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OGEDENGBE MACAULAY
V.
INSPECTOR-GENERAL OF POLICE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
28TH DAY OF MAY, 1954
APPEAL NO. 265/1953
2PLR/1954/85 (WACA)
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OTHER CITATION(S)
2PLR/1954/85 (WACA)
(1954) XIV WACA PP. 546-548
LEX (1954) – XIV WACA 546-548
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
DE COMARMOND, Ag. C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
OGEDENGBE MACAULAY – Appellant
AND
INSPECTOR-GENERAL OF POLICE – Respondent
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ORIGINATING COURT(S)
Appeal from decision of the Supreme Court
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REPRESENTATION
Moore — for the Appellant
C. A. Burton, Crown Counsel — for the Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:– False pretences – Criminal Code, sections 419 and 420 – Allegation of obtaining a sum of money – Money paid by cheque Pretence of ability to influence certain Councillors – Not all Councillors called. Criminal Procedure Ordinance, sections 167 and 168.
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CASE SUMMARY
Sections 167 and 168 (so far as relevant) of the Criminal Procedure Ordinance provide as follows:-
“167. Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later,
“168. No judgment shall be stayed or reversed on the ground of any objection which if stated after the charge was read over to the accused or during the progress of the trial might have been amended by the Court, etc.” The appellant was convicted of obtaining a sum of money from J., the false pretence being that he was in a position to influence Councillors to get an allocation of bus route permits for J. and that certain Councillors of the Town Council had informed the appellant that they would give J. bus route permits if he paid so much for each.
J., believing the pretence, gave a cheque to the appellant, who then gave J. a receipt for the sum on the cheque as “money received by cheque”; and the appellant paid the cheque into his bank account. The prosecution also called three of the Town Councillors to prove that the pretence was false.
It was argued for the appellant that it was wrong to convict him of obtaining money under section 419 of the Criminal Code, and that he ought to have been charged with an offence under section 420 of the Code.
Section 419 speaks of obtaining “from any other person anything capable of being stolen” or inducing “any other person to deliver to any person anything capable of being stolen”.
Section 420 speaks of inducing any person to execute, make, etc., any valuable security (which is defined in section 1 of the Code to include “any document which is the property of any person, and which is evidence of the ownership of any property or of the right to recover or receive any property”).
The other submission was that all the Councillors ought to have been called to negative the pretence.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
(1) The appellant asked for money; there was no inducement to the complainant to make out a cheque; the charge was therefore properly laid under section 419 of the Code.
(2) The appellant not having objected, as he could have done under section 167 of the Criminal Procedure Ordinance, to the omission of the word “cheque” from the charge, if he thought be would be prejudiced in his defence, section 168 of the Ordinance was applicable.
(3) The pretence alleged and the evidence was that the appellant could see the proper Councillors who were his friends and (naming them) to get the permits through; and by calling three Councillors the prosecution sufficiently proved the substance of the pretence to be false.
Cases cited:-
(1) R. v. Smith, (1952), All E.R. 679.
(2) Regina v. Davenport, (1954), 1 W.L.R. 569.
(3) Foley v. Hill (1848), 2 H.L. cases 28.
(4) R. v. Rouse, 4 Cox C.C. 7.
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MAIN JUDGMENT
The following judgment was delivered:
COUSSEY, J. A.
The appellant was convicted, on a charge under section 419 of the Criminal Code, of obtaining the sum of £50 from one J. M. Jazzar by certain false pretences and with intent to defraud, namely that the appellant was in a position to influence Councillors to get an allocation of bus route permits for Jazzar and that certain Councillors of the Lagos Town Council had informed the appellant that they would give Jazzar bus route permits if he paid £100 for each permit.
On appeal to the Supreme Court the conviction was confirmed and the appellant now appeals to this Court on two grounds which were both considered and rejected by the learned Judge in dismissing his appeal.
The facts relevant to the first ground of appeal are that Jazzar, believing the false pretences averred, issued a cheque in the appellant’s favour for the sum of £50. The appellant thereupon made out a receipt for the sum of £50 as “money received by cheque”. It was proved by the prosecution that the cheque was presented by the appellant in person at his bank and the amount thereof was paid into his account on or about the day of issue.
