Ratio Decidendi
Criminal Law and Procedure — Separate Trials — When the court may order separate trials of counts in a charge sheet
As to this the joinder of the charges in the same information was clearly allowable under the provisions of section 103 of the Criminal Procedure Ordinance (Cap. 10) (as substituted by section 3 of Ordinance No. 42 of 1939). But section 105 of that Ordinance provides- "Notwithstanding the provisions of sections 103 and 104 where before any trial or at any stage of a trial, the Court is of opinion that the person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same complaint, charge sheet, or information, the Court may order a separate trial of any count or counts of such complaint, charge sheet, or information.”Whist we are of opinion that a court should be astute to safe- guard the interests of an accused person by ordering separate trials whenever be may be prejudiced or embarrassed in his defence by joinder, the question is always one for the discretion of the trial judge, which must, of course, be exercised judicially.
Ratio Decidendi
Criminal Law and Procedure — Offence of fraudulent breach of trust — What the prosecution must prove to sustain a conviction for the offence of fraudulent breach of trust
In order to sustain a conviction upon this count the prosecution must show two things, namely:-First, that ownership of the sum of £50 lent by Sarah Blankson became vested in the appellant as Manager and Receiver of the estate of J. E. Mettle (deceased) for the benefit of the beneficiaries, and secondly, that the appellant dishonestly appropriated that sum whilst the ownership of it was so vested.



REX
V.
JOSEPH EMMANUEL ODOI

JELR 81140 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
 · 
Other Citations
1942 8 WACA 156-160
CORAM
COR. KINGDON, PETRIDES AND GRAHAM PAUL, C.JJ.

Ratio Decidendi

Core Terms Beta
money
conviction
court
false pretence
fraudulent breach of trust
section
present case
counts
joseph emmanuel odoi
second count
accra magisterial district
border line
criminal code
false pretences
particulars of offence
receiver of the estate of j. e. mettle
sarah blankson
date unknown
existing fact
grounds of law
month of july
5th day of july
accra assizes
beneficiaries of the said estate
charge of the representation of an alleged existing fact
charges
charge sheet
c.j
different sides
eastern province
first ground of law
gold coast
grounds of appeal
hard labour
joinder of the charges
r. v. lee
support of those charges
very words of the indictment

KINGDON, C.J, NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.

In this case the appellant was charged before Lane, J., sitting without a jury or assessors, at the Accra Assizes upon the following three counts in the same information:

“First Count: Fraud by False Pretence contrary to section 276 of the Criminal Code: Particulars of offence; Joseph Emmanuel Odoi on or about the 5th day of July, 1939, at Accra in the Accra Magisterial District in the Eastern Province with intent to defraud obtained from Sarah Blankson £50 by falsely pretending that he Joseph Emmanuel Odoi as Manager and Receiver of the estate of J. E. Mettle deceased honestly required the said sum of £50 only to pay labourers working on cocoa farms of the said estate of J. E. Mettle (deceased)

“Second Count: Fraudulent Breach of Trust contrary to section 275 of the Criminal Code: Particulars of offence: Joseph Emmanuel Odoi on a date unknown in the month of July, 1939, at Accra in the Accra Magisterial District in the Eastern Province committed a fraudulent breach of trust in that he dishonestly appropriated the sum of £50 in money the ownership of which was vested in him as Manager and Receiver of the estate of J. E. Mettle (deceased) for the benefit of Christiana Adjuah Mettle and others, beneficiaries of the said estate.”

“Third Count: Stealing by means of office contrary to section 271 (1) of the Criminal Code: Particulars of offence: Joseph Emmanuel Odoi on a date unknown in the month of July, 1939, at Accra in the Accra Magisterial District in the Eastera Province stole £50 in money, property of Christiana Adjuah Mettle and others, beneficiaries of the estate of J. E. Mettle (deceased) of which he had the control by reason of his office as Manager and Receiver of the said estate.”

He was convicted upon counts 1 and 2 and acquitted on the third count. He was sentenced to eighteen months’ imprisonment with hard labour on each of counts 1 and 2, the sentences to run concurrently.

Against his convictions the appellant has appealed on several grounds of law as well as fact. The first ground of law is-

“Error in Law. The Court was wrong in allowing the charges of False Pretences, Fraudulent Breach of Trust and stealing to be proceeded with it one and the same time and in not putting the prosecution to their election, having regard to the evidence led in support of those charges.”

As to this the joinder of the charges in the same information was clearly allowable under the provisions of section 103 of the Criminal Procedure Ordinance (Cap. 10) (as substituted by section 3 of Ordinance No. 42 of 1939). But section 105 of that Ordinance provides-

"Notwithstanding the provisions of sections 103 and 104 where before any trial or at any stage of a trial, the Court is of opinion that the person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same complaint, charge sheet, or information, the Court may order a separate trial of any count or counts of such complaint, charge sheet, or information.”

