(1963) All N.L.R 295
In The Supreme Court of Nigeria
On Friday, the 25th day of October, 1963
Before Their Lordships
ADEMOLA ADETOKUNBO C.J.N Justice of The Supreme Court of Nigeria
JOHN IDOWU CONRAD TAYLOR Justice of The Supreme Court of Nigeria
BAIRAMIAN J.J.S.C Justice of The Supreme Court of Nigeria
JUBILEE STEPHEN KWESI SAGOE
The appellant was convicted on a count of stealing laid under section 390 (8) (c) of the Criminal Code and stating in the Particulars that he: “between the 30th day of June, 1960 and the 4th day of April, 1961, at Lagos stole three thousand pounds (#3,000) which had been received by you for and on account of Fourah Bay College Sierra Leone, now known as the University College of Sierra Leone”
Under a certain will, the Federal Public Trustee had to pay #10,000 to the College. The College sent the appellant a power of attorney to collect the money, and to act as solicitor in the matter, if necessary. He received #7,000 on June the 29th, 1960, and paid it into his private account at his bank, which then stood with a debit of #1’974.7d. On the 2nd July he drew a cheque for ‘a3670, to pay for a car, knowing that it would be met out of the money he had received for the College; and he spent some more of that money. On the 22nd July, 1960, he received the balance of#3000. He went on spending out of the College money.
Writing to the College on 11th July, 1960, the appellant did not mention the fact that he had received #7,000. He sent #7,000 on the 30th August, 1960, but did not inform the College that he had received the balance of #3,000. It was not until the 13th November, 1961, that he wrote to inform the College about his having received that balance; he added that his “fees for handling the transaction is #1,500”. The Bursar of the College wrote asking him for details of how the fees were made up. Things came to a head in March, 1962; the Police stepped in; he stated to them that his fees would be #1,250, that he had sent #250, and would in a week send the #1,500 remaining due to the College. He asked his uncle for a cheque for #1,500 on loan and sent that amount to the fact that he had received #7,000. He sent #7,000 on the 30th August, 1960, but College.
The appellant had not made any agreement on fees; he had no discussion about them, and they were never settled between him and the College. He said he had several interviews with the Public Trustee; beyond that and receiving the money, he did nothing else. That he behaved dishonestly, there can be no doubt: he was spending money he had received for the College, and keeping the College in the dark for as long as he could. The College wrote a number of letters asking about the money; he denied receiving them; but (although there is every reason to think that he must have been receiving and ignoring them) it is immaterial whether or not he received those letters: his plain duty was in July, 1960, to inform the College that he had received all the money and arrange about ms claim of remuneration. Instead of that, when sending #7,000 at the end of August, 1960, he concealed the fact that he had also received the remaining #3,000. He kept on spending out of the money he had received for the College in his bank account, and on the 4th April, 1961, his account stood at #7’9715.8d.
The learned trial Judge (Lambo, J.) did not believe his story that he had over #1,000 in cash in his chambers. One ground of appeal complains on that score; in the Courts view there is no substance in that complaint. The other grounds relating to the facts were not argued.
The main argument is that the appellant, who is a legal practitioner, was acting both as attorney and as solicitor: (a) that he had a right of lien; and (b) that if it was limited to what the College owed him as solicitor, he was not guilty of stealing on the ground that he honestly believed he had a right to spend, and the trial judge erred in his view that the appellant had no right to retain, or, if he had, that this right was limited to what was due to him as solicitor. His learned counsel referred to:-
(1 Section 383 of the Criminal Code;
(2) R. v. Norman, 1842, Car. and M. 501; 174 Eng. R. 608.
(3) Halsbury’s Laws of England, 3rd ed., vol. 36, p.173, para. 237, on Solicitors and their Lien.
That paragraph in Halsbury reads as follows:
“237. Solicitor’s rights. At common law a solicitor has two rights which are termed liens (q). The first is a right to retain property already in his possession until he shall have been paid costs due to him in his professional capacity (r ).. and the second is a right to ask the court to direct that personal property recovered under a judgement obtained by his exertions stands as security for his costs of such recovery (s). In addition, a solicitor has by statute a right to apply to the court for a charging order on property recovered or preserved through his instrumentality in respect of his taxed costs of the suit, matter, or proceeding prosecuted or defended by him”
(The footnotes are not copied).
Presumably it is the first right that is relied upon, and in that respect it should be noted that the lien is for costs due to the solicitor in his professional capacity. Lambo, J. took the view that the appellant did not do anything which could be rightly stescribed as professional solicitor’91s work giving rise to a claim for costs, and could not have any right of lien. The learned Judge also gave an alternative view, namely, that if the appellant had any right of lien, it was limited to what was due to him. This is common sense: one cannot retain #3,000 in its entirety when one’91s claim is for much less. In footnote (m) to para. 238 in Halsbury, at p. 174, it is stated that:
“But, since money is divisible, the solicitor can have a right to retain only such part as is equal to the sum justly due to him”.
On any view, the appellant had no right to retain #3,000.
