Elijah Okezie Vs The Queen (1963)

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ADEMOLA, C.J.F. 

The appellant was in the High Court of the Eastern Region at Aba charged on an information containing two counts, namely obtaining goods by false pretences contra section 419 Criminal Code and stealing by agent contra section 390 (8) (b) of the Criminal Code. He was convicted on the charge of (first count), and the learned Judge did not proceed second count in respect of which he discharged him without an acquittal. This is an appeal against the conviction on the first count, which reads as follows-

“Statement of Offence-First Count
Obtaining goods by false pretences contra section 419 of the Criminal Code.

Particulars of Offence
Elijah Okezie, on the 27th day of February 1961, at Aba, in the province of Umuahia, with intent to defraud, obtained from Israel Nwabeke the sum of #315 by falsely pretending that you were in a position to secure employment for him as a teacher in the Eastern Ngwa Council, and that the said #315 was being demanded by the Eastern Ngwa County Council as a security against any loss or damage to the said Council’s property.”
Five grounds of appeal were filed, and in addition leave was sought and granted to argue two additional grounds. Only the two additional grounds of appeal and one original ground were, however, argued. They read as follows:
“(1) (additional). The learned trial Judge erred in law in convicting the appellant in respect of count 1 when the false representation contained in the particulars of the said count were not proved by the prosecution.
(2) (additional). The judgment of the learned trial Judge convicting the accused appellant is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.
(3) (original). The learned trial Judge erred in law to have convicted the appellant on the first count under section 419 of the Criminal Code as there was material conflict between the indictment as laid and the evidence given.”
The first and third grounds were argued together.
It is, however, convenient to deal first with the second ground argued. Counsel, at the instance of the Court, sought leave to delete the words “weight of evidence” in that ground of appeal. In the light of Aladesuru v. The Queen, [1956] A.C. 49, it was pointed out that the words “weight of evidence” are not applicable in criminal appeals. This Court would like to stress the point that a criminal appeal on the facts is not quite the same as an appeal on the facts in a civil case. In a civil appeal the general ground is that the judgment is against the weight of evidence, whilst in a criminal appeal it is that the verdict is unreasonable or cannot be supported having regard to the evidence: see the Federal Supreme Court Act, 1960, section 26 (1), and the Federal Supreme Court Rules, 1961, Order VII, Rule 2. It is clear that unless there is some evidence to support it, the verdict in a criminal case cannot stand. The other test is whether a reasonable tribunal or jury, if they appreciated the evidence rightly and applied the law appropriate to the case, could have returned the verdict. This is the light in which a criminal appeal on the facts should be argued and approached.

Arguing this ground of appeal, Counsel submitted that the finding cannot be supported by the evidence because one Mordi from whom the complainant borrowed a sum of #315 to satisfy the demand for #330 was not called by the Crown to give evidence; also that the third witness for the Crown, Ochieze A jaegbu, was punished by the learned Judge for perjuring himself. This is what the learned trial Judge said about this witness

“As regards the third prosecution witness, my impression about him is that he knew the truth but did not want to help the Court. He was therefore lying when he told the Court that it was the first prosecution witness who told him what to say. Even his demeanour in the Court showed that he was determined to mislead the Court.”

We are unable to accept the suggestion that the fact that Ochieze is a liar should affect the result of the case; his being a liar does not affect the credibility of the complainant and his wife. At best Ochieze should be disregarded. With regard to Mordi, we are of the opinion that the Crown was not bound to call him. If he lent money to the complainant that fact would certainly not have helped to prove that the complainant gave the money to appellant, or why he did. The other arguments on the evidence need not be gone into; it is sufficient to say that no case was made out that the verdict was unreasonable or could not be support having regard to the evidence. This ground of appeal must therefore fail.

We now come to grounds 1 and 3, which are substantially the same and were argued together. It was submitted by Counsel that the pretences alleged by the prosecution in the first count are two, namely (1) to get the complainant employment as a teacher, and (2) that the sum of #330 was demanded by the Eastern Ngwa County Council as a deposit against damage to the Council’s property, but that the learned Judge made no finding on first false pretence. It was submitted that for the reason that of the two false pretences alleged in the first count, a finding was made on one and not on the other, the appellant should have been discharged.

The relevant part of the judgment complained against is as follows:-
“I have to say that I am satisfied from the evidence before me that the accused obtained the sum of #315 from the first prosecution witness by falsely pretending he was receiving it as a deposit for the Council; that the Council never asked for such a deposit and that the accused had converted the money to his own use. I am also satisfied that the Council did not ask the accused to make the demand for security and also that the accused was not speaking the truth when he told the first prosecution witness that if he deposited the sum of #330 he would see him employed because the accused is not in a position to influence the District Officer or the Provincial Education Officer to give approval for the first prosecution witness to be employed since the first prosecution witness could not be so employed without their approval. I have therefore no difficulty in finding the accused guilty of the charge preferred against him in the first count.”

The question is, does the finding of the learned Judge amount to this: that both the false pretences alleged operated to induce the witness to give the money (#315), or does it mean that it was the false pretence that that money (#330) was demanded by the Council which operated on the mind of the witness, although the pretence about securing employment as a teacher was also made

The Court accepts the submission made by Counsel for the appellant that the finding of the learned Judge is that it was the false pretence that #330 was demanded by the Ngwa Council which induced the witness to give the money, and the appeal will be considered on that basis.

Now, as the count alleges two false pretences, but the finding covers one only, can the conviction stand For the appellant it is argued that the two false pretences are so intertwined in the count that they stand or fall together; whilst the argument for the Crown is that the two false pretences are independent and the finding of one sustains the conviction.
Mr. Kayode, for the appellant, relies on R. v. Wickham, 10 Ad. and El. 34, referred to at page 743, in para. 1972 of Archbold, (34th Ed.). That was a case where the prisoner pretended to another that he was a captain in the East India Company’s service and that a promissory note which he produced was for a valuable security, by means of which false pretences, he fraudulently obtained money from that other; whereas the prisoner was not a captain and the promissory note he gave was not a valuable security; it was held that as it did not appear but that the note was prisoner’s own promissory note, or that he knew it was worthless the falsification was not sufficient; and, as the two pretences were to be taken together, that the conviction was bad.

We have given consideration to that case and are of the view that it is not on all fours with the present one. R. v. Wickham was a case where the two pretences alleged were to be taken together but one was not proved to have been a false pretence. In the case before us, the two pretences alleged were distinct and divisible; the Judge’s finding is in effect that both were proved to have been false, but one of them was the particular pretence which operated on the mind of the witness; so it was competent to the Judge to convict the appellant on the count, as appears clearly from R. v. Lince, 12 Cox 451.

The charge against Lince was that he falsely pretended to one J.H. that he then lived at and was then the landlord of a certain beerhouse, by means of which false pretences he obtained from J.H a quantity of potatoes with intent to defraud.