OWUSU v. THE REPUBLIC [1972] 2 GLR 262
HIGH COURT, SUNYANI
Date: 23 MAY 1972
BEFORE: ANTERKYI J.
CASE REFERRED TO
Sturla v. Freccia (1880) 5 App.Cas. 623; 50 L.J.Ch. 86; 43 L.T. 209; 29 W.R. 217; 44 J.P. 812, H.L.
NATURE OF PROCEEDINGS
APPEAL against a conviction by a district court for forgery of bank pay-in-slips and stealing of the sums of money involved.
COUNSEL
Dr. I. L. Ohene-Djan for the appellant.
Kaleo-Bioh, Senior State Attorney, for the respondent.
JUDGMENT OF ANTERKYI J.
The appellant was convicted by the District Magistrate Grade I, Mr. J. B. K. Yemidi, sitting at Sunyani in August 1970, on four charges of forgery of bank pay-in-slips and four corresponding charges of stealing the respective amounts involved. Upon conviction, the appellant was sentenced as follows:
“On count one: ¢50 or three months’ imprisonment with hard labour.
On count two: ¢50 or three months’ imprisonment with hard labour. [p.265] of [1972] 2 GLR 262
On count three: ¢40 or three months’ imprisonment with hard labour.
On count four: ¢40 or three months’ imprisonment with hard labour.
On count five: ¢50 or three months’ imprisonment with hard labour.
On count six: ¢80 or six months’ imprisonment with hard labour.
On count seven: ¢50 or three months’ imprisonment with hard labour.
On count eight: ¢50 or three months’ imprisonment with hard labour.
Sentences concurrent. Exhibits to the complainant.”
The story of the prosecution was that the appellant, at the material times, was a revenue collector of the Ghana Broadcasting Corporation at Sunyani, being responsible for the collection of fees or charges in connection with radio re-diffusion boxes. It was his duty to pay all revenue thus collected on behalf of the corporation and to pay to the government chest through the Sunyani branch of the Ghana Commercial Bank. After the appellant’s accounts had been checked by the second prosecution witness (Joseph Yaw Dwobeng) whilst he was stationed at Accra as an assistant accountant of the corporation, and he had “discovered that the bank statements did not tally with the duplicate copies of the remittance accounts,” he reported the matter to the head of the department. Following this report the first prosecution witness (Isaac Ernest Arhin), the corporation’s technical superintendent stationed at Sunyani, received instructions from the head office that he should report the appellant to the police; and he did so when, according to him, “I checked the accused’s bank pay-in-slips and bank statements and I discovered that there were forgeries and alterations in the figures.
In proof that the respective amounts actually paid into the bank on the bank pay-in-slips did not tally
with, as being less than, what appeared on the corresponding duplicates of the pay-in-slips kept by the appellant, two cashiers of the bank gave evidence. First, the third prosecution witness (Daniel Kwateng Focus Quartey), a bank clerk attached to the Sunyani branch of the Ghana Commercial Bank, stated in evidence that at a time when he was a cashier at that branch of the bank, the appellant paid in sums of money; he stated thus:
“On 19 May 1966 the accused paid in ¢3.20 (N¢2.53), and not ¢13.20 (N¢11.00) as it appeared in the
accused’s duplicate pay-in-slip dated 19 May 1966. On 31 May 1966 I received ¢7.20 (N¢6.00) from the accused and not ¢37.20 as it appears on the duplicate pay-in-slip dated 31 May 1966. It was the accused who paid in those sums.”
Secondly, the fourth prosecution witness (Samuel Nee Adukwei-Quaye) who said he knew the appellant and that the appellant usually paid in sums of money into that branch of the bank, stated in evidence thus: [p.266] of [1972] 2 GLR 262 “On 20 April 1966 the accused visited our bank and paid in ¢10.00 (old cedis). I received the money and signed the pay-in-slips and handed the duplicate and the triplicate to the accused. Our bank took possession of the original pay-in-slips. At the moment we could not trace the original pay-in-slip. The pay-in-slip shown me was the duplicate which I signed on 20 April 1966 and which I handed to the accused. When I signed the duplicate, the amount stated in it was ¢10.00. This amount has been altered to read ¢22.80. I now observe that there are erasions on the duplicate which were not there at the time I signed it and handed it to the accused person. If the erasions were there at the time I would have asked the payee, the accused, to initial it.”
