OMOTOSHO JACOB VS COMMISSIONER OF POLICE

OMOTOSHO JACOB VS COMMISSIONER OF POLICE

(1961) LCN/0149(SC)

In the Supreme Court of Nigeria

January 9, 1961


Case N
umber: FSC 286/1961

 

JUSTICES:

ADEMOLA, CHIEF JUSTICE, NIGERIA

UNSWORTH, JUSTICE, SUPREME COURT

TAYLOR, JUSTICE, SUPREME COURT

 

APPELLANTS

JACOB OMOTOSHO

RESPONDENTS

COMMISSIONER OF POLICE

 

RATIONES

FALSE PRETENSE

“…It is immaterial in a charge for attempting to obtain by false pretence that the complainant could not have been deceived by the pretences made or that the false pretences could not have operated on his mind to give the money…” Per Ademola C.J.F

THE OFFENCE OF DEMANDING PROPERTY WITH MENACES WITH INTENT TO STEAL.

“…section 406 covers demands made by the offender for himself or for others with a view to steal so long as such demands are accompanied by threats of any injury or detriment of any kind if the demands are not complied with…” Per Ademola C.J.F

 

ADEMOLA, C.J.F (Delivering the Judgment of the Court)

The appellant, who at the material time was a Police

Constable, was convicted in the Chief Magistrates Court at Ibadan on charges containing three counts, namely, (1) with intent to steal demanded the sum of f20 from one Dehinde Ogun with threats, contra Section 406 of the Criminal Code; (2) corruptly received for one Inspector of Police the said sum of £20 from Dehinde Ogun with a view to corrupt or improperly interfere with the due administration of justice contra Section 116(1) of the Criminal Code, and (3) with intent to defraud, did obtain the said sum of £20 from the said Dehinde Ogun by falsely pretending that he was sent by an Inspector of Police in order not to prosecute the said Dehinde Ogun for an offence contra Section 419 of the Criminal Code. On this count the learned Magistrate convicted him of attempt.

The facts as alleged are that on 10th September, 1960, the appellant went to the University College Hospital, Ibadan, where he told Mr.. Dehinde Ogun that he was investigating into an allegation made against him that he had obtained employment as a clerk with the Hospital Authorities by falsely stating that he had passed Class IV examination. With Mr.. Ogun the appellant saw the Establishment and Training Officer who showed Mr.. Ogun’s application to the appellant and assured him that Mr.. Ogun had never pretended to the Hospital Authorities that he had at any time passed Class IV. The appellant took Ogun to the Police Station before Inspector Obiagwu where Ogun wrote out a statement and was later allowed bail in his own recognizance and warned to return on 12th September. As Ogun left the Police Station, the appellant followed him. He told Ogun that the Inspector had instructed him to charge Ogun for obtaining employment on a false certificate and unless he paid money to the Inspector, he would be so charged. He was asked to pay £5 down and he would be told later what balance he would have to pay. As Ogun said he had no money to pay that day he was allowed to go. When he returned to the Police Station two days later (12th September) he was told by the appellant that the Inspector had asked for £20. Ogun said he would pay the amount at a more convenient time. Meanwhile, Inspector Obiagwu saw Ogun and told him to go away and come back after he had closed from the office. The appellant persisted in his demand and went to see Ogun in his office several times. He said the Inspector was now demanding £50. Subsequently Ogun contacted the Police. He was given 20 marked pound notes. When the appellant came again he demanded the money from Ogun. Ogun told him he would give £20 then and the balance would be paid later. He then handed the 20 marked currency notes to the appellant who took them. As he went a few yards he was arrested by two Police Constable who had been waiting to surprise him.

The appellant did not succeed in his appeal to the High Court and this is a second appeal. The six grounds of appeal filed and argued before us are as follows:–

1.The learned Judge erred in Law in not holding that the learned trial Chief Magistrate erred in Law in convicting the appellant of an offence under Section 406 of the Criminal Code when the evidence does not support an offence under Section 406 of the Criminal Code.

2.The learned Judge erred in Law in not holding that the learned trial Chief Magistrate erred in Law in convicting the appellant of an offence under Section 406 when the evidence does not support the particulars as laid in the charge.

3.The learned Judge erred in Law in not holding that the learned trial Chief Magistrate erred in Law in convicting the appellant of an offence under Section 116(1) of the Criminal Code when the evidence does not support an offence under Section 116(1) of the Criminal Code.

4.The teamed Judge erred in Law in not holding that the learned trial Chief Magistrate erred in Law in convicting the appellant of an offence under Section 116(1) of the Criminal Code when the evidence does not support the charge.

5.The learned Judge erred in Law in not holding that the learned trial Chief Magistrate erred in Law in convicting the appellant of an attempt to obtain money under false pretences when the false pretence alleged in the charge is not such as would operate on the complainant Dehinde Ogun to part with the possession and property in the alleged sum of £20.

