DIVISION: IN THE HIGH COURT, KUMASI
DATE: 6TH NOVEMBER, 1963
BEFORE: APALOO J.
CASES REFERRED TO
(1) R. v. Harris (1927) 20 Cr.App.R. 144, C.C.A.
(2) R. v. Henry and Ward (1844) 4 L.T. 50; 1 Cox C.C. 101
[p.393] of [1963] 2 GLR 390
(3) R. v. Bailey (1853) Dears. C.C. 244; 22 L.T. 125; 6 Cox C.C. 241, C.C.A.
(4) I.G.P. v. Amuah (1929) F.C. ‘26-’29, 513
(5) I.G.P. v. da Silva (1935) D.Ct. ‘31-’37, 122
(6) El-Rouh v. Hamili [1963] 1 G.L.R. 308, S.C.
(7) R. v. James (1871) 12 Cox C.C. 127
(8) R. v. Igbinovia (1936) 3 W.A.C.A. 79
NATURE OF PROCEEDINGS
APPEAL against a conviction for fraud by false pretences entered by the Circuit Court, Kumasi. The facts
are set out in the judgment of the High Court.
COUNSEL
V. Owusu (with him Owusu Afriyie) for the appellant.
S. M. Boison for the respondent.
JUDGMENT OF APALOO J.
This is an appeal from the judgment of the Circuit Court, Kumasi, which on the 22nd May, 1963,
convicted the appellant of the offence of fraud by false pretences and imposed on him a sentence of two
years imprisonment.Until the date of his conviction, the appellant was the District Commissioner for Bekwai. Although there was no direct evidence as to what duties his office carried, the evidence shows that one of such duties was
making reports on the security situation in his district and reporting on persons engaged in what was
described as subversive activities. If this activity did not form part of the official duties of the appellant,
then he took unto himself that job. On the 21st October, 1961, he wrote to the Regional Commissioner for
Ashanti what was captioned “security measure-Amansie District.” In that report (exhibit Al) the appellant
strongly recommended the arrest and detention of several persons whom he claimed were engaged in
subversive activities. He supplied a copy of this list to the police and Mr. Nartey, the Chief
Superintendent of Police, gave evidence that a good many of the persons on that list were in fact detained.
It seems to me that this aspect of the appellant’s duty must be borne in mind when the facts which were
alleged and found proved against him fall to be considered.
The facts of this case were set out and examined in great detail by the circuit court. I think it is sufficient
for me to state only the salient one. On an unnamed date in November 1961, the appellant sent for one
Kwaku Fobi who was jointly charged with him and acquitted. Fobi understood that the appellant wished
to see both himself and the complainant. This was on a Saturday. Both Fobi and the complainant
proceeded to Bekwai and met the appellant in his bungalow. Fobi conferred with the appellant for some
time and informed the complainant that the appellant had asked that the complainant should pay to him
(appellant) £G200 or face arrest and detention the following Monday. The complainant had some
misgiving about this matter especially as it came from an indirect source.
[p.394] of [1963] 2 GLR 390
To clear his doubts, the complainant alone returned to the district commissioner early the next morning.
The latter then confirmed what Fobi had told him. He led the complainant to understand that his name
was on the list of persons due to be detained. The district commissioner said he himself submitted the
complainant’s name to the police, and unless he paid him £G200 that day, his arrest was certain to occur
the next morning. The complainant panicked and quickly raised a loan of £G200. He returned with Fobi
later that day and paid this sum to the district commissioner.
The appellant admitted in his defence that Fobi and the complainant called to see him on a Saturday in
November and that Fobi then told him that the complainant was led to understand that he was wanted for
arrest and detention and had on that account been in hiding. They had come to find out from him whether
his information was correct. The appellant said he was himself not aware of the complainant’s impending
detention and assured them that if he was not engaged in any subversive activity, he had nothing to fear.
They shook hands and parted. The district commissioner said the complainant alone returned the next
morning to say thanks to him but he said this was unnecessary as he had done this the previous day. He
denied that the complainant and Fobi returned that afternoon or paid him any money. Indeed he said he
left the house some time in the morning and passed the night outside Bekwai. The district commissioner
claimed he was the victim of a malicious plot.
