Johnson Ogu v. The Queen (1963)

BRETT, F.J. 

The appellant was convicted on six counts for uttering, contrary to section 467 (3) (c) of the Criminal Code, or section 366 of the Penal Code, on four counts for stealing contrary to section 390 (6) of the Criminal Code, and on two counts for cheating contrary to section 322 of the Penal Code.

In outline the case against him was that while employed as a clerk in the Treasury he caused vouchers to be submitted to the Treasury, Jos, purporting to show that various sums were due to contractors for work carried out on behalf of the Public Works Department, and that in consequence of these vouchers cheques were issued of which the proceeds were credited to bank accounts operated by the appellant himself under different names.

The signatures on the vouchers purporting to be those of the officers controlling payment were forged, and the work supposed to have been done had not been done. The total sum obtained by means of these frauds was over #6,000, and the offences were committed over a period of fourteen months.

There was no direct evidence of how the appellant caused the vouchers to be presented to the Treasury, but there was over whelming circumstantial evidence that he either presented them himself or procured this to be done, and there is nothing in the submission that a vital link in the chain of evidence on the counts for uttering was missing. The submission that the judge assessed the evidence of the handwriting expert incorrectly is equally without substance, and the appeal is dismissed so far as it relates to the counts for uttering and cheating.

The convictions on the counts for stealing, however, cannot be upheld. The evidence showed that the appellant obtained a number of cheques by means of forged vouchers and paid those cheques into his own bank accounts. Thereafter he drew on his own accounts and the judge upheld the submission of the prosecution that in doing so he stole the money of the drawer of the cheques which he had paid into his accounts. If a cheque obtained by fraud is later honoured by the drawer’s bank, the payee may because the debtor of the drawer; he is not his trustee, and he acquires a good title to the proceeds of the cheque, so that even if it had been strictly proved that the appellant’s bank had collected the proceeds of the cheques on his behalf from the drawer’s bank, it could not be said that in drawing on his own account the appellant took or converted money which still belonged to the drawer of the cheques.

There is no doubt, however, that the cheques themselves were obtained with intent to defraud and by the false pretence that the vouchers were genuine, and as the obtaining of the cheques formed part of the same series of acts as the acts alleged to constitute stealing, the Court below would have had power under section 217 of the Criminal Procedure Code to convict the appellant of obtaining the cheques by false pretences, and this court has power under section 27 (2) of the Federal Supreme Court Act to substitute a conviction for that offence.

For the convictions for stealing money on counts 15,16, 17 and 18 we therefore substitute in each case a conviction under section 419 of the Criminal Code for obtaining by false pretences and with intent to defraud a cheque for the same amount of money as is referred to in the count, and we pass a sentence of five years imprisonment for each of those four offences, and direct that those sentences shall run concurrently with each other and with the sentences imposed on the counts for uttering and cheating.   

F.S.C.186/1962