Division: IN THE SUPREME COURT
Date: 6 NOVEMBER 1964
Before: OLLENNU, ACOLATSE AND SIRIBOE JJSC
JUDGMENT OF OLLENNU JSC
Ollennu JSC delivered the judgment of the court. The appellant was tried by Sowah J. sitting with assessors. The indictment charged him with three counts, namely (1) forgery, (2) uttering a forged document and (3) stealing. The learned judge convicted him on the counts of forgery and uttering a forged document, and by virtue of the provisions of section 136 of the Criminal Code, 1960,1 and section 157 of the Criminal Procedure Code, 1960,2 convicted him of fraud by false pretence instead of the offence of stealing charged.
Three grounds of appeal couched in non-legal language were filed and argued by the appellant. The essence of the said grounds and the appellant’s submissions thereon are: (1) the prosecution failed to prove intent to defraud, the essential ingredient in each of the offences of which he was convicted, (2) the documentary evidence contradicts the finding of the trial judge as to pretence made by the appellant, and (3) the only representation made by the appellant upon which the complainant could have acted is that he is an independent contractor for the university; those representations he said are true in substance.
The document allegedly forged and uttered, exhibit A in the case, is a local purchase order, shortly called an L.P.O., a recognised commercial document, the nature of which, upon the evidence, is well known to the complainant, and to every business man in this country.
Certain facts in the case are either not in dispute, or substantially established by the evidence. These briefly are as follows: The appellant is a food contractor for the University of Ghana and carried on business under the name and style of Economic Stabilizer. Whenever the university wanted a supply of goods from the appellant they made requisition upon him by L.P.O. setting out the goods and the quantities they required. The university sometimes requisitioned goods from the complainant firm also by L.P.O.
On 17 June 1963, the university issued an L.P.O. directed to the appellant to supply them with “10 Bags X 1001b. White Rise. “The appellant then altered the figure 10 on the L.P.O. to read 110, and inserted two more items on the said L.P.O., namely, “300 Bags Flour,” and “50 CTNS Sugar”; he then presented the L.P.O., the same day, to the complainants and requested them to supply him with the goods set out on the altered L.P.O. It was at about 5 p.m. when the appellant presented the L.P.O. to the complainants at their store; the complainants told him to come the next day, June 18 , to collect the goods.
The appellant returned to the complainants’ store at about 8 o’clock the following day with the same L.P.O. and said that he needed ten bags of the rice urgently for the university, and he was accordingly supplied with ten bags. Later that day, he was supplied with the remaining goods.
In the afternoon of that day, the first prosecution witness, the manager of the complainants’ firm, went to the university, apparently in consequence of some information he had about the appellant and 300 bales of flour, to check up on the L.P.O. and there discovered from the duplicate that the only goods the university had requisitioned from the appellant were ten bags of rice. Upon his return from the university he instructed his wholesale-keeper the second prosecution witness, to supply the appellant with the last item on the L.P.O., namely, 50 cartons of sugar which was still outstanding. Thereafter he went to the police with the L.P.O. and made a report, in consequence of which the appellant was arrested.
The findings of fact which the learned judge made, and upon which he convicted the appellant were set out by him as follows: (a) That the accused represented that he was an agent of the university, (b) That by exhibit A (the L.P.O.) the accused represented that the university needed all the goods therein stated, (c) That the accused by his conduct led Mr. Eid to believe that he was dealing with an agent of the university when in fact he was not, (d) That each of these representations and actions was false and was false to the knowledge of the accused when he did so represent it, and was made with intent to defraud, and (e) That by those representations he included Mr. Eid to part with the goods to him and thus to defraud him. These findings made by the learned judge necessarily import a preliminary finding that the L.P.O. established a contract between the university and the complainant firm whereby the firm was to supply to the university the goods requisitioned on the L.P.O., and the appellant was an agent of the university for the collections of the goods.
It is most unfortunate that in the examination the learned judge made of the evidence, in order to come to the conclusion he reached as to the representations made by the appellant, which moved the complainants to part with the goods, he ignored the L.P.O., and failed to construe it, but rather relied upon an alleged oral representation. Worse still, it is unfortunate that the learned judge misstated some of the important facts in that regard. For example, in setting out the case for the prosecution he said inter alia that “on or about 17 June 1963 the accused approached the District Manager of Edward Nassar and Company Ltd. one Eid…and informed him that he was an agent of the University of Ghana, Legon and that he needed certain supplies for the University . . .
