Sunday Okoro Vs Attorney-general, Western Nigeria (1965)
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BRETT, J.S.C.
The appellant and two others were charged in the High Court of Western Nigeria with conspiracy to defraud and obtaining by false pretences. On the count for conspiracy they were all acquitted, and on the count for obtaining by false pretences the appellant was convicted of stealing. It has not been submitted in this Court that the appellant was not proved guilty of an offence, and the two questions which arise for decision are
(1) was the offence stealing or obtaining by false pretences?
(2) Having regard to the place where the material acts or events occurred, had the High Court of Western Nigeria jurisdiction to convict of it?
The facts were as follows. The appellant lived in Port Harcourt in Eastern Nigeria and held an agency for a company called the Nigerian Foam Rubber Company Limited which had its main office and warehouse in Ibadan in Western Nigeria. In Port Harcourt he posted two letters to the company enclosing what purported to be orders for goods on behalf of a company known as the Nigeria Furniture Industry Company Limited of 1 Aba Road, Port Harcourt, and these letters were received in Ibadan. In fact, no such company existed and the name was an unregistered trade name for the appellant himself, but the Nigerian Foam Rubber Company believed the orders to come from a genuine company of that name and dispatched the goods ordered by a lorry of their own, with a way-bill stating that the goods were sent at the transporter’s risk. When the lorry reached Port Harcourt the appellant informed the driver that he was authorised to accept delivery on behalf of the Nigeria Furniture Industry Company and signed the way bill as having received the goods for that company. Later he sold them, and he has not paid for them.
As to the question what offence was committed, the trial judge gave no reasons for his view that it was stealing. The Director of Public Prosecutions for Western Nigeria submitted that on the evidence the Nigerian Foam Rubber Company intended to part with the ownership of the goods to the Nigeria Furniture Industry Company, not to the appellant, and that by inducing delivery to him the appellant stole the goods. We do not consider that this makes the offence one of stealing. It might have been a ground for submitting that the information ought to have followed the second limb of section 359 of the Criminal Code, and to have alleged that the appellant induced the delivery of the goods to himself instead of alleging that he obtained them: see R. v. Lurie 35 Cr. App. R. 113; but no such submission was made on behalf of the appellant and as the Nigeria Furniture Industry Company was in fact the appellant under another name we shall in the absence of any other argument to the contrary, treat the count as having been proved as laid.
The question then arises whether the High Court of Western Nigeria had jurisdiction to convict the appellant as for an offence under the Criminal Code of the Region. The case has been argued on both sides on the assumption that the ownership of the goods did not pass until they were delivered to the appellant in Port Harcourt, and the judgment of this Court will proceed on the same assumption. What has to be decided is whether a sufficient element of the offence occurred in Western Nigeria to found jurisdiction. Mr. Cole drew our attention to the judgment of the Court of Criminal Appeal in R. v. Harden [1963] 1 Q. B 8, in which it was said that the “gist” of the offence of obtaining by false pretences lay in the act of obtaining, but we agree with the Director of Public Prosecutions for the Federation, who intervened as amicus curiae, that decisions on the position at common law are no guide to the position under the Criminal Code of Western Nigeria. The section of the Code we have to construe is section 12, which reads-
“12.(1) Where by the provisions of any law of this Region the doing of any act or the making of any omission is constituted an offence, those provisions shall apply to every person who is in the Region at the time of his doing the act or making the omission.
(2) With regard to any such offence which is of such a nature that it comprises several elements, if any acts or omissions or events actually occur, which, if they all occurred in the Region, would constitute an offence, and any of such acts or omissions or events occur in the Region, although all or some of the other acts or omission or events which if they occurred in the Region; would be elements of the offence occur elsewhere than in the Region, then-
(a) if the act or omission, which in the case of an offence committed wholly in the Region would be the initial element of the offence, occurs in the Region, the person who does that act or makes that omission is guilty of an offence of the same kind and is liable to the same punishment as if all the subsequent elements of the offence had occurred in the Region; and
(b) if that act or omission occurs elsewhere than in the Region, and the person who does that act or makes that omission afterwards comes into the Region, he is by such coming into the Region guilty of an offence of the same kind and is liable to the same punishment, as if that act or omission had occurred in the Region and he had been in the Region when it occurred.
But in any such case it is a defence to the charge to prove that the accused person did not intend that the act or omission should have effect in the Region. This subsection does not extend to a case in which the only material event that occurs in the Region is the death in the Region of a person whose death is caused by an act, done or omitted to be done, at a place not in the Region and at a time when he was not in the Region.”
The appellant was arrested in Port Harcourt and brought to Western Nigeria for trial, so that the respondent has to rely on subsection (2)(a) since subsection (2)(b) only applies where the defendant has come into the Region voluntarily: see section 22. The question is, whether it can be said that the act which, if the offence had been wholly committed in the Region, would have been the initial element of the offence, occurred in the Region. The initial element of the offence of obtaining by false pretences is the making of a false representation: section 358 of the Code; and, as has been pointed out by the Director of Public Prosecutions for the Federation, a representation can only be made to some other person, and is not complete until it has come to his notice. Here we have a letter posted in Port Harcourt and received in Ibadan. The words “act or omission” in section 12 (2)(a) are capable of referring to the physical act of posting the letter, as this Court held to be the case in R.v. Osoba [1961] All N.L.R. 1, but we do not consider that that decision requires us to hold that they refer only to the physical act, and we accept the submission that the making of the false representation was a continuing act, started when the letter was posted and completed when it was received and read. This is consistent with the statement made in the High Court of Australia by Griffith C.J., in McKelvey v. Meagher (1907) 4 C.L.R. 265, 281, when he said “the commonsense view of the matter is that the act of quitting a place is done partly inside and partly outside the place.”
If the result is that the initial element of an offence may be regarded as having occurred in more than one territory we see nothing incompatible with international or inter-Regional comity in such a construction, and Chapters 3 and 51 of the Criminal Code of Western Nigeria designedly deal with a number of situations where there may be concurrent jurisdiction.
In such a case, where any competent court has tried a person once for an offence, section 22(8) of the Constitution of the Federation protects him from being tried a second for the same offence or for an offence having the same ingredients, save upon the order of a superior court, and such an order will not be made unless the first judgment has been set aside.
In our view, therefore, the High Court of Western Nigeria had jurisdiction to convict of the offence charged. The conviction for stealing and the sentence imposed by the High Court are set aside and in their place a conviction for obtaining by false pretences in the terms of count 2 of the information and a sentence of imprisonment with hard labour for three years are substituted.
Other Citation: (1965) LCN/1287(SC)
