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[HIGH COURT (WEST)
10TH APRIL, 1961
AKURE CHARGE NO. AK/7CA/60
CRIMINAL LAW: Criminal law – Stealing – obtaining by False Pretences – Whether variance ‘between’ the charge as laid and the evidence was sufficient to quash the conviction – Whether representation of intention to act “in future” not a False Pretence-—Misdirection arising from failure to consider adequately case for defence
ETHICS – JUDGE – PUBLIC: Effect of misdirection on a point of law or fact – Extortion, Bribery and corruption on the part of a public officer
Akinloye (with him Omotosho), for the Appellant.
George, Asst. DPP., for the Respondent.
The appellant was originally charged before the Senior Magistrate, Akure, on twenty-eight counts alleging that he between the months of July and October 1958, at Ikerre, obtained various sums of money and certain articles by false pretences. The charges were amended and four charges were substituted; but later the first charge was also withdrawn. The three charges subsequently preferred against the appellant were the following
(1) That you, Gabriel Babatunde Adeyemi, during the month of October 1958, at Ikerre, Ekiti Division, in the Akure Magisterial District, stole the sum of £5-5s and one bottle [of] brandy, property of Chief Gabriel Olujobi and thereby committed an offence punishable under section 390 of the Criminal Code-(then Cap. 42 of the Laws of Nigeria, 1918).
(2) That you, Gabriel Babatunde Adeyemi, during the month of October 1958, at Ikerre, Ekiti Division, in the Akure Magisterial District with intent to defraud, obtained the sum of £5 from Chief Joseph Osho by falsely pretending that you were in a position to make him a member of the Customary Court and thereby committed an offence punishable under section 419 of the Criminal Code.
(3) That you, Gabriel Babatunde Adeyemi, during the month of October 1958, at Ikerre, Ekiti Division, in the Akure Magisterial District stole the sum of £7-10s, 2 bottles of stout and one bottle brandy, property of Chief Joseph Akinola, and thereby committed an offence punishable under section 390 of the Criminal Code.
The case for the prosecution before the trial Court was that the appellant, who had been appointed to make recommendations for the appointment of suitable persons as Customary Court members, went to the complainants and falsely represented to them that if they paid certain sums of money to him to be given to the persons who were authorized to make the appointment, the complainants would be appointed members of Customary Courts and that after the appellant had received the various sums, two bottles of brandy and two bottles of stout, he misappropriated them.
The evidence which was led by the prosecution to support the three charges came from the complainants who parted with the sums of money and the articles and also persons who said they were present when the false representations were made by the appellant to the complainants and when the amounts and the articles were given to the appellant.
In his defence the appellant gave evidence denying that he made the representations to the complainants or that he received the amounts and the articles from them. He also stated that the complainants had made the allegations against him because (a) he had refused to recommend some of the complainants for appointment and (b) the complainants were dissatisfied that other persons had been appointed on the recommendation of the appellant.
The learned trial Magistrate accepted the evidence of the complainants and their witnesses, found the appellant guilty on the three counts and sentenced him to imprisonment with hard labour for 18 months on each count.
The appellant appealed to the High Court, Akure. The appeal was heard by Doherty, J. who discovered while he was considering his judgment that at the material time when the appellant was alleged to have obtained the money he was the Chairman of the Local Service Board which appointed Customary Court members.
the Judge I travelled to Akure to hear the appeal but’ it could not be heard as the Crown Counsel who was to appear for the respondent did not receive a hearing notice and so did not appear. On the 10th March, 1961, I transferred the case to the High Court, Ibadan. Leave was granted to file additional grounds of appeal which alleged misdirections and errors in law on the part of the learned trial Magistrate. The first ground argued is the fourth additional ground of appeal which reads as follows-
The learned trial Magistrate erred in law in convicting the appellant on the charge of false pretence on count 3 when the enacted ingredient of the offence was not proved.
In support of this ground Mr. Akinloye, counsel for the appellant, submitted that the evidence led in support of the 3rd count alleging false pretences was to the effect that the appellant made a promise to perform an act in the future by stating that he was going to make the complainant a Customary Court member and would pay the money he had obtained from the complainant, Chief pay Osho, to appellant’s senior officer so that the complainant might be appointed.