6.The learned Judge erred in Law in not holding that the learned trial Chief Magistrate erred in Law in convicting the appellant of an attempt to obtain money under false pretences when the charge does not disclose an offence under Section 419 of the Criminal Code.

Arguing the first two grounds, Counsel submitted that the offence contemplated by section 406 of the Criminal Code relates to demands made for oneself with intent to steal and not demands made for or on behalf of another. The demand in this case having been made for the Inspector of Police, this Section of the Code, it was submitted, would not apply. Section 406 of the Criminal Code reads:–

406.Any person who, with intent to steal anything, demands it from any person with threats of any injury or detriment of any kind to be caused to him, either by the offender or by any other person, if the demand is not complied with, is guilty of a felony, and is liable to imprisonment for three years.

We must reject this argument; we hold the view that the section covers demands made by the offender for himself or for others with a view to steal so long as such demands are accompanied by threats of any injury or detriment of any kind if the demands are not complied with. In the present case, however, it is clear that the threats could not and did not in any way operate on the complainant as he was not only aware that he had committed no offence for which he could be prosecuted, but he was also aware, according to evidence, that the appellant knew very well that he had committed no offence.

Although the appellant might have committed an offence, it is certainly not an offence under section 406 of the Criminal Code. We therefore hold he was wrongly convicted under this count.

With regard to the offence charged under section 116(1) of the Criminal Code in the second count, it was argued that the appellant could not be properly convicted on this count since it was clear to the complainant himself that he had not committed an offence, namely, that he had not stated in obtaining his employment that he had passed Class IV examination. Counsel relied on the case R. v. Romanus Ezejiogu, 10. W.A.C. A. 230, and Inspector-General of Police v. Clement Alashi, 4 F.S.C. 216. In these two cases it was held that section 116(1) of the Criminal Code does not apply to cases where there is no ground for a suggestion that an actual offence had been committed by the persons from whom money was demanded. Learned Senior Crown Counsel, in supporting this conviction, submitted that the knowledge of the person threatened is immaterial so long as it is clear from evidence that there was an allegation that an offence was committed and there was the possibility of a prosecution. In Rex v. Ezejiogu (supra) a Police Constable was convicted under section 116(1) of the Criminal Code for corruptly receiving 30s and a watch from a person in order not to arrest him for buying a watch from a trader without receipt, falsely alleging that three was a new law which made that person’s omission to take a receipt punishable. On appeal, the conviction was quashed. Section 116(1) of the Criminal Code does not apply to cases where there is no ground for a suggestion that an actual offence has been committed by the person from whom money was demanded.

In R. v. Alashi (supra) where a constable falsely alleged that permission was necessary from the Licensing Authority before the canopy of a taxi could be changed and received a bribe not to prosecute the complainant, it was held on appeal to this Court that the representation was in fact not an of-fence known to law, and as there was no offence committed for which the appellant could be prosecuted, the appellant was, therefore, discharged.

In the present case, the offence alleged was one of obtaining money by false pretences which is an offence known to law; it is clear, however, that the charge was fictitious, the complainant not having obtained employment by means of a false certificate as alleged and the appellant knew that no of-fence had been committed.

In such a case, it cannot in our opinion be said that the demand is made with a view to corrupt or improperly interfere with the due administration of justice. We think the conviction on this count also was clearly wrong.

With regard to the third count, as we observed earlier, the learned Magistrate found, and rightly in our view, that an offence under section 419 (obtaining money by false pretences) was not established by evidence. He however found the appellant guilty of an attempt. It was argued on his behalf that as the substantive offence itself could not have been committed, the appellant could not be found guilty of an attempt to commit it. We think it is right to say that the falsity of the pretences had been proved when Inspector Obiagwu gave evidence that he did not send the appellant to demand money from the complainant. It is immaterial in a charge for attempting to obtain by false pretence that the complainant could not have been deceived by the pretences made or that the false pretences could not have operated on his mind to give the money, R. v. Light, 11 C.A.R. 111. In the case R. v. Hens-ler, 11Cox 570, where a prisoner in a begging letter attempted to obtain money by false pretences, and in his reply the prosecutor sent him 5s and in his evidence he said he knew fully well that the statements contained in the letter were untrue, it was held that the prisoner might be convicted on the evidence of obtaining money by false pretences. Also it is no answer that the complainant laid a plan to entrap the appellant into taking the money, R. v. Ady, 7 C. and P. 140. The appeal on this count must, therefore, fail.

This appeal, therefore, succeeds on the 1st and 2nd counts. The appellant will be discharged on those counts and the sentence of two years imprisonment with hard labour passed on him on each count will be set aside.

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