OKPARA v. COMMISSIONER OF POLICE [1963] 1 GLR 31

DIVISION: IN THE SUPREME COURT

DATE: 21ST JANUARY, 1963

BEFORE: ADUMUA-BOSSMAN, OLLENNU AND AKUFO-ADDO NJJ.S.C.

CASE REFERRED TO

R. v. Mensah [1959] GLR 314

NATURE OF PROCEEDINGS

APPEAL against conviction on four counts of possessing forged documents and four counts of aiding and abetting one G. F. C. Bruce to steal entered by the Circuit Court, Accra. The appeal of Bruce, who was tried jointly with the appellant herein is reported at [1963] 1 G.L.R. 36.

COUNSEL

P. Swaniker for the appellant.

Annan, Senior State Attorney, for the respondent.

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. The appellant was tried in the Circuit Court, Accra, jointly with one George Frank Cleland Bruce, on a charge sheet which charged the said George Frank Cleland Bruce with four counts of forgery, four counts of falsification of accounts, and four counts of stealing; and charged the appellant with four counts of possessing forged documents, and four counts of aiding and abetting the said George Frank Cleland Bruce to steal. The appellant and the said George Frank Cleland Bruce were convicted on each of the counts on which each stood charged. The appellant appealed against his said conviction on a number of grounds; the following are the most important of them: (1) that there was no evidence to connect the appellant with the stealing to make him aider and abetter in a crime of stealing as charged, and (2) there was no evidence to prove that the appellant knew that the documents in question were forged or not genuine.

Learned state attorney, for the respondent, conceded that there was no evidence to establish any of the charges of stealing; and further that there was no evidence to connect the appellant with the acts upon which the charges of stealing preferred against the said George Frank Cleland Bruce were based. [p.33] of [1963] 1 GLR 31

The offence of aiding and abetting implies the commission, by one person, of a substantive offence, and another person aiding and abetting the principal offender in the commission of that substantive offence. Therefore a person cannot be convicted of aiding and abetting where no substantive crime is proved to have been committed: R v. Mensah.1

Particulars of the counts of possessing forged documents were given as follows: “did have in your possession a certain forged document …which you knew not to be genuine.” On the charges of possessing forged documents the learned circuit judge made the following findings: “I am satisfied therefore that the alterations in the originals were made after the licences had been signed on the instigation of and with the knowledge and concurrence of the second accused.” The second accused is the appellant. The circuit judge continued: “I am satisfied the second accused knew that the licences were forged and he had them in his possession.” Knowledge of falsity of a document is not always capable of direct proof; the best way to prove it is to lead evidence of facts from which the only reasonable conclusion to be drawn is that the person having possession of the document must know that the document is false. There is not a tittle of evidence in this case which can possibly lead to the conclusion that the appellant must have known that the documents in question were forged. Therefore there is no evidence to support the positive findings which the learned circuit judge made in this regard. Learned state attorney conceded this fact also. He, however, submitted that the absence of such evidence is not fatal to the prosecution because in a charge of possessing a forged document under section 166 of the Criminal Code, 1960, 2 the prosecution need not allege and need not prove that the person accused of such possession had knowledge that the document he possessed was forged; he submitted that all that the prosecution need allege and prove is that the accused person possessed the document with one or other of the intents mentioned in Chapter 2 of Part III of the code. In our opinion, this view of the law is wrong. In the first place, one of the intents mentioned in the chapter is “intent to cause it to be believed that the document or part has been made or altered by a person who did not in fact so make or alter it”; (section 164 (a) (i)) another is intent to defraud. A person cannot be said to intend to cause some one to believe a thing to be that which it is not, unless the person intending to do so himself knows that the thing he holds out is not what he alleges it to be. In other words a person cannot intend to use a genuine document fraudulently to induce others to believe that it is genuine, what else can a genuine document be but genuine? Therefore, an allegation of intent to use a false document to defraud, necessarily implies an allegation of knowledge on the part of the person having the intent that the document is false, and that in spite of his knowledge of its falsity, he is out deliberately to induce others to believe that that false document is genuine.