In an extremely detailed judgment, the learned circuit judge rejected the appellant’s defence. He felt
satisfied that the appellant represented to the complainant that he was wanted for arrest and detention the
following Monday and that if the complainant paid him £G200, the appellant said he was in a position to
prevent his arrest. He found that this representation was false and was false to the appellant’s knowledge
and that the complainant in the belief of this representation, paid the appellant £G200. He also felt
satisfied that the appellant’s intention was to defraud. He accordingly held the charge proved and
proceeded to convict the appellant.
The appellant, claiming to be aggrieved, appeals to this court on ten grounds which were argued by Mr.
Owusu with his trenchant lucidity. By far the most important ground argued and on which counsel almost
staked the success or failure of this appeal was the first ground of appeal. This reads: “charge is bad because particulars failed to allege the words ‘defraud’ or ‘intent to defraud’ and therefore the accused was convicted on a non-existent crime.” I think I will consider the grounds in an inverse order and dispose of those others which counsel as it appears to me, argued with far less conviction than ground 1.The last ground of appeal argued was ground 6, which complained that such representations as were made
related to future events that could not ground a charge for false pretences. One of the representations
proved to have been made by the appellant to the complainant was that the latter was wanted for arrest
and detention. That was proved false. The other
[p.395] of [1963] 2 GLR 390
representation was that if he paid £G200, the appellant was in a position to prevent the complainant’s
arrest and detention. That obviously implied a present ability to do what it was proved by the evidence of
Akaba that the appellant could not do. I cannot see how these representations can be said to relate to
future acts. I do not need to say more than that this ground of appeal obviously cannot succeed.
The last but one ground argued was ground 8. It complained in effect that as the complainant made a
statement to the police which was at variance with his evidence in court, the court should have ignored his
evidence on that part where the variance occurred and decided the case on the rest of the evidence. In
support of this ground, the English case of R. v. Harris1 was relied on. The discrepancy to which counsel
referred was that in his statement to the police the complainant was recorded as saying that he was not
present when Fobi handed the £G200 to the district commissioner. In his evidence in court, however, he
said he was present and saw Fobi hand the money to the district commissioner. This particular
discrepancy was not directly brought to his notice in cross-examination. The learned circuit judge
however specifically adverted to it and said he believed the witness notwithstanding it. He thought it
might well be due to the known difficulty of interpretation. I have not seen the witness and the learned
judge who saw him considered him worthy of credit in spite of the discrepancy. I can find no grounds to
quarrel with him. I never understood the principle in R. v. Harris2 as laying down that in all cases of
conflict between the statement and evidence, the sworn evidence should be ignored. It states that the
evidence should be negligible but whether in spite of it, the court should give it credence, I should have
thought was a matter for the good sense of the tribunal. In my opinion, this ground of appeal must fail.
Grounds 7 and 10 were combined and argued together. The first complained that the charge as laid was
too vague and wide as to time and made it impossible for the appellant to rely on a defence of alibi; the
second said the judgment was contrary to law. It was submitted on the first that no specific date was given
in November in which the alleged offence was committed and that the appellant was thereby disabled
from pleading a defence of alibi. The law against which the judgment sinned was section 131 (3) of the
Criminal Procedure Code, 1960.3 It was said that section imposed a duty on the court to request the
accused to give particulars of alibi. Counsel argued that the court failed to discharge that duty and this
failure worked adversely on the defence.
With respect to counsel, these two grounds together contain the least merit in the ten grounds of appeal
argued. Quite apart from the question that time is not the essence of a charge like the present, the
appellant in fact knew the date on which he was alleged to have made false representations and made his
defence on that footing. I cannot see how he could have been prejudiced. The effect of the
non-compliance by the court with section 131
[p.396] of [1963] 2 GLR 390
(3) of the Criminal Procedure Code, 1960, operated in favour of the appellant as it enabled him to plead
and call evidence to substantiate his defence of alibi without giving the statutory notice to the prosecution. In my opinion, there is no substance in these two grounds of appeal.
