Division: Federal Supreme Court

                           Date of Judgment: 26th January, 1961

                          Case Number: FSC 326/1960

                           Before: Brett, F.J.J.

              Taylor, F.J.J.

              Bairamian F.J.J.

The appellant (pretending to be a clerk of the stores and getting the goods from one of them) helped the complainant to buy some goods at a store, for which she gave him the price he mentioned. In fact he told her more than the true price, and pocketed the difference. His defence that he was acting as a middleman was not believed; he was convicted of stealing.

On the appeal from the magistrate, the High Court thought it was not stealing, on the ground that the complainant, when giving her money to the appellant intended him to have not only possession but the property in it "since in exchange for it she got sold the two drums of dye she wanted"; but as she parted with her money in consequence of his falsehood on the price, he was guilty of false pretences.

On further appeal, the appellant complained of the conviction being altered without argument on false pretences; and also argued that he was selling as a principal and entitled to make a profit.

HELD:

(1) In England, the word "obtains", in a count charging a person with obtaining something by false pretences, contrary to section 32(1) of the Larceny Act, 1916, means "obtains the property and not merely the possession, and the obtaining must not for this purpose be under such circumstances as to amount to larceny"; and that test was apparently applied in the High Court in the present case with the term "stealing" substituted for "larceny": but in the present case there was no contract of sale between the complainant and the appellant which could have made him the owner of the money.

(2) The contract of sale was with the shop; the complainant gave her money to the appellant to pay the shop on her behalf, and he held it for her use and purpose; he had the physical possession only, and, in keeping some of it, was guilty of stealing.

(3) As both the courts below took the same view of the evidence, it was no longer open to the appellant to argue on the facts.

Appeal dismissed.

Case referred to:-

R. v. Ball, (1951) 2 K.B. 109; 95 Sol. Jo. 790; 35 Cr. App. R. 164.

APPEAL from High Court of Lagos.

Sofola for Appellant.

Oki, Senior Crown Counsel, for Respondent.

Bairamian, F.J., delivering the Judgment of the court:-The appellant was tried before a Lagos Magistrate on a charge of stealing £19, the property of Nimota Alake, and was convicted of stealing. He appealed to the High Court on the ground that the evidence did not support the charge; the outcome was an alteration of the finding to one of false pretences. He now appeals from that Court.

The following statement is taken from the Judgment of the High Court given on 24th October, 1960:-

The facts which the learned Magistrate found proved are very simple. On the 21st January, 1960, the complainant came to Lagos to purchase some dye. She met the appellant, whom she did not know before, outside a shop and he offered to assist her in her purchase. He took her to several shops and finally to C.F.A.O. There he made enquiries and was told outside the complainant's hearing that the firm had dye in stock and that the price was £12-10s-0d per drum. He took the complainant aside and informed her that the price was £25-0s-0d per drum. She asked him to obtain a reduction of £1-0s-0d on each drum and after examining them handed over to him £48. The appellant delivered the two drums to her on a lorry; after he had gone the complainant became dissatisfied with her purchase. On the following day she went to C.F.A.O. with the appellant to return the dye. The firm agreed to take back the goods and refund the money. They refunded the price paid which was £25. The appellant, however, said that the complainant had only given him £29 and in the course of the morning refunded the balance of £4 to her. This left £19 unpaid and it is in respect of that sum that the appellant was tried and convicted.

The Judgment then goes on to say that there was evidence reasonably sufficient to support those findings of fact, and to ask the question whether those facts constituted theft; it then quotes the text of section 383(1) of the Criminal Code, which defines stealing to include both a fraudulent taking and also a fraudulent converting, and the text of section 383(4), which explains conversion. The Judgment then continues thus:-

To constitute stealing there must therefore be either a taking or a conversion. There can, however, be neither a taking nor a conversion when the property in the thing, the subject of the theft, has passed to the accused. In the present case it is clear that when the complainant handed over to the accused the £48 she intended him not only to have the possession but also the property in the money since in exchange for it she got sold the two drums of dye she wanted. It follows that the subsequent conversion of the £19 could not amount to stealing.

The Judgment goes on to say that the facts stated earlier disclosed a clear case of obtaining money by false pretences contrary to section 419 of the Criminal Code because-

It is plain that, but for the appellant's statement that the price of each drum was £25 (rather £24), the complainant would not have parted with the £48. That statement was clearly false and could only have been made with intent to defraud.

It would seem that the learned Chief Justice of the High Court was applying to the word "obtains" in section 419 of our Criminal Code the test applied to the word "obtains" in section 32(1) of the English Larceny Act, 1916, in a count charging a person with obtaining something. For example, in R. v. Ball, 1951, 2 K.B., 109, the charge was that Ball, with intent to defraud, obtained a cheque drawn by the vicar, from the vicar's wife, by a certain false pretence, namely, that he had brought a certain number of blocks of peat, when in fact he had brought less. Lord Goddard, C.J., said this in the Judgment (at 111):-

There is no doubt that "obtains" means obtains the property and not merely the possession, and the obtaining must not for this purpose be under such circumstances as to amount to larceny.

The conclusion on the facts in that case is (p. 112) that:-

The vicar's wife had authority (viz. from the vicar) to part with the property in the cheque, and she did part with theproperty in it to the appellant in circumstances which made him the owner of the cheque.