Engineer Yaw is a well-known man in the society especially for his dexterity in the electrification of newly constructed buildings. On the 3rd of July, 2015, he was awarded a contract worth N50,000,000 to ensure the electrification of the new ultra-modern poultry of Seun Oladele Farms Ltd. Upon the award of the contract, he approached Sudoku Electrical and Electronic Company Ltd to purchase the electrical materials to be used for the project. The total cost of the electrical materials Engineer Yaw ordered was N31,254,500 and he presented a Jarroy Bank cheque bearing the name “Engiyaw Electrical Company Limited” to cover the cost.
On the 6th of July, 2015, Mr. Klam, the Chief Accounting Officer of Sudoku Electrical and Electronic Company Ltd presented the Cheque at Jarroy Bank and he was greeted with the shock of his life; the Bank knows nothing about an account holder with the Account Name “Engiyaw Electrical Company Limited”. It was later discovered that there was in fact no company bearing such name in existence.
Engineer Yaw has been arrested and the management of the company rest assured that he will face the wrath of the Law for engaging in “419”. However, they have been having sleepless nights over how to recover the loss of the company.
Points to Note:
1. “Obtaining property by false pretence” is the obtaining of property by intentionally misrepresenting a past or existing facts. For instance, our own dear Yahoo boys falsely pretend to be what they’re not and misrepresent themselves to their victims in order to obtain money and other valuables from them.
2. It is popularly referred to as “419” in casual usage because the offence is defined in Section 419 of the Criminal Code of Nigeria.
3. For a person to be guilty of obtaining by false pretence, the following elements must be proved:
(i) that there is a pretence;
(ii) that the pretence emanated from the accused person;
(iii) that the pretence was false;
(iv) that the accused person knows of its falsity or that he does not believe in its truth;
(v) that there was an intention to defraud;
(vi) that the thing was capable of being stolen;
(vii) that the accused person made the owner to transfer his own interest in the property;
4. If the accused person is found guilty of the offence of obtaining by false pretence, he will be punished accordingly with imprisonment; if the thing is of the value of one thousand naira or upwards, he is liable to imprisonment for seven year and it is immaterial that the thing is obtained or its delivery is induced through the medium of a contract induced by the false pretence.
5. However, this does not guarantee the recovery of the victim’s loss even though there are new developments in this respect under the Nigerian Law.
6. It is therefore advisable for the victim to bring a separate civil suit for “conversion” to recover the property obtained by false pretence.
7. Conversion is an intentional tort in which one person “takes” someone else’s property by using or altering the property in a way that is inconsistent with the rights of the owner.
8. For the victim to succeed in an action for conversion, he must prove the following elements:
(i) the defendant took and/or changed his property somehow;
(ii) the change prevents or hinders him from using his property in some way; and
(iii) being unable to use the property the way he wanted caused damages to him.
9. Note, however, that the defendant need not physically take the property before he can be guilty or liable for obtaining by false pretence and conversion respectively. This shows why yahoo boys are often found guilty of obtaining by false pretence (419) even though the transaction is usually online.
It is therefore my advice for the management of Sudoku Electrical and Electronic Company Ltd to bring a separate action for conversion against Engineer Yaw to recover the goods he falsely obtained or, alternatively, the equivalent sum.
MY LEGAL DIARY
Joseph Jagunmolu Ogunmodede