The sixth prosecution witness, the detective inspector (Enock Tackie), on receiving the letter of complaint from the Sunyani office of the corporation, had during investigation collected from that office four duplicate copies of the pay-in-slips, and from the bank, the statement of account in connection with the Sunyani branch of the corporation. And he continued his evidence thus:
“I contacted the Ghana Commercial Bank for the original pay-in-slips but they were unable to trace them. I compared the entries on the pay-in-slips and the bank statement of the accused and found that on 20 April 1966 the accused collected ¢22.80 as revenue for the corporation and an amount of ¢10.00 was paid to the bank. On 19 May 1966 ¢13.20 was collected by the accused and the accused paid into bank only ¢3.20. On 31 May 1966 the accused collected ¢37.20 as revenue and paid in ¢7.20; on 9 June 1966 the accused collected revenue in the sum of ¢21.60 and paid in only ¢1.60. I glanced through the pay-in-slips and observed that there had been interpolations, erasures and additions in the amount written in figures as well as in words.”
He tendered in evidence, as exhibit E, the statement of the appellant written by himself after he had
invited the appellant to the police station on 18 June 1966 and had cautioned him, as exhibit C1-4, the four bank pay-in-slips, and as exhibits D1-4, the bank statements appertaining to the corporation’s account. Continuing his evidence, he stated that he forwarded to Accra for analysis a specimen of the appellant’s handwriting together with the four bank pay-in-slips (exhibit C1-4); and that on 5 July 1969 the appellant in company of another person came and paid to him the sum of N¢60.70 “as a refund of the amount allegedly appropriated by the accused”; and he tendered in evidence this amount as exhibit E. The fifth prosecution witness, Theophilus Kodzo Yanu Chinson, No.2007 Sergeant stationed at the Criminal Investigation Department forensic laboratory, Accra, had earlier given evidence to the effect that (1) the writing on the four pay-in-slips received by him (from the sixth prosecution witness) was the writing of one and the same person; and [p.267] of [1972] 2 GLR 262 (2) comparing this writing with the specimen handwriting received by him (from the sixth prosecution witness), he concluded that both were written by the same person.
After the close of the case for the prosecution with the evidence of the sixth prosecution witness, Mr.
Oppong, counsel for the appellant, had submitted that “no case” had been made against the appellant on grounds which were substantially that:
(1) the prosecution was only relying on the evidence of the second prosecution witness, the third
prosecution witness and the fourth prosecution witness and the duplicate pay-in-slips (exhibits
C1-4) in proof of the alleged short payments, and that, without the production of the original
pay-in-slips, that there had been short payments by the accused could not be deemed to have been
sufficiently established;
(2) it was not sufficient for the prosecution to invite the officers of the bank to testify merely to the
effect that on the material dates he made the respective payments without producing the books of
the bank in which the entries were made;
(3) the prosecution failed to prove that the accused collected revenue to the tune of the amounts stated on the respective duplicate pay-in-slips.
These weighty submissions were overruled by the trial magistrate as also the submission regarding the failure of the prosecution to call as a witness one Oduro contended by the defence in cross-examination to have been the one who made the respective payments into the bank and to have been the one who made the alterations, and the appellant was thus called upon to make his defence.