On 18 June the accused duly returned armed with a Local Purchase Order.” The impression created by this statement of the facts is that the appellant made oral representations to Mr Eid on June 17, and it was the representations so made which induced Mr. Eid to hand over the goods to the appellant in his capacity as agent or representative of the university for the collection of the goods. What the first prosecution witness said however is that the appellant brought the L.P.O. to him on June 17, and said he needed the goods to supply to the university; and that at his, the witness’s request, the appellant came back the following day. He said:
“On 17 of June 1963 at about 5 p.m. on that day the accused came to me with Local Purchase Order from the University of Ghana. The accused told me that he needed the goods for the university but I told him it was too late as we wanted to close work. I told him to leave it for the following day. Next morning at about 8 a.m. he came to collect the goods. He said he needed ten bags of rice immediately because the university needed it. I supplied him ten bags of rice
which he took in his own car.”
Nowhere in the whole of his evidence-in-chief did the witness allege any other representation made by the appellant. It is true that in answer to the court the witness did say that if he had known that the appellant wanted the goods for himself he would not have given him credit. But upon the witness’s own admission that his firm had on previous occasions supplied goods to the appellant upon his own L.P.O. issued on the complainant firm, which goods were not requisitioned by the university, the court should have taken no notice of that answer. In any event it is not the case of the prosecution that the appellant represented himself as an independent contractor for the university, and that he needed all the goods to supply to the University and therefore credit was given to him in the faith that having such reputable customers as the university he was in a position to redeem his credit. Moreover the court did not find that the appellant obtained credit by such representation.
We are therefore left with the only evidence on the record, namely, the evidence-in-chief given by the first prosecution witness Mr. Eid, as to the representation the appellant made; it is briefly this: the appellant tendered the L.P.O., exhibit A, to first prosecution witness and said that, “he needed the goods for the University.” That is a representation made principally by a commercial document supplemented by word of mouth. In those circumstances justice demands that the court should interpret the document and consider it along with oral evidence, to determine their combined effect. This the learned judge failed to do; he completely ignored the operative portion of the L.P.O.
Now the relevant operative part of the L.P.O. reads as follows:
“OFFICIAL LOCAL PURCHASE ORDER FROM
62363 UNIVERSITY COLLEGE OF GHANA
P.O. BOX 25, LEGON,
GHANA
77351
Mr. Rabbles
ORDER NUMBER
House
1061??
TO:
ECONOMIC STABILIZER
ACCRA A13198
Please supply the following goods subject to the conditions stated below.
On the face of it, that document, exhibit A, represents the appellant as an independent contractor responsible to supply goods to the university; and also represents the university as directly responsible to pay to the appellant, and to no other, the value of the goods to be supplied on the L.P.O. It is noteworthy too that the first prosecution witness, for the complainant, himself deposed that whenever the university requisitioned goods from his firm upon an L.P.O. he looked to the university to pay the value of such goods direct to his firm. He said, “whenever we had direct dealings we look to the university for payment.” Yet he would have the court believe that, “As far as this transaction was concerned I look to the university for payment. If I had to draw a bill for the goods supplied I would have drawn it upon the university.” This is a most ridiculous interpretation a businessman can place upon an L.P.O., yet the trial court swallowed it. That happened because the court shirked its responsibility of construing the L.P.O., and simply relied upon the interpretation of the first prosecution witness.
Again, as earlier pointed out, the only oral statement the appellant is proved to have made to supplement the documentary representation as to his position vis-a-vis the university, is that “he needed the goods for the university.” There is no ambiguity whatsoever about those words; the only meaning they are capable of is that he required the goods to enable him to meet his obligations under the L.P.O., i.e. to make supplies to his customers, the university. We cannot see by what process of reasoning the learned trial judge interpreted those words to amount to a representation by the appellant that he was an agent of the university, sent merely to collect the goods for his principals. Learned senior state attorney invited us to say that by the term “agent” the learned judge meant, and must be understood to have meant, that the appellant had been sent merely to act for and on behalf of the university in collecting the goods. We do not see how even that interpretation can be justified.
Again, even if the oral representation made by the appellant were capable of the interpretation the learned judge placed upon it, how, on the face of the L.P.O., can the first prosecution witness be said to have been induced by it? To induce is to persuade, to prevail upon a person to believe something and to act upon it. In the case of false pretence, to induce is to persuade a victim to accept a representation made to him as true and to act upon it to his detriment or the detriment of another. Such a victim must be in a position that he cannot of his own knowledge, or without reference know of the truth or falsity of the representation. Therefore if it is within the knowledge of the person to whom the representation is made that that representation is false, and yet he acted upon it, he cannot be said to have been induced by the false representation; in such a case he is not a victim of the representation.
Applying these principles to this case, we find that the first prosecution witness is a businessman very familiar with the nature and effect of an L.P.O.; his company have been carrying on business with the university upon L.P.O.; and in each such business, the L.P.O. made them independent contractors to the university, not agents or representatives, not a conduit pipe between the university and a third party. His firm’s name is not mentioned anywhere on the L.P.O. Therefore if the appellant upon delivery of the L.P.O. to him went further to state that he was merely an agent or representative of the university for the collection of the goods, he must know that such a representation is false, and he cannot be deceived by it.
