ASARE AND OTHERS vs. THE REPUBLIC (NO. 3) [1968] GLR 804

CASES REFERRED TO

(1) R. v. Fisher (1921) 91 L.J.K.B. 145; 86 J.P. 29; 66 S.J. 109; 16 Cr.App.R. 53, C.C.A.

(2) R. v. Olua (1943) 9 W.A.C.A. 30.

(3) Commissioner of Police v. Bonney [1959] G.L.R. 237, C.A.

(4) State v. Andoh (Practice Note) [1962] 2 G.L.R. 106, S.C.

(5) R. v. Hayward (1949) 33 Cr.App.R. 1, C.C.A.

(6) R. v. Caslin [1961] 1 W.L.R. 59; [1961] 1 All E.R. 246; 125 J.P. 176; 105 S.J. 41; 45 Cr.App.R.

47, C.C.A.

(7) R. v. Collins (1922) 128 L.T. 31; 87 J.P. 60; 67 S.J. 367; 27 Cox C.C. 322; 17 Cr.App.R. 42, C.C.A.

(8) Republic v. Asafu-Adjaye (No. 2) [1968] G.L.R. 567, C.A.

(9) Atsu v. The Republic [1968] G.L.R. 716, C.A.

[p.810] of [1968] GLR 804

(10) Lutterodt v. Commissioner of Police [1963] 2 G.L.R. 429, S.C.

(11) Boston Deep Sea Fishing & Ice Co. v. Ansell (1888) 39 Ch.D. 339; [1886-90] All E.R. Rep. 65; 59 L.T. 345, C.A.

(12) Latham v. R. (1864) 5 B. & S. 635; 4 New R. 329; 33 L.J.M.C. 197; 10 L.T. 571; 28 J.P. 727; 10 Jur. (N.S.) 1145; 12 W.R. 908; 9 Cox C.C. 516.

(13) R. v. Bailey [1924] 2 K.B. 300; [1924] All E.R. Rep. 466; 93 L.J.K.B. 989; 132 L.T. 349; 88 J.P.

72; 27 Cox C.C. 692; 18 Cr.App.R. 42, C.C.A.

(14) Commissioner of Police v. Wemah (1957) 3 W.A.L.R. 41, C.A.

(15) Commissioner of Police v. Appiah, West African Court of Appeal, 10 June 1947, unreported. (16) State v. Otchere [1963] 2 G.L.R. 463.

(17) State v. Baidoo, 30 June 1966, Court of Appeal, Cyclostyled Judgments, January-December 1966, p. 160, unreported (18) State v. Banful [1965] G.L.R. 433, S.C.

(19) Stirland v. Director of Public Prosecutions [1944] A.C. 315; [1944] 2 All E.R. 13; 113 L.J.K.B.

394; 171 L.T. 78; 109 J.P. 1; 60 T.L.R. 461; 88 S.J. 255; 42 L.G.R. 263; sub nom. R. v. Stirland 30 Cr.App.R. 40, H.L.

(20) R. v. Thompson [1893] 2 Q.B. 12; [1891-94] All E.R. Rep. 376; 62 L.J.M.C. 93; 69 L.T. 22; 57 J.P. 312; 41 W.R. 525; 9 T.L.R. 435; 37 S.J. 457; 17 Cox C.C. 641; 5 R.392, C.C.R.

(21) R. v. Harris (Dora) [1927] 2 K.B. 587; [1927] All E.R. Rep. 473; 96 L.J.K.B. 1069; 137 L.T. 535;

91 J.P. 152; 43 T.L.R. 774; 28 Cox C.C. 432; 20 Cr.App.R. 86, C.C.A.

(22) R. v. Liddle (1928) 21 Cr.App.R. 3, C.C.A.

(23) Kotey v. The State [1963] 1 G.L.R. 41, S.C.

(24) Asamoah v. The State [1962] 2 G.L.R. 207, S.C.

(25) Agbemenya v. The State [1964] G.L.R. 663, S.C.

(26) Adjei v. The Republic [1967] G.L.R. 707, C.A.

(27) Bharat v. R. [1959] A.C. 533; [1959] 3 W.L.R. 406; [1959] 2 All E.R. 292; 103 S.J. 633, P.C. (28) Owusu v. Commissioner of Police, Court of Appeal, Cyclostyled Judgments, January-June 1958, p.

119, unreported.

(29) R. v. Jones (1961) 46 Cr.App.R. 68, C.C.A.

(30) Yankey v. The State, Court of Appeal, Cyclostyled Judgments, July-December 1967, p. 82, unreported.

(31) Davies v. Director of Public Prosecutions [1954] A.C. 378; [1954] 2 W.L.R. 343; [1954] 1 All E.R.

507; 118 J.P. 222; 98 S.J. 161; 38 Cr.App.R. 11, H.L.

[p.811] of [1968] GLR 804 (32) R. v. Baskerville [1916] 2 K.B. 658; 86 L.J.K.B. 28; 115 L.T. 453; 80 J.P. 446; 60 S.J 996; 25 Cox C.C. 524; [1916-17] All E.R. Rep. 38; 12 Cr.App.R, 81, C.C.A.

(33) R. v. Lucy (1910) 4 Cr.App.R. 165, C.C.A.

(34) R. v. Mullins (1848) 12 J.P. 776; 3 Cox C.C. 526.

(35) R. v. Bryan (1857) Dears. & B. 265; 26 L.J.M.C. 84; 21 J.P. 372; 3 Jur. (N.S.) 620; 5 W.R. 598; 7 Cox C.C. 312; 169 E.R. 1002, C.C.R.

(36) R. v. Levine and Wood (1867) 31 J.P. 248; 10 Cox C.C. 374.

(37) R. v. Ellis [1910] 2 K.B. 746; 79 L.J.K.B. 841; 102 L.T. 922; 74 J.P. 388; 26 T.L.R. 535; 22 Cox C.C. 330; 5 Cr.App.R. 41, C.C.A.

(38) R. v. Dibble (1908) 72 J.P. 498; 1 Cr.App.R. 155, C.C.A.

(39) State v. Brobbey [1962] 2 G.L.R. 101, S.C.

(40) R. v. Dawson; R. v. Wenlock [1960] 1 W.L.R. 163; [1960] 1 All E.R. 558; 124 J.P. 237; 104 S.J.

191; 44 Cr.App.R. 87, C.C.A.

(41) R. v. Cooper and Compton [1947] 2 All E.R. 701; 112 J.P. 38; 32 Cr.App.R. 102; 97 L.J. 591; 204 L.T.J. 250; 63 T.L.R. 561; 46 L.G.R. 83, C.C.A.

(42) R. v. Luberg (1926) 135 L.T. 414; 90 J.P. 183; 28 Cox C.C. 264; 19 Cr.App.R. 133, C.C.A. (43) R. v. Griffiths [1966] 1 Q.B. 589; [1965] 3 W.L.R. 405; [1965] 2 All E.R. 448; 129 J.P. 380; 109 S.J. 312; 49 Cr.App.R. 279, C.C.A.

(44) R. v. Sullivan (1945) 30 Cr.App.R. 132, C.C.A.

(45) R. v. Hammersley (1958) 42 Cr.App.R. 207, C.C.A.

(46) R. v. Cooper (1877) 2 Q.B.D. 510; 46 L.J.M.C. 219; 36 L.T. 671; 41 J.P. 470; 25 W.R. 696; 13 Cox C.C. 617, C.C.R.

(47) R. v. King [1897] 1 Q.B. 214; 66 L.J.Q.B. 87; 75 L.T. 392; 61 J.P. 329; 13 T.L.R.27; 41 S.J. 49; 18 Cox C.C. 447, C.C.R.

(48) R. v. Rhodes [1899] 1 Q.B. 77; 68 L.J.Q.B. 83; 79 L.T. 360; 62 J.P. 774; 47 W.R. 121; 15 T.L.R.

37; 43 S.J. 45; 19 Cox C.C. 182, C.C.R.

(49) R. v. Taylor [1911]1 K.B. 674; 80 L.J.K.B. 311; 75 J.P. 126; 27 T.L.R. 108; 6 Cr.App.R. 12, C.C.A.

(50) R. v. Melvin [1953] 1 Q.B. 481; [1953] 2 W.L.R. 274; [1953] 1 All E.R. 294; 117 J.P. 95; 97 S.J.

99; 37 Cr.App.R. 1,C.C.A.

(51) R. v. Smith (1924) 17 Cr.App.R. 133, C.C.A.

(52) R. v. Parks (1914) 10 Cr.App.R. 50, C.C..A.

(53) R. v. Hayward (1949) 33 Cr.App.R. 1, C.C.A.

(54) R. v. Hardy (1944) 29 Cr.App.R., 182, C.C.A.

[p.812] of [1968] GLR 804 (55) R. v. Oster-Ritter (1948) 32 Cr.App.R. 191, C.C.A.

(56) R. v. Whybrow (1951) 94 S.J. 745; 35 Cr.App.R. 141, C.C.A.

(57) R. v. Furlong [1950] 1 All E.R. 636; 100 L.J. 147; 209 L.T.J. 157; 114 J.P. 201; 66 (Pt. 1) T.L.R.

558; 94 S.J. 256; 48 L.G.R. 296; 34 Cr.App.R. 79, C.C.A.

(58) Reading v. Attorney-General [1951] A.C. 507; [1951] 1 All E.R. 617; [1951] 1 T.L.R. 480; 95 S.J.

155, H.L.

(59) R. v. Stoddart (1909) 73 J.P. 348; 25 T.L.R. 612; 53 S.J. 578; 2 Cr.App.R. 217, C.C.A.

NATURE OF PROCEEDINGS

APPEAL against a decision of Akainyah J.S.C. sitting as an additional judge of the High Court with the aid of assessors wherein he convicted the appellants of the offences of, inter alia, conspiracy to commit the offence of corruption by a public officer, conspiracy to defraud by false pretences and stealing. The facts are sufficiently stated in the majority judgment read by Ollennu J.A. and in the dissenting judgment of Apaloo J.A.

COUNSEL

K. Narayan (Harold Darkoh with him) for the first appellant.

P. Swaniker for the second appellant.

B. J. da Rocha for the third appellant.

J. N. K. Taylor, Director of Public Prosecutions (V.A. Kisseih with him), for the Republic.

JUDGMENT OF OLLENNU J.A.

Ollennu J.A. delivered the judgment of himself and of Azu Crabbe J.A. and Edusei J. The appellants were tried by Akainyah J.S.C. in the High Court, Accra, with the aid of assessors. The indictment contained ten counts; it charged all the appellants with one count of conspiracy to commit the crime of corruption by a public officer; two counts of defrauding by false pretences; and one count of conspiracy to defraud. It charged the second and third appellants with two counts of falsification of accounts. It charged the first and second appellants with one count of conspiracy to defraud and one count of defrauding. It also charged the second appellant alone with one count of falsification of accounts and one count of corruption of a public officer.

The trial began on 23 September 1964, and continued from day to day except for one or two short breaks for a few days, and was concluded on 10 May 1965, in all 112 days. The summing-up to the assessors lasted three full days, the notes thereof covered 28 pages and the judgment of the learned judge occupied 82 closely typed pages. The learned judge convicted all the appellants on count (1) which charged them with conspiracy to commit the offence of corruption of a public officer, and the third count which charged them

[p.813] of [1968] GLR 804 with conspiracy to defraud by false pretences. He convicted the first and the second appellants only on count (7) which charged them with conspiracy to defraud by false pretences, he convicted all the appellants of stealing on counts (2) and (4) instead of the offences of fraud by false pretences charged in those counts and the first and second appellants of stealing on count (8) which charged them with fraud by false pretences, and acquitted the second and third appellants on counts (5), (6) and (9), which charged them with falsification of accounts, and also acquitted the second appellant on count (10). Upon their convictions, the learned judge sentenced the appellants to terms of 15 years’, 21 years’ and 24 years’ imprisonment with hard labour on the various counts, the sentences to run concurrently.

The appellants appealed to this court from their convictions. The ordinary bench before which the appeal was argued reserved judgment after a hearing lasting about three months, i.e. from 14 November 1966 to 16 January 1967, occupying 29 days. On 2 June 1967, the case was put on the list and the court made the following announcement:

“While we were considering our judgment in this case, we discovered that important points of law fell for decision. As these points seem to be of grave public importance, we agreed, with the approval of the Chief Justice, that judgment should not be given on these points by the ordinary bench of three judges. Instead, the Chief Justice, has agreed that the appeal be argued afresh before a full court of five judges. The date for hearing de novo will be announced in due course.”

This full court was accordingly constituted and began sitting on 19 December 1967.

Objection was taken by the Director of Public Prosecutions for the respondent to the jurisdiction of the full bench to hear the case when the ordinary bench which was originally seised of the appeal did not deliver judgment. In a ruling delivered on 15 January 1968 reported in [1968] G.L.R. 37, C.A. (full bench) we overruled the objection. The hearing de novo by this bench which began on 19 December 1967, concluded on 15 May 1968, a total of 50 days.

A large number of grounds of appeal, additional grounds of appeal and supplementary grounds of appeal was filed and was argued with meticulous care and learning both for the appellants and for the State. It will however not be necessary for us to deal with most of the fine points of law argued, because, as will appear presently, some of the pronouncements made by the learned judge which necessitated some of the grounds of appeal and the arguments thereon, are

[p.814] of [1968] GLR 804 absolutely irrelevant to the issues which the court below was called upon to try.

One of the grounds of appeal argued is that upon the evidence before him, the trial judge erred in convicting the appellants of stealing upon the counts charging them with the offence of fraud by false pretences. The direction which the learned judge gave himself as justification for convicting for stealing on the counts of fraud by false pretences is as follows:

“In this country the distinction between false pretences and stealing has no practical application and presents no difficulty. It is merely academic. Section 157 of the Criminal Procedure Code, 1960 (Act 30), reads as follows: ‘157. (1) When a person is charged with stealing anything and it is proved that he obtained the thing in any such manner as would amount under the provisions of the Criminal Code to defrauding by false pretences he may be convicted of defrauding by false pretences although he was not charged with that offence. (2) When a person is charged with defrauding by false pretences and it is proved that he stole the thing he may be convicted of stealing it although he was not charged with that offence.’”

The learned judge then reproduced sections 125 and 120 of the Criminal Code, 1960 (Act 29), which respectively define stealing and dishonest appropriation; and also section 122 which defines and explains fraud by false pretences, and continued:

“In R. v. Martin (1867) L.R. 1 C.C.R. 56 cited in R. v. Moreton [1911-13] All E.R. Rep. 699 at p. 700 it was held that the intervention of a contract does not necessarily prevent a conviction for obtaining by false pretences if the false pretence is a continuing one and operates on the mind of the person supplying the goods. In this case there is no doubt that subsequent to the false representations made by the accused persons in December 1959, the Farm Machinery Supplies and the Ghana Agricultural Machinery Company Ltd. were established to regularise the position. I am satisfied that the false pretence was a continuing one and it operated on the mind of Mr. Emmerich throughout. I hold, therefore, that the intervention of the contract of principal and agent concluded between the Solo Kleinmotoren GmbH and the F.M.S. and GAMCO Ltd. did not alter the position.

I am satisfied that as a result of the false representations the Government of Ghana was made to pay to the Solo Kleinmotoren the sums of £G240,000 and £G300,000 and that the said sums

[p.815] of [1968] GLR 804 were subsequently received by the accused persons or their nominees and were dishonestly appropriated. I therefore find all three accused persons guilty of stealing on counts (2) and (4) and convict them accordingly.”

The learned Director of Public Prosecutions conceded that the learned judge misdirected himself and erred in convicting the appellants of the offence of stealing upon the charge of fraud by false pretences. But while learned counsel for the appellants relying upon the authority of R v. Fisher (1921) 16 Cr.App.R. 53, C.C.A. and R. v. Olua (1943) 9 W.A.C.A. 30 at p. 32, contended that that misdirection and error are fatal to the conviction and that the appellants are entitled to acquittal upon that alone, the learned Director of Public Prosecutions submitted that upon the authority of R. v. Fisher (supra), and Commissioner of Police v. Bonney [1959] G.L.R. 237 at p. 240, C.A. there being no record that the trial court entered acquittal of the appellants on the offence charged, this court can substitute conviction for fraud by false pretences charged for the conviction for stealing, if the evidence supports that offence, which in his view it did.

We agree with counsel for both the appellants and the State that the learned judge misdirected himself in this regard. Indeed the direction which he gave shows that he failed to appreciate the niceties in this aspect of our criminal law. Section 157 of the Criminal Procedure Code, 1960 (Act 30), makes it quite clear that it is only where stealing is proved in a charge of fraud by false pretences that the court could convict of stealing, and vice versa, that it is only where an offence of fraud by false pretences is proved when stealing is charged, that conviction for that offence may be recorded instead of conviction for the offence charged. That section reads:

“157. (1) When a person is charged with stealing anything and it is proved that he obtained the thing in any such manner as would amount under the provisions of the Criminal Code to defrauding by false pretences he may be convicted of defrauding by false pretences although he was not charged with that offence.

(2) When a person is charged with defrauding by false pretences and it is proved that he stole the thing he may be convicted of stealing it although he was not charged with that offence.”

(The emphasis is ours.) The principles which must be applied to the provisions in section 157 of Act 30 are exactly the same as those applicable to section 156 of Act 30 which reads:

“156. When a person is charged with stealing anything and it is proved that he received the thing knowing the same to have

[p.816] of [1968] GLR 804 been stolen, he may be convicted of receiving, although he was not charged with that offence.”

(The emphasis is ours.) The Supreme Court explained that principle in State v. Andoh (Practice Note) [1962] 2 G.L.R. 106, S.C. as follows:

“The emphasis in that section is on the clause: it is proved that he received the thing knowing the same to have been stolen. With that emphasis, we think that before a court should resort to the powers given it in the said section, it must be satisfied that the prosecution failed to prove the charge of stealing, but that there is, however, evidence from which it is satisfied beyond reasonable doubt that the accused person received the subject-matter of the charge knowing that it was stolen, or that the circumstances under which he received it are such that he should know that it must have been stolen or unlawfully obtained.”

It means that a conviction on the alternative offence necessarily implies that the trial court is satisfied and has found that the prosecution have failed to prove the offence charged.

Now the crucial point in applying the provisions of section 157 of Act 30 is whether or not in delivering money or another chattel to another, the owner intended his ownership in it to pass; if he did not so intend, appropriation of the thing by the person to whom he delivers it, will be stealing, i.e. will be an appropriation without the owner’s consent; if he intended his ownership to pass, but that intention was induced by falsehood, the appropriation would be obtaining by false pretence. For example, if A., wishing to buy a volume of the Ghana Law Reports, and not knowing what the price is, gives N¢20.00 to B. who also does not know the price, to go and buy the book for him, there is a clear intention by A., upon delivery of the money, to part with his ownership of so much of it as represents the price of the book and no more. Therefore if upon going to the bookshop, B. learnt that the book costs only N¢15.00, paid for it, and then pocketed the balance of N¢5.00, it is clear that A. did not intend his ownership in the excess of the N¢20.00 over the price (i.e. N¢5.00) to pass, therefore the appropriation of the N¢5.00 would be dishonest, as it was made without the consent of A, the owner, and the offence would be stealing which is defined in sections 125 and 120 (1) of the Criminal Code, 1960 (Act 29), as

“125. A person steals if he dishonestly appropriates a thing of which he is not the owner.”

“120. (1) An appropriation of a thing is dishonest if it is made with an intent to defraud or if it is made by a person without claim of right, and with a knowledge or belief that the

[p.817] of [1968] GLR 804 appropriation is without the consent of some person for whom he is trustee or who is owner of the thing, as the case may be, or that the appropriation would, if known to any such person, be without his consent.”

On the other hand, if B. knew that the price of the book is N¢15.00, but falsely represented to A. that the price is N¢20.00, and A., believing that representation, gave B. the N¢20.00, and B. pocketed the excess of N¢5.00, it is quite clear that A. parted with the N¢20.00 with the intent that his ownership in the whole of it should pass to the vendor of the book. In such a case B.’s offence would be defrauding A. by false pretences, and not stealing A.’s property. And those are the principles which should be applied to this case.

The evidence on the record leaves no room for doubt, that in making the payments which formed the subject-matter of all the charges in respect of which the appellants were convicted, the government intended its ownership in every penny of the £G50 per machine to pass to Solo Kleinmotoren. Therefore, there can be no question of stealing any part of that amount from the government.

Having explained the law on this issue, we should now move on to consider one other of the grounds of appeal which is common to all the appellants, namely, that the facts proved do not disclose the offence charged or any offence. Now the most essential ingredients in each of the offences charged are false representations. We shall first take a look at the counts in the indictment. Count (1) which charges conspiracy to commit the crime of corruption by a public officer reads:

“Francis Yao Asare, Henry Kwadwoe Djaba and James Quartey alias Kwesi Kota, from about December 1959 to about April 1960, at Accra and Tafo in the Eastern Region, Borada in the Volta Region and at other places in Ghana did agree together to commit a crime, namely, corruption by a public officer in that they did agree together that the said Francis Yao Asare in his capacity as Minister of Food and Agriculture being a public officer, should so conduct himself as to cause the Government of Ghana, through the agency of the Cocoa Marketing Board and of such other purchasing agencies as the government might in future utilise, to order from Messrs. Solo-Kleinmotoren GmbH of Maichingen Bei Stuttgart in the Federal Republic of Germany mistblowing machines at prices in excess of those actually required by the said company in its normal course of business, namely, £G50 c.i.f. Ghana ports per machine, and with the prospect that the said excess should be received by the said

[p.818] of [1968] GLR 804

Francis Yao Asare, Henry Kwadwoe Djaba and James Quartey alias Kwesi Kota from the company.”

The ingredients of that charge are:

(i) that the appellants agreed together,

(ii) that the first appellant “should so conduct himself as to cause the Government of Ghana . . . to order from Messrs. Solo-Kleinmotoren . . . mistblowing machines at prices in excess of those actually required by the said company in its normal course of business, namely, £G50 c.i.f. Ghana ports per machine.”

And count (2) reads as follows:

“Francis Yao Asare, Henry Kwadwoe Djaba and James Quartey alias Kwesi Kota, between about December 1959, and about August 1960, at Accra and Tafo in the Eastern Region with an intent to defraud did obtain the consent of the Government of Ghana to part with £G240,000 by falsely pretending to the Permanent Secretary of the Ministry of Food and Agriculture and to others that the price of 12,000 mistblowing machines supplied by Messrs. Solo-Kleinmotoren GmbH of Maichingen Bei Stuttgart in the Federal Republic of Germany, was £G50 c.i.f. Ghana ports per machine and that this price was arrived at by a conversion of the price quotation for the said machine made by the said German company in German Deutsche marks to Ghana pounds.”

The gravamen of that count also is that the appellants falsely represented to the government that the price which Solo Kleinmotoren were charging per machine was £G50 c.i.f. Ghana ports, and by that falsehood induced the government to pay £G50 per machine.

In count (3), the material averment is that the appellants falsely represented that the price per machine charged by Solo Kleinmotoren was £G50 when they well knew that the true price was £30.

The trial judge at the initial stages of his judgment, himself summarised the case for the prosecution as follows:

“In outline the case for the prosecution is that with intent to defraud the Government of Ghana in connection with the purchase of equipment for the capsid control scheme, the accused persons agreed together that the first accused should so conduct himself as Minister of Food and Agriculture as to obtain the consent of the Government of Ghana to order a large number of shoulder-mounted motorised mistblowing spraying machines from a West German company—the Solo Kleinmotoren GmbH, Maichingen, near Stuttgart at £G50 each c.i.f. Ghana

[p.819] of [1968] GLR 804 ports instead of the actual price of £G30 quoted by the said company and by using the name of a fictitious firm to wit, Farm Machinery Supplies they falsely represented to various officers in the Ministry of Food and Agriculture and other officers of the government that they were agents of the said Solo Kleinmotoren and by means of false representations made by them during the period December 1959 to the end of 1963 the Government of Ghana was induced to pay the sum of £G1,052,500 to the said Solo Kleinmotoren in excess of the price of 52,000 Solo spraying machines which were ordered for the Ghana Government by the Cocoa Marketing Board and the Ghana Supply Commission respectively and that the accused persons subsequently received the said sum of money from the Solo Kleinmotoren and appropriated it to their own use.”

Thus the onus which the prosecution took upon themselves by the institution of these proceedings is to prove that (i) the price of £G50 c.i.f. per machine quoted by F.M.S. at one time and by Gamco at another time, is not the price required by Solo, or quoted with their full knowledge and consent; in other words, that the statement that the price is more than £G30 is false; (ii) that the government was deceived thereby, and induced or caused to part with the difference between the £G50 and the £G30, i.e. the £G20 per machine. These then are the issues which the trial court was called upon to resolve.

Before turning to the judgment, we should give a bit of the background to the case. Solo Kleinmotoren, hereinafter called Solo, mentioned in the indictment, the manufacturers of the mistblowing machine in question, are a German firm owned by two brothers, namely, Heins Emmerich, the first prosecution witness and Hans Emmerich. The first prosecution witness deposed that before the year 1959, his company sold their machines to an English firm, who then sold the same in Ghana through their Ghana agents, U.A.C. Ltd. They were however not selling large quantities through those channels; the last sale they made was in 1957. The firm decided to make greater efforts to get orders from Ghana, and so he came to Ghana for this purpose and they were prepared to sell the machines at £G30 c.i.f. each in Ghana.

He said that, in Ghana, he made contacts with the third appellant who was then chief of the technical department at Bunso Agricultural Station concerned with mistblowing machines. He said that he had made previous efforts to have an interview with the Minister of Agriculture to interest him in the machines, that eventually he

[p.820] of [1968] GLR 804 succeeded in having the interview, and told the Minister that his firm was prepared to set up a factory in Ghana to manufacture mistblowing machines, but all the Minister said to him was, “Goodbye.”

Eventually, he made contact with the third appellant, who fixed an appointment for him and he saw the first appellant, who was then the Minister of Agriculture, at his office on 8 December 1959. He said he discussed the subject with the first appellant at the interview through an interpreter, a German, one Mr. Mueller, because his English was not good. The result of the interview, he said, was that the first appellant said the government would be prepared to place a trial order for 12,000 spraying machines “provided we appointed a firm who would represent us in Ghana,” and he, the first prosecution witness, agreed to appoint a Ghanaian firm “to represent us.” He said, “When I saw the first accused on 7 December 1959, (sic.) he instructed me to write a letter to him confirming what I had discussed with him. As a result, I wrote the letter exhibit A12.” The relevant parts of this letter exhibit A12 will be referred to in its proper context.

The first prosecution witness further testified that the third appellant called on him at his hotel in Accra shortly after his interview with the Minister, and after he, the first prosecution witness, had reported the result of the interview to the third appellant, the third appellant produced and showed to him a letter-head bearing the name “Farm Machinery Supplies” (F.M.S.) and said, “I should appoint Farm Machinery Supplies as our representatives or agents in Ghana and that he would resign his government appointment and join the firm as manager or director.” Consequently, he said, “I gave the third accused a letter of appointment when I returned to Germany.” The letter of appointment is exhibit A5, dated 21 December 1959; and was confirmed by a certificate dated 4 January 1960, officially certified by the German Chamber of Commerce and Industries. It was upon the authority of that appointment that the second and third appellants first dealt with the government for and on behalf of Farm Machinery Supplies which the third appellant said was a business name he assumed for a business started by him as an individual, and later converted into a partnership and registered under the Registration of Business Names Ordinance, Cap. 177 (1951 Rev.). Later, the second appellant dealt with the government in relation to this spraying machine in the name of Gamco, a limited liability company which superseded F.M.S.

The first set of findings of fact made by the learned trial judge is with respect to the relationship between F.M.S. and Solo arising out of the appointment of F.M.S. by Solo as their sole representatives in Ghana. He said:

[p.821] of [1968] GLR 804

“Although the third accused was then a civil servant, he acted as a partner or an executive officer of the so-called firm of Farm Machinery Supplies clothed with the necessary authority to make contracts on their behalf. He told Mr. Emmerich that the firm would sell or offer the Solo machine to the Ghana Government at £G32. Like the discontended Midas of the magic gold story, the third accused was evidently not satisfied with £G2 profit on each machine. His insane desire to get rich quick without hard and honest work seemed to have possessed him. Consequently he raised the proposed selling price of the Farm Machinery Supplies from £G32 to £G34 and again to £G36 at the same time. In addition he requested that Mr. Emmerich should allow him a personal commission of ten shillings on every Solo machine sold in Ghana by the Solo Kleinmotoren.

The maximum profit of £G6 on each machine seemed rather high, but by and large Mr. Emmerich thought that it was not an unreasonable remuneration because as agents, the firm of Farm Machinery Supplies would have to order and maintain stocks of spare parts, carry out repairs of damaged machines and advertise the goods of their principals —the Solo Kleinmotoren.

The truth is that the so-called firm of Farm Machinery Supplies did not exist at all in December 1959. This is admitted by the third accused himself who says that the Farm Machinery Supplies was not a partnership but consisted of one man only and that he was the man. In other words, he was the Farm Machinery Supplies and vice versa. A firm of that name was in fact established later in March 1960 but I will deal with that issue at a later stage. It is also admitted that the letter-head shown to Mr. Emmerich on 8 December 1959 was one of a quantity which had been printed hurriedly by Mr. Emmanuel Kwamina Hagan (the fourteenth prosecution witness) at the Hag Press, Tafo, on the morning of 8 December 1959, at the request of the third accused.

The prosecution invited the court to hold that the statement made by the first accused to Mr. Emmerich that he should appoint a local agent as a condition for securing an order for 12,000 machines was made in pursuance of the conspiracy because he knew that the government did not require the services of an agent.

