Michael Ijuaka V. Commissioner Of Police (1976) LLJR-SC

Michael Ijuaka V. Commissioner Of Police (1976)

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OBASEKI, J.S.C 

This appeal is against the judgment of the High Court Calabar, presided over by Kooffreh, J., (as he then was) in Appeal No.C/25AC/ 74 delivered on the 27th day of January 1975, dismissing the appellant’s appeal against his conviction by the Chief Magistrate Calabar on two counts (courts 1 and 3 of the Charge) of obtaining money by false pretences contrary to section 419 of the Criminal Code.

Before the Magistrate Court, Calabar, the appellant was tried on a five count charge, counts 1, 3 and 5 of which for the purpose of this judgment, we will reproduce in full.

Count 1: That you Michael Ijiaka (m) on the 31st January 1973, at Calabar, in the Calabar Magisterial District, with intent to defraud, obtained the sum of N45.00 from Monday Udofia (m) by falsely pretending that you were able to print genuine N2,000.00 and thereby committed an offence under section 419 of the Criminal Code.

Count 3: That you Michael Ijuaka (m) on the 31st January 1973, at Calabar, in the Calabar Magisterial District, with intent to defraud, obtained the sum of N43.00 from Enefick Paul (m) by falsely pretending that you were able to print genuine N2,000.00 for him and thereby committed an offence punishable under section 419 of the Criminal Code.

Count 5: That you Michael Ijauka (m) on the 31/1/73, at No. 9 Edgerly Road, Calabar, in the Calabar Magisterial District, unlawfully had in your possession, four and half bundles of papers cut to the size resembling 50k note and thereby committed an offence punishable under section 480(a)(i) of the Criminal Code.

The counts omitted, i.e., Counts 2 and 4 charged the appellant with stealing and were in the alternative to the counts of obtaining by false pretences. However, the appellant was acquitted by the learned Chief Magistrate on those counts.

The appellant’s appeal against his conviction on count 5 was allowed in the High Court but his conviction on counts 1 and 3 was affirmed and it is against this conviction that the appellant has brought this appeal before us.

The three grounds of appeal filed and argued before us are:

(1) The learned Judge on appeal misdirected himself in law and on the facts when he held that there was ample evidence to show that accused got the money from the two P.Ws. in the circumstances which these witnesses narrated. I have no reason therefore to disturb the findings of facts of the learned Chief Magistrate”

(a) The learned Chief Magistrate failed to evaluate the evidence of the first P.W. Samuel Ajibola when he said that the two boys told me that N88.00 was collected from them for the purpose of giving them a machine for printing money, a piece of evidence which materially contradicted the evidence of the two P.Ws. (2nd and 3rd P.Ws.)

(b) The learned Chief Magistrate failed to resolve the contradiction between the evidence of the 2nd and 3rd P.Ws. and that of the 1st P.W. on the material purpose for which they parted with the sum of N88.00

(2) The learned judge on appeal erred in law in dismissing the appellant’s appeal when”

(a) The learned Chief Magistrate convicted the appellant without considering and/or considering adequately the contradiction and other matters which are capable of casting doubt on the case for the prosecution.

(b) The false pretence contained in the charge was materially different from the pretence given in evidence.

(c) On the contradicting evidence of the prosecution witnesses, the counts of stealing were not proved.

(d) The learned Chief Magistrate wrongly admitted exhibits ‘A’,’C’ and ‘M’ in evidence.

(3) The sentence is excessive.

