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KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE. In this case the two appellants were convicted in the High Court of the Ibadan Judicial Division sitting at Ijebu Ode of obtaining money by false pretences contrary to section 419 of the Criminal Code and were sentenced the first to three years I.H.L. and the second to eighteen months I.H.L. a further order wag made that a sum of £10 Os 7 d found in the possession of second appellant " be restored to the complainant Yesufu Akinola “.
The particulars of the alleged offence were:- “Aruna Lawani and Buraimoh Disu of lmodi on the 22nd day “of November, 1942, at Imodi, Ijebu-Ode District in the Province “of Ijebu, with intent to defraud, induced one Yesufu Akinola to pay “to them the sum of £52 for two motor tyres, by falsely pretending “that they, Aruna Lawani and Buraimoh Disu, had tow motor tyres “for sale to Yesufu Akinola.”
The evidence of the complainant as to the actual occurrence relating to the charge was as follows:-
“I am Transport Agent and own motor lorries. I know the two “accused-also one Nosiru Ashiru. About 3 months ago I went to “Ibadan. There I met Nosiru. I told him something. I then went “with him to Ijebu Ode. From there he took me to Imodi where I “met the 1st accused. We went into his house. Nosiru said to 1st “accused- ‘With reference to what you told me about motor tyres: “here is my father who wants to buy motor tyres'. The second “accused was present with 1st accused. Aruna (AI) then said that “he had some tyres for sale and told the 2nd accused and another boy “to bring two. They went out and soon afterwards returned with the “tyres. He-1st accused-said he wanted £40 for each tyre. I said “I could not pay that but offered £30. Accused agreed. I paid him “£52 in currency notes. Accused then said he had 12 more tyres “for sale. I examined the two tyres which were new Goodyear. “Accused said I should go away and bring more money to buy more “tyres and that I should let my driver remain with him until I “returned. I asked him for a receipt for the £52 I had paid. He “ said I still had some balance to pay-why should I worry now about “a receipt. He did not let me take the two tyres away. I then went “away to lseyin leaving my driver Laleye behind.”
It is clear from this evidence that the first appellant did actually produce two tyres and offer them for sale to complainant, that a bargain was struck and part payment made. These facts place upon the prosecution a very heavy -onus to prove that the first appellant in producing the tyres and offering them for sale had not in truth and in fact two tyres for Bale and was only falsely pretending that he had.
In the opinion of the Court the prosecution entirely failed to discharge this onus; in its view, no evidence was led which was not equally compatible with the appellants being innocent of this charge as with their being guilty of it.
The appeals are accordingly allowed the convictions and sentences are quashed and it is ordered that in the case of each appellant a judgment and verdict of acquittal be entered. The appellants are discharged.
It is further ordered that the order for the sum of £10 Os 7d found in the possession of the second appellant to be “restored to” the complainant Yesufu Akinola “ be cancelled and that the said sum shall be refunded to the second appellant.