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30 Dec

CRIMINAL LAW 2.2 OBTAINING BY FALSE PRETENCE

TOPIC 2: OBTAINING BY FALSE PRETENCE.

This is the popular 419, contained in Section 419 of the Criminal Code provides that, when a person by any false pretence and with the intent to defraud obtains from another, anything capable of being stolen or induces any person to deliver to any person anything capable of being stolen. He is guilty of a felony and can bag 3 years imprisonment. But if the value of what is obtained is more than N 1,000… 7 years. The Lagos state criminal law makes the punishment 7-20 years.

The elements of the offence include:

  1. There must be a false pretence:

“false pretence” by Section 418, is a false representation of fact past or present which the representor knows to be false. The prosecution must prove this.

:: Such representation can be by words or conduct: In R V Barnard, the accused went into an Oxfords shop wearing a fellow-commoner’s gown. This induced the shopkeeper to sell goods to him on credit. The court held that he was guilty of obtaining by false pretence because by conduct and appearance, he had represented that he was a fellow commoner. Similar facts occurred in R V Jones.

:: The representation must relate to a matter of fact past or present… NOT future: In Achonra V IGP, the accused collected money from another person to bribe a public officer to give him a job. The court held that it related to a future event. In Inneh V IGP, it was held that drawing a post-dated cheque implies a future representation.

:: It may suffice if the representation is partly present and partly future so long as it was the facilitative cause for transfer (of the thing obtained). In R V Jennison, the accused told a woman that he was single and collected money from her on the agreement that he would furnish a house and marry her. The court held that the statement by the accused that he was single was a present misrepresentation notwithstanding that the promise to marry related to the future.

:: A promise to do something may be coupled with the pretence that the promisor has the present ability to do it. This position was however rejected in R V Dent, where the accused took some money from some farmers pretending that he would kill vermin on their land but did not. He was not convicted for obtaining by false pretence.

  1. The false pretence must have induced the victim to transfer ownership to the accused.

Meaning that the pretence should be the effective cause of the transfer of property.

:: Where mere possession is transferred, it may be stealing but certainly not obtaining by false pretence. Hiring a property by false pretence would not suffice because only possession is being transferred. In R V Kilhamm, the accused obtained a horse by false pretence on hire and returned it without paying. Held, not obtaining by false pretence.

For the purpose of clarification, possession connotes physical custody of goods (for example, bailment) while ownership implies proprietary title over goods.

The case laws under this heading always seem to confuse or separate the offence of obtaining by false pretences with the offence of stealing. In Oshin V IGP, the accused, pretending to be a store clerk helped a customer to purchase some goods from the store. He obtained more than what was due for the goods and pocketed the difference. He was convicted for stealing rather than false pretence because the customer intended to transfer the property to the shopkeeper. In State V Osuofor, (the accused) a revenue collector used false receipts to collect revenue. The court held that he obtained by false pretence. It has however been criticised that the residents intended to give his employer the money paid rather than the accused. As such he ought to have been guilty of stealing. In R V Adeboyega, it was suggested that money doubling should be stealing, it however depends on the facts of each case.

If the representee is aware of the pretence or not moved by it, no obtaining. The accused may be charged with attempt. R V Light. 1915 11 Cr. App R 111. Omotosho V Police. Okezie V R

  1. The pretence must have been made with the intent to defraud.

Irrelevant that the accused had no intention to cause pecuniary loss.

In R V Abuah, A legal practitioner falsely represented that he had the authority of his client to obtain a judgement money from the court. He then deposited the money into his account. Upon a charge, the accused argued that there was no intention to defraud the client or the treasury. He was convicted for obtaining by false pretences, and that the withdrawal gave him a higher bargaining power over his client and that he made the treasury part with money which belonged to another person. Seelneham V DPP.

Section 420 of the criminal code provides for the offence of obtaining execution of a security by false pretence.

In conclusion, although the offences of stealing and obtaining by false pretence appear similar, interwoven and confusing (as the cases above show)… they are separate offences with distinct elements. All these cases are quite academic and constitute a distinction without a difference. What is important is to note the essential elements of the offence and discuss them in the exam then add the cases to explain when the need arises.

 

Isochukwu

Quite eccentric really

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