OLATUNDE LAJA (APPELLANT)
INSPECTOR-GENERAL OF POLICE (RESPONDENT)
(1961) All N.L.R. 744
Division: High Court of Lagos
Date of Judgment: 23rd October, 1961
Case Number: Appeal No. LD/45CA/61
Before: De Lestang, C. J.
Appeal from magistrate's court against Conviction and Sentence.
The appellant carried on the business of a supplier of building materials. He bought 2,700 bags of cement from a Swedish firm in Lagos, which he paid for partly by cash and partly by post-dated cheques which were, in due course, dishonoured. As a result, the appellant was indebted to the firm in the sum of approximately £600. The appellant, wishing to obtain more cement, visited the firm's representative in Lagos almost daily, and was repeatedly told that he would not be supplied with cement on a short-term credit basis until he had paid the balance outstanding on the previous transaction. On the 24th of January, 1961, the appellant told a Mr Oshodi that he had a consignment of cement at Customs Wharf which he wished to sell. They discussed the price, and the appellant took Mr Oshodi to the Customs Wharf and showed him a quantity of cement there, which, he claimed, belonged to him. Mr Oshodi took the appellant to a building contractor, at a site on which he was building. The appellant repeated to the contractor what he had formerly told Mr Oshodi, and promised to deliver the cement at the site on the following morning. The Contractor gave the appellant a cheque for £200, as advance payment, and promised to pay the balance on delivery of the cement. The appellant, in the hope that the Swedish firm would supply him with a further consignment of cement, endorsed the cheque to that firm in part payment of his existing debt. The firm, however, refused any further delivery until the debt was fully liquidated. The appellant was, therefore, unable to refund the £200 to the contractor, or to provide him with the cement.
The appellant was charged and convicted in the magistrate's court of obtaining £200 by false pretences; and was sentenced to 18 months imprisonment.
On Appeal it was argued that there was no intention to defraud; because he genuinely believed that he would be able to obtain cement from the Swedish firm. It was also contended that the sentence was excessive.
(1) In section 419 of the Criminal Code, the words "intent to defraud" mean an intent to deceive in such a manner as to expose any person to loss, or the risk of loss.
(2) An appellate court will not interfere with a sentence imposed by the trial court, unless it is satisfied that the trial court has erred in principle.
Appeal dismissed. Sentence reduced.
Cases referred to:-
R. v. Filing, (South Africa), (1904), 18 E.D.C. 11.
R. v. Newton and Bennett, 9 Crim. App. R. 146; 109 L.T. 747; 23 Cox 609; 77 J.P.J. 508.
London v. Globe Finance Corporation Limited, (1903) 1 Ch. 728; 72 L.J.Ch. 368; 88 L.T. 194; 19 T.L.R. 314; 51 W.R. 651; 10 Mans. 198.
Ordinance referred to:-
Criminal Code, Cap. 42, section 419.
APPEAL from magistrate's court.
Odesanya for the Appellant.
Arthur-Worrey, Crown Counsel, for the Respondent.
De Lestang, C.J.:-The appellant was convicted in the magistrate's court, Lagos, of obtaining £200 by false pretences contrary to section 419 of the Criminal Code and sentenced to 18 months' imprisonment.
The relevant facts are not in dispute. The appellant carries on the business of a supplier of building materials. He had an agreement with a Swedish firm under which the firm was to supply him with 1,000 bags of cement every month; the first delivery to take place in February or March 1961. The cement was to be shipped from Sweden and delivery of the shipping documents was to be effected only against payment of the C.I.F. price in Lagos. Meanwhile, the firm had large quantities of cement on hand in Lagos, and it sold 2,700 bags to the appellant, which the appellant paid for partly by cash and partly by post-dated cheques which were in due course dishonoured. As a result, the appellant was indebted to the firm in approximately £600. Being desirous of obtaining more cement, the appellant visited the firm's representative in Lagos almost daily, only to be repeatedly told that he would not be supplied with cement on short-term credit until he paid the balance outstanding on the previous transaction. On 24th January, 1961, the appellant told Mr Bolaji Oshodi, a quantity surveyor, that he had a consignment of cement lying at the Customs Wharf which he was desirous of selling. They discussed the price and the appellant took Mr Oshodi to the Customs Wharf, and there showed him cement which he claimed to be his. Mr Oshodi took the appellant to Mr Salawu Sabe a building contractor, on a site on which they were building. There the appellant repeated to Mr Sabe what he had told Mr Oshodi and said that he would deliver the cement at the site on the following morning. Mr Sabe agreed to buy 1,000 bags of cement for £550, and gave the appellant a cheque for £200 as advance payment, promising to pay the balance on delivery of the cement.
The appellant endorsed the cheque to the Swedish firm in part payment of his debt to that firm and tried to get cement from it on credit. The firm maintained its previous attitude and refused any delivery until the debt was fully liquidated. As a result, the appellant was unable either to supply any cement to Mr Sabe, or to refund his money as he had no working capital.
Learned Counsel for the appellant, while conceding that the appellant obtained the £200 by means of a false representation, which he knew to be false, contends that the appellant had no intention to defraud, because, he submits, the appellant genuinely believed that he would be able to obtain cement from the Swedish firm, and the fact that he endorsed the cheque he had obtained from Mr Sabe to the Swedish firm supports his submission.
It was held in R. v. Firling, 15 English & Empire Digest, at 1006, that "an intent to defraud means an intent to deceive in such a manner as to expose any person to loss or the risk of loss." Again in R. v. Newton & Bennett, 9 Cr. App. R. 146, the court of Criminal Appeal in England approved the definition of "deceive and defraud" given by Buckley J., in re: London & Globe Finance Corporation Limited, (1903) 1 Ch. 728, where he said, "to deceive is to induce a man to believe that a thing is true which is false and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit; it is by deceit to induce a man to act to his injury."
In the present case, even if the appellant hoped that he would be able to obtain cement, which, incidentally, was a thin hope in view of the attitude well-known to him of the Swedish company, he clearly deceived Mr Sabe into believing that he was the owner of the cement lying at the Wharf. He must have known very well that unless he pretended to own that cement, Mr Sabe would not have parted with any money, and, consequently, he deliberately made the false representation in order to obtain the money, clearly exposing Mr Sabe to loss or the risk of loss. As a matter of fact, the money has not been repaid as yet. In these circumstances, there was, in my opinion, evidence to support the learned Magistrate's finding that an intention to defraud was clearly made out.
Another ground of appeal is that the sentence is excessive in all the circumstances of the case. The principle upon which this Court acts in an appeal against the severity of a sentence is that it should not interfere unless it is satisfied that the trial court has erred in principle. The appellant, who is a first offender, was sentenced to 18 months imprisonment. It must be said, in his favour, that he used the money to pay the Swedish firm in the hope, no doubt, that he would get a further supply of cement on credit, and there is no reason to doubt that had he been successful, he would, in all probability, have supplied cement to Mr Sabe. He did try his best to get the cement. On the other hand, offences of this nature are prevalent in this country, and people are wont to make rash statements to serve their immediate purpose without considering the consequences and the risks involved. Everything considered, however, I feel that the sentence of 18 months is unduly severe and ought to be substantially reduced. I consider that a sentence of six months' imprisonment would be adequate in the circumstances of this case, and I alter the sentence accordingly.
Appeal dismissed. Sentence reduced.