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JOHN BROWN AKOSA
V.
THE COMMISSIONER OF POLICE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
12TH DAY OF APRIL, 1950
2PLR/1950/13 (WACA)
OTHER CITATION(S)
2PLR/1950/13 (WACA)
(1950) XIII WACA PP. 43 – 44
LEX (1950) – XIII WACA 43 – 44
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BEFORE THEIR LORDSHIPS:
BLACKALL, P.
LEWEY, J.A.
ADEMOLA, J.
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BETWEEN:
JOHN BROWN AKOSA – Appellant
AND
THE COMMISSIONER OF POLICE – Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. CRIM.APP.3184/50.
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REPRESENTATION
Mbanefo — for the Appellant
Amachree, Crown Counsel — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Restitution order in respect of stolen property – Rule that identification of property necessary but may be proved circumstantially – rule that burden of proof of introducing evidence rests on prosecution but may subsequently shift to the accused – Distinction between theft and false pretences – How treated
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CASE SUMMARY
The appellant, who was convicted of stealing, appealed against a restitution order in respect of the sum of £426 currency notes. The evidence established that by means of forged vouchers the appellant received £450 in currency notes. Subsequently, £426 in currency notes were found in his house, some of them tied up in bank wrappers. The notes had been handed to the appellant by the bank cashier in bank wrappers. Counsel for the appellant contended that there was no obligation on the part of the appellant to give any explanation about the money as the onus was on the Crown to prove the identity of the notes.
This Court also considered whether the appellant was guilty of theft or false pretences.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal but varying the conviction) that:
1. the burden is on the Crown to prove the identity of property in respect of which a restitution order is made, but although the burden of introducing evidence rests on the Crown in the first instance, it may subsequently shift to the defence. In the circumstances of this case the onus had shifted to the appellant and he had not discharged it.
2. where a person, through the fraudulent representation of another, delivers to him a chattel, intending to pass the property in it, the latter cannot be indicted for larceny, but is guilty of false pretences. This was what happened in this case and the appellant was not guilty of theft, but of false pretences.
Case referred to:
(1) Powell v. Hoyland, 6 Ex. 67 at 70.
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MAIN JUDGMENT
The following Judgement was delivered:
BLACKALL, P.
The appellant in this case was convicted of stealing. He has not appealed against his conviction but only against the order of restitution made by the Court in respect of a sum of £426 in currency notes.
The law on this matter is clear, namely, that the property must be identified before a Restitution Order can be made. The question for this Court, then, is whether there was evidence upon which the learned trial Judge could conclude that the notes were sufficiently identified.
The evidence shows that the appellant produced forged vouchers to the Treasury in consequence of which he was given two cheques to cash at the bank al the B.W.A. It was proved that be received £450 in notes. His house was subsequently searched and a sum of £426 in notes was found, some of them tied up in bank wrappers. The evidence of the bank cashier was that there were a number of bundles of £50 each, but when they were found, two of the bundles contained £100 each, but those bundles were simply tied together with string, indicating they were put together later. The appellant was asked by the police where he got these large sums of notes from, and he replied they were the proceeds of a lorry which he had sold, but he did not produce any evidence of such a sale. It was contended by Mr. Mbanefo that there was no obligation upon the appellant to give any explanation about this money, as the onus of proof rested all the time on the Crown to prove the identity of the notes. As to this, the burden of proof is used in two senses which are sometimes confused. “The expression may mean the burden of establishing of a case or it may mean the burden of introducing evidence. In the first sense it always rests on the prosecution, who must prove the guilt of the accused beyond reasonable doubt; but the burden of proof in the second sense, i.e. of introducing evidence, rests on the prosecution in the first instance but may subsequently shift to the defence; for example, where the subject matter is peculiarly within the accused’s knowledge. In the present case, the circumstances were such, in our opinion, as to call for some explanation. The explanation he gave was one which the Court, in our view, quite justifiably did not accept. This ground of appeal, which was the only one argued, therefore, fails.
The appellant, as I have already said, was charged and convicted of stealing, but in the opinion of this Court the charge should have been one of obtaining by false pretences. “If,” said Parke, B., “a person through the fraudulent representations of another, delivers to him a chattel, intending to pass the property in it, the latter cannot be indicted for larceny, but only for obtaining the chattel under false pretences” (Powell v. Hoyland (1)). That, in our opinion, is what happened in the present case. The appellant by the production of a forged voucher falsely pretended that he was entitled to the amount in question, and in consequence of that false pretence the Treasury Clerk gave him a cheque in the course of his duty intending to pass not only the possession but the property. This being so, this Court substitutes for the verdict “guilty of stealing” of the Court below, a verdict of “guilty of obtaining money by false pretences”. The sentence of four years’ hard labour passed by the trial Court is affirmed. The appeal in regard to the restitution of the money is dismissed.
Appeal dismissed but conviction varied. Verdict of guilty of obtaining money by false pretences substituted.
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