EDWARD ANIEMEKE AND ANOTHER (APPELLANTS)
THE QUEEN (RESPONDENT)
(1961) All N.L.R. 47
Division: Federal Supreme Court
Date of Judgment: 23rd February, 1961
Case Number: FSC 212/1960
Before: Ademola, C.J.F.
The appellants were convicted of (1) stealing 59 boxes of cigarettes, and (2) of conspiracy to steal. The evidence on stealing was that on 53 specific dates between March and July, 1959, boxes left the store but were not paid for.
Pursuant to section 156 of the Criminal Procedure Ordinance there should have been 53 counts of stealing. For the Crown it was argued (a) that the one count laid was covered by section 152(2), or (b) could not be questioned in view of section 168, or (c) that there had been no substantial miscarriage of justice.
(1) Section 152(2) of the Criminal Procedure Ordinance is designed to deal with fraudulent appropriation of money in what is known as a general deficiency, and does not apply to this case.
(2) Questions of duplicity have been dealt with on appeal notwithstanding section 168. In this case the trial Judge did not direct his mind to the fact that he was trying 53 distinct offences which required separate consideration of the evidence and a separate finding on each; the evidence tended to show that the thief stole, not the cigarettes, but the money received from the sale of them. The appeal could not be dismissed on the ground that there had been no substantial miscarriage of justice.
(3) This was not a case in which the count for conspiracy could stand independently of the count for stealing.
Appeals from the High Court of Eastern Region allowed.
Kayode, Q.C., (with him Aniagolu) for the first Appellant. Second Appellant in person.
Nwokedi, Senior Crown Counsel, for the Crown.
Unsworth, F.J., delivering the Judgment of the court:-This is an appeal from a decision of the Enugu Judicial Division of the High Court of Eastern Nigeria convicting the two appellants of stealing 59 boxes of Bicycle cigarettes valued at £3,117-3s-4d. and also of conspiring to commit the felony of stealing.
Learned Counsel for the first appellant argued that the charge of stealing was bad for duplicity and that the charge of conspiracy could not stand independently of that charge. The evidence shows that on 53 specific dates between March and July, 1959, boxes of Bicycle cigarettes were removed from a store on premises belonging to the United Africa Company, and no payment has been received by the Company in respect of these cigarettes. It is clear that 53 separate misappropriations on 53 separate occasions were being alleged by the prosecution, and these distinct offences should have formed the subject of separate counts in accordance with sections 156 and 339 of the Criminal Procedure Ordinance unless there is some express provision of law authorising a departure from the rule.
In the course of argument the court examined subsection (2) of section 152 of the Criminal Procedure Ordinance, which authorises departure from the rule in certain circumstances. In our view this exception 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 subsection and not to misappropriation of other kinds of property. 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.
The court also considered the effect of section 168 of the Criminal Procedure Ordinance, which applies to the counts in an indictment by virtue of section 339 of that Ordinance. This section provides that no Judgment shall be stayed or reversed on the ground of any objection which, if taken after the charge or count was read over to the accused or during the progress of the trial, might have been amended by the court. There is authority to show that questions of duplicity have been dealt with on appeal notwithstanding the provisions of section 168, but, if it applies, it is necessary for us to consider in the circumstances of this case a further point, namely, whether the learned Trial Judge properly directed his mind to the fact that he was trying 53 distinct offences which required separate consideration for purposes of evidence and Judgment. It is clear from an examination of the record that the learned Trial Judge did not direct his mind to this point or make findings in respect of specific offences.
The appeal must succeed and the only remaining point for consideration is whether we should apply the proviso to subsection (1) of section 26 of the Federal Supreme Court Ordinance with a view to dismissing the appeal on the ground that there was no substantial miscarriage of justice. In all the circumstances we have reached the conclusion that it would not be proper for us to apply the proviso to this case, in which 53 distinct offences were included in one count and tried as one offence. Furthermore an examination of what evidence there is relating to individual offences tends to show that the person guilty of misappropriation (whoever he may have been) converted to his own use the sums received from the sale of the cigarettes and not the cigarettes as laid in the charge. It follows from our decision on the charge of stealing that the appeal against the conviction for conspiracy must also succeed as this is not a case in which the charge of conspiracy could stand independently of the charge of stealing.
For the reasons given in this Judgment the appeals of both appellants are allowed. The convictions are quashed, the sentences set aside, and verdicts of acquittal entered in respect of the two counts on which the appellants were convicted. The appellants are discharged.