BLAY v. THE REPUBLIC [1968] GLR 1040

DIVISION: HIGH COURT, ACCRA

DATE: 21 NOVEMBER 1968

BEFORE: ARCHER J.

NATURE OF PROCEEDINGS

APPEAL against conviction and sentence on two counts of conspiracy and defrauding by false pretences. The facts are sufficiently set out in the judgment.

COUNSEL

Ofosu-Asante for the appellant.

Tawiah for the respondent.

JUDGMENT OF ARCHER J.

The appellant was convicted on two counts of: (a) conspiracy and (b) defrauding by false pretences, and was sentenced to three years’ imprisonment with hard labour on each count.

The particulars of the first count of conspiracy are that during the month of May 1966 at Accra, the appellant did agree together with a person not traced with a common purpose to commit a crime by defrauding by false pretences. The only evidence relied on by the prosecution was that the appellant took the complainant about midnight to the Accra-Winneba road and the Teshie beach on about three occasions. On two of such occasions the appellant spoke and a voice replied to the hearing of the complainant. On these occasions the complainant had been taken there for the [p.1043] of [1968] GLR 1040 invocation of a spirit which could multiply the sum of £G2,000 offered by the complainant. It was not proved by the prosecution that the voice of the alleged spirit was that of a human being. Moreover the learned trial circuit judge could only observe in his judgment that the voice was human-like. Conspiracy involves agreement between two or more human beings and not between one human being and an unknown doubtful voice at midnight. The learned state attorney conceded at the beginning of his arguments that the case of conspiracy was weak and that he could not support the conviction. Accordingly the appellant’s conviction on the first count of conspiracy is quashed and the sentence of three years imposed is hereby set aside. I shall now deal with the second count of defrauding by false pretences. The particulars are that between the months of May and June 1966 at Accra, the appellant with intent to defraud, did obtain the consent of one Gabriel Awuku Adogla to part with cash the sum of ¢4,800 or £G2,000 by means of certain false representations, that is, by falsely representing to the said Adogla that the appellant was a spiritualist and that he had a spirit which could double money and which had helped some people to get money, and that if the said Adogla gave the appellant the sum of £G2,000 the spirit could double it to £G20,000 and that by means of such false representations the appellant succeeded in obtaining the sum of £G2,000 from the said Adogla which representation the appellant well knew at the time to be false. Learned counsel for the appellant argued that the charge was bad for duplicity because the evidence showed that two separate sums of moneys, £G400 and £G1,600, were paid on different dates to the appellant. The case of Commissioner of Police v. Sencherey [1959] G.L.R. 225, C.A. was cited in support of this argument. But I think this argument is untenable in view of the case of Lutterodt v. Commissioner of Police [1963] 2 G.L.R. 429, S.C. in which it was held that a charge cannot be bad for duplicity where moneys were paid on diverse occasions in pursuance of one main representation by the appellant. The evidence in this appeal indicates that only the representation was made. It is therefore immaterial whether the sum of £G2,000 was paid in bits.

