JACOB OMOTOSHO v COMMISSIONER OF POLICE (FSC 286/1961) [1961] NGSC 40 (15 December 1961)


                           JACOB OMOTOSHO (APPELLANT)

                                                         v.

                    COMMISSIONER OF POLICE (RESPONDENT)

                                         (1961) All N.L.R. 723

 

 

Division: Federal Supreme Court

Date of Judgment: 15th December, 1961

Case Number: FSC 286/1961

Before: Ademola, C.J.F.

              Unsworth, F.J.J.

              Taylor, F.J.J.

 

 

The appellant, a Police Constable, was charged before a Chief Magistrate with (1) demanding with menaces with intent to steal, contra to section 406 of the Criminal Code, (2) receiving money with a view to corrupt or improperly interfere with the administration of Justice, contra to section 116(1) of the Criminal Code; and (3) obtaining money by false pretences, contra to section 419 of the Criminal Code.

The facts were: The appellant went to the University College Hospital, Ibadan, where he told one Ogun, a clerk employed there, that he was investigating into an allegation that he, Ogun, had obtained his employment with the Hospital by falsely stating that he had passed the Class IV examination. Ogun and he saw the Hospital Establishment Officer, who showed the appellant Ogun's application and who assured the appellant that the allegation was false.

The appellant then took Ogun to the police station and before an Inspector. Ogun made a statement, was allowed bail, and was ordered to return two days later. On leaving the Station, the appellant followed him and told him that the Inspector had ordered him, the appellant, to charge Ogun with obtaining employment by false pretences and unless he paid money to the Inspector he would be so charged. He was asked to pay £5 down and would be told later what balance he had to pay. Two days later he was told that the Inspector asked for £20. The appellant persisted in his demands and raised the amount demanded to £50.

Ogun reported the matter to the police, who gave him twenty marked pound notes. When the appellant again came and demanded the money, Ogun told him he would give him £20 then and the balance later. The appellant took the £20, which consisted of the twenty marked pound notes, walked away from Ogun and was arrested by two waiting policemen.

The Inspector denied having sent the appellant to demand money from Ogun.

The Magistrate convicted him on counts one and two and of attempting to commit the offence charged in count three.

The appellant appealed to the High Court, where the conviction was affirmed on all counts. He then appealed to the Federal Supreme Court.

It was contended, on behalf of the appellant, that:

(a) the offence contemplated by section 406 of the Criminal Code related to demands made for oneself with intent to steal and not to demands made for or on behalf of another; and the false pretence alleged in the charge was not such as would operate on Ogun to part with the £20:-

(b) the appellant could not properly be convicted on the count of receiving the money with a view to corrupt or interfere with the administration of Justice since it was clear to Ogun, himself, that he had not committed an offence, namely that he had not stated, in obtaining his employment, that he had passed the Class IV examination:

(c) the substantive offence of obtaining money by false pretences, contra to section 419 of the Criminal Code, not having been committed, the appellant could not be found guilty of attempting to commit it.

HELD:

(1) The offence of Demanding with Menaces with Intent to Steal, as defined by section 406 of the Criminal Code 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 financial detriment if the demands are not complied with

(2) Where the threats could not, and did not, in any way operate on the mind of the complainant, the offence of Demanding with Menaces contra to section 406 of the Criminal Code is not proved. In this case, the complainant was not only aware that he had committed no offence for which he could be prosecuted, but he was also aware that the appellant knew that he had committed no offence. The appellant was wrongly convicted under this section.

(3) Since the offence the complainant was supposed to have committed was fictitious; the appellant could not have been said to have received the money with a view to corrupt or improperly interfere with the administration of Justice, contra to section 116(1) of the Criminal Code. The appellant in this case was wrongly convicted under this section.

(4) In a charge of Attempting to Obtain Money by False Pretences, it is immaterial that the complainant could not have been deceived by the false pretences, or that the false pretences could not have operated on his mind to part with the money; provided the falsity of the pretences is proved and that an attempt was made to obtain the money by reason of the pretences. Even though the substantive offence of Obtaining Money by False Pretences was not proved in this case, the appellant was rightly convicted of Attempting to Obtain Money by False Pretences.

(5) It is no answer to a charge of Attempting to Obtain Money by False Pretences that the complainant engaged in a plan to entrap the offender.

Appeal allowed on first and second counts: Convictions and sentences quashed:

Appeal dismissed on third count. Conviction and sentence affirmed.

Cases referred to:-

R. v. Ezejiogu, 10 W.A.C.A. 230.

I. G. Police v. Alashi, 4 FSC 216.

R. v. Light, 11 Crim. App. R. 111; 84 L.J.K.B. 865; 112 L.T. 1144; 31 T.L.R. 257; 79 J.P. 113; 59 Sol. Jo. 351; 24 Cox 718.

R. v. Hensler, 11 Cox 570; 22 L.T. 691; 34 J.P. 533; 19 W.R. 108.

R. v. Ady, 7 C. & P. 140.

Ordinance referred to:-

Criminal Code, Cap. 42, sections 116(1), 406, 419.

APPEAL from the High Court (West)

Babalakin, for the Appellant.

Eboh, Senior Crown Counsel, for the Respondent.

Ademola, C.J.F. (delivering the Judgment of 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 £20 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 10th 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 Constables 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 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 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 stated in obtaining his employment that he had passed Class IV examination. Counsel replied on the case R. v. Romanus Ezejiogu, 10. W.A.C.A. 230, and Inspector-General of Police v. Clement Alashi, 4 FSC 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 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 a receipt, falsely alleging that there 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 offence 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 offence 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. Hensler, 11 Cox 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 statement 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 first and second 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.

Appeal in respect of the third count will be dismissed.

Appeal on first and second counts allowed:

Appeal on third count dismissed.

▲ To the top