The material portion of the complainant’s evidence was as follows :
The accused told me that a new Court was about to be established. He said he would make me a Court member…After my acceptance of the offer, the accused [said] I should give him £5 that he would take with him to Ibadan to settle the matter. He added that it was the practice to pay £5 to his senior so that I might be made a court member
It is submitted that there is a variance between the pretence as laid in the charge and the evidence given to support the charge. In the charge it was alleged that with intent to defraud, the appellant had obtained the sum of £5 by falsely pretending that he was in a position to make the complainant a member of the Customary Court. But the evidence led rather showed that the appellant obtained the money to give to another person or persons to enable the complainant to be so appointed. It is my view that the variance m substance between the pretence laid and the evidence is fatal to the prosecution’s case. I would refer to the case of R. v. Barker. (1910) 5 C.A.R. 283, where it was held that variance ‘between’ the charge as laid and the evidence was sufficient to quash the conviction. I would also refer to the case of Pius Achonra v. Inspector-General of Police, 1958 3 F.S.C. page 30, in which it was held that the charge alleging a representation of the appellant that he would do an act in the future discloses no criminal offence at all. I hold that this ground has been sustained and that the conviction of the appellant on count 3 cannot stand.
On the ground alleging misdirection on the part of the learned trial Magistrate, learned Counsel for the appellant has referred to a portion of the judgment which reads as follows:-
It is a matter for regret that the Ogoga to whom reference was made by the accused throughout the proceeding was not called to substantiate any of the matters with which his name was connected. The reason the accused gave for not calling him was that he was not on speaking terms with the Ogoga…… This reason is to my mind flimsy …… I hold the view that the accused did not call the Ogoga because he feared his evidence would not support the case he had built up.
It is submitted that having regard to the evidence, the learned trial Magistrate misdirected himself by stating that the failure of appellant to call the Ogoga was due to his fear that the Ogoga would not support the defence.
The record of proceedings shows that while the appellant was being cross-examined he was asked if it was not a fact that the complainants had made a report to the Ogoga against the appellant that the appellant had obtained monies from the complainants on the representation that he would appoint them members of the Customary Court, and if it was also not a fact that the Ogoga had told the appellant of the complaint and advised him to return the amounts to the complainants. The appellant denied that the Ogoga had spoken to him or advised him as alleged. The Ogoga was not called by the prosecution and the appellant was not bound to call him as his witness particularly as he had denied the allegations made by the prosecution. If the Ogoga’s evidence was necessary, at all, it was necessary for the case of the prosecution and it was a misdirection for the learned trial Magistrate to have held, as he did, that the failure of the appellant to call the Ogoga was fatal to the defence. I would refer to the case of R. v. Modem & Anor., 12 W.A.C.A. 224, in which it was held that the trial Court should not have presumed from the failure of the defence to call witnesses that their evidence would have been unfavourable to the accused.
I would also refer to the case of Mandilas and Karaberis & Anor. v. Inspector-General of Police, 1958 W.N.L.R. 241, in which the Federal Supreme Court held that the provision of section 148 of the Evidence Ordinance, Cap. 62, as to the presumption that evidence which could be and is not produced would, if produced, be unfavourable, to the person who withholds it, is not applicable to a criminal case so as to shift the onus of proof.
It is also my view that the misdirection has occasioned a miscarriage of justice in that the learned trial Magistrate did not adequately consider the defence of the appellant. The learned trial Magistrate could not have considered the defence adequately when he held the view that the Ogoga, if called by the defence, would not have given evidence in support of the appellant’s case.
In view of what I have said in connection with this portion of the judgment, I find it unnecessary to deal with the other portions of the judgment complained of as misdirections.
The ground I have just dealt with is sufficient in my opinion, to quash the conviction on all the counts including the count alleging obtaining money by false pretences.
The misdirection which I have held has occasioned a miscarriage of justice affects the entire defence put up by the appellant, name y that he did not make representations to the complainants as stated by them, that he did not obtain any sums of money or the articles from the complainants and that he did not steal any such sums of money or articles. In the case of R. v. Kwabena Bio, 11 W.A.C.A. 46, it was held that the Court was bound to put the defence to the jury, however weak the defence is. The nature and circumstances of the case should have put the learned trial Magistrate on his guard. Here is a case in which the complainants had admitted that they parted with money to the appellant in order that the appellant might pay it to certain persons so that the complainants tight be appointed as Customary Court members. When the complainants did not obtain the appointment, they made the charges against the appellant. If they had succeeded in obtaining the appointment, it is doubtful if anything would have been heard about the transaction. In law, the complainants are not accomplices whose evidence should be corroborated. But they as well as the persons who said they were present when the representations were made by the appellant must have known that the transaction was unlawful. The learned trial Magistrate should have given the whole evidence very careful consideration before coming to a decision. He did not do so. He rather appeared to have placed an onus on the appellant to prove his innocence and when in his opinion the appellant failed to do so, he found him guilty.
As I have stated, it is unnecessary to deal with the other grounds of appeal as I have held that the misdirection had occasioned a miscarriage of justice.
Mr George has submitted that this court can substitute a verdict of guilty of stealing on the 3rd count. It is my view that even if the 3rd count had also alleged stealing as the other counts did, a conviction on that count would have been set aside on the ground of misdirection.
In the result, I allow the appeal. The convictions on the three counts are set aside and the appellant is acquitted and discharged,