High Court · 20 Dec 1987 · Ghana
OKUNOR J.
The appellant in this case was convicted of the offence of forgery. The charge on which he was tried read:
“STATEMENT OF OFFENCE
FORGERY—Section 159 of Act 29/60
PARTICULARS OF OFFENCE
JONATHAN YIRENKYI: CLERK:—For that you on 16 September 1977 at Agona Swedru in the Central Magisterial District and within the jurisdiction of this court with intent to defraud one Nana Opuni the wholesale keeper of G.N.T.C. that ten bags of flour had been authorised by the district manager of the G.N.T.C. to be allocated to one Ama Akoto did forge a chit issued by the said district manager of the G.N.T.C. to Winneba Police Training Depot for ten bags of flour on 5 September 1977 to read Ama Akoto on 16 September 1977 whereby you succeeded in detaining ten bags of flour for the said Ama Akoto.”
To this charge he pleaded “Guilty with explanation” whereupon the prosecuting officer went on to give the “facts” as follows:
“The accused is an employee of G.N.T.C. (Agona Swedru) attached to the provisions wholesale headed by Mr. K. A. Amponsah as sales manager and K. B. Opuni as the wholesale keeper. Mr. Baiden issued a chit dated 5 September 1977 to Ghana Police Force—Training Depot, Winneba for supply of ten bags of flour to the depot. The flour was supplied after the sales manager and the wholesale keeper had processed the chit. The accused who was to prepare the sales invoice was absent, so one Bampoe prepared it. This was prepared vide sales invoice No. 6/A315622 dated 5 September 1977 and the supply was made accordingly. After the supply the chit which ought to be pasted on the triplicate copy of the sales invoice was kept in a loose file. The accused laid hands on the chit cut off the name of ‘Ghana Police Force—Training Depot, Winneba,’ and in its place, inserted the name Ama Akoto, Swedru.’ He also changed the original date on the chit to read 16 September 1977. He presented the chit to Mr. Amponsah, the wholesale manager and passed it on to Mr. Opuni the wholesale keeper who sanctioned the supply of the ten bags of flour to Ama Akoto believing that it was genuinely sanctioned by the district manager. After processing the chit it was returned to the accused for supplies to Ama Akoto. On 19 September 1977 the accused supplied the ten bags of flour valued ¢320 to the said Ama Akoto. On 3 October 1977 the district manager on his routine inspection discovered the chit with a different handwriting at the top. He confronted the wholesale manager and keeper both of them identified the handwriting to be that of the accused. The accused was confronted but he denied authorship of the chit. The case was reported to the police. During police investigations the accused was arrested and during interrogation he admitted the offence. Further investigation revealed that Ama Akoto is the accused’s own wife. Further investigation showed that he supplied it to one Mary Eshun of Agona Swedru. After investigations he was charged with the offence. The ¢320 was paid to the G.N.T.C. in the name of Ama Akoto and collected by Mary Eshun.”
The appellant then gave his explanation:
“It is true that Ama Akoto is my wife, and Mary Eshun is my mother-in-law. The latter has come to the G.N.T.C. on several occasions wanting flour. Any time she comes to the manager she was unsuccessful. She was always asked to come the next time. I told her to be patient for the next allocation when she would queue like anyone else for her share. When the next time she joined the queue she came to tell me that the storekeeper picked out certain people from the line and served them. That at any time the selling was going on the district manager was present to supervise. I informed her to be patient so that by the permission of God I will get some for her. Mary Eshun came back later to say that her business was grounding as a result of the absence of the flour. That the current market price was ¢100 instead of ¢32. My wife was sick and Mary Eshun helped me to look after her. One day I saw the chit which has been mentioned. I picked it up and cut off the name ‘Ghana Police Force—Training Depot, Winneba.’ Before any chit is pasted on the triplicate of the invoice the district manager will have to cancel it before countersigning it. This chit was not so cancelled so I thought it was still valid. I recalled that some people collected allocation chits and throw them away without utilising them. After cutting off the former heading I wrote my wife’s name Ama Akoto on it. I debited ten bags of flour in the cash sales book. I gave it to Mary Eshun, my mother-in-law to send to the cashier. After paying for the flour I sent the receipt and the receipt book to the sales manager. The sales manager endorsed it and she went to the wholesale keeper. The wholesale keeper supplied the ten bags. My intention in doing what I did was not dishonest. I did it out of sheer sympathy because Mary Eshun looked after my wife in her sickness. I tried to help. I am pleading with the court for mercy. The G.N.T.C. has not lost a pesewa as a result of my act.”