The first accused himself testified as follows: ‘At that time (i.e. in 1959) there was no government policy that purchases of agricultural machinery should be made only if the seller or manufacturer had local agents in Ghana. As a Minister I knew that if the government purchased an article through an

[p.822] of [1968] GLR 804 agent it might be dearer than when the government imported it direct from the manufacturer. I knew that the United Africa Company Ltd., sold the Motoblo at £G72 each but according to a minute made by a permanent secretary, the Motoblo was obtainable direct from Germany at £G38 and some shillings. The minute I am referring to is exhibit D1.’ As soon as the appointment of the fictitious Farm Machinery Supplies as Solo’s agents was made, the third accused assumed for purposes which were obviously fraudulent, the use of his Fante name Kwesi Kota in such a manner as to cause people to believe that Kwesi Kota was a different person. He himself has admitted that when he took up the Solo agency in the name of the fictitious Farm Machinery Supplies he was then employed by the government. Being a public officer he had to conceal his identity as the proprietor of the Farm Machinery Supplies and the agent of the Solo Kleinmotoren because if the government discovered that he was the man writing letters as Kwesi Kota he might be dismissed. But the risk was worthwhile so he carried on.

On 9 December 1959 (a day after the appointment), the third accused wrote a letter (exhibit D5) on F.M.S. headed paper in his assumed name to the Ministry of Food and Agriculture with a copy (exhibit D6) for the Minister himself in the following terms:

‘Farm Machinery Supplies Suppliers of all types of farm and fishing machinery Telephone No. 25 Bankers: Bank of West Africa Ltd., P.O. Box 22, Tafo Tafo, Ghana Commercial Bank, Accra.

Akim Abuakwa.

9 December 1959.

Dear Sir, We are glad to inform you that we have been offered sole agency for the ‘Solo’ spraying machine which was recently submitted to your Ministry for testing.

If the results of your Ministry’s tests are favourable and you wish to place an order with us for the capsid control scheme, we can offer this machine at the very keen price of £G46 per piece (c.i.f. Accra port). It may also be added that we are capable of delivering at least 4,000 pieces per month and delivery can be made within a month of the placing of an order.

We are also able to supply, at short notice, the necessary spares at equally competitive prices.

[p.823] of [1968] GLR 804

If your Ministry is interested in other farm and fishing machinery we are able to supply you, free of charge, with samples of other items and to quote you very reasonable prices if considerable quantities are ordered.

Finally we beg to state that this is a Ghanaian enterprise which is willing to participate and help in the provision of equipment for the successful implementation of the Second Development Plan. It is believed, therefore, that your Ministry will be willing to co-operate with us.

(Sgd.) Kwesi Kota pp. Farm Machinery supplies.’ In the letter (exhibit D5) the third accused made the following representations every one of which, he knew to be false: (1) That a firm or business house called Farm Machinery Supplies existed. (2) That they were suppliers of all types of farm and fishing machinery. (3) That their offices were at Tafo. (4) That their bankers were the Bank of West Africa Ltd.. Tafo, and the Ghana Commercial Bank Accra. (5) That they rented Post Office letter Box No. 22 and telephone No. 25, Tafo. In this court, the third accused testified as follows: ‘I signed the letters (exhibits D5, A4 and W9) in the name of Kwesi Kota because I did not want the Minister, the Permanent Secretary and the top brass to know that it was I (James Quartey) who signed them.

If it had been known, I would probably have been dismissed . . . On exhibit D5, the F.M.S. is represented as the owner of telephone No. 25. It is not true that the telephone No. 25 belonged to the F.M.S. That telephone belonged to my wife’s uncle, Kofi Awuah. The Post Office Box No. 22 also belonged to the same man, Kofi Awuah. It was not true that the bankers of F.M.S. in December 1959 were the Bank of West Africa Ltd.,

Tafo, and the Ghana Commercial Bank, Accra. I did not have any account with either bank

. . . On 9 December 1959, the F.M.S. did not have any farm or fishing machinery for supply to anybody. It was a representation of what Solo could supply.’ On his own showing there can be no doubt that the third accused knew from the onset that the so-called agency agreement by which Mr. Emmerich was made to believe fraudulently that the Solo Kleinmotoren had become principal of the Farm Machinery Supplies was concluded for the purpose of defrauding the Government of Ghana. It was therefore an illegal contract at all.”

[p.824] of [1968] GLR 804

In three other parts of his judgment the learned judge further said an this point:

“Coming back to the appointment of the fictitious Farm Machinery Supplies as Solo’s agents in Ghana, I hold that no contract of agency was ever concluded because at the time of the alleged agreement, one of the parties, namely, the F.M.S. did not exist and was incapable of entering into an agreement. The third accused knew at the material time that no such firm existed but as a result of false representations made by him, Mr.

Emmerich believed that the F.M.S. existed. There was therefore no correspondence of offer and acceptance.

In other words, there was no consensus ad idem. In the result what purported to be a contract was no contract at all.

I accept Mr. Emmerich’s evidence that the third accused told him that he would resign from the Civil Service in due course and join the F.M.S. as a director or manager. It is therefore clear that the third accused was not the other party to the so-called agreement. It follows that the extra sum of £G20 paid by the government on each of the 12,000 Solo machines ordered by the C.M.B. as a result of the false representations was received by the Solo Kleinmotoren to the use of the government. The ownership of the said sum did not vest in the Solo Klein- motoren nor did they claim to be owner. Upon the money being remitted to the accused persons and the F.M.S. in Ghana, it remained the property of the government throughout even though the ingenious modus operandi of the accused persons prevented the ministry officials and the C.M.B. from knowing that the money belonged to the government . . .

In R. v. Martin (1867) L.R. 1 C.C.R. 56 cited in R. v. Moreton [1911-13] All E.R. Rep. 699 at p. 700 it was held that the intervention of a contract does not necessarily prevent a conviction for obtaining by false pretences if the false pretence is a continuing one and operates on the mind of the person supplying the goods. In this case there is no doubt that subsequent to the false representations made by the accused persons in December 1959, the Farm Machinery Supplies and the Ghana Agricultural Machinery Company Ltd. were established to regularise the position. I am satisfied that the false pretence was a continuing one and it operated on the mind of Mr. Emmerich throughout. I hold, therefore, that the intervention of the contract of principal and agent concluded between the Solo Kleinmotoren GmbH and the F.M.S. and Gamco Ltd. did not alter the position.

[p.825] of [1968] GLR 804

Although Mr. Emmerich was sworn through an interpreter he told the court that he could speak English himself but he preferred to give his evidence in German. In order to test his story I requested him to speak English and he did so admirably. I am satisfied that Mr. Emmerich is proficient in the English language, therefore, he understood what the first accused told him on 8 December 1959. The second and third accused themselves testified that on 23 March 1960, they had discussions with Mr. Emmerich at the Ringway Hotel where, they alleged, a prepared itinerary was handed to him. On the next day, they alleged, they took him to the Volta Region for a whole day followed by visits to the Eastern and Central Regions on the next day and the day after. There is no evidence that an interpreter accompanied them. How did the accused persons speak to him? Surely they are intelligent enough to know that without an interpreter, Mr. Emmerich would not understand what they alleged they set out to do if in fact he did not speak English. I am satisfied that the suggestion is not supported by the evidence and it is rejected as untrue.

In the result, I accept the case for the prosecution. I reject the contention of the defence that the F.M.S. and the Gamco Ltd. were agents of the Solo Kleinmotoren.”

In our view, these findings made by the learned judge are absolutely irrelevant to the issues before the court, namely, whether the price of £G50 and later £G48 quoted to the government was not the price Solo demanded or agreed should be demanded on their behalf. These findings disclose two serious errors: (i) the learned judge thought he was trying a civil suit arising out of disclaimer of liability by Solo under their contract appointing first F.M.S. and later Gamco as their sole representatives in Ghana; and (ii) misconception of the law with respect to business done by an individual or by two or more individuals under a business name, that is, a name which does not consist of the true surnames of the partners in the firm or the individual doing such business.

But Solo do not dispute their liability under their appointment. The evidence of the first prosecution witness on the contrary is that they regarded themselves as bound by that appointment and are satisfied with the terms of appointment of their said representatives, i.e. F.M.S. and Gamco. For example, the first prosecution witness said inter alia: ‘From the time we appointed F.M.S. as our agents up to the time they ceased to be our agents they carried out the functions which we normally expected of our agents. I regarded Mr.

[p.826] of [1968] GLR 804

Quartey’s technical knowledge and experience in cocoa spraying as an asset.” We shall refer to other evidence later on to show that Farm Machinery Supplies carried on work which Solo contracted to do for the government.

Our law does not prohibit a firm or an individual promoting or doing business in a business name. All that the law requires is that that business name should be registered. This is regulated by the Registration of Business Names Ordinance, Cap. 177 (1951 Rev.), as amended by the Registration of Business Names (Amendment) Ordinance, 1957 (No. 28 of 1957), s. 4 which was in force at the relevant date. Section 3 of that Ordinance provides as follows:

“3. (a) Every firm having a place of business in the Gold Coast and carrying on business under a business name which does not consist of the true surname of all partners without any addition other than the true Christian names of individual partners or initials of such Christian names;

(b) Every individual having a place of business in the Gold Coast and carrying on business under a business name which does not consist of his true surname without any addition but his true Christian names or the initials thereof;

(c) Every firm or individual having a place of business in the Gold Coast who, or a member of which, has either before or after the coming into operation of this Ordinance changed his name, except in the case of a woman in consequence of marriage;

(d) Every company carrying on business under a business name which does not consist of its corporate name without any addition, shall be registered in the manner directed by this Ordinance.”

The enactment does not provide that business done without such registration is void of effect. On the contrary section 9 of the Ordinance provides that:

“If any firm or individual commits a breach of any of the provisions of the foregoing sections every partner in the firm or the individual so in default shall be liable on summary conviction to a fine of five pounds for every day during which the default continues, and the court shall order a statement of the required particulars to be furnished to the Registrar within such time as may be specified in the order.”

[p.827] of [1968] GLR 804

And section 6 provides that: “The particulars required to be furnished under this Ordinance shall be furnished within fourteen days after the firm or individual commences the business in respect of which registration is required.” The true interpretation of these sections is, that a person or a number of persons may commence and do business in a business name, but the court will impose a fine upon the promoter or promoters for failure to register the name within fourteen days of the commencement of the business, and make an order upon him or them to register the business within a specified time. The period of non-registration does not affect the legal personality and capacity of the person or persons who do the business to make a valid contract; a contract made prior to registration is valid and enforceable.

Now the issue as to whether or not £G50 was the price quoted by Solo, i.e. whether the appellants or any of them made false representations to the government, is a question of fact. On that issue the learned judge made the following findings:

“Upon a careful consideration of the chain of circumstances and the evidence as a whole, I have come to the conclusion that: (1) On or about 8 December 1959, moved by greed and avarice, the accused persons agreed together to commit large scale frauds against the Government of Ghana in connection with the provision of equipment for the capsid control scheme. (2) That the third accused was the chief protagonist of the conspiracy. (3) To facilitate the commission of the frauds, they agreed that the first accused who was the then Minister responsible for the capsid control scheme should impress upon Mr. Heinz Emmerich who was due to meet him to discuss spraying machines to appoint a local agent as a condition for an order being placed.

(4) To succeed in achieving the common purpose to defraud the Government, the name of a fictitious firm was to be used. (5) That the third accused should cause to be printed a quantity of letter-heads bearing the name of the fictitious firm. (6) That after Mr. Emmerich had been seen by the first accused, the third accused should contact him, show one of the said letter-heads to him and induce him to appoint the said fictitious firm as Solo’s local agents. (7) That as soon as the appointment was made the third accused should use the said letter-heads in all correspondence between the conspirators and the Ministry of Food and Agriculture relating to the Solo spraying machine to conceal the existence of the conspiracy and the identity of its members. (8) That in due course, the first accused should direct orders to be placed by the government for the Solo spraying machines and the conspirators

[p.828] of [1968] GLR 804

(purporting to act as true and lawful agents of the Solo Kleinmotoren in the guise of the fictitious firm) would offer the machine to the Government of Ghana at £G50 each c.i.f. Ghana ports instead of the actual price of £G30 each c.i.f. (9) That after the government had been made to pay £G50 for each machine ordered, the accused would obtain the difference of £G20 from the Solo Kleinmotoren for their own use.

I am satisfied that the letter (exhibit D5) was written by the third accused in pursuance of the conspiracy, therefore the representations made therein are deemed to have been made with their consent for, and on behalf of all of them.”

The powers of this court to substitute a conviction for one offence for conviction by the trial court for another offence are set out in paragraph 14 (2) of the Courts Decree, 1966 (N.L.C.D. 84), which is as follows:

14. (2) Where an appellant has been convicted of an offence and the Judge who tried him or the jury, as the case may be, could on the indictment or charge have found him guilty of some other offence, and on the finding of such Judge or jury it appears to the Court of Appeal that the Judge or jury must have been satisfied of facts which proved him guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by such Judge or jury a verdict of guilty of that other offence, and pass such sentence in substitution [for] the sentence passed at the trial as may be warranted in law for that other offence.”

The important words in the section which provided the condition precedent upon which the court may exercise its discretion to substitute conviction for one offence for conviction by the trial court for another offence are:

“and the Judge who tried him or the jury . . . could on the indictment or charge have found him guilty of some other offence, and on the finding of such Judge or jury it appears to the Court of Appeal that the Judge or jury must have been satisfied of facts which proved him guilty of that other offence.”

(The emphasis is ours.)

These words must be interpreted to mean that if a trial court convicts of an offence as charged, e.g. stealing, and the findings of the judge or jury show that the trial court was satisfied of facts which proved the accused guilty of another offence of which he could in law have convicted the accused person, and yet convicted him on

[p.829] of [1968] GLR 804 the offence as charged, the Court of Appeal may interfere and substitute a conviction for that other offence. In other words, where a trial court fails to exercise powers given to it under a statute, e.g. sections 156 and 157 to convict of an offence other than the offence charged, but found the ingredients of that alternative offence proved, the Court of Appeal will, by virtue of paragraph 14 (2) of N.L.C.D. 84. exercise the powers which the trial court could have exercised. But since, as stated in State v. Andoh (supra), the trial court could only have exercised that discretion where it is satisfied that “the prosecution have failed to prove the charge,” the Court of Appeal will not, where the trial court has convicted on the alternative offence, substitute conviction for the offence charged, since the trial court has already exercised that discretion which it could only do, because it found the charge preferred not proved. The trial court need not say in express words that it has acquitted and discharged upon the particular count or charge: the mere exercise of the discretion under the sections implies that the judge or jury have not “been satisfied of facts which prove” the charge as laid, for if he were, he would certainly have convicted of the offence charged, and there would be absolutely no necessity for him to consider whether or not an alternative charge is proved.

These powers of the court to substitute a conviction for an alternative offence for a conviction recorded by a trial court for one offence are identical with those of the English Court of Criminal Appeal. There have been many decisions of the English courts on the issue, and the principle which clearly emerges upon analysis of those cases is, that before acting under this provision, it must appear to the Court of Appeal, on the findings of the trial court, that the trial court has been satisfied beyond reasonable doubt of facts which proved the appellant guilty of the other offence: see R. v. Hayward (1949) 33 Cr.App.R. 1, C.C.A. and R. v. Caslin (1961) 45 Cr.App.R. 47, C.C.A. It is not enough that the trial court might have been satisfied of the facts which prove the other offence. It must be apparent from its judgment, that the trial court was positively satisfied of the facts. Said Lord Hewart C.J. in R. v. Collins (1922) 17 Cr.App.R. 42 at p. 44, C.C.A.:

“The important words in that section are ‘the jury must have been satisfied.’ There is all the difference between the words ‘must’ and ‘might,’ and although no doubt the jury might have convicted the appellant of obtaining money by false pretences, the slightness with which that aspect of the case was considered at the trial precludes this Court from saying that the jury must have convicted of that offence, and

[p.830] of [1968] GLR 804 this appeal must be allowed. The Court comes to this conclusion with the greatest reluctance in a case which has no merits.”

Surely if the trial court is positively “satisfied of facts which proved” the appellants guilty of the offence charged, viz: fraud by false pretences, it would never have been necessary for him to resort to conviction for the alternative offence of stealing.

Therefore upon the authority of R. v. Collins (supra) and State v. Andoh (supra) and by virtue of the very wording of N.L.C.D. 84, para. 14 (2), this court is precluded from substituting a conviction for fraud by false pretences for the conviction for stealing.

However, in the interest of justice, we are not prepared to rest the decision in the case solely upon this point of law, important though it is; we shall deal with the facts.

The law relating to the duty of a court of appeal with respect to findings of fact made by a trial court in a criminal case has been explained at some length in some recent decisions of this court; among them we may refer to Republic v. Asafu-Adjaye (No. 2) [1968] G.L.R. 567, C.A. and Atsu v. Republic [1968] G.L.R. 716, C.A. It is enough to refer to those and to add the following:

(i) Where the findings made constitute inferences drawn from established facts and not just findings made upon conflicting oral evidence, the Court of Appeal is in exactly the same position as the trial court, and if the inference the appellate court draws from those facts should differ from that drawn by the trial court, the Court of Appeal is in duty bound to substitute its own findings for those of the trial court; in the present case the learned trial judge made it quite clear that the facts he found are inferences he drew based “upon a careful consideration of the chain of circumstances and the evidence as a whole”;

(ii) (a) If the trial court made the findings as a result of a wrong view it took of the law, or (b) if the trial court made the findings without proper examination and evaluation of the evidence on the records, then in either case, the Court of Appeal should itself examine the evidence as a whole and evaluate the same and come to its own conclusions of fact; and

(iii) Where the decision depends upon the oath of one prosecution witness against the oath of a witness for the defence, and the trial court does not give good reasons for preferring the evidence of the one prosecution witness to that of the one defence witness, the appellate court is in duty bound

[p.831] of [1968] GLR 804 to examine the whole of the evidence itself and to come to its own conclusions of fact.

Thus in Lutterodt v. Commissioner of Police [1963] 2 G.L.R. 429, the Supreme Court said at pp. 436-437:

“Where, as in this case, the decision turns upon the oath of one prosecution witness against that of a witness for the defence, it is incumbent upon the trial court to examine the evidence of each of those two witnesses carefully along with other evidence in the case, oral, documentary and circumstantial as well, before preferring one of the conflicting evidence to the other; and where his preference is for the prosecution he must make it appear from his judgment that his said preference is reasonable, for the principle of law is, that if the court could not find reasonable grounds for preferring the evidence of the prosecution witnesses to contradictory evidence given by a defence witness, the prosecution has failed, because there would, at least, be reasonable doubt as to which of the two conflicting versions of the story is true, and the benefit of that doubt must be given to the defence.”

Lutterodt’s case has been explained recently by the court in Republic v. Asafu-Adjaye (No. 2) (supra) at p. 588 as follows:

“The dictum in the judgment of Lutterodt v. Commissioner of Police (supra) can mean no more than that when the oral evidence before the court consists of the oath of one witness against that of another it is essential to take into consideration other circumstances or matters that may have been brought to the knowledge of the court.”

Now, the first attempt made by the learned judge to face the evidence with relation to the alleged false representations as to the price of £G50 was in the course of dealing with submissions made on behalf of the third appellant that the price of £G50 was primarily quoted by Solo themselves or with their authority. Unfortunately, the learned judge did not take the trouble to look at the evidence, oral, documentary and circumstantial, but merely referred to two of the many documents on the subject and dismissed the submissions peremptorily as follows:

“It was submitted for the third accused that Mr. Emmerich did not speak the truth therefore the court should reject his evidence and accept the testimony of the third accused and acquit him. His version of the events leading to the appointment of the fictitious Farm Machinery Supplies is that Mr. Heinz Emmerich first met him at Bunso on 25 November 1959, and

[p.832] of [1968] GLR 804 discussed the Solo machine with him. He told Mr. Emmerich that he had tested the latest model of the Solo machine and found that it was very good. During a discussion Mr. Emmerich told him through an interpreter—a Mr. Mueller that he was the manufacturer of the Motoblo machine and that for some time no sales had been made because his local agents—the United Africa Co., Ltd., had not been pushing the sales enough. He had therefore come to Ghana to see how the sales of the machine could be pushed up.”

He continued:

“In his own version of the story the third accused admitted that on 9 December 1959, Mr. Emmerich quoted the price of the Solo machine at £G30 each; yet one aspect of the defence which was common to both the second and third accused was that the price of £G50 was fixed by Mr. Emmerich and counsel quoted exhibits A5 and A12 in support. With respect, I am unable to appreciate the force of that contention because having fraudulently brought the relation of principal and agent to exist between the Solo Kleinmotoren and the fictitious Farm Machinery Supplies and the Ghana Agricultural Co., Ltd., it is not open to the accused persons to say that Mr. Emmerich should have gone behind his so-called agents and disclosed the real price to the Ministry in breach of the supposed agency agreement. A man is not entitled to plead his own wrong as a defence.”

With respect, the only reasonable interpretation of this statement of the learned judge is that Solo did agree that F.M.S. and Gamco, their sole representatives in Ghana, should quote £G50 per machine as the price required by them, i.e. Solo, but that the second and third appellants are by reason of the agency agreement with Solo estopped from disclosing that fact. The logic of it is extremely difficult to understand.

Later on when the learned judge was again faced with submissions made on behalf of the second and third appellants on this crucial issue, he again fought shy of the facts and took shelter under an alleged principle of law as follows:

“A public officer is answerable to the State in criminal prosecution for the execution of his office, since the State cannot otherwise punish his misbehaviour which is a fraud on the public. In the case of R.. v. Hudson [1956] 1 All E. R. 814 at p. 815 Lord Goddard C.J., delivering the judgment of the Court of Criminal Appeal said:”

[p.833] of [1968] GLR 804

He then quoted a long passage from that judgment and from another case, i.e. Boston Deep Sea Fishing & Ice Co. v. Ansell (1888) 39 Ch.D. 339 at p. 362, C.A. and then continued:

“It has been submitted on behalf of the second and third accused persons that the officials who acted for the government should have investigated the prices quoted by the Farm Machinery Supplies and that having failed to do so and got what they bargained for, they cannot be heard to say that the government has been defrauded. Counsel relied on the provisions of section 133 (2) (c) of Act 29 which reads as follows: ‘a consent shall not be deemed to have been obtained by a false representation as to the quality or value of a thing, unless, the thing is substantially worthless for the purpose for which it is represented to be fit, or to have been substantially a different thing from that which it is represented to be,’ and said that rather than the machines being worthless, they were in fact the best and cheapest therefore the charges cannot stand.

With respect, I think that the submission is completely untenable. If the Solo agency had been taken by a firm or company or individuals other than servants of the government and that firm or company or individual negotiated for the orders, no one in his right senses would have any cause to complain. An example of what I am saying is the agencies held by the Technical Lloyd Ltd., and the United Africa Co. (Ghana) Ltd. They are genuine business or commercial houses and are entitled to quote any price for the goods sold by them. In the instant case the incontrovertible facts are that the three accused persons—all public officers who were in duty bound to be faithful to the government, fraudulently conspired to represent to a man who had come to do business with their master (the governments) that they were a trading firm and by means of such false pretences they caused him to appoint them as agents in the names of the fictitious Farm Machinery Supplies and Ghana Agricultural Machinery Co., Ltd., and thereby fraudulently obtained the consent of the government to pay to the said company the sum of £G50 each for 27,000 machines and £G48 for each of 25,000 machines ordered by the Cocoa Marketing Board and Ghana Supply Commission instead of £G30 and £G27 10s. and received the difference of £G1,052,500 for themselves. It is true, that there is no evidence at all that the first accused personally received anything out of the said sum; but that he participated in the conspiracy and the commission of the frauds, there is no doubt whatsoever in my mind.”

[p.834] of [1968] GLR 804

This statement that a pure civil transaction is converted into a criminal offence upon the sole ground that the defendants were public officers is indefensible; and the learned Director of Public Prosecutions had no hesitation in agreeing with counsel for the appellants that it is a wrong proposition of law. It is significant to note from the last passage quoted from the judgment, that had the learned judge not taken the erroneous view that:

“the three accused persons—all public officers who were in duty bound to be faithful to the government, fraudulently conspired to represent to a man who had come to do business with their master (the government) that they were a trading firm, and by means of such false pretences they caused him to appoint them as agents in the names of the fictitious Farm Machinery Supplies and Ghana Agricultural Machinery Co., Ltd.”

(the emphasis is ours), he would not have found that there had been any offence disclosed.

Furthermore, the passage emphasises, that in the mind of the learned judge, the issue he was trying was whether false representation was made to Solo, i.e. Emmerich, the first prosecution witness. This is a serious misdirection.

It having been clearly demonstrated from his judgment that the learned judge of the court below did not examine and appraise the evidence on the main issue, it is incumbent upon us, in the interest of justice, to sift out the facts as are contained in the evidence, in order to determine whether or not the prosecution discharged the onus they took upon themselves, namely, of proving that the price quoted is false. To do this we shall set out the evidence as much as possible, in a chronological order, i.e. oral evidence along with the documentary evidence. We shall confine our attention almost exclusively to the evidence led by the prosecution witnesses themselves. The star witness is the first prosecution witness, Heinz Emmerich.

But before doing that, it is necessary to refer briefly to certain matters which, upon the evidence, form the background of the whole case, and immediately preceded the prosecution. The evidence shows that the prosecution is the culmination of a feud between Heinz Emmerich, a co-owner and technical director of Solo, and Djaba, the second appellant. These two persons, Emmerich and Djaba had been close associates in the business between Solo and F.M.S. and later between Solo and Gamco, and letters which they exchanged during the early stages of their association showed that they both looked forward to years of cordial co-operation resulting in substantial financial benefit to each.

[p.835] of [1968] GLR 804

In due course, Emmerich discovered that Djaba and one Dietor Gaede, the export manager for Solo were trying privately to form a company in order to oust Solo from the Ghana market. He also discovered that Gaede had received an amount of £G5,000 from Djaba, and Gaede had paid £G4,000 to the chief engineer of Solo to induce him to resign from the services of Solo. The engineer in fact eventually gave notice and resigned.

Emmerich felt indignant about this discovery and confronted Djaba with the facts, but Djaba denied any collusion with Gaede. Emmerich was determined to go to any length to frustrate the plans of Djaba and Gaede. He said:

“We told him that we would make public the whole affair so that Djaba could not do business of that kind with another person. At that time we considered it inadvisable to make formal complaint to the Ghana Government because many high ranking officials of the government were Djaba’s friends.”

When asked in cross-examination what “the whole affair” was which he had threatened to publicise, Emmerich replied as follows: “The affair which we wanted to publish in the German Press was the whole matter connected with all the orders for spraying machines. The facts to which I have deposed in this court constitute the whole matter.” Emmerich said that in pursuance of their determination they started to give the whole story to the press for publication.

On hearing of these threats of press publications, Djaba wrote a letter dated 16 December 1963 (exhibit A42) to Solo in which he said, inter alia.

“The furtherance of such plans by trying to publish false payments to us in Ghana is considered by me as the most and sad mistake you will ever make in life and will reflect on you adversely. Kindly read the Ghana Supply Commission’s general conditions of contract very well and study all necessary stipulations regarding quotations and pricing and you will definitely see that you are digging your own grave. You must also not forget amounts we received in camouflage and paid back to you just to enable you to evade taxes in your country. Information has reached the government of your very dishonesty and foul game played by sending us 70 cc. Knapsack motorised spraying machines instead of the 60 cc. originally requested by the government. The only person who can minimise tension over this and to save you from total disgrace will be Djaba. I am afraid, I cannot press for the withdrawal of the letter of guarantee until such conditions are cleared to my entire

[p.836] of [1968] GLR 804 satisfaction. Kindly take this as my last and serious warning before we are all engaged in serious war against each other.”

Solo, in a letter dated 31 January 1964 (exhibit A38), informed Djaba that they were prepared to continue business with his company, provided he assured them that he would have nothing to do with Gaede. In that letter they said:

“Please understand us when we say and request of you to make a decision from your side, that is either you go work with Mr. Gaede and his plans, or you resume to working conditions with us as we previously had.

Let us make clearly and explain to you that it is impossible that you continue and work under the present circumstances. You must choose either one or the other. If you go with Mr. Gaede, you are working against our interests . . .”

While this feud was going on, Folke Bruening (the nineteenth prosecution witness) a director of Djaba’s company Gamco, proceeded to Europe on leave; that was on 25 May 1963; he visited Solo’s factory and had discussions with the Emmerich brothers. In consequence of those discussions, Bruening returned to Ghana on 17 January 1964, with a report from Heinz Emmerich and his brother Hans which he handed over to the ex-President in person at the Flagstaff House. Hans Emmerich who had travelled together with Bruening to West Africa, waited at Lome for the result of the report, and after Bruening had conferred with him at Lome he flew back to Germany. Bruening said that he discussed the contents of the report with the ex-President; the ex-President asked him to supply further details, so he communicated with the Emmerich brothers in Germany. Hans thereupon flew back to Lome; there he met Bruening and gave him another report for the ex-President. In answer to a question by the prosecutor, Bruening said, “Hans did not come to Ghana because he was afraid to come to Accra.”

Some time after the submission of these reports, Hans Emmerich was invited by the government to build a factory in Ghana. Both Heinz and Bruening gave evidence at the district court early in April 1964, at the preliminary inquiries when the appellants were committed to stand their trial. And on 23 September 1964, when Heinz Emmerich stepped into the witness-box at the High Court to give evidence for the prosecution, the Emmerich company had signed an agreement with the Ghana Government to build a factory here at the contract price of about £G3,000,000. Bruening who gave evidence on 16 November 1964, had in the meantime become a [p.837] of [1968] GLR 804 merchant in Hamburg and had been rewarded with the post of honorary consul for Ghana in Hamburg.

And now to the facts: The first prosecution witness deposed that he had to come to Ghana because they had not been making sales of their machines in Ghana since 1957. He said:

“At the time when our company sold our machines through the English firm we were not selling large quantities to Ghana. I am not sure but it might be that the last time we sold our machines to Ghana through the English firm was in 1957. The English firm told us the reason why they could no longer sell our machines in Ghana.

As a result of what the English firm told us we decided to make greater effort to get orders from Ghana. It was decided that I should come to Ghana and we were prepared to sell the machines at £G30 each c.i.f. in Ghana.”

Later on he said:

“I know that large scale business would entail having agents in Ghana who would advertise our goods, maintain stocks of spare parts, etc. When I came to Ghana in November 1959 I was dissatisfied with our agents, Kent Engineering and Foundry Ltd. The U.A.C. were sub-agents of the Kent Engineering and Foundry Ltd.”

