LUTTERODT v. COMMISSIONER OF POLICE [1963] 2 GLR 429

DIVISION: IN THE SUPREME COURT

DATE: 8TH NOVEMBER, 1963

BEFORE: CRABBE, MILLS-ODOI AND OLLENNU JJ.S.C.

 

CASES REFERRED TO

(1) Commissioner of Police v. Sencherey [1959] G.L. R. 225, C.A.

(2) Ogbebor v. Commissioner of Police (1950) 13 W.A.C.A. 22

(3) R. v. Barimah (1945) 11 W.A.C.A. 49

(4) R. v. Abisa Grunshie (1955) 1 W.A.L.R. 36, W.A.C.A.

(5) R. v. Wunuah (1957) 3 W.A.L.R. 303, C.A.

(6) Azumah v. R. (1950) 13 W.A.C.A. 87

NATURE OF PROCEEDINGS

APPEAL against a conviction of fraud by false pretences entered by the Circuit Court, Accra. The facts are set out in the judgment of the Supreme Court.

COUNSEL

P. A. Adjetcy for the appellant.

D. F. Annan, Senior State Attorney, for the respondent.

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. The appellant was convicted by the Circuit Court, Accra, of fraud by false pretences. The charge against him alleged that he, “with intent to defraud, did obtain cash the sum of £G537, ten pieces print at £G60, one live sheep value £G5, several assorted trinkets at £G18 and bottles of gin, whisky, schnapps and a yam value £G6 18s., all to the total value of £G626 18s. from one Allen Malm by means of certain false pretences to wit: you did falsely pretend to the said Allen Malm that the money with which she was trading had become spiritually unclean and you could make it to become clean for her and by said false pretences you succeeded in obtaining the said amount and goods to the value of £G626 18s. from the said Allen Malm whereas in fact and truth you well knew at the time that you could not purify the money as you so falsely pretended.” Against his conviction he appealed to this court on three grounds, and with leave of the court three supplementary grounds were filed and

[p.431] of [1963] 2 GLR 429 argued at the hearing while the original grounds were abandoned. The grounds argued were: “(1) That the charge preferred against the appellant was bad for duplicity,

(2) That the judgment of the learned circuit judge was wrong in law having regard to the evidence adduced at the trial, and

(3) The learned circuit judge failed to consider fairly and adequately the defence of the appellant.”In support of the first ground, learned counsel for the appellant referred to the evidence of the complainant, where she gave particulars of the representations made, and the payments of moneys and delivery of goods she made to the appellant; that evidence tends, on the face of it, to give the impression that the different sums of money were paid at various times, and that the articles mentioned in the charge were not all delivered at one time, and that each such payment or delivery was induced by separate representations made by the appellant. Counsel cited Commissioner of police v. Sencherey11 to support his submission that even though a charge may appear to conform with the mandatory provisions of section 109 of the Criminal Procedure Code, 196022 yet if the evidence disclosed that more than one distinct offence are in fact alleged in the one charge, the court should hold that the charge is bad for duplicity and quash the conviction. Commissioner of Police v. Sencherey (supra) is a case in which a man was convicted by a district magistrate on a charge of stealing cash the sum of £G45 10s. The evidence disclosed that the appellant represented to the complainant in the case that he had two spraying machines for sale at a price of £G50 each and that the complainant handed an amount of £G50 to a relation of his to be paid to the appellant; the appellant in the absence of the complainant got the relation to pay £G20 of the money to him on account, as he was then going for a permit with which to take delivery of the machine; and later when the appellant alleged he had got the permit and was going to collect the machine, the complainant authorised a further payment of £G25 10s. to him. On appeal the Divisional Court substituted a conviction for obtaining money through fraud by false pretences for the conviction of stealing. Upon further appeal, the Court of Appeal held that the facts disclosed two distinct acts of theft, i.e., theft of the £G20 he first took on account, and theft of the £G25 10s. which was later paid to him to enable him to collect the machine. There is no doubt that even if the said two sums could be said to have been obtained through fraud by false pretences, the obtainings were made upon different and distinct false representations, and as far as stealing was concerned, the fraudulent receivings and appropriations were separate and distinct.

The learned senior state attorney in answer to the submissions on this first ground argued that although it was clear on the evidence that the amount of £G537 was made up of several sums of money received by the appellant at different times and circumstances as were the articles alleged, [p.432] of [1963] 2 GLR 429 and although it did appear that the said payments and deliveries were made in consequence of requests made at each such time, yet upon a proper consideration of all the requests and consequent payments and deliveries, it emerged clearly that all the several transactions formed one continuous process or system of false pretences. He submitted, relying upon Ogbebor v. Commissioner of Police,33 that even if the court should hold that there was duplicity, it had not occasioned any miscarriage of justice as should warrant the conviction to be quashed.

