Rex V. Robert Sampson Ekpenyong (1942)

LawGlobal Hub Judgment Report – West African Court of Appeal

Criminal law—Stealing—Sentence excessive

Appellant hired a cycle from prosecutor and pledged it to another man some three months later and sold it outright to the pledgee six weeks later. He was charged and convicted of the act of conversion by sale. No argument advanced in Court below as to whether he could be convicted for act of conversion in view of pledge which might constitute a criminal offence by the provisions of section 382 (2) (c) of the Criminal Code. Convicted and sentenced to two years’ imprisonment with hard labour.

Held : Conviction upheld but sentence in the circumstances considered excessive and reduced to six months’ imprisonment with hard labour.

1. I. C. Taylor for Appellant.

S. A. McKinstry for Respondent.

The following joint judgment was delivered :-

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, .orn GRAHAM PAUL, C.J., SIERRA LEONE.

In this case the appellant wwi charged in the Aba Judicial Division of the High Court at Port Harcourt with Stealing contra. section 390 Criminal Code, the particulars of the offence alleged being :—

” Accused person on or about the 6th of November, 1941, at Port ” Harcourt in the Province of Owerri, in the Aba Judicial Division did ” steal a Raleigh Bicycle, the property of Solomon Oshituyo.”

He was convicted and sentenced tc two years’He has

appealed to this Court against his conviction.

The case is not one of the ordinary cases of bicycle stealing. but shortly the facts are that the appellant was an Army cl”rk at Port Harcourt. The bicycle in question was hired to him by its owner Solomon Oshituyo under a written agreement on the 14th June, 1941, for five months.

Later the bicycle was damaged and repaired sometime in August. On the 21st September the appellant pledged the bicycle to one Dick Kalu for £2 and on the 6th November, 1941, he sold it to the same Dick Kalu for £3 12 Od.It is the act of conversion by sale on the 6th November which constitutes the stealing of which the appellant was convicted. The appellant was transferred to Sierra Leone upon short notice in November, 1941.

The appellant’s defence was that after the damage Solomon refused to take the bicycle back and demanded a cash payment instead, and that be, the appellant sold the bicycle to get the money to pay Solomon, that owing to his transfer he was unable to get into touch with Solomon after the sale in order to pay him, and that he was ready to pay Solomon. The learned trial Judge did not believe the defence and convicted the appellant.

There is no substance in any of the grounds of appeal filed. The Court, however, heard argument as to whether the accused could properly have been found guilty of stealing the bicycle on the 6th of =November, 1941, the date on which he sold the bicycle to D. A. Kalu, seeing that he bad previously pledged the bicycle to the same person on the 21st September which act of pledging might, by reason of the provisions of section 383 (2) (c) of the Criminal Code, have constituted stealing on that earlier date. The point was not taken in the Court below and we consider that this Court is not justified in speculating what, if it had been, the finding of fact of the Court would or ought to have been.

The appeal is dismissed.

This is not an ordinary case of bicycle stealing for which the sentence passed would be appropriate. Having regard to the special circumstances of this case we think that the sentence of two years’ 1.H.L. is excessive. Accordingly we quash the sentence passed at the trial and, in substitution therefor, sentence the appellant to six months’ imprisonment with hard labour to run from the date of the original sentence.