At another part under cross-examination, he said:

“I thought that the U.A.C. just gave up the sale of the machines. Before I left Germany, I had formed the opinion that our machines were not selling well in Ghana. I therefore came to Ghana to see how I could push up the sale of our machines. I did not worry at the time whether the sale was to be direct or through agents. I saw Mr. Mueller when I arrived in 1959. I discussed the purpose of my visit with him. We knew that Jos Hansen would have liked to take the agency but we did not like to give it to them.”

He also gave evidence of his visit to Bunso and his meeting there with the third appellant (Quartey). He said:

“When I visited Bunso with Mr. Mueller I discussed the purpose of my visit with Mr. Quartey. It is quite likely that Mr. Quartey told me that such a good machine was not more popular with the farmers. I told Quartey that the U.A.C. tried to sell more of our machines but were unsuccessful. It might be I told Quartey that I would like to have a man like him to promote the sale of our machines but I did not think that

[p.838] of [1968] GLR 804

Quartey himself would be able to work for us as he was already employed by the government. I remember Mr. Quartey himself told me that he could not work for us because he was a civil servant. It is possible he may have said that he would think about leaving the civil service and help to promote the sale of our machines. He may have told me that the Solo machines which had been sent to him for testing were received without any descriptive literature. I think I told him that I had some and would send one to him. Mr. Quartey came to see me in Accra on 7 December 1959 a few days after I had telephoned him to come. I requested Quartey to come to Accra for discussion on the sale of our machines. We had discussion on the same date 7 December 1959.”

On the next day, 8 December 1959, the first prosecution witness had an interview with the first appellant, then Minister of Agriculture, upon an appointment fixed for him by the third appellant. His account of that interview is as follows:

“As the third accused had told me that he knew the Minister of Agriculture I telephoned him at Bunso to come to Accra and he came. He saw me at the Avenida Hotel where I was lodging. It was on 7 December 1959. I requested the third accused to ring up the Minister of Agriculture and seek an appointment for me to meet him. He made the telephone call. The third accused told me that the interview would be at 8 o’clock next morning. At 8 a.m. on the next day I went to the Ministry of Agriculture. I saw the Minister, Mr. Asare (the first accused). I went to the Ministry with an interpreter Mr. Mueller. Although the interpreter was present, I understood the ensuing conversation in English myself. The first accused was alone in his office. I told him that my firm was the biggest manufacturer of spraying machines (shoulder mounted) for insects or fungi. That we had heard of the capsid control scheme in Ghana and we knew that Ghana needed many spraying machines.

I told the first accused that we could supply spraying machines at the rate of 1,000 machines per week. I asked whether it was possible to get an order for spraying machines for my firm. The first accused told me that it might be possible for us to get a trial order for 12,000 spraying machines provided we appointed a firm who would represent us in Ghana. I agreed to appoint a Ghanaian firm to represent us and I thanked the first accused and left the Ministry. I went to the hotel and the third accused came to me. In accordance with previous arrangement the

[p.839] of [1968] GLR 804 third accused came to see me and I told him what the first accused had said.

The third accused then produced and showed to me a letter-head bearing the name ‘Farm Machinery Supplies’ (identification 1) and said I should appoint Farm Machinery Supplies as our representatives or agents in Ghana and that he would resign his government appointment and join the firm as manager or director. It was the Minister who insisted that I should appoint a local agent. I had no alternative. The third accused requested me to certify in writing that Farm Machinery Supplies have been appointed our agents in Ghana. If the Minister had not laid it down that we should appoint a firm in Ghana as our agent we ourselves could have supplied the machines direct.”

The government knew long before this visit of the first prosecution witness that it could obtain the Solo machine direct from the manufacturers at a price of £G38 2s. a piece c.i.f. if it wanted the bare machine, i.e. machine without services and other facilities. This fact is contained in exhibit D1, a Ministry of Agriculture file.

The first prosecution witness said, “When I saw the first accused on 7 December 1959, he instructed me to write a letter to him to confirm what I discussed with him. As a result I wrote the letter exhibit A12.” This letter is dated 24 December 1959, and says, inter alia:

“We have pleasure in referring to the visit of our director, Mr. Heinz Emmerich, to Ghana when he had the honour of being received by you on Tuesday, 8 December 1959. The purpose of his visit was to introduce our firm to you, and we are gladly following your request and reiterate below the essential data about our firm, for your information. . .

We would be very glad indeed, if you could arrange for a trial order to be placed with us, in order to give us a possibility to prove our efficiency and also to give the farmers of Ghana a chance to see for themselves how effective our machine is.

We fully appreciate that in the case of orders of some magnitude being placed with us, an excellent service for our machines would have to be established, and we would be prepared to take all the necessary steps in this direction.

Should we receive an order of the size of 12,000 machines, we would be willing to supply free of cost a complete repair shop, containing all the machinery, equipment and tools necessary for the overhaul and maintenance of our machines and engines.

[p.840] of [1968] GLR 804

For the purpose of enabling you to verify our statements and to gain an impression of the standard of our firm, we would be very pleased to invite any person to be nominated by you to come to Germany; we would bear all the expenses involved and would give the person concerned every possibility of studying our production methods and of collecting information about our reputation in Germany. We would suggest that such visit be paid in the course of next spring.

To your information we want to tell you that we have appointed Messrs. Farm Machinery Supplies, Tafo, P.O. Box 22, sole representatives for the sale of our articles in Ghana.

In conclusion, may we express our thanks for the interest you have shown in the products of our firm.

Looking forward to hearing from you in the near future, we remain.”

The first prosecution witness gave further evidence about his discussions and transactions with the third appellant. He said:

“The third accused told me that the Farm Machinery Supplies would look for orders for the spraying machines and would see to the payment. The third accused told me that the machines would be sold to the Ghana Government at £G32 or £G34 or £G36. The third accused did not state the price beyond £G36. I considered the £G6 difference as reasonable on account of the work the Farm Machinery Supplies would do (e.g. getting orders and seeing to the payment).”

He supplemented this evidence with the following:

“It was not Mr. Quartey who advised that we should do what other companies were not doing such as providing adequate repair facilities and so forth. While I was here in Ghana, I myself told Mr. Quartey that if we could get orders, our company would invite members of the Ministry of Agriculture to visit our factory in Germany and to train young Ghanaians in our factory. We would also supply a mobile workshop. I said so after mutual discussion between Mr. Quartey and myself. Both of us agreed that Ghanaians should be trained to demonstrate the use of the machines to the farmers. I agree that if the machine was not properly demonstrated to the farmers it tended to be unpopular. No. I do not remember that Mr. Quartey suggested the purchase of a number of motor trucks or vans for moving propagandists and demonstrators around. He probably said that propaganda and demonstrations would cost a lot of money but I do not remember exactly.”

[p.841] of [1968] GLR 804

On 9 December 1959, the day after F.M.S. had been appointed the sole representatives of Solo in Ghana the third appellant wrote a letter exhibit D5 on an F.M.S. letter-head to the Ministry of Agriculture to inform them of the offer, and to say that the F.M.S. would offer Solo machines to the ministry “at the keen price of £G46 per piece, and spare parts at short notice.” The third appellant signed this letter as Kwesi Kota, his Fante name. He said he did this because at that time he was still in the civil service. He left the civil service in March 1960.

By a letter to the Ministry dated 30 January 1960, exhibit D14, again signed by him as Kwesi Kota on behalf of F.M.S., the third appellant corrected the price from £G46 to £G50; he said:

“I beg to refer to our letter of 9 December 1959 and wish to inform you that the price of £G46 quoted in the said letter was wrong and that the correct price of £G50 (fifty Ghana pounds) per machine (c.i.f. Accra, Swedru, Bunso, Jasikan, Kumasi or Bechem).

The error was due to a miscalculation in changing German marks into Ghana pounds.

We understand that our revised price is still comparatively keen.

However, the error and any inconvenience resulting therefrom is regretted.”

On 15 January 1960, Mr. Quist-Therson, the fifth prosecution witness, the Principal Secretary to the Ministry of Agriculture, wrote a five-paragraphed memorandum to the Minister, the first appellant, on the spraying machines and the offer made by Solo in their letter of 24 December 1959. In paragraphs (2) and (5) thereof he said:

“(2) I should like to take advantage of the offer made by the company that, if we were to order about 12,000 machines, they would provide us with a complete repair shop free of cost. We have at present 73,000 machines on order. Although we asked that they be supplied at the rate of 2,000 a month, it is reported at p. 301 that they are coming forward in insufficient numbers to meet the needs of farmers.

If an additional 12,000 Solo machines were ordered that will bring the total to 87,000. This may sound large; but the number of cocoa farmers is estimated at around 250,000; in other words there would be enough machines to provide for approximately just over one-third of the potential purchasers, assuming that one farmer buys one machine only. As is well known many cocoa farmers

[p.842] of [1968] GLR 804 do not, of course, do their own spraying and, if they have the funds, they do buy several for their labourers to use in spraying their cocoa farms . . .

(5) In conclusion, I recommend the immediate placing of an order for 12,000 Solo machines, with the request that the company should honour their offer of supplying repair facilities forthwith. This should help to speed up the work of spraying in which the P.M., yourself, and indeed all concerned with cocoa development are so interested.”

The first appellant approved of this recommendation as follows: “I approve your section 5 of minute (1) above.”

Pursuant to this approval Mr. Quist-Therson wrote to the Ghana Cocoa Marketing Board copied to the Chief Cocoa Officer, Division of Agriculture, letter exhibit D11 dated 23 January 1960 in which he said inter alia:

“(5) An offer from the manufacturers of the Solo spraying machine has been made to this Ministry. The company claim that they can manufacture 1,000 machines per week and that, if they could be given an order for 12,000 machines, they would set up, free of cost to Government, a complete repair shop for maintenance purposes in this country.

(6) In the light of this combination of circumstances, the Minister has directed that you place an immediate order for 12,000 Solo machines, to be delivered at the rate of 3,000 per month, subject to the company undertaking, in accordance with their official offer, to set up the repair shop.”

And on 3 February 1960, the Ghana Cocoa Marketing Board by letter, exhibit A11, on behalf of the Ghana Government, placed an order with Solo for 12,000 machines in the following terms:

“Dear Sirs, With reference to your letter dated 24 December 1959 addressed to the Hon. F. Y. Asare, Minister of Agriculture, we hereby place a firm order for the supply by you of 12,000 shoulder-mounted motorised Solo insect defence spraying machines at a price of £G50 each c.i.f. Takoradi.

Payment will be made by our bankers Messrs. Barclays Bank D.C.O. against presentation of shipping documents, and an irrevocable confirmed letter of credit is being opened in your favour for this purpose.

Shipping is to be made at the rate of 3,000 machines per month commencing from March 1960, and it is understood and agreed that you will undertake in accordance with your offer to

[p.843] of [1968] GLR 804 set up a complete repair shop in Ghana free of cost to Government.”

(The emphasis is ours.) The order was executed.

The transaction in respect of this order is the subject of count (1) of the indictment, and the money paid by the government for the purchase on that order is the subject of count (2) of the indictment.

As to the matters and circumstances which induced the government to decide to accept the price of £G50 and to place this first order, Mr. Quist-Therson, the fifth prosecution witness, Principal Secretary to the Ministry of Agriculture, deposed as follows:

“The offer by the Solo company contained in exhibit A12 to supply free of cost a complete repair shop was a novel offer. No other company made such an offer. I know that Technical Lloyd had a repair shop built and equipped by the government. I knew that they had three engineers being paid by the government but I did not know their salaries.”

He continued:

“The combination of circumstances which induced the government to place the order for 12,000 machines are—(1) The price of £G50. (2) The reports on the machine’s performance. (3) The offer to supply free of cost a repair shop and (4) The prompt delivery of the machines.

There were two other reasons namely—the letter referred to the Ministry discussed in paragraph 3 of exhibit D11 and the fact that K.W.H. were unable to keep to their scheduled delivery.

Exhibit A12 was minuted to me on 11 January 1960. When I wrote paragraph (5) of exhibit D10 I was not influenced by anybody. I acted upon my judgment based upon the advice I received from the experts. I tended the advice to the Minister and he approved of it. It is correct that before the first order was placed the price of £G50 per machine had been communicated by Farm Machinery Supplies to the Ministry by exhibits D5, D6 and D14.

Before exhibit D12 was written by the Cocoa Marketing Board the ministry knew that the price was £G50 per machine. The question of details, including prices, was left with the Chief Cocoa Officer to work out with the Cocoa Marketing Board. I was not involved in the details as regards the placing of the order and the price.”

We may pause here for a moment, summarise the facts proved by the evidence quoted above, and state their legal effect.

[p.844] of [1968] GLR 804

Emmerich, the first prosecution witness, came to Ghana prepared to do whatever he could to push the sale of their machine. It did not worry him whether the sale was to be direct or through agents. He was prepared to sell the bare machine at £G30 c.i.f., that is the machine without service or without agent. He was aware that if they should provide services, or should sell through agents, the price should be higher than £G30 a piece. His first contact with the Minister did not yield the desired result.

Emmerich later made contact with the third appellant who had all the technical knowledge about these machines and similar machines. He discussed his needs with the third appellant and told him, among other things, that if his firm, i.e. Solo, could get orders “our company would invite members of the Ministry of Agriculture to visit our factory in Germany and to train young Ghanaians in our factory. We would also supply a mobile workshop.”

The third appellant succeeded in fixing appointment for Emmerich with the first appellant, then Minister of Agriculture. The conversation at the interview was through an interpreter one Mr. Mueller, not called as a witness. The first appellant requested Emmerich to write to him “confirming what I had discussed with him.” In compliance with that request Emmerich wrote the letter exhibit A12 dated 24 December 1959, and said, inter alia:

“We have pleasure in referring to the visit of our director, Mr. Heinz Emmerich, to Ghana when he had the honour of being received by you on Tuesday, 8 December 1959. The purpose of his visit was to introduce our firm to you, and we are gladly following your request and reiterate below the essential data about our firm, for your information . . .

We would be very glad indeed, if you could arrange for a trial order to be placed with us, in order to give us a possibility to prove our efficiency and also to give the farmers of Ghana a chance to see for themselves how effective our machine is.

We fully appreciate that in the case of orders of some magnitude being placed with us, an excellent service for our machines would have to be established, and we would be prepared to take all the necessary steps in this direction.

Should we receive an order of the size of 12,000 machines, we would be willing to supply free of cost a complete repair shop, containing all the machinery, equipment and tools necessary for the overhaul and maintenance of our machines and engines.

For the purpose of enabling you to verify our statements and to gain an impression of the standard of our firm, we would be very pleased to invite any person to be nominated by you to

[p.845] of [1968] GLR 804 come to Germany; we would bear all the expenses involved and would give the person concerned every possibility of studying our production methods and of collecting information about our reputation in Germany. We would suggest that such visit be paid in the course of next spring.”

(The emphasis is ours.)

Before the first appellant was contacted by Emmerich, the government knew as shown in the minutes of the Principal Secretary, in the ministry’s file, exhibit D1, that the Solo machine could be obtained direct from the manufacturers at £G38 2s. c.i.f. without services; but the policy of the government appears to be that the government was not, and had never been interested in purchasing the bare machine without services, it wanted machine with services. For that matter, and in order to have service facilities, the government was paying as much as £G72 a machine, for the local agents to keep a repair shop built and equipped by the government, with salaries of three of the engineers working there, being paid by the government.

Having by this offer to the government undertaken “to supply free of cost a complete repair shop containing all the machinery, equipment and tools for overhaul and maintenance of our machines and engines,” Solo must either establish a branch of their business here in Ghana, or appoint agents or representatives who would not only arrange orders and see to the payment, but would also perform that part of their contract with the government. They decided on the second alternative; Emmerich said, “I know that large-scale business would entail having agents in Ghana who would advertise our goods, maintain stocks of spare parts, etc.” Consequently in their letter exhibit A12, signed by the two Emmerich brothers, and addressed to the Minister, Solo said,: “To your information we want to tell you that we have appointed Messrs. Farm Machinery Supplies, Tafo, P.O. Box 22, sole representatives for the sale of our articles in Ghana.” So that it is not a question of anyone foistering agency upon Emmerich; far from it. On the contrary it is a question of Emmerich deciding upon his own volition to have an agent as a sine qua non for the carrying out of the undertaking he had given to the government.

Upon the appointment of F.M.S. as sole representatives of Solo in Ghana, the third appellant, using his other name Kwesi Kota, wrote on behalf of F.M.S. and quoted the price of £G46 a machine, which he later amended to £G50. The Chief Cocoa Officer and the Ghana Cocoa Marketing Board, and not the first appellant, worked out that price and the government thereupon accepted that price.

[p.846] of [1968] GLR 804

The government, according to Mr. Quist-Therson, the fifth prosecution witness, was induced to accept this price by the following facts and circumstances:

(1) The price of £G50 approved of by the Chief Cocoa Officer and which is much lower than the £G72 which the government had been paying for the same machine;

(2) the reports on the efficient performance of the machine;

(3) the offer to supply, free of cost, a repair shop and other facilities; and

(4) the offer of prompt delivery of the machine.

Pausing here for a moment, we would refer to sections 132 and 133 (2) (d) of the Criminal Code, 1960 (Act 29), which deals with the offence of fraud by false pretences and respectively provide as follows:

“132. A person is guilty of defrauding by false pretences, if by means of any false pretence, or by personation he obtains the consent of another person to part with or transfer the ownership of anything.”

“133. (2) (d) . . . if the consent of a person is in fact obtained by a false pretence, it is immaterial that the pretence is such as would have had no effect on the mind of a person using ordinary care and judgment.”

The combined effect of these two sections of the Code is that to succeed in a charge of fraud by false pretences, it is not enough for the prosecution to prove that the representation is false, they must go further to prove that the consent to part with ownership was in fact obtained by the false pretence, even though the false pretence is of such a nature “as would have had no effect on the mind of a person using ordinary care and judgment.” In other words, if the false pretence, however fantastic it may sound, in fact caused or induced the person to part with his ownership in a thing, the offence is proved; if the false pretence is not shown to have caused or induced the consent of a person to part with his ownership in the thing, the offence is not proved, and the prosecution must fail. If the question is asked, why did the government pay the £G50, the answer is, because Solo offered to give them not just machines, but machines plus services for that amount of money. The law on the point is summarised in Archbold’s Pleadings, Evidence and Practice in Criminal Cases (36th ed.), p. 717, para. 1960.

Applying these principles, we would say that it follows from the evidence of Mr. Quist- Therson, the fifth prosecution witness, and the documentary evidence referred to above, that the quotation of the price of £G50 did not in any way operate to cause the officials of

[p.847] of [1968] GLR 804 the government to advise the government to pay the £G50 per machine, that is, the quotation of the price of £G50 per machine did not in fact cause the government to consent to part with its ownership in the £G20. Therefore even upon that ground alone, the fraud as alleged was not proved in any of the counts alleging false pretences.

But we will continue with the facts. Apart from the order to Solo, exhibit A11, which stated that the government was paying £G50 for the machine, the third appellant wrote on behalf of F.M.S. and signed as Kwesi Kota, a letter dated 8 February 1960, exhibit A12, to Solo requesting that the “invoices for the machines should show that they cost £G50 (fifty pounds) each.” Emmerich said he did not know how the price became £G50 instead of £G36 but he said he did not question the third appellant about it, and added that the third appellant spoke to him by radio telephone and invited him to come to Ghana for an explanation. He said he arrived in Ghana upon that invitation on 23 March 1960. He testified that on his arrival in Ghana, the second and the third appellants met him at the Accra International Airport, and eventually took him to Borada, the country-home of the first appellant. There, he said, he spent the night and that after dinner, the first appellant invited him to the roof-top; they were alone. His account of what transpired there is as follows:

“I had a short conversation with Mr. Asare. He, Asare told me that it was possible we might get another order for 13,000/ 15,000 machines provided it was possible to transfer the money to Ghana. Mr. Asare used the words ‘the money.’ By the words ‘the money’ I understood Mr. Asare as referring to the £G20 difference in price per machine. I told him that it would be possible to transfer the money through the normal banking channels. I did not question the Minister because I did not think that it was right for me to question a Minister of the government about money which belonged to the Government of Ghana.

Mr. Asare told me ‘We want cash.’ I understood the word ‘we’ to mean the Government of Ghana. When a Minister says ‘we,’ he means the government. Although the Minister did not tell me why the government wanted the money in cash and not through the normal banking channels, I thought the government wanted the money for secret purposes. I thought so, because, the government wanted the money in currency notes instead of through the normal banking channels. That is to say, I would have instructed our bankers in Germany to pay the said sum of £G240,000 to the account of the Government of

[p.848] of [1968] GLR 804

Ghana. That would be normal business. I told Mr. Asare that I would try to find a way to fulfil his wish.

Thereafter I went to bed. Mr. Asare asked me to think about it and let him know. I thought of the matter in the night. Next day, I just said ‘Goodbye’ to Mr. Asare and returned to Accra.”

Emmerich said that on his return to Accra he told the third appellant what the first appellant had said; that evidence is as follows:

“I told Mr. Quartey what the Minister had told me when we went to the house in the bush. We discussed how to arrange to get the money paid here in Ghana in cash. We made suggestions. Finally we agreed that I should open a personal account with Barclays Bank in Accra and that my company should transfer the money (that is the £G20 difference per machine) into my personal account and that I should sign cheques as and when the money was wanted. The cheques were bearer cheques.

When I came to Ghana on Quartey’s invitation, he did not explain the difference in price to me nor did I ask him to explain because Quartey took me to the Minister and I thought that the Minister’s explanation was the last word. I opened a personal account at the High Street branch of Barclays Bank, Accra, with £G20.”

Immediately upon the return of Emmerich, the first prosecution witness, to Germany, he and his brother wrote to F.M.S. to comment on the propositions he had discussed with them during his visit. The letter is dated 12 April 1960, exhibit A47. It says:

“Dear Sir, Having returned from my pleasant trip to Ghana I like to express once more my gratitude for the friendly reception you gave me, as well as for your many favours during my stay in Accra.

I especially wish to thank Mr. James Quartey and Mr. H. K. Djaba for all the trouble they had to undergo in order to assist me. With much pleasure I learnt that, in the meantime, you have organised a firm which seems to be capable of guaranteeing a good sale of our products in Ghana, and may be later, in Guinea and Nigeria.

As to the problems discussed during my visit, I should like to add some comments on this subject.”

They thereafter listed ten subjects the first of which is the schedule for delivery of the order which had been placed by the government; the sixth and the tenth are relevant and are as follows:

[p.849] of [1968] GLR 804

“(6) Your requested commissions we shall let you have within the next weeks, according to payments being made to us for delivered goods. . .

(10) It was agreed that your Mr. Quartey will pay us a visit in Germany about 15 May and that thereafter your technician Mr. Blaschke will accompany Mr. Quartey going back to Ghana in order to train the personnel at your end. We like to draw your attention to the fact that the training of your personnel is a necessary necessity for being able to demonstrate our machines properly. Without this training it will be impossible for them to sell the machines, especially the motor-saw.”

The only inference to be drawn from that letter is that the discussions which the first prosecution witness had during that visit with respect to remittances, relate to remittances of commission due to F.M.S. and not to return of any money they had wanted for the government to be used for secret purposes. And here is what Emmerich says about agency commission:

“By exhibit A1 we appointed F.M.S. our sole representatives in Ghana for the sale of our goods in Ghana.

There are two kinds of business. If our company is selling our goods to a government through an agent, the agent gets commission which is usually suggested by the agent himself. The other kind of business is that the company sells to the agent at net price and he, in turn, sells to the consumer at whatever price he chooses to sell. The company will not be concerned with the agent’s price.”

Naturally the principals and the agent of the first type, will have to agree upon the commission suggested by the agent, in order that the two of them should fix the price to be quoted to the consumer. That being the case, it is F.M.S. who would suggest the commission they should have in this case since they belong to the first category and not to the second category of agency. The logical conclusion is that the Emmerich brothers, i.e. Solo, agreed to the price of £G50 per machine before they executed the order. This is expressly stated by Emmerich himself; his own words are as follows:

“It is not true that the price of £G50 per machine was suggested to us by F.M.S. That price appeared in the first order for 12,000 machines. We accepted the price and executed the order. We were surprised when the price of £G50 appeared in exhibit A11 but all the same any agent would try to make as much profit as he can.”

On the face of that clear and unambiguous admission by Emmerich that Solo accepted the price of £G50, it is positively demonstrated

[p.850] of [1968] GLR 804 that the verdict in respect of the fraud by false pretences charged in count (2) of the indictment is unreasonable and cannot be supported having regard to the evidence. The same applies to all the other counts of fraud by false pretences and conspiracy to commit the crime of fraud by false pretences. It is even more so in the case of those other counts. As Blackburn J. says in Latham v. R. (1864) 5 B. & S. 635 at p. 642 “where an indictment consists of several counts, they are to all intents and purposes several indictments, and the same as if separate juries were trying them”; see also R. v. Bailey (1944) 18 Cr.App.R. 42, C.C.A. Thus if the learned judge had dealt with each count as a separate indictment as the law requires him to do, he would no doubt have discovered exhibit A26, exhibit 01, exhibit 04 and exhibit 05 in each of which Solo themselves state categorically that their price is £G50 per machine. We will run quickly through some of those documents.

Exhibit A26 dated 23 September 1960, is a letter written by Solo to the Chief Executive Officer, Ghana Supply Commission, with respect to the order mentioned in counts (3) and (4) and with respect to the 15,000 mistblowing machines, the subject-matter of count (3); it said inter alia:

“We refer to your tender No. AGRIC 000 2A of 17 September 1960 with Indent No. A4071/Mech./60.61 for the supply of 15,000 Solo shouldered insects defence spraying machines and which we wish to express our appreciation and hope to deliver the 3,000 pieces as requested in October.

We wish to inform you that the price of our most durable machine is £G50 c.i.f. Takoradi, net. The original price should be per piece of £G52 10s., but we have agreed after discussions with our local agents the Farm Machinery Supplies to offer you £G2 10s. cash discount (4.8% in the official tender by you) on each; e.g. we allow you a rebate of about 4.8 %. In the official tender we did not mention this cash discount of £G2 10s., because we wanted to give you the absolute net price. This is our fair competitive low price already quoted to the Ghana Cocoa Marketing Board in the previous order even though cost of raw materials have risen.”

This shows inter alia, that the original quotation of £G50 made in respect of the very first order, the subject-matter of count (2) was made in consultation with Solo.

Similarly in exhibit 01, exhibit 04 and exhibit 05 respectively dated 15 February 1963; 7 May 1963 and 17 May 1963 and addressed to Mr. Krobo Edusei, Minister of Agriculture, Mr. Quist-Therson, Principal Secretary, Ministry of Agriculture, and the Honourable

[p.851] of [1968] GLR 804

Krobo Edusei, Minister of Agriculture, respectively and with respect to the order, subject- matter of counts (7) and (8), Solo said:

“We herewith offer you our well known—Solo-Port 60 power knapsack mist spraying machine at a price of Dm 560—£G50 0s. 0d. c.i.f Tema or Takoradi for 25,000 machines. (2) The price for our above mentioned machine is £G50 0s.0d. which is equivalent to Dm 560 at the rate of exchange of Dm 11,20 to 1 G£.”

It is also worthy of note that when in July 1963, the Ghana Supply Commission, in compliance with directions of the ex-President, dispatched a telex message to Solo asking for a reduction of the price from £G50 to £G48, Solo replied by telex saying:—”Please negotiate with representatives Gamco who have full authority.” Solo copied this reply to the second appellant in their letter to him, exhibit A43 dated 8 July 1963, and in the postscript to that letter they gave the second appellant the following directive: “In any event whether it is now credit basis, letter of credit or cash against documents please secure, that the £G48 0s. 0d. per machine will be based on the rate of exchange of Dm 11,20 per £.”

Again, in exhibit A30 dated 7 May 1963, Gaede on behalf of Solo, and jointly with the second appellant for Gamco, signed a memorandum and said inter alia: “(2) The price for each machine will be £G50. 0s. 0d. on delivery basis of c.i.f. Tema/Ghana, packing included. This price is equivalent to Dm 560 each machine at the rate of exchange of Dm 11,20 to 1G£.” The memorandum was reconfirmed by Hans Emmerich on 13 May 1963, on behalf of Solo.

In an agreement of the same date, 7 May 1963, signed jointly by Gaede on behalf of Solo and the second appellant on behalf of Gamco, and reconfirmed by Hans Emmerich on behalf of Solo on 13 May 1963, and annexed to the memorandum, exhibit A13, the parties thereto recorded the following fact:

“(4). Agricom has spent already quite a considerable amount for getting this order through. It is therefore very important that Agricom gets as quick as possible at least a certain share of their profit, after the order has been placed, in order that they will be in the position to meet their commitments. Solo has agreed to do their best, to assist Agricom as much as possible, in order that Agricom will get also a loan on their share.”

And in exhibit A32 dated 17 May 1963, addressed to the Chief Executive Officer, Ghana Supply Commission, and signed by Geade, Solo said inter alia:

“(1). We offer you 50,000 pieces of our well-known Solo-Port 60 power knapsack-mist- spraying machines. The technical

[p.852] of [1968] GLR 804 specifications of these machines will be the same, like the previous delivered (27000) machines, only with some improvements. Your farmers are, as you know, very familiar with our machines, due to the thorough training of six of your senior officers in our factory in Germany and due to the technical assistance, which our agents, Messrs. the Ghana Agricultural Machinery Co., Ltd., Accra is constantly attending to them.

(2) The price for our above mentioned machine is £G50 which is equivalent to Dm 560 at the rate of exchange of Dm 11,20 to 1G£.”

And Emmerich had this to say about that price of £G50 and how it was used in pursuance of the undertaking he had given to the government:

“The price of £G50 may be considered reasonable provided that the agent sells each machine to the individual consumer together with servicing and maintenance and if the agent takes over the financial risk.

