ASIEDU v. THE REPUBLIC [1968] GLR 1

DIVISION: HIGH COURT, ACCRA

DATE: 8 JANUARY 1968

BEFORE: AMISSAH J.A.

NATURE OF PROCEEDINGS

APPEAL against conviction and sentence for forgery and defrauding by false pretences. The facts are sufficiently set out in the judgment of Amissah J.A. sitting as an additional judge of the High Court.

COUNSEL

P. A. Adjetey for the appellant.

Mrs. C. Campbell for the respondent.

JUDGMENT OF AMISSAH J.A.

The appellant was charged with forgery of a document and stealing. The case of the prosecution was that on the morning of the material day the manager of U.T.C Stores received a telephone call from someone who described himself as Brigadier Ocran who said that he needed some suits because his house had been burgled. The caller said he and Colonel Afrifa had been to the shop earlier and had selected some suits which he, however, left presumably for collection later, as he did not want to carry the parcel away. Now he had found that he needed the suits that very evening because there was a cocktail party at the Castle. He would therefore send his brother down to collect them and would let the manager have the cheque for them within the week. The manager asked the caller to give his brother a note when he came to collect the suits. Later on that afternoon the appellant appeared at the store with the note purporting to be signed by Brigadier Ocran and identifying him as the person sent to collect the parcel. It was a Wednesday afternoon and the store was closed for normal business but the appellant prevailed upon the manager to allow him to collect the suits; he knew their size and where exactly to find them. The manager then asked one of his subordinates to prepare a waybill for the appellant to sign. To this subordinate, the appellant gave his name as Frempong. I need hardly state that both Brigadier (now Major-General) Ocran and Colonel (now Brigadier) Afrifa are members of the National Liberation Council, the government of the day. At a party at the Castle that evening, the manager ran into Colonel Afrifa who denied having been to the shop. His suspicions being aroused, the manager phoned Brigadier Ocran the next morning. And he denied having any part in the transaction. A report was made immediately to the police. In the early afternoon of the day on which the report was made, the subordinate who prepared the waybill saw the appellant sitting in a car outside another shop and asked him about the suits. The appellant said he was coming to the shop to settle the account. He did not. The police searched his house on the [p.4] of [1968] GLR 1 third day after the incident and discovered one of the suits taken and two of the jackets of the others in his room. The trousers were with a tailor for alteration; from him they were also collected. From a suit which the appellant alleged he was wearing at the time that he collected the three from U.T.C. he pulled out ¢380.00 and asked to pay the money through the police. But they refused.

The appellant did not dispute the main body of the case for the prosecution. But there were one or two points of departure. And on some of these points he told conflicting stories. One such point was that in the course of his evidence he said that upon collection of the suits he presented the money for them to the general manager who told him that the cashiers had closed, and therefore presumably declined to accept it himself at the time. A few moments later the appellant said that he used Brigadier Ocran’s name in order to obtain credit facilities; he wanted some few days within which to pay because he did not have the money on him at the time. He was expecting to have some with which to pay. On this appeal this latter position seems to have been adopted by his counsel as the basis for his arguments.

The trial judge convicted the accused of forgery and of defrauding by false pretences, a course he was entitled to adopt in view of section 157 of the Criminal Procedure Code, 1960 (Act 30). The main ground argued on the appeal from that decision was that the conviction was unreasonable and could not be supported in law having regard to the evidence adduced at the trial.

