SOKOTO AND ANOTHER v. THE REPUBLIC [1972] 2 GLR 372
COURT OF APPEAL
Date: 21 JULY 1972
BEFORE: SIRIBOE AND BENTSI-ENCHILL JJ.S.C. AND KINGSLEY-NYINAH J.A.
CASES REFERRED TO
(1) R. v. Agu (1949) 12 W.A.C.A. 486.
(2) R. v. Carr-Briant [1943] 1 K.B. 607; [1943] 2 All E.R. 156; 112 L.J.K.B. 581; 169 L.T. 175; 107
J.P. 167; 59 T.L.R. 300; 29 Cr.App.R. 76, C.C.A.
(3) R. v. Patterson [1962] 2 Q.B. 429; [1962] 2 W.L.R. 496; 126 J.P. 126; 106 S.J. 156; [1962] 1 All
E.R. 340; 46 Cr.App.R. 106, C.C.A.
(4) R. v. Brown (1971) 55 Cr App. R. 478.
(5) R. v. Warner [1969] 2 A.C. 256; [1968] 2 W.L.R. 1303; [1968] 2 All E.R. 356, H.L.
(6) R. v. Ansere (1958) 3 W.A.L.R. 385, C.A.
(7) Wong Poo Yin v. Public Prosecutor [1955] A.C. 93; [1954] 3 W.L.R. 471; 98 S.J. 586; [1954] 3
All E.R. 31, P.C.
(8) R. v. Obiase (1938) 4 W A.C.A. 16.
(9) Asamoah v. The State [1962] 2 G.L.R. 207, S.C.
NATURE OF PROCEEDINGS
APPEAL against convictions on a count of possessing forged Ghana currency notes without lawful
authority. The facts are sufficiently stated in the judgment.
COUNSEL
A. Forson for the first appellant.
Frempong-Boadu for the second appellant.
K. A. Sekyi, Principal State Attorney, for the respondent.
JUDGMENT OF NYINAH J.A.
Kingsley-Nyinah J.A. delivered the judgment of the court. This is an appeal against convictions by his
honour Isaac Amoah, circuit judge, [p.374] of [1972] 2 GLR 372 Takoradi, who after due trial, sentenced each appellant herein to a term of seven years’ imprisonment with hard labour, on 8 September 1971.
As against the first appellant, the indictment alleged that he had in his “possession without lawful
authority or excuse, four (4) forged N¢10 currency notes knowing the same to be forged.” The same
allegation was levelled against the second appellant who was, however, charged with “possessing… five hundred and forty-five (545) forged N¢10 notes knowing the same to be forged.” This offence is contrary to section 18 (2) of the Currency Act, 1964 (Act 242).
By two certificates, exhibits L and M, dated 17 August 1970, and given under the hand of the Governor of the Bank of Ghana, the prosecution established beyound question the fact that all those currency notes the subject-matter of the charge, were “imitations of a bank note and are not bank notes issued or deemed to be issued by the Bank of Ghana.”
The facts of this case not being in dispute, we do not intend setting them out at length, except to point at such significant features so as to bring this case well within the provisions of the Currency Act, 1964:
(a) In the course of a search by the police of house No. 73/3, Liberation Road, Takoradi, the first
appellant was found in a room.
(b) That room was admitted by the first appellant to be occupied by him and to be also under his
control, as the paying tenant.
(c) The search yielded a quantity of both genuine and spurious Ghana currency notes.
(d) The counterfeit notes were discovered carefully hidden away under the first appellant’s floor
carpet; the genuine notes were found in a purse.
(e) The first appellant admitted that these faked notes belong to him. But he explained that they had
gotten into his custody and possession from a certain Nigerian friend to whom he had sold two
automatic wrist watches and, furthermore, that he never knew those notes were forged notes.
