HIGH COURT, TAMALE
DATE: 7 APRIL 1971
KORANTENG-ADDOW J
NATURE OF PROCEEDINGS
APPEAL from convictions for conspiracy to steal, forgery and stealing. The facts are fully set out in the judgment.
COUNSEL
O. Appiah for the appellants.
Amui for the Republic.
JUDGMENT OF KORANTENG-ADDOW J
In this rather interesting case the two appellants were charged with another who was acquitted and discharged at the conclusion of the prosecution’s case with the three offences of conspiracy to steal, forgery and stealing.
The first appellant is a forester in the Forestry Department of the Ministry of Agriculture, and the others are clerical assistants working under him at their office at Yendi. The first appellant had the responsibility of the general running of the office including the making of vouchers for the payment of salaries and wages. In June 1969 the office became understaffed. It had no typist but there was typing work which had to be done. The first appellant therefore arranged with the two clerical assistants to do the typing work in their leisure time. For their remuneration he conceived of and evolved a scheme whereby they could be paid for the work done. He decided to include the name of a fictitious person in the list of employees as a temporary typist and to pay the clerical assistants their remuneration for the work done out of the wages of the so-called employee. In preparing the voucher for the month of June he caused the name of a Mr. E. K. Adu to be included in the voucher prepared for the wages of the employees. When the voucher was passed and the money for Mr. E. K. Adu was received, the first appellant made a compilation of the work done by the two clerical assistants, paid them what was due to them and paid back into the government chest the amount remaining, that is to say, the part of the salary of the so-called Mr. E. K. Adu that was not used.
The salary of the Mr. E. K. Adu was to be N¢22.68. Out of that amount N¢12.00 was used in paying the two clerical assistants and the balance of N¢10.68 was paid back into the government chest.
The third accused was acquitted and discharged at the close of the prosecution’s case because it was established by the evidence that he was away on leave in June 1969 and had nothing to do with the preparation of the voucher. Although he received his share of the amount alleged to have been stolen, he did not know how the money was obtained. The first and second accused (the appellants) were convicted on all three counts.
I will deal with the charge of forgery first, (count 2) and then deal with count 1 (conspiracy to steal) and count 3 (stealing) after that. The forgery which is alleged to have been committed by the appellants is that:
“during the month of June 1969, at Yendi, etc., with intent to commit a crime, to wit, stealing [the appellants] did forge June payment voucher No. F.Y 301/68-69 by inserting the name of one E. K. Adu whom you knew was not in existence for an amount of N¢22.68 which you accordingly cashed.”
[p.414] of [1971] 2 GLR 412
From these particulars quoted from the particulars of offence, it will be noted that the crime alleged to have been committed and in respect of which the appellants had to formulate their defence was the offence of inserting the name of a non-existent or fictitious person in the pay voucher. The offence of forgery is provided for under section 159 of the Criminal Code, 1960 (Act 29). The section reads:
“Whoever forges any document whatsoever, with intent to defraud or injure any person, or with intent to evade the requirements of the law, or with intent to commit, or to facilitate the commission of, any crime, shall be guilty of a misdemeanour.”
This section is further explained in section 164 of the Code which provides:
“164. The following provisions apply to forgery, namely—
(a) a person forges a document if he makes or alters the document, or any material part thereof, with intent to cause it to be believed—
(i) that the document or part has been so made or altered by any person who did not in fact so make or alter it; or
(ii) that the document or part has been so made or altered with the authority or consent of any person who did not in fact give his authority or consent; or
(iii) that the document or part has been so made or altered at a time different from that at which it was in fact so made or altered; . .”
From this explanation it would be observed that the essence of the offence is misrepresentation. The forged document must pretend to be what it is not. The document must purport to show that it was made by a person who in fact did not make it or that it was made on the authority of a person who in fact did not authorise the making of it. (The question of alteration is not relevant to our present problem, neither is the question of the time of the making of the document).
Looking at the facts of this case, the question is: Is there any such misrepresentation ? The answer to that question can only be in the negative. The authorship of the voucher is not in doubt. The first appellant admits making it. There is no representation that it was made by any other person or under the authority of any other. Whatever may have been done is in my view no offence under the Criminal Code. The insertion of the name of a fictitious person in itself does not, without more, amount to a crime.
The only slight difficulty about the matter is the fact that in the receipt column on the voucher it was established by the evidence that the second appellant signed the name of the fictitious Mr. E. K. Adu, representing that it was the said E. K. Adu who signed the document. But in resolving the problem one has only to look at the point of time at which
[p.415] of [1971] 2 GLR 412
the so-called offence was alleged to have been committed. Was it at the time of signing the receipt?
From the particulars of offence this forgery was perpetrated at the time the appellants intended to commit the offence of stealing — no other. And the offence of stealing was committed when, by the so-called deception, the accused persons succeeded to deceive the paymaster or treasurer to part with the amount of N¢22.68. At that time — the relevant time — the signature of the fictitious Mr. Adu had not been put on the voucher. At that time the document was not forged, if at all.
For these reasons I hold that the appellants could not properly be convicted for forgery. I would therefore allow their appeal on that count.
Now coming to the counts of stealing and conspiracy to steal, let us look at the facts first. The stealing is alleged to have been committed because the first appellant obtained funds from the treasury by a ruse, paid a part of the amount to the second and third accused and refunded the balance to the government chest.
Under our law a person steals if he dishonestly appropriates a thing of which he is not the owner. This is the explanation of section 124 made in section 125 of the Criminal Code, 1960. Appropriation is defined in section 122. The relevant part of that section is subsection (2). It reads:
“(2) An appropriation of a thing in any other case means any moving, taking, obtaining, carrying away, or dealing with a thing, with the intent that some person may be deprived of the benefit of his ownership, or of the benefit of his right or interest in the thing, or in its value or proceeds, or any part thereof.”
In my view, the operative portion of the subsection is “with intent that some person may be deprived of the benefit of his ownership.”
Looking at the facts one has to find out whether the accused persons deprived the owner, that is to say, the government, of the benefit of its ownership in the money allegedly stolen. The evidence is that the second and third accused persons did work for the government and they were paid with money belonging to the government. In what sense was the government deprived of the ownership of the money? In no part of the evidence is it found that the second and third accused did not do the work for which they were paid; nor did the government refuse to accept the benefit of the work they did. In my view there was no appropriation at all. And this relieves us of the burden of considering the question as to whether the appropriation was dishonest. I would therefore hold that the very first ingredient of the crime of stealing is missing and there could therefore be no stealing. I would therefore allow the appeal on that count.
Since the content of the conspiracy charge (count 1) was that the accused conspired to commit the offence of stealing the amount of N¢22.68 laid in count 3, if I hold, as I have done, that no stealing was committed then I am left with no choice but to hold also that that charge should also fail, and I so hold.
[p.416] of [1971] 2 GLR 412
In the result the appeal of the two appellants succeeds. Their convictions on all three counts are quashed and they are acquitted and discharged on all of them. The sentences imposed on them are quashed as well.
DECISION
Appeal allowed.
Appellants acquitted and discharged.
J. D.