Counsel for the appellant then lumped together and argued grounds 3, 4 and 5, all of which made varying
complaints about the variance between the representations alleged in the charge and the one actually
proved. It was submitted that the pretence alleged in the charge sheet must be strictly proved and that any
variance between the pretence alleged in the charge sheet and the evidence was fatal and vitiates the
conviction. It was said that the actual pretence made must be distinguished from the inference drawn from
the representation and that the two were not one and the same thing. Counsel referred to and relied on two
English cases, namely, R. v. Henry and Ward4 and R. v. Bailey.5 Counsel contended that it is difficult to
see which representation the prosecution relied on to substantiate their case. If it was the Saturday one,
counsel submitted the appellant did not make it and if it was the Sunday one counsel said, it was not that
which was set out in the charge sheet.
With respect to counsel, the argument urged on these three grounds of appeal seems to be a verbal
controversy only. It is not difficult to see why, in England, the slightest variance between the pretence
alleged and the one proved by the evidence is deemed to be fatal. This seems to me to be because the
pretence can be reproduced verbatim in the words of the person accused. In this country, it would
normally be in a Ghanaian language which must be reduced as accurately as possible into English. In my
opinion, it ought to be deemed sufficient in this country if the pith or substance of the pretence is stated in
the charge. How accurately the substance of the pretence is rendered into English will largely depend on
the skill of the translator. It is possible to conceive cases in which the representation is so eaten away by
faulty interpretation that it cannot be fairly said to embody the substance of the pretence uttered by the
person accused. I am wholly unable to say that there was anything like a fatal variance between the
pretence alleged and the evidence adduced in this case. The appellant was proved to have represented to
the complainant that he was due to be detained on Monday. That pretence was found to be false. He
further falsely pretended that if he was paid £G200, the arrest would not take place. In the powerful
position which he occupied among a predominantly illiterate people, the complainant could only have
understood this to mean that the district commissioner was in a position to prevent his arrest. It was
proved he had no such power. The complainant said, “If I knew I was not wanted by the police to be
detained, I would not have paid the £G200 to the first accused.” In my opinion, the pith of the false
representation which the appellant made to the complainant was laid in the charge and these three grounds
of appeal must also fail.
[p.397] of [1963] 2 GLR 390
That leaves me with the most serious point of law contained in ground 1. It was submitted with force that
as the particular of offence did not contain the words “with intent to defraud” or the words “did fraud” the
charge was incurably bad. For authority, counsel referred me to the case of I.G.P. v. Amuah.6 It was held
by the Full Court reversing both the magistrate’s court and the High Court that failure to include the
words “with intent to defraud” in the charge was fatal and vitiated the conviction. In the latter case of
I.G.P. v. da Silva7 it was held, distinguishing Amuah’s case (supra) that the use of the words “did
defraud” was sufficient. This latter case was decided in September 1935. Counsel for the appellant
submitted that the law of fraud by false pretences is the same now as it was in the Criminal Code, 19288
of the then Gold Coast. Counsel referred to various sections of the Criminal Code, 1928, and their
equivalent in the present Criminal Code, 1960. But in point of fact the Amuah case was not decided on
the Criminal Code, 1928, as counsel erroneously thought, but on the Criminal Code, 1920.9 I have myself
examined that Code and the definition of the offence of fraud by false pretences contained in it. I am
satisfied they are substantially reproduced in sections 131, 132, 133 of the present Criminal Code.10 It
follows that the law of fraud by false pretences is the same today as it was in 1920 and Counsel for the
appellant was right in so contending. In the case of El-Rouh v. Hamili11 decided on the 18th March, 1963, the Supreme Court left open the question whether by reason of section 42 (4) of the Constitution,
they are now bound to follow the previous decisions of the Full Court. I for one feel no doubt that sitting
in this court, I am bound by the previous judgments of that court on points of law. I am therefore bound
by the decision in Amuah’s case (supra) unless I am satisfied that it has been overruled by any subsequent
legislative enactment.