In his defence, the appellant stated that from April to June 1966, an assistant accountant called Makari had found nothing irregular with his accounts when he audited them. John Oduro, who was the appellant’s assistant in the office, used to collect revenue, issue receipts for the amounts so collected, and pay them into the bank on his behalf after he, the appellant, had merely checked the amounts to be thus paid in and signed the original, the duplicate and the triplicate of the pay-in-slip on each occasion. On Oduro’s return from the bank after he had made the payments, he (the appellant) used the amount as stated on the duplicate and the triplicate of the pay-in-slips in compiling his accounts. That apart from his signature on each of the duplicate pay-in-slips exhibits C1-4, the writing appearing thereon was the writing of Oduro. He therefore denied that he made the apparent alterations. He stated that during the investigation period of the matter, and after he had been invited to the headquarters at Accra, the head of his department requested him to refund the amount involved in the short payments, as he was the officer responsible for the collection of the revenue and for the payment thereof into the bank. On his return to Sunyani, after he had raised a loan of N¢80.00 for that purpose, his surety had ignorantly paid the amount to the sixth prosecution witness. But as he was [p.268] of [1972] 2 GLR 262 later told that the amount thus paid to the police was being held up for their investigation, he had to pay to their head office at Accra the sum of N¢79.27 by way of a refund of the total of the amounts allegedly short paid. The appellant called no witness.
After several adjournments to enable defence counsel to address the court, counsel failed to appear. And on 4 August 1970, the learned district magistrate delivered his reserved judgment in which, after a résumé of the evidence of each prosecution witness and of the appellant he stated:
“It is clear from the evidence on the record that on 20 April 1966, 19 May 1966, 31 May 1966 and 9 June 1966, ¢12.80, ¢3.20, ¢7.20 and ¢1.60 respectively were paid into the bank on behalf of the Sunyani branch of the Ghana Broadcasting Corporation, and not ¢22.00, ¢13.20, ¢37.20 and ¢21.60 as it is reflected in exhibits Cl-4, the duplicate pay-in-slips. As it is a fact that on 20 April 1966, 19 May 1966, 31 May 1966 and 9 June 1966, ¢12.80, ¢3.20, ¢7.20 and ¢1.60 respectively were paid into bank, exhibits C1-4 are forged documents and the differences of ¢10.00, ¢10.00, ¢30.00 and ¢20.00 were misappropriated.
The question which arises for answering is: Who is the culprit? The prosecution says it was the accused and the defence is saying it was John Oduro the whereabouts of whom is unknown. Was John Oduro the culprit as contended by the defence? According to the accused on oath, after signing the pay-in-slips on 20 April 1966, 19 May 1966, 31 May 1966 and 9 June 1966, he handed the slips to John Oduro to fill in. On his arrest, the accused was cautioned and he wrote down his own statement exhibit B. In exhibit B, the accused stated amongst other things, . . . ‘of course the slips were prepared by myself by the dates attached 20 April 1966, 19 May 1966, 31 May 1966 and 9 June 1966 and the signatures are my own signatures . . .’ I ask what is meant when the accused stated in his own statement that of course the slips, exhibits C1-4, were prepared by himself. Could the accused be heard to say on oath that it was John Oduro who prepared exhibits Cl-4?
To me the answer must be no. The accused’s allegation that it was John Oduro who prepared exhibits Cl-4 is an afterthought which I find no difficulty to reject. Apart from this, there is the vital evidence by the handwriting expert, the fifth prosecution witness. In the opinion of this witness, it was the accused person who was the author of exhibits C1-4. Whilst this witness was in the box, the defence did not impeach his credibility. It was when the accused was giving his defence that he impeached the testimony of the handwriting expert, the fifth prosecution witness. The time to impeach a witness, that is, to say a witness is not a witness of truth, is when that witness is in the witness box. This was not done in the present case. I have listened to the handwriting expert, the fifth prosecution witness and in my opinion, he had performed his duty to the best of his ability.
[p.269] of [1972] 2 GLR 262 I am therefore prepared to accept his conclusion and act upon it. Therefore from the evidence on the record, I am satisfied beyond doubt that it was the accused and not John Oduro who prepared exhibits C1-4. I am also satisfied beyond doubt that on 20 April 1966 instead of the accused paying ¢22.80 into the bank the accused paid ¢12.80, on 19 May 1966 instead of ¢13.20, the accused paid in only ¢3.20, on 31 May 1966 instead of ¢37.20, the accused paid in ¢7.20 and on 9 June 1966 instead of ¢21.60, accused paid in only ¢1.60. The accused by paying such sums into the bank, misappropriated the differences which were ¢10.00, ¢10.00, ¢30.00 and ¢20.00 respectively, the subject-matters of counts two, four, six, and eight.
