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The following joint judgment was delivered ;-
BUTLER LLOYD, AG. C.J., NIGERIA, GRAHAM PAUL AND BROOKE, JJ.
The four appellants were charged on three counts :(1) Cheating, contra. Sec. 421 c.c.
(2) Stealing, contra. Sec. 390 C.C.
(3) Being persons suspected of having stolen goods contra. Sec. 430 C.C.
The learned Judge in the Court below found the first and third accused guilty on the first count and all four accused guilty on the third count. As regards the second count the learned Judge held that it would not lie as .. Being bad for duplicity consisting of a similar act to that of the first charge."
The first and third accused have appealed against their convictions on the 1st and 3rd counts and all four accused have appealed against their convictions on the 3rd count.
The learned Judge believed the evidence of the complainant Petrus Epanya as to how he came to part with £200 and not havingseen or heard the witnesses we are not prepared to hold that the learned Judge was wrong in believing the complainant.
Accepting the complainant's evidence however we find that it discloses nothing which could be described as a .. fraudulent trick or device", and we think that the learned Judge was wrong in convicting the 1st and 3rd accused under section 421 of the Criminal ,Code. It is however in our opinion clear that there was a .. false pretence" as defined in section 418 of the Criminal Code by the 1st accused and that by that false pretence the 1st and,3rd accused with intent to defraud did induce the complainant to deliver to them the sum of £200.
On the evidence of the complainant it is we think clear that the 1st and 3rd accused were guilty of an offence under section 419 of the Criminal Code.
We are also of opinion that the learned Judge, with the charge of stealing before him, ought to have treated it as an alternative charge to the first count and not as bad for duplicity. So treating the second count the learned Judge on the second count, believing as he did the evidence of the complainant could-and in our opinion should-have found the 1st and 3rd accused guilty of an offence under section 419. Section 59 (2) of the Criminal Procedure Ordinance in our opinion gave the Judge power to do this.
It follows that under section 11 (2) of the West African Court of Appeal Ordinance this Court can-and in our opinion-should, instead of allowing the appeals of the 1st and 3m accused, substitute for the verdict found by the Judge on the 1st count as against