Certainly the charge was not drafted with the skill and precision which the evidence necessitated; for that reason we have meticulously examined the evidence along with all the circumstances, bearing in mind the golden principle that the onus is upon the prosecution to prove their case beyond reasonable doubt. The relevant evidence is as follows: The complainant who alleged she had had a disturbing dream, appealed to the appellant who holds himself out as a priest of the Apostolic Church, to pray for her; the appellant sent for the complainant the day after and had an interview with her. The complainant gave the account of that interview as follows:

“He told me that about the dream, he had no dream book but he had consulted his angels. He said the angels told him that the meaning of the dream was that my enemies were after me and they would not make my trade prosper. He said some paid me with some bad money which would make all my money vanish. I told the accused that I only wanted him to pray for me. He said he had seen that I did not believe what he told me so I should follow him to hear what the angels would say. I accompanied him to his room. When I entered the room I noticed he had partitioned it with a screen. There accused went behind the partition and I heard him ring a bell. I heard Angel No. 1, Angel No. 2, after that I heard a voice but did not understand what the voice said. The accused then interpreted to me that the voice was saying the same thing that he had told me outside. I told the accused that I only asked him to pray for me. The accused said his angels said they could work for me. He said there was a lot of work to be done about me which would take two months. He said I should not go and take delivery of anything from a store. He asked me to find an empty match box, cotton wool and florida water. I did not get them. The accused himself came out, took out a match box and emptied it, took cotton wool from an A.P.C. box and spread it over the match box. He went behind the screen. He told me to try and pull a hair from the centre of my head and place it on the cotton wool. I asked what was the use of my hair. He said I had already been informed of the use of my hair. He said if I wanted everything to go wrong with me I shouldn’t do it. I want everything to be prosperous so I pulled my hair.” All this is said to have happened on a Sunday. And after narrating certain ceremonies which the appellant performed for and on her behalf, the complainant continued:

“On Monday morning as I was getting ready to go to the market accused sent his daughter to come and call me. When I went the accused told me

[p.433] of [1963] 2 GLR 429 that I knew he was doing work about me and I did not go to see him. He said I should fast that day. I fasted up to 6.00 p.m. The accused asked me to buy empty sugar packet. I bought one packet sugar and poured it out. The accused told me to go home and bring all the money I had in my room. When I was fasting the accused came to my house. I told the accused that the money in my room belonged to a taxi driver. He asked me to go and bring it. I went trembling, I opened my drawer and counted the money in it and it was £G137. I took it to the accused’s house and gave it to him. I put the money in the empty sugar packet. I did not pack it properly so the accused re-arranged it into the packet and asked me to go and continue fasting. The money was in £G1 and 10s. notes. The following morning I went and asked the accused how about the money. He said I should leave it with him and rather bring any sales I make in the market. I did that everyday and any day that I did not go to him he would send for me. I have given the accused £G55. When I reckoned I found that I have given the accused £G400 of my daily sales. After that the accused came to my store at the market one evening and said he wanted me . . . When I returned I went to the accused. He said he had finished for me. He brought exhibit C from behind the screen. He asked me to pray. When I finished he asked me to shake the box. He told me all the money I had with him was in exhibit C. The scarves are mine. I tied money in them and gave to the accused. The accused told me that the key to exhibit C was with him, but I should take exhibit C and keep it and not let anyone see it. I went and kept it under a box in which I keep my things. Later I went to ask the accused for the key. The accused asked me if I had a pair of gold bangles and earrings. I said yes. He asked me if I could celebrate Christmas. I said yes. He asked me to go and get straw bags and put the trinkets in them and get ten pieces of cloth and bring them to him to bless for me. I went for the bangles. I told the accused that I could not carry the prints. He told me he would come for them. I took the trinklets to the market. The trinkets cost £G18.”

From that evidence it emerges that there was only one thing which led to the deliveries on the various occasions of the moneys and the goods to the appellant, and that is: the statement the appellant was alleged to have made to the complainant that her “enemies were after her and would not make her trade prosper,” that in the circumstances his angels could work for her, that there was a lot of work to be done about her to put things right and that the said work would take two months to complete. That work as appears from the evidence included purification of the person and property of the complainant, particularly her articles of merchandise and the proceeds of sale of such merchandise, and at the conclusion of this work, the giving of gratuities. Thus each single sum of money and each lot of goods delivered to the appellant for purification or thanks-offering was so delivered in pursuance of that one main representation by the appellant of the need of purification for the complainant, of the appellant’s ability to render those services for her, and of the complainant’s belief that she needed such purification and that the appellant was in a position to render the said services.