Satisfied that the prosecution has established the guilt of the accused person beyond all doubt in respect of all the eight counts, I find the accused person guilty on all the eight counts. In the result I convict the accused person on all the eight counts.”
The main grounds in the petition of the appeal against the conviction were that, (a) “having regard to the evidence, the judgment cannot be supported and (b) the magistrate erred in law.” However, learned counsel for the appellant, in filing the petition failed to give particulars of the error in law. At the hearing of the appeal on 10 May 1972 the appellant, appearing in person, had stated substantially that the Broadcasting Corporation had at the trial court produced only the duplicates of the bank pay-in-slips when the court had requested that the originals be produced in evidence. The officer Oduro, who did the paying into the bank on his behalf when engaged, could not be traced by the prosecution and he was therefore not found to give evidence. The bank pay-in book used in their office for the payments of revenue into the bank was a book used by the Duayaw Nkwanta station and the Nsuatre station of the corporation. G. W. Oduro who was the regional head of the department at the material time had during the trial been transferred, and he was not called by the prosecution as a witness; the prosecution rather called one I. E. Arhin who was the new head. The appellant therefore contended that he had been aggrieved by these factors in the evidence at the trial court.
Mr. Kaleo-Bioh counsel for the Republic argued that the English Banker’s Books Evidence Act, 1879 (42 & 43 Vict., c.11), as applicable to criminal proceedings, did not apply in Ghana courts, and that even though by the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 37, rr. 67-76, this English Act is apparently re-enacted, the provisions of the re-enactment do not apply to criminal cases, but arc applicable solely to civil causes or matters including arbitration. He argued that as Order 37, r.76, defines “legal proceeding” as “any proceeding in a cause or enquiry or matter in which evidence is or may be given, and includes an arbitration,” it does not apply to criminal matters, because that definition of “legal proceeding” is limited to civil matters by reason of the very title to the rules. The learned state [p.270] of [1972] 2 GLR 262 attorney further contended that, that the prosecution did not prove by direct or positive proof that the resultant amounts on the duplicate pay-in-slipswere the outcome of the alleged forgeries, were amounts the accused did collect or hold for the corporation at the material times was immaterial owing to the effect of the evidence of the second, third and fourth prosecution witnesses. Also the admissions made by the accused in his cautioned statement (exhibit B) showed that he collected the particular amounts reflected in
the forged pay-in-slips (exhibits Cl-4). It was therefore the duty of the appellant to account for the
differences of the amounts on exhibits Cl-4 and the moneys actually paid into the bank. Counsel for the respondent also referred to the defence of the appellant that it was rather one Oduro who paid in the material amounts at the material times and that hence Oduro might have stolen the difference and further argued that this defence showed that the appellant admitted having actually collected the material amounts; that in any case, the evidence of the second and fifth prosecution witnesses negatived that defence of the appellant that it might have been Oduro who made the short payments and made the material alterations and, even so, the evidence of the fifth prosecution witness did establish that the alterations had been made by the appellant. He also contended that no evidence appeared on the record that the bank pay-in book, from which exhibits Cl-4 were taken, was a book used by the two different stations of the corporation as contended by the appellant.
After the learned state attorney had proffered these arguments in support of the convictions, Dr.
