MUKTARI v. THE STATE [1966] GLR 697

Division: COURT OF APPEAL

Date: 4 NOVEMBER 1966

Before: AKUFO-ADDO C.J., AZU CRABBE AND LASSEY JJ.A.

CASE REFERRED TO

Aikins v. The State [1966] G.L.R. 170, S.C.

NATURE OF PROCEEDINGS

APPEAL against conviction for fraud by false pretences and a sentence of twenty years’ preventive custody with hard labour. The facts are stated in the judgment of the court.

COUNSEL

Miss A. A. Ayisi for the appellant.

S. M. Boison, Principal State Attorney, for the respondent.

[p.698] of [1966] GLR 697

JUDGMENT OF AZU CRABBE J.A.

Azu Crabbe J.A. delivered the judgment of the court. The appellant in this case was charged before the District Magistrate’s Court, Accra New Town, with the offence of fraud by false pretence contrary to section 131 of the Criminal Code, 1960.1 The particulars of the offence were stated as follows: “For that you Mallam Alhaji Muktari, on or about the 22nd day of July, 1963, at Nima in the Accra Magisterial District and within the jurisdiction of this court, with intent to defraud did obtain cash the sum of £G500 from one Emmanuel Annan by falsely pretending to the said Emmanuel Annan that you were a Mallam and that if he could give you the said sum of £G500 you would bless the said sum spiritually and buy for him a lorry with which he Emmanuel Annan would work and succeed and be free from misfortune, whereas in truth and in fact, you well knew at the time of making such statement to be false.” One other person (hereinafter referred to as the second accused) who stood trial with the appellant on a second charge of aiding and abetting the appellant was discharged and acquitted during the hearing after the prosecution had withdrawn the charge against him. But the trial of the appellant continued, and he was in the end found guilty of the charge and convicted accordingly.

The record of the proceedings shows that the appellant, having been convicted, admitted “two previous convictions for fraud by false pretences, three for stealing, one for conspiracy and one for deceit of a public officer.” Therefore, acting under section 3 (1) of the Punishment of Habitual Criminals Act, 1963,2 the learned district magistrate committed the appellant to the High Court for sentence. The proceedings in the High Court are recorded as follows:

“Accused in court.

Mr. Ahlijah for the State.

State attorney applies to court under section 1 of Act 192 and refers to previous convictions of accused as appearing in record of proceedings.

By court:

Accused sentenced to twenty years, preventive custody with productive hard labour.

(Sgd.) S. Asafu-Adjaye

Judge.”

[p.699] of [1966] GLR 697

The appellant has now appealed to this court against his conviction, as he was entitled to do by virtue of section 3 (2) of the Punishment of Habitual Criminals Act, 1963. At the hearing of this appeal counsel for the appellant abandoned the original grounds of appeal filed by the appellant and was granted leave to argue only two additional grounds she had filed on behalf of the appellant, namely, that the evidence did not support the charge against the appellant, and that the learned district magistrate failed to consider the defence. The court also granted her leave to argue a supplementary ground which complained that the sentence was excessive. We wish to say at the outset that having carefully considered the learned district magistrate’s judgment we are satisfied that there is no merit whatsoever in the argument that the learned district magistrate failed to consider the defence. In our opinion therefore the second ground of appeal must fail. Arguing the first ground of appeal, counsel for the appellant stated that the charge as laid alleged three false representations: (1) that the appellant was a Mallam, (2) that he could spiritually bless the sum of £G500 and buy a lorry with it for the complainant and (3) that the said lorry would work and be free from misfortune. Counsel submitted that the evidence adduced at the trial did not support these averments, and therefore the charge of fraud by false pretences was not proved.

With regard to the appeal against sentence, counsel argued that the sentence of twenty years’ preventive custody imposed by the learned judge of the High Court was invalid. Counsel submitted that section 1 (1)

(c) of Act 192 imposes a duty on the judge of the High Court, to which the convicted person is committed, to inquire into the circumstances of the case before passing sentence, but in this case the learned judge failed to perform that duty. Counsel referred to the judgment of the Supreme Court in Aikins v. The State3 in which the court held that it is imperative that an inquiry into the background of a case should be made before a sentence of preventive custody with productive hard labour is imposed. It was said4:

“In the opinion of this court, the High Court, before which the offender is brought, cannot pass a sentence of preventive custody merely on the ground that the statutory conditions have been fulfilled; the court itself must evaluate the relevant facts and circumstances of the case and then decide the appropriate sentence: see R. v. Apicella ((1949) 34 Cr.App.R. 29, C.C.A.). It is an independent discretion which the court has to exercise. If it does not appear to the High Court, after the due inquiry, as [p.700] of [1966] GLR 697 required by section 1 (1) (c), that the case is a suitable one for which a sentence of preventive custody ought to be passed, then under section 3(2) of the Act the court shall pass an appropriate sentence which the committing court could have passed.”

Replying to the argument urged in support of the first ground of appeal against conviction, Mr. Boison, counsel for the State, conceded that the evidence did not support a charge of fraud by false pretences. He, however, contended that the evidence was sufficient to support a charge of stealing, and he invited the court to substitute a conviction for stealing. For this contention counsel relied on section 157 (2) of the Criminal Procedure Code, 1960,5 which reads as follows:

“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.”

