The Queen V. Elemi Eja Esege & Ors (1962)

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BRETT, F.J 

The appellants were convicted on two counts, one of which charged a conspiracy contrary to s. 422 of the Criminal Code and the other a conspiracy contrary to s. 518(6) of the Code. The appeal was heard on the 21st February, 1962, when only the second appellant was represented, but it is common ground that the three appeals are indistinguishable for the purpose of the matters argued before us. We dismissed the appeals so far as they related to the count under s. 422 of the Code and allowed the appeals and set aside the convictions on the other count. We now state our reasons.

The first count alleged a conspiracy “by diverse false pretences, false documents and fraudulent “means regarding the supply of materials for the building of Oshiri Dispensary and Quarters, to defraud the Afikpo District Council of its money”. The relevant words of section 422 of the Code refer to a conspiracy “by deceit or any fraudulent means to defraud the public, or any person, whether a particular person or not…” It is not in dispute that the Afikpo District Council is a juridical person, capable of being defrauded, but it is submitted on behalf of the appellants that on the true construction of the words “the public, or any person, whether a particular person or not,” the conspiracy covered by this part of the Section must be an agreement to defraud either the public at large or an unknown number of unascertained persons. On this submission a count for a conspiracy to defraud such persons as might be induced to part with money to A.B. & Co. could be laid under s. 422, whereas a count for a conspiracy to defraud a specific named person could not. In support of this it is said that a conspiracy to defraud a specific named person would be indictable under some other section of the Code, but this would not invariably be so. In our view, the natural meaning in their context of the words “any person, whether a particular person or not” includes both a specific named person and an unknown number of unascertained persons, and we see no grounds for not giving the words this natural meaning.

The second count charged a conspiracy “to effect an unlawful purpose, namely to defeat the intention and purpose of the Eastern Region Local Government Law, 1955, and the Regulations made thereunder in relation to contracts by fraudulently arranging the supplies of materials for the building of the Oshiri Dispensary and Quarters, contrary to the provisions of the aforesaid law”. The reference to defeating the intention and purpose of a law as an unlawful purpose is said to be based on a passage in the judgment of Goddard, LCA. in R. v. Newland 37 Cr. App. R. 154, 165, where the common law offence of conspiracy to effect a public mischief was under consideration. Without entering upon a discussion at large of the meaning of the words “unlawful purpose” in s. 518(6) of the Criminal Code it will be enough to say that we are not satisfied that the count as drafted discloses a conspiracy punishable under that particular paragraph of the section and that it was for this reason that we quashed the conviction.

Other Citation: (1962) LCN/0976(SC)