That is if the agent buys the machines from us and stores them for sale to the consumers. . . Yes, F.M.S. bought two ‘mobile workshop vans’ and we furnished the vans with equipment including spares as our contribution. F.M.S. paid for the vans from the difference between the price of £G30 and the £G50 paid by the government. Students were sent to our factory and to schools in Germany and all their expenses were borne from the difference. The students were sent by F.M.S. for training. Government officers concerned with capsid control were sent to our factory by F.M.S. for training. The costs of their maintenance and training were borne out of the difference. Their passages were also paid out of the difference.

Visitors including Mr. Kwame Kwakye (ex-district commissioner), Dr. Ayeh Kumi, Mr. Amoah Awuah, Deputy Minister and Mr. Amoako Atta, Deputy Governor of the Bank of Ghana who came to our factory had their passages and pocket money paid out of the difference. Our company paid the visitors board and lodging and their travel expenses in Europe. For the students in our factory we paid their food and accommodation. It is not true that F.M.S. paid everything in respect of the students. They paid their pocket money but we paid for their food and accommodation and did not charge that to the account of F.M.S. . . .

Part of the cost of training was borne by Gamco and part by us. The part paid by Gamco was made from the difference.

[p.853] of [1968] GLR 804

The training of the students was not so much for the promotion of sales but for the maintenance of the machines. I agree that if people are assured of repair facilities they tend to buy more. In the result the training is of our mutual benefit.”

And these are the bare truths which a proper analysis of the issues in the case reveals, and which the mass of irrelevant matter introduced, attempted to conceal, and thereby confused and misled the learned trial judge.

It was with the greatest difficulty that these truths were extracted out of Emmerich, a person who has shown that he would not scruple to resort to any means whatsoever to ruin Djaba by reason of his feud with Djaba, and who no doubt as a sequel to the reports he made to the ex-President as a result of his feud with Djaba, had obtained for his company a contract for £G3,000,000 odd to build a factory in Ghana, the highest ambition he had in coming to Ghana, and to which, his earlier attempts to attain, had only received the answer “Goodbye.”

The irresistible conclusion of fact which the evidence leads to, at the mouth of the prosecution’s own witnesses is, that £G50 is the true price required by Solo for the machine inclusive of commission due to their sole agents and representatives, together with services and inclusive of all other facilities which Solo undertook to provide, and by means of which the government was induced to place the various orders. In other words, the prosecution failed to prove that any false representation was made by the appellants or any of them in respect of any of the charges alleging fraud.

That this is the usual business method which Solo employ in selling their machines to a government, is proved by letters, exhibit AA10 and exhibit AA11, written by Solo to The Hon. Chief Akindeko, Minister of Agriculture, Ministry of Agriculture, Western Nigeria, offering their mistblowing machines to the Western Nigerian Government; and letters exhibit AA12 and exhibit AA13. In exhibit AA10 Solo said inter alia:

“Dear Sir, We refer to our letter of 27th July 1961 and hand you attached hereto our offer for our Solo sprayers.

The prices are to be understood c.i.f. Nigeria. We should be glad to receive your order and remain.

Yours faithfully, Solo Kleinmotoren GmbH (Sgd.)

Export Department.

[p.854] of [1968] GLR 804 Encl.

FMS Hon. Chief Akindeko, Esq., Minister for Agriculture, Ministry of Agriculture, Western Nigeria Ibadan-Nigeria. 388 7-8-61.

Solo-Port-mist sprayer gm ca. 8 days.

C.i.f. NIGERIA L/C or C/D 1 Solo-Port-Spraying machine with recoil starter .. .. £G50 Packing—Cardboard box Dimensions—74 x 48 x 40 cm Weight—a gross 18 kg —a net 16 kg The standard equipment of each Solo machine includes— 1. Standard nozzle 2. Diffuser nozzle 3. Tool kit 4. Plastic Funnel.”

Knowing fully well that they needed an agent in Nigeria for successfully carrying out such a business of sale of their machines to the Nigerian Government, Solo opened negotiations with a prospective agent, one Mr. E. A. Adeyemo of Ibadan. Two of the letters they wrote to this gentleman in this connection are exhibit AA12 and exhibit AA13 respectively dated 22 September 1961 and 9 May 1962. In exhibit AA12 Solo said:

“Dear Sir, According to your request we have addressed a letter to the Hon. Chief Akindeko recommending him your services, and we hope that you received the copy which went to you on 4 September.

[p.855] of [1968] GLR 804 Up to now we have not received any news from the Ministry of Agriculture, Ibadan, and we are very much interested to learn something about the results of the tests being made with our spraying machines and plastic sprayers by the ministry. We assume that you keep in close touch with the Ministry staff in charge of these tests; and we would appreciate your informing us of the development of the situation.

For your information we wish to advise you that you may offer our Solo spraying machine at a c.i.f. price of £G50, whereas the net price for you will be £G40.

If we may be of any assistance to you regarding future business in Nigeria, please do not hesitate to contact us.

Wishing you good success, we are, Yours faithfully, Solo Kleinmotoren GmbH.

(Sgd.) Hans Emmerich.”

And in exhibit AA13 they said:

“Dear Mr. Adeyemo, Re: Solo Port spraying machines We refer to the correspondence which we have had regarding the above mentioned matter last year. Attached hereto please find our letter copy to the Ministry of Agriculture, Hon. Chief Akindeko. Up to now we did not receive any answers from the Ministry of Agriculture and we therefore dared to write to him once more. We do hope that you are agreed herewith.

From the agricultural extension service division we just received a short report on our sprayers. Attached hereto find a photostat.

As you were already informed by Mr. Djaba we are willing to deliver you our machine Solo-Port mist and dust spraying with recoil starter, standard nozzle, defuser nozzle, tool kit and plastic funnel c.i.f. Nigeria at a price of £40 sterling. You know, that we offered to the Ministry of Agriculture the Solo spraying machine at a price of £50 sterling, the difference of £10 sterling, is your commission.

We do hope that you agree herewith. If you have any other suggestions please give us your detailed information on this subject.

[p.856] of [1968] GLR 804 Dear Mr. Adeyemo, we ask you kindly to keep in close contact with us in order that we can assist you and can follow up this matter very closely.

We are looking forward to hear from you soon, and remain.

Yours faithfully, Solo Kleinmotoren GmbH.”

It goes without saying that the price of £G50 per machine is Solo’s price.

We now direct our attention to count (1) which charged all the three appellants with conspiracy to commit the crime of corruption of a public officer. This charge is laid under sections 23 (1) and 239 (1) of the Criminal Code, 1960 (Act 29). Section 239 (1) is as follows: “Every public officer or juror who commits corruption, or wilful oppression, or extortion, in respect of the duties of his office, shall be guilty of a misdemeanour.” Explanation of the offence of corruption is contained in section 240 which says:

“240. A public officer, juror, or voter is guilty of corruption in respect of the duties of his office or vote, if he directly or indirectly agrees or offers to permit his conduct as such officer, juror, or voter to be influenced by the gift, promise, or prospect of any valuable consideration to be received by him, or by any other person, from any person whomsoever.”

The essential ingredients of the offence which must be alleged and proved are:

(i) a person is a public officer;

(ii) he directly or indirectly agreed to permit his conduct as such officer to be influenced by the gift, promise, or prospect of any valuable consideration, and (iii) the influence of his conduct is in respect of the duty or duties which he has to perform as such officer.

The prosecution must prove each of these ingredients or they must fail: see Commissioner of Police v. Wemah (1957) 3 W.A.L.R. 41 C.A. which followed Commissioner of Police v. Appiah, W.A.C.A., 10 June 1947, unreported. Nowhere in his lengthy judgment did the learned judge direct his attention to the law on the point or to the essentials of the charge in order to decide as to whether or not they have been established.

Now the particulars given of the offence of conspiracy to commit the crime of corruption by a public officer are:

(i) Francis Yao Asare (the first appellant) was a public officer, i.e. Minister of Food and Agriculture;

[p.857] of [1968] GLR 804

(ii) that the first appellant had a duty to cause the Government of Ghana to order from Solo, mistblowing machines;

(iii) that he should so conduct himself as to cause the order of the machines to be made at a price of £G50 which is not the price actually required by Solo, and

(iv) that the first appellant agreed to do this with the prospect that the excess of the £G50 over the price actually required by Solo, i.e. £G20, should be received by him, the first appellant, jointly with the other two appellants.

It goes without saying that to succeed on this charge the prosecution must prove without reasonable doubt, (i) that the actual price required by Solo is not £G50 but £G30, and (ii) that the first appellant knew that the actual price was £G30 and not £G50. In other words, the prosecution have to prove that the representation that the £G50 is the price actually required or agreed to by Solo is false, and yet the first appellant caused the government to place an order at that false price, and that he so conducted himself with the prospect that the said excess should be received by him and the other appellants. But this, as we have already shown, they failed hopelessly to prove. Again, as stated by Mr. Quist-Therson, it was the Chief Cocoa Officer and the Cocoa Marketing Board, and not the first appellant who settled the price of £G50, and it was that settlement and the special offers made by Solo which, as set out in the count (1), “caused the government . . . to order . . . the machines at the price . . . of £G50.” The crucial question then is, since the prosecution failed to prove, as alleged in the charge, that the first appellant caused the government to place an order at a false price, in respect of what duty of his office, and in what manner of performance of any duty of his office as a public officer then, has it been proved that the first appellant agreed to so misconduct himself? None whatsoever. Thus the prosecution failed also to prove any duty in respect of, and any manner in which the first appellant agreed to allow his conduct to be influenced. It necessarily follows that the conviction on count (1) too is bad, and cannot be allowed to stand.

Although what we have said so far disposes of the whole appeal on its merits, we feel that in appreciation of the industry of counsel on both sides, i.e. counsel for the appellants and the Director of Public Prosecutions, we should express views on some of the important legal points raised, since it is by reason of some of those important points of law which fall for decision that the ordinary bench decided, with the approval of the Chief Justice, that the judgment in the case should not be delivered by the ordinary bench, and the Chief Justice agreed that the appeal be argued afresh before the full bench.

[p.858] of [1968] GLR 804

Two of the additional grounds of appeal filed on behalf of the third appellant are with respect to admissibility of evidence and read as follows:

“(8) The learned judge was wrong in admitting the statements of exhibits W16, W17, W18, W19 and W20 into evidence through the thirty-seventh witness for the prosecution who was not present when they were taken.

(9) The learned judge was wrong in calling the witness, Paul Awuku Mantey, at the stage of the proceedings that he did having regard to the objections taken to the admission of the statements, exhibits W16, W17, W18, W19, and W20 and to the fact that this witness was the proper person who should have tendered the said statements.”

The exhibits W16 to W20 referred to in those grounds were statements taken from the third appellant by one Paul Awuku Mantey, Chief Superintendent of Police, but were allowed to be tendered in evidence by another police officer, Thomas Orleans Lindsay, the thirty-seventh prosecution witness, a superintendent of police, who had taken another statement from the third appellant. Lindsay proved in the normal way the statement he took, and it was admitted without objection, and marked exhibit W15. Then followed the following proceedings:

“The statement exhibit W15 refers to statements which the third accused had previously made to the police. I was then in possession of those statements. I tender them in evidence.

Mr. da Rocha—I object to the statements. They were not taken by this witness. They were not on caution.

They were of course signed by the third accused. The proper officers who took the statements must come and tender them. Merely because of the one line reference in exhibit W15 it is not sufficient for this witness to tender the statements. Each of the statements must be considered separately.

By Court—If the statements were cautioned statements, I can very well understand the objection because certain formalities would have to be proved by the prosecution. These statements were made by the third accused before he made exhibit W15. He intended to rely on them as his statement for the purpose of his defence. There has been no allegation of any irregularity or that they were not made voluntarily. I overrule the objection and admit as against the third accused alone, the statements as exhibits W16, W17, W18, W19 and W20.”

[p.859] of [1968] GLR 804

Now in the course of his evidence in his defence the third appellant under cross-examination, gave evidence of facts, the effect of which is to show that the statements exhibits W16 to W20 were not voluntary statements. Then just before the conclusion of the cross-examination, the learned judge stood the witness down, and made the following record:

“At this stage I am of the opinion that allegations now being made by this witness for the first time against Mr. Mantey are so serious that the interests of justice require that he should be called to give evidence. If any indication had been given when the statements exhibits W16 to W20 were tendered in evidence on 17 December 1964 that the accused did not in fact make the statements or that he was threatened with what has now been alleged as ‘severer treatment’ the prosecution would have applied to call Mr. Mantey under section 119 of Act 30.

I have power to call any person as a witness. Also in section 276 of Act 30, the court is given power to grant leave to counsel for the prosecution to call evidence to disprove or rebut any new facts set up by the defence.

On the authority of section 119 of Act 30 and R. v. Crippen [1911] 1 K.B. 149 I hereby call Mr. Paul Mantey to give evidence forthwith.”

Mantey thereupon gave evidence as a witness called by the court, and was cross-examined both by counsel for the third appellant and by the prosecuting counsel, the Director of Public Prosecutions. He testified that the statements were taken from the third appellant while he was in custody, but he was not cautioned. In reply to the Director of Public Prosecutions, Mantey concluded his evidence as follows:

“The third accused was not brought before the court within 24 hours because he was being held in custody under the Attorney-General’s consent in writing for 28 days. While the statements made by the third accused were being taken no decision to charge him had been made. I had not made up my mind to charge him. That is the reason why he was not cautioned.”

The learned judge made no pronouncement upon the evidence given on this issue of admissibility for which he had deemed it necessary to call a witness at this very late stage of the trial, in exercise of the authority given him by section 119 of Act 30. The only order he made was to discharge Mantey from further attendance.

[p.860] of [1968] GLR 804

The submissions of learned counsel for the third appellant are:

(1) The learned judge erred in admitting the statements when there has been no proof that they are voluntary, that the mere mention or reference in exhibit W15 to those statements is not enough ground in law to justify their admission, and

(2) The exercise of discretion under section 119 of Act 30 is not judicious in the circumstances of the case.

The learned Director of Public Prosecutions argued contra that:

(i) The reference to those statements in exhibit W15 which is proved to have been voluntarily made renders those other statements admissible and, for this submission, he relied upon State v. Otchere [1963] 2 G.L.R. 463 known as the first treason trial and State v. Baidoo, 30 June 1966, Court of Appeal, Cyclostyled Judgments, January-December 1966, p. 160, unreported.

(ii) The provisions of section 119 of Act 30 give our courts much wider discretion than are possessed by the courts in England, and therefore the exercise of it in this case is judicial, because counsel for the third appellant did not specifically assert in his objection to the admission of the documents through Lindsay the thirty-seventh prosecution witness, that the ground for the objection was that they were not voluntary.

The general well-known principle of law is that any statement, judicial or extra-judicial, made by an accused person way become admissible upon proof that it is voluntary. The judgment in State v. Otchere (supra), the first treason trial, cited by the learned Director of Public Prosecutions says at pp. 479–480:

“A confession made by an accused person in respect of the crime for which he is tried is admissible against him provided it is affirmatively shown on the part of the prosecution that it was free and voluntary and that it was made without the accused person’s being induced to make it by any promise or favour, or by menaces, or undue terror.

Where counsel for an accused person is instructed that a confession has been obtained in circumstances which violate the fundamental requirements of admissibility, it is counsel’s duty to object to the confession going in evidence and thereby invite an adjudication by the court on the issue of admissibility. In this case counsel for the accused person did not object to these statements going in evidence, but omission so to object does not in our view prevent counsel from cross-examining the relevant witnesses for the prosecution or leading his own evidence to establish circumstances which violate the fundamental

[p.861] of [1968] GLR 804 requirements of admissibility. If counsel succeeds in establishing such circumstances, then of course, the evidential value or weight of the confession, although already admitted in evidence, will be negligible: R. v.

Murray ([1951] 1 K.B. 391 at p. 393, C.C. A.).”

And in State v. Banful [1965] G.L.R. 433, S.C., the court, after stating that well-known principle that any statement, judicial or extra-judicial, may only become admissible upon proof, went on to say at p. 439:

“This principle of whether a statement made by a defendant is voluntary or not, and therefore admissible or inadmissible, and the duty of the trial judge to determine that issue applies to each statement made by a defendant which the prosecution desires to use in proof of their case.”

With the greatest respect to the trial judge, it is evident that he misconceived the purpose for which counsel for the third appellant insisted that the statements could not be tendered by a police officer other than the one who took them. Where a lawyer demands that the person who took a statement from an accused person should come to the witness-box to tender that statement, he must be understood to be insisting upon strict proof of the statement, and that he wants opportunity to cross-examine that witness on the admissibility of the statement and to indicate that the statement is not voluntary. Unfortunately, that point completely eluded the learned judge.

The question whether or not a statement is admissible is a preliminary question for the trial judge, and to satisfy him, the prosecution must show affirmatively, that is, prove beyond reasonable doubt, that the statement was voluntary. This duty must be discharged whether or not counsel for the defence raised the objection. In the recent case of R. v. Stirland (1945) 30 Cr.App.R. 40, Viscount Simon L.C. in a unanimous judgment said at pp. 55-56, H.L.:

“It has been said more than once that a Judge when trying a case should not wait for objection to be taken to the admissibility of the evidence, but should stop such questions himself (see ELLIS, 5 Cr.App.R. 41, at p.

62; [1910] 2 K.B. 746, at p. 764). If that be the Judge’s duty, it can hardly be fatal to an appeal founded on the admission of an improper question that counsel failed at the time to raise the matter. No doubt, as Bray, J., said at pp. 61 and 763 of the respective reports in the same case, the Court must be careful in allowing an appeal on the ground of reception of inadmissible evidence when no objection has been made at the trial by the prisoner’s counsel. The failure of counsel to object may have a bearing on the question whether

[p.862] of [1968] GLR 804 the accused was really prejudiced. It is not a proper use of counsel’s discretion to raise no objection at the time in order to preserve a ground of objection for a possible appeal.”

As regards trial with assessors we find ourselves in agreement with views expressed on this point by Mr. justice Hayes Redwar, in his Comments on Some Ordinances of the Gold Coast at pp. 95-96, where he says:

“It will be observed that, in this mode of trial, inasmuch as the Judge, although aided by the opinions of the Assessors, is performing the functions of a Jury—the decision being ‘vested exclusively’ in him—has much greater responsibility cast upon him than in a trial by Jury. Under these circumstances it is more than ever his bounden duty to see that no evidence which the law does not permit is given, whether the prisoner is defended by counsel or not, and whether such evidence is or is not objected to by prisoner’s counsel at the trial (see Regina v. Gibson (1887), 82 L.T. 342, as to the duty of a Judge in trial by Jury); otherwise the conviction (if any) may be quashed by the Full Court.”

Now reference to the principle in the cases cited to us by the Director of Public Prosecutions which may be described as “incorporation by reference” reveals that in the case of the State v. Otchere (supra) at pp. 475-476 in one statement which was proved to have been voluntarily made and therefore admitted in evidence, the accused said: “I have already made a cautioned statement to you on the 13th June, 1963, which statement your very Mr. Amaning put down in writing, and I signed. I have seen the statement. It is dated the 13th June, 1963. I rely fully on that statement.” (The emphasis is ours.) Upon that declaration that other statement, i.e. the statement of 13th June, 1963, was admitted in evidence.

Again, in the other case, State v. Baidoo (supra) at p. 164 where in a voluntary statement, an accused said: “I rely on the statement I made to the police at Asikuma on 15 October 1965,” this court said: “This statement which relied on the previous ‘ordinary statement,’ made on 15 October 1965, did automatically make the latter admissible in evidence.”

The principle we deduce from the combined effect of the general principles and the decisions in the two cases cited above is, that where the reference in one statement to another shows explicitly or implicitly that the accused relies upon or adopts the earlier statement, that fact must be deemed to be an admission by the accused person, that the statement referred to is voluntary and is therefore

[p.863] of [1968] GLR 804 incorporated by that admission. In such a case proof that the former statement is voluntary is dispensed with; and the earlier statement is incorporated by reference.

But since the proof required by law as a condition precedent to admissibility of a statement of an accused person is strict proof, i.e. proof which should satisfy the trial judge beyond reasonable doubt that the statement is voluntary: see R. v. Thompson [1893] 2 Q.B., 12, C.C.R. a reference which is casual or ambiguous in nature, will not relieve the prosecution of their duty to prove that the statement is voluntary, and therefore that other statement would be inadmissible without such proof. And those are the principles we must apply in deciding the points raised with respect to exhibits W16 to W20.

The statement in exhibit W15 relied upon by the prosecution as amounting to incorporation of exhibits W16 to W20 by reference is as follows: “Apart from the statements which I have already made to the police I have nothing to say unless I see my solicitor.” In the first place, this statement is materially different from any of the statements in State v. Otchere (supra) or in State v. Baidoo (supra) in two significant respects: (i) it does not indicate the number of statements previously made and does not identify those statements or any of them in any way, and (ii) it is not specific in its terms, whether the accused is adopting or relying upon them, or any of them. In short, it is ambiguous and capable of more than one interpretation. It could, for instance, mean “I have already made statements and told the police all that I am willing to say, and I have nothing more to add; however, if I see my solicitor and he advises me to say something more, I would say it.” It could also mean: “The police have been detaining me and subjecting me to all forms of privations and molestations and forcing statements out of me and so, now, until I see my solicitor, I will not make any more statements.” There is certainly a reasonable doubt as to the meaning of the words used. That reference does not comply with the principle of incorporation by reference. Therefore the statements are inadmissible.

A part altogether from the fact that the principle of incorporation by reference is not applicable and therefore the statements should not have been admitted without the proof required by law, there is a more grievous error committed by the learned judge in the ruling he made. He said: “If the statements were cautioned statements, I can very well understand the objection because certain formalities would have to be proved by the prosecution.” The formalities which the prosecution would have to prove as a condition precedent to make the cautioned statements admissible, are proof that they were made voluntarily, and that no threat or promise was held out to the accused person before he made them. What the learned judge is saying

[p.864] of [1968] GLR 804 therefore is that, statements not made on caution need not be voluntary to warrant their admission into evidence. This is serious misconception of the law. The law as laid down in all the cases, ancient and modern, English and Ghanaian, some of which have been already cited, is, in the words of State v. Banful [1965] G.L.R. 433 at p. 439, S.C.

“This principle of whether a statement made by a defendant is voluntary or not, and therefore admissible or inadmissible, and the duty of the trial judge to determine that issue applies to each statement made by a defendant which the prosecution desires to use in proof of their case.”

For example, to render a statement not on caution admissible, the prosecution must lead some evidence, e.g. that the accused wrote the statement in his house and brought it to the police station or sent it by post, or that while at the police station he asked for pen and paper and wrote the statement out, or that the accused dictated the statement out and it was taken down by a police officer, or some such evidence. That would be proof that the statement is voluntary unless the contrary is shown, and the onus to show the contrary would then rest upon the accused. It is a great threat to the liberty of the subject to say, as the learned judge here implies, that a statement not on caution is automatically admissible even though it might have been obtained as a result of all sorts of threats, promises, force, menace, terror or undue detention.

This wrong view of the law, which he took, misled the learned judge into failing to do the duty imposed upon him by law, i.e. to determine whether or not the statements in question are voluntary and therefore admissible or inadmissible.

Again, further on in the ruling upon the objection, the learned judge said: “These statements were made by the third accused before he made exhibit W15. He intended to rely on them as his statements for the purpose of his defence. There has been no allegation of any irregularity or that they were not made voluntarily.” This simply means that proof by the prosecution that a statement is voluntary is not a condition precedent to admissibility of a statement made by an accused person, and that on the contrary, the onus is upon the defence to allege that a statement was irregularly or involuntarily obtained before the question may be looked into by the court.

With the greatest respect, that is not the law; as we have already sufficiently discussed what the law is, all we need do is to refer again to one or two of the cases we have already cited: viz, R. v. Stirland (1945) 30 Cr.App.R. 40, H.L. and State v. Banful [1965] G.L.R. 433, S.C. It follows that, in our opinion, exhibits W16 to

[p.865] of [1968] GLR 804

W20 were not admissible at the stage of the trial where they were admitted; they were therefore wrongfully admitted.

The question which arises then is: Was the calling of Superintendent Mantey at that late stage, a proper exercise of the discretion given to the judge in section 119 of the Criminal Procedure Code, 1960 (Act 30), and was the defect in the admission of those documents cured thereby? Section 119 of Act 30 says: “Any Court may at any stage of any enquiry, trial, or other proceeding under this Code call any person as a witness or recall and re-examine any person already examined.” On this point we would say that it is evident that the intention of the legislature in enacting this section is to prevent unmerited acquittals or convictions. But it certainly is not intended to give the court carte blanche to act capriciously to the prejudice of either the prosecution or the defence. It is a discretion which should be exercised sparingly, in special circumstances, and with great caution. We find guidance in this matter in R. v. Dora Harris (1927) 20 Cr.App.R. 86, C.C.A. and R. v. Liddle (1928) 21 Cr.App.R. 3, C.C.A. In the latter case, Lord Hewart C.J., dealing with the exercise of similar discretion in the English courts, and after reference to the former case, said at pp. 11–13:

“In that case [meaning R. v. Dora Harris] this Court held that ‘a judge at a criminal trial has the right to call a witness not called by either the prosecution or the defence, without the consent of either the prosecution or the defence, if in his opinion that course is necessary in the interests of justice,’ but that in order that injustice should not be done to an accused person, a judge should not call a witness in a criminal trial after the case for the defence is closed, except in ‘a case where a matter arises ex improviso, which no human ingenuity can foresee, on the part of the prisoner, otherwise injustice would ensue.’ The judgment of the Court, at p. 594, says this: ‘The case of R. v. CHAPMAN and R. v. HOLDEN established the proposition that the presiding judge at a criminal trial has the right to call a witness not called by either the prosecution or the defence, and without the consent of either the prosecution or the defence, if in his opinion this course is necessary in the interests of justice. It is true that in none of the cases has any rule been laid down limiting the point in the proceedings at which the judge may exercise that right. But it is obvious that injustice may be done to an accused person unless some limitation is put on the exercise of that right, and for the purpose of this case we adopt the rule laid down by Chief Justice Tindal in REG. v.

FROST, where the Chief Justice

[p.866] of [1968] GLR 804 said ‘There is no doubt that the general rule is that where the Crown begins its case like a plaintiff in a civil suit they cannot afterwards support their case by calling fresh witnesses, because they are met by certain evidence that contradicts it. They stand or fall by the evidence they have given. They must close their case before the defence begins; but if any matter arises ex improviso, which no human ingenuity can foresee, on the part of a defendant in a civil suit, or a prisoner in a criminal case, there seems to me no reason why that matter which so arose ex improviso may not be answered by contrary evidence on the part of the Crown’.”

So far, that is the citation from Tindal, C.J. Then the judgment in HARRIS’S CASE proceeds: ‘That rule applies only to a witness called by the Crown and on behalf of the Crown, but we think that the rule should also apply to a case where a witness is called in a criminal trial by the judge after the case for the defence is closed, and that the practice should be limited to a case where a matter arises ex improviso, which no ingenuity can foresee, on the part of a prisoner, otherwise injustice would ensue.’ In that particular case this Court held, as appears at p. 596 [L.R.]: ‘In the circumstances, without laying down that in no case can an additional witness be called by the judge at the close of the trial after the case for the defence has been closed, we are of opinion that in this particular case the course that was adopted was irregular, and was calculated to do injustice to the appellant Harris’.”

In normal circumstances we would, guided by R. v. Liddle (supra), have said that the learned judge acted capriciously because this is not a matter which arose ex improviso. However, we feel some sympathy with him, for it appears that he must have realised at that very late stage in the proceedings, that he had erred in law in admitting the statements without proof, and that the error might prejudice the case for the prosecution; he must therefore have resorted to this unprecedented step if, per chance, he could thereby give the prosecution opportunity to cure the defect occasioned by him, and thereby render the statements admissible. Unfortunately, the learned judge failed in this attempt also.

Having taken the evidence of Superintendent Mantey, the learned judge was in duty bound to consider his evidence along with that of the third appellant on that issue, and to decide the preliminary issue as to whether or not the statements were admissible. But no, he did not do any such thing; as already pointed out, all he did was to discharge the witness he had called. And he did not

[p.867] of [1968] GLR 804 deal with the matter in his judgment either. The first time we come across any of those statements in the judgment, we find that the learned judge treated one of them, at least, as conclusive proof of the prosecution’s case. He said, “The whole fraudulent plan is graphically explained by the third accused himself. In a statement dated 11 March 1964 (exhibit W19) he said, inter alia:”—and quoted a long passage from the statement. The learned judge erred in this regard also.

Again, many criticisms were levelled against directions in the summing-up to the assessors as misdirections; most of these directions were repeated by the judge to himself in the judgment; some of these, as earlier indicated, were conceded by the prosecution. It was submitted that by means of those misdirections, the learned judge disabled himself from obtaining the assistance of the assessors and that that disability vitiates his judgment.

The provision for trial with assessors is under section 204 of the Criminal Procedure Code, 1960 (Act 30); the section reads: “All trials on indictment shall be by a jury or with the aid of assessors in accordance with the provisions hereinafter contained.” The clear intention of the legislature in that provision is that the assessors should aid the judge in the determination of the facts, that is, the judge, as a one-man jury, should make his decision on the facts, in the language of the section, with the aid of assessors. This principle is enforced by section 264 of Act 30 which provides that although the final decision rests with the judge, yet if an assessor dissents from that decision of the judge, the assessor is entitled to have his dissent recorded. It follows that if the judge misdirects the assessors, he disables himself from receiving from them the aid which the law requires that he should have from the assessors, before coming to his conclusion on the facts, and that would vitiate his decision: see Kotey v. The State [1963] 1 G.L.R. 41, S.C.

For the same reason if the judge disagrees with the opinion unanimously expressed by the assessors without giving good reasons for coining to his own conclusions of fact which in effect amounts to rejecting the unanimous opinion of the assessors, his decision is vitiated and the Court of Appeal will quash the conviction: Kotey v. The State (supra); see also Asamoah v. The State [1962] 2 G.L.R. 207, S.C. In Agbemenya v. The State [1964] G.L.R. 663, S.C. the court, after citing passages from Kotey v. The State (supra) and Asamoah v. The State (supra) which lay down the principle, continued at p. 668:

“That being the case, a judge, by misdirecting the assessors, disables them from forming a true opinion on the relevant issues of fact in the case. Consequently he makes it impossible for

[p.868] of [1968] GLR 804 himself to have from the assessors their opinion on the issues of fact which the law requires him to have before coming to his own final conclusions in the case. In such a case, even if the decision of the trial court shows agreement with the opinion expressed unanimously by the assessors, the Supreme Court will feel constrained to quash the conviction unless it is shown in the judgment that the trial judge brought his mind to bear on all the important issues of fact which the assessors, if properly directed, would have considered before expressing their opinion.”