Counsel submitted that there was clear evidence that the appellant obtained the sum of £G500 from the complainant by deceit. On the question of sentence Mr. Boison again conceded that the learned judge of the High Court failed to comply with the requirement of section 1 (1) (c) of Act 192 and that he could not resist the appeal against sentence.

The facts proved in support of the charge were that on 23 July 1963, the complainant had a conversation with the second accused about his misfortunes in buying cars and told him of his intention to buy one again soon. The second accused promised to take him to an Alhaji who would help his luck change for the better. About four days later the second accused took the complainant to the house of the appellant, and there, after the appellant and the second accused alone had conferred in a room for over an hour, the appellant came out and told the complainant that he had discovered the cause of all his troubles, and he asked the complainant to go, but that he should come back alone to see him. About a week later when the complainant went to see the appellant, the appellant asked for, and the complainant paid, a deposit of two shillings. The complainant was instructed by the appellant to recite everything that was worrying him on the two shillings. The complainant did so. Again, on the advice of the appellant the complainant shaved off all his hair and nails and sent them together with a shirt to the appellant, who promised to prepare a potion with which to cleanse the complainant. The appellant then told the complainant that if he brought the money with which he was to purchase the lorry (£G500) he would bless it for him. He warned the complainant that he did not want the second

[p.701] of [1966] GLR 697 accused or anyone else to be present at the time of payment of the £G500. Before the complainant departed the appellant gave him a talisman to keep under his pillow for seven days. Four days later the complainant, accompanied by one Musa Wangara, carried to the appellant a blue box (tendered in evidence and marked exhibit B) containing the sum of £G500. The appellant informed the complainant that he would ask God’s blessings for him and then asked him to go and call again on the following Monday. The appellant assured the complainant that he had two houses and had no intention of running away. When the complainant asked for a receipt for the £G500 the appellant called in a man who prepared a draft receipt, which the appellant gave the complainant to take away and have it typed. When the complainant returned with the typed receipt for the appellant’s signature, the appellant could nowhere be found. The complainant traced the appellant to Kintampo where he was arrested by the police on 27 March 1964. When the appellant’s room was searched the box (exhibit B) in which the complainant carried the £G500 was found. The appellant was subsequently charged, and in the course of the investigations he made two statements, which were tendered in evidence at the trial and marked exhibits C and D. At the close of the case for the prosecution the appellant made an unsworn statement in which he said that he relied on exhibits C and D. In exhibit C the appellant stated: “I remember that on 13 February 1964 the complainant came to me when I informed him that I would travel to Kintampo. I left on trek, four days later. I never demanded or obtained the sum of £G500 from the complainant to purchase for him a lorry as alleged.” In exhibit D the appellant said: “That I could only pray for God’s blessings for him to succeed in his work. I have no knowledge about the alleged £G500. After considering the case for both the prosecution and the defence the learned district magistrate found that the appellant did not tell the complainant that he would travel to Kintampo, and that the journey was “in furtherance of his fraudulent intention and his felonious plan to defraud” the complainant. The learned district magistrate further found that the sum of £G500 was in fact paid by the complainant to the appellant in the presence of Musa Wangara and that exhibit B was the container. He rejected in no uncertain terms the version given by the appellant in his two statements. Counsel for the appellant, Miss Ayisi, was unable to persuade us that the findings of the learned district magistrate were wrong. The short point in this appeal, therefore, is whether the facts found by the learned district magistrate amount in law to stealing.

[p.702] of [1966] GLR 697

Section 125 of our Criminal Code, 1960,6 defines stealing as follows: “A person steals if he dishonestly appropriates a thing of which he is not the owner.” Explanation as to dishonest appropriation is provided by section 120 (1) of the same Code as follows:

“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 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.” Acts which amount to an appropriation are dealt with under section 122 of the Code, and in subsection (2) of the section it is stated that an appropriation includes “obtaining, carrying away, or dealing with a thing, with the intent that some person may be deprived of the benefit of his ownership, or of the benefit of his right or interest in the thing, or in its value or proceeds, or any part thereof.” The intent to deprive can be constituted, according to subsection (3), by an intent to appropriate the thing either temporarily or for a particular purpose. Subsection (4) is as follows:

“It is immaterial whether the act by which a thing is taken, obtained, or dealt with be or be not a trespass or a conversion, or be or be not in any manner unlawful otherwise than by reason of its being done with a purpose of dishonest appropriation; and it is immaterial whether, before or at the time of doing such act, the accused person had or had not any possession, custody, or control of the thing.”

Applying the foregoing sections of the Criminal Code to the facts found by the learned district magistrate we are of the opinion that there was sufficient evidence upon which the appellant could have been convicted on a charge of stealing alone. Accordingly, we alter the learned district magistrate’s finding of guilt and conviction on the original charge of fraud by false pretences and we substitute therefor, the following order: “Accused is found guilty of stealing and is convicted accordingly.” In the result we dismiss the appeal against conviction.

In view of the fact that the learned judge of the High Court did not strictly observe the requirements of the Punishment of Habitual Criminals Act, 1963, in sentencing the appellant in the High Court we set aside the sentence and we ourselves will therefore proceed to [p.703] of [1966] GLR 697 sentence the appellant. The appellant is sentenced to five years’ imprisonment with hard labour sentence to commence from 22 September 1965, being the date on which he was sentenced by the High Court.

DECISION

Appeal against conviction dismissed.

Sentence varied.

T. G. K.