In holding that omission to include “intent to defraud” in a charge of fraud by false pretences, the charge
was incurably bad, the Full Court professedly followed the decision of the English case of R. v. James.12
This case was decided by Lush J. in December 1871. Since that decision, the Indictments Act, 1915,13
was passed in England. This Act modified the common law rules relating to indictments and very greatly
simplified the form of indictments and gave the court wide powers of amending defects. By section 2 of
that Act a rules committee was established with power to vary and add to existing rules contained in the
First Schedule to the Act. A very important provision of that Act is section 3 (1) which provided that:
“Every indictment shall contain, and shall be sufficient if it contains a statement of the specific offence or
offences with which the accused person
[p.398] of [1963] 2 GLR 390
is charged together with such particulars as may be necessary for giving reasonable information as to the
nature of the charge.”
In the magistrate’s court, the district commissioner who decided the Amuah case as of first instance,
relied on this section in rejecting the argument that the omission to include “with intent to defraud” in the
charge was fatal. The Full Court considered that he was wrong as the Indictments Act, 1915, was not then
in force in the country. In the Criminal Procedure Code, 1935,14 opportunity was then taken to
incorporate this section but it was only limited to trials on information. See section 202 of the Criminal
Procedure Code, 1935.15 In the da Silva case (supra) the provisions of this section were invoked to
answer the point that the failure to include “intent to defraud” in the charge was fatal. This attempt failed
as the Acting Chief Justice held that the charge was laid before the 1935 Criminal Procedure Code came
into force on the 1st July, 1935.
The position, therefore, is that both in the Amuah case in 1929, and the da Silva case in 1935, the liberal
provisions of the Indictments Act, 1915, were shut out from consideration as they were held inapplicable.
The provisions of section 3 of that Act and the rules made thereunder are now substantially reproduced in
section 112 subsections (1) to (5) of the Criminal Procedure Code, 196016 The question which now falls
for determination is, whether by reason of those provisions, failure to include the words “with intent to
defraud” in the charge can now be held to be fatal and thus vitiate a conviction.
Section 112 requires only two things, firstly a statement of offence and secondly particulars which should
give reasonable information as to the nature of the charge. As far as the statement of offence is concerned
in this case, it has not and cannot be suggested that it fails to comply with subsection (2) of section 112.
That statement described the offence and very clearly informed the appellant that he was charged with the
offence of fraud by false pretences. There was also, as required by the subsection, a reference to the
section of the enactment creating the offence, namely, section 131 of the Criminal Code17
The next requirement is that there shall be particulars of offence whose obvious object is to give the
appellant reasonable information as to the legal nature of the charge. In my judgment, those particulars
are not expected to set out all the ingredients of the offence. The nature of the offence in this case as I
understand it, is that it was alleged by the prosecution that the fraud of which the appellant stood charged,
consisted in his obtaining cash from the complainant by a false pretence. The latter ingredient is very
copiously statutorily defined in section 133 of the
[p.399] of [1963] 2 GLR 390
Criminal Code, 1960,18 and contains an intent to defraud. In many cases, I believe in most, an intention
to defraud is included in the particulars, but I cannot see how in the face of section 112 of the Criminal
Procedure Code, 1960,19 its omission alone can be held to be fatal to the charge. Counsel for the
appellant himself frankly conceded that the intent to defraud can be inferred from the facts proved against
the appellant. The particulars in this case gave the appellant reasonable information as to the nature of the
charge and are, in my opinion, sufficient.
In my judgment, I.G.P. v. Amuah20 is no longer good law. Its efficacy as a judicial precedent has been
eaten away by the provisions of section 112 of the Criminal Procedure Code, 1960. The view which I
have formed, is fortified by the fact that counsel for the appellant has not been able to produce any
decision of any superior court in this country after the reproduction of the essential provisions of the
Indictments Act into our Criminal Procedure code in 1935, in which it was held that failure to include
“with intent to defraud” in particulars on a charge of fraud by false pretences vitiates a conviction. The
contrary was held in October 1936 in R.v. Igbinovia21 when the West African Court of Appeal held that
failure to set out guilty knowledge in a charge in an offence tried summarily did not vitiate a conviction.
I think the learned circuit judge decided this point of law correctly and I agree with him. It follows that
the conviction must be affirmed and that this appeal must fail and I hold that it has. It is accordingly
dismissed.
DECISION
Appeal dismissed.
K.T.