The facts are not really in dispute and are, briefly stated, as follows: –

The appellant was a sailor/naval officer attached to the Eastern Naval Base Calabar. He was transferred from Lagos to Calabar in February 1972 and by December 1972, established close relationship with Monday Udofia (P.W.2) a newspaper vendor and Enefiok Paul (P.W.3) a petty trader. Thy eventually became close friends. He used to buy newspapers from P.W.2 and petty articles from P.W.3. In January 1973, he went home on a month’s leave and returned penniless having spent all his money. He confided his plight in P.W.2 and P.W.3 and requested financial aid from them. P.W.2 gave him one pound and P.w.3 gave him one pound. The day after this financial aid, the appellant returned to P.W.2 and P.W.3 and told them that there was a certain business he would want the three of them to do. Three days later, he came for them “they entered his house at 3, Edgerley Road. There he produced a machine, exhibit G, which he alleged could print genuine 50k notes of the Nigerian Currency. He ostensibly demonstrated how it works (poured red and blue liquids on three white pieces of paper) and produced from the machine three 50k notes including exhibit B which he shared out among the three of them. Inside the machine box were 5 bundles each containing 500 pieces of white paper cut to the size of 50k notes. At the appellant’s request for contribution of $100. i.e. N200.00 each for the purchase of paper and chemical to print the 50k (for them and that each will receive N2,500.00 according to P.W.2) P.W.2 gave him N45.00 and P.W. N43.00. This totalled N88 and not the N400.00 demanded by appellant originally. That day P.W.2 met appellant looking drunk at Bassey Dukes. He did not give them N2,500.00 instead he gave them the machine exhibit G. Later he asked for $275 to buy the bigger size of bottle of chemical as the smaller bottles were alleged exhausted (out of stock). P.W.2 and P.W.3 never gave him this amount. They then demanded the refund of the amounts they had given him. The inducement that made them part with their money is clear. It was the request for contribution to purchase materials. We observe that P.W.2 in his evidence said: “When I gave out N45.00 to the accused as did Enefiok we believed he could do what he told us. If I did not believe him I would not have given him the N45.00. I demanded the refund of the N45.00 he failed to do so. I reported the matter to a navy officer who told us to fetch the box.

Cross-examined, he contradicted himself as regards his belief; for we observe that the record of his evidence reads:

“At the time I gave the accused N45.00, he told me he was going to use it in buying paper and chemical. I did not believe him. (Underlining is ours) P.W.3 also in his evidence corroborated P.W.2 that the money given to the appellant was to buy chemical when he testified as follows:

Accused requested money to buy the mercury and chemical I gave him N43.00 (he meant P.W2) gave him N45.00. He brought the machine to keep in our house.

He returned at 6.00 p.m., opened the brief case brought out a parcel of papers we examined. He requested we produce $275 to buy the large size of chemicals as the small size were out of stock so that he was going to double the amount and produce for us N2,000.00 each. We told him we had no $275. He should return our money and collect his box. He remarked that if that was the way we were going to carry on all of us were going to lose.

He walked out. Since then he never frequented our place as before. Later he told us he had no money to return to us. (Underlining is ours).

Salami Dauda Ajibola, P.W. 1 to whom P.W.2 and P.W.3 made their complaint more than three months after they had parted with their money, testified that

“The two boys told me that N88.00 was collected from them for the purpose of giving them a machine for printing money. I told them to go home and return the following morning with the said machine for printing money. On 3rd May 1973 they came with the alleged machine.

The learned trial Chief Magistrate believed the accepted the evidence of P.W.2 and P.W.3 and said:

After a full appraisal of the facts and law involved, I hold that the prosecution has proved beyond reasonable doubt counts 1, 3 and 5 against the accused persons.(underlining is ours).

The learned Judge on appeal after hearing counsel again commented in the same tone;

These facts were believed by the learned trial Chief Magistrate. I do not think he was unreasonable in doing so. There was ample evidence to show that the accused got the money from the two Prosecution Witnesses in the circumstances those witnesses narrated. I have no reason to disturb the findings of facts of the learned Chief Magistrate.

After dismissing the legal points as to the operative pretence raised by Counsel, he observed:

“The false pretence does not lie in the purpose for the immediate use of the money, but in what he was able to do with the chemicals. In plain language, the pretence of the accused/prisoner amounted to this: I am able to print NAIRA notes of 50k denomination with the machine I have operated before you. I do not intend to charge you anything but you have to produce money to buy the chemicals only.” (Underlining is ours).

We are at a loss to know why the learned appellant Judge did not pursue his observation to its logical conclusion which, we observe, must have resulted in an acquittal. Having come thus far, he should not have retreated from the effect of his finding that the appellant evidenced a desire not to charge the prosecution witnesses (2 and 3) for the printing of the Notes. We have no doubt, as we shall show later, that this finding is fatal to the charge and this has been the strongest point taken up in this appeal.

This short point in this appeal, and indeed the only point of substance stated in ground 2(b) of the Grounds of Appeal, is that the false pretence laid in the charge was not proved. We have set out at length

above the facts accepted by the learned trial Chief Magistrate as the basis of his findings and conviction and which were not disturbed by the learned Appellate Judge. We observe that it was not proved by evidence that the operative inducement which made P.W.2 and P.W.3 part with their money was the pretence that the appellant was able to print genuine N2,000.00 as laid in the charge.