After this explanation the learned trial magistrate convicted the appellant “on his own plea” and sentenced him to eighteen months’ imprisonment with hard labour with the comment that “the explanation of the accused is wholly untenable.”
On 17 October 1978, the appellant filed a motion for bail pending appeal against both conviction and sentence. This was resisted on behalf of the Republic mainly on the ground that by virtue of section 324 (3) of the Criminal Procedure Code 1960 (Act 30), it was not open to an appellant who had been convicted on his own plea to appeal against conviction, and consequently to ask for bail pending an appeal. The said section 324 (3) reads, “No appeal shall be entertained against conviction by an accused person who has pleaded guilty and has been convicted on his plea.” In spite of this provision and the argument on behalf of the Republic based on it, however, I admitted the appellant to bail, and at the hearing of the appeal I permitted counsel for the appellant to argue in support of his contention that the conviction cannot be sustained having regard to the explanation given by the appellant at the trial; in effect I permitted a re-opening of the case on appeal, the fact of the appellant having allegedly pleaded guilty in the trial court notwithstanding. I now proceed to give reasons for my actions.
As regards bail, it is my view that even if an appellant who had been convicted on his plea cannot appeal against conviction that did not prevent him from seeking to be admitted to bail pending an appeal in appropriate cases; the most obvious of such appropriate cases is where the offence creating section prescribes only a fine, and the trial court awards, as punishment, a term of imprisonment. In such a case it would be a travesty of justice if the appellant is refused bail. He is, entitled to it ex debito justitiae. This should also be the case where on pleading guilty the appellant gives an explanation which nullifies the effect of such plea of guilty and entitles him to have a plea of not guilty entered for him and evidence received. Where, therefore on such plea of “guilty,” an appellant is nevertheless convicted and sentenced, he ought to be admitted to bail since the conviction and the sentence based on that plea would be a nullity.
In this case, the appellant was charged with forgery with intent to defraud, contrary to section 159 of the Criminal Code, 1960 (Act 29). He pleaded guilty to forgery but added almost in so many words that he did not intend to defraud. He said, “My intention in doing what I did was not dishonest” and since defrauding necessarily involves dishonesty, the appellant should have been taken to have denied the charge and a plea of “Not guilty” entered for him.
In the case of R. v. Golathan (1915) 11 Cr. App. R. 79, C.C.A. the appellant was arraigned on a charge of entering a dwelling-house by night with intent to steal; he pleaded guilty to entering, but added that he did not enter for the purpose of stealing. He was, however, convicted “on his plea of guilty” and sentenced. The conviction was quashed on appeal, and Lord Reading C.J. reading the judgment of the court said at p. 80:
“In our view this man’s plea was not a plea of guilty at all, and no man is to be convicted on a plea which is ambiguous. If there is any ambiguity it is to be taken as a plea of not guilty, and evidence given against him in the ordinary course.”
ANNAN J.
Annan J. (as he then was) expressed a similar view in the case of Zongo v. The State, High Court, Tamale, 16 March 1967, unreported when he said,
“If the record shows that the appellant did not in fact plead guilty to the charge or that his statement in answer to the charge shows an ambiguity as to his plea, the court should hold that the appellant has not in fact pleaded guilty.”
I was quite clear in my mind after perusing the record of proceedings that the appellant in this case could not be said properly to have pleaded guilty to the offence charged. His explanation introduced a clear ambiguity into his plea for which, therefore, a plea of not guilty ought to have been substituted, and consequently should not be precluded from appealing against conviction; for this reason, I heard his counsel.
Before I leave this question of whether or not an appellant can appeal against conviction after pleading guilty in the trial court and being convicted on his plea, however, I must comment on section 324 (3) of Act 30. Its continued validity since the Courts Act, 1971 (Act 372), received the assent on 22 September 1971 is in serious doubt. Section 114 (1) of Act 372 states, “The enactments specified in the Third Schedule to this Act are hereby repealed;” and the Third Schedule referred to specifies, among other sections of Act 30, s. 324. Section 324 (3) is, therefore no longer on the statute books; but whether its exit makes any practical difference to the situation as we have always known it is an entirely different matter. And now to the merits and demerits of the appeal itself.
It is common ground between counsel—in any case it is my view—that the appellant did forge the chit within the meaning of section 164 (a) of Act 29 when he substituted the name “Ama Akoto—Swedru” for “Ghana Police Force—Training Depot, Winneba” and also altered the date 5 September 1977 to read 16 September 1977. Beyond that, counsel were in sharp controversy; for whilst the learned principal state attorney contended that the forgery was with intent to defraud, learned counsel for the appellant maintained that the intent was only to deceive. That there is a world of difference between the two intents canvassed is beyond doubt. Buckley J. in the case of In re London and Globe Finance Corporation, Ltd. [1903] 1 Ch. 728 stated the difference at pp. 732-733:
“To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury.”
It has been said therefore that the essential element in an intent to defraud, is an intent to deprive the person deceived of something of value, whether money or a chattel, and thus the causing of some economic loss: see Russell on Crime (11th ed.), pp. 1243-1245. The view was adopted by Professor Glanville Williams in his Criminal Law (2nd ed.) at pp. 87-88.
In the case of R. v. Bassey (1931) 22 Cr. App.R. 160, C.C.A. the view expressed above was considered too narrow. The appellant in that case had produced false documents to the Benchers of the Inner Temple in order to obtain his admission as a student to the Inn. It was argued that at most he intended to deceive, and that the Benchers by admitting him were not being deprived of anything. Swift J., however, in reading the judgment of the court, said at p. 162:
“In this case there was, in the opinion of this Court, evidence on which the jury might properly say that, in making these forged documents and in subsequently uttering them, the appellant intended to defraud, because he intended to induce the Benchers to act to their injury in admitting as a student a person whom, if they had known the true facts, it was not only their right; but also their duty, to exclude.”
(The emphasis is mine.) Thus the requirement of “economic loss” was shed.
In R. v. Owen [1957] 1 Q.B. 174, C.C.A. Lord Goddard C.J. had doubted the soundness of the interpretation put on Buckley J.’s definition In re London and Globe case when he said at p. 187, “It may well be doubted whether a Government Department can be said to act to its injury merely by issuing a certificate which it would not have granted had the true facts been known;” but on appeal to the House of Lords sub nom. Board of Trade v. Owen [1957] A.C. 602 that court quickly re-affirmed Bassey’s case. Lord Tucker said at p. 622:
“If, however, a conspiracy of this nature is aptly included in the wide category of conspiracies known as conspiracies to cheat and defraud and if it is necessary to aver and prove that the acts designed to be done or the object to be achieved will result in some person acting to his detriment, I feel little doubt that a government department so acts if it issues a licence which enables something to be done which the department is charged with the duty to prevent.”
(The emphasis is mine.) This interpretation was followed by Paull J. in R. v. Potter [1958] 2 All E.R. 51. In that case, false documents had been put forward with the intention of inducing a county council to issue a driving licence. The learned judge said at p. 55,
“It was to induce the county council to take a course of action which they would not otherwise have taken and which it was not only their right but their duty not to take if they had known the true facts.” (The emphasis is mine.)
Then in Welham v. Director of public Prosecutions (1960) 44 Cr.App.R. 124, H.L. the principle enunciated in Bassey’s case was accepted as the test in cases in which an intent to defraud is an essential ingredient in the charge. Referring to the economic loss theory, Hilbery J. in the Court of Criminal Appeal said at p. 128:
“We have, however, come to the conclusion that this is too narrow a view. While, no doubt, in most cases of an intention to defraud the intention is to cause an economic loss, there is no reason to introduce any such limitation. Provided that the intention is to cause the person deceived to act to his real detriment, it matters not that he suffers no economic loss. It is sufficient if the intention is to deprive him of a right or to induce him to do something contrary to what it would have been his duty to do, had he not been deceived.”
(The emphasis is mine.) This view was accepted in the House of Lords.
From the authorities cited above one thing is clear, namely that two elements at least are essential to the commission of the crime, namely first deceit or an intention to deceive or in some cases mere secrecy or silence and secondly, an inducement to commit a breach of duty as a result of the deceit.
Applying this principle to the case before me, the question that needs answering is: Was Nana Opuni the wholesale keeper, or the district manager or, indeed the G.N.T.C. under a duty to prevent Ama Akoto from buying her fair share of flour from the G.N.T.C. if they had known that she was an ordinary law abiding, tax paying citizen, of Ghana who earns her living by baking, and not a member of the Ghana Police Force Training Depot, Winneba?
The answer to that question is, of course, firmly in the negative. This means then that by his act, the accused did not induce either Nana Opuni or the G.N.T.C. to do what it was their duty to prevent and the intent therefore is not one to defraud but merely one to deceive, as Hayfron-Benjamin J. said in the case of State v. Annan [1965] G.L.R. 600, where an accused person who did not have a diamond licence sold diamonds to the Diamonds Marketing Board under the licence of another, one Deneji who had such a licence. The Marketing Board made out a cheque payable to Deneji and the accused person was identified by his friend as Deneji. He presented the cheque to the bank and he was paid in the name of Deneji. He was charged with forgery with intent to defraud. Acquitting the accused, Hayfron-Benjamin J. said at p. 612:
“I am of the view that the highest point at which the prosecution’s case can be placed is that the fifth accused intended to deceive the bank, and this does not amount to forgery … The position therefore is simply that the fifth accused endorsed the name of Deneji on a cheque to enable him to obtain what was due to him.”
Surely Ama Akoto, a baker, is entitled to her fair share of flour. The prosecution drew my attention to the principle that a person who takes a loan which he intends to pay back may be liable to prosecution for fraud by false pretences, if he misrepresents the facts to the moneylender. It should be noted that under our law fraud by false pretences does not require that the person deceived should be deprived of anything at all. The obtention of his mere consent to be deprived is all that is necessary to complete the offence. There need not be deprivation. The fact of deprivation is often used by the prosecution only in proof of the essential ingredient that the victim’s consent to part with a chattel was obtained albeit by false pretences.
Even though my attention was not drawn to it, I have myself had a look at section 164 (b) of Act 29 which reads, “a person who issues or uses any document which is exhausted or cancelled, with intent that it may pass or have effect as if it were not exhausted or cancelled, shall be deemed guilty of forging it,” and I have come to the conclusion that that section does not help the prosecution either. The appellant in this case did say in explanation, and same is recorded that “before any chit is pasted on the triplicate of the invoice the district manager will have to cancel it before countersigning it. This chit was not so cancelled so I thought it was still valid. I recalled that some people collect allocation chit and throw them away without utilising them.” Of course to be caught by this paragraph, an accused person should be shown to have knowledge of the fact that the document was “exhausted” or “cancelled.” This was not the case in this case.
For the reasons given above, therefore, it is my view that this appeal should succeed, and I hereby allow it. I quash the conviction and set aside the sentence of eighteen months imprisonment with hard labour. I substitute a verdict of acquittal. Court below to carry out.
Appearances
E. F. SHORT FOR THE APPELLANT; BADDOO PRINCIPAL STATE ATTORNEY FOR THE REPUBLIC.
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