And in the recent case of Adjei v. The Republic [1967] G.L.R. 707, C.A. the court explaining the decision in Kotey’s case said at p. 716:

“It seems clear therefore that notwithstanding the manner in which the court expressed itself, the principle it laid down appears to be that where the assessors are unanimous in favour of the accused, the learned judge, though entitled as a matter of law to differ from them, must not do so unless he gives cogent reasons for his own judgment.”

And in Bharat v. R. [1959] A.C. 533 at p. 539, P.C., Lord Denning dealing with section 246 of the Fiji Criminal Procedure Ordinance, Cap. 9, which is identical with our section 204 of Act 30 said:

“What is the consequence of the misdirection given by the judge to the assessors ? According to section 246 of the Criminal Procedure Code the trial is by the judge ‘with the aid of assessors.’ The judge is not bound to conform to their opinions, but he must at least take them into account. If they have been misdirected on a vital point, their opinions are vitiated. Take this very case. Suppose the assessors had been properly directed, is it not possible that one or more of them might have been of opinion that the appellant was guilty of manslaughter only? If the majority of them had given such an opinion, the judge might possibly have accepted it in preference to his own. At any rate he could hardly have rejected it without saying why he did so. He has, in truth, by his misdirection, disabled the assessors from giving him the aid which they should have given; and thus in turn disabled himself from taking their opinions into account as he should have done.

This is a fatal flaw.”

With this explanation of the law, we will now proceed to consider a few of the misdirections alleged in the summing-up to the assessors.

Some of the serious misdirections cited are contained in the following passage from the summing-up:

[p.869] of [1968] GLR 804

“Now, at first, I decided not to discuss the defence with you because I think it is unnecessary on the grounds that, there are two distinct cases put before you. The one by the prosecution is that the F.M.S. of 1959, the F.M.S. of 1960 and the Gamco were all fraudulent enterprises and as a result of the fraudulent transactions carried out by these companies, the government were defrauded. The accused persons say, no, these firms are legitimate, genuine business companies. The important thing is that, if you accept the prosecution’s case that they are fraudulent enterprises, then in my view you do not have to consider the £G50 and the prosecution are saying that they are not entitled. Upon reflection, I want to put the case for the defence to you, even if you do not find that they are legitimate business companies. You may find some golden thread in their defence. Strictly speaking, if you find that the F.M.S. of 1959 and of 1960 and the Gamco were lawful trading business companies, and that the first, second and the third accused persons were entitled to do business as they did, then gentlemen, the whole of the counts must fail, because it is the same thing done by U.A.C., Technical Lloyd and all the trading companies. They get their goods at certain prices and offer them at other prices. If the F.M.S. and Gamco were in the same category, then, gentlemen, there is no need for us to sit here any longer, all you need say is that, they are not guilty. But if you do not accept that and you accept the case for the prosecution, that at the material time these people were civil servants and they could not have been in the same position as Technical Lloyd or U.A.C. Ltd., then you may want to examine their defence and that is what I am going to discuss with you.”

The misdirections alleged in this passage are:

(i) That it is only for the sake of formality that the defence should be considered;

(ii) that if F.M.S. and Gamco are not genuine business companies, then the offences are proved whether or not the statement that the price is £G50 is false, and

(iii) that if the appellants were civil servants at the time of establishment of the two business enterprises, then a crime has been committed.

The learned judge gave almost the like directions to himself in his judgment, and as we have already stated, these are misdirections, and serious ones at that. Therefore it goes without saying that the decision which the learned judge gave was one given without “the aid of the assessors.”

[p.870] of [1968] GLR 804

What then is the legal effect of these multiple misdirections? This has been explained in a number of English and Ghanaian cases. Among these are Owusu v. Commissioner of Police, Court of Appeal, Cyclostyled Judgments, January-June 1958, p. 119, unreported; R. v. Jones (1961) 46 Cr.App.R. 68 at pp. 70-71, C.C.A. and Yankey v. The State, Court of Appeal, Cyclostyled Judgments, July-December 1967, p. 82, unreported.

In Owusu v. Commissioner of Police (supra) more than six misdirections were listed in the judgment of a district magistrate who convicted the appellants. The High Court nevertheless dismissed an appeal from the conviction holding that in spite of the misdirections there was strong evidence which proved the guilt of the appellants. It was contended for the prosecution in the Court of Appeal that that was a suitable case in which the court should apply the provisions, of a proviso now replaced by N.L.C.D. 84, para. 13 (1), that is, to dismiss the appeal notwithstanding the misdirections. The Court of Appeal declined to apply the proviso and said at pp. 121-122:

“The matter of real importance before us, as was conceded by the Crown Counsel is the cumulative effect of the aggregation of errors disclosed by the record, which although he refers to it in the passage of his judgment to which we have referred, the learned judge does not appeal fully to have appreciated. It is this which causes us to say that we are not in a position to state that these admitted errors against legal principles did not materially affect the opinion of the learned magistrate, and in a sense disabled the learned magistrate from making an objective evaluation of the evidence as a whole.”

In R. v. Jones (supra) the Court of Criminal Appeal in England gave guidance as to the cases and circumstances in which they will quash a conviction irrespective of the facts and those in which they will not quash where there has been more than one instance of misdirection. This court in Yankey v. The State (supra) considering R. v. Jones said at pp. 90-91:

“Giving reasons why they dismissed the appeal of some of the appellants in that case even though there were more than one instance of misdirection in their case, the Court of Criminal Appeal said: ‘These two appellants were virtually caught red-handed, and in our view the only real issue for the jury was whether they believed the police officers who arrested them close to the scene of the crime. In our judgment, of the instances of misdirection to which we have already referred only one can reasonably be regarded as having had a possible influence

[p.871] of [1968] GLR 804 on the jury in relation to count 8. The instance which we have in mind is the failure to direct the jury to disregard evidence relating to other raids, coupled with the provision of all the exhibits for the jury’s examination. In these circumstances, we consider that in relation to count 8, BRITTON’S case (supra) is plainly distinguishable and that there is no reason in law why the proviso should not be applied. That being so, we have no hesitation in saying that no substantial miscarriage of justice occurred, and the convictions on count 8 must stand.’ In the case of one of the appellants in that case, one Richard Jones, although there was strong evidence against him, nevertheless the Court of Criminal Appeal refused to apply the proviso and acquitted him, because the nature of most of the misdirections is such that to overlook the law and convict upon the facts will make the law look ridiculous, in such cases ‘the principle at stake’ they said, ‘is more important than the case itself.’ The Court addressed itself as follows: ‘So far as Richard Jones is concerned, the problem is one of very great difficulty and has caused us much anxiety. In the most telling part of his argument before us, Mr. Dovener listed twelve separate points, the cumulative effect of which might well be thought to indicate irresistibly the guilt of Richard Jones. He submitted that in the light of those points such defence as was put forward became threadbare and that no reasonable jury could have acquitted him. On the other hand, there is the decision in BRITTON’S case (supra) on which Mr. Wright strongly relied. To quote a vivid phrase of his, the application of the proviso, in a case where there are so many grounds of complaint would, he submitted involve “piling hypothesis upon hypothesis.” We need not elaborate the matter further. In McKENNA AND OTHERS (1960) 44 Cr.App. R. 63 at p. 75; [1960] 1 Q.B. 411 at p. 423 this court used these words; “Plain though many juries may have thought this case, the principle at stake is more important than the case itself.” In our view, those words are equally applicable in the case of Richard Jones and, accordingly, we feel unable to apply the proviso, and his appeal must be allowed.’ The principle which emerges from the case is this: Where there are just a few misdirections, of which none is of a serious nature, the proviso will be applied, and the appeal will be dismissed. But where there has been more than one instance of misdirection most of which are of a serious nature, it will be “piling hypothesis upon hypothesis’ to say after each misdirection ‘but there has been no miscarriage of justice.’ In such a case the

[p.872] of [1968] GLR 804 cumulative effect of those serious misdirections upon the conviction is fatal, for to uphold the conviction in any such case, is to occasion miscarriage of justice.”

That is to say: the cumulative effect of multiple serious misdirections is very grave miscarriage of justice. And that exactly is the position in this case.

It follows that both on the facts and on the law, the convictions cannot stand, and that the appeal of each of the appellants should be allowed.

In the result the appeal of each appellant is allowed, the conviction of each of the appellants on each of the counts on which he stood convicted is quashed, and a judgment and verdict of acquittal entered.

Each appellant is accordingly acquitted and discharged.

JUDGMENT OF APALOO J.A.

On 10 May 1965, all the appellants were convicted on one count of conspiracy to commit corruption and one count of conspiracy to commit fraud by false pretences and were each sentenced to fifteen years’ imprisonment with hard labour. All the appellants were also convicted of two counts of stealing and were each sentenced to 21 years’ imprisonment with hard labour. The first and the second appellants only, were in the same indictment, convicted of conspiracy to defraud and stealing and were sentenced to 21 and 24 years respectively.

Although by its length, this case can accurately be described as a marathon one, the facts on which both the prosecution and defence relied are far from complex. In view of the somewhat extensive points of law canvassed in this appeal, it is necessary to relate the facts as briefly as is consistent with clarity.

Some time in November 1959, a Mr. Heinz Emmerich who was a co-owner and technical director of a firm which manufactures agricultural machines and kindred implements, arrived in Ghana from Boblingen near Stuttgart. The object of his visit was to arrange the sale of one of their products, namely, the Solo spraying machine. According to the evidence, Emmerich was minded of selling these machines to any willing purchaser or the government. Mr. Emmerich’s firm had heard that the government had embarked on a large capsid control scheme and figured that to achieve its object, the government would require a large quantity of spraying machines. It was accordingly necessary for Mr. Emmerich to meet the representative of the government whose duty was to purchase spraying machines.

[p.873] of [1968] GLR 804

The evidence shows that while en route to Kumasi on 25 November 1959, Emmerich stopped at the Agricultural Station at Bunso. He was then introduced to the third appellant who was then an agricultural survey officer. His duties included the repair and maintenance of spraying machines. In addition to this, the third appellant also sent reports to the Ministry of Agriculture on tests he conducted at the request of the ministry on designated machines.

At the date when Emmerich met the third appellant, he had at the request of the ministry, conducted a test on Solo machines manufactured by Emmerich’s firm. The third appellant thought highly of this machine and told Emmerich so. It seems at this interview the possibility of appointing agents to represent the Solo firm was discussed but no appointment was made and Emmerich’s evidence suggests that the question of appointing the third appellant was out of the question as the latter was in government service. During the conversation which the third appellant had with Emmerich, the former informed the latter that the Minister of Agriculture was well known to him as he and the third appellant grew up together in the same part of the country.

Subsequent to this interview, Emmerich had made several unsuccessful attempts to meet the Minister of Agriculture. As the third appellant gave Emmerich to understand that he knew the Minister well, the former sought the third appellant’s assistance to arrange an interview. For this purpose, the third appellant came to Accra from Bunso on 7 December. He in fact arranged a meeting with the Minister for the next day, that is, 8 December 1959. On the appointed day, Mr. Emmerich and a German national by name Mueller called at the Minister’s office. They then met the Minister who happened to be the first appellant.

Mr. Emmerich then introduced his machine and offered to partake in the capsid control scheme. According to Emmerich, the first appellant agreed to give them a trial order for 12,000 machines provided his firm appointed a Ghanaian firm to represent them in Ghana. Mr. Emmerich was left with the impression that it would not be possible to make sales of his machines to the government save through agents and his mind was conditioned to this.

It appears that Emmerich promised to meet the third appellant after seeing the Minister, apparently, to acquaint him with the results of the interview. Accordingly, both Emmerich and the third appellant met either on 8 or 9 December. Emmerich then related to the third appellant what transpired at the meeting with the Minister. In particular, Emmerich informed the third appellant of the Minister’s request that orders would be placed conditional on the appointment

[p.874] of [1968] GLR 804 of an agent. The third appellant there and then produced a letter-head bearing “Farm Machinery Supplies” and requested Emmerich to appoint that firm as Solo’s agents in Ghana. The evidence establishes that those letter-heads were printed on the morning of 8 December at a press called the Hag Press at Tafo. Emmerich was surprised at this but proceeded there and then to appoint this firm as Solo’s sole agents in Ghana.

After the appointment, the question of remuneration of the agent fell to be discussed. But before this, Emmerich made it known to the third appellant that he would sell the machines in Ghana at a c.i.f. price of £G30. It thus became necessary that Emmerich quote as a price to the Ghana Government a sum which should include the agents’ remuneration. After some discussion, it was agreed between Emmerich and the third appellant that the agents quote a price of £G36 per machine to the government. This would provide a commission of £G6 per machine to the agents. This, however, was not the price which was eventually quoted to the government. The third appellant, writing on behalf of the Farm Machinery Supplies, at first quoted a price of £G46 which he later raised to £G50 to the government.

When the quotation of £G50 per machine eventually reached Emmerich, he was, as is only to be expected, surprised at it. In the meantime the third appellant got in touch with him on the phone and invited him to come to Ghana for an explanation. On the faith of this, Emmerich confirmed the £G50 c.i.f. price to the Cocoa Marketing Board which placed the indent on behalf of the government. In response to the third appellant’s invitation, Emmerich arrived in Ghana on 24 March 1960. He was met and welcomed at the airport by the third and the second appellants and was told he was being taken to the Minister. He was driven to the hometown of the first appellant at Borada where he stayed the night. After dinner, Emmerich was invited by the first appellant to his rooftop while second and third appellants stayed behind. According to Emmerich, the first appellant then informed him that it was possible for him to get a further order for 13,000-15,000 machines if he could transfer the money to Ghana. Emmerich said he thought the first appellant was referring to the £G20 difference and said he would do so by normal banking process. The first appellant however said “We want cash.” Emmerich said he told the Minister he would find a way to fulfil his wishes. Emmerich did not apparently think of the method by which he could meet the Minister’s wishes before taking leave of him the next morning. But he and the third appellant soon put their heads together and devised a method by which the Minister’s wishes were to be met. This was the opening by Emmerich [p.875] of [1968] GLR 804 of an account at Barclays Bank in his name into which the difference was to be paid. Withdrawals from this account were to be by cash cheques provided to the third appellant by Emmerich and drawn against this account. A substantial portion of the difference of £G240,000 which was realised on the first order of 12,000 machines was paid into this account. Some payments were also made to or to the order of the second and third appellants.

At the date Emmerich appointed the Farm Machinery Supplies, no such firm in fact existed. One was registered in March 1960, with the second and third appellants and one Akua Opare as partners. The latter was an aunt-in-law of the first appellant. A portion of the difference realised on the first order was also paid to the credit of this firm.

In June 1960, the first appellant gave instructions for a further order of 15,000 machines to be placed by the Cocoa Marketing Board. Owing to insufficiency of funds, his instructions were not carried out before he lost his post as Minister. The order was however executed the following September. The machines were again indented for £G50 and a surplus of £G300,000 became due. This difference was also disposed of as in the case of the first order, namely, that a substantial portion was paid to the Emmerich account at Barclays Bank, a portion to or to the order of the second and the third appellants and the balance was paid to the firm of Farm Machinery Supplies.

The Farm Machinery Supplies was incorporated into a limited liability company on 8 August 1961, with the second and the third appellants as directors. The object was obviously to operate on the same lines as the firm but during the company’s short existence, no order for spraying machines was placed by the government. Differences having arisen between the second and the third appellants, the company went into liquidation. From its ashes, rose the Ghana Agricultural Machinery Co., Ltd. which was incorporated on 23 October 1962. The directors of this new company were a Mr. Falke Bruening, a German national, the second appellant and Gilbert Nyarko, a nephew of the first appellant. Bruening’s shares were bought out and he was paid compensation to relinquish his interests in the company. In July 1963, the government again placed an indent with Emmerich’s firm for 25,000 spraying machines. In view of the large quantity of machines which the government purchased, the firm reduced the price from £G30 to £G27 10s. The Gamco however quoted the price to government as £G50 and this was reduced after some negotiation to £G48. Accordingly, when the order was executed and paid for, a difference of £G512,500 became due to the Gamco. About 70 per cent of this difference was

[p.876] of [1968] GLR 804 paid to the credit of the company in a German bank and the rest was paid to the order of the second appellant. The result of these three transactions was that the government paid over and above what was required by Emmerich’s firm the sum of £G1,052,500.

The prosecution claim, obviously relying on the evidence of Emmerich, that the first appellant so conducted himself that the government ordered these machines at a price in excess of that actually required by the Solo firm and that the object of the first appellant in so conducting himself was to make it possible for this excess to be received by himself and the other appellants. The prosecution also claim that all the appellants must have agreed to this course. That is the basis of the first charge of conspiracy to commit corruption. It seems clear from the evidence that the conduct of which the first appellant stood accused, is to make Emmerich believe that the government would not purchase these machines, save through an agent. Quite clearly, it was through the intermediary of these agents variously self-styled, Farm Machinery Supplies, Farm Machinery Supplies Co., Ltd. and Ghana Agricultural Machinery Co., Ltd. that the government were made to pay large sums of money in excess of the price required by Emmerich’s firm.

The prosecution also claim that in respect of these three orders, the appellants intending thereby to defraud, obtained the consent of the government to part with the sums of £G240,000; £G300,000 and £G512,500 respectively, by falsely stating the price in respect of the first two orders as £G50 per machine instead of £G30 and £G48 in respect of the third order instead of £G27 10s. and in so doing, all the accused must have united in their minds in achieving this object. This provides the rationale for the three charges of conspiracy to defraud and the three of defrauding by false pretences.

The case of the prosecution was grounded on the fact that the Farm Machinery Supplies and the Gamco Ltd., were not bona fide business enterprises but were bogus entities brought into being for the sole purpose of inflating the price of these Solo machines to the government. One of the methods by which the prosecution sought to justify this premise, is by evidence which shows that although the Farm Machinery Supplies and the Gamco Ltd., were a registered firm and company with all the external indicia of a reputable business concern, they made no entry in their books of any part of the sum of £G1,052,500 which they earned as “bona fide commissions.” On the contrary, evidence was given by an accountant employed by the firm which suggests that the partners of the firm did not regard moneys earned from Solo in the course of F.M.S. business as the firm’s money.

[p.877] of [1968] GLR 804

It thus became necessary for the prosecution to identify the individuals who made up the firm and laterly, the directors of the Gamco company. As far as the firm of Farm Machinery Supplies is concerned, both the second and the third appellants admit they were partners from the date of its registration, namely, March 1960. When it was incorporated into a limited liability company, both became its directors and retained these roles until its liquidation. The prosecution have not sought to show that the third appellant was in any way associated with Gamco and have preferred no charges against him in connection with anything done by that company. As far as the written records of both the Farm Machinery Supplies and the Gamco Ltd. go, the first appellant’s name did not appear as such but the prosecution adduced evidence from which a reasonable jury could infer that he put his nominees in these two entities. This evidence was to the effect that the third partner in the firm was his aunt-in-law who took no part in the firm’s business and received no part of the huge profit which the firm earned on the two orders. When the Gamco company was incorporated, one of the directors was the first appellant’s nephew, his aunt-in-law having died or being paralysed at this time. Like his aunt-in-law, the first appellant’s nephew was also virtually illiterate and was of very limited value to an apparently big business like Gamco. He paid nothing for shares allotted to him and earned nothing from the huge profit which the company made on the spraying machines order.

In addition to this, the prosecution also led evidence which shows that the first appellant frequently called on both the second and the third appellants at the registered office of the firm and had discussions with them. There was evidence that at least on one occasion, the first appellant attended a board meeting of the Gamco company and took an active part in its deliberations. There were also produced in evidence, two letters discovered in the possession of the first appellant which were addressed to him by the second appellant which suggest that both the second and the first appellants at least, had a common business in spraying machines. These species of circumstantial evidence coupled with Emmerich’s evidence were led to show that notwithstanding what appeared in the official books of the firm and the company, the first appellant was in truth the partner who went by name of Akua Opare in the Farm Machinery Supplies and the director who went by the name of Gilbert Nyarko in Gamco company and being at the material time in government service, it was necessary for him to conceal his identity as the third appellant did when at the initial stages, he assumed the name of Kwesi Kota.

[p.878] of [1968] GLR 804

The substantive charges of fraud by false pretences which the prosecution brought against the appellants were based on the evidence of Emmerich that the actual c.i.f. price of the Solo machines in the first two orders was £G30 and in the third order was £G27 10s. Evidence was led to show that the government in fact paid £G50 in respect of the first and second orders and £G48 in respect of the third and the government officers gave evidence from which an inference could reasonably be drawn that the government would not have paid these higher prices if they knew Emmerich’s true price. As the difference was eventually returned by Emmerich’s firm to the Farm Machinery Supplies or Gamco or to their orders, it is not difficult to conclude that the intention of the individuals who made up the firm or the company was to defraud.

As I said, a good many points of law were raised on behalf of the appellants on this appeal but as the application of the law depends on the facts found by the trial court, it is necessary to state equally briefly how the appellants answered the facts produced by the prosecution.

It was conceded for the first appellant that Emmerich’s evidence taken together with the other evidence produced against him by the prosecution, would entitle a reasonable jury to conclude that the first appellant was a partner in the firm and a director in Gamco and was equally guilty with the rest of the appellants of the offences charged but it was said Emmerich’s evidence was untrue and the first appellant was in no way connected with either of the business enterprises referred to eo nomine. The first appellant admitted seeing Emmerich in his office in the forenoon of 8 December 1959, and that he then offered through an interpreter to take part in the government capsid control scheme but the first appellant denied that he told him that he would get a trial order of 12,000 spraying machines provided he appointed a local agent.

The first appellant again admitted the visit by Emmerich to his house at Borada at about 3 p.m. on 24 March 1960, but the appellant said it was an extremely transient one lasting only a few minutes as the second appellant who accompanied him thither said they were in great hurry. Such was their haste to get back, that they even declined to sit down. Accordingly, the first appellant denied that Emmerich stayed the night with him or that he told him anything about further orders or cash. The first appellant of course agreed that Akua Opare was his aunt-in-law. He said she fell ill early in 1960 and was paralysed and succumbed to this illness in 1962. She was illiterate and the appellant said he was not aware before this case that she was a partner in the firm of F.M.S. The first appellant admitted that Nyarko was his sister’s son and that he had heard that he was a

[p.879] of [1968] GLR 804 director of Gamco but he denied that he was his nominee. He also denied that he was in any way associated with either the F.M.S. or Gamco or had at any time taken part in a meeting of Gamco. Again the first appellant admitted the receipt of two letters from the second appellant and advanced him the moneys sought in those letters but he claimed that he knew nothing about the spraying machines which the second appellant referred to in those letters.

Unlike the second and the third appellants, there is no evidence that he was a beneficiary of the huge “profits” made by the firm and laterly the company and had the learned trial judge accepted his denials as truthful, there is little doubt that he would not have been in the position of an appellant today.

The second appellant on his own showing, became associated with the F.M.S. on 1 March 1960, and soon after became a partner and was paid £G24,000 and £G30,000 on the two orders. But he said the third appellant who got him interested in the business gave him to understand that the firm of F.M.S. belonged to Emmerich, being a subsidiary of the Solo company. He implied by his evidence that he was only hired by Emmerich’s firm and was paid for his services. Yet he said he performed no services to earn the two sums of money paid to him in connection with the two orders. According to him, he was wholly unaware of the exact arrangement the third appellant made with Emmerich about the firm’s remuneration until after the execution of the second order. As a result of arrangements he made about another spraying machine, i.e. the Holder Supra, he inquired from the third appellant whether Emmerich’s firm operated on a similar basis. The third appellant then informed him for the first time that when the F.M.S. was formed by Emmerich in December 1959, it was agreed that the Solo firm were to offer the machine to the F.M.S. for £G30 and the latter were to offer it to the government for £G50 and the difference of £G20 was to be split between Emmerich on one hand and the third appellant on the other. According to the second appellant, the third appellant informed him that notwithstanding this agreement, Emmerich paid him only £G24,000 on the first order and also made £G26,000 available for administrative expenses but the balance was paid into Emmerich’s account which was ploughed back to Emmerich by a Mr. Blaschke.

The second appellant said he was sceptical of the third appellant’s explanation but this was confirmed to him on a visit to Germany by Emmerich. He concluded that the third appellant had been less than faithful to him and he decided to form a new company of his own to take up the Holder Supra agency. According to him, Emmerich prevailed upon him to continue with Solo and promised to make over

[p.880] of [1968] GLR 804 to him the whole difference. He implied by this that he became entitled to the whole difference on the third order, namely the £G512,500.

The second appellant endeavoured to show that as he did not join the F.M.S. before March 1960, he cannot have been a party to a conspiracy to commit corruption which on the evidence, must have taken place, if at all, in December 1959. By the same token, the second appellant claimed that he could not be associated with any crime that might have been committed in connection with the first order as that was completed by an indent early in February 1960. The prosecution met this by evidence which shows that the second appellant must have been in the F.M.S. business much earlier than he was prepared to admit. Three senior employees of the F.M.S., namely, the general manager, the shipping manager and the accountant testified that both the second and the third appellants saw them on diverse dates before March, 1960, and offered them the posts to which they were eventually appointed. The then Principal Secretary of the Ministry of Agriculture also gave evidence which suggests that the second appellant often called at the ministry to transact F.M.S. business on dates prior to March 1960.

In addition to this, the prosecution also produced in evidence, a letter exhibit A10, admittedly written by the third appellant to Emmerich dated 28 January 1960. This letter which the prosecution claimed was written in furtherance of the conspiracy, to a large extent, supports the contention of the prosecution on this issue, because the third appellant then informed Emmerich of the appointment of a general manager and a shipping manager and a militant young man who was admitted to be the second appellant. This is capped by the second appellant’s own admission that although he joined the F.M.S. in March 1960, and did not incur obligation for anything done before that date, he received £G24,000 which on the evidence, can only have been earned on the first order. As between the second appellant and Emmerich, there is hardly any issue decisive of this case save that the breach between the two brought about differences which culminated in the present prosecution.

The third appellant’s case is the most remarkable of the three, mainly because of the great divergence between his many statements to the police and his sworn testimony. But in certain respects, there is an area of agreement between him and Emmerich. He and Emmerich are agreed that they met for the first time at Bunso on 25 November 1959, and there was a discussion between them about the merits of the Solo spraying machine. While both are again agreed that Emmerich said he was in Ghana to solicit orders for his machine, the third appellant alone said Emmerich offered to employ

[p.881] of [1968] GLR 804 him to represent his firm in Ghana because of his vast knowledge of spraying machines; the third appellant said he declined such appointment because he had a secure job in the civil service. The third appellant denied that he told Emmerich that he knew the first appellant or had grown up together with him.

According to the third appellant, five days after this interview a Mr. Mueller who was in Mr. Emmerich’s company during the visit to Bunso, telephoned him to come to Accra to meet Mr. Emmerich. He declined the invitation but Mueller so pestered him with calls that he felt obliged to come to Accra on 7 December. He then met Emmerich at the Avenida Hotel and the latter then renewed his invitation to him to become his firm’s agent in Ghana. In view of the promise of big commission which Emmerich made to him, he recoiled from his former position and agreed to take up the agency of the Solo firm. Emmerich there and then gave him a letter of appointment. He at the same time asked him to arrange for him to meet the Minister. He telephoned the Minister’s private secretary and made an appointment for the morning of the next day, that is, 8 December 1959. The third appellant said he and Emmerich agreed to meet later to discuss the result of the latter’s interview with the Minister. This meeting took place on 9 December 1959. When they met, the third appellant told him that the Minister said no more than that he should put his proposals in writing. Then came the big question, namely, the third appellant’s remuneration. According to the third appellant, Emmerich offered the machine to him at £G30 and suggested that he in turn offer it to the government for £G50. The appellant said he considered this too high but thought he should first quote £G46. The third appellant said he did this but later raised it to £G50 as Emmerich had suggested. It was therefore the third appellant’s case that as he quoted the £G50 price to the government with Emmerich’s full authority, it cannot be said that that price was false or that any crime was committed thereby.

On the question of remuneration, the third appellant said he received for himself £G64,000 on the first order and £G10,000 on the second order. He knew about the Emmerich account at Barclays Bank but it was, according to this witness, opened on Emmerich’s own initiative. He understood Emmerich to have opened this account as he said he would himself make use of some of this money to improve his business in this part of West Africa. The third appellant admitted that he received a series of cheques from Emmerich drawn on this account which he cashed but he said he subsequently handed the cash in each case to Messrs. Mueller and Blaschke on Emmerich’s orders and this cash was then returned to Emmerich. He said he obtained no receipts from them for these cash payments. As I said,

[p.882] of [1968] GLR 804 the third appellant severed his connection with the second appellant before the latter formed Gamco and was therefore unaffected by anything done by that company. These in a nutshell, are the facts placed before the court by the prosecution and the defence.

In a judgment which ran into nearly 80 pages of typescript, the learned trial judge accepted the case of the prosecution. Thus on the issue which was joined between the prosecution and defence on the facts, the learned judge resolved this in favour of the prosecution. He held, contrary to the contention of the prosecution, that the appellants were guilty of stealing and not the offence of fraud by false pretences with which they were charged. Availing himself of the powers conferred upon the court by section 157 of the Criminal Procedure Code, 1960 (Act 30), the judge convicted the appellants of the alternative offence of stealing. He however convicted them of conspiracy to commit fraud by false pretences, a conviction which was the subject of deserved criticism by counsel for the second appellant. The judge also felt satisfied that all the appellants committed the offence of conspiracy to commit corruption and proceeded to convict them of that charge also. The appellants were also charged with a number of counts of falsification and the second appellant alone was charged with one count of corruption of a public officer. The learned judge acquitted all the appellants of the offence of falsification on grounds which are irrelevant to this appeal and the second appellant was also acquitted on the corruption charge.