(f) In another room occupied by the second appellant (but in a different house) the police found in the pocket of a jumper hanging on a wall, a hospital card bearing the second appellant’s name, together with two five-cedi Ghana currency notes, each a counterfeit. There was a bed in that room;
underneath that bed, and under the pillow on that bed, the police further discovered a parcel of 545
ten-cedi Ghana currency notes wrapped up in an old newspaper, and another parcel which
contained 100 ten-cedi Ghana currency notes. Both sets of currency notes were counterfeit.
Section 18 (2) of the Currency Act, 1964, provides that:
“A person who without lawful authority or excuse, purchases or receives from any other person, or has in his custody or possession, any forged note knowing the note to be forged, shall be guilty of a second degree felony.”
[p.375] of [1972] 2 GLR 372 (The emphasis is mine). In prosecutions under this Act, the person accused is necessarily called upon, contrary to the general principle of criminal law, to prove lawful authority or excuse. This is further shown by section 34 of the Currency Act, 1964, which provides as follows:
“In any prosecution charging any person with an offence against this Act by the doing of anything, or having anything in his custody or possession without lawful authority or excuse, the onus of proof shall be on the person charged that he had lawful authority or excuse.” (The emphasis is mine).
In this present case the appellants were therefore under a duty to defend their possession of all those
fraudulent currency notes by demonstrating an excuse that was valid. Even so, the first burden always falls upon the prosecution to establish knowledge of the falsity of the currency notes in the person charged with their possession. In R. v. Agu (1949) 12 W.A.C.A. 486 this double duty upon the
prosecution and upon the defence, was explained at p. 487 as follows:
“[T]he onus lies on the prosecution to prove that the accused had knowledge of his possession of forbidden articles or at least to prove facts which would justify the inference that he had such knowledge. Only in that case does the onus lie upon the accused to prove lawful authority or excuse for his possession, a burden it would be impossible for him to discharge unless it be established that he had knowledge of the possession.” (The emphasis is mine).
In coming to a decision in this case, we are called upon to determine the extent to which the appellants stand caught, if at all, by the sections of the Currency Act, 1964, that are applicable to the facts before the trial circuit court. It is of course our further duty to consider the excuses urged in defence by the appellants, and to decide whether, having regard to the object and purpose of the statute, those excuses are lawful and such as ought to have entitled the appellants to an acquittal by the trial court.
It is significant to observe, in this connection, that the Currency Act, 1964 (Act 242), was enacted, as
indicated by the long title:
“. . . to amend and consolidate the law relating to coins and notes issued by the Bank of Ghana, to prohibit certain acts tending to depreciate the currency, to provide for the prohibition of the importation and exportation of specified coins and notes and for matters incidental to or connected with the matters aforesaid.”
This Act is meant to guard the country’s economy so that unscrupulous persons may not depreciate her currency and thereby damage her economy. It is with such an object in view that the possession of forged or counterfeit notes is made unlawful, because it is both immoral and [p.376] of [1972] 2 GLR 372 against public policy. It was the intention of the legislature to place an absolute prohibition upon the making, or the possession, of counterfeit notes or coins without lawful authority or legitimate excuse.
We must point out, however, that strict and absolute though the provisions of the Currency Act, 1964, are regarding proof, the burden that shifts on to the accused to prove lawful authority, or excuse, is never as stringent, or as heavy, as that which almost always rests upon the prosecution in criminal cases to establish guilt with certainty and assurance.
In R. v. Carr-Briant [1943] 2 All E.R. 156 at pp. 158-159, C.C.A. it was held that:
“[W]here, either by statute or at common law, some matter is presumed against an accused person ‘unless the contrary is proved’ . . . the burden of proof required is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt: and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish.” (The emphasis is mine).