We agree with the submission of learned Counsel for the appellant that the pretence laid must be proved and must be proved to be the only irresistible influence operating on the minds of P.W.2 and P.W.3. In the case of R. v. Barker (1910) 5 Cr App R 283, Darling, J. delivering the judgment of the court said at p. 285:

“But the indictment alleged several false pretences which required technical proof of a false pretence of an existing fact. Not one of those false pretences laid in the indictment was proved by the evidence called at the trial. The appeal must be allowed although we very much regret it.”

To secure a conviction what must the prosecution prove On this point we refer to the case of R. v. John James Sullivan 30 Cr App R 132 where Humphreys, J., delivering the judgment of the court in an appeal against a conviction of obtaining property by false pretences, said at page 134 as follows:

“In order that a person may be convicted of that offence it has been said hundreds of times that it is necessary for the prosecution to prove to the satisfaction of the jury that there was some mis-statement which in law amounts to a pretence, that is, a mis-statement as to an existing fact made by the accused person; that it was false and false to his knowledge; that it acted upon the mind of the person who parted with the money; that the proceeding on the part of the accused person was fraudulent. That is the only meaning to apply to the words with intent to defraud’.

In the instant case before us, the mis-statement alleged does not appear on the record. There is no evidence at all that it was the ability to print genuine N2,000.00 that induced the witnesses P.W.2 and P.W.3 to part with their money. It was the request for money to buy the liquid that made them part with their money. The pretence laid must be proved and must be proved to be the only irresistible influence operating on the minds of P.W.2 and P.W.3. It may be proved by direct or circumstantial evidence.

In this connection, we wish to refer to the case of Ligali and Laja v. The Queen 4 FSC7 where this court cited with approval the case of R v Sullivan (supra). Therein Ademola, C.J.F., delivering the judgment of the court dealing with proof of pretence laid, said at p. 12:

“In R v. Sullivan (3) it was held that such proof need not in every case be afforded by the direct evidence of a witness to that effect if the facts are such that the alleged false pretence is the only reason which could be suggested as having been the operative inducement. As it was put by Humphreys, J., delivering the judgment of the court in Sullivan’s case (3) at page 136: It is, we think, undoubtedly good law that the question of inducement acting upon the mind of the person who may be described as a prosecutor is not a matter which can only be proved by the direct evidence of the witnesses; it can and very often is proved by the witness being asked some questions which bring the answer:

“I believe that statement, that is why I parted with my money” but it is not necessary that there should be that question and answer if the facts are such that it is patent that there was only one reason which anybody could suggest for the person alleged to have been defrauded parting with his money, and that is the false pretence if it was false pretence. (Underlining is ours).

What was the pretence reported to P.W.1 the evidence of Salami Dauda Ajibola (P/W 1), a Naval Police Officer, on this point reads:

“I know the accused who works with me in the establishment. On 2nd May 1973, I received a report about 11.00a.m from two boys-” Monday and Paul that two of our men took from them N88.00. They mentioned one of our men as being Michael Ijuaka, the accused.

The two boys told me that N88.00 was collected from them for the purpose of giving them a machine for printing money.

On 3rd May 1973, they came with the alleged machine. We observed that this was not the pretence laid in the charge. On this same point, P.W.5, Lt. Commander Salawu Akanwo’s evidence reads:

“On 3rd May 1973, I was in my office, Naval Base, Calabar. A report was brought to me by one of my Naval Police L.P.M. Salami, P.W.1, that they have investigated a case between the accused and two civilians who complained that accused collected some money from them to give them New Naira, that is, to print new money for them. I ordered Police who brought accused with the two civilians to my office. I asked P.W.2 and 3 if it was true they knew the accused and they answered yes; that he demanded money to purchase liquid to print money for them”. (Underlining is ours).

We also observe that this was not the pretence laid in the charge.

It is therefore clear to us from the evidence on record and we are satisfied that payments of the monies by P.W.2 and P.W.3 were not induced by the pretence by the appellant that he was able to print genuine N2,000.00, but in answer to the request for contribution to pay N100 each to buy chemicals and paper. One wonders what made P.W.2 part with his N45.00 to the appellant for the evidence also shows that he did not believe appellant when he said he was going to use the money to buy paper and chemicals.

We are satisfied that the false pretence laid in the charge was not proved by evidence. Ground 2(b) succeeds and that disposes of the appeal. The appeal is hereby allowed and the conviction of and sentence phased on the appellant in respect of Counts 1 and 3 of Charge MC/ 627c/73 on the 23rd day of January 1974 are hereby quashed. The appellant is hereby acquitted and discharged.

Other Citation: (1976) LCN/2309(SC)