In passing, it is desirable to note that in the Court’s view learned counsel for the appellant advanced a dangerous proposition: that a solicitor may spend money to which he claims a lien, and if it turns out that the amount he thought he was entitled to was more than was justly due to him, he could refund the excess. His proper course is to have his remuneration settled whether by negotiation with his client or by appropriate proceedings in the first instance.
Subsection (2) of section 383 of our Code provides (in part) that:-
“A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents
(f) In the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.”
There is also subsecticm (3) to bear in mind, that:-
“The taking or conversion may be fraudulent, although it is effected without secrecy or attempt at concealment.”
In R. v. Norman (supra) freight was paid for 215 tons, but the master of the ship retained the portion falling to five tons, alleging that the weight was 210 tons and that it was the custom for the master to retain the excess freight paid. There was no evidence either of weight or of custom. At the trial the judge said that embezzlement involved secrecy, and if a person admitted appropriating some money and alleged a right for retaining it, he was not guilty of embezzlement. Whether R. v. Norman can serve as an authority under our Criminal Code need not be discussed: the facts here are different. The appellant was guilty of secrecy: he concealed from the College for a very long time that he had recieved the balance of ‘a33,000 from the Public Trustee. Had he honestly believed that he was entitled to retain it, he would, when sending the ‘a37,000 at the end of August, 1960, have informed the College that he had also received the balance of ‘a33,000, and made his claim to remuneration; and his claim beingÂ Â #1,500 or #1,250 (it is not clear which, but be it assumed that it was #1,500), he would have sent #1,500 out of the ‘a33,000 when sending the #7,000. The fact is, however, that he had begun spending out of the College money, and wished to go on using it for his own purposes. On the most favourable view advanced in his behalf, he knowingly stole #1,500 and a portion of the #3,000 stated in the particulars of the charge.
When that became apparent in the course of the argument for the appellant, his learned counsel did not submit that the conviction could not stand. We think it can.
In R. v. Tyson, 11 W.A.C.A., 90, the defendant was tried on a count which alleged that he had stolen twelve permits; the trial judge gave him the benefit of the doubt on nine, but was satisfied on three, and convicted him of stealing on the count as it stood. It was argued in his appeal that the conviction could not stand, but it was upheld on the ground that it was a divisible charge, and he could be convicted on part of it. The Court of Appeal referred to a passage in Archbold, which can be found in paragraph 1526 of the 1962 edition; it reads:-
“It is not necessary that the prosecutor should prove all the articles mentioned in the indictment to have been stolen; if he proves the prisoner to have stolen anyone of them, it is sufficient.”
Archbold does not say that the indictment needs amendment. Money is divisible, and the like reasoning applies to a count which alleges the theft of #3,000, if it is proved that the defendant stole #1,500 of the amount alleged. For example, in R. v. Williams, 1834, 6 Car. -and P. 626, 172 E.R. 1393, the defendant was charged with embezzlement of a certain amount; upon its appearing that it was made up of several items, the presiding judge, after consulting the Judges in the next court, told the prosecutor that he must make his election and confine the evidence to one item; the defendant was convicted. There is no suggestion in the report that there was any amendment of the charge. In recent years, there was the case of R. v. Lawson, 36 Cr. App. R. 30. The defendant was a solicitor; she was accused on several counts of fraudulent conversion of her clients’ moneys, each count alleging the amount of the general balance appearing due to a particular client. After hearing argument, Lynskey, J. said at p.37,
“In a case of this kind, if the jury accept the evidence, it seems to me that there is ample material on which they can find that there was a fraudulent conversion of part, at least, of the property named in each count on one date.. In my opinion, this is a proper case for the indictment to go forward in this form.”
(We have underlined the words bearing on the point in hand.) That ruling was approved by the Court of Criminal Appeal in R. v. Tomlin, 38 Cr. App. R. 82 at p. 89;  2 Q.B. 274, at p. 281; it will be enough to quote this sentence:
“On the view taken by the jury there was clearly a conversion, or rather an embezzlement, of one part of the aggregate at one time.”
There is no suggestion that the indictment needed amendment, or was amended at any stage in either of those cases. We conclude (although without the benefit or argument on either side) that when a person is charged with stealing (to use the appropriate term in the Criminal Code) and the evidence proves that he was guilty of stealing a part of the amount of money alleged in the Particulars of the charge or count, he may be convicted without amendment of the amount alleged. Consequently, without dissenting from Lambo J., whose finding was that the appellant stole the entire #3,000, we think there is no need to discuss the soundness of his finding, as on the most favourable view advanced for the appellant, he was guilty of stealing #1,500 of that amount, and the conviction can stand.
The learned trial judge passed a term of three years on the appellant; his learned counsel has asked that his appeal against sentence be allowed, on the ground that he is bound to be dealt with professionally. The disciplinary measures which may follow are not to be regarded as additional punishment: they relate to his fitness to continue being a member of an honourable profession; and they have no bearing on the sentence passed on the appellant for stealing.
The appeal against conviction is dismissed; and leave to appeal against sentence is refused.
Chief O. Moore G.C. (with him F.O. Akenrele, Miss Ebube and Odubayo)
C.H.E. Miller (with him Mrs. Omotosho)