Ohene-Djan, announcing himself as appearing for the appellant at that stage, in reply contended that
Order 37, rr. 67-76 do apply to criminal proceedings as well as to civil matters, by reason of the definition of “legal proceeding” in rule 76. Since rules 67, 68 and 69 of that Order were not complied with by the prosecution, the evidence of the second prosecution witness, the third prosecution witness and the fourth prosecution witness was hearsay and inadmissible, and therefore worthless. Referring to the evidence of the fourth prosecution witness, counsel contended that the fact that the fourth prosecution witness said he did not remember Oduro paying in the money did not establish that Oduro in fact did not pay in the money, and that, as the prosecution was under a duty to call Oduro as a witness, their failure to do so must have left the court in doubt whether or not the payments in were made by the appellant; that even if it is at all acceptable that the evidence established that the accused was the one who made the alterations, the mere making of the alterations of what he himself had written did not amount to forgery in law unless
there be further evidence establishing either an intent to deceive or intent to defraud.
After hearing these arguments for both sides and adverting to the charges of forgery and stealing as
preferred against the appellant, this court must also direct its attention to what the prosecution should have established in evidence during the trial to ground a sufficient case in respect of each such charge. As it was the evidence of the first prosecution [p.271] of [1972] 2 GLR 262
witness, the technical superintendent of the corporation, that the appellant as the corporation’s revenue collector at the material times specified in the respective charges, was under a duty to collect the fees (payable by subscribers) of re-diffusion boxes (installed by the corporation), and to pay the amounts thus collected into the corporation’s account in the bank, it was therefore the duty of the prosecution to proffer at the trial, evidence establishing (1) the total amount of such fees which had been collected by the appellant at each of the material times, and (2) the respective factual amount which had been paid into the bank.
With regard to (1) above, evidence of each fee paid to the appellant should have been authenticated either by the oral evidence of the payer (the subscriber of the re-diffusion box) to subject him to
cross-examination, or by the tendering in evidence of the duplicates of the receipt given to the payer. This evidence in proof of the collection (by the appellant) of these amounts should show how much on each material date the appellant had in hand, and how much he should therefore have paid into the corporation’s account in the bank, on the bank pay-in-slips. The mere statement in evidence by the sixth prosecution witness, the detective inspector that:
“On 19 May 1966, ¢13.20 was collected by the accused and the accused paid into bank only ¢3.20; on 31 May 1966 the accused collected ¢37.20 as revenue and paid in ¢7.20; on 9 June 1966 the accused collected revenue in the sum of ¢21.60 and paid in only ¢1.60”;
is nothing short of a guess or hearsay, as it was not the evidence of this detective inspector that the
respective amounts allegedly collected were so collected in his presence either at the appellant’s office or at the place of such collection. How did he know that such amounts were in fact collected by the accused as revenue? In cross-examination he stated:
“I have told this court that on 20 April 1966 the accused collected ¢22.80 as revenue. It was the regional head of the Broadcasting Corporation who extracted the figure from their ledger kept by the accused. This applies to the other figures. I tried to collect the receipt book but I was unable to trace it at the Broadcasting Corporation.”
Such evidence was clearly legally inadmissible. That regional head should himself have given evidence and tendered the ledger in evidence and should have adduced evidence to establish how he did the extraction from that ledger and the factual result ensuing from such extraction, and thereby subject himself to cross-examination. In the absence of such evidence to establish the total fees factually collected by the appellant as revenue on each material date, the prosecution did fail to establish that the amounts shown on the pay-in-slips exhibits C1-4 as being the result of the alleged alterations of the writing on each such pay-in-slip after the payment had been made into the bank, was the total [p.272] of [1972] 2 GLR 262 amount of revenue which was collected and which should have been paid by the appellant into the bank.
