Rex V. Peters Udo Akpabio (1944)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal Law–Stealing by Agent : section 390 (8) (b) of the Criminal Code. Fraudulent False Accounting : section 438 (c) of the Criminal Code—Fraudulent Intent—Onus of proof.

Facts

The defendant was charged (1) with stealing £4 10s. 5d. entrusted to him as Honorary Treasurer of a Union Branch to pay into a Win-the-War Fund ; (2) with omitting to enter that sum in the Branch book with intent to defraud ; (3) with stealing entrusted to him as such Treasurer to pay into the said Fund. The facts were that on 22nd November, 1941, he was handed £4 10s. 5d., for which he did not account in the Branch book, but which he paid into the Government Local Treasury on 16th April, 1943. He admitted receiving another £15 in all, £8 of which he paid into the Treasury on 16th April, 1943, and £7 on 26th April, 1943.

The trial Judge found that though suspicious the retention of the £4 10s. 5d. for a long time did not establish stealing by conversion and acquitted the defendant on count 1. On (2) the Judge thought the defendant was a servant or clerk of the Union with a duty to account and that his omission to account for the £4 10s. 5d. sufficiently indicated a fraudulent intent, and convicted the defendant on count 2. As regards count (3) the Court thought that as at the meeting of 17th April, 1943, the defendant did not say the had been received and had not paid it in on 16th April, he did not believe defendant’s story of receiving the £7 between 17th and 22nd April, when he admitted receiving the £7 to a witness, and found that defendant had received the £7 prior to 16th April and was guilty of fraudulent conversion, whereupon he convicted him on count 3. On appeal :—

Held

that, as defendant chose to do the duties of a treasurer, he was, though unpaid, acting in the capacity of a clerk or servant to the Union, but that in view of the acquittal on the first count of stealing by an agent regarding the £4 10s. bd., the necessary intent to defraud could not be held as proved on the second count of fraudulent false accounting.

Held also, in regard to the third count, that the onus of proving receipt of the £7 prior to 16th April, 1943, being on the prosecution, which it failed to discharge, he should not have been convicted on the ground that he failed to disprove receipt prior to that date, there being no onus on him.

The Appellant is discharged,