[p.434] of [1963] 2 GLR 429

In the circumstances we are forced to the conclusion that the charge alleged only one offence, and is in conformity with section 109 of the Criminal Procedure Code, 1960. We therefore hold that the charge is not bad for duplicity.

Counsel for the appellant in arguing the second ground of appeal submitted that the prosecution failed to prove the pretence alleged in the charge, and further failed to prove that the appellant was incapable of purifying the money and other articles, or that he did not require them for purposes of purification. The appellant himself gave conclusive answer to the first as to whether or not he was capable of purifying the articles. Concluding his evidence-in-chief he said among other things: “As a priest I don’t purify money. I pray for people.” Again if the evidence of the complainant is believed, as indeed the trial circuit judge did believe it, then the denial by the appellant of the receipt of the money and goods and his inability or refusal to return them to the owner, proved conclusively that he did not believe that the said money and goods required purification, and the only reasonable inference to be drawn from the circumstances is that he made the false representation to facilitate fraud of the complainant.

Arguing the third ground, counsel for the appellant, relying upon R. v. Barimah,44 submitted firstly that the learned circuit judge did not give careful consideration to the defence, he rejected it on the grounds that he believed the evidence of the complainant, and did not think she was capable of inventing the elaborate evidence she gave, and further that the circuit judge did not direct himself as to reasonable doubt created by the defence, however stupid the defence may be. The relevant part of the judgment is as follows:

“In his defence the accused alleges that the complainant borrowed money from him for which she gave him a receipt, and that it was when he demanded the money from the complainant that she reported him to the police. The accused is denying all knowledge about what is alleged to have happened in his house. He does not say anything about his going to the market for the ten prints in the presence of the first witness for the prosecution. I do not believe the complainant owes the accused any money. I believe the complainant’s evidence as to how the receipt was prepared. I am unable to think how the complainant could have invented such elaborate evidence against a ‘priest’. “

On the same ground counsel further submitted that the learned circuit judge misdirected himself in convicting the appellant solely on the ground that he did not believe the story of the appellant; he submitted that the learned circuit judge should have gone further to consider whether the explanation offered by the appellant is reasonably probable even though he did not believe it to be true, and even though he preferred the story of the complainant to that of the appellant. In support of this submission counsel relied upon R. v. Abisa Grunshie55 and R. v. Wunuah66 [p.435] of [1963] 2 GLR 429

In the latter case the Court of Appeal said, inter alia, that, “On this issue the judge simply rejected the appellant’s defence that he acted at a time when he was deprived of the power of self-control and did not appreciate, until after the event, what he had done. In this the judge again erred by failure to consider the alternative arising, following upon the appellant’s explanation not being accepted, whether such explanation might reasonably be true. It would appear to this court that there is a tendency growing on the part of trial courts in this country to confine considerations in cases where the explanation of an accused person is in issue, to whether or not the explanation is true and not to consider the alternative narrower issue whether the explanation of the prisoner might reasonably be true. This tendency in our view is dangerous and we must seriously deprecate it. Concerning the rules to be followed, on giving directions as to the weight attaching to a defence which might reasonably be true, we cannot over-emphasise the importance of the case of R. v. Murtagh and Kennedy [1955] Crim.L.R. 506; 39 Cr.App.R. 72, C.C.A.” In reply to the first part of the submission learned senior state attorney submitted that in law the trial court is not obliged to direct itself in detail on every point raised in a defence; it is sufficient if the court dealt adequately with the important or main points in it; he cited Azumah v. R.77 There the West African Court of Appeal said88:

“The well-established principle is simply this: that the prisoner’s defence must be adequately placed before the jury, that is to say, the jury must have been reminded of the general nature of the defence and so long as the real nature of the defence has been explained, a Court of Appeal will not interfere merely because particular points have not received the emphasis or attention that the defence would like.” The senior state attorney submitted that the summing-up in this case complied with the directions quoted above. He submitted further that even if the judgment is defective in the manner it dealt with the defence, it has not been shown that the misdirection has occasioned any miscarriage of justice. As to the principle laid down in R. v. Abisa Grunshie (supra) and R. v. Wunuah (supra), that even if a court did not believe the defence story, it should nevertheless consider whether the story is reasonably probable, for if reasonably probable, then doubt is created in the case, the benefit of which should be given to the defendant, the learned senior state attorney submitted that it applies only in cases where there is only a narrow difference between the story told by the prosecution and that told by the defence; he submitted that it does not apply to cases like this where the story of the defence is a complete negation or contradiction of the case of the prosecution and the court has to decide which of the two contradictory stories it believes. In such a case, he said, where the question is the oath of one prosecution witness, i.e., the complainant, against the oath of the appellant, the decision depends upon credibility of the witnesses. [p.436] of [1963] 2 GLR 429

