HIGH COURT, KUMASI
DATE: 5TH JUNE, 1962
BEFORE: DJABANOR, J.
CASES REFERRED TO
(1) C.O.P. v. Dimbie [1959] G.L.R. 202
(2) R. v. Boulton (1871) 12 Cox C.C. 87
(3) R. v. Zonyra and Others [1959] G.L.R. 26
(4) C.O.P. v. Vyras Court of Appeal Cyclostyled Judgments January — June, 1958, unreported
(5) C.O.P. v. Bediako Court of Appeal Cyclostyled Judgments January — June, 1958, unreported
(6) R v. Okorodudu (1947) 12 W.A.C.A. 129
NATURE OF PROCEEDINGS
PROSECUTION for conspiracy, stealing and falsification of accounts.
JUDGMENT OF DJABANOR J.
In this case the two accused persons stand charged with the offences of falsification of accounts (ie. first accused alone), conspiracy and stealing. The first accused was secretary and the second accused treasurer, of the Bomfa Co-operative Society. The duty of the first accused as secretary was to buy cocoa for the society from the members of the society, give the said members advances against which they were to supply cocoa to the society, keep the books of the society and pay out their expenses.
The money supplied for this work was kept jointly by the secretary and the honorary treasurer in the society’s safe. The secretary keeps one key and the treasurer too keeps one key so that money could not normally be taken out unless both of them, or their representatives,
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were present. When the books were audited it was found that the society was over £G7,000 short — in fact £G7,511 17s. 11d. They were therefore jointly charged with conspiring to steal that money, and also with stealing it.
The first charge is against the first accused alone; that on the 7th June, 1960, at Bomfa, with intent to facilitate the commission of the crime of stealing he omitted to make a full and true entry in the cash book of the said society in respect of the amount of £G1,000 received from the Ashanti Akim Co-operative Union, which he was bound to enter therein.
The prosecution’s case is that the first accused received this amount of £G1,000 in respect of this society but with intent to facilitate the crime of stealing he failed to enter it into the cash book on that day, as he was bound to do. Mr. Amoateng was the secretary of the Ashanti Akim Union at the relevant period and he was the one who should pay this £G1,000 to the first accused and second accused. According to his evidence when he gave out money to these people the treasurer should sign on his own receipt book, and the secretary (the first accused) should also at the same time issue him with a receipt. He was emphatic that these two receipts should be executed and given to him before he gave out the money. In the case of this charge concerning the £G1,000 the union’s receipt No. 31893, dated the 7th June, 1960, was not signed by the first accused; the signatures are different, and no secretary’s receipt was given to the union secretary on that date. In fact no receipt was given to the secretary at all until by the order of the auditor, one (No. 47) was made out on 19th August, 1961. When the first accused therefore denied that he received that money, there is every reason for believing that he may be right. In any case he definitely did not receive that money on the 7th June, 1960, and he could not therefore have failed in his duty if he did not make a relevant entry of the same. The first charge against the first accused must therefore fail.
On the second count the accused is charged with falsification of accounts in respect of £G1,500 which he similarly failed to enter into his books on the 9th September, 1960. There is no denial that the first accused is the paid secretary of the Bomfa Co-operative Society and that he keeps the books of the said society. The first thing that the prosecution would have to prove is that the first accused received this amount of £G1,500 on the 9th September, 1960, and that he did not enter that amount in his books; then they will have to prove that it is the duty of the accused to make the entries on that same day; that he failed to make the entry; and that he did so with intent to facilitate the commission of the crime of stealing.
There is no dispute that the first accused received the £G1,500 together with the second accused on the 9th September, 1960. He himself admitted it, and it is shown in the Cocoa Advances Book that he had signed a receipt for it. But with regard to the question whether or not it is the duty of the first accused person to make the entry of this receipt in his cash book on the same day there is singularly no evidence. There is no evidence by anybody who could describe himself as his employer to the effect that it is the duty of the accused to make the entry on the date of receipt. The only evidence as to the duties of the first accused is given by one of the auditors. According to him it is the duty of the first accused to make entries of all such transactions in his books. He did not say that the entry must be made the same day. If he had said so, I would
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not have believed him. What I am prepared to believe is that it is the duty of the first accused to make an entry as soon as practicable. It must be remembered that the first accused received the money from Konongo and then brought it home to Bomfa. All he may do that day may be to lock it up in the safe until the next working day before he may make an entry. The first accused failed to make the entry that day. And he explained as his reason for not doing so that it was an oversight; that he was too busy and that he neglected to do so through inadvertence. His explanation was not seriously challenged by the prosecution and it seemed to me a reasonable enough excuse, especially since there was no evidence that he misappropriated that sum. I give the benefit of the doubt therefore to the accused and I find that he did not omit to make the entry on that day with the intention of facilitating the commission of the offence of stealing. Furthermore, I am not satisfied that it has been proved that he was obliged to make the entry on the date he received the money and no other day. In this case he made the entry but some ten or eleven months later. That count too fails.