[p.34] of [1963] 1 GLR 31

Now section 166 of the Criminal Code, 1960, reads:

“Whoever, with any of the intents mentioned in this Chapter, has in his possession any document or stamp, which is forged, counterfeited, or falsified, or which he knows not to be genuine, shall be liable to the like punishment as if he had, with that intent forged, counterfeited, or falsified the document or stamp.” Learned state attorney argued that the word “or” appearing in the section should be construed as disjunctive, and that when so construed, the proper reading of section 166 is as follows: “A person who with any of the intents mentioned in this chapter:

(1) has in his possession any document or stamp which is forged or

(2) has in his possession any document or stamp which is counterfeited, or

(3) has in his possession any document or stamp which is false, or

(4) has in his possession any document or stamp which he knows not to be genuine, shall be liable to punishment…..”

He submitted therefore that the words “which he knows not to be genuine” do not relate to, and do not qualify any of the clauses “any document which is forged,” “any document which is counterfeited,” and “any document which is false”; and that it is in a category of its own.

The fallacy of this interpretation of section 166 is exposed by section 167 (1) which, when analysed, reads as follows:

“167 (1) A person possesses . . . a document knowing it not to be genuine if he possesses it . . . knowing that:

(i) it was not in fact made or altered at the time at which it purports to have been made or altered,

(ii) it was not in fact made or altered by the person by whom it purports to have been made or altered,

(iii) it was not in fact made or altered with the authority or consent of the person with whose authority or consent it purports to have been made or altered.”

Section 167 therefore takes us back to the definition of forgery as is contained in section 164 (a) of the Criminal Code, 1960, which is as follows:

“164 (a) A person forges a document if he makes or alters the document or any material part thereof, with intent to cause it to be believed:—

(i) that the document or part has been so made or altered by any person who did not in fact so make or alter it; or

(ii) that the document or part has been so made or altered with the authority or consent of any person who did not in fact give his authority or consent; or

(iii) that the document or part has been so made or altered at a time different from that at which it was in fact so made or altered.”

[p.35] of [1963] 1 GLR 31

Thus the very essential facts which, according to section 167 of the code, a person in possession of a document must know before he could, in law be said to be in possession of a “forged document” are the very ingredients which constitute a document a forged document. In short, therefore, the proper interpretation of section 167 of the code is that for possession of a forged document to be an offence under section 166 of the code, the person in possession must know that the document is forged, or that it is counterfeited, or that it is false or that it is otherwise not genuine. Therefore the proper reading of section 166 of the code is as follows:

“A person who with any of the intents mentioned in this chapter, has in his possession: any document or stamp which he knows to be forged, or any document or stamp which he knows is counterfeited, or any document or stamp which he knows to be false, or any document or stamp which he knows otherwise not to be genuine … shall be liable to punishment . . ..”

It is therefore essential that for a charge under section 166 of the Criminal Code, 1960, to succeed, it must be alleged in the particulars thereof, and it must be proved by evidence, that the person charged knew that the document in his possession is forged or that it is otherwise not genuine. Failure to prove that essential ingredient of the charge is fatal to the prosecution.

Now as earlier observed, learned state attorney conceded, properly in our view, that the finding of the circuit judge that the appellant knew that the documents were forged, is not borne out by any evidence on the record. It followed that the prosecution completely failed to establish any of the four counts of possessing forged documents, in the same way as they failed to prove any of the four counts of aiding and abetting stealing preferred against the appellant. Consequently the conviction of the appellant on each of those eight charges is bad and cannot stand. Therefore those convictions, and the sentences passed in consequence thereof, are quashed, and the appellant is acquitted and discharged on each of the said counts.

DECISION

Appeal allowed.

Appellant acquitted and discharged.

J. D.