SALIMONU BOLATITO LAWAL (APPELLANT)
THE QUEEN (RESPONDENT)
(1963) All N.L.R. 174
Division: Federal Supreme Court
Date of Judgment: 5th April, 1963
Case Number: (FSC 442/1962)
Before: Taylor, Brett, and Bairamian, F.J.J.
Appeal from conviction:
The appellant bought goods and gave a post dated cheque on a bank in which he had an account, and the cheque was dishonoured; he had not intended to keep his promise. He was convicted on a charge of obtaining goods by false pretences, the pretence alleged being that he represented the cheque to be a good and valid order on the bank for the amount of the cheque and that he had authority to draw a cheque for that amount; the trial Judge relied on R. v. Richard Parker (1837) 169 English Reports 1.
(1) When a person gives a post-dated cheque on the bank in which he has his account for more than he has in his account, his cheque does not mean that he has money at the bank, but that it will be paid when presented. In effect the appellant was promising to pay on a future day and, although he did not intend to keep his promise, such a promise by itself was not a false pretence-R. v. Dent 39 Cr. App. R. 131.
(2) But as it is only a customer of a bank who has authority to draw cheques on the bank, when a person gives a cheque on a bank in which he has no account, he is falsely pretending that he is the bank's customer and has authority to draw cheques on that bank; R. v. Parker (supra) is to be read in light of R. v. Maytum-White (1958) 42 Cr. App. R. 165.
Appeal allowed; conviction and sentence quashed.
Other case cited:-
R. v. Hazelton, 13 Cox C.C.I.
APPEAL from the High Court of Lagos.
Lardner (with him Akande) for the Appellant.
Anisiobi, Senior Crown Counsel, for the Respondent.
Bairamian, F.J. (delivering the judgment of the court):-The appellant was convicted on two counts of false pretences laid under section 419 of the Criminal Code. One count alleged that he:-
"on or about the 18th day of April, 1961, at Lagos, with intent to defraud, obtained from the Co-operative Supply Association Limited, 50 Cartons Corned Beef, 20 Cases Bar Soap, 5 Cartons of Ovaltine valued £266 by falsely pretending that cheque No. 073844 which he the said Salimonu Bolatito Lawal then produced and delivered to the said Cooperative Supply Association Limited, then was a good and valid order for the payment of £266 and that he the said Salimonu Bolatito Lawal had authority to draw a cheque for the payment of £266 upon the Bank of West Africa Limited situate at Obun Eko, Lagos."
This is the first count as amended. Originally the date of the offence was alleged to be the 15th day of April, 1961. On that day he gave the cheque in question, which he post dated to the 18th April, and obtained the goods. He was classed as a cash wholesale customer, and he knew he had been refused the privilege of buying on credit; he had not the money in his bank account-in fact he made sure he would not have it on the 18th April by withdrawing £200 out of what was paid into his account in between. Of his intent to defraud there is no doubt, but the question is whether he was guilty of obtaining goods by false pretences within the meaning of section 419. (The other count is similar, and does not need special mention: it was again a post-dated cheque, which, like the previous one, was not met.)
It was argued in the court below that the appellant was not a cash, but a credit wholesale customer? as he always gave post-dated cheques, which were accepted. The view of Udoma, J., the learned trial Judge, was that he was a cash wholesale customer who had to pay cash for the goods he purchased. The invoices issued to him were headed "Office Cash Sales". The learned Judge states:-
"In my view, paying for goods bought for cash with post-dated cheques does not necessarily of itself establish the existence of an arrangement whereby a man is granted credit facility, nor does it make the purchaser a credit customer. It may be a matter of accommodation to suit the convenience of the purchaser in that payment is post dated. On this issue, I think the case of Rex v. Richard Parker (1837) 2 Mood 1, 169 English Reports, 1, may be of interest.