With regard to (2) above, i.e, the necessity for adducing evidence to establish the respective amounts
factually paid into the bank and which were allegedly less than the respective amounts actually collected by the appellant, the evidence adduced by the prosecution failed to establish the payment of the amounts which they alleged were those paid in by the appellant at the respective dates: The evidence of the third and fourth prosecution witnesses was to the effect that, at those material times, when each of them was a receiving cashier of the bank, it was the appellant who had paid in through their hands the amounts they specified, as being less than what appeared on the duplicate pay-in-slips allegedly falsified, after such payments in, to represent amounts larger than what were in fact paid in. But this evidence was not cogent enough, because the payments were allegedly made on 20 April 1966, 19 May 1966, 31 May 1966 and 9 June 1966; and these witnesses gave evidence as late as in May and June, 1970, i.e. after a lapse of about four years. The best evidence of the amounts actually paid by the appellant should have been the production of the written documents, which were the original pay-in-slips, upon which these two cashiers did receive from the accused the amounts he then paid in and which were checked by them upon receipt. The oral evidence of these two cashiers was only admissible in so far as they alleged that they themselves received the respective amounts from the appellant when he was paying them at the counter of the bank which they were then manning. Their evidence was direct evidence of the receipt by them of the respective amounts they alleged the appellant paid in at those material times, but the four-year lapse of time naturally made their evidence of not much weight, even though this evidence might suffice in a civil
case.
Thus the best evidence adduceable to establish the amounts paid in by the appellant would have been the production of the original pay-in-slips which remained in the possession of the bank upon the payments made to these cashiers. It is significant to observe that with regard to the non-production of these originals, the evidence of the fourth prosecution witness in chief was that, “Our bank took possession of the original pay-in-slip. At the moment we could not trace the original pay-in-slip.” And the sixth prosecution witness, the detective inspector, had this to say in evidence, “I contacted the Ghana Commercial Bank for the original pay-in-slips but they were unable to trace them.” Consequently, merely stating that these originals could not be traced is not ample evidence to ground the adduction of secondary evidence in proof of their contents. The legal principle underlying the admissibility of secondary evidence of the contents of a document is stated at p.328 of Cockle’s Cases and Statutes on Evidence (8th ed.) thus: [p.273] of [1972] 2 GLR 262 “Secondary evidence of a document is admissible when the original is lost or destroyed, but it must be shown
that proper search has been made for it. What is proper search depends on the nature and value of the document. More careful search will be required for a valuable than for a useless document.”
The emphasis is mine. It must be observed at this juncture that, to the bank, these originals were valuable in so far as they were to afford evidence in future as in this case, of the quantum of money which was deposited into the bank in favour of the corporation and which the bank was holding for the corporation.
Further evidence of the loss of them should have been established by an officer of the bank who had been responsible for the keeping of those originals in a specific place or file of the bank, to show what his efforts had been in his attempt to retrieve them for their production at the trial. But there was no evidence to establish that this proper search was made for those originals to warrant the admission of this secondary evidence of their contents; and therefore very little or no evidential weight was attachable to the overall evidence of their contents as given by the bank cashiers (the third and fourth prosecution witnesses) in these criminal proceedings, even though such weight might suffice in a civil action.
Besides what sums were actually paid into the corporation’s account at that bank at the material times, would be reflected in the relevant account books of the bank as kept by them in their normal and ordinary course of business, and therefore the best evidence, next to the best evidence afforded by the production of the original pay-in-slips, would have been the production of those account books by an officer of the bank who had been keeping those books and who had transferred into those books the figures of the amounts as appeared on the relevant original pay-in-slips. Instead of doing this, the prosecution through the sixth prosecution witness merely adduced evidence thus:
“In the course of my investigation, I collected from the Ghana Commercial Bank the corporation’s statement of account and four duplicate copies of pay-in-slips from the corporation. I compared the entries on the pay-in-slips and the bank statement of accused and found that …”
The sixth prosecution witness ultimately tendered in evidence the alleged bank statements as exhibits D1-2.