The learned judge proceeded to pass various sentences on the appellants on the counts on which they were found guilty. It is against these convictions and sentences that this appeal has been brought.

The judgment of the trial court was contested on a variety of grounds, some of which are factual while others are purely legal. In particular, the veracity of Emmerich was questioned on a number of matters and it was said generally that he was not a witness of truth or at least he was unreliable. All three counsel who appeared for the appellants united in submitting that the evidence of Emmerich ought not to have been believed. That Emmerich was an important witness cannot be gainsaid. It seems equally clear that the learned trial judge who saw him and listened to his testimony for about twelve days considered him a witness of truth. That this is a matter peculiarly within the province of a trial court and that an appeal court would not easily disturb the conclusion of a trial court which is based on credibility of witnesses is also equally plain. But it is said there are good reasons why this court should take a view of Emmerich different from that of the trial judge and it is therefore necessary to consider the grounds on which this court is invited to differ from the trial judge.

[p.883] of [1968] GLR 804

It is said by all counsel that Emmerich told an untruth when he said it was the first appellant who told him to appoint a Ghanaian firm to represent the Solo firm in Ghana. Emmerich’s evidence on this point is challenged as being untrue because he admitted that he always sold his machines through agents throughout the world and it is asked why he should wish to adopt a different system in this country. In particular, stress is laid on a letter which Solo wrote to Messrs Nigerian Machinery Trading Co. for the attention of Chief Adeyemo dated 9 May 1962 (exhibit AA13). In this letter the Solo firm offered the machine to the firm at £G40 whereas it was to be resold to the Nigerian Ministry of Agriculture at £G50. Attention is also drawn to the fact that Emmerich admitted that he was desirous of selling large quantities of the machines in this country and that this would entail having agents in Ghana who would advertise the machines, maintain stocks of spare parts and perform kindred services. Furthermore, counsel for the third appellant referred to an admission made by Emmerich in cross-examination in which he said:

“It might be I told Quartey that I would like to have a man like him to promote the sale of our machines but I did not think that Quartey himself would be able to work for us as he was already employed by the government . . . Before I returned to Germany on 12 December 1959, I may have discussed with Mr. Quartey how to combat the K.W.H. competition.”

From this, it was urged that Emmerich himself felt the need of an agent and appointed the F.M.S. of his own free will and out of necessity. Accordingly it is said, the agents were not foisted on Emmerich as he tried to make out and that the court should have so found. As to why Emmerich would wish to lie about this matter, it is suggested that as the business resulted in trouble, Emmerich picked upon someone who was thought by him to be important to frame and his victim in this respect was the first appellant who at that time happened to hold the important position of a Minister.

Before considering to what extent the several matters pointed by counsel constitute an obstacle to Emmerich’s veracity, it is necessary to consider what precisely Emmerich did say on the question of the appointment of an agent. According to the record, after meeting the first appellant and introducing the Solo machine, Emmerich said: “The first appellant told me that it might be possible for us to get a trial order for 12,000 spraying machines provided we appointed a firm who would represent us in Ghana.” Later, he said: “It was the Minister who insisted that I should appoint a local agent. I had no alternative.” Nobody suggests that there is anything intrinsically improbable about that story. With regard to the appointment of

[p.884] of [1968] GLR 804 agents by Emmerich’s firm throughout the world, the fact should not be lost sight of that these agents were in fact themselves purchasers of the machines for re-sale. Emmerich said his firm merely sold these machines to them and it followed these persons were agents only in the sense that the Solo machines could not be sold to any other person in the same country. That clearly is what Emmerich considered to be an agent and there is no evidence that before he arrived in this country in November 1959, to solicit orders for his machines, his firm operated on any other basis. On the contrary, evidence given by Mr. Krakue the stores superintendent of the Ministry of Agriculture wholly supported Emmerich. The Motoblo was another name for the Solo machine. Emmerich testified that their agents in West Africa for these machines were the Kent Engineering and Foundry Ltd. In 1958, the government placed an order for 600 Motoblo spraying machines. These orders were placed with the agents to whom payment was made. It would follow from this that the Solo firm merely sold the machines to their agents, the Kent Engineering and Foundry Ltd., and when the government were desirous of purchasing these machines they did no more than look to the agents.

It is not suggested that the F.M.S. were agents in the same sense as the Kent Engineering and Foundry Ltd. Clearly the F.M.S. were in no position to assume any financial responsibility. That that is so is shown by the fact that soon after Emmerich appointed the F.M.S., the third appellant who claimed to be F.M.S., asked him for financial assistance. Furthermore, there is no evidence that in all the other countries in which the Solo firm did business, Emmerich personally called on the ultimate purchasers and made direct offers to them. One would have thought that the fact that Emmerich took the trouble to see the purchaser, in this case the Minister of Agriculture, and make a direct offer to him negatives any suggestion that, as far as the sales were concerned, he was desirous of acting through agents. It seems therefore that the fact that the Solo firm did business in other countries by agents whose function was wholly different from that performed by the F.M.S. is no ground for distrusting Emmerich’s evidence that he intended to deal directly with the government.

Emmerich is also criticised when he said he did not need agents but the course of business which the evidence discloses, provides the strongest vindication of Emmerich’s testimony. These machines were ordered direct by the government to whom shipments were in like manner made. Payment for these indents were made direct by the government. The government itself maintained repair depots where the machines were serviced. It follows that the facilities that would ordinarily be provided by agents in other cases were provided by the

[p.885] of [1968] GLR 804 government. On what ground can it then justly be urged that Emmerich needed an agent and appointed one out of necessity? The fact that both the second and the third appellants admitted that they did nothing to earn the huge sums they earned on the first two orders suggests clearly that the agency existed for the benefit of the F.M.S. and not Emmerich’s firm. It is also said that Emmerich at least needed an agent for propaganda purposes and in particular to popularise his machines. But Emmerich said clearly that, “If the government bought direct from us, there would be no necessity to advertise our goods.” This position was admitted by the first appellant who said in cross-examination: “It was not necessary for propaganda and advertisement to be made in favour of a particular spraying machine before the government purchased some of them.”

It was sought to show that Emmerich appointed the F.M.S. of his own free will and the third appellant gave evidence that although he was at first reluctant to be an agent for the Solo firm, Emmerich talked him into it. If that be right, it would follow that soon after the appointment and at the time the agency commission was discussed, Emmerich would have instructed his agent (the third appellant) what to do and expect that he would carry out his instructions. The evidence shows that after the appointment, Emmerich returned to Germany on 12 December 1959. On the very next day, that is 13 December 1959, the third appellant addressed a letter to him (exhibit A2) in which he said, inter alia: “But I would like to warn you that you should not attempt to sell directly yourselves. Otherwise no order will be placed. That is the naked truth.” If the fact is borne in mind that it is this third appellant who put Emmerich in touch with the Minister, does this letter not wholly support what Emmerich said that the first appellant asked him to appoint an agent and that he had no alternative? And in any event, is it compatible with reason that an agent, who after all is a servant of his principal, would write to a principal who voluntarily appointed him in that manner?

Another fact which is urged to show that Emmerich arrived in this country with the object of appointing an agent which he voluntarily did was the fact that when he met the third appellant at Bunso on 25 November 1959, he admitted that, “It might be I told Quartey that I would like to have a man like him to promote the sale of our machines.” But this sentence was qualified when Emmerich continued that “but I did not think that Quartey himself would be able to work for us as he was already employed by the government.” This common-sense position was admitted by the third appellant himself because he said in cross-examination that, “I knew that as a civil servant, I could not be the agent of another.” Emmerich was said to

[p.886] of [1968] GLR 804 be a shrewd businessman and is it reasonable to think that a businessman of that description would willingly appoint as his agent a man who was already in the full employment of another and who would obviously not be able to devote full time to his service especially as the proposed agent himself said it was impossible for him to carry on such a job? One would have thought that the fact that Emmerich had to appoint as agent a firm about which he knew nothing and soon after seeing the Minister is indicative of the fact that he must have made the appointment as a result of what the Minister told him.

On this aspect of the matter, it is particularly significant that a letter which Emmerich wrote to the Minister barely two weeks after his interview with him (exhibit A12) should have notified him not only of the appointment of an agent, but should also contain particulars of the facilities which Emmerich’s firm proposed to place at the disposal of the government if they received an order for 12,000 machines. That quantity, it is to be noted, was what Emmerich said the first appellant told him would be ordered if his firm appointed a local agent and that is the precise quantity which the first appellant approved for indent on 20 January 1960. This at least shows that Emmerich was in possession of very reliable information about the quantity of machines which the government would order and there is nothing in the evidence which lends support to any suggestion that he can have come by this information through a source other than the first appellant.

The evidence that on the eve of his departure on 12 December 1959, Emmerich admitted that he “might have discussed with Quartey how to combat the K.W.H. competition” is hardly of any value in disproving that the agency was foisted on Emmerich. At that date, on the admitted evidence, the F.M.S. which Quartey said he solely represented, had been appointed and the payment of commission had been agreed. Is it unreasonable then that Emmerich and Quartey should discuss how to combat competition? A great deal of stress is also laid on the fact that the Solo firm wrote a letter to a trading firm in Nigeria in which the spraying machine was to be quoted to the Nigerian Government at £G50 while the firm was to have it as agents for £G40. It is said that that shows Solo’s method of doing business and supports the contention of the appellants that Emmerich’s firm always had agents to whom they quoted a lesser price. It seems an odd argument that a letter, which was written in May 1962, could be used to show Solo’s business practice prior to November 1959, and to prop up an argument, otherwise difficult to substantiate, that Emmerich was a liar. By May 1962, the Solo firm had been familiarised with the F.M.S. method of doing business and the letter itself refers by name to the second appellant as the

[p.887] of [1968] GLR 804 gentleman who was making the business contact on behalf of Solo. In those circumstances, is it reasonable to think that a modus operandi other than the one to which the F.M.S. was used, was the one likely to be employed? It would have been obvious to the second appellant that if the machines were offered to the Nigerian Government at a lesser price, this was likely to be known to the Ghana Government and might well provoke an inquiry as to the reason for the difference.

In any event, Emmerich testified that he had no personal knowledge of that letter. It certainly was not signed by him. According to Emmerich, the Solo firm writes about 1,000 letters per day and being an engineer, he did not concern himself with correspondence. He said although he knew they might do business in Nigeria, he did not know the details. No evidence was offered to the contrary and it is difficult to see how this letter can be held as an obstacle to his veracity or how it proves that in November 1959, Emmerich felt the need for an agent and voluntarily appointed the F.M.S. All the available evidence points to the contrary.

It is finally said on this issue, that Emmerich merely framed the first appellant on the question of the offer of the order of 12,000 machines conditional upon the appointment of an agent, because he wanted an important personality such as a Minister to sacrifice. This suggestion carries the clearest implication that Emmerich invented this story for the purpose of this case. But if the evidence shows that Emmerich in fact said this of the first appellant antelitem motam, then this suggestion would crumble, indeed it would support Emmerich’s bona fides.

It is not in dispute that Emmerich and the third appellant arranged to meet after the former had met the first appellant so that Emmerich could acquaint the third appellant with what transpired at that interview. Emmerich’s meeting with the first appellant was admitted to have taken place on 8 December 1959. On the very next day, both the third appellant and Emmerich met and Emmerich then informed the third appellant of what the first appellant said. In a statement to the police, the third appellant said, “Emmerich told me that Mr. Asare [meaning the first appellant] had told him that an order for 12,000 Solo machines would be placed by the ministry and advised that a company should be formed immediately.” This is no evidence against the first appellant but it completely explodes any suggestion that Emmerich’s evidence that the first appellant told him that an order for 12,000 machines would be placed upon the appointment of a local agent, was manufactured for the purpose of this case. It would be entirely fanciful to say that on 9 December 1959, Emmerich had any motive to misrepresent what the first appellant told him. The

[p.888] of [1968] GLR 804 more one examines this matter, the more obvious it becomes that Emmerich did not need an agent in December 1959, and had to appoint one as a condition for seeking orders. It follows that the learned judge’s acceptance of Emmerich’s evidence on this part of the case was amply warranted.

The only other relevant matter on which Emmerich’s testimony was impeached was his account of what took place at the first appellant’s home at Borada on 24 March 1960. The first appellant could not deny that Emmerich came to his hometown and visited his house on that day. Indeed, he could not deny this with reason because Emmerich perpetuated this visit by taking photographs of the first appellant’s house which were produced in evidence. He however denied that Emmerich spent the night there or was in any way offered hospitality. From that, the first appellant denied the conversation about the transfer of cash and the promise of further orders to which Emmerich testified. He however admitted that his house has a rooftop that being the venue to which Emmerich said the first appellant invited him and where the conversation took place.

On this subject the important issues between Emmerich and the first appellant were: (1) Did Emmerich spend the night at the first appellant’s house and was he entertained by him? (2) Did the first appellant inform Emmerich at the rooftop that it was possible for him to get a further order of 13,000-15,000 machines if he remitted the money to Ghana? According to Emmerich, no one else was present at the rooftop, the second and the third appellants having been left in the house itself. It cannot be denied that the resolution of these issues was a simple one for the tribunal of fact. The learned trial judge resolved it in favour of Emmerich and rejected the first appellant’s denials. That it was in his province to do so is not denied, but it is said Emmerich’s story was improbable.

It is difficult to see what is improbable about either of these stories. If Emmerich’s object was merely to frame the first appellant about the further order and the request for cash, it was not necessary for him to achieve this that he should complicate it with lies about passing the night in the first appellant’s house. Although the first appellant was at pains to deny that he entertained Emmerich in March 1960, at his house, he was constrained to admit that he held a party for Emmerich’s export manager, a Mr. Gaede, in his house in Accra in about May 1963. The first appellant could not deny this because the letter which Gaede wrote to thank him for the hospitality was discovered in his house. If the first appellant was able to offer hospitality to Emmerich’s employee, what makes it impossible for him to do this to Emmerich himself?

[p.889] of [1968] GLR 804

Although the conversation about the prospect of a further order of 13,000-15.000 was testified to only by Emmerich, there were other circumstances independent of him which makes this story probable. In June 1960, the first appellant was advised by his experts to approve the order of 10,000 Solo and 5,000 Holder Supra machines. Although the Holder Supra was much cheaper than the Solo and was also favourably reported upon by the technical experts, the first appellant, without assigning any reason, summarily rejected that advice and gave instructions for the indent of 15,000 Solo machines. This quantity tallies with one of the figures which Emmerich said the first appellant promised. Again the third appellant wrote to Emmerich on 12 April 1960, in which he said “an effort is being made to get 13,000 but it may not be successful until probably early June.” This quantity also corresponds with one of the two figures mentioned by Emmerich. The forecast made by the third appellant turned out to be accurate because it was on 7 June 1960, that the first appellant eventually authorised the second order.

A few minor discrepancies having little bearing on the main issues of this case were also pointed out but these in no way justify the rejection of Emmerich’s evidence. No judge ever distrusts a witness because his evidence contains discrepancies of no moment. On the contrary, these discrepancies sometimes give the story the hallmark of truth. On the facts, the learned trial judge was entitled to accept Emmerich as a witness of truth and the appellants have failed to show any cogent reasons why he should not.

Criticism is also made of the evidence of the accountant of the F.M.S., Buabeng, the shipping manager, Mr. Eshun and the general manager as to the dates when they said the second and third appellants saw them and offered them jobs in the F.M.S. It is pointed out that there were discrepancies on the dates they each gave and that their evidence on this score was unreliable. There is no doubt that discrepancies exist in the dates they gave but they are not such that an honest witness would not make. The general purport of their evidence was that the second appellant was in company of the third appellant when they were invited to join the F.M.S. on dates prior to March 1960. This evidence was led to rebut the second appellant’s claim that he was unconnected with the F.M.S. before March 1960. But in view of his admission that he was paid for work done prior to March 1960, these discrepancies pale into insignificance.

The only other witness whose evidence was the subject of adverse criticism was Mr. Ocansey who was, for some time, the auditor and secretary of the Gamco. He gave an extremely detailed account of the accounting set-up of the F.M.S. Ltd. and when this company went

[p.890] of [1968] GLR 804 into voluntary liquidation, he was appointed as one of the liquidators. When the Gamco company was formed, his firm became its auditors. In addition to this, he was personally appointed the secretary of Gamco and was to superintend its income tax affairs. It is obvious that he was a person in whom the F.M.S. Ltd. and Gamco put considerable confidence. As secretary of Gamco, he was to see to the filing of the annual returns and all matters required by the Registrar-General. He was also to take down minutes of board meetings. In this latter capacity, he testified that he attended a board meeting of Gamco on 23 January 1964, and took down the minutes of that meeting as was his duty. He gave an oral account of what took place at that meeting and the persons who were present. He then tendered, without objection, a photostat copy of notes which he made at that meeting (exhibit V9).

In addition to the second appellant and Nyarko, Ocansey swore definitely that not only was the first appellant present at this meeting but he took active part in its deliberations. In this, he was supported by the contemporaneous notes which he made at the time. He gave as the venue of the meeting the first appellant’s house at Kaneshie. There was however some conflict in his evidence as to how he got to the first appellant’s house. He said in evidence that he ran the second appellant to the first appellant’s house in his car. But in a statement to the police he said he went to the first appellant’s house by himself and met the second appellant there. When he was asked to explain this discrepancy, he said his evidence in court was correct and that in point of fact he realised the inaccuracy in his statement to the police and returned to the police the following day to correct it by a supplementary statement. Apparently, this supplementary statement could not be traced by the police. The first appellant denied that a meeting took place in his house on 23 January 1964, or that he took part in that meeting.

The learned trial judge however accepted Ocausey’s evidence and held that a meeting in fact took place at which the first appellant was present. That there was abundant evidence before the learned judge to entitle him to reach that conclusion, is not denied. It is said however that he was wrong in doing so as he did not expressly advert in his judgment to the discrepancy in Ocansey’s evidence. It would indeed be strange if this court were to hold the learned judge wrong in accepting Ocansey’s inherently credible evidence on the only ground that in an 80-page judgment he did not specifically advert to the discrepancy in Ocansey’s evidence as to how he got to the meeting. There is no law which requires that a judge should set out in his judgment all discrepancies in a witness’s statement before

[p.891] of [1968] GLR 804 accepting it. Were there such a law, it would virtually prescribe a uniform form which all judgments should take.

The meeting to which Ocansey testified was admitted by all who were alleged to have taken part except the first appellant. Although Nyarko was an unsatisfactory witness, his account of what took place at the meeting tallied with Ocansey’s. The second appellant also expressly referred to the notes of Ocansey and said such a meeting took place. He did not suggest the notes were inaccurate in any way. Moreover, it is not reasonable to think Ocansey could have made a mistake about the number of persons who took part in this meeting—it being only a small number of four. The notes of the meeting were made contemporaneously and there was no motive to misrepresent. What was said in the notes itself did not damnify the first appellant and it is not suggested that Ocansey made them otherwise than in the disinterested course of duty. Ocansey’s evidence bears the clearest imprint of truth and the first appellant’s bare denial apart, the evidence that he took part in that meeting is overwhelming. In these circumstances, the learned trial judge was right in rejecting the first appellant’s bare denial and in accepting Ocansey’s wholly disinterested evidence.

Having accepted the evidence of Emmerich, Eshun, Buabeng, Tetteh and Ocansey and evaluated the documentary evidence produced by the prosecution, especially the second appellant’s letters to the first appellant in which spraying machines business was referred to, the learned judge proceeded to accept the prosecution’s case. It cannot be said there was no evidence which entitles him to do so. It has often been said that this court does not sit as a super jury to review facts found by a judge of which there is evidence. It follows that there is no ground to disturb the learned judge’s conclusions on the facts.

It is now necessary to address one’s mind to the purely legal question, namely, whether the facts adduced by the prosecution and which the learned judge accepted, amount to the offence of fraud by false pretences charged or the alternative offence of stealing. The trial judge took the view that the distinction between the two offences was purely academic and although he expressed himself in a manner which suggests that he was finding the offence of fraud by false pretences proved, he eventually convicted of stealing. For instance, referring to all the appellants, the judge said they “fraudulently obtained the consent of the government to pay to the said company the sum of £G50 each for 27,000 machines and £G48 each for 25,000 machines ordered by the C.M.B. and

[p.892] of [1968] GLR 804 the Ghana Supply Commission instead of £G30 and £G27 10s. and received the difference of £G1,052,500 for themselves.”

The prosecution at no time took the view that the facts which they submitted to the court amounted to anything but fraud by false pretence and at an early stage in this appeal, counsel for the prosecution conceded that the facts adduced by the prosecution did not amount to the offence of which the accused were convicted but amount to the one charged. That view was apparently shared by counsel for both the first and the second appellants because both argued to a point that the facts found constitute the offence of fraud by false pretences. That being so, it would seem that the prosecution are entitled to invoke the provisions of paragraph 14 (2) of the Courts Decree, 1966 (N.L.C.D. 84), to have fraud by false pretences substituted for the stealing and this court was expressly invited to exercise the powers conferred on it by that sub-paragraph. As the maximum punishment provided for both offences is the same, the distinction between these two offences would seem to be one without a difference and as such no injustice would be done by the invocation of the power conferred by this sub-paragraph at the instance of the prosecution. Counsel for the second appellant however argued against it and it would be necessary to return to this matter.

One serious point of law which was argued repetitiously by all counsel for the appellants and resisted by the prosecution, is that Emmerich was an accomplice. This is a term of art and in the comparatively recent case of Davies v. Director of Public Prosecutions (1954) 38 Cr.App.R. 11, H.L. the House of Lords took the trouble to define the term accomplice and to keep this term within its limits. Davies’ case has become the locus classicus on the matter. It is laid down in that case that where it is not clearly established that the witness was a participant in the crime but there is evidence on which a reasonable jury could find that he was, the issue of accomplice vel non is for the jury; and the judge should direct them that if they consider on the evidence that the witness was an accomplice, it is dangerous for them to act on his evidence unless corroborated.

In this case, the prosecution did not put up Emmerich as an accomplice as he was not shown himself to have benefited from the large sum which the prosecution claimed was the object of the fraud. Although he quoted the price which the prosecution claimed was false to the government officers, it was said he was himself deceived into so doing. Accordingly, a situation arose in which a reasonable jury could find that Emmerich was an accomplice. Therefore, the learned judge was obliged to ask the assessors and himself to consider whether on the evidence Emmerich was or was not an accomplice.

[p.893] of [1968] GLR 804

This would be an ordinary decision of fact. The learned judge was himself cognisant of the duty imposed on him by the decision in Davies’ case. So he asked the assessors to decide this and in fact read to them the law as laid down in Davies’ case. He said to the assessors: “According to the case which I have read to you, it is for you to decide whether [referring to Emmerich] he is an accomplice or not.” Again quoting from Davies’ case he enumerated to the assessors the categories of persons who came within the meaning of the term accomplice. He then proceeded to warn them as to the consequences of an affirmative decision on this issue as follows: “If you decide that he is an accomplice, then I must warn you that you can never convict the accused persons on the evidence of an accomplice without corroboration.” This direction is unduly favourable to the appellants, because, it necessarily implies that on no account could they convict on the evidence of an accomplice unless there was corroboration, whereas all the learned judge was obliged to have said was that if they consider Emmerich was an accomplice, it was dangerous to act on his evidence unless corroborated although they may legally do so. After addressing their minds to this subject, the learned judge and presumably the assessors, all came to the conclusion that Emmerich was not in fact an accomplice. That conclusion could be possible only if they believed as a fact that Emmerich was himself misled in quoting the false price. But the learned judge foresaw the possibility of his erring on this matter and concluded by stating that, “At all events Mr. Emmerich’s evidence is amply corroborated.” The learned judge also pointed out to the assessors two matters which might amount to corroboration of Emmerich’s evidence. It would seem therefore that as far as the mechanics of warning is concerned the learned judge came within the spirit and letter of the law as laid down in Davies’ case. The cases of R. v. Baskerville [1916] 2 K.B. 658, C.C.A. and R. v. Lucy (1910) 4 Cr.App.R. 165, C.C.A. decide that where there has been a proper warning an appeal court will not quash a conviction on the ground that the evidence of an accomplice was uncorroborated.

But counsel for the appellants did not found their complaints on the absence of warning but contest the learned judge’s conclusion that Emmerich was not an accomplice and that if he was, his evidence was corroborated. It is necessary to see to what extent these complaints can be said to be justified.

On the authority of Davies’ case Emmerich can only properly be regarded as an accomplice if he himself participated in the fraudulent representation or knowingly or consciously aided and abetted it. He would not be one if he believed, albeit erroneously, that the government itself was aware of the enhanced price or sanctioned the financial

[p.894] of [1968] GLR 804 arrangement. Again whether he was bona fide or not would eminently be a question of fact for the trial court. There is evidence which was believed that the government through its then Minister of Agriculture knew of the increased price and sanctioned the transaction. This evidence has already been adverted to, namely, what the first appellant told Emmerich when he and Emmerich were together at the first appellant’s rooftop at Borada. Emmerich was taken to Borada ostensibly for an explanation of the increased price of £G50. The Minister with whom Emmerich had no prior financial transaction, was found by the trial judge to have told Emmerich that if he remitted the money to Ghana, he would have further orders. Emmerich reasonably concluded that the Minister was speaking for the government and the money the former referred to was the £G20 difference between his price and the price at which he was requested to quote the machines to the government. When the Minister declined to have the difference transferred to the government through normal banking channels and expressed a preference for cash, Emmerich again, not unreasonably, concluded that the government intended to utilise this difference for secret purposes.

As to what entity was to be the conduit-pipe through which the money was to reach the government, the evidence makes it clear that Emmerich must have thought that it was the F.M.S. which to him was personified in the second and third appellants. These indeed were the individuals who were found to have taken Emmerich to the Minister at Borada. The F.M.S. itself was appointed an agent in circumstances in which it would be reasonable to infer that the Minister was privy. It is the F.M.S., acting by the third appellant which in fact, quoted the increased price to the government and requested, as the judge found, Emmerich to come to Ghana for an explanation. That Emmerich was entitled to believe that the financial arrangement was known to the government is shown by the fact that the Solo firm received from time to time visits to their factory by high government personalities. Emmerich himself said, “From the visits of several leading personalities, I got the impression that the government knew of the financial arrangement” (that is to say, the return of the excess of £G20 per machine to the government). There is no reason why a trial judge who saw and listened to Emmerich for a number of days should not have believed him. Having believed him on these matters, the learned judge was entitled to reach the conclusion which he did reach that Emmerich was in no way a conscious participant or an abettor of the fraudulent misrepresentation and was therefore not an accomplice.

The only reason why it is urged that Emmerich should be regarded as an accomplice is, that he himself admitted that in the course of

[p.895] of [1968] GLR 804 the execution of the first order, he became cognisant of the fact that some part of this difference was going to individuals yet he did nothing about it. He instanced the payment to Yaa Konadu and said he did not then think that the government required the money for secret purposes as he first imagined. Emmerich however said that he did not consider payment to either the second and the third appellants as irregular, apparently because he knew them as partners in the F.M.S. In these circumstances, the only way in which his probity could be questioned is that although he knew that either the second or the third appellant helped or was helping himself to part of what he believed to be government money, he did not bring this to the notice of the government but continued to do business with them until a rift occurred between them on a subject unconnected with this matter. It can be said in favour of the appellants that Emmerich should have acted in a high-minded manner and apprised the government of his suspicions. It is not possible to say more than this. But to say that this fact alone makes him an accomplice to the offence of fraud by false pretences when he still believed that it was part of government money that the second and the third appellants diverted, would open the legal door to accomplices much wider than can be justified.

The House of Lords in Davies’ case firmly refused to extend this judge-made law and being a species of judicial legislation, it was within the competence of judges who formulated the rules to prescribe its limits. Counsel for the second appellant fully conscious of the hurdle in his way in asking us to treat Emmerich as an accomplice, suggested that we extend the ambit of the persons who can be regarded as accomplices and go beyond the limited category laid down in Davies’ case. This is a bold request and were there grounds for it, one could think of it seriously. But to go beyond the House of Lords and broaden the category of persons who are accomplices, will be to admit that the judge applied the law as he knew it correctly and was justified in thinking that Emmerich was not an accomplice to the offence charged.

But it would seem that the copious and oft-reiterated submission we heard about accomplices has no practical value on the special facts of this case. The real object of determining whether or not a person is an accomplice “to the offence charged” is to attract the rules as to warning and to vacate a conviction in its absence. But as has been shown above, the judge in fact obeyed the law and administered the caution in familiar phraseology. And as has been shown in the Baskerville case (supra) if the warning was in fact given, the Court of Appeal will not interfere, at least, not on the ground relating to accomplice’s evidence.

[p.896] of [1968] GLR 804

Whether a person is, on certain proved or admitted facts an accomplice or not is sometimes a nice question and one on which reasonable minds might well differ. The learned judge thought another court might take a view different from his own on this subject, so he said in the alternative that the evidence of Emmerich was amply corroborated. This view is also assailed by counsel who argue that there was in fact no corroboration of Emmerich’s evidence. It is necessary to see whether the judge or counsel was right. Corroboration is said to be some independent evidence which implicates the accused in a material particular and tends to show not only that the crime was committed but that the accused took part in it. By this yardstick, and on the assumption that Emmerich is an accomplice, what other evidence is there which tends to confirm the fact that all the appellants took part in the conspiracy and the fraudulent representation alleged by the prosecution?

As between the second and the third appellants and Emmerich there is hardly any serious controverted issue. They both admit that at some time at any rate, they were partners and did not dispute that Emmerich’s price was £G30 and that they quoted £G50 to the government and that this is the sum that the government eventually paid. This is the gravamen of the fraudulent representation alleged. There were between them, a number of other collateral issues which no one suggests was vital enough to require corroboration. When the F.M.S. Ltd. was liquidated and the Gamco was formed, it is not in dispute that the price of the Solo machine then was £G27 10s. but that the second appellant procured the government to pay £G48 per machine. Again that is said to be a false representation on which the government relied to its detriment. It would seem therefore that the question of corroboration becomes a serious issue only when the participation of the first appellant in the crime is considered.