Of the 14 judges who heard the argument on the case, eight were for affirming the conviction and six against; but no opinions of the judges are given in the report. Parker bought a watch and chain, and gave the jeweller a post dated cheque on bankers with whom he had no account. The headnote on the legal effect of the case reads:-
"It is an offence within 7 and 8 Geo. IV C. 29, section 53, to obtain goods on payment of a cheque really drawn by the prisoner on bankers to whom he is unknown and with whom he has no account, he representing that he has an account, and knowing that the cheque will not be paid. The indictment may allege the false pretence to be that the cheque was a good and genuine order for the payment of, and of the value of, the sum specified."
Parker's case is noted in paragraph 1972 of Archbold (1959) in a way which lends colour to the judgment under appeal; but that edition has no note of Reg. v. Maytum-White, 1958, 42 Cr. App. R. 165. This case is noted in paragraph 1972 of Archbold (1962), and Parker is now given with Reg. v. Hazelton, L.R.2.C.C.R. 134, which can be read also in Cox's C.C. Vol. 13, at 1, and is the leading case on worthless cheques given in a ready-money transaction. The note in Archbold (1962) on Maytum-White, reads:-
"A post-dated cheque is a representation that the drawer is a customer of the bank concerned and, as only customers of a bank have authority to draw cheques, the drawer of a post-dated cheque represents that he has power and authority to draw on the bank concerned, but not for any particular amount. Where, therefore, the appellant purchased theatre tickets and paid by a cheque which was post-dated two days and was drawn on a bank where he had no account, and the cheque was dishonoured, it was held by the court of Criminal Appeal that the appellant was rightly convicted of obtaining the tickets by falsely pretending that he then had full power and authority to draw a cheque upon the bank: R. v. Maytum White (1958) 42 Cr. Asp. R. 165."
Parker's case was quoted in argument. It is noteworthy that the judgment in Maytum-White says this [at 168]:-
"If a man gives a post-dated cheque, it means that the cheque will be paid on the date on which the cheque is presented, though it does not mean that the drawer has immediately got the money in the bank. The only point in the case is that by giving a cheque on Williams Deacons Bank, Old Brompton Road, S.W. 7, he was representing that he was a customer of that bank. That is what he represented, and he was not. In other words, the false pretence laid in the indictment was proved."
Earlier in the judgment [at 167] the point is made that:-
"only customers of banks have authority to draw cheques on banks."
It becomes clear that Parker's case is to be understood in the same light as Maytum-White, viz, that by drawing a cheque on bankers with whom he had no account, Parker was falsely pretending that he was their customer and had authority to draw cheques on them.
When, however, a person has an account at the bank on which he issues a post-dated cheque for more than he has in his account, his cheque does not mean that he has the money at the bank, but that it will be paid on the date on which it is presented. That, Mr Lardner has argued, is not a pretence of an existing fact, but a statement of a future intention to have enough money in the bank on the date on which the cheque may be presented for payment, which by itself cannot sustain a count of obtaining goods by false pretences; and Mr Lardner has quoted, in support of his argument, R. v. Dent, 39 Cr. App. R. 131 (also in  2 Q.B. 590, and in  2 All E.R. 806).
Dent, who carried on the business of a pest-destructor, entered into contracts with a number of farmers, to destroy vermin on their land over a period of a year. He asked for and received payment in advance of half the annual charge. In fact he did no work under the contracts. He was convicted of obtaining money by false pretences, but the view of the court of Criminal Appeal was that a promise as to future conduct not intended to be kept was not by itself a false pretence in criminal law, and the conviction was quashed.
Likewise, in the present case what the appellant did was in effect to promise payment on certain future days, and although he did not intend to keep his promise, such a promise by itself was not a false pretence within the meaning of section 419 of the Criminal Code.
It is only fair to the learned trial Judge to add that neither Dent nor Maytum-White was cited to him. Although the appellant was not supposed to have goods on credit, he was in fact allowed to have them on post-dated cheques-which meant credit for a few days; and he had an account at the bank on which he could draw cheques. Parker's case, on which the Crown relies, does not support the conviction.
The conviction and sentence are quashed and a verdict of acquittal shall be entered on both the counts of false pretences in the Lagos High Court Charge No. I.A. 143c11962.