Therefore he said, where the court decides that the evidence given by the prosecution witness is the truth, and that given by the defence is not true, it is unnecessary for the court to consider whether or not, short of believing it, the defence might reasonably be true, because if the court should hold that it is reasonably true, it would be contradicting its earlier finding that the story of the prosecution is true. The submission in other words amounts to this: it must be presumed that before rejecting the story of the appellant as untrue, and accepting that of the prosecution as true, the circuit judge, who must be presumed to know the law, must have considered whether or not the explanation of the appellant is reasonably true, and have come to the conclusion that it is not.

Finally the learned senior state attorney submitted that even if the circuit judge misdirected himself in not considering whether or not the defence was reasonably probable, the evidence in its totality was such that there could be no half-way house between the story told by the complainant and that told by the appellant if the one was true the other could not be probable; and therefore no miscarriage of justice had been occasioned to justify the court in interfering with the conviction based entirely upon facts. We are compelled to express our dissatisfaction with the judgment of the learned circuit judge. In no part of his three page judgment did he in any way examine either the case for the prosecution or that for the defence. All he did, as far as the case for the prosecution is concerned, was simply to repeat parts of the story as narrated by the complainant in her evidence-in-chief; he ended as follows:

“Later she went to collect the goods from the accused. The accused did not give her the goods, but rather asked her to try and make sales and bring the proceeds to him. He said he had completed everything and that he had tied the complainant and he would release her if she brought the daily sales. The complainant prayed to God to release her. She sent for her brother and reported what was going on to him. He asked for exhibit C. The complainant gave exhibit C to him. He asked for the key. On hearing that the key was with the accused, he broke exhibit C by stamping on it. The only things they saw in exhibit C were a Bible, cigarette tins, scarves, etc. A report was made to the police and the accused was arrested.”

He then went on to state the defence as narrated by the appellant, the material part of which we have earlier quoted in extenso.

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

[p.437] of [1963] 2 GLR 429 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.

Now both the complainant and the appellant agree that the complainant gave a promissory note, exhibit B, to the appellant; but they disagree in the account they each gave as to the circumstances of, and the purpose for which, the complainant gave the said note, exhibit B, to the appellant. The complainant said she gave the said note to the appellant to secure payment she would make to him for his services in purifying her money and goods for her; while the appellant said that the complainant gave the said note to him in consideration of a loan he gave her. In such a case the trial court should first of all have looked at the whole evidence in the case to find whether or not it would be just to accept the story of the complainant as one which leaves no room for reasonable doubt. As he failed to do that, it becomes the duty of this court to make that examination, and we proceed to do so now.

In the first place it came out in the evidence of the first witness for the prosecution that the complainant took two persons to the police as witnesses to the fraud alleged to have been perpetrated on her, but eventually each of those two witnesses denied that she knew anything about the case. That evidence is as follows: “The complainant brought as her witnesses her daughter and the accused’s daughter. I collected statements from both of them. The complainant’s daughter denied all knowledge about this case. The accused’s daughter also denied.” None of those two witnesses was called to give evidence. We can understand why the appellant’s daughter would deny all knowledge about the allegations made by the complainant; but why should the daughter of the complainant deny her mother’s allegations if those allegations are true to her knowledge? It is difficult to understand.

Again according to the complainant, the circumstances under which she made the promissory note were that the appellant said he would finish the work for her in two months, and would charge £G105 upon completing, so he wanted a promissory note given to him for that amount. In her own words, “He said there was a lot of work to be done about me which would take two months,” she later added, “Before the accused started the business with me he asked me to prepare a document. He told me he would charge me £G105 for the work he was going to do for me, but I should not say it was for blessing the goods. The document was prepared by the letter writer Owusu Kokor.”

Under cross-examination she said,

“I see exhibit B, the promissory note. It was read to me. I did not say that the accused made a draft which the letter writer rejected. I said the accused wrote his name for me. I dictated the contents of exhibit B to the letter writer. I gave exhibit B to the accused.”

The position then is as follows: the appellant said to the complainant: “Go and prepare a promissory note in my favour for £G105 which will mature two months hence; take this piece of paper, you can find my correct name

[p.438] of [1963] 2 GLR 429 and address on it.” The complainant then went to a letter writer and dictated a promissory note which reads as follows:

“This is to certify that I, Nana Malm the undermarked of Accra, have received from Rev. Conrad A. Lutterodt of Post Office Box 0149, Accra cash the sum of £G105 (one hundred and five pounds) being financial assistance he has rendered to me without interest whatsoever.