Counsel for the appellants pinpointed two pieces of evidence as vital as between the first appellant and Emmerich and submitted that as there was no corroboration of them, Emmerich’s evidence stood uncorroborated. These are firstly (a) that the first appellant told Emmerich that he might get a trial order of 12,000 machines if he appointed a local agent and (b) that it was possible to get a further order of 13,000-15,000 machines provided they remitted the money to Ghana and when told this would be done by normal banking channels, the first appellant said, “We want cash.” In so far as counsel propounded this as a test of corroboration, I think it is wrong. The first appellant was not charged with uttering these words. They are two of the processes by which the prosecution sought to prove the first appellant’s complicity in the conspiracy and fraud. If they are true, they go a long way in showing the first appellant’s connection with

[p.897] of [1968] GLR 804 the F.M.S. It is plain that the object of the conspiracy and fraud was to make money by inflating the price of spraying machines. It is in fact established that the price was in fact inflated and colossal profit was made thereby. The vehicles which were used to effect this were the F. M.S. and Gamco. Therefore if the evidence justifies the conclusion that the first appellant was a partner or in any way interested in these companies, it would tend to confirm Emmerich’s evidence against him about his request to him to appoint a local agent and his further evidence about his request for the payment of cash at Borada. That would, in law, amount to corroboration of Emmerich’s evidence. As Maule J. said to the jury in R. v. Mullins (1848) 3 Cox C.C. 526 at p. 531: “Confirmation does not mean that there should be independent evidence of that which the accomplice relates, or his testimony would be unnecessary.”

It is now necessary to consider what evidence makes it likely that the first appellant was a partner or was in fact interested in either of these two companies. Firstly, there is the evidence that it was the third appellant who arranged an interview for Emmerich with the first appellant. That interview was fixed for the morning of 8 December 1959. There is uncontroverted evidence that that morning the third appellant procured the Hag Press at Tafo to print a number of letter-heads which purport to be that of an existing firm with headquarters at Tafo and having bank accounts, post office box number and the like. This is the F.M.S. When Emmerich met the third appellant and informed him of what the first appellant told him, the third appellant then immediately informed him to appoint the F.M.S. as such agent. The inference which can reasonably be drawn from this, is that the third appellant knew beforehand what the first appellant would request of Emmerich and put himself in readiness for it. The third appellant cannot have known this unless he and the first appellant were agreed on this beforehand. Secondly, it is not in dispute that Akua Opare is the first appellant’s aunt-in-law. She appears ex facie in the partnership agreement as one of the partners and was entitled by the deed to receive a third of the profits. The F.M.S. earned on the two orders a total gross profit of £G540,000. It is agreed on the evidence that she received none of the profits and in fact did nothing in the F.M.S. Who was she there to represent? Thirdly, when Akua Opare fell ill or died and Gamco was formed, Nyarko who is still a closer relative of the first appellant, was appointed to the board. He was in some respects an unsatisfactory witness but it is plain that he got none of the £G512,500 profit which Gamco made on the third order. Nyarko was virtually illiterate and had no duties except the signing of cheques. It is obvious that he must be a nominee of some one. Can it be a mere coincidence that in these two entities, the first

[p.898] of [1968] GLR 804 appellant’s relatives should be members? Fourthly, Buabeng the accountant of the F.M.S. said the first the appellant often visited the office of F.M.S. and met there with the directors. These were the second and the third appellants. Did he have a common object with them? Although not of great weight, there is Tetteh’s evidence that the third appellant informed him that the first appellant helped them a lot in the formation of the F.M.S. There is the further evidence of Bruening that a meeting of Gamco was held in October 1962, at Kaneshie in the house said to belong to the first appellant. Fifthly, there are the two letters dated 5 December 1962 and 16 December 1964 in which the second appellant wrote to the first appellant asking for loans. In particular, in the latter letter, the second appellant said he was attaching a proof letter showing the expenses he incurred in getting the spraying machines order through. It is difficult to see why he would wish to attach a list of expenses he made to Asare who was not interested in spraying machines. It is still more difficult to understand why he should mention the sum he spent on the last order “to achieve our aim.” Sixthly, there is the evidence of Ocansey about a board meeting of Gamco at the house of the first appellant. The first appellant took part in that meeting and made numerous suggestions which were contained in notes Ocansey made at the time.

The question therefore, is, would a reasonable jury conclude from all this evidence that the first appellant was associated with both F.M.S. and Gamco? The answer must be in the affirmative and that is the answer which both the judge and assessors gave to this question. The evidence wholly entitles them to arrive at this conclusion. If the first appellant was in fact a partner or a director by his nominee in F.M.S. and Gamco, is it reasonable to think he would have had no share in the huge profits these two companies made? The fact that there is no evidence that the first appellant actually received any cash from these organisations, in no way inhibited the learned trial judge from being satisfied of his participation. The judge thus observed: “It is true that there is no evidence that the first accused personally received anything out of the said sum; but that he participated in the conspiracy and the commission of the frauds, there is no doubt whatsoever in my mind.” Thus the issue of whether or not Emmerich was an accomplice in no way avails the appellants.

The only other ground which all the appellants made common cause is a contention based on an interpretation of section 133 of the Criminal Code, 1960 (Act 29). It is submitted on this ground that as the only material representation which the judge found the appellants made to the government was as to “the price or value” of each machine, the judge was in error inasmuch as he failed to hold that

[p.899] of [1968] GLR 804 the consent of the government was not obtained by a false representation within the meaning of section 133 of the Criminal Code, 1960 (Act 29). Section 133 (2) (c) on which the appellants relied, provides that:

“a consent shall not be deemed to have been obtained by a false representation as to the quality or value of a thing, unless, the thing is substantially worthless for the purpose for which it is represented to be fit, or to have been substantially a different thing from that which it is represented to be.”

It is said on this ground that as the spraying machines were not worthless or substantially different from what they were represented to be, and the only representation being as to their price, this section precluded the judge from holding that the appellants obtained the consent of the government by a false pretence.

The word used in the bill of indictment is “price” and the word used by the statute is “value.” The argument of counsel is based on the supposition that the words “price” and “value” are exact synonyms. If they are not, this argument must crumble. There is no statutory definition of “value” in the Act but the Concise Oxford Dictionary (5th ed.) defines it at p. 1436 as “Worth, desirability, utility, qualities on which these depend etc.” whereas “price” is defined at p. 967 as “Money for which a thing is bought or sold.”

In a book entitled English Synonyms Explained (3rd ed.) by Crabb, the words “value” and “price” are contrasted. According to this book at p. 799:

“Value is a general and indefinite term applied to whatever is really good or conceived as such in a thing: the worth is that good only which is conceived or known as such. The value therefore of a thing is as variable as the humours and circumstances of men; it may be nothing or something very great in the same object at the same time in the eyes of different men. The worth is however that value which is acknowledged: it is therefore something more fixed and permanent; we speak of the value of external objects which are determined by taste; but the worth of things as determined by rule. The value of a book that is out of print is fluctuating and uncertain; but its real worth may not be more than what it would fetch for waste paper. The rate and price are the measures of that value or worth; the former in a general, the latter in a particular application to mercantile transactions.”

It seems clear from this that the word “value” is a generic term one of whose species, is the word “price.” As the appellants have failed [p.900] of [1968] GLR 804 to show that these two words are exact synonyms, they cannot substantiate the argument that when the Act used the word “value,” it meant “price.”

It would seem therefore that section 133 of our Code merely seeks to codify that principle of English law by which a false representation of what is a mere matter of opinion falling within the category of untrue praise or puffing does not ground an indictment for fraud by false pretences. This is exemplified in such well known cases as R. v. Byran (1857) Dears. & B. 265, C.C.R. and R. v. Levine (1867) 10 Cox C.C. 374. In the former of the two cases, where spoons of an inferior make were represented to be of the best quality and equal to Elkington’s, a conviction of fraud by false pretences was quashed and Erle J. justified the decision upon the sound principle, that indefinite praise upon a matter of indefinite opinion cannot be made the ground of an indictment for false pretences.

But it has been held by a long line of cases and indeed laid down as a general rule, that wherever a person fraudulently represents as an existing fact, that which is not an existing fact and so gets money, he commits the offence of fraud by false pretences. No reason has been suggested why a false factual representation as to price should be treated differently from any other fraudulent representation of an existing fact. The researches of counsel have not revealed one case in which it was held that a false statement as to price was incapable of grounding a charge of fraud by false pretences. It is perhaps remarkable that if such were the law, the point would wholly have escaped common law lawyers. On the contrary, the case of R. v. Ellis (1910) 5 Cr.App.R. 41, C.C.A. suggests that a fraudulent representation of a price which the complainant believed to his detriment, can ground a successful prosecution for obtaining money by false pretences. In that case, E. agreed to sell to the complainant certain works of art cost price plus ten per cent as profit. E. fraudulently inflated the cost price with the result that the selling price became higher than it ought to have been. The complainant, unaware of this, paid the inflated selling price. Upon this being discovered, E. was charged with obtaining the difference between the true price and the inflated selling price by false pretences. This was regarded as a perfectly good indictment and E. was duly convicted. E. was acquitted on appeal on a wholly different ground, the judgment of the Court of Criminal Appeal proceeded on the basis that the facts grounded a good indictment for fraud by false pretences. I think, counsel have failed to make good the argument based on section 133 of the Criminal Code, 1960, and this ground of appeal must fail.

Apart from the grounds of law common to all the appellants, a number of arguments of law peculiar to each appellant was urged.

[p.901] of [1968] GLR 804

The third appellant for instance, made a number of signed statements to the police in which he gave an account of how the F.M.S. came to be formed, the brains behind it and the circumstances that impelled him to leave. He said many things which tallied with Emmerich’s story and made incriminatory references to the first and the second appellants. The statements made by the third appellant behind the backs of the first and the second appellants were not legally admissible against them but admissible in evidence against the maker himself. In the witness-box, the third appellant gave an account of the matters wholly at variance with what he said in his statements. Accordingly, in judging his credibility, it became highly relevant to refer to the statements he made about these matters when the facts were fresh in his memory. The learned judge was fully aware that the statements of the third appellant were not legally admissible against the first and the second appellants and repeatedly said so in his judgment and said he warned himself and the assessors against that.

It is submitted however that notwithstanding his warnings to the contrary, the learned trial judge in fact relied on those statements to the prejudice of the appellants. Counsel for the first and the second appellants therefore referred to and relied on the cases of R. v. Dibble (1908) 1 Cr.App.R. 155, C.C.A. and State v. Brobbey [1962] 2 G.L.R. 101, S.C. In any given case, it is always a difficult matter to decide whether a judge in fact relied on a prejudicial statement against which he warned himself. But in so for as they establish precedent capable of being followed in future cases, the cases of Dibble and Brobbey decide that if guilt of the person adversely affected by the prejudicial statement cannot be established otherwise than by reliance on those statements, then if a conviction is in fact recorded, it can be assumed that the inadmissible prejudicial statements were relied on. This however cannot be said if the evidence establishes guilt independently of the statement. In Dibble’s case, it was held that it was impossible to believe that the inadmissible statement had no effect on the minds of the jury and that without it, the remaining pieces of circumstantial evidence were mere grounds of suspicion only. Brobbey’s case proceeded on the same footing. It was held by the court in that case at p. 105 that “If [the statement] exhibit M had been excluded from consideration by the jury it would have been impossible for them to have returned the verdict which they did return.”

It seems clear that it cannot be said in this case that the case against the first and the second appellants cannot be proved save by reliance on the third appellant’s statements. There is a hard core of unequivocal evidence against the first appellant which establishes his connection with the F.M.S. and Gamco. This has already been

[p.902] of [1968] GLR 804 adverted to. So also is there evidence irrespective of the third appellant’s statements, from which the judge could conclude that the second appellant was a party to the conspiracy from its inception. Besides this, the second appellant himself admitted that he joined the F.M.S. at any rate in March 1960, and was, until the events which culminated in this prosecution, the brain behind the Gamco. He also admitted the receipt of money from these two companies, this being, according to the prosecution, the proceeds of the frauds. It follows that neither Dibble’s nor Brobbey’s case provides assistance to the first and the second appellants in this case.

As mentioned earlier, the third appellant himself had reason to repent some of the things he said to the police and two attempts were made on his behalf to have his statements excluded in evidence. Both were unsuccessful and this provided the third appellant with the first ground of appeal argued on his behalf before us. After making about five statements to the police between 7 March to 23 March 1964, he was finally charged on the latter date. After being duly cautioned, the third appellant was recorded to have said: “Apart from the statements which I have already made to the police I have nothing to say unless I see my solicitor.” Here, the third appellant was clearly relying on his earlier statements and incorporating them by reference. It would be quite impossible to know what his answer was to the charges without reading the statements which he said he made to the police.

When the third appellant’s statement of 23 March 1964, was sought to be tendered in evidence, it was objected to on the ground that it was not voluntary. The superintendent of police who took down the statement swore positively that it was. But by reason of the objection, the question whether or not this statement was voluntary, was tried as a preliminary issue. The third appellant declined to offer any evidence on this point and the learned judge ruled that that statement was made voluntarily and was admissible in evidence. This statement is itself innocuous but it is clear that the real reason why the third appellant sought to have it shut out was its incorporation of other statements which he was anxious to have excluded.

When eventually the prosecution sought to tender in evidence the earlier statements to which the third appellant referred, the third appellant’s counsel opposed this on the ground that they were not taken by the witness who sought to tender them and that they were not cautioned statements. It is to be noted that counsel made no issue of their voluntariness and the learned judge proceeded to hold that no good grounds were shown for their exclusion. He thought the position would have been different if the statements were objected to on the ground that they were not voluntary. If in fact there was

[p.903] of [1968] GLR 804 any question about the voluntariness of those statements, counsel then had a clear duty to inform the court of this. The statements were then admitted in evidence on the clear basis that they were voluntarily made by the third appellant. When however the third appellant went into the witness-box, he then made allegations which the learned judge thought questioned the voluntariness of these statements. The judge then felt that the interests of justice required that Mr. Mantey who wrote the statements be interposed to give evidence about these statements. His evidence confirmed the stand taken by both the prosecution and defence that the statements were absolutely voluntarily made by the third appellant.

In this court, it is said the learned judge was wrong in admitting those statements as at the date on which they were admitted, there was no evidence that those statements were made voluntarily. It is said there was a positive duty on the prosecution to show that these statements were voluntary and the case of R. v. Thompson (1893) 2 Q.B. 12, C.C.R. was relied on. It is said in any event, the judge was wrong in calling Mantey at the time he did as this prejudiced the third appellant. The fact that the prosecution was under a duty to show that statements it sought to tender in evidence were made voluntarily by the person against whom they are sought to be tendered, is trite learning but there is no rule that where a voluntary statement incorporates by reference other statements, there is an equal duty on the prosecution to show that every one of those statements was voluntary. That would seem to be a pointless formality because the maker of the statement is in effect saying that he had voluntarily made other statements which he did not want to repeat and which he says, should be looked at: see State v. Baidoo, 30 June 1966, Court of Appeal, Cyclostyled Judgment, January-December 1966, p. 160, unreported. That must have been the reason why experienced counsel for the third appellant although objecting to the statement on other grounds, raised no issue as to their voluntariness. When the voluntariness of the statements was impugned in the third appellant’s evidence, it then behoved the judge to ensure that they were voluntary otherwise he had to exclude them. In view of the course which this case took, the judge was entirely right in calling upon the writer of the statements to give evidence and thus clarify the position. That plainly was the course which justice demanded. There is no merit in this ground of appeal.

It was next argued on behalf of the second appellant, that the charges of conspiracy to defraud by false pretences were bad inasmuch as the evidence led in proof thereof was the evidence of the alleged commission of the substantive offence with which the appellants were charged. It is said that in any event, in dealing with

[p.904] of [1968] GLR 804 the conspiracy charges, the judge should first have dealt with the substantive charges and then consider whether the conspiracy could be inferred from the substantive offences proved. Reliance was placed on R. v. Dawson; R. v. Wenlock [1960] 1 W.L.R. 163, C.C.A. It is said as the judge did not appear to have done this, it was fatal to the convictions for conspiracy. The reason why this omission was said to be fatal, is that in considering the conspiracy charges first, the judge must have considered against the second appellant at least, evidence which was otherwise inadmissible against him. It is also submitted on this ground that the learned judge should have considered the evidence in respect of each count and this he failed to do. On this, counsel cited the case of R. v. Cooper and Compton (1947) 32 Cr.App.R. 102, C.C.A.

It cannot be denied that the practice of charging conspiracy where the evidence intended to be submitted to the court merely proved the commission of the substantive offences, has been deprecated by a number of English decisions. But none has gone as far as to lay down the law that such a thing cannot be done, or that such charges per se invalidate convictions procured on them. Indeed, in the case of Cooper and Compton, Humphreys J. in delivering the judgment of the court quoted Sankey J. in R. v. Luberg (1926) 19 Cr.App.R. 133 at pp. 136-137, C.C.A. as follows:

“But we do desire to say one word about the whole indictment. It will be observed that it starts with the general count for conspiracy. I am far from saying that that is wrong. It is perfectly open to prosecutors to do that, but it does, in our judgment, place the defendants in a case like this in some difficulty. The reason is that it renders admissible evidence of what one prisoner says in the absence of others, because if they are all conspirators, what one of them says in furtherance of the conspiracy would be admissible evidence, even though it was said in the absence of the other conspirators.”

It is impossible to say in the face of this, that there is any law against including a conspiracy count in a count charging the substantive offence. The case of R. v. Wenlock (supra) cited by counsel also relied on R. v. Luberg (supra) and deprecated the practice, but held further that where a conspiracy count is charged with a substantive one, the jury should be directed to consider the substantive charges first and then proceed to consider how far the count for conspiracy should be there at all, and if so, whether it is made out. In the case of R. v. Griffiths [1965] 2 All E.R. 448, C.C.A. the same warning was expressed when the conspiracy itself was complicated and was described as a “wheel conspiracy.” After quashing the conviction and

[p.905] of [1968] GLR 804 approving the observations in Wenlock’s case, the court said at p. 450: “except in simple cases, a conspiracy count (if one is needed at all) should be tried separately to substantive counts.”

It can hardly be disputed that the conspiracy alleged in this case is one of the simplest. It is not the long and complicated conspiracies that have become common in English courts and variously styled “wheel,” “rolled-up” or “chain” conspiracies. The prosecution here merely says, the appellants agreed together to cause the Solo firm to quote false prices to the government and they themselves profited by the difference. It is said by the prosecution that for this purpose, they established a firm and a company and that all the appellants were either partners or directors of this. As far as the second and the third appellants are concerned, they admit being partners of the F.M.S. and a lot of circumstantial evidence was led to show the first appellant’s connection with these entities. As far as the second appellant is concerned, it is only in one case that a letter written by the third appellant, exhibit A10, said to be done in furtherance of the conspiracy, was held to be evidence against him. All the other evidence which was led to show his participation in the conspiracy was acts done by him or admissions he himself made. It is therefore impossible to say that the inclusion of the conspiracy charges by any stretch of imagination worked injustice on any of the appellants.

Had the nature of false pretences alleged in this case differed in the various counts one would have given serious thought to the question whether there was a serious irregularity in the learned judge’s omission to consider the various counts separately. Here the prosecution claimed that the false pretence was a continuous one, namely, the false price continued to be believed by the government and that the same machinery was established for committing it—the firm and companies, and through the same innocent agent—the Solo firm. In that case, the more convenient course would be an examination and acceptance of the main story. The details of the dates of the commission of the various counts could easily be fitted in after the full picture emerged. Not much point of substance can be made in this case, by reason of the fact that the learned judge did not deal with the counts in fragments. Whatever merits there might be in dealing separately with charges on a different set of facts, it cannot be argued that the omission to do this in any way affected the result nor can be said to occasions failure of justice.

It is also argued on behalf of the second appellant that the facts found by the learned judge did not in law amount to the offence of stealing. That argument is right as the evidence shows plainly that the government, by deceit, consented to part with its ownership

[p.906] of [1968] GLR 804 in the excess sum of £G20 in the first two orders and £G20 10s. in the last order. As the officers of the government obviously believed in the false prices which the appellants qua firm caused the Solo firm to quote to the government, and as they clearly intended to deprive the government of this excess, the offences which they, on the proved facts committed, was fraud by false pretences. That point was made by counsel for the first appellant and indirectly in ground (13) of the second appellant’s grounds of appeal and was conceded by counsel for the prosecution. That indeed was the charge winch the prosecution brought against the appellants. It is again contended for the second appellant, that on the facts, no offence was committed and that even if the price be false it did not induce the government to place the order.

It is necessary to examine these contentions a little closely. The reason why it is argued that the facts do not amount to an offence is, it is said, that £G50 was the true price of the machine and that this sum was quoted by F.M.S. on the first occasion with Solo’s full knowledge and consent and on the other two occasions, the quotation was made by Solo. It is contended therefore that the price was not false.

In order to answer this contention, it is necessary to set out the facts found by the judge on this part of the case. The judge found that the first appellant obliged Emmerich to appoint a local agent as a condition for securing orders and both the first and the third appellants acting in collusion got him to appoint a firm called F. M.S. which then did not exist. The third appellant purporting to act for that firm, agreed on a commission with Emmerich in the sum of £G6 and while Solo’s price was £G30, £G36 was agreed to be quoted to the government. When Emmerich returned to Germany, the third appellant purporting to act for the F.M.S., quoted the price to the government as £G50. In the meantime, he got in touch with Solo and asked him to confirm that price to the government and come to Ghana for an explanation. Without knowing the reason for the increase, Solo confirmed the £G50 and Emmerich proceeded to Ghana to obtain the explanation.

In order to obtain this, he was run by car to the first appellant’s hometown at Borada. There, Emmerich testified that the Minister told him certain things about cash which led him to believe that the difference was going to be utilised by the government for secret purposes. The Minister denied Emmerich’s positive testimony on this point and the issue that was thus controverted was: Did the Minister tell Emmerich the things which the latter said he did and did Emmerich genuinely believe that the difference was required by the government? The learned trial judge rejected the Minister’s

[p.907] of [1968] GLR 804 bare denials and found that Emmerich told the truth on this. Emmerich said his belief that the financial arrangement was known to the government was buttressed by the proved fact that many high government personalities paid official visits to their factory in Germany. When it is recalled that the learned judge found that the Minister was himself personally interested in the F.M.S. and Gamco, the truth of Emmerich’s testimony about what the Minister told him, is fully demonstrated.

The upshot of this, is, that in order to get the government to part with £G50 instead of the £G30 per machine the F.M.S. acting by the third appellant falsely represented to the government that the price of each machine was £G50 and in order to get hold of the difference for which the false representation was made, the F.M.S. acting this time by the first appellant, led Emmerich to believe that the difference would be utilised for government purposes. In other words, in order to achieve their object, both the government and Solo were deceived.

The process which the F.M.S. adopted to achieve their object, was a somewhat tortuous one but is epitomised in the following example. A. sent his servant B. to go to the C. stores and ascertain the price of a book which A. was desirous of buying. B. went to the C. stores and was told the price of the book was N¢30. In order to make N¢20 on his master, B. falsely tells A. that the price of the book is N¢50. A. believing this, made out a cheque for N¢50 in favour of C. stores and hands this to B. B. takes this to C. stores and to explain why he brought a cheque for N¢50 when he was told the price was N¢30, tells the C. stores that A. wanted the difference in cash. C. stores believe this and hand N¢20 to B. in cash. The latter appropriates this. Here an offence of fraud by false pretences is committed by B. and although both A. and C. stores were decieved by B. the person who was defrauded is A. It was he who parted with his ownership in the N¢20 on the faith of this false representation. I think this is what happened here. In my opinion, and with great respect to those who think otherwise, the facts found by the trial judge constitute the offence of fraud by false pretences—that being the offence charged.

It is also contended that even if the appellants can be said to have misrepresented the price to the government, that did not induce the placing of the order and therefore no offence was committed. The evidence which gave rise to this submission was given by Mr. Quist-Therson. He was asked in cross-examination, a question to which he gave the following answer:

[p.908] of [1968] GLR 804

“The combination of circumstances which induced the government to place the order for, 12,000 machines are: 1. The price of £G50. (2) The reports on the machine’s performance. (3) The offer to supply free of cost a repair shop. (4) The prompt delivery of the machine.”

(The emphasis is mine.) It is obvious that the question to which Mr. Quist-Therson gave an answer was: What induced the government to place the orders? That question is not relevant to the present charges. The question which ought to be asked and answered is: Why did the government pay £G50 per machine? (see R. v. Sullivan (1945) 30 Cr.App.R. 132, C.C.A.) To this, there can be but one answer, namely, that the government believed that £G50 was the true price of the machine. Common-sense suggests that the government would not pay £G50 if it knew the price to be £G30. And by paying £G50 per machine instead of £G30, the government paid in respect of the two orders an excess of £G240,000 and £G300,000 respectively. And in respect of the third order the Government paid £G48 instead of £G27 10s. and thus made an excess payment of £G512,500. These sums were proved to have been appropriated by the F.M.S. in respect of the first two orders and by Gamco in respect of the third order. These are the amounts by which the government was alleged to have been defrauded in counts (2), (4) and (8) of the charges. In my opinion, these charges were brought home to the appellants as well as the counts charging conspiracy to commit these offences and the appellants ought not to be allowed to escape justice.

Whatever difficulties the circuity of the course which the appellants adopted might give rise to in considering the offence of fraud by false pretences, there seems, on the facts which the learned judge found, to be none in concluding that the charge of conspiracy to commit corruption was proved. The first ground on which the conviction on count (1) was contested, is that “the charge is bad in law inasmuch as the appellants cannot be guilty of conspiracy to commit an offence which can in law be committed by one of them.” The reason underlying this argument is that as the second and the third appellants had no public duties in connection with the purchase of spraying machines, they cannot be held to have conspired with the first appellant who alone had such duty. That argument, in so far as it seeks to be a proposition of law, is unsound and was indeed abandoned. Had that contention been persisted in, it could easily have been met by the case of R. v. Hammersley (1958) 42 Cr.App.R. 207, C.C.A. which decides that non- public officers can be indicted for conspiracy with others who are public officers to commit crimes which can only be committed by public officers.

[p.909] of [1968] GLR 804

It is next argued that as Solo consented to the quotation of the £G50 and as therefore that price was not false, this offence cannot in law be committed. Can that argument be right? False representation is not an ingredient of the offence of corruption. The two offences are based on entirely different rationale. The offence of fraud by false pretences seeks to punish anyone who deceives another to his detriment and which deceit operated to the material advantage of the deceiver. The offence of corruption on the other hand, seeks to prevent the exploitation of public office by holders of such office. It would therefore be no answer to the charge of corruption that Solo with full knowledge of all the facts, agreed to the quotation of £G50.

It is also submitted that the offence cannot be committed unless it is shown that the first appellant had a duty to order spraying machines for the government and it is urged that the prosecution failed to prove this duty. I agree that the prosecution were obliged to show that such a duty existed, but on the evidence, that has been clearly proved. Mr. Quist-Therson testified that about December 1959, the government were engaged in controlling the spread of capsid and were minded of purchasing motor sprayers to help combat the disease. That responsibility fell on the Ministry of Food and Agriculture. The first appellant was a Minister at the time and the function of making the purchases on behalf of the government became his function. Mr. Quist-Therson, the Principal Secretary said: “In relation to the Minister, my duties were to advise the Minister over the whole range of his responsibilities as Minister of Food and Agriculture. He was not bound to accept my advice. He was free to accept or reject any advice given him.” Mr. Quist-Therson also said that he advised the first appellant on the purchase of motor sprayers. That the first appellant had and actually exercised functions in respect of the orders of spraying machines, is proved by the fact, that the first order of 12,000 machines was not placed until he approved it under his signature. In respect of the second order, the first appellant actually rejected the advice of his principal secretary and instructed that 15,000 machines be ordered immediately. This instruction was obeyed and the indent was placed. It should be difficult to accept that although the Minister exercised powers in respect of the order of spraying machines, he had no correlative duty. Section 32 of the Interpretation Act, 1960 (C.A. 4.), provides “functions includes powers and duties.” I think it clearly established that the responsibility of purchasing spraying machines on behalf of the government was that of the Minister—the first appellant and he discharged this duty with the aid of his official underlings. Indeed it

[p.910] of [1968] GLR 804 was in the discharge of this duty that he gave Emmerich an appointment.

It seems equally well established that it was his conduct that caused the government to pay £G50 for the machines when £G30 was all that was required by the Solo firm. That conduct was to tell the firm that an order would be placed only if a local agent was appointed. Mr. Quist-Therson testified that:

“During my term of office as Permanent Secretary of the Ministry of Food and Agriculture, I was not aware of any government policy to the effect that the government would purchase agricultural equipment only if the manufacturer appointed a local agent.”

The first appellant himself admitted this to be the position and said in evidence:

“At the time there was no government policy that purchases of agricultural machinery should be made only if the seller or manufacturer had a local agent in Ghana. As a Minister, I know that if the government purchased an article through an agent it might be dearer than when the government imported it direct from the manufacturer.”

Yet it was proved and found by the learned judge that although Solo was prepared to sell the spraying machines to the government directly, they were obliged to do so through an agent. The first appellant well knew that the government, which he represented, would have to pay more for the machines and the question which falls to be answered is: What was his object in so doing? I think it a perfectly fair inference that the Minister himself expected to benefit from the difference. If the fact is recalled that the agent which Solo were thus obliged to appoint turned out to be a non-existent firm and if it is further remembered that the person who held himself out as that firm was a civil servant—the third appellant, who at that time happened to be the technical adviser to the Minister on spraying machines and was the self-same individual who put Emmerich in touch with the Minister, then the drawing of that inference becomes inescapable.

There is a lot of other compelling circumstantial evidence to show that the Minister was acting in collusion with the civil servant—the third appellant. This has already been referred to including the circumstance in which the third appellant hurriedly caused the letter-heads to be printed at about the same time that the Minister was interviewing Emmerich and the equally proved fact that when Emmerich returned to Ghana to obtain an explanation of the sudden

[p.911] of [1968] GLR 804 increase in the price offered for the machine, he was taken by the second and the third appellants to the self-same Minister—the first appellant. It is obvious from this that the first appellant must have known the price which Solo asked for the machine and the price which the government was being asked to pay. He cannot explain the difference in the prices otherwise.

