Code.
3. Under counts 3, 5 and 7 with fraudulent false accounting in relation to the said sums of £7, £8 and £2 12s. 6d. contra section 438 (c) of the Criminal Code.
4. Under counts 4, 6 and 8 with stealing the said sums of £7, £8 and £2 12s. 6d. contra sec. 390 of the Criminal Code.
5. Under count 9 with fraudulent false accounting in relation to the said sum of £33 9s. 2d. contra sec. 438 (c) of the Criminal Code.
6. Under count 10 with stealing as a servant £14 9s. 2d. the property of the said Onochie contra sec. 390 (6) of the Criminal Code.

In his defence to count 2 the Appellant alleged that he had paid the said sum of £13 4s. 5d. to the agent of the owners but this was denied by the agent and owners. The sum of £14 9s. 2d. was a portion of the sum of £33 9s. 2d. The Appellant was convicted by the Trial Judge on all ten counts and appealed.

Held

(1) Following R. v. Lloyd Jones, 8 c. & p. 288 and R. v. Wolstenlioltne, 11 Cox 313 that though it was proved that a general deficiency existed it was not proved that any specific sum had been stolen and therefore the conviction under count 1 was bad ; conviction accordingly quashed.

2. Since the sum of £14 9s. 2d. was a portion of the sum of £33 9s. 2d. the conviction under count 10 was inconsistent with the conviction under count 9 and was bad ; conviction under count 10 accordingly quashed ;
3. Convictions and sentences on remaining eight counts upheld.