Division: IN THE COURT OF APPEAL
Date: 28TH SEPTEMBER, 1959.
Before: VAN LARE J.A. AS C.J., GRANVILLE SHARP J.A. AND OLLENNU J.
HEADNOTES
In 1957 one Kwabena Bonsu caused a solicitor to prepare a Will for him. Bonsu expressed a desire that Seth Tabi and Kwabena Anyimadu should be the attesting witnesses; but these men not being then available, he (the testator) alone subscribed the Will, leaving the attestation to be made at a later date when the two men would be available. He then entrusted the Will, as subscribed, to his daughter for safe-keeping.
The testator died on the 15th September, 1957, with the Will still unattested. The daughter produced the Will to her husband Jacob Kwabena Mensah. Upon learning that it was the expressed wish of the testator that the attestation of the Will should be by the persons named, and for the purpose of giving effect to the intentions of the testator, Mensah procured Tabi and Anyimadu to subscribe their names in the attestation clause (which had already been typed out) as witnesses to the execution of the Will.
All three men were prosecuted, Seth and Anyimadu on a charge of forgery, to which they pleaded guilty. Mensah was charged on two counts of aiding and abetting forgery, contrary to section 46(1) and 314(1) of the Criminal Code. The particulars in Mensah’s case were that on or about the 22nd September, 1957 he procured Kwabena Seth Tabi (in one count) and Kwabena Anyimadu (in the other count) “to commit the crime of forgery with intent to defraud.”
At Mensah’s trial, Seth and Anyimadu were prosecution witnesses. The former said, “when I witnessed the Will I did not intend to defraud anyone.” Anyimadu said, “when I thumbprinted the document I thought what Mensah requested me to do was a proper thing.”
The learned Judge (Scott J.) said in his judgment at Mensah’s trial:
“After I had summed up the three assessors unanimously stated that in their opinion the accused was guilty on both counts. With this opinion I am in entire agreement as I am satisfied that when the accused caused this Will to be witnessed after the death of Kwabena Bonsu, he did so with an intent to defraud.”
Mensah was convicted on each count on the 2nd April, 1959, and was sentenced on each to seven years imprisonment with hard labour, the sentences to run concurrently.
Mensah appealed to the Court of Appeal, where the main ground argued was that the learned Judge had misdirected himself as to intent.
Criminal Appeal No. 48/1959,
[p.315] of [1959] GLR 314
Held:
(1) that for criminal abetment to exist, the action abetted must be a crime;
(2) that the absence, in the forger of a Will, of intent to defraud, protects the forgery from being an offence against sec. 314(1) of the Criminal Code, and therefore also protects the person procuring the forgery from conviction of aiding and abetting an offence against that section.
COUNSEL
de Graft-Johnson for appellant (Mensah). The question is whether there is evidence from which intent to defraud can be inferred: the intent must relate to the prisoner. It is submitted that such evidence is lacking. The charge alleges the aiding and abetting of the commission of an offence. (Cites Johnson v. Youden & ors. ([1950] 1 K.B. 544). The evidence shows that neither of the persons alleged to have committed a forgery had the necessary intent to defraud: nor had the appellant.
Glasgow for respondent (Crown). Each charge alleges that the appellant aided and abetted a person who had committed the offence of forgery with intent to defraud. The Crown relies on the definition of “intent to defraud” in sec. 18 of the Criminal Code, and submits that the intend to defraud may be inferred from the fact that one of the two charged with forgery pleaded guilty to that charge.
JUDGMENT OF OLLENNU J.
(His lordship stated the facts of the case, and proceeded:-)
There is no doubt that Mensah misconceived the requirements of the law as to the proper execution of a Will, but it is clear on the evidence that his sole purpose in doing what he did was to give effect to the intentions of the testator. We are unable to discover, or to infer, mens rea.
The main ground of appeal argued is that the learned Judge misdirected himself on the question of intent. That ground involves three points, viz.,
(i) misdirection as to the person in whom the intent to defraud must be shown;
( ii) whether there is any evidence from which intent to defraud can be inferred, having regard to the findings of the learned Judge;
(iii) whether fraud as defined in section 18 of the Criminal Code is shown to exist.
As to the first point: The offence of aiding and abetting the commission of a crime is committed by a person who, knowing what the essential ingredients of a particular crime are, “directly or
[p.316] of [1959] GLR 314
indirectly instigates, commands, counsels, procures, solicits, or in any manner purposely aids another person in the commission of that crime” (Criminal Code, sec. 46 (1); and see Johnson v. Youden & ors.([1950] 1 K.B. 544).
