SEFA v. COMMISSIONER OF POLICE [1963] 2 GLR 33

DIVISION: IN THE HIGH COURT, KUMASI

DATE: 14TH JUNE, 1963

BEFORE: APALOO J.

CASES REFERRED TO

(1) R. v. Mills (1857) Dears. & B. 205; 169 E.R. 978; 26 L.J.M.C. 79; 29 L.T. (O.S.) 114; 21 J.P. 294; 3 Jur. (N.S.) 447; 5 W.R. 528; 7 Cox C.C. 263

(2) R. v. Grail (1944) 30 Cr.App.R. 81, C.C.A.

(3) R. v. Sullivan (1945) 30 Cr.App.R. 132, C.C.A.

NATURE OF PROCEEDINGS

APPEAL by the appellant to the High Court from his conviction of fraud by false pretences in a circuit court.

COUNSEL

Amankwa for Owusu for the appellant.

Pobee for the respondent.

JUDGMENT OF APALOO J.

This is an appeal from the judgment of a circuit court which on the 26th April, 1963, convicted the appellant of fraud by false pretences.

The appellant was, at any rate, in January 1963 the district secretary of the Convention People’s Party at Abuakwa. On the 16th January, he was alleged to have represented to a Nana Akwasi Brentuo falsely that Mama Kramo and Sumalia Kramo were on the list of persons soon to be detained by the Government. It was said he claimed that if he was paid £G150, he could assist to delete the names of those persons from the list. The prosecution claimed that such statements were false and that the accused had no reason to believe them to be true. It was said that as a result of this false representation, which the appellant made with intent to defraud, he obtained from the complainant the sum of £G50.

[p.35] of [1963] 2 GLR 33

The evidence shows that when the appellant demanded this money, the complainant tipped the police about it. Accordingly, the police with the knowledge of the complainant, set a trap for the appellant. It seems to have been arranged that the complainant was to make a part-payment of £G50 to the appellant and the police took the particulars of the £G50 currency notes which were to be paid to the appellant. This done, some plain clothes policemen took cover around the appellant’s house. When the appellant received the money, he handed it to his wife for safe-keeping. The complainant then signalled the police. The latter attempted to arrest the appellant but he escaped in a car. Evidence to this effect was given by the complainant and the police witnesses.

The accused’s version was that the complainant had previously seen the district commissioner for the area and had conferred with him about a list he made of members of the United Party in his district. He said in the evening of the day in question, the complainant visited his house and informed him that he got it from the district commissioner that Mama and Sumalia were to be detained. The accused said he confirmed this and showed the complainant the list of the persons to be detained (exhibit C). According to the accused, the complainant then said he had arranged with the district commissioner for the deletion of the names of the two aforenamed persons and so saying, the complainant produced the £G50 currency notes for transmission to the district commissioner. The accused said he declined to accept it, but was prevailed upon to do so by the complainant. That, apparently, was his explanation for accepting the money. The learned circuit judge rejected the accused’s version of the matter. He gave reasons why he preferred the prosecution’s version of the facts. Although his finding of fact has been assailed in this court, I have not been persuaded that he erred in his view of the facts. I am therefore prepared to accept for the purpose of this appeal, that the facts found by the court are correct. The facts show beyond the slightest possibility of doubt that the appellant used his office to better his lot from a financial point of view and clearly prostituted his position for money. That such conduct wholly unfitted him for the post he held, cannot be gainsaid. It seems to me that the learned circuit judge felt such great repugnance for the accused’s conduct, that he paid no more than lip service to the law which ought to be applied to the facts of this case. Although the learned circuit judge stated the elements of the offence of fraud by false pretences correctly, he did not in fact apply it to the facts found by him. For example, he stated as an ingredient (c) of the offence: “The parting of the money by the complainant was caused by the false pretence.” This is another way of saying that the pretence must induce the parting of the money. Accordingly, if the complainant is not actually deceived, but knows the falsity of the pretence but parts with the money to entrap the prisoner, such cases as R. v. Mills,1 R. v. Grail,2 R. v. Sullivan3 [p.36] of [1963] 2 GLR 33 decide that although the prisoner may be convicted of an attempt, he cannot properly be convicted of the completed offence of fraud by false pretence. In this case, it is plain that the complainant did not believe in the truth of the representation made to him. That obviously was why he tipped the police and was a party to the trap which the police set for the appellant. The complainant himself said in cross-examination, “When I paid the money, I had already planned with the police. My purpose was to arrest the person who was going to take the money.” It follows that had the learned circuit judge applied the law to the facts which he found, he would have felt himself constrained as a matter of law to convict the accused of nothing more than attempt to defraud by false pretences.