The offence of defrauding by false pretences is defined by section 132 of the Criminal Code, 1960 (Act 29), to include the obtaining of the consent of another to part with or transfer the ownership of a thing not only by a false pretence but also by personation. The learned trial judge found that the appellant had impersonated Brigadier Ocran. And it was on that basis that he found that the appellant was guilty of defrauding by false pretences. Mr. Adjetey for the appellant has submitted that this finding was not supported by the evidence as there was no evidence that the appellant had at any time said that he was Brigadier Ocran. The only person who said that he was the brigadier was the voice on the telephone. And that voice said he was sending his brother to collect the suits. Thus the person who came to collect the suits could not have been anybody representing himself as Brigadier Ocran. Even if this point is conceded, it does not appear to me to dispose of the matter. The conviction of the appellant was for defrauding by false pretences and this court, before it decides to interfere with that conviction, must be satisfied that there was no evidence on which the appellant could have been convicted of fraud by false pretences. There is no doubt that there [p.5] of [1968] GLR 1 was a false representation: the series of falsehoods as regards the person who required the suit and the person collecting the suits and the circumstances in which they were required would constitute this. Learned counsel has therefore urged before this court that assuming that a representation which was false had been made, it must be shown that it induced the complainant to part with the property. But that there was nothing on the record to show that the suits were sold because the appellant represented that he had been sent by Brigadier Ocran. On the contrary the manager of the store had said that his primary concern was to get paid. As to this, I must say that for a seller of goods to say that his primary concern is to get paid is not necessarily inconsistent with the fact that in certain stated circumstances his desire is that a particular person should have his goods. This must be so, especially in cases where the seller comes to the conclusion upon due consideration that that particular person is the one upon whom he could count to pay him, when, for example, payment is not immediate. It is for this reason that I find the case of R. v. Clucas (1949) 33 Cr.App.R. 136, C.A. distinguishable from the present. In the Clucas case two men who induced bookmakers to bet with them by falsely representing that they were commission agents acting on behalf of a number of workmen who were placing small bets on horses, were convicted of conspiring to obtain, attempting to obtain and obtaining money from bookmakers by false pretences. The representation was false because the men were in fact making bets in considerable sums of money on their own account. Some of these bets proved to be winning bets and in respect of these they received money from the bookmakers. On appeal to the English Court of Criminal Appeal, it was held, as regards the conviction for obtaining money by false pretences, that the effective cause of the payment by the bookmaker was not the false representation as to identity and capacity, but the fact that the horse backed won. That conviction was therefore quashed, although the conviction on the conspiracy charge was upheld on the ground that there was abundant evidence of the conspiracy. Limiting the discussion to the conviction on the substantive charge which was quashed, the analogy was drawn that just as in the Clucas case the court had held that the effective inducement for the payment was the winning of a race by the horse backed so in this case the identity of the buyer was not material to the complainants. A seller delivers his goods to a buyer not because the buyer is any particular person but because he is going to pay for them. So that when the question is asked, what was the effective cause for the seller parting with his goods? The answer is not, because a member of the National Liberation Council wanted them, [p.6] of [1968] GLR 1 but that, because the buyer, whoever he be, was prepared to pay the seller’s price. I would have acceded to this argument if the appellant had appeared at the store during normal shopping hours and offered cash for the purchase of the suits. For in such circumstances the identity of the buyer would not have made any difference to the seller’s decision to part with his goods. If he had then represented himself as Brigadier Ocran, he could not have expected, nor would the store have given him, anything more (apart from the goods being bought for cash) than the courtesy accorded to persons of importance. But that was not what happened. Even if the appellant had appeared at the normal shopping hours and had offered to pay by cheque, his representation of himself as some well-known and substantial person would influence to a considerable extent, the seller’s decision to part with his property. The position is certainly worse if the buyer goes in and offers no immediate payment except some vague promise to pay at some future date. It must then make the world of a difference to a seller who the person to whom he is giving his goods is and what his prospects for payment are. In short the identity and capacity of the buyer then becomes of primary importance. And on this the evidence of the manager was quite unambiguous. He said if the appellant had not mentioned Brigadier Ocran or brought the note and if he had not received the earlier telephone call, the appellant would not have got the suits. I therefore find it difficult to appreciate the argument that there was nothing on record to show that the suits were sold because the appellant represented that he had been sent by Brigadier Ocran. My attention was drawn in the course of the argument to a passage in the evidence of the manager where he expressed doubts as to whether he would have exercised his discretion in favour of the appellant. Learned counsel submitted on this that where there is such a doubt in a criminal case it ought to be resolved in favour of the accused. The submission was linked up with that on the identity of the appellant, that is, whether or not the manager would have given the goods to the appellant if he had known his real identity. I think the point being made by the manager there was that he felt doubtful if he would have made an exception of the rule which has been rigidly applied for the sixteen years that he had been in the store that there should be no sales after hours. But even if this doubt is resolved in favour of the appellant, there is the separate question whether the seller would have parted with the goods on a mere promise to pay if the appellant was known not to have been sent by Brigadier Ocran. The effective answer to this came from the manager when he said that if the appellant had not given him the note he would not have parted with the clothes. The doubt expressed [p.7] of [1968] GLR 1 therefore was not such as would turn the scales as to guilt in the appellant’s favour if it were resolved in the manner suggested.

