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GOVERNOR TEGHWETE EJARUNE
LAGOS. 25TH FEBRUARY, 1954
BEFORE THEIR LORDSHIPS:
VERITY, C.J. (NIGERIA), AND COUSSEY, J.A.
GOVERNOR TEGHWETE EJARUNE . Appellant
THE QUEEN Respondent
CRIMINAL LAW:– Theft and Conversion of money – Stealing by clerk/produce buyer – Money drawn outside authorised credit –using misrepresentation Criminal Code, section 385, proviso – How treated .
DEBTOR AND CREDITOR:- Agreement for grant of limited credit – Produce buyer for company – Misrepresentation inducing a grant beyond limit – Whether amounts to theft and fraudulent conversion or a debt to be paid back – How treated
PRACTICE AND PROCEDURE – EVIDENCE:- Expert witness – How determined
SUMMARY OF FACTS AND JUDGMENT
Appellant, a produce buyer in the employ of a company, had an agreement which authorised him certain credits for buying produce with on the company’s premises for cash. Contrary to the agreement he drew further amounts, which were given to him in the belief that they were to be used by him for cash purchases; these he did not enter in the company’s cash book at the time of drawing the amounts but only after he had represented to the managers at a checking that he had given those amounts out as advances to two persons to bring in produce so that he might recoup losses incurred by the company and by himself of money of his own which he said he had used. In fact these persons never materialised. The trial judge was of the view that the appellant had put those amounts in his pocket and had not given them out as he said, and in any case had converted the money to his own use. The judge convicted the appellant of theft.
He appealed, arguing that there was no fraudulent conversion and that it was a case of debtor and creditor transaction within the proviso to section 385 of the Criminal Code (relevant text in judgment infra).
Held: The amounts had been obtained by the appellant outside the terms of his agreement and could not be treated as items in his account; but the fact was that he had pocketed the money.
Appeal by convicted person: No. 253/1953.
The following judgment was delivered:
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 complainants 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 evidence that the witness was “specially skilled“ in this subject so as to warrant his being treated as an “expert“ within the meaning of section 56 of the Evidence Ordinance (Cap. 63). The witness gave evidence that he was an Inspector of Mines under the Minerals Ordinance (Cap. 134) and that he made certain tests in order to ascertain the nature of the ores in question. He was not cross-examined as to his personal qualifications, as to his ability to make these tests or as to the accuracy of the conclusions he drew therefrom. It is clear that he was put forward by the prosecution as an expert, his qualifications were not questioned by the defence and he was accepted as such by the Magistrate. The question was raised for the fast time at the appeal to the Supreme Court and the learned judge in a carefully considered judgment held that there was sufficient evidence of special skill to justify the admission in evidence of the witness’s opinion. We think that he was right. The nature and duties of the witness’s public office and the conduct by him of technical or scientific tests the nature and efficiency of which have not even now been challenged constitute in our opinion prima facie evidence of his qualifications sufficient to justify the admission of his evidence as that of an expert.
It was further submitted that the duties of his office are such that even if held to be an expert he should not have been admitted to give evidence as such. Counsel did not press this submission and we do not think it well founded.
These being the only grounds of appeal argued and both having failed we dismissed the appeal.