Coussey, J.A. The appellant, who was employed by the United Africa Company , Ltd. as a storekeeper and produce buyer, was convicted in the Supreme Court, Jos Judicial Division, of stealing the sum of £2,500, contra section 390 (9) of the Criminal Code.
It was proved that under the terms of his written agreement with the com-plainants his authorised credits for the-purchase of groundnuts for the company was £500, and for gum £300, making a total of £800, which produce was to be purchased by him in the company's premises at Nguru for cash out of the credit advance of £800.
Contrary to this agreement and authority the depot manager of the company, in the belief that the money was required by the appellant to buy produce at the company's premises at Nguru, advanced the appellant £1,000 on the 5th January, £500 on the 14th January, and £1,000 on the 19th January, 1953. These moneys were not entered by the appellant in the company's cash book until after the appellant had represented to the company's managers at a checking that he had drawn the moneys to give out as advances for produce to recoup the company's losses and his own loss of £500.
The trial Judge found that the appellant was not truthful. His story that he had advanced this money to buy produce in cash was not believed. The trial judge held that the £2,500 was converted fraudulently by the appellant to his own use and that that money was permanently lost to the complainants; even if he hoped to repay it the appellant was using it at his own will.
Mr. F. R. A. Williams, for the appellant. has submitted that this is a debtor and creditor transaction and not a fraudulent conversion by the appellant. He calls attention to the proviso to section 385 of the Criminal Code:-
“that if the persons receiving the money and the person from whom he receives it, ordinarily deal with each other on such terms that, in the absence of any special direction all money paid to the former on account of the latter would be properly treated as an item in a debtor and creditor account. between. them, the former cannot be charged with stealing the money or any such proceeds unless the direction is in writing.”
The short answer is that the three sums amounting to £2,500 were in fact obtained by the defendant outside the terms of the authorised credit under his agreement; they could not therefore be properly treated as items in the appellant's account; it is for that reason no doubt and to avoid detection as well as liability that he did not debit himself in account as and when the moneys were received. The moneys would not have been paid to him if the manager had been aware that they would not be utilised in buying produce for cash at Nguru. When the day of reckoning came at an interview which he had sought with the company's manager, the appellant represented that he had advanced the moneys to two traders who. however, did not materialise. This was a pretence; the truth, as the learned trial Judge held, was that the money had gone into the appellant’s pocket. The offence is not disposed of by the fact that the appellant, after discovery and when an investigation was proceeding with the object of a charge being preferred against him, debited himself with the amounts in the cash book.
In our opinion the appellant was rightly convicted and this appeal is accordingly dismissed.
Appeal dismissed.