Olayinka Faro V. Inspector General Of Police (1964)
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PER BRETT JSC
This is an appeal against the judgment of De Lestang, C.J., dismissing the appeal brought by the appellant against his conviction before a magistrate on a charge of obtaining money by false pretences.
The charge before the magistrate alleged that the appellant and three other persons obtained sums of £112-10s from each of two complainants with whom they were treating for the sale of a piece of land “by falsely pretending that a piece and parcel of land situated at Ikeja Airport area belonged to one Thomas Omojola and that the said Thomas Omojola was in a position to sell same as the owner.” The facts proved were summarised by the Chief Justice as follows-
“What happened was that the complainants being desirous of purchasing land approached one of the appellants to find a suitable plot for them. In due course one of the appellants informed them that he had found a piece of land at Ikeja which the complainants visited with another of the appellants and approved. He also produced a conveyance in respect of the land which showed that it belonged to one Yesufu Iyaniwura. The complainants were not prepared to part with the purchase price except to the owner whom they insisted on seeing and eventually the appellants produced a man whom they said was Yesufu Iyaniwura the owner of the land, and the father of one of the appellants. The complainants paid money to this man who gave receipts in the name of Yesufu Iyaniwura. It was subsequently discovered that he was not Yesufu Iyaniwura, who had in fact died sometime previously, but one Thomas Omojola.”
No criticism of these findings has been made before this Court, and the only ground of appeal argued is that there was a variation between the false pretences alleged and those proved which in one place is described as “great and serious” and in another as “substantial”.
It is well established that if there is a difference in substance between the pretence alleged in the charge and the pretence by means of which the property was obtained an accused person is entitled to be acquitted, and in deciding whether such a difference exists, what the Courts have to do is to compare the substance of the pretence alleged with that of the operative pretence. In this case it is submitted that the pretence proved was ‘Land belonged to Yesufu Iyaniwura and Thomas Omojola was presented or otherwise presented himself as Yesufu Iyaniwura and in a position to sell same as such,’ and that this differs from the pretence charged. That is certainly one way of setting out the operative pretence; alternatively, it would be possible to set it out by adding certain words to the description of the offence in the charge, so that it read as follows-
“by falsely pretending that a piece and parcel of land at Ikeja Airport area belonged to (a man introduced personally by you to the complainant as Yesufu Iyaniwura, but who, in fact, was) one Thomas Omojola and that the said Thomas Omojola (the person introduced by you as Yesufu Iyaniwura) was in a position to sell same as the owner.”
The question is whether these alternative ways of setting out the operative pretence make any difference to the substance of the pretence. In our view, these possible alternative forms of wording-and there may be others-do not differ in substance from the charge as laid and, as was submitted on behalf of the respondent, the charge as laid fulfilled the main purpose of a charge by giving the appellant notice of the case against him.
There is nothing obscure or uncertain about the charge as it stands, and in our view it was proved.
The appeal is dismissed.
Other Citation: (1964) LCN/1184(SC)
