KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE. The appellant was charged in the High Court of the Enugu Onitsha Division on two counts of Fraudulent False Accounting (section 438 (b) of the Criminal Code), and on four court of Stealing by clerks and servants (section 390 (6) of the Criminal Code). Upon the first, third and sixth counts the appellant was acquitted. On the second, fourth and fifth counts (all Stealing by clerks and servants) he was convicted and against these convictions he has appealed to this Court.
The appellant was at the material times a Treasurer employed by the Elu Elu Native Administration and all the charges related to his dealings in that capacity. It was inter alia his duty as Treasurer to receive monies on behalf of the Native Administration and to make certain payments to employees of the Native Administration. In the course of his duty he kept a cash book and in that cash book he entered the following amounts as paid:- £ s d 2 7 6 to Anyasoh 3 0 0 to four Court Messengers and 1 2 6 to three Court Messengers whereas in fact none of these amounts was paid. The three charges of stealing on which the accused was convicted related respectively to these three amounts and the Court below, expressly “on the accused’s own evidence” convicted him as stated, apparently holding that as regards the other evidence in the case the appellant was entitled to the benefit of some doubt. It follows that we must consider this appeal on the same evidential basis.
The “accused’s own evidence” so far as material may be taken from the learned Judge’s summary of it as follows:- “Accused stated in evidence that he had kept the monies £2 7s 6d, “£3 and £12s 6d in the green safe for some time but when the District “Officer gave him £259 from the District Officer’s Safe on 19.11.42, “he (accused) removed these monies from the green safe and put them “in his other (cemented in) safe. Why he should have done so is not “clear, but that is his statement. According to him, when Mr. Brown “made his check, these monies were mixed with the other money in “ the Treasurer’s safe. Not one word did the accused say to Mr. “Brown about these monies during Mr. Brown’s check and clearly “Mr. Brown had no knowledge that the money in the safe included “these amounts.” “Mr. Brown had no idea that these sums £2 7s 6d, £3 and £12s 6d “were included in the monies he was counting. Accused said nothing “about them. “The result was that Mr. Brown ascertained at that time a certain “shortage finally reduced sometime later to £17 15s 3d. Had accused “told him about these sums the shortage would have been increased “by £2 7s 6d, £3 and £1 2s 6d i.e. £6 10s. “If accused’s evidence is true, he deliberately used £6 10s belong- “ing to the Treasury to reduce a shortage in his cash. He says that “he put these monies in the Treasury safe, on transfer from ‘Green’ “safe, on 19.11.42. He says of course that he had no idea that there “was a shortage in his cash until Mr. Brown’s check on 23.11.42. “I can hardly believe that, but even if his evidence on this point “is true, he deliberately concealed from Mr. Brown during his check “that there was in the Treasury safe £6 10s which could not be taken “into account in striking a balance according to the books. “Unless Mr. Brown knew about this £6 10s he could not strike “a correct balance”.
The learned Judge having so stated the accused’s own evidence went on to hold that the moving of these three sums totaling £6 10s 0d from one safe belonging to his employers to another safe belonging to his employers was in law converting them to his own use, namely to reduce the shortage of his cash by that amount. We are unable to accept this conclusion in law. The accused was entitled to keep these sums in either of the safes. Both the amounts and the safes were the property of his employers and, when Mr. Brown came to check, the appellant was quite right to include in the money to be checked these particular amounts as part of the money in his hands belonging to his employers which in fact it was.
The appellant had incorrectly (but apparently in accordance with the approved practice in Native Administration accounting) entered these amounts in the cash book as paid so that if the appellant’s cash were correct Mr. Brown on checking with the cash book figures would have found an apparent surplus of £6 10s 0d. In fact Mr. Brown found even on the basis that this £6 10s 0d had been paid out a general deficiency of cash amounting to £17 15s 3d. With the appellant’s liability-criminal or civil-in regard to that general deficiency or the incorrect entries in the cash book, we are not concerned in this appeal. It is enough for the purpose of this appeal that we hold that the moving of this £6 10s 0d from one Native Administration safe to another so that it should be included in the checking of the money in his hands for his employers cannot possibly be regarded as conversion of the £6 10s 0d to the appellant’s own use. Taking that view of the matter we allow the appeal, quash the convictions appealed against, and substitute therefore verdicts of acquittal. The appellant is discharged.