Division: IN THE HIGH COURT, KUMASI
Date: 5TH MARCH, 1959.
Before: MURPHY J.
Murphy J.: (His lordship stated the facts, and proceeded):—
It is, I think, clear that in considering the case against the appellant there were two separate questions to be decided:
(1) was the appellant aware that the 1st accused was not in fact the owner of the property described in the lease?.
(2) if so, was the appellant aware of the illegal purpose for which the lease was to be used?
[p.99] of [1959] GLR 98
The Senior Magistrate in effect answered both these questions in the affirmative. As to the first question, it is to be noted that the evidence of the Chief and his elder differed very considerably from that of the appellant. If the Chief and his elder were believed, as they were, the appellant had told a number of untruths.
An important question was whether the lease was read over to the Chief by the appellant, since, if it had been, the Chief would have realised that it was not a lease of the 1st accused’s plot of land. As to this, the appellant said in his statement to the police that he did read the lease over. In his evidence he modified this by saying that he read it over, but omitted to mention the building. It is difficult to see how he could have done this inadvertently.
Further, the Senior Magistrate in my view rightly laid stress on that part of the appellant’s evidence in which he said that if the 1st accused had mentioned to the Chief that he intended to erect a building, he (the appellant) would have realised that the 1st accused was deceiving him, as there would then have been no building on the plot.
In fact, it is clear from the evidence of the Chief and his elder that throughout the interview the 1st accused was referring to a plot on which a building was to be erected, and the appellant must have realised that this was not the plot described in the lease. I think, therefore, that the evidence supported the Senior Magistrate’s finding that the appellant knew that the 1st accused was not the owner of the property described in the lease, and knew that the Chief was being deceived.
This showed that the appellant was not fit to be a Solicitor’s clerk, but it was only one stage in establishing that he had committed the offence with which he was charged. It was still necessary for the Senior Magistrate to answer the second question before him, namely whether the appellant was aware of the illegal purpose for which the lease was to be used.
In his judgment the Senior Magistrate found as a fact that the appellant knew that the 1st accused was falsely representing to the Manager of the Ghana Commercial Bank that he had a building on the land in order that he, the 1st accused, could obtain a loan. With respect, this finding was unsupported by the evidence in the case. Learned Crown Counsel has conceded this, but has argued that there was evidence on which it could be found that the appellant knew that the 1st accused intended to use the lease to obtain a loan from someone, and that this was sufficient to support the charges laid against him.
[p.100] of [1959] GLR 98
This raises the question of whether an accessory before the fact must be shown to have procured the particular offence charged, a question which, it appears, has not been specifically decided (Archbold, 33rd edition, 14th Cumulative Supplement, para. 2761). However, in the present case I take the view that there was in any event no sufficient evidence to show that the appellant was accessory to an offence of fraud by false pretences.
The evidence upon which Crown Counsel relies is that of the 1st accused, who said under cross-examination that he told the Chief in the presence of the appellant that he was going to raise a loan from “a white man” to erect a building. He immediately contradicted this, but there was admittedly a good reason for rejecting his contradiction as untrue, since it was based on a false allegation that he had paid a second visit to the Chief without the appellant. However, his first statement also should at least have been accepted with caution, since it was not borne out by the evidence of the Chief and his elder on whom the Senior Magistrate largely relied.
It does not appear from the judgment whether the Senior Magistrate considered this inconsistency between the evidence of the 1st accused on the one hand and the Chief and his elder on the other. This was a matter of very considerable importance when one bears in mind that this piece of evidence given by the 1st accused was the only evidence which went to show that the appellant knew that the lease was going to be used to raise a loan. It is noteworthy that, whereas the lease was obtained in July, it was not until September that the 1st accused approached the Ghana Commercial Bank. There was no further evidence to connect the appellant with the events which happened after July. I do not think it can be said that the appellant must in any event have known that the lease was to be used to commit a fraud by false pretences, since one can imagine other purposes to which it might have been put.
DECISION
For these reasons, although I think there was no doubt that the appellant acted dishonestly in assisting the 1st accused to obtain the lease, I do not consider the evidence supported the charges of conspiracy, and aiding and abetting false pretences, which were laid against him. The appeal is allowed, the convictions and sentences are set aside, and verdict of acquittal is entered in respect of this appellant on the 1st and 3rd counts.