The third count charged the first and second accused persons with conspiracy to steal. In this regard let me quote, with respect, what van Lare, Ag. C.J. said in the case of C.O.P. v. Dimbie, “Learned Crown Counsel for the respondent conceded that it is undesirable to add a count for conspiracy to an indictment charging a specific substantive offence in cases where it is clear that the evidence to be submitted for consideration is nothing more than evidence of the actual commission of the substantive offence.”1(1)
He also quoted with approval the following observations of Cockburn C.J. in R. v. Boulton “I am clearly of the opinion that where the proof intended to be submitted, to a jury is proof of the actual commission of crime, it is not the proper course to charge the parties with conspiring to commit it; for that course operates it is manifest, unfairly and unjustly against the parties accused.”2(2)
In the same case of C.O.P. v. Dimbie van Lare, Ag.C.J. also expressed himself as follows: “. . . where there is a specific charge of conspiracy, that is to say in addition to the offence itself, there must be some evidence directed and confined to the facts which constitute or are concerned with the conspiracy.”3(3)
It was not so in this case. The prosecution relied entirely on the fact that the two accused persons each had the custody of one of the keys to the safe in which money was kept, and asked the court to draw the inference that if money was missing then the two custodians of the money must have conspired to steal the amount. But the facts must be such that the only inference that can be drawn is that of conspiracy between the two accused persons. In this case I do not see that the inference is necessarily as alleged by the prosecution. I agree with the learned Justices of Appeal when they said in Reg. v. Zonyra that: “In our opinion it is wrong to ground a charge of conspiracy only upon the fact that two or more persons were engaged together in committing an offence.”4(4) In this case no evidence has even been led that the two persons apart from keeping the keys had been engaged in committing any offence. I don’t think that this charge too has been proved against either of the accused persons.
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I now come to the last count, which charges each of the accused persons with stealing £G7,511 17s. 11d. I will take the case of the second accused first because it appears to be less involved. The case against him is that he as treasurer keeps one of the two keys of the safe and that if money were to be put into the safe or taken out of it, it could not be done unless he opened the second lock of the safe. Sometime in August 1961, an audit was carried out on the books of the Bomfa Society and the amount which the accused stands charged with stealing was found short, i.e. although the books showed a balance of £G7,511 17s. 11d. in favour of the society, that amount was not produced by either of the accused persons to the auditor. The prosecution says that the second accused stole that amount. Now apart from this allegation and charge there does not appear to be any evidence of the conversion by the second accused of this amount. He is not shown to have acquired sudden wealth nor has any specific act evidencing opulence been alluded to. His case was that he did not take this or any other sum of money from the society; and he explained that he was away from work on at least three occasions when he had to hand over his key to the president of the society. The first occasion was when he went home on the occasion of his mother’s funeral. He was away for twelve days in December 1960. Then on the 28th January, 1961, he was away to Cairo and Beirut for three weeks. On these occasions, too, he left the key with the president. Then his own son died, and he went away for two weeks. On this occasion too he gave his key to the president. He said that he did not on these occasions hand over the contents of the safe to the president formally. There was evidence that once when the secretary or treasurer was away the president and the other officer signed for some money at Konongo. The second accused submitted that there is a strong probability that these shortages must have occurred during the time he was away. It was during the peak of the cocoa buying season that the second accused kept leaving the key to the president. In December 1960, quite a lot of money was taken out for the union by the Bomfa Society. A few days before the second accused left for Cairo, i.e. on the 24th January, 1961, an amount of £G7,000 had been taken from the union for the society. If all these moneys were not properly handed over, then of course no one can say whether this was the period when the shortage was realised. Upon the authorities, when an accused person gives an explanation in answer to a charge, if the explanation is found to be true, or even if, short of being true,
it throws a reasonable doubt on the case for the prosecution the accused is entitled to an acquittal.
Upon the whole of the evidence I find that the explanation of the second accused has not been seriously challenged at all (the president of the society is, unfortunately, dead), and I find it quite reasonable. I therefore find that second accused is not guilty on the count of stealing £G7,511 17s. 11d. and I acquit him thereon and discharge him. In this I agree with the majority opinion of the assessors. In considering his case, I must observe, I have considered the authorities of C.O.P. v. Vyras5(5); C.O.P. v. Bediako6(6) ; R. v. Okorodudu7(7) and C.O.P. v. Dimbie.8(8)
Now to the charge against the first accused that he has stolen £G7,511 17s. 11d. The facts against him are that he was at the material dates the secretary of the Bomfa Co-operative Society. As such he received
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moneys from the Ashanti-Akim Union, called the Union in short, which he used in running the business of purchasing cocoa for the Bomfa Society. This money for which he and the treasurer of the society are the responsible custodians is kept in the society’s safe for which there are two keys, one in the keeping of the treasurer and the other with the first accused. The safe cannot be opened without the use of both keys.
