OBTAINING BY FALSE PRETENCE

In this unit, you will know that obtaining by false pretences is a felony whose main ingredient is intent to defraud and is geared towards anything capable of being stolen. This unit is patterned as follows:

1.0 INTRODUCTION

The offence of obtaining by false pretences is commonplace to the extent that it is gaining increasing notoriety in Nigeria. The offence is so widespread that governments at all levels are doing everything possible by way of legislation to check its wanton occurrence.

2.0 OBJECTIVES

What this unit seeks to achieve is for you to appreciate the ingredients of the offence of false pretence. This will enable you to have a firm grounding on the topic and also widen your intellectual frontiers within the greater regime of criminal law. The high incidence of the offence and the negative image it has given Nigeria in the international scene makes it imperative for you to be systematically instructed on it. At the end of this unit, you should be able to: expressly state what false pretense is.

3.0 MAIN CONTENT

3.1 Definition

Obtaining property by false pretence is committed when a person by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen or induces any other person to deliver to any person anything capable of being stolen. The punishment for

obtaining by false pretences and the offence itself are contained in section 419 of the Criminal Code. It does not matter that the thing is obtained or its delivery induced through the medium of a contract induced by false pretence. The offender cannot be arrested without warrant, unless found in the very act of committing the offence.

3.2 Obtaining

For “obtaining” to take place, one must induce the owner of the property to transfer his/her whole interest in the property. The usual distinction which must be drawn is between “possession” and “ownership”. Thus if by an act of any accused person possession only is transferred, then the proper offence is stealing. If, however, both possession and ownership are transferred, then the proper offence is obtaining by false pretence – see Akosa v. Commissioner of Police (1950) 13 WACA 43.
Okonkwo and Naish submit that on the principle of Oshin (Supra), the case of State v. Osuafor (1972) 2 FCSLR 412, in which accused was convicted of obtaining by false pretence, was wrongly decided. They submit that the proper offence in Osuafor’s case was stealing because only possession was obtained by the accused.

The learned authors also submit that the case of Abasi v. COP (1965) NWLR 461 was wrongly decided because the offence committed was obtaining by false pretence and not stealing as was held by the court because both possession and ownership were involved.


The practice known as money doubling is offence of obtaining money by false pretence. See R. v. Adegboyega (1973) 3 WACA, 199. Compare this case with section 385 of the Criminal Code, which deals with fund under direction. If only a bailment of property is obtained, false pretence is not committed.

Illustration
If A by false pretence obtains the hire of B’s bicycle for a day and returns but does not pay the hire charge, this is not obtaining of the bicycle by false pretence because what A obtains was only a ride on the bicycle (possession) and not B’s entire interest (ownership) of it.
Furthermore, in R. v. Kilham (1870) 1 CCR 261, K obtained hire of a horse by false pretence, returned the horse without paying the cost of the hire. It was held that K’s conduct did not amount to obtaining by false pretence. See also the case of R. v. Boulton 1 Den. 508 and R. v. Chapman (1910) 4 Cr. App R 276.


If a person obtains a loan of money by false pretence even though he intends to repay it, the offence of obtaining by false pretence will lie against the offender or the accused because ownership in the particular money lent has passed to him. See R. v. Ogbanna (1941) 7 WACA 139. The property (ownership) in the goods must be obtained from the general owner or from someone who has power to pass the property. See R. v. Ball (1951) 2 KB 129. If the accused by false pretence obtains property from a bailee with intent to deprive the owner permanently, this is stealing.
The owner of land has special property (interest) in things found on his land and same is applicable to a finder of lost articles. It may be false pretence to induce them to give out their entire interest in such goods or articles.

If a customer pays a forged cheque into a bank account and the bank makes an entry crediting him with the amount on the cheque, he is not guilty of obtaining money from the bank by false pretence and this offence can only crystallize when the bank actually hands over or pays the money to the customer, irrespective of how much it credited in favour of the customer in his account because property in the money still resides with the bank. The offence under discussion cannot be examined properly without the expression “inducing deliver”. There is therefore, a great chasm between “obtaining and inducing deliver”. Obtaining means obtaining for oneself and inducing delivery covers a situation whereby A induces B to deliver to himself to C.
Inducing delivery in the crime of false pretence means inducing delivery of ownership and if there is merely a delivery of possession of accused that will amount to stealing.

3.3 The Pretence

A pretence is any representation which can manifest by words, writing or conduct, of a matter of fact, either past or present, which representation is false in fact and which the person making it knows to be false or does not believe to be true. It is important to note however that a pretence can be inferred from the conduct of the accused and circumstance of the case.

