Ugwu Nwankwo V. The Queen (1962)

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BAIRAMIAN, F.J 

The appellant, who was convicted on three counts by Sir Louis Mbanefo, C.J., Eastern Region, on the 21st June 1961, appeals on a point of law and on other grounds relating to the facts of his case.

The three counts in question are No. 3, No. 4 and No. 5 of the information; they are counts of stealing contrary to section 390(6) of the Criminal Code. The particulars of the third count are given here for the sake of the point of law raised; they are:–

Ugwu Nwankwo, between the 23rd of March, 1959, and the 10th of April, 1959, at Afikpo in Abakaliki Province being a clerk employed by the Afikpo District Council stole the sum of £80 property of the said Council.

In count 4, the period is between the 21st day and the 28th day of April, 1959, and the sum of £97; and in count 5 the period is between the 28th day of April, 1959, and the 5th day of May, 1959, and the sum is £85. Each of the said three sums was made up of a number of items of money received by the appellant; it is an aggregate or gross sum relating to one receipt book in each case of rates collected by the appellant from certain ratepayers. The point made is that those counts are bad in law.

Mr. Aniagolu has argued that counts 3, 4 and 5,were bad for duplicity; which means that each contains two or more offences, and sins against the provision in S. 156 of the Criminal Procedure Act that:-

For every distinct offence with which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in Sections 157 to 161.

The prop for the counts is section 152(2), which was amended in 1953, and provides that:–

Where the accused is charged with criminal breach of trust, fraudulent appropriation of property, fraudulent falsification of accounts or fraudulent conversion it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed without specifying particular items or exact dates and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 156.

(The amending Act of 1953 deleted the words “save that the time included between the first and the last of such dates shall not exceed one year”, which were in the Ordinance as originally enacted).

On the meaning of Section 152(2) learned Counsel has quoted what was said by this court in The Queen v. Aniemeke and another, (1961) All NLR 43; [196111 SCNLR 75. There the appellants were convicted of stealing 59 boxes of cigarettes; and the Court observed on S.152(2) that it does not apply to the present case as the use of the words “gross sum” in this subsection shows that it applies only to fraudulent appropriations of money in the circumstances set out in the sub-section and not to misappropriation of other kinds of property.

Consequently, it could not be invoked in a case in which the charge was one of stealing, not money, but cigarettes. The court went on to say:–

The subsection is designed to deal with what is known as a general deficiency, and there can be no doubt that the Legislature provided an exception in such cases on account of the difficulty of ascertaining the time at which any particular sum of money has been misappropriated in these cases.

Learned Counsel has pointed to the words “general deficiency” in the above dictum, and argued that they mean a shortage; and he has cited R. v. Okorodudu, 12 W.A.C.A. 129 and R. v. Ofoni 6 W.A.C.A., 1, which is mentioned in Okorodudu; But Okorodudu is a case of 1947, and the question there was different: it was whether “the appellant converted these four specific sums or any part thereof to his own use”, and the appeal was dismissed. Learned Counsel for the appellant sought to argue that it was a case of general deficiency; and there are dicta on that type of case to which he has drawn attention, viz: