STATE v. YAO BOAHENE [1963] 2 GLR 554

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 20TH DECEMBER, 1963

BEFORE: SOWAH J.

CASES REFERRED TO

(1) Poole v. R.[1961] A.C. 223; [1960] 3 W.L.R. 770; [1960] 3 All E.R. 398, P.C.

(2) Sey v. R. (1950) 13 W.A.C.A. 128

(3) Tei Angmor & Co. v. Yiadom III [1959] G.L.R. 157, C.A.

(4) In re Levy; Ex parte Walton (1881) 17 Ch. 746; 50 L.J.Ch. 657; 45 L.T. 1, C.A.

NATURE OF PROCEEDINGS

TRIAL with assessors of accused persons on charges of conspiracy to forge Ghana pound notes contrary to section 23 of the Criminal Code, 1960 (Act 29), and section 16 of the Currency Act, 1960 (Act 17). The facts are fully stated in the judgment of the High Court.

COUNSEL

A. N. E. Amissah, D.P.P. and K. A. Sekyi, State Attorney, for the State.

Victor Owusu and Narayan for the first defendant.

Osei for the second defendant.

JUDGMENT OF SOWAH J.

It is necessary in this trial to consider the submission which was made by counsel for the first accused as to the competency of this court to hear the case upon the bill of indictment before this court. Counsel for the first defendant submitted that on the 4th October, 1963, the accused persons were committed for trial to the High Court, and that on or about the 12th November, 1963, a nolle prosequi was entered in the course of the trial stopping further hearing. Learned counsel submitted that the nolle prosequi affected only the trial before the High Court and that the proceedings which were transmitted to the High

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Court were of full force and effect and therefore the State cannot go back to the magistrate to start fresh proceedings on the same matter; further, he said inasmuch as the magistrate had already committed the accused person for trial he was functus officio.

Counsel submitted that the only course open to the State was to file a fresh information or bill of indictment upon the proceedings already taken when the accused persons were first committed. For this proposition counsel cited the case of Poole v R.1 and also the case of Sey v. R.2 I have considered rather carefully the case cited by learned counsel and do not think that I could spell out the proposition urged upon me by counsel, namely, because in Sey’s case it was held that the State was entitled to file a fresh information upon the original proceedings from the magistrate’s court, after the entry of a nolle prosequi in the High Court, therefore if the State adopted the other alternative, that is the inconvenience and expense of going through a fresh investigation in the magistrate’s court, that ipso facto makes the proceedings in the High Court a nullity.

Indeed it is absolutely clear from the judgment in Sey’s case that the prosecution has two courses opened to it on the entry of a nolle prosequi in the proceedings in the High Court. It may file a fresh information upon the proceedings or may go the whole hog of starting afresh. Vide Sey’s case3 where it was stated that: “We are satisfied that when a nolle prosequi has been entered by the Crown in a criminal case before the Supreme Court in respect of any charge contained in an information, a fresh information on a charge arising out of the facts inquired into in the original preliminary inquiry may be filed without the holding of a fresh preliminary inquiry.”

I therefore hold, even on the basis of Sey’s case, that the trial is not a nullity and that the court has jurisdiction. But I will go further to hold that Sey’s case and for that matter Poole’s case (supra) is no longer good law in this country. If counsel had compared the procedure under the Criminal Procedure Code, 1960,4 and the procedure under the old Criminal Procedure Code,5 upon which Sey’s case was decided, he would have discovered that the old procedure has been completely changed. Under the old Code after a preliminary investigation had been completed the papers were forwarded to the Attorney-General who might then file an information. He might amend the charge or add or substitute fresh charges, but until he filed an information before the High Court, this court would not be seised of the matter. The basis of the jurisdiction of the High Court in an indictable offence was the bill of indictment. It is therefore clear that when an accused person was discharged in respect of the charges for which the nolle prosequi had been [p.558] of [1963] 2 GLR 554 entered in the High Court the information became extinct, but there still remained the proceedings of the investigation committed by the magistrate upon which fresh information could be founded, if so desired. In the procedure under the Criminal Procedure Code, 1960, the bill of indictment upon which a charge is founded is filed in the magistrate’s court. This bill is supported by the summary of evidence. Where therefore a nolle prosequi is entered in respect of the charges in the indictment, the bill of indictment which gave the magistrate’s court its jurisdiction to enquire into the facts as to whether or not a prima facie case has been made out, became extinct and in my view there is therefore nothing pending either in the High Court or in the magistrate’s court. For a fresh action to be instituted the prosecution must start all over again and bring a fresh bill before the magistrate. It appears to me that the Attorney-General has no power under the Criminal Procedure Code, 1960, to file a bill of indictment in the High Court. The only provision in the Criminal Procedure Code is that he must file his bill of indictment in a district court, in other words he must begin all over again. I therefore hold that the procedure adopted by the Attorney-General is the appropriate procedure and that the action is in order. The court has jurisdiction to enquire into this matter. The facts leading to the arrest of the accused persons are briefly as follows. On the 16th July, 1963, Assistant Superintendent of Police Habib and a team of plain clothes policemen were on duty at the General Post Office, Accra, keeping watch on P.O. Box 1124 which is the property of the first accused Yao Boahene. In the morning of that day they noticed that a young man who, turned out to be one Tinkorang, arrived at the General Post Office, opened the box and collected letters including a post office slip. Assistant Superintendent of Police Habib ordered his men to follow the boy, but nothing dramatic happened in the morning. In the afternoon while Habib and his men were again on duty Tinkorang went to the post office, handed the slip and collected a registered parcel from the registered mail delivery section or department of the General Post Office. Tinkorang was followed by the police while Habib drove his car and stopped in front of the store of Yao Boahene and Sons at Kimberly Avenue. Tinkorang duly arrived at the store and delivered the parcel to the first accused Yao Boahene, but before he could open the parcel, Assistant Superintendent of Police Habib rushed into the store and snatched the parcel from him. This parcel had been tendered in this court and is exhibited as exhibit M, the contents being Ml to M6b. Mr. Habib and his team of policemen then conducted a search of the store of Yao Boahene and Sons, the proprietor of which is the first accused, and collected several files and catalogues from the store. The first accused was then escorted to his house at Adabraka. Around his house there were other policemen in plain clothes and in uniform, waiting under the command of Assistant Superintendent of Police Deegbe. The accused was taken to his house and a search of the premises was conducted.

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Six policemen including Deegbe and Habib searched the various rooms in the premises and the bedroom of the accused Yao Boahene. They found certain papers. According to a prosecution witness Habib, he saw a fawn coloured envelope lying on two trunks in the bedroom and as the accused touched the envelope the contents of it fell behind the trunks and the accused started to tear up the envelope. Mr. Deegbe who was in the room stated that his attention was drawn to the accused tearing up this envelope. The envelope was taken away from him and he was warned not to tamper with anything during the search. The contents of the envelope which had fallen behind the trunks were collected. The envelope was tendered in court and was marked exhibit K and the contents of the envelope were marked exhibits L, L1 to L15.

In passing it must be said that that the torn envelope had the addresses of both Yao Boahene and George Monney, whose address was Sedan Str. 7, Hanover, West Germany. Exhibit L is a letter headed “Printing Inks for Copper Plate Printing for Bank Notes” and exhibits L1 to L15 are photographs of printing machines for printing bank notes. There was also attached to this catalogue a price list. The first accused was then escorted to the Police Headquarters and was taken to Assistant Commissioner of Police Harlley to whom the registered parcel was handed. In the presence of the accused the registered parcel was opened. The parcel was addressed to the first accused.

The contents of the registered parcel were as follows: (a) a letter dated the 5th July, 1962, from George

Monney to Dear Papa, exhibit M1; (b) a letter dated the 27th June, 1963, from Erich Isenberg, Bremen to Messrs. Boahene & Sons, P.O. Box 1124, Accra, headed “Re Your Order for 1 Offset Printing Press including Plate making Equipment,” exhibit M2; (c) a colour chart, exhibit M3; (d) the photo of a front of Ghana pound note exhibits M4a to M4c and the reverse of Ghana pound note, exhibits M4d to M4e; (e) printing plates for the making of both the front and reverse of the Ghana pound note, exhibits M5a to M5b; (f) two negatives showing the front and reverse of the Ghana pound note, exhibits M6a to M6b. Habib stated that the accused when asked about the contents stated he knew nothing about them. On the same date the accused made a statement which was tendered, not objected to and was accepted and marked exhibit M. On the 17th July, Jasper Kodzo Deegbe, Assistant Superintendent of Police, left for Western Germany for further investigations, he was later joined there by Chief Superintendent Nunoo. In Hanover, Germany, they made contact with George Monney, the person named in the information and as a result of an information given to the Attorney-General of Hanover, George Monney was arrested while he was in the company of the two police officers on the night of the 26th July, 1963. The following day in the presence of Messrs. Nunoo and Deegbe the bed-sitting room of George Monney at Sedan Street 7, Hanover, was

[p.560] of [1963] 2 GLR 554 searched by the German police. Mr. Nunoo said that while the search was going on he had to leave for a telephone call he expected from Ghana. Deegbe, however, was in the room at the time. These two gentlemen stated that as the search went on, they browsed through the various files in order to point out to the German police which files would be useful to them and which letters they would want. The German police collected in all about eight files. Two or three days later the police officers were invited by the German police to go through the files, eventually they were given two files, one marked “Secret and Confidential Yao Boahene” and the other, “Urgent but undealt.”

For reasons beyond their control the police officers were unable to get George Monney extradicted to Ghana and had to leave without him. As a result of the activities of the police these charges were preferred against the two accused persons.

The case of the prosecution is based upon a mass of letters and is briefly as follows: That between late 1957 and early 1958 the first accused agreed with one George Monney now in Hanover to purchase a machine for the printing of Ghana currency notes. I will deal with the letters in their chronological order. In the files of George Monney there was found a letter dated the 15th April, 1958; which had the signature of the first accused person. Amongst the other matters in that letter there is the following, exhibit U:

“I have the pleasure in acknowledging receipt of your letter dated the 8th April, 1958, which is in reply to my letter addressed to you some six months ago. May I know which is which, the machine which is completed or the receipt. I should be pleased if you give me full details of whichever is completed. P.S. Concerning new ones; it has been impossible for me to secure one as it would appear there has been no new one.”

On the 23rd June, 1958, there is another letter to George Monney which was found in George Monney’s possession, exhibit V. It reads:

“My dear Monney,

In acknowledgement to your letter of the 9th June, 1958, I have the following to state, I should be pleased to receive your completed machine for verification sake. Please treat this matter with urgency as on receipt of same if it is found to be in oneness with the sample I sent you I shall not waste time in letting you have the money. You should therefore inform the manufacturers to let me have this machine and I shall be proceeding to your end before August. Should you need a further machine I shall be in a position to let you have one.”

In July 1958 amongst other matters Yao Boahene wrote as follows, exhibit W: “Dear George, I am somewhat worried as to your absence in acknowledging receipt of the sample I sent you.” In an undated letter which is handwritten, the first accused asked for a sample from George Monney, exhibit L. It is interesting to note that at

[p.561] of [1963] 2 GLR 554 this time George Monney was also making enquiries about a machine. In his possession was found exhibit NN dated the 12th August, 1958, from Goebel in Damstadt to George Monney. The heading of the letter is as follows: “Machine for manufacturing securities printing, Government Printing Office Accra.” Exhibit NN quite clearly shows that by August 1958 George Monney had been in the factory of Goebel and had had discussions with them as regards the printing of Ghana bank notes and the making of stamps. Indeed he had deposited a “sample bank note” with them.

It appears that nothing happened in 1959 and all was quiet. But on the 21st October, 1960, see exhibit Z, Yao Boahene reported his safe arrival in Accra from Germany. This letter was found in the custody of George Monney. There was also found a copy of a letter dated the 27th October, 1960, from Goebel to George Monney, exhibit AA:

“We thank you for the visit you paid us together with Yao Boahene on the 7th of this month. We hope that Mr. Boahene can imagine the great delivery which is necessary to print bank notes. We are still trying to find a way within your wishes to find a project which enables you to print stamps as well, using the two notes you have sent as samples.

By the way Mr. Boahene mentioned here that the bank notes were made in America but we found on the one pound note a stamp showing the name of the firm of Thomas de la Rue.”

It appears therefore that on the 7th October, 1960, both Yao Boahene and George Monney had visited the firm which George Monney visited in August 1958 vide exhibit NN.

On the 6th December, 1960, in exhibit BB the firm of Goebel addressed a letter to Yao Boahene. This letter though addressed to Yao Boahene was found in the possession of George Monney. It is headed: “Dear Mr. Boahene,

Combined Bank Notes and postage stamps Printing Machine. You will remember that during the discussion held here in Damstadt we pointed out already that our machines are high speed plants which are only worthwhile if a certain length of run is required. A rough calculation showed that the smallest model we could supply would not have to be in operation for more than four weeks to cover the entire yearly requirement of bank notes in your country.”

This letter then goes on to persuade the first accused to drop the idea. Yao Boahene states he never received this letter. It appears however that in early 1961 George Monney visited Ghana and saw the first accused. Indeed the first accused admitted writing to George Monney on the 2nd February, 1961, though he stated that he did not instruct his clerk to write everything written in the letter. The letter further discusses the arrangements George Monney had made. This letter shows that at least on two occasions George Monney and Yao Boahene had met face to face and had had the opportunity of discussing the issue of the machine.

On the 12th July, 1961, Yao Boahene wrote to George Monney vide exhibit CC which was found in George Monney’s possession, the copy of

[p.562] of [1963] 2 GLR 554 which is exhibit J found with Yao Boahene. Among other matters he wrote as follows:

“With reference to this Damstadt, these people wrote me about six months ago that you would be seeing them to talk over business arrangements, but apart from this their letter, I have not heard anything from them and unfortunately I have heard nothing from you also. Please try and write me about the correct position in connection with this Damstadt business, so that I must be aware of the proper situation to avoid mental worriness about this arrangements.”

It is interesting to note that exhibit BB which the first accused denied receiving was written about six months from the date he wrote exhibit J. Nevertheless it appears that he had received a letter from the Damstadt people, namely, Goebel.

On the 12th August, 1961, exhibit DD, the original of this letter written to George Monney by Yao Boahene was found in Monney’s possession while the copy, exhibit D, was found amongst the files of Yao Boahene. In that letter amongst other matters he wrote as follows:

“Damstadt

As I have spoken to you on the telephone the other day, I made mention of Damstadt, will you please therefore get in touch with these Damstadt people and tell them that if they could manufacture medium machines, I hope that these medium machines will meet with favourable appreciation on our local market. Please try and write me whatever they say after your interview with them.”

On the 22nd September there is a letter from George Monney to Yao Boahene, exhibit F. Monney reviewed the whole of their business contacts and amongst other matters he turned to the business of the machine at Damstadt, he said plainly that the firm might ask for a deposit and he was not in a position to give the “green light” as he did not know how strong the first accused was. He said he had visited Damstadt. This letter is obviously in reply to exhibit B.

On the 26th September, 1961, exhibit E which is a copy of the original exhibit EE found with George Monney, Mr. Yao Boahene quite clearly showed that he had received the letter dated the 22nd September. He asked questions about Damstadt and also the new firms which George Monney had contacted with regard to the making of machine. He would wish to know if prices were competitive. After this series of correspondence there was a considerable lull in the correspondence until the beginning of this year. The first letter in 1963 was the letter dated the 17th January 1963, exhibit GG which was in reply to a letter dated the 8th January, 1963. That letter has not been found. It made enquiries about the price of the machine and its accessories. On the 8th March, 1963, there is a letter from Berger and Virth Etc. Leipzing, exhibit L. This was the letter found in Yao Boahene’s room, a copy of exhibit HH was found with George Monney in Hanover. It deals with printing inks for bank notes and gives [p.563] of [1963] 2 GLR 554 a price list for the machines and the photographs of the machines. In George Monney’s custody a copy of a letter was discovered addressed to “Dear Papa” which discusses the matters in exhibits L and HH. Yao Boahene says he did not receive it.

In George Monney’s custody a copy of another letter was discovered addressed again to “Dear Papa” dated the 3rd June, 1963, exhibit KK, which discusses in detail the question of the machine and asks for a specimen to be sent to him. He gives the price of the machine as 6,000 quite obviously he meant £6,000. Yao Boahene says he never received this letter also.

On the 17th June, 1963, Yao Boahene wrote to George Monney in which he enclosed samples under registered cover. The letter exhibit LL is the original found in George Monney’s custody, the copy exhibit B was found amongst Yao Boahene’s papers. This letter speaks for itself. He asked for a pro forma invoice, and that samples be sent to him, Yao Boahene. Then finally there is the registered parcel and its contents exhibit M. Exhibit M acknowledges the receipt of Yao Boahene’s letter dated the 17th June. It discusses the merits of the machine and that letter shows that at least George Monney had no doubt in his mind what he has been after all these years. Exhibit M2 is a letter addressed to Yao Boahene dated the 27th June, 1963. The German firm informed Mr. Boahene that the press model 700 purchased by him was well fit for printing the official bank notes of Ghana.

The prosecution is seeking to establish from this series of correspondence that there was a common design between George Monney and Yao Boahene and that the design was to obtain a machine for the printing of money.

The case against Samuel Monney is that he, before leaving Germany for Ghana, knew of this conspiracy and that shortly after arriving in Ghana, he joined in the said conspiracy. In support of the prosecution’s contention they have tendered the letters of Samuel Monney; exhibit MM is a letter he wrote to George after his arrival. He writes:

“Kwesi I have cabled you once to send the costs of the machine in Damstadt. I have met Boahene in Accra for complete two days talk about the machine. I have convinced him to a conclusion of coming down with stones and settle payment. [He goes on] Go to Damstadt immediately and start putting things straight.” On the 29th July, 1960, he again wrote admonishing his brother to go ahead with the project. He sent according to the letter £G1 and £G5 notes, he spoke of the everlasting chance and said that even some ministers were doing the same, exhibit NN. His letters exhibits PP and QQ informed his brother to go ahead with the project. Though his brother did not reply to his letters it is quite obvious that his brother was visiting Damstadt during the period and even after this period.

The defence of the first accused is that he is an illiterate businessman, and that he has to rely on his clerks to tell him what are in his letters and further to reply to his letters for him. He says that when he wants to write letters, he dictates in Twi to his clerk/secretary who reduces the same into [p.564] of [1963] 2 GLR 554

English, types and brings it back for him to sign. He says that any letter typed is not read over to him and that some of his incoming letters are not even read over to him. He says that during the period of five years preceding his arrest he has had three clerks, Adu, Boye and finally Samuel Ansah Vivid Addo who has been in his employment from the period, the 1st January, 1961, up to the 31st October, 1963, when he was dismissed.

The first accused says that he has been in correspondence with George Monney for the period of five years, but the correspondence was about merchandise from Germany, and about a printing press for printing newspapers and postage stamps; at no time did he authorise George Monney to concern himself with machines for the printing of money. He further says that though the word “sample” appears in several of his letters (and he himself has been using the word in court) he does not know what samples were put in the letters. He did not post the letters himself. He says categorically that he had never sent samples to Damstadt. He, however, admits that on the 17th June, 1963, he sent samples to George Monney vide exhibit B, but the sample was of colours for paints which he had intended to order. He admits he visited Damstadt and discussed machines, but he was quite emphatic that he said machines for making newspapers and stamps. He says he does not speak any German and George Monney must have misinterpreted him. As regards the letter dated the 8th March, 1963, and the catalogues which were found in his room, he says he showed them to Tinkorang who looked through and said they were only photos of machines, he did not read the letter, exhibit L. He says that he knows nothing about exhibit M and its contents and that he has not authorised George Monney to arrange those things for him. Samuel Monney the second accused was in difficulties even with his examination-in-chief. He says quite categorically in his evidence and I quote,

“When I said machine I was thinking of money making machine. On my way to Accra from Germany I went to London and I saw some Jews with portable money making machine. When I was writing that letter it flashed through my mind and I put it in the letter. I have since forgotten it.”

He then tried to explain his letters; finally his defence boiled down to this: That on or about the 15th December, 1960, he wrote to his brother that he was no longer interested in the machine and informed Yao Boahene about his disinterest.

It is now necessary to review the law of conspiracy before analysing the evidence so far adduced. Conspiracy consists not merely in the intention of two or more persons, but in the agreement of two or more to do an unlawful act or to do a lawful act by an unlawful means. For the purposes of this case the prosecution is seeking to establish that there was an agreement between George Monney, Yao Boahene and Samuel Monney to do an unlawful act, to wit, to forge the currency of Ghana, and in count two to utter the said forged currency. To constitute an indictable conspiracy there must be an agreement between the conspirators to do some common thing. Whether they had met each other or not, does not matter [p.565] of [1963] 2 GLR 554 in the slightest degree so long as they are working for the same common object. They need not know whether a conspiracy was already in existence. The test is whether or not there was a community of design or a common purpose.

In order to find out whether or not there is a common design, the court must not only look at what they say in court or elsewhere, but what the overt acts are. It has been well said that, “Taken by themselves the acts of conspiracy are rarely of an unequivocally guilty character, and they can only be properly estimated when connected with all the surrounding circumstances.” See Roscoe on Criminal Evidence (16th ed.) p.

480. It is therefore necessary to go further and to investigate the overt acts done in pursuance of the common object. Overt acts have been held to include any act of conspiracy, conferring or consulting, with advising, persuading, counselling, commending or inciting words.

The first accused by popular repute, is a prosperous, influential and well-known business man; he owns a few companies including a diamond company, and he is a director of a few other companies. He has this unnatural limitation of being illiterate, which limitation does not appear to have affected his business acumen. Some time in 1957 or 1958 he met a young student, a student of marine engineering with whom he forged an acquaintance developing almost into the relationship of father and son. It is quite clear that by the time exhibit M was written, George Monney had started calling the first accused “Dear Papa.” It appears that on their meeting there was discussion about the purchase of a machine. The prosecution case is that the machine was for printing currency. The defence says it was for newspapers and stamps. Over a period of five years there was correspondence on this subject, from 1958 to 1963. In August 1958, George Monney visited the firm of Goebel in Damstadt, see exhibit NN. From that letter it is quite clear that George Monney had been making enquiries about machines for printing bank notes. From April to August 1958, Yao Boahene had been making enquiries about the machine for making newspapers while George Monney as a result of these enquiries had been making enquiries about machines for making money. It appears that in spite of the telephone calls between the parties there was some misunderstanding as to what machine was wanted. On the 30th September, 1960, Yao Boahene himself arrived in Germany and contacted George Monney face to face. No doubt the conversation would be in

Twi. However, both George Monney and Yao Boahene visited the factory in Damstadt where these machines were made. Yao Boahene says that his enquiries were about newspaper machines, but there is little doubt that the firm understood the machine was for printing of bank notes and stamps. Indeed they advised against its purchase.

George Monney visited Ghana in the early part of 1961. This is clear from the correspondence and from the evidence of Yao Boahene who admitted seeing George on a number of occasions and further that George even had food in his house while in Ghana. No doubt there were discussions about the machine and no doubt the discussions would be in Twi. George

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Monney, the student on his return to Germany instead of looking for a newspaper machine, like a Don Quixote traversed the length and breadth of Germany as he said, in one of his letters, in search of a money-making machine. In the meantime George Monney had been forwarding samples of Ghana Bank notes to various firms. In spite of these three meetings and telephone calls, George Monney was still being urged to go to the Damstadt people whose business was to make machines for currency. It is interesting to note that in his letter, exhibit J, Yao Boateng admitted receiving a letter from the Damstadt people.

It is impossible to accept the defence that while he, Yao Boahene, was asking for a machine for newspapers, George Monney was looking for money-making machines. In court the first accused used the English word newspaper for newspaper and machine for machine. It hardly seems credible that over a period of five years George Monney would have misunderstood Yao Boahene especially after he had taken him to the firm of Goebel. Indeed before they went to the firm George Monney knew what the firm manufactured. Again when Samuel Monney was coming home a message was given to him to be given to Yao Boahene, the message was about a machine from Damstadt and from the correspondence captured the only machine being sought after by George Monney was a money-making machine. Finally on or about March of this year he received exhibit L and the catalogues. Even though for a period of nearly five years he has been looking for a newspaper machine he said he took no interest in it, he did not even get the letter read for him. Even so after the receipt of exhibit L he still continued to make enquiries about the price of the machine. In some of the letters it is said that samples were enclosed, we find George Monney saying in his letters that he had sent the samples to Damstadt people and that he needed more. The only samples with the Damstadt people were the samples of Ghana Bank notes. Samuel Monney on arrival in Ghana let the cat out of the bag in some of his letters. He said in his evidence-in-chief that the machine in exhibit PP meant money making machine. The letter shows that £G5 and £G1 notes were enclosed in it. The letter itself then informs George about the discussions which Samuel had with Yao Boahene. Finally there is exhibit M the reward of five years of labour on the part of George Monney. The contents have been exhibited and the machine that was purchased or to be purchased was 700 Dualith machine which is L2 in the catalogue found in Yao Boahene’s room.

For the above reasons I do not believe that there was any mistake as to what machine Mr. Yao Boahene wanted; if there was any, he would have corrected it; he had too many opportunities to do so. He used the English word newspaper freely in court, and I do not see how any person can mistake a newspaper for money.

Mr. Victor Owusu, on behalf of the first accused, urged that the illiteracy of the first accused was a barrier towards proof of his guilt by documentary evidence. He contends that the prosecution must prove that Yao Boahene knew the contents of every letter written on his behalf by his clerks or secretaries, that is to say, that they were read over to him after

[p.567] of [1963] 2 GLR 554 they had been typed and further that the prosecution must prove that every letter written to him and found in his custody was read over to him; failing which the prosecution has not discharged the burden on them; and for this proposition he cited the case of Tei Angmor & Co. v. Yiadom III.6 The first thing to be noticed was that Yiadom’s case was dealing with a legal document and further there was a dispute as to whether the document was ever executed by the Nana Yiadom’s predecessors or not. The court held that there was no presumption that a native who did not understand English and could not read and write had appreciated the meaning and effect of a legal instrument because he was alleged to have made his mark.

I do not think Yao Boahene can take shelter under this principle of law. He was a man conducting business, he employs clerks to write his letters, he receives letters from abroad to which he answers and signs with his signature. In this case he himself had told the court that he had been corresponding with George Monney for the past five years. This is what he says in his evidence-in-chief after giving evidence of how he met George Monney: “After our conversation I returned to Ghana and correspondence passed between George Monney and myself. I have been corresponding with him from the first time I met him to the date of my arrest.” Thus upon his own showing he admits writing, no doubt through the agency of his clerks, to George Monney. The prosecution says the letters they found with both George Monney and himself were some of the correspondence which passed between them. In any case Yao Boahene heard all the letters written by him read in court and with the exception of one or two he admitted that they were written on his instructions.

This brings one to the evidence of Tinkorang who stated that Yao Boahene never read his letters or caused his letters to be read to him except those which had financial implications. He is asking this court to accept that a man of the standing of the first accused whose business connections span most parts of the world never had his letters from abroad read to him. But even if we accept Tinkorang’s story, the correspondence between George Monney and Yao Boahene was about machines involving heavy financial commitments. Yao Boahene stated to the police that the original machine was to cost £G100,000; they gave up the idea of the purchase of this machine and asked for a medium machine which costs £G6,000. No doubt a businessman who is going to make an outlay of £G6,000 on a machine will interest himself in the correspondence through which any contract will be effected.

There is of course the evidence of Samuel Ansah Vivid Addo, the first accused’s clerk, who stated the procedure as to the writing of letters. This procedure seems to me so reasonable and so practical that it is difficult to see why the first defendant is running away from it. I consider that the issue whether or not Yao Boahene read the letters written to him

[p.568] of [1963] 2 GLR 554 by George Monney could be gathered from his conduct. He was telephoning to George Monney in Germany, he was writing to him in reply to his letters sometimes quoting dates, for example, the letter of the 17th June, 1963, in which he stated that he sent a sample chart of colours for prints. I agree that there is no presumption that an illiterate person appreciates the meaning and effect of a legal instrument or for that matter of any instrument or letter just because he has signed it; this is sound principle for the protection of an illiterate person against an unprincipled opponent, but this principle is not to be stretched to make illiteracy a cloak for fraud or criminal activities. I am satisfied on the evidence that the letters were written on Yao Boahene’s instructions, and that, so far as the question of the machine is concerned, his clerks did convey his instructions correctly. There is in my view no need to call Boye or

Adu. I accept the evidence of Addo and Nunoo that they knew the signatures of Yao Boahene and further the evidence of Addo that the signatures that appear on the letters were the first accused’s true signatures. I must say at once that the confessions of Samuel Monney do not bind Boahene and I have accordingly not considered them in the case of Boahene.

For the second defendant it has been urged upon me that on or about the 15th December, 1960, he countermanded his instructions to his brother to go on with the project. It is a legal defence. In my view once the offence had been completed, the defence of countermand or change of heart is no defence. Vide Roscoe on Criminal Evidence (16th ed.) p. 477.

For the reasons already given I do not accept the theory that there was a mistake by George Monney as to the object of Yao Boahene’s enquiries and I hold that Yao Boahene and George Monney were ad idem as to the object which they were pursuing. If there was a mistake, Yao Boahene had too many opportunities to correct the mistake of George Monney. Yao Boahene used the English words “newspaper and machine” freely in court in his evidence. I therefore cannot see how George Monney would mistake a newspaper for a bank note. I find that whenever or wherever Yao Boahene and George Monney wrote or spoke about a machine they meant machine for printing Ghana currency. I find that George Monney and Yao Boahene contacted the firm of Goebel, firstly by George Monney going to the firm alone and on or about the 7th October, 1960, by both Yao Boahene and George Monney visiting the firm. I find that the discussion that they had with the firm or Goebel in Damstadt was about the feasibility of the firm manufacturing a machine for the printing of Ghana currency. I find further that some time in 1961 George Monney suggested to Yao Boahene that he would approach other firms to find out whether the machine could be produced more cheaply and further that Yao Boahene agreed to the suggestion. I find that George Monney in fact approached the firm of Erich Isenberg Bremen to produce Dualith Offset Press mode 700, the picture or photograph of which was found in Yao Boahene’s room during the search and was tendered and marked exhibit L2. I find further that George Monney approached the firm Berger & N. Etc. Leipzig for the preparation of printing inks for copper plates for bank [p.569] of [1963] 2 GLR 554 notes, vide exhibit L1 with the price lists attached. I find that the word sample in the context of the letters meant samples of bank notes and stones meant diamond. I find further the consummation of the plans of the conspirators is contained in exhibits M to M6.

It may here be appropriate to quote from exhibit Ml what George Monney says:

“As you would agree I have up to now been playing the role of a middle man. This is specially so with respect to the responsibility of paying the costs of the machine where the firm is most interested and for that I have not been able to offer any concrete guarantee towards this end.”

Finally I find that the original agreement between Yao Boahene and George Monney was about the end of 1957 or early 1958 and was for the purchase of a machine for printing Ghana currency which agreement is unlawful.

In the case of Samuel Monney I find that he joined the conspiracy in or about 1960 that the overt acts on his part were in counselling, advising and urging George Monney to go ahead with the project so that the everlasting bliss which he had dreamt of would come to pass and like the lotus eaters he might drink, eat, play and sleep because Ghana is too hard without a money machine. It does not matter when he joined the conspiracy.

In court he tried to explain his letters but the rule of construction is quite settled in these courts. In re Levy; Ex parte Walton,7 Jessel M.R. said that

“`the grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency but no further’.” In reading the letters of Samuel Monney to his brother I find the words clear. I do not therefore accept his invitation to go with him to Alice’s Wonderland where words may sometimes mean what the writer chooses them to mean; I prefer to have my feet firmly rooted in these courts and to apply the ordinary rules of construction.

Finally having found that there was a conspiracy, each conspirator became the agent of the other conspirators and any overt act committed by any one of the conspirators is sufficient on general principles of agency to make it the act of all. Thus the acts of George Monney in the West German Republic were the acts of Yao Boahene at all material times and after 1960 were also the acts of Samuel Monney. In the result I find the first and second accused guilty of the charge on the first count and convict them accordingly.

As said before the act of one conspirator is the act of all and though I hold that the confessions of Samuel Monney bind no one else but himself;

[p.570] of [1963] 2 GLR 554 in his letters he shows what they wanted the money for, namely, to buy more stones. No doubt if the parties are interested in printing money they will be interested in spending the same and for these reasons I find the first and second accused guilty of the second count and convict accordingly. On the third charge: it appears to me that the letter of Yao Boahene dated the 17th June, 1963, exhibit B is explicit on the point. In the third paragraph of that letter he writes, “I have sent you the samples, and I hope on the receipt of same, you would also send me three counter samples to me. Please note that this point is very important by viewing this sample before we could come to final conclusion.”

George Monney after being “in a cloud of doubt” (see exhibit MI) posts the samples and the samples turned out to be the front and reverse of the Ghana currency which had been forged.

Under section 20 of the Currency Act, 1960,8 accessories before the fact are dealt with as principal offenders. I consider that though the samples sent were not a complete or exact replica of the Ghana pound note and may not deceive the vigilant person yet when placed amongst a large number of notes can pass for a Ghana pound. However under section 15 (2) of the said Act, the forgery of any material part of the Ghana currency is an offence. I do hold that both the front and reverse are material parts thereof, and I, accordingly, find the first accused guilty of the third count.

I am unable to accept the opinions of the three assessors, because I consider the opinions so perverse that I am constrained to observe that either they did not understand the simple English language in which these proceedings have been conducted or the intelligence of each of the assessors is below the normal or that they have been influenced by other considerations not connected with the evidence before the court; which considerations are not conducive to or in consonance with the due administration of justice. To illustrate my point: Samuel Monney quite apart from his confessions in his statements was confronted with his own letters written when he did not know that he would be in this predicament and which letters are in simple English. Further in his evidence-in-chief he admitted that when he wrote of machine in exhibit PP he meant machine for printing money. In effect he admitted the case for the prosecution, and in spite of any direction that the legal defence raised is not a defence, they still found him not guilty. Accordingly I reject their opinions.

In conclusion I would like to commend the police and more particularly those police officers concerned in this case, in the efficient manner these investigations have been conducted and let it be a warning to those like minded that their activities will not go unnoticed and undetected.

Sentences:

On the first count, the first accused is sentenced to five years imprisonment with hard labour; the second accused to two years imprisonment with

[p.571] of [1963] 2 GLR 554 hard labour. On the second count, the first accused is sentenced to five years imprisonment with hard labour; the second accused to two years imprisonment with hard labour. On the third count, the first accused is sentenced to five years imprisonment with hard labour.

Sentences on each of the counts to run concurrently non cumulative.

DECISION

Accused convicted and sentenced to imprisonment with hard labour.

K.T.