On these facts Mr. Moore cited R. v. Smith (1) and submits that the appellant might have been charged under section 420 of the Criminal Code with obtaining a valuable security, to wit, a cheque for the sum of £50. He argues that the evidence shows that the appellant obtained a cheque and not £50 in money from Jazzar; that the relationship between Jazzar and the bank was that of creditor and debtor and not of principal and agent and that the conviction under section 419 of obtaining money, the sum of £50, from Jazzar is not supported by the evidence and is therefore wrong.
Section 419 of the Criminal Code relates to obtaining anything capable of being stolen or inducing another to deliver anything capable of being stolen whilst section 420 relates to inducing another by any false pretence, etc., to execute, make … the whole or part of a valuable security or to write or impress any name or impress or affix any seal to a paper, etc. so that it may be converted into or dealt with as a valuable security. “Valuable security” as defined in the Criminal Code “includes any document which is the property of any person, and which is evidence of the ownership of any property or of the right to recover or receive any property.”
In this case the evidence is that the appellant asked for £100 for each permit; there was no inducement to the complainant to make out a cheque and the charge, in my opinion, therefore was properly laid under section 419.
To support his submission that a banker is the customer’s debtor but not agent, Mr. Moore invited the Court to consider Regina v. Davenport (2), the report of which was not available to him when he argued the appeal. In that case the Lord Chief Justice says the leading case of Foley v. Hill (3) exploded the idea that the relationship of banker and customer is that of agent and principal. In Regina v. Davenport (2) the appellant was convicted of larceny as a servant of moneys obtained by filling in blank cheques signed by the directors of his employees. So far as it is relevant to the present case, it was held by the Court of Criminal Appeal that there was no larceny because there was no asportation of the company’s money. The appellant caused the company’s bank account to be debited with the amounts at the bank but the bank was paying out its own moneys against the company’s deposit and therefore there was no theft of the moneys, although, if the appellant bad been charged with fraudulent conversion there would have been no answer to the charge. That case states the position of a banker in a case of larceny where asportation of the money or goods charged is an important ingredient of the offence. It does not appear to me to be applicable in the present case for in false pretences, unlike larceny, it is the owner’s intention to part with the property in the thing.
It is true that the actual coin did not pass from Jazzar to the appellant but the appellant, by his receipt before be cashed the cheque, himself acknowledged the cheque as money. The cheque was the authority upon which be obtained the money from the bank. There is no question of asportation. To employ the language used in R. v. Rouse (4), the bank “was merely the mechanical medium for payment”.
In this case, the only defect in the charge that could be pointed to is the omission of the word “cheque” after the word “obtaining”. This would be a mere alteration of the description of the thing obtained. In substance the charge would be the same.
The appellant could, if he thought he would be prejudiced in his defence, have taken an objection to the charge under section 167 of the Criminal Procedure Ordinance and, having failed to do so, section 168 is applicable.
In our view, however, there is no substance in the point taken. If there were it would be a proper case in which to apply the proviso to section 11(1) of the West African Court of Appeal Ordinance.
Mr. Moore’s second point is that the falsity of the false pretence was not established because three only, out of the twenty-four Councillors, were called by the prosecution to negative the pretence, whereas in his submission all should have been called to give evidence. This argument disregards the wording of the charge and it also disregards the evidence which was accepted by the Court. The appellant did not give evidence. In setting out the pretence the number of Councillors is not stated. Nowhere in the evidence is it suggested that the appellant claimed to have influence over all the Councillors, and, as the learned Judge on appeal observed, the number might be two or more.
But the effect of the evidence of Jazzar and the witness Davies is that the appellant confided to him that some Councillors who bad already taken money from the complainant were not the proper people, able to get the permits, but that the appellant could see the proper people who were his mends (and naming them) to get the permits through. This is the essential fact in the case without which pretence the appellant could not have obtained the money. By calling three of the Councillors the prosecution sufficiently proved the substance of the pretence to be false. It was not essential to go farther.
For these reasons this appeal must be dismissed.
Appeal dismissed.
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