Exhibits D1-2, these alleged bank statements, were merely produced in evidence as things he had
collected from the bank; and, in so far as he had not been concerned with the preparation of them and therefore did not know what the books were from which they were extracted, the contents of exhibits D1-2 were inadmissible; for, their contents appeared to have afforded hearsay evidence of the contents of the books from which they had been extracted; and they were also inadmissible because there was no evidence tending to establish that the original books from which they had been extracted could not be brought to the [p.274] of [1972] 2 GLR 262 court either because it was physically impossible or because the law did not allow or require those books to be brought to the court on grounds of public convenience, so as to form the legal basis for the production of those exhibits D1-2 as secondary evidence of the contents of those books. Either ground, if
asserted for the non-production, would have been untenable in law, because, in the first place, those
books could not have been said to be physically impossible to be produced before the court; and, in the second place, their production or being brought to court could not have been asserted to involve
inconvenience to the public, as they could not be held to be “public documents” on the basis of any
evidence that (1) there was a legal duty to make the entries made in those books for public information or reference, and that (2) entries in them were made in proper time by the proper officers, after proper inquiry. Therefore, as those books were not “public documents,” the entries in those books from which exhibits D1-2, appeared to have been extracted could not afford evidence against anyone like the appellant: See Sturla v. Freccia (1880) 5 App.Cas. 623. H.L. And because those books were not public documents those extracts, exhibits D1-2 from them could not be admissible in evidence whether or not they were in the form of (1) examined copies, or (2) certified copies, or (3) office copies.
Tersely therefore, the alleged bank statements (exhibits D1-2) were in any case inadmissible: for, (1)
there was no foundation laid for their being tendered in evidence as secondary evidence of the contents of the books from which they were extracted, and (2) they were not proved to be examined or certified or office copies of public documents.
Clearly, these bank statements (exhibits D1-2) appeared to have emanated from the books of the bank.
And the argument of Mr. Kaleo-Bioh, the learned senior state attorney, was that the provisions of the
English Bankers Books Evidence Act, 1879 (42 & 43 Vic., c. 11); did not apply to criminal proceedings
in Ghana. I go with him in that contention, only because it was not a statute of general application as
existed on 4 July 1874. However, the further forceful contention of the learned senior state attorney that the provisions of Order 37, rr. 67-76 were not applicable to criminal proceedings has some merit in view of the definition of “legal proceeding” as stated in rule 76 of that Order. According to that rule, “‘legal proceeding’ means any proceeding in a cause or enquiry or matter in which evidence is or may be given, and includes an arbitration.” The learned senior state attorney argued that this definition must be confined to civil matters only by reason of the title being by rule 1 promulgating the Rules, the “Supreme [High] Court (Civil Procedure) Rules.” This argument, after engaging my considerable attention, is merely plausible, in view of the following definition of “cause“ in Order 1 r. 1 of the rules dealing with its interpretation, “‘Cause’ includes any action, suit other or original proceeding between plaintiff and defendant.” But in rule 2 of the Rules promulgating them (under section 19 of the Courts Ordinance, Cap. 4 (1951 Rev.)), [p.275] of [1972] 2 GLR 262
it is stated, “These Rules shall apply in all causes and matters to which they extend in the Supreme Court . . .” It is significant to observe also that by Order 1 dealing with the interpretation of the Rules it is stated: “1. In the construction of these Rules unless there is anything in the subject or context repugnant thereto, the several words hereinafter mentioned or referred to shall have and include the meanings following: . . . ‘Cause’ includes any action, suit or other original proceeding between plaintiff and defendant.” In this interpretation section, since by the use of the word “includes” the definition of the word “cause” is not restrictive but extensive, one or other of the Rules may be applied to other “causes” not included in the clause, provided that nothing in the subject or context of that “cause” makes the application of the rule repugnant. Therefore the application of Order 37, rr. 67-76 to a criminal cause or matter cannot be said to be repugnant and therefore they are applicable to any criminal cause in which evidence of the statement of account in a banker’s book is necessary, if the case is proceeding before the High Court.
As the present case was tried at the district court, it is pertinent to observe that the present proceedings there did fall within the unrepealed provisions of the Rules in the Courts Ordinance, Cap. 4 (1951 Rev.), Sched. I, p. 85 states:
“The rules in this Schedule shall be applied in all causes, matters, and proceedings, civil and criminal, to which they extend: Provided that rules 1-11 of order 3 shall not extend to criminal causes, matters, or proceedings.” Within that schedule is Order 6 dealing with evidence, and under Division 6 of that Order dealing with evidence appertaining to banker’s books appear rules 33-43, the provisions of which are exactly the same as those in rules 67-76 of Order 37 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A).