Who made the representations? It has been strongly urged by the appellant’s learned counsel that on 22 May 1966 when the appellant went with the complainant to mile 12 on the Accra ⎯ Winneba road, it was the spirit which spoke and made the representation, namely, that if the complainant brought £G2,000 the spirit would give him money and other things. But the evidence rather shows that after this nocturnal adventure, the appellant paid the complainant a visit the next day and repeated that he had powers [p.1044] of [1968] GLR 1040 to summon spirits and that that particular spirit could give him more money. The appellant went to the office of the complainant and tried to persuade him to bring any amount. The complainant became so convinced that he parted with £G400. The question is, who spoke on these occasions? The appellant himself and not the spirit who was nowhere in the Ambassador Hotel or in the complainant’s office. Moreover on 30 May 1966, the appellant took the complainant to mile 12 again where the voice asked for the balance of £G1,600. On 1 June 1966, the appellant went again to the office of the complainant and after persuading him about the omnipotence of this spirit in performing wonders at his request, the appellant asked the complainant to find the balance of £G1,600. On 2 June 1966, the complainant managed to cash a cheque from his employer’s office for £G1,600 because the appellant had promised that the spirit could multiply the £G2,000 to about £G80,000, from which the complainant could safely appropriate £G60,000 to himself leaving £G20,000 to the appellant secretly because spirits never gave money to those who invoked them. The sum of £G1,600 was handed to the appellant at the Teshie beach about midnight. In return, the complainant was given a pillow case containing certain items but with instructions not to open the parcel until after three days. When the complainant did open the pillow case, it contained ten stones and nine bundles of old newspapers cut into the size of currency notes. When the appellant was confronted with the contents, he said his spirits had never failed him and that he “the Great Master Magician Agrinograh” was going to find out why the spirit had deceived him and at least he would get the £G1,600 in the meantime to be given to the complainant’s employers as the cheque issued by the complainant had not been honoured. It is clear from the evidence that, throughout the complainant relied on the subsequent representations made by the appellant to the complainant after each visit to either mile 12 or the Teshie beach. This is borne out by the fact that the complainant did not readily accede to the requests or demands of the voice but gave in only after a long and persuasive conversation with the appellant himself. All these representations were a series in one main representation that £G2,000 could be doubled by the spirit. The appellant in his evidence denied that he received £G2,000 from the complainant. He admitted however that he received £G300 as a loan from the complainant. He attempted to account for his lavish stay at the Ambassador Hotel and the source of the money used in payment of his hotel expenses, rent paid in advance for a new accommodation and other expenses. But in exhibits

[p.1045] of [1968] GLR 1040

L and M ⎯ his statements to the police ⎯ the appellant had confessed taking a total sum of £G2,500 from the complainant and had said he knew he was guilty after he had been charged with the offence. He said these statements were taken under duress. Evidence was taken during the trial and the learned circuit judge found that these two statements were written by the accused of his own free will without duress. It is a finding which this appellate court cannot disturb because the prosecution led evidence to prove that the appellant’s usual relations were present when the said statement, exhibit M, was taken. This was not challenged in cross-examination. Learned counsel for the appellant also argued that the representation to double the money relates to a future event and cited para. 1943 of Archbold, Criminal Pleading, Evidence and Practice (36th ed.). No one would quarrel with the correctness of the legal principle stated in para. 1943. The question is whether the representation related to an existing fact. Section 133 (2) (b) of the Criminal Code, 1960 (Act 29), provides that:

“the expression ‘a representation of the existence of a state of facts’ includes a representation as to the non-existence of any thing or condition of things, and a representation of any right, liability, authority, ability, dignity or ground of credit of confidence as resulting from any alleged past facts or state of facts, but does not include a mere representation of any intention or state of mind in the persons making the representation, nor any mere representation or promise that anything will happen or be done, or is likely to happen or be done.”

If one reads the evidence of the first prosecution witness very carefully, one would find that the complainant believed in spiritualism and he confessed that he had been studying spiritualism and believed in their existence before the appellant made the representation. In my view the evidence discloses that the representation the appellant made was to the effect that he had the ability to communicate with a spirit who was capable of doubling the complainant’s money and would double the sum of £G2,000 to a higher amount if the complainant brought the said sum. I must confess at this stage that I am unable to yield to the request to take judicial notice of the fact that in Ghana there is a traditional belief in the existence of spirits. Learned counsel in extending this invitation to me had the support of a former Attorney-General of this land who was present in court. Without any regret, I must say that I am very ignorant and so innocent about such transcendental matters. I am sure if this appeal had been heard by another judge conversant with the existence [p.1046] of [1968] GLR 1040 of spirits, perhaps, judicial notice could be taken of learned counsel’s submission. Nevertheless, I shall concentrate on the facts.