In the more recent case of R. v. Patterson [1962] 1 All E.R. 340, C.C.A. (a matter of “possessing
housebreaking implements by night”), it was held, inter alia, that once possession of such burglarious implements had been shown, the burden shifts on to the prisoner to prove, on the balance of probabilities, that there was lawful excuse for his possession of the implements at the time and place in question. And even more recent is the case of R. v. Brown (1971) 55 Cr.App.R. 478, quid vide sections 18 (2), 33, and 34 of the Currency Act, 1964, are absolute in their requirements. In our view the requirements of lawful authority or excuse contemplated by the statute is not satisfied by an accused person if, once possession or custody is established against him, he puts forward the bare plea, without more, that he never knew the notes were forged. Therefore, in order to avail him as a reasonable defence an accused person must lead evidence to show, for instance, that the notes were genuine, or true currency notes issued by the Bank of Ghana; or that he was either a customs, or border guard official, or a police officer, who had seized those false currency notes in the course of executing his normal duties. Therefore, if the person charged fails to show the required justification for being in possession of forged Ghana currency notes, the offence prescribed by the Currency Act, 1964, is at once committed.
In R. v. Warner [1968] 2 All E.R. 356, H.L. the appellant was found by the police with two parcels, one of scent (a side-line of his), and the other of prohibited drugs. He had collected those parcels from a café, expecting there was only one case. He put both cases on his van upon the assumption that both parcels contained nothing but scent. Unfortunately for him, however, one of the cases contained nothing but prohibited drugs. His appeal to the House of Lords was thrown out, and
[p.377] of [1972] 2 GLR 372 his conviction duly affirmed on the grounds that once he was found in control and possession of that parcel of prohibited drugs, the offence wherewith he was charged was committed; and the fact that he never knew what that case contained could not avail him as a defence. At the trial in the circuit court, the prosecution alleged that the first and the second appellants not only had possession and custody of all those forged currency notes (found in their separate rooms), without awful authority or excuse, but also that each and both of the appellants well knew that all those were forged. Answering, this, the appellants stoutly maintained that even though those currency notes were discovered in their rooms, they never knew that they were false and illegal until they were so informed by the police. If their explanations had moved the trial court to conclude that the appellants did not, at the material time, know that the currency notes were there in their rooms; or if the facts of the case had been shown to be as consistent with their innocence as they were with their guilt, the appellants would have been entitled to an acquittal. See R. v. Ansere (1958) 3 W.A.L.R.. 385, C.A.
It is our understanding of the facts in this case, considered together with the relevant provisions of the Currency Act, 1964 (Act 242), that before, and at the search of their rooms by the police, each of the appellants was exercising such physical control over their rooms, and over the forged Ghana currency notes discovered there with them as negatived their disclaimer of guilty knowledge.
In his statement to the police (exhibit J), the second appellant admitted that even though his good friend had left Ghana as a result of the Government’s Alien’s Compliance Order, he nevertheless paid regular visits to Takoradi; and that when he did, that friend stayed with him. Their friendship was such that whenever his companion came over, the second appellant always gave up his room to him. He said also that the last such visit paid by his alien friend lasted a week and that he went away only a day previous to the search by the police. But the second appellant contended that he ought not to have been convicted, because not only was his room accessible also to the third defendant (discharged and acquitted by the trial circuit court), but also that that room was not in the exclusive possession, or use, of himself alone as its paying tenant.
After carefully considering all this against the backcloth of the prosecution’s case, we are moved to hold that it cannot avail the second appellant as a rightful excuse for, according to section 33 (1) and (2) of the Currency Act, 1964:
“33. (1) Where the having of any coin or note, or any instrument or other thing in the custody or
possession of any person is in this Act expressed to be an offence, a person shall be deemed to
have such coin, note, instrument or other thing in his custody or possession if he— [p.378] of [1972] 2 GLR 372
(a) has it in his personal custody or possession; or
(b) knowing and wilfully has it in the actual custody or possession of any other person, or
in any building, lodging, apartment, field, or other place, whether open or enclosed, and
whether occupied by himself or not. (2) It is immaterial whether the thing such person had in such custody or possession or place is for his own use or for the use and benefit of another person” (The emphasis is mine). These provisions, taken together with the facts proved at the trial, in our view,
adequately support the prosecution’s case against the second appellant.
