TETTEH v. THE STATE [1965] GLR 670

DIVISION: SUPREME COURT

DATE: 23 NOVEMBER 1965

BEFORE: OLLENNU, AKAINYAH AND SIRIBOE JJ.S.C.

CASE REFERRED TO

R. v. Kuree (