3.4 Past and Present Matter

The representation must refer to a matter of fact either past or present. If it relates only to a future matter, the offence of obtaining by false pretence is not committed. Thus in Achonre v. Inspector General of Police (1958) 3 FSC 30, it was held that the accused was not guilty of obtaining money by false pretence because the representation related only to a future matter. Inneh v. Commissioner of Police (1959) WRNLR 204, it was held that the giving of a post dated cheque implies a future representation. But if the drawer has no account at all at the bank, then there is a false representation on an existing fact. If the false representation consists partly of a statement of a past or present matter and partly of a statement relating to the future, an offence is committed by false pretence, provided the former statement is a material contributory factor inducing the representee to part with his property.
In the English case of R. v. Jennison (1862) L & C 157, the accused, a married man, represented himself as being single and induced a girl to give him money promising that he would use the money to furnish a house and thereafter marry her. He was convicted of obtaining money by false pretence. In the above case, although there was a future promise, yet the statement that the accused was single related to an existing fact and was an important factor which induced the girl to part with her money.
Sometimes a promise to do something in the future may involve a false pretence that the promisor has the present means and ability to do that thing. If this is so, then there is representation of an existing fact. See R. v. Dent (1955) 2 ALL ER 806.

3.5 Falsity of the Pretence

The law is that the pretence must not only be false but it must be false to the knowledge of the maker, or at least, he must not believe it to be true. If the accused honestly believes in the truth of the statement which unfortunately turns out not to be so, this is no false pretence but merely an expression of opinion. It is only a statement of fact that cannot, which in law constitute a false pretence.
Illustration If a butcher represents the meat he sells as the best in the market and it turns out to be so, this is no false pretence but merely an expression of opinion. But if a trader knowingly makes a false statement of fact concerning his product, that is false pretence in the eyes of the law. The prosecution has a heavy burden of proving the falsity of the pretence and if the pretence is shown to be false, it is no defence that the person defrauded, parted with his property in order that it might be put to an unlawful purpose.

3.6 Intent to Defraud

There must be intent on the part of the accused to defraud, though it is not necessary to allege an intent to defraud any particular person. An intent to defraud is an intent to induce another by deceit, to act to his detriment or contrary to what would otherwise be his duty and it is immaterial that there is no intention to cause pecuniary or economic loss. See the case of Welhem v. DPP (1961) AC 103. Thus if A obtains money from B by false pretence, the intent to defraud is not negative by showing that the money so obtained is nothing more than a suitable reward for the services rendered by A to B. See the cases of R. v. Anijoloja (1936) 13 NLR 85 and R. v. Abuah (1961) All NLR 635. 3.7 Effect of Pretence

The law is that the pretence must have induced the owner to part with his goods. It must be shown clearly that the alleged false representation weighed on the mind of the representee and therefore made him to part with the goods. If the representations consist of variety of statements wherein one of such statements is false, by the authority of R. v. Jenisson (1862) L & C 157, the representee will be guilty if that false statement is an effective cause of the transfer of ownership.

Where there is no express request for the transfer of ownership, the pretence may be implied from the conduct of the accused. If the person to whom the false pretence or representation is made is aware that the said representation by the accused is false or where he is not deceived by it, but nevertheless, he parts with his property, the offence of obtaining by false pretence is not committed. At most, the accused may be convicted of attempting to obtain by false pretence. See Omotosho v. Police (1961) 1 All NLR 693.

4.0 CONCLUSION

We discussed S. 419 of the Criminal Code, which is obtaining under false pretence which is the unlawful and intentional making of a
misrepresentation which causes actual prejudice or which is potentially prejudicial. The effort here is to show that there are differences in the content of the offence of stealing and obtaining by false pretence.

5.0 SUMMARY

This offence is committed with false pretence. The owner of the thing or property must transfer his whole interest in the property to the accused. Obtaining by false pretences is different from stealing. The false pretence can manifest by words, writing or conduct. The representation must refer to a matter of fact either past or present. There must be intention to defraud. The effect of pretence is that it must have induced the owner to partwith the goods.

6.0 TUTOR-MARKED ASSIGNMENT

1.  Mr. A recently converted a warehouse belonging to him into his residence and resides there. At about 7p.m yesterday, Mr. B broke and entered the said warehouse with intention to steal and broke out this morning by 4.30a.m. What crime has Mr. B committed
2. How can you distinguish the offence of obtaining by false pretence from stealing
3. When can you say that a pretence is false and that there is intent to defraud?