The essential ingredient of the crime of forging a will, contra sec. 314 (1) of the Criminal Code, is that the forgery must be made with one or other of the following intents, namely, “intent to defraud, intent to defeat, obstruct or pervert the course of justice.” In the absence of such intent, the “forgery” is no offence against sec. 314 (1), and the existence of the intent in an abettor of the “forgery” could not supply the lack of intent in the “forger,” so as to make the “forgery” an offence against the section. And, indeed, each of the charges as laid in the information against Mensah for abetting, alleges that Tabi and Anyimadu had such an intent to defraud.
The learned trial-Judge, however, concluded his judgment in the following words:
“After I had summed up the three assessors unanimously stated that in their opinion the accused was guilty on both counts. With this opinion I am in entire agreement, as I am satisfied that when the accused caused this Will to be witnessed after the death of Kwabena Bonsu, he did so with an intent to defraud.”
This finding of the learned Judge amounts to a direction to himself that it is the abettor who must intend to defraud, not the principal offender. This is a clear misdirection, and reveals that the learned Judge’s concept of the offence of aiding and abetting the commission of a crime is erroneous. In consequence, he proceeded upon wrong principles, which led him to give a decision amounting (in our view) to a substantial miscarriage of justice.
Again, the finding of the learned Judge that the intent to defraud was on the part of Mensah amounts (taken in its proper context in the judgment) to a finding that there is no proof that when Seth Tabi and Kwabena Anyimadu forged the will either of them did so with intent to defraud.
Putting it at its most favourable to the Crown, the learned Judge did not find that the principals in the crime, Seth Tabi and Kwabena Anyimadu or either of them forged the Will with intent to defraud, i.e. with intent that there should be any gain, or the possibility of any gain, to any person at the expense or to the loss of any other person, as set out in section 18 of the Criminal Code.
[p.317] of [1959] GLR 314
Upon that finding the direction which the learned Judge should have given to himself was that neither Seth Tabi nor Kwabena Anyimadu had committed the crime of forgery as known to the law. He should then have gone on to direct himself that since the act which Mensah procured the two men to do was not a crime under this section, Mensah was not guilty of aiding and abetting the commission of the offence of forgery as charged.
Learned counsel for the Crown submitted that the evidence given by the said Seth Tabi and Kwabena Anyimadu at the trial – that each was charged with the offence of forging the said Will, and that each pleaded guilty to that charge – is conclusive evidence that each of the two persons did the act of forging the document with the intent to defraud. We are of the opinion that this submission is fallacious.
In the first place it does not appear anywhere in the evidence of Seth Tabi (the 7th prosecution witness at the trial) that he had pleaded guilty to such a charge, though we are aware of it by reason of another appeal in our list. On the contrary, there appears this categorical piece of evidence given by Seth Tabi:
“When I witnessed the Will I did not intend to defraud anyone.”
In this case of Kwabena Anyinadu, it should be pointed out that, side by side with his evidence that he had pleaded guilty to a charge of forging the Will, there is the following evidence given by him, i.e. “When I thumbprinted the document I thought what accused requested me to do was a proper thing.”
This latter piece of evidence negatives intent to defraud, and, when considered with the evidence of the plea of guilty, it reduces that plea to this: “I admit I forged the Will, but I deny that I forged it with an intent to defraud.” It therefore appears that the plea of guilty to the charge of forging the Will of Kwabena Bonsu was not in any way an admission of this necessary ingredient of the charge.
We are satisfied upon this evidence in the appeal that, when Mensah procured the two men to do what they did, neither of them (Seth Tabi and Kwabena Anyimadu) had any intent to defraud, or any other mens rea.
As to the third point of misdirection. The evidence is that the sole object with which Seth Tabi and Kwabena Anyimadu forged the Will was to make it possible for the expressed wishes of the testator to be carried out. There is no evidence to the contrary, and that intent is the only inference which can be drawn from the whole of the evidence produced at the trial.
What is clear is that Mensah did procure certain men to make a document (the Will) with intent to cause it to be believed that the document was made in the presence of all of those whose signatures appeared on it, whereas it was not true that they were present at one and the same time. In our view this is, on the face of it, a wrongful act; but what intent (if any) existed so as to make it unlawful, or what particular unlawful act (if any) was knowingly committed so as to expose the participants to criminal prosecution, we are not prepared to conjecture.
DECISION
For the reasons given we allowed the appeal.
(Note: The appeals of Seth Tabi and Kwabena Anyimadu had been allowed on the 23rd September.)