Sometime in August 1961, one Stephen Tete Maulepe made an audit of the accounts of the first accused (whose sole duty it was to keep the books of the society), and it was as a consequence of this audit that this charge was laid against the first accused. Before this the accused himself had gone into his books and discovered that he was about £G5,000 short. It was in consequence of his own report of this shortage that the audit of Maulepe was ordered which showed that £G7,511 17s. 11d. was the actual amount short. At that time the treasurer who had the other key was nowhere to be found, so Mr. Maulepe did not check the cash. It appeared, however, that the accused himself admitted that the cash was not there to be produced. He therefore arranged with the committee to have this amount of £G7,511 17s. 11d. together with interest at 10 per cent paid by instalments. A mortgage document which was prepared in accordance with this arrangement was, however, not signed by the president of the society.
When the accused could not produce the money and was questioned about it, he could not satisfactorily explain how the shortage occurred. That was before Mr. Maulepe. But here in court he has offered some explanation which I shall consider in a moment.
I mentioned the case of C.O.P. v. Vyras.9(9) That was the case of a wholesale-keeper for A. G. Leventis who sold some stock for cash and received the money for and on behalf of his employers. But he did not enter these sales and cash receipts in the appropriate books at all. At a general stock-taking a deficit of £G1,504 was found. It was observed in the course of the judgment of the Appeal Court as follows: “If it is not possible, as a result of an enquiry resulting therefrom, to trace or establish how the shortage occurred, then that would be a general deficiency and the storekeeper is not liable to a criminal conviction; but once there is shortage, and evidence of the means whereby it was effected is established, or if there be evidence of misappropriation relating to specific transaction which contributed to the shortage the case assumes a different character and the storekeeper is liable to a criminal prosecution in respect of the specific transactions.”
In that case Vyras made certain specific cash sales for which he received the money but he did not make due entries in his books. Consequently he did not pay the moneys over to his employers. The prosecution having established the means whereby the shortage arose it was for Vyras to explain the absence of the money. But he could not explain. The Court of Appeal upheld his conviction in the circumstances.
In this case no specific items have been alleged to have been misappropriated and the prosecution have not alleged how the shortage occurred. It will appear therefore that criminal responsibility cannot fall on the accused.
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In Rex v. Okorodudu the West African Court of Appeal said as follows: “It is clear that the mere omission to pay over moneys received by a clerk or servant does not suffice to show a conversion, nor does the mere fact of there being deficiency as shown by the accounts, for he may have done no more than fail properly to enter items of disbursement in his books, or may have lost the money by negligence, or have spent it on his master’s account. There must, therefore, be some evidence that the particular amount specified was misappropriated at a particular date and place.”10(10)
In fact in his defence the accused was saying that the shortage was due in part to his own carelessness, his own mistake, and in part to the risks in the cocoa business which he ought to have been careful to guard against. Again, this explanation was not seriously challenged. In fact much of it was elicited by leading questions which were not objected to by the prosecution. This is a criminal case and so I did not interfere. It may be that even the prosecution knew the explanation of the accused to be probably true.
The explanation as to dishonest appropriation is contained in section 120 of the Criminal Code, 1960,11(11) which says:
“(1) An appropriation of a thing is dishonest if it is made with an intent to defraud or if it is made by a person without claim of right, and with a knowledge or belief that the appropriation is without the consent of some person for whom he is trustee or who is owner of the thing, as the case may be, or that the appropriation would, if known to any such person, be without his consent.
(2) It is not necessary, in order to constitute a dishonest appropriation of a thing, that the accused person should know who is the owner of the thing, but it suffices if he has reason to know or believe that some other person, whether certain or uncertain, is interested therein or entitled thereto, whether as owner in his own right, or by operation of law, or in any other manner; a any person so interested in or entitled to a thing is an owner thereof for all the purposes of the provisions of this Code relating to criminal misappropriations and frauds.”
It seems to me that illustration (a) to subsection (1) applies to the instant case, viz: “A., a commercial traveller, is directed to collect moneys for his employer. If he is at liberty to spend or dispose of the particular moneys which he collects, and is only bound to account for the balance in his hands at particular times or when called upon, he does not commit stealing or fraudulent breach of trust merely by spending any or all of the moneys collected by him, unless there is an intent to defraud.”
Here again the prosecution have singularly failed to prove this necessary intent to defraud.
Finally I must refer to the case of Bediako v. C.O.P.12(12) the facts of which are almost the same as in this case. With the greatest respect I find myself in agreement with the reasoning in that judgment and I adopt it in whole as my guide. In this case too, the accused has been charged with stealing cash equivalent to the balance standing in his books. He has given various reasons to explain the shortage.
I think that those reasons are reasonably probable.
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In the final result therefore, I find the accused not guilt of the charge of stealing this sum of £G7, 511 17s. 11d. and acquit and discharge them. In this too I agree with the majority opinion of the assessors.
Let me end with this general observation. I think that both accused persons are lucky to be out of this criminal responsibility. In my view it was due partly to the haphazard way in which the case was investigated and prosecuted, and partly to the absence, through death, of the president of the society.
There is no doubt, however, as to the civil responsibility of the accused persons with regard to this money, and I hope that suitable arrangements would be made in that regard.
DECISION
Accused acquitted and dischaged.