The only point worth commenting upon now is on the intent to defraud. It was taken in more detail in respect of the conviction for forgery. But I think it was of some relevance here as well. An intent to defraud being an essential element of the offence of defrauding by false pretences whether the method of fraud adopted was personation or a false representation. It was said that the prosecution was not able to show that the appellant could not pay or had no ability to pay for the suits. When he was arrested on the third day after the incident, he had more than enough money to pay for the suits, and indeed did offer to pay for them then. I do not think that the appellant’s conduct when arrested and when he knew he faced a possible prosecution should be the important consideration in determining his intention at the time he obtained the suits by his false representation. The sum total of facts must be put in its proper setting. That he had enough money to pay for the suits when he was arrested is no conclusive evidence that he had no intention to defraud. He could very well have had the money and have had the guilty intent. There is nothing except the appellant’s own word to show that at the time he took the suits he did not have the money. And even on this point his word is not consistent. What is definitely known is that he did not pay for the suits. He represented himself as sent by Brigadier Ocran when he had not. He went to the extent of forging the brigadier’s signature. When a waybill was to be prepared on the collection of the suits it was made in the name of Frempong. According to the stores official who made out the waybill this was the name which the appellant gave as his. The appellant is not called Frempong. At his trial he explained that he gave this name because it was the name of his driver whom he proposed to send to pay the money. Apart from the appellant’s own word there was nothing more to substantiate the very existence of this driver. The trial judge thought the story untrue and improbable. Having regard to all the circumstances of this case I cannot say I am surprised that he took that view. At the time that the appellant walked out of the complainants’ shop carrying the three suits which they had given to a man they believed to be Brigadier Ocran’s brother to be paid for, according to a voice they believed to be the brigadier’s, by him, there was not a single thing the complainants knew about the appellant which was true. Why did the appellant undertake this elaborate course of deception? He had money to pay for more than the suits he collected only two days after. Why did he not wait? Why not collect one but three suits at a time? Why the urgency? These are all relevant questions

[p.8] of [1968] GLR 1 in determining his intent. I am made to understand that the appellant was the type of person who would require three suits in a day and he may have needed all three suits on that fateful day. But the facts refute this because at the time of his arrest some two days after the event two of the suits were not in the position to be worn, the trousers still being with the tailor for alteration.

The case of R. v. Hammerson (1914) 10 Cr.App.R. 121, C.C.A. is authority for the proposition that when a valuable thing is obtained by false pretences, prima facie there is an intent to defraud. The presumption as to the intent may be rebutted. But I do not think that it is rebutted by the fact that when the accused was arrested he was sufficiently well off to pay for the goods. The appellant had so arranged things that after he had received the goods everything that the sellers knew about him to help them trace him to recover their money was false. Barring seeing him in the flesh again, which luckily happened in this case, there was nothing on which the sellers could rely to discover him later. I can find nothing wrong therefore with his conviction for defrauding by false pretences.

Taking the view that I do, it is not necessary for me to express any views on the case of Commissioner of Police v. Bonney [1959] G.L.R. 237 cited to me except to say that it appears to me an unsatisfactory decision which I hope the Court of Appeal will have an early opportunity to consider.

The only substantial point made in connection with the conviction for forgery was that there was no mens rea. But having regard to what I have already said in relation to the conviction for defrauding by false pretences, I think there was ample evidence from which the guilty intention could be inferred.

As to sentence, I believe the learned judge intended what he imposed to be a deterrent. I am not persuaded to the view that it was manifestly excessive. I therefore propose not to interfere with it.

The appeal on both the conviction and sentence is therefore dismissed.

DECISION

Appeal against conviction and sentence dismissed.

F. S. T.