Consequently if he parted with the goods to the appellant he must have done so for some other reasons, not upon inducement by the alleged statement.
It is true that as earlier pointed out, the first prosecution witness said in answer to the court, that he would not have given credit to the appellant if he had known that the appellant wanted the goods for himself; but this answer cannot be reconciled with the admission of first prosecution witness, that his firm had been making supplies to the appellant upon L.P.O. issued by the appellant upon the complainant firm.
The learned judge in the course of his judgment said: “I find that at the time of the supply of the goods the only L.P.O. in the hands of Mr Eid was the university L.P.O. exhibit A and that at the time the accused had represented to him that he was an agent of the university.” If the learned judge had properly directed his attention to all the relevant material evidence on this issue, and had himself construed the L.P.O., exhibit A, as he should have done, instead of accepting, without question, the interpretation placed upon it by the first prosecution witness, he could not have come to this conclusion; the logical conclusion he would have come to is that the first prosecution witness had a direct business transaction with the appellant as a customer of his firm as an independent contractor for the university, and gave the appellant credit in his own right as such customer, and that he, the first prosecution witness, did not give and could
not have given credit to the university upon the said L.P.O. and merely delivered the goods to the appellant as an agent, messenger or representative of the university, sent by the university to collect the said goods.
Again, if the learned judge had kept to the evidence before him and not acted upon something else which might have been operating on his mind, he would have realised that the first prosecution witness had no delusions as to the identity of the person to whom he was giving the credit, that he did give credit to the appellant but subsequently changed his mind because of something he was told about the appellant concerning 300 bales of flour. This is what the first prosecution witness said: “In the afternoon I had some information about the accused concerning 300 bales of flour.
I went to the university with the L.P.O. to ask if the L.P.O. is correct at about 3 o’clock. The gentleman in charge showed the duplicate of the L.P.O. which showed that only ten bags of rice have been ordered.” A fair inference to be drawn from that piece of evidence is that after the first prosecution witness had given goods on credit including 300 bags of flour he got to know something about the appellant and 300 bales of flour which is double the 300 bags, and that made him change his mind about the credit he had already given to the appellant.
In referring to the evidence on this issue the learned judge put words into the mouth of the first
prosecution witness which are quite different from the evidence the witness gave. This is what the learned judge said:
“He [meaning first prosecution witness] said when he saw this discrepancy he thought that there was either a mistake or that the L.P.O. was not genuine, he therefore drove to the university with the L.P.O. exhibit A to verify.”
Having had registered in his mind that erroneous version of the evidence given by the first prosecution witness on that issue, the learned judge made it impossible for himself to examine the actual evidence by the witness and to draw from it, the only reasonable conclusions open to him to draw upon it.
The difficulty the learned judge encountered which he was unable to overcome arose from the undisputed fact that the items of requisition on the L.P.O., exhibit A, are falsified or altered. Mere falsification of a document does not constitute the crime of forgery. Under our Code, sections 159 and 164, falsification or alteration of a document can only constitute the offence of forgery if it is done with one or other of the intents mentioned in the said sections 159 and 164. The intent relied upon by the prosecution in the present case as alleged in counts 1 and 2 is to defraud. Therefore in order to convict the court must be satisfied beyond reasonable doubt that
the object or purpose with which the alteration or falsification was made, is to defraud. Now in what way could the particular alteration complained of facilitate the commission of fraud upon the complainant firm by the appellant in his legal position, on the one hand, as an independent contractor for the university, and on the other, as a customer of Messrs. Edward Nassar? If the alteration had been the substitution of Messrs. Edward Nassar for Economic Stabilizer to make it appear that the university requisitioned the goods from Messrs. Edward Nassar, the position would have been different. Again, if the L.P.O had been issued to Messrs. Edward Nassar by the university, and the items were falsified by the appellant to increase the quantum of the requisition to enable him to appropriate the excess, the position would be different. And it has to be borne in mind, that it is not the case for the prosecution that the complainants would not have given any credit to the appellant unless he was going to sell every item of goods he takes
on credit from them to his particular customer mentioned on the L.P.O., namely, the university; in actual fact they had given him credit on previous occasions. The only intent which is reasonable to infer upon the evidence taken together with all the circumstances of the case, is intent to enable the appellant to take credit in one lot instead of two or more lots i.e. one for the supply he needed for the University and two or more for supplies to other customers of his. Thus the prosecution failed to prove intent to defraud, and also failed to prove any other false pretence. The conviction of the appellant on each of the three counts if therefore wrong and must be quashed.
For the reasons stated above, the appeal is allowed, the conviction of the appellant on each of the three counts and the sentences passed upon him are each quashed; and a judgment and verdict of acquittal is entered. The appellant is acquitted and discharged.
DECISION
Appeal allowed.
N. A. Y.