Whist we are of opinion that a court should be astute to safe- guard the interests of an accused person by ordering separate trials whenever be may be prejudiced or embarrassed in his defence by joinder, the question is always one for the discretion of the trial judge, which must, of course, be exercised judicially. In the present case it is sufficient to say that it has not been shown to our satisfaction that the judge exercised his discretion wrongly or that the appellant was, in fact, prejudiced or embarrassed by the joinder. This ground fails.

The next ground with which it will be convenient to deal is ground 3 of the grounds of law, which reads:-

“The Court was wrong in finding the accused guilty of False Pretences.”

The argument on behalf of the appellant upon this ground is that the false pretence alleged is in regard to future conduct and that is always held not to support the charge.

The border line between what is a false pretence as to an existing state of fact on the one hand, and a pretence as to future conduct on the other is often a narrow one, and the present case is certainly near the border line. The two decided cases near to the border line, but on different sides of it, and each in its own way bearing some resemblance to the present are R. v. Lee (9 Cox 304), and R. v. Alexandra (26 Cr. App. Rep. 116). In R. v. Lee the prosecutor lent Lee £10 on the strength of a false pretence by Lee that he was going to pay his rent. It was held that that was not a false pretence of an existing fact to warrant a conviction. Counsel for the appellant relies upon that case and in the present case submits that the facts are indistinguishable from those in R. v. Lee, suggesting that the false pretence amounts to no more than this-that the appellant intended to pay some labourers with the money obtained.

Counsel for the Crown on the other hand, has avowedly taken the case of Rex v. Alexandra as his model for the prosecution in the present case. The head note to that case reads:-

“An allegation that a prisoner falsely pretended that he honestly required (a sum of money) only to secure himself against any breach by (an employee) of a certain contract is a charge of the representation of an alleged existing fact sufficient to support an indictment for obtaining the money by false pretences.”

and in giving the judgment of the Court Hewart, L.C.J. said.

“It is necessary to look at the very words of the indictment, and I repeat them. The appellant is charged with obtaining, with intent to defraud, certain money by falsely pretending that he honestly required the same only to secure himself against any breach by Dormer of a certain contract that day made with him. In our opinion, that is a perfectly good statement of an alleged existing fact, and the cases about future conduct have no bearing upon it. It is a matter of law that in a case of false pretences that which is relied upon must “be a representation of an alleged existing fact.” It appears that the true test to be applied is is any existing fact alleged as an inducement to part, such alleged existing fact “being untrue to the knowledge of the accused?” Applying that test to the present case we think that the answer is yes, namely the alleged fact that money was required to pay labourers working on cocoa farms, whereas in truth and in fact no money was required for that purpose since the labourers’ wages were payable from the proceeds of the produce of the farms.”

Taking that view we hold that this case is on the criminal side of the border line and that the appellant was rightly convicted upon count 1, the evidence being amply sufficient to support the charge.

Coming to the second count, there are two grounds of appeal which may be conveniently considered together, namely, “The Court was wrong in convicting the accused of False Pretences and of Fraudulent Breach of Trust in regard to the same sum of £50 alleged to have been received by false pretences from Madam Sarah Adjuah Blankson.” “That the verdict was unreasonable and cannot be supported, having regard to the weight and the nature of the evidence.”

In order to sustain a conviction upon this count the prosecution must show two things, namely:-

First, that ownership of the sum of £50 lent by Sarah Blankson became vested in the appellant as Manager and Receiver of the estate of J. E. Mettle (deceased) for the benefit of the beneficiaries, and secondly, that the appellant dishonestly appropriated that sum whilst the ownership of it was so vested.

We are of opinion that the prosecution failed to prove the first of these two essential ingredients of the offence, in that the evidence shows clearly that at the very moment at which he received the money the appellant had the animus furandi, that is to say, he actually received it for himself with criminal dishonesty, and did not first receive it as Manager and Receiver of the estate and later criminally misappropriate it. It is indeed of the very essence of the first count upon which the appellant has been convicted, and in our view rightly convicted, that he obtained the money with intent to defraud, and we think that this necessarily carries with it the implication that the money went direct into the appellant’s own pocket and never became part of the estate funds. It follows that the conviction upon the second count must be quashed.

The appeal against the conviction upon count 1 is dismissed. The appeal against the conviction upon count 2 is allowed, the conviction upon this count is quashed and it is directed that in respect of this count a judgment and verdict of acquittal be entered.