The first appellant, on the other hand, says that notwithstanding that those false currency notes were
indeed found under his floor carpet, he also must be acquitted because when that “bad money” came into his hands, at the sale of his wrist watches, he never knew that the proceeds of his innocent transaction were counterfeit money. Regarding the first appellant, we are satisfied that his conviction was also justly merited, because he was also properly fixed with guilty knowledge envisaged by the Currency Act, 1964.
His guilty knowledge clearly appears from exhibit H., his statement to the police. In that deposition which was freely and voluntarily made (and also admitted into evidence without any objection), the first appellant said that after he had sold his two wrist watches to “the Nigerian,” he took home and showed to Musa Madawa, his brother, the proceeds of that sale. He did this because he wanted to know if the proceeds were good or bad money. It is an admitted fact, fatally undermining the first appellant’s protestation of innocence, that although Musa Madawa told him the currency notes were counterfeit, the first appellant nevertheless kept and concealed them under his floor carpet. On these facts, therefore, it does not lie in the first appellant’s mouth to say that his possession of those false ten-cedi notes was wholly guileless and that he must, therefore, be acquitted.
But if the facts had been that instead of hiding those notes, after knowing that they were counterfeit, he had rather made prompt report of his discovery to the police, the first appellant would have stood fairly and reasonably entitled to an acquittal. In the Privy Council decision of Wong Poo Yin v. Public
Prosecutor [1954] 3 All E.R. 31, P.C. it was held that possession which was originally unlawful and
without excuse may, by a change of circumstances, become possession with reasonable excuse. In that case the accused, a terrorist, was convicted under the Malaya Emergency Regulations, 1951, reg. 4 as amended by the Emergency (Amendment No. 11) Regulations, 1952, reg. 2, of carrying a firearm without lawful excuse. Under those regulations the onus of proving possession with lawful excuse was placed upon the accused. In his defence the accused explained that he had carried the firearm with [p.379] of [1972] 2 GLR 372 the intention of surrendering it to the authorities in response to a government invitation calling upon terrorists to give themselves up. The Privy Council upheld his defence, confirmed his appeal, and set aside his conviction and the sentence of death which was the penalty prescribed by the emergency regulations.
The conduct of the appellants in this present case was not bona fide such as can impel this court to uphold their persistent denial of guilty knowledge. In our judgment, all the facts adduced by the prosecution at the trial, and all the cogent data furnished by the appellants themselves, are incapable of any other reasonable explanation than that the counterfeit Ghana currency notes discovered by the police in the rooms of the appellants were there, in those rooms, with their knowledge of the falsity of those notes. In R. v. Obiase (1938) 4 W.A.C.A. 16 (a case of unlawful possession of counterfeit coin), it was decided that:
“ . . . although once possession is proved the onus is cast upon the accused to prove lawful authority or excuse, the onus still remains upon the prosecution to give conclusive evidence of possession. That is to say the prosecution must prove facts which are not capable of any other reasonable explanation than that the coins were in accused’s possession, that is to say in the present case that the coins found in accused’s house were there with his guilty knowledge.” (The emphasis is mine.)
In discharging this burden of proof, however, the prosecution need not establish actual knowledge in the accused person. In Asamoah v. The State [1962] 2 G.L.R. 207, S.C. (a prosecution for possessing, forged Ghana currency notes under the old Currency Act of 1960 (Act 17), section 18 of which is almost similar to section 18 (2) of the now current statute (Act 242), the Supreme Court held at page 209, inter alia, that:
“It is not necessary for the prosecution to lead evidence of actual knowledge; it is sufficient if there is
evidence from which knowledge of the accused may be justifiably inferred.” (The emphasis is mine).
That decision is still good law, and we hold it fully applicable to the facts and circumstances of this
appeal to render nugatory the defence and submissions urged on behalf of the appellants.
In our opinion the evidence amply supports the conviction of the appellants and we find no good reason for disturbing the judgment of the trial circuit court. We accordingly dismiss this appeal.
DECISION
Appeal dismissed.