In this case, notwithstanding that the complainant believed in spirits, he did not say that he believed in money-doubling spirits or that he know of one. Indeed, he confessed that his visits to mile 12 on the Accra-Winneba road and to Teshie beach were his first visits to a ceremony of invocation. The representation made to him was that there was a spirit capable of doubling his money. This is a representation of an existing fact, that is an ability to do something. It is true that the appellant promised to double the money through the spirit if £G2,000 was brought by the complainant. But it seems that where the statement consists partly of a fraudulent misrepresentation of an existing fact and partly of a promise to do something in futuro, there is sufficient false pretence: see R. v. West (1858) Dears. & B. 575, C.C.R.; R. v. Bates and Pugh (1848) 3 Cox C.C. 201; R. v. Fry (1858) Dears. & B. 449, C.C.R. Moreover a promise to do a thing in futuro may involve a false pretence that the promissor has the power to do that thing and in such a case the promissor may be indicted: see R. v. Giles (1865) Le. & Ca. 502, C.C.R. adopted in R. v. Bancroft (1909) 3 Cr.App.R. 16 at p. 20, C.C.A. All the principles and the decided cases I have quoted are referred to in para. 1949 of Archbold (supra) which seem to dwarf the submissions of learned counsel for the appellant. The second prosecution witness never witnessed the payment of the two sums of £G400 and £G1,600 but there is evidence that the second prosecution witness was the one who drove both the appellant and the complainant on all their visits to mile 12, Winneba road and also to the Teshie beach, usually at about midnight. One should have thought that, if really this great spirit existed and deceived or disappointed the appellant, immediate steps would have been taken by the appellant to communicate again with this spirit either at mile 12 or the Teshie beach to find out why the £G2,000 had been converted into stones and newspaper cuttings. But the appellant did nothing. The inference of intent to defraud cannot be clearer. After reading the whole evidence carefully, I cannot find anything fundamentally wrong with the learned judge’s findings although I must confess that I cannot find any evidence on record to support the learned judge’s observation that:

“this so-called invocation followed the now too familiar pattern, that is the accused reciting some incantation in some strange words, a human-like voice answering back from somewhere in a familiar language and making promises to the victim of the deceit provided he paid a sum named by the voice.”

[p.1047] of [1968] GLR 1040

If this generalisation stemmed from the trial judge’s own experience as a victim or from the frequency of such cases tried by him, he should have made his position vis-a-vis these spirits clearer. As the conviction of conspiracy has been quashed, I have to consider now whether the conviction of the substantive crime of defrauding by false pretences should stand. There are dicta especially in R. v. Cooper and Compton [1947] 2 All E.R. 701, C.C.A. that a verdict of not guilty of the substantive crime is inconsistent with a verdict of guilty of conspiracy and vice versa. This view seems to be shared by his lordship, the Chief Justice in his recent judgment in the case of Lartey v. The Republic [1968] G.L.R. 986. Nevertheless, it would appear that there is no such hard and fast rule and in the case of R. v. Sweetland (1957) 42 Cr.App.R. 62 at p. 66, C.C.A. Lord Goddard C.J. had this to say: “This court is not laying down in this case, and has no intention of allowing this case to be quoted as an authority for saying, that, whenever a verdict of Not Guilty is returned on a count for conspiracy to commit offences and Guilty on other counts in the same indictment charging those specific offences, or contrariwise when a verdict of Guilty is returned on the count of conspiracy and Not Guilty on the counts charging specific offences, the verdict is necessarily inconsistent. Each case must depend on its particular circumstances, and it is very dangerous in circumstances of this sort to lay down general rules which could be quoted when the facts might be entirely different.”

In the present appeal, the appellant was charged “with a person not traced” but as the prosecution attempted to equate the humanlike voice with the person not traced without proving that the voice was that of a human being, the charge of conspiracy could not stand. The voice could be that of a parrot or indeed the alleged spirit⎯things which are not regarded as human beings or persons. In the absence of any evidence of conspiracy or reasonable legal inference of such a conspiracy, there is however evidence that the appellant himself met the complainant and made the representation which is the subject-matter of the charge. The fact that the conviction of conspiracy has been quashed cannot in my view affect the pre-ponderance of evidence adduced in respect of the second count. There cannot be any inconsistency therefore in quashing the conviction on the count of conspiracy and allowing the conviction on the substantive crime of defrauding to stand. The point was not argued before me but I have been compelled to consider it in my judgment in the interest of justice. Both the appellant and the complainant [p.1048] of [1968] GLR 1040 believed in spiritualism. The only cardinal difference between their respective beliefs is that the appellant was conversant with a spirit capable of doubling money whereas the complainant believed in spirits simpliciter but had not had experience of seeing or hearing them until the appellant promised to invoke one. Did the appellant have the necessary intent to defraud when he made the representation? In this case, the intent to defraud can only be inferred from the facts: see R. v. Fergusson (1913) 9 Cr.App.R. 113, C.C.A. In Archbold, Criminal Pleading, Evidence and Practice (36th ed.), para. 1962 at pp. 717-718, we have the following principle:

“If a man makes statements of fact which he knows to be untrue, and makes them for the purpose of inducing persons to deposit with him money which he knows they would not deposit but for their belief in the truth of his statements, and if he intends to use the money thus obtained for purposes different from those for which he knows the depositors understand from his statements that he intends to use it, then, although he may intend to repay the money if he can, and although he may honestly believe, and may even have good reason to believe, that he will be able to repay it, he has an intent to defraud: R. v. Carpenter, 76 J.P. 158, approved in R. v. Kritz. [1950] 1 K.B. 32; 33 Cr.App.R. 169; and see R. v. Newton and Bennett, 9 Cr.App.R. 146, approving the definition of Buckley J. in Re London and Globe Finance Corporation, Ltd. [1903] 1 Ch. 728.” In that case Buckley J. said at pp. 732-733:

“To deceive is, …. to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action.”

The latest judicial pronouncement is that of the House of Lords in Welham v. Director of Public Prosecutions [1961] A.C. 103, where it held as stated in Archbold, Criminal Pleading, Evidence and Practice (36th ed.), para. 2043 at p. 753 that:

“ ‘intent to defraud’ means an intent to practise a fraud on someone and would there include an intent to deprive another person of a right, or to cause him to act in any way to his detriment or prejudice, or contrary to what would otherwise be his duty, notwithstanding that there was no intention to cause pecuniary or economic loss.”

[p.1049] of [1968] GLR 1040

In the present appeal, there is evidence that it was at the persistent persuasion of the appellant that the complainant at first parted with the £G400 and later with the £G1,600. These moneys were all received by the appellant himself. There is no indication that they were handed by the complainant to the spirit. Indeed one is led to the inevitable conclusion that the alleged spirit never saw the £G400 or the £G1,600. The subsequent expenditure incurred by the appellant and his nonchalance and apparent indifference after the alleged spirit had failed to double the money are clear circumstances from which it can irresistibly be inferred that the appellant intended the £G2,000 for his own purposes and not for presentation to the alleged spirit . At the time he made the representation he intended to defraud the complainant because he intended to use the £G2,000 to meet his hotel expenses, the cost of a new residence, and what have you, whereas the complainant thought the £G2,000 would be given to the alleged spirit so that he could have plenty of money, gold bars, rings, amulets and rare books. Instead, the complainant received stones and cut pieces of old newspapers. The complainant by parting with his money acted to his detriment and prejudice on the false representation made by the appellant. In conclusion therefore I hold that the evidence against the appellant on the second count is too strong. I have tried in vain to find some legal ground or factual circumstance in his favour since both the complainant and himself appear to be living in a spiritualist world but unfortunately there has never been any affinity between spiritualism or transcendentalism and the law and I would be failing in my judicial duty if I permitted such extra-forensic considerations to occupy my mind. However I hope this case will give the appellant and the complainant food for thought if both of them really believe in spiritualism . The impression which has been given to my unsophisticated mind is that these spirits are unreliable indeed and can forsake their believers and adherents in a court room while these same spirits hibernate in their unknown habitations with impunity. For the above reasons, the appeal against conviction on the first count is allowed and the conviction is quashed and the sentence is set aside. However, the appeal against conviction on the second count of defrauding by false pretences is dismissed as the evidence against the appellant on this count is too damaging.

Learned counsel for the appellant has pleaded in mitigation of sentence on the ground that the appellant is a first offender. I have taken this plea seriously into consideration in view of the educational background of the appellant who appears to have been detained by the former regime immediately after his return from the United States of America to Ghana. He was in detention for three years

[p.1050] of [1968] GLR 1040 without any opportunity of putting his university education to any useful purpose. It may be that this frustration led him, immediately after his release after the 24 February coup, to embark upon this adventure. It seems also that a substantial portion of the amount has been recovered through refund of the rent paid and the impounding of the furniture and other properties found in his premises. I think this is a case where this appellate court can show mercy. The sentence of three years’ imprisonment with hard labour on the second count is therefore reduced to eighteen months with effect from 18 March 1968.

DECISION

Appeal allowed on count one.

Sentence reduced on count two.

L.F.A.