The result is that before a court or judge, or before whomsoever a “legal proceeding” criminal or
otherwise, is in progress, rules 33-43 in Division 6 of Order 6 of the Schedule I to Cap. 4 must be applied when the evidence to be adduced relates to the contents of the books of a banker.
Therefore, in the present case:
(1) as, under the provisions of the instant rules relating to evidence of banker’s books, there was no
admissible evidence in proof that the lesser amounts stated in the charges were what in fact the
accused did pay into the Sunyani branch of the Ghana Commercial Bank, the alleged bank
statements (exhibits D1-2) as tendered in evidence by the detective inspector (the sixth prosecution
witness) were merely things he had collected from that bank, and their contents were therefore
inadmissible evidence against the appellant. [p.276] of [1972] 2 GLR 262
(2) The evidence of the third and fourth prosecution witnesses as the bank cashiers at the material
times, though direct evidence of what they saw and received, was (a) weakened by the lapse of time
of four years, and (b) rendered inadmissible by the very fact that the best evidence of the amounts
they received on the original pay-in-slips was the contents of those slips themselves the alleged loss
of which was not explained by any evidence of a proper search upon which this direct evidence of
the third and fourth prosecution witnesses could be legally admitted as secondary evidence of the
contents of those original pay-in-slips.
(3) There was no evidence to establish that the amounts in each charge and appearing respectively on
exhibits C1-4 (the duplicate pay-in-slips allegedly falsified) were in fact what the accused did
respectively collect as fees for the corporation at the material times; because, there was no evidence
from the payers of those fees to establish the sums which they paid and which were allegedly
collected by the appellant; nor was there evidence available by the tendering of any original
receipts, or their respective duplicates, which the appellant had issued to those payers. I cannot
conceive of a revenue collector collecting revenue without issuing a receipt to the payer. In
cross-examination, the sixth prosecution witness is recorded to have stated inter alia:
“I have told this court that on 20 April 1966 the accused collected ¢22.80 as revenue. It was the
regional head of the Broadcasting Corporation who extracted the figure from their ledger kept by the accused.” This evidence of the sixth prosecution witness, as relating to the contents of an existing document (ledger) and as relating those contents as found by a person who did not himself give direct evidence (to establish how he did this extraction from that ledger) to subject himself to
cross-examination, was hearsay upon hearsay, and was therefore inadmissible against the appellant.
(4) In the absence of any legal evidence in proof that the lesser amount stated in each of the four
charges of stealing was what the appellant in fact did pay into the bank at the material dates on the
allegedly falsified duplicate pay-in-slips (exhibits Cl-4), the prosecution failed to prove that the
appellant did steal the amount, as stated in each of the charges of stealing, and which was the
difference between the amount allegedly collected as revenue and the lesser amount allegedly paid
in by him.
(5) Even though the cashier, the fourth prosecution witness, did state in his evidence-in-chief that the amount on exhibit C3 was ¢10 and not ¢22.80 when he signed it, and even though the evidence on the record did establish that the writing on exhibits Cl-4 as to the alteration thereon was that of the appellant, in [p.277] of [1972] 2 GLR 262 view of (3) and (4) as above stated, it cannot be held that an intent either to defraud or to deceive was proved by the prosecution, and therefore each of the charges of forgery was not established.
I therefore hold that at the close of the case for the prosecution at the trial court, there was no sufficient case made out against the appellant on each of the charges preferred against him. The evidence that he refunded the total of the amounts allegedly stolen did not ipso facto establish the stealing by him; it was neutral. In the result, I do hereby allow the appeal, quash the conviction and sentence on each charge, andacquit and discharge the appellant on each such charge—the non-cumulative fines to the amount of ¢80.00, if paid, are to be refunded to the appellant. The amount of ¢60.70 (exhibit E) to be restored to the appellant. Court below to carry out.
DECISION
Appeal allowed.
Conviction and sentence set aside.