Thus every ingredient of the offence of conspiracy to commit corruption was proved, namely:

(1) That the first appellant was a public officer.

(2) That he had a duty to order spraying machines from Solo on behalf of the government.

(3) That he so conducted himself that the Government of Ghana had to pay £G50 per machine when the actual price required by Solo was £G30.

(4) That in so doing he expected that the difference of £G20 would be received by himself and the other two appellants.

(5) That all the appellants agreed that the first appellant should so conduct himself.

The only criticism that can be made of the judgment, is that the learned judge did not set out seriatim the ingredients of the offence or recall any case law on the point. But surely that can be no ground for setting aside a conviction which is fully justified by the evidence. I think all the appellants were properly convicted of the offence of conspiracy to commit corruption and that there are no valid grounds for disturbing that verdict.

Mr. Swaniker for the second appellant, exploded almost with hysteria that the prosecution were making “much ado about nothing.” He argues that the Gamco, at any rate, was a company properly incorporated under the Companies Code, 1963 (Act 179), and did business for which it earned legitimate commission. That is what it appears on a most superficial view of this case. But, there is such a thing as honest, and fraudulent business enterprise. The learned judge’s finding of fact in this case is, that both the F.M.S. and Gamco were not bona fide business enterprises but were set up to defraud the government. Such a finding is not answered by the production of a certificate of incorporation. In such a case, as Gower put it in his Principles of Modern Company Law (2nd ed.) at p. 183 “the law disregards the corporate entity and pays regard instead to the economic realities behind the legal facade.”

What is the reality of the situation in this case? It is that the first and second appellants styling themselves Gamco, were carrying on business in spraying machines. These machines were all sold to the government by the Solo firm. The price of Solo was £G27 10s. but it was quoted to the government as £G48. In a very real sense

[p.912] of [1968] GLR 804 this business, if it can be called one, was merely a perpetuation of the firm called F.M.S. Indeed it is only the name that was changed. If the F.M.S. was itself not a genuine business, the change of name of its successor can make no difference. The substantial brains behind it and its modus operandi remained the same.

The question therefore is: was the F.M.S. a bona fide business concern or was it merely a sham? To answer this question, it is necessary to determine which individuals form the firm and what is their modus operandi. On the facts, the members of that firm are the appellants. The “business” was brought into being on 8 December 1959, that being the date letter-heads bearing F.M.S. were printed and when Solo appointed the “firm.” At that date, all the three appellants were in public employment—both the first and third appellants having important duties to perform on behalf of the government in connection with the purchase of spraying machines. Nobody suggests that the mere fact that a person holds a public position debars him from carrying on honest business even though this might involve him in departmental sanctions. Equally clearly, the holding of public office which involves a fiduciary duty to the public debars public servants from carrying on honestly, business in which their public duty might be compromised to the injury of the public.

As has been shown in this case, the first appellant as Minister of Agriculture was in the truest sense of that word, the accredited agent of the government for the purchase of spraying machines from Solo. While holding that office, can he also honestly carry on business as agent of the vendors—Solo? If he cannot do so by himself, can he do so in combination with others? Reason suggests that both these questions should be answered firmly in the negative. The first appellant himself has not asserted that he could honestly carry on such a business, so he denied what the judge found to be a fact, that he was associated with the F.M.S.

The position cannot be different with regard to the third appellant. In connection with the purchase of Solo spraying machines, he occupied an equally vital position in relation to the government. He was the technical adviser to the Minister and in fact tested and favourably reported on the machines. Indeed in a letter written by him and dated 6 January 1960 (exhibit D9) he actually recommended that the government purchase a quantity of the Solo spraying machines. He himself said the government relied on his report. Yet he says at that date, and since the previous December, he had become an agent of the vendors. Is this clearly not a case in which his public duty would conflict with his private financial interest? Can he while he held his public office, honestly carry on the business

[p.913] of [1968] GLR 804 of an agent of Solo? He himself provided the answer because he said: “I knew that as a civil servant, I could not be the agent of another.”

That is another way of saying that he could not honestly carry on this business. Yet that is what he said he did. It was he who wrote to the government that the price of each machine was £G50 when he well knew that the price asked by Solo was £G30 (exhibit A13). It was he who wrote to Solo to invoice the machine to the government for £G50 (exhibit A12). It was he who wrote to Solo warning it not to sell directly to the government otherwise no order would be placed (exhibit A12). When the government thus deceived, paid £G50 for each machine, there was a surplus of £G240,000. The third appellant said: “When the order for 12,000 sprayers was placed, I became entitled to £G240,000.” He said he performed no services to the Solo firm to earn this fortune and at that date, i.e. January 1960, was in the full employment of the government. Yet this is what is claimed to be a genuine one-man business and incurs no penalty save a fine under section 9 of the Registration of Business Names Ordinance, Cap. 177 (1951 Rev.). The so-called one-man business came into existence on the date the first appellant interviewed Emmerich and its letter-head provides the following particulars:

“Suppliers of all types of farm and fishing machinery Telephone No. 28 Bankers: Bank of West Africa, Tafo Ghana Commercial Bank, Accra P.O. Box 22 Tafo, Akim Abuakwa.”

The third appellant admitted that every one of these particulars was false. He was no supplier of farm machinery. He had no telephone nor box number at Tafo and kept no account at either of the banks shown in the letter-head. Indeed he did not reside at Tafo. He was in the full employment of the government as survey officer and was stationed at Bunso. The one-man business, if it existed, can only have existed in his imagination. What was given as external evidence of it, was all admitted to be false. Yet these letter-heads were all used by the third appellant in his correspondence both with the government and the Solo firm. And the third appellant took care not to sign himself by the name by which he was officially known but by what he claimed to be his native name, that is, Kwesi Kota. When asked why he did this, his reply was: “I signed the letters in the name of Kwesi Kota because I did not want the Minister, the permanent secretary and the top brass to know that it was I

[p.914] of [1968] GLR 804

(James Quartey) who signed it. If it had been known I would probably have been dismissed.”

Is this not a confession that he had adopted a course of action by which the government as well as Solo might be deceived? If it is remembered that it was this same person who quoted the price of the machine to the government as £G50, which sum the government paid, how can the government’s complaint that it had been defrauded be validly answered? And there is evidence on which the judge found that the third appellant acted in conspiracy with the first and second appellants.

To give legal form to this clearly conspiratorial association, a partnership deed was entered into in March 1960 between the second and the third appellants and a woman who was clearly a nominee of the first appellant. It is this “firm” that became the undeserved beneficiary of the £G240,000. A similar process was adopted on a second order and this so-called firm became entitled to £G300,000. Yet the “firm” did not regard the sums as the “firm’s” money. At their own request, only a trickle of it was remitted to the firm qua firm and the money was treated by members of the firm as their own personal cash. It was not passed through the account books of the firm.

I think the evidence is compulsive of one and only one conclusion, namely, the F.M.S. was a fraudulent organisation and indeed was only a screen behind which the appellants inflated the price of the spraying machines to the government and split the difference. The same goes for its successor—the Gamco Ltd. In the English cases of R. v. Cooper (1877) 2 Q.B.D. 510, C.C.R; R. v. King [1897] 1 Q.B. 214, C.C.R. and R. v. Rhodes [1899] 1 Q.B. 77, C.C.R. where the sole proprietors of sham businesses obtained goods by falsely pretending to be carrying on honest businesses, they were held rightly convicted of obtaining goods by false pretences. There is no reason why in this country, persons who have been found on compelling evidence to have carried on sham business whose object was to defraud, should be given sanctuary on the basis of legalistic argument of hardly any juristic value.

As was pointed out earlier, there was a serious cleavage between Solo and the second appellant caused by the resignation of Solo’s chief engineer by name Gaede. It was this rift that culminated in the report to the government in which the facts deposed to came to light. At the date Emmerich gave evidence, there was certainly no love lost between him and the second appellant and both exchanged letters which bear evidence that they must have ceased to be friends. Mr. Swaniker has drawn attention to the fact and stressed that Emmerich had a motive to give false evidence against Djaba. That is

[p.915] of [1968] GLR 804 a perfectly sound point. But the learned trial judge was aware of the background of this case and saw both Emmerich and Djaba testify before him. If there is a conflict of testimony between them, who decides it?—the judge who saw them both or this court, which merely has a transcript of the evidence? Unless the law is other than I understand it to be, it must be the tribunal of fact which this court is not. I think therefore that it would be wrong to underline the admitted rift between Emmerich and Djaba in this court for the purpose of differing from the judge on the facts.

In any event it seems plain that the feud between Emmerich and Djaba is of no significance in this case because Emmerich said nothing of importance against Djaba. What the second appellant was concerned to contest was the inference which the prosecution invited the court to draw that the second appellant was a party to a conspiracy to commit corruption in December 1959 and that the offences of fraud which were subsequently committed on diverse dates subsequent to it, followed upon that. Emmerich had not met the second appellant before 24 March 1960, and said nothing incriminatory of him. He did say that he met the second appellant on 24 March 1960, and he in company with the third appellant ran him to the first appellant’s home at Borada. That is admitted by the second appellant. At that date, on the second appellant’s own admission, he had become partner in the F.M.S. The evidence which connects him with the conspiracy before March 1960 was given by a host of witnesses but not Emmerich.

The one solid piece of evidence on which counsel for the second appellant capitalised and which provided a prop for an argument that Emmerich perjured himself in an attempt to ruin Djaba, is evidence given by Emmerich that the second appellant visited the Solo factory between 20 September-31 October, 1960, and advised them to submit a tender for the supply of spraying machines to the Ghana Supply Commission. He said acting on that advice, Djaba and Gaede jointly drafted a letter (exhibit A26) dated 23 September 1960 which was forwarded to the commission. In that letter, the machine was offered to government at £G50 and it stated in the letter that the price would have been £G52 10s. but for the intercession of their local agents.

Mr. Emmerich said those prices were inserted by Djaba as their firm was interested only in £G30. In cross-examination, it turned out that Emmerich was not available in the factory on 23 September and had since 17 September left on holidays to Spain. When his attention was drawn to this fact, he said it was his brother and partner Hans who informed him on his return from Spain that the

[p.916] of [1968] GLR 804 letter of 23 September 1960 was drafted jointly by the second appellant and Gaede.

The position therefore was that either he made a genuine mistake or told deliberate falsehood about this matter. But it is difficult to think of any good reason why he would invent this story deliberately. The fact that only £G30 was required by the Solo firm has been admitted. The government had already previously paid £G50 per machine at the request of the F.M.S. When Djaba formed the Gamco, the Solo had reduced the price of their machine to £G27 10s. Yet Gamco also quoted £G50 to the government as the selling price. It was in fact the F.M.S. which benefited from the £G20 difference and on his own showing, Djaba had by September 1960 become a partner of the F.M.S. and was taking active part in its management.

Yet it was suggested to Emmerich that he gave this evidence deliberately to ruin Djaba. Emmerich’s reply to this was: “It is not true I am giving evidence with a view to ruining Djaba and Gaede.” It is difficult to see how Djaba would be ruined by evidence that he suggested a price which his firm did not dispute it had previously quoted to the government. The learned judge accepted Emmerich as a witness of truth and must have concluded that he made a bona fide mistake. That strikes one as a fair conclusion on the evidence and on an examination of the probabilities. If that be so, can there be any just basis for pronouncing in this court that Emmerich “would not scruple to resort to any means whatsoever to ruin Djaba by reason of his feud with Djaba?” It seems to me hardly right that this court should think fit to ascribe motive when the trial court found no reason for it.

Counsel for the first and third appellants joined in the submission that the admitted rift between Emmerich and Djaba provided the motive why Emmerich invented falsehoods in an endeavour to ruin Djaba. But the only really incriminating evidence which Emmerich gave was against the first and the third appellants. Yet it is not suggested that he had any motive to frame up either the first or the third appellant. Is this not an admission, albeit a silent one, that Emmerich’s evidence against them must be true, and was rightly accepted by the trial judge?

It would seem that some time after Solo put the government in possession of the facts of this case, negotiations were set on foot to get that firm to build a factory in Ghana, to manufacture spraying machines. These negotiations crystallised into a contract and while this case was in progress in the court below, Emmerich on behalf of Solo, signed a contract with the government to build a factory in Ghana. Mr. Swaniker draws attention to this fact as an inducement to

[p.917] of [1968] GLR 804

Emmerich to tell falsehood against Djaba. I think this a fair comment and a legitimate complaint.

It must be frankly admitted that the government acted precipitately and perhaps with little discretion in signing a contract at that particular time. But what possible bearing can this have in determining the truth or falsity of the facts to which Emmerich testified. Emmerich said the substance of the report is what he eventually related in evidence. That clearly preceded the initiation of these proceedings and it is difficult to see how a contract which was signed subsequent to the report can induce falsehood. In my opinion, this wholly extraneous matter ought not to be allowed to obfuscate the facts of this case.

The only other ground of substance urged on behalf of the second appellant, is that on a true construction of paragraph 14 (2) of N.L.C.D. 84, the court has no power to substitute the offence of fraud by false pretences for the one of stealing found by the judge. It is said the power can only be exercised where a person is charged with a particular offence and the trial judge could convict of an alternative offence, but the judge failed to convict of the alternative offence in circumstances which show that he was in error in so failing. It is said that in any event, it does not appear from the judgment that the learned trial judge was satisfied of facts sufficient to establish the offence of fraud by false pretences.

Paragraph 14 (2) of the Courts Decree, 1966 (N.L.C.D. 84), reads as follows:

“14. (2) Where an appellant has been convicted of an offence and the Judge who tried him or the jury, as the case may be, could on the indictment or charge have found him guilty of some other offence, and on the finding of such Judge or jury it appears to the Court of Appeal that the Judge or jury must have been satisfied of facts which proved him guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by such Judge or jury a verdict of guilty of that other offence, and pass such sentence in substitution [for] the sentence passed at the trial as may be warranted in law for that other offence.”

This paragraph merely re-enacts section 11 (2) of the Court of Appeal Ordinance, 1957 (No. 35 of 1957). That Ordinance also reproduces section 5 (2) of the Criminal Appeal Act, 1907 (7 Edw. 7, c. 23).

The words used by this subparagraph do not seem to give rise to any problem of interpretation and the restrictive interpretation which counsel for the second appellant sought to put on them cannot be

[p.918] of [1968] GLR 804 justified. It is not required by any known canon of statutory interpretation. As interpreted by counsel, the section cannot be invoked if instead of convicting of the offence charged which the evidence warrants, the judge in error convicts of the alternative offence.

The section interpreted simply in relation to this case is this: X. Y. and Z. have been found guilty of an offence. In this case X. Y. and Z. have been found guilty of stealing. It does not matter whether or not they were charged with stealing. The judge who tried them could on the indictment, have found them guilty of some other offence. In this case, X. Y. and Z. could have been found guilty of the offence of fraud by false pretences. If this court is of opinion that the trial judge must have been satisfied of facts, which prove that X. Y. and Z. were guilty of the offence of fraud by false pretences, then this court instead of allowing the appeal simpliciter, is entitled to substitute for stealing, a conviction of fraud by false pretences.

This particular provision having derived from English law has been interpreted in a number of English cases, notable among them being R. v. Taylor [1911] 1 K.B. 674, C.C.A.; R. v. Melvin (1953) 37 Cr.App.R. 1, C.C.A.; R. v. Smith (1924) 17 Cr.App.R. 133, C.C.A.; R. v. Parks (1914) 10 Cr.App.R. 50, C.C.A; R. v. Hayward (1949) 33 Cr.App.R. 1, C.C.A. and numerous others. None of these cases put forward an interpretation at variance with the one suggested. Indeed in Hayward’s case, a situation very akin to the problem presented in this case arose. There, the appellant was charged with larceny of and in the alternative with receiving, certain property. The case throughout was treated as one of larceny and the summing-up contained no direction on receiving. The jury however, found the appellant not guilty of larceny but guilty of receiving. Although the conviction for receiving was quashed as the evidence did not justify that, the court was of opinion that the proper offence was larceny and would have substituted this offence for receiving had the Crown invited it to do so under section 5 (2) of the Criminal Appeal Act, 1907 (7 Edw. 7, c. 23). In this case, the prosecution expressly invited us to exercise that power.

With regard to the provision that the judge must have been satisfied of facts which prove the appellant guilty of some other offence, it seems this can be more easily determined in this country than in England where criminal trials are invariably held with a jury who are not obliged to state the facts found by them. This is always left to be inferred from their verdict. But most cases are tried by assessors in this country and the judge is under a statutory obligation to write a judgment in which he has to set out the facts found by him. It would therefore be easier to determine what offence, if any, those facts establish. In this particular case, the learned trial

[p.919] of [1968] GLR 804 judge, after a very comprehensive review of the evidence, felt himself persuaded by the prosecution’s case and concluded in these words: “In the result, I accept the case for the prosecution.” The question which then falls for determination is: Do the facts produced by the prosecution and accepted by the court constitute the offence of fraud by false pretences? In so far as is relevant to this particular point, the judge found that the appellants who had constituted themselves into a firm “fraudulently obtained the consent of the government to pay to the said company, the sum of £G50 each for 27,000 machines and £G48 for each of 25,000 machines ordered by the C.M.B. and the Ghana Supply Commission instead of £G30 and £G27 10s. and received the difference of £G1,052,500 for themselves.” Coupled with other facts which the judge accepted, the offence thereby committed was fraud by false pretences. That indeed was the basis on which counsel for the first appellant and counsel for the second appellant to a point, argued. It follows therefore that the judge found facts which entitles this court to substitute an alternative verdict of fraud by false pretences and counsel’s contrary argument cannot be sustained.

It is next submitted, again on behalf of the second appellant that, as the trial judge found that the difference in the price of each machine paid to Solo remained the property of the Ghana Government and was dishonestly appropriated immediately upon the appellant making use of it, he was in error in not holding the substantive counts of fraud by false pretences to be bad as charging general deficiency. The answer to that submission is, that the learned judge’s view that the difference in the price of each machine paid to Solo remained the property of the Ghana Government and was therefore capable of theft, was one of the processes by which he concluded that the offences committed were theft and not fraud by false pretences. Nobody now supports that conclusion. And if the conviction for stealing goes, that reasoning goes with it. In any event, unlike fraud by false pretences under the English Larceny Act, the offence of fraud by false pretences is committed under our Code, if the accused by false representation obtained the consent of the victim to part with the property. That is what the prosecution allege in this case and that is what the facts found by the judge establish. There is nothing in this ground of appeal.

It is submitted finally on behalf of all the appellants that the judgment and summing-up contain so many errors and misdirections that their cumulative effect must result in a failure of justice necessitating the quashing of the convictions on all the counts. Before considering what misdirections there are and what effect they could

[p.920] of [1968] GLR 804 reasonably have made on the judge and assessors, it is necessary to look briefly at the law on this matter. Generally speaking, the position seems to be that misdirection per se, is not fatal to a conviction unless it can be said to occasion a substantial miscarriage of justice. And in certain cases, the court may apply the proviso and dismiss the appeal if they are satisfied that on the whole of the facts and with a correct direction, the only proper verdict would have been one of guilty. This position is exemplified in such English decisions as R. v. Hardy (1944) 29 Cr.App.R. 182, C.C.A.; Stirland v. Director of Public Prosecutions [1944] A.C. 315; H.L.; R. v. Oster-Ritter (1948) 32 Cr.App.R. 191, C.C.A. and R. v. Whybrow (1951) 35 Cr.App.R. 141, C.C.A. With regard to irregularity as distinct from misdirection, the case of R. v. Furlong (1950) 34 Cr.App.R. 79, C.C.A. decides that not every irregularity is a ground for quashing a conviction. The court must consider whether or not, it is an irregularity which goes to the root of the case.

The case of R. v. Jones (1962) 46 Cr.App.R. 68, C.C.A. relied on by counsel for the first appellant, decides that the fact that there has been more than one instance of misdirection in a summing-up affords a strong reason why the proviso to section 4 (1) of the Criminal Appeal Act, 1907, should not be applied but is not conclusive. Each case falls to be decided on its own facts and much will depend on the nature of the misdirection. The spirit of these decisions is reflected in section 406 (1) of the Criminal Procedure Code, 1960 which enacts, in so far as material, as follows:

“. . . no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal on account—. . .

(c) of any misdirection in any charge to a jury; unless such error, omission, irregularity or misdirection has in fact occasioned a substantial miscarriage of justice.”

It is now necessary to consider the misdirections and errors about which the appellants complained. They are mostly set out in the second appellant’s grounds of appeal and a few were listed by counsel for the first appellant. They are:

(1) That the judge erred in convicting the appellants of stealing.

(2) That the judge erred in holding that no contract of an agency was ever concluded between F.M.S. and Solo because at the time of the alleged agreement, the F.M.S. did not exist and was incapable of agreement.

(3) That the judge erred in holding that if there was no agency agreement between F.M.S. and Solo, the £G20 paid on the machines was received by Solo to the use of the government.

[p.921] of [1968] GLR 804

(4) The judge erred in convicting the appellants of stealing when he found them guilty of defrauding by false pretences.

(5) That the judge misdirected himself and the assessors on the true ratio of Reading v.

Attorney-General [1951] 1 All E.R. 617, H.L.

(6) That the judge misdirected himself and the assessors in holding that if the third appellant knew of Emmerich’s mistake that the F.M.S. was the third appellant himself and Mr. Emmerich did not know, then there was no consensus ad idem and money obtained in consequence of any contract so procured belonged to the government.

To these the first appellant’s counsel adds the following:

(1) That the judge misdirected himself in holding that if what the appellants did had been done by U.A.C., there would have been no offence and implying thereby that a civil offence assumed the character of a criminal offence because the complainant happened to be a government.

(2) That the judge misdirected himself in not considering the counts separately.

(3) That the judge misconceived the case as one of stealing.

(4) That the judge erroneously referred to Ocansey’s notes as minutes and that the defence was not properly considered.

It seems fairly obvious that most of the matters complained against were a process in the reasoning by which the learned trial judge arrived at the conclusion that the appellants were guilty of stealing. On the facts which he found proved, if he had directed himself correctly, it is impossible to say that the judge would have failed to convict the appellants of the offence of fraud by false pretences. By common consent, his conclusion that the facts proved amount to stealing, was wrong. The case which the prosecution presented on fraud by false pretences stood unscathed. Apart from the errors by which the judge arrived at the conclusion of stealing, it is impossible to see what other errors there are, which are so serious, that it can be said with the slightest justification that they have not only occasioned a miscarriage of justice but in the words of the Act, “a substantial miscarriage of justice.”

This is, by all accounts, a long trial which would in many respects constitute an endurance test on any judge. It would be more than human to expect that either the summing-up or the judgment both of which run into 105 pages, should be entirely free from any errors. In long cases such as this, it is natural that the summing-up might contain expressions which can be improved upon but this is hardly a ground of appeal. “Superficial inaccuracies in long cases where the substantial matters on which the jury is relying are put t

[p.922] of [1968] GLR 804 them cannot amount to misdirection.” As Lord Alverstone C.J. said in R. v. Stoddart (1909) 2 Cr.App.R. 217 at p. 246, C.C.A.:

“Every summing-up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively. This Court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more conveniently expressed, or whether other topics which might have been dealt with on other occasions should be introduced.”

Such errors as the judge here made, are those that one would expect in a long trial; they are not serious or at any rate not so serious as to justify a reversal of the findings of fact which the court made in an almost iron-cast case which the prosecution presented. I think this ground of appeal should not succeed.

In my opinion, this is eminently a case in which the court should invoke the powers conferred on it by paragraph 14 (2) of the Courts Decree, 1966, and substitute for the convictions for stealing on counts (2), (4) and (8) convictions for defrauding by false pretences.

All the appellants also appeal against sentences but hardly any argument was addressed to us on this by counsel. It may well be that in view of the fiduciary position that the first and the third appellants occupied in relation to the government and the large amount of money lost to the public chest, counsel did not, in the end feel that they could, with justice quarrel with the sentences.

Although the second appellant seemed to have acquired for himself notoriety in this case, he is, from the standpoint of culpability, the “small brother” of the offences. At the inception of the crime, he was employed in the Brigade, had no public duties in connection with the purchase of spraying machines and was accordingly in no position to have prevented the commission of the crime. He seems to have been brought in because of his close association with the first appellant whom he described as his “master.” A letter of 28 January 1960, which the third appellant wrote to Solo to inform them of his appointment, also shows that the second appellant was brought into the “fold” because he was “young and militant” and had high “party” connections.

In my opinion, the villain of this crime, is the first appellant—the Minister to whom enormous powers were entrusted and which he exploited to his personal advantage. But for his co-operation, this mammoth fraud would not have succeeded and his offences deserve to be more seriously viewed than the rest.

[p.923] of [1968] GLR 804

Next to him in degree of culpability, is the third appellant. On his own evidence and for purely personal gain, he put himself in a position in which his public duty conflicted with his private interest and predictably enough, it is his duty that he sacrificed. It was he who put on the initial garb of deception which yielded him and his associates huge financial dividends. It must however be said in his favour, that either out of compunction or a clash of personality between himself and Djaba, he parted company with his “business” companions but his own reason, according to his statement, is “the whole set-up had become a mere money distributing centre.” He therefore did not share in the £G512,500 which accrued to Gamco on the third order.

It is difficult to resist the temptation of visiting on the appellants, the maximum penalty which our law prescribes in this matter. The learned trial judge understandably enough, imposed sentences as severe as his powers enabled him to. But I think, with respect, he misjudged the degree of culpability when he imposed the severest sentence of 24 years on Djaba. In so far as it is possible to differentiate between the different degrees of guilt, he is the least blameworthy of the three. The first appellant ought to suffer the severest penalty.

It is however possible in the detached and less emotional atmosphere of an appeal court to temper justice with mercy and bear in mind that all the appellants have hitherto been of good character and that this is the first time that they have gone wrong. In view of this, I would reduce the sentences on counts (2), (4) and (8) as follows: For the first appellant eighteen years’ imprisonment with hard labour. For the second appellant fifteen years’ imprisonment with hard labour. For the third appellant sixteen years’ imprisonment with hard labour substituting for the convictions for stealing, one of fraud by false pretences. I would sustain the conviction for conspiracy to commit corruption.

I would also make an order under section 146 of the Criminal Procedure Code, 1960, that the appellants restore to the government the sum of £G1,052,500 or so much of it as is now available to or can be “wrenched” out of them. But my conclusion is not concurred in by a majority of my brothers and in terms of result, my humble views would remain no more than an ineffectual expression of opinion. But I draw comfort from the fact that in a case such as this, our law does not condemn me to silence or constrain me to join in a chorus of assent to a judgment to whose basic reasoning I cannot, in all conscience, subscribe.

[p.924] of [1968] GLR 804

JUDGMENT OF LASSEY J.A.

I have had the advantage of reading the judgment just read and I find myself entirely in agreement with the conclusion reached by the majority of the members of the court that the false pretence as charged in the counts in the indictment alleging defrauding by false pretence by the appellants has not been made out, though I am unable to subscribe to the correctness of the views expressed obiter on some of the points of law raised.

The facts on which the prosecution relied to show that fraud by false pretence had been committed were those contained in the evidence of Heinz Emmerich, the principal witness for the prosecution. In so far as his evidence tends to show the methods suggested by the appellants whereby the fraud was to be committed, the details of some of the answers given to questions put to him as to his knowledge of the design of the appellants to enrich themselves at the expense of the Ghana Government, and the contents of the volume of correspondence on the matter between the appellants on the one hand and Heinz Emmerich on the other, show clearly that there was no doubt in Heinz Emmerich’s own mind that the whole transaction was the kind indulged in by businessmen of Heinz Emmerich type in the commercial world and that such practice is readily agreed to by such businessmen where the prospect of a lucrative market for doing business presents itself like it did in the present case.

The fraud alleged to have been practised by the appellants in these proceedings is one to which I am convinced by the evidence Heinz Emmerich gave his consent and wholehearted support. However immoral the appellants’ conduct may have been in using their positions in the government service to enrich themselves with so much public funds is a different matter. But certainly the fraud alleged to be revealed by the facts is not to my mind criminal fraud.

With respect to count (1) which charged all the appellants with conspiracy to commit the crime of corruption by a public officer, I am satisfied that the appellants are guilty. The essential ingredients of this offence which the prosecution had to prove by means of evidence are entirely different from those relating to fraud by false pretence charged. The essential distinguishing characteristics of this offence being allowing one’s conduct to be influenced by prospect of some reward or gain and the fact of being at the relevant time a public officer. There is every reason to believe the evidence that at the material period all three appellants were public officers within the definition of public officer, each performing different public assignments.

The bulk of the evidence led leaves no doubt whatsoever in my mind that all three appellants together met Heinz Emmerich in

[p.925] of [1968] GLR 804

Borada for the sole purpose of discussing with him the means whereby the excess profit could reach them. The actual discussion relating to this matter took place between Heinz Emmerich and the first appellant but the details as to how the money was to be remitted back and shared were worked out with the third appellant. The money, the subject-matter of the charge, was remitted back to Ghana in the manner arranged previously at this meeting at Borada and subsequently in Accra with Heinz Emmerich, and the evidence satisfies me that all three appellants received portions of the total sum arranged to be remitted in this way.

It is utterly ridiculous to suggest in these proceedings that Heinz Emmerich visited Borada as part of a general plan to tour cocoa producing areas only. The visit was purposely arranged as part of a general scheme to obtain some material gain by all the appellants, and the opportunity was taken to discuss with Heinz Emmerich how this money could be remitted.

This discussion coupled with the prospect of receiving the money by the appellants, all of whom at the time were public officers, constitutes the offence of corruption by public officer as distinct from fraud by false pretences.

In the result the appeals of the three appellants on the fraud and the conspiracy charges are allowed, the convictions quashed and sentences imposed thereon are set aside. The conviction, and sentence imposed on each appellant on count (1) must stand and I would dismiss the appeal of each appellant in so far as count (1) in the indictment is concerned.

DECISION

Appeal allowed.

Appellants acquitted and discharged.

D. R. K. S.