JELR 80632 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
Other Citations
1946-49 12 WACA 488-489
Core Terms Beta
lesser offence
offence of false accounting
public officers
false entries
greater offence
intention of the sub-section
learned judge
maximum penalty
public officer
reduction of the offence of fraudulent false accounting
ample evidence
being of opinion
contra section
counts of false accounting
criminal code
essential part of the offence
false accounting
latter set of counts
list of the details of the sale
material particulars
mr. amachree
part of the amounts
public officer contra section
purchase price
receipt book
servant of the nigerian government
statement of account
such money
tenth counts
various persons
various small prices
whole of the amounts

Ames, J. This is an appeal against convictions on six counts of stealing contra section 390 (6) of the Criminal Code and six counts of false accounting by a public officer contra section 439.

There is no substance in the appeal in so far as it relates to the counts of stealing. The appellant was a bailiff, and was selling by auction things which he had seized in execution of a writ of fi-fa. These counts related to six articles which he sold to various persons at various small prices. The purchase price was paid in each instance, and there was ample evidence to support the finding of fact that he stole the whole of the amounts paid for four of the articles and part of the amounts paid for two of them, and he was very rightly convicted.

Coming now to the other counts, these referred to the method adopted by the appellant to try to conceal the stealing of the six various amounts. These four, of which he stole the whole, he omitted to account for at all, and the two, of which he stole parts, he falsely accounted for by accounting only for the balance which he did not steal instead of the whole amount.

He was convicted on each of these counts under section 439; but the charge in each of them was not laid under that section but under section 438. Four of them charged him with being a clerk or servant of the Nigerian Government and omitting, with intent to defraud, material particulars from his statement of account; and two charged him similarly with making false entries in his account.

Although the charge did not so aver in any of these six counts (as it should have been averred) it is an essential part of the offence against section 438 that the omissions, and false entries should be from, and in, books or documents of his employers, and these were not. The charge was laid under the wrong section, as the learned Judge pointed out. The appellant has some books supplied to him by his employers; he has a cash book and a receipt book. In the former, rightly or wrongly, he enters only the total amount realised at a sale; and from the after, rightly or wrongly, he only issues a receipt to the judgment-debtor also for the total amount. If lie entered in these books only the amount accounted for by him in connection with this particular sale, instead of the true amount, the entries must have been false; but the charge does not refer to them and the books were not put in evidence. What the charge referred to was a list of the details of the sale, which he sent to the Court together with the treasury receipt for the amount realised (which he had paid into the Treasury). This list was not in a book or document provided by his employers or received by him on their account. It was his own list. It was of course a false list, and he was a public officer. The learned Judge convicted him under section 439 being of opinion that “according to section 146 (e) of the Criminal Procedure Ordinance such money may be stated in the charge to be the property of the Crown”.

Mr. Amachree, who appeared for the Crown to oppose the appeal, submitted that the conviction was rightly made under the provisions of section 179 (2) of the Criminal Procedure Ordinance. This sub-section is as follows:- “(2) When any person is charged with an offence and facts are proved which reduce it to a lesser offence he may be convicted of the lesser offence although he was not charged with it.”

The offence of false accounting by public officers against section 439 is a “lesser offence” than fraudulent false accounting by clerks or servants against section 438 in that it is a misdemeanour with a maximum penalty of two years instead of being a felony with a maximum penalty of seven years as in the latter. But the section only applies where the greater offence is such as can be reduced to the lesser. We are of opinion that the offence of false accounting by public officers cannot be held to be a reduction of the offence of fraudulent false accounting by clerks or servants, within the intention of the sub-section, and that consequently the convictions under section 439 were wrong in law.

The result is that the appeal is dismissed in so far as it refers to the second, fourth, sixth, eighth and tenth counts but allowed in so far as it refers to the first, third, fifth, seventh and ninth counts and it is directed that on each of this latter set of counts the convictions be set aside and acquittals be substituted.

Appeal allowed in part.