2. That in consideration of this said amount, I have faithfully promised to refund same in 8 (eight) months time that is, at the end of June 1962, and that in default to fulfil the promise herein stated the said Rev. Conrad A. Lutterodt would have every right to institute legal action against me in any court of justice for the recovery of this amount.

Dated at Accra this 27th day of October, 1961.”

The contents of the promissory note were read over to the complainant and she agreed they were correct. There appears in the promissory note such intricate points and particularisation as “financial assistance . . . rendered to me without interest whatsoever … I have faithfully promised to refund same in 8 (eight) months time … at the end of June 1962,” which upon her own showing, the complainant voluntarily had inserted in the note at a time when there was no dispute. Those certainly do not harmonise with the oral evidence given by the complainant as to the circumstances of making the note. In the absence of very satisfactory explanation there is nothing to rebut the presumption that the complainant had those facts inserted in the promissory note because they were true.

The only ground upon which the circuit judge believed the oral evidence of the complainant instead of the contents of the promissory note, exhibit B, is because he was unable to think how the complainant could invent the elaborate evidence she gave in court. But length apart, the contents of exhibit B are more elaborate and more intricate than the evidence given by the complainant. Again, as we have seen, if the contents of the promissory note, exhibit B, are untrue, then it will be correct to say that the complainant invented it without assistance from the appellant or from anyone else. If her brains are so fertile as to make her capable of inventing the contents of exhibit B, what is there to incapacitate her from making up the straight forward story she told at the court. Besides there is no evidence on the record which can explain away and rebut the logical inference that the contents of exhibit B are true.

There is one small piece of evidence to which we must also refer; that is evidence of the first reaction of the sixth witness for the prosecution, the first person to whom the complainant alleged she reported the matter. The witness said, “I asked the complainant whether it was the priest who gave her the box and she said yes. I told her if the priest told her he was going to multiply her money for her, then he had deceived her and I was going to report to the police.” Now would the witness have spoken to the complainant about multiplication of money if the story the complainant told him was about blessing of money and goods and not about doubling money?

[p.439] of [1963] 2 GLR 429

In view of all this, does it really appear that the complainant revealed to the court the true nature of the transaction between her and the appellant? It would seem she did not.

We are of opinion that the law as stated in R. v. Abisa Grunshie (supra) and R. v. Wunuah (supra) applies to all criminal cases, and not only to special cases like murder where reduction of the crime to manslaughter is a possibility, or cases where alibi is pleaded as contended by the learned senior state attorney. Where the determination of a case depends upon facts and the court forms the opinion that a prima facie case has been made, the court should proceed to examine the case for the defence in three stages:

(1) Firstly it should consider whether the explanation of the defence is acceptable, if it is, that provides complete answer, and the court should acquit the defendant;

(2) If the court should find itself unable to accept, or if it should consider the explanation to be not true, it should then proceed to consider whether the explanation is nevertheless reasonably probable, if it should find it to be, the court should acquit the defendant; and

(3) Finally quite apart from the defendant’s explanation or the defence taken by itself, the court should consider the defence such as it is together with the whole case, i.e., prosecution and defence together, and be satisfied of the guilt of the defendant beyond reasonable doubt before it should convict, if not, it should acquit.

If the learned circuit judge had directed himself firstly on the case for the prosecution standing by itself, it would surely have occurred to him as it has done to us, that, taken together with other evidence on the record led for the prosecution themselves, the evidence of the complainant relating to the purpose and circumstances for the making of the promissory note, at its very best, creates strong probability only, but does not reach the height of certainty where it will be safe to convict upon, and that together with the denial of the complainant’s daughter that she knew all about the case, leave big room for doubt. Again if having rejected the explanation of the appellant as not true, the learned circuit judge had gone to the second stage and directed his attention to whether or not the story of the appellant is reasonably probable, and carefully compared it with that of the complainant, we feel that he would most likely have been struck with it as a reasonable probability.

In all the circumstances we cannot say that the failure of the circuit judge to consider the case either of the prosecution or the defence has not occasioned miscarriage of justice; we are therefore compelled to allow the appeal.

[p.440] of [1963] 2 GLR 429

The appeal is allowed, the conviction of and the sentence passed upon the appellant are each quashed, a verdict of not guilty is substituted. The appellant is acquitted and discharged.

DECISION

Appeal allowed.

A verdict of not guilty substituted.