Accordingly, counsel for the appellant, argued with right on his side, that the alleged misrepresentation did not operate on the mind of the complainant and did not induce the parting of the money. He contended therefore that the conviction was wrong. That contention was plainly right and was in fact conceded by counsel for the respondent. The latter relying on section 18 (1) of the Criminal Code, 19604 invited me to substitute an attempt to defraud by false pretences for the complete offence. The section which entitles me to do that is in fact section 330 of the Criminal Procedure Code, 1960.5 Since subsection (2) of section 18 of the said Criminal Code provides that an attempt to commit a crime shall be punishable in the same manner as the completed crime I would have responded to this invitation since it would have resulted in no injustice to the appellant had I felt satisfied that all the ingredients of the offence of an attempt to defraud by false pretences had been established.

It is of the essence of this offence that a false representation must have been made by the accused and that such falsity must have been known to the accused. The burden of establishing these is, without doubt, on the prosecution. The representations which the accused made and which the prosecution claimed were false were that Mama Kramo and Sumalia Kramo were on the list of persons soon to be detained by Government and that if the complainant paid the accused £G150 he could assist to delete their names from that list. The prosecution alleged that not only did the accused know such representations to be false but had no reason to believe them to be true. It is necessary to consider to what extent the prosecution proved the falsity of these representations and the accused’s want of belief in their truth. Of the ten witnesses called by the prosecution, not one of them was able to show that Mama and Sumalia were not in fact on the list of persons due to be detained. Equally clearly, none of the witnesses testified to the effect that if the accused was paid the £G150 he could not do what he corruptly promised, namely help delete the two said names from the list. Accordingly, the prosecution was not able to make out that these representations were false. On the contrary, the evidence shows that the [p.37] of [1963] 2 GLR 33 accused believed not only in the truth of the representations but in his own ability to help delete the two names. It is established in this case that the accused had a duty to prepare a list of the members of the U.P. in his district. Mr. Amankwa the then Regional Secretary of the C.P.P. said it was perfectly in order for the appellant to submit that list to him. He did not say what it was intended for. As the members of the U.P. were the persons in opposition to the C.P.P. it is only reasonable to think that the names were required for detention. At any rate the appellant thought so. Indeed he is not alone in thinking so. The complainant who himself said he belonged to the C.P.P. said, “I know the secretaries of the C.P.P. submit the names of people to be detained.” Accordingly, the appellant equated the list of members of the U.P. with the list of prospective detainees. In the list which he submitted to the regional secretary (exhibit C) the names of Mama Kramo and Sumalia Kramo appear. As the appellant himself compiled this list, it seems to me plain commonsense that he could drop out the names of persons who paid him. That clearly is what he was going to do on receipt from the complainant of the sum of £G150.

Counsel for the appellant argued that the prosecution woefully failed to prove the falsity of the representations and the appellant’s knowledge of their falsity. I agree that the prosecution have so failed and that reprehensible though the appellant’s conduct was, the arm of the law is much too short to reach him. It follows that the conviction cannot stand and ought to be and is hereby quashed. For that conviction, I substitute a finding of not guilty. The appellant is discharged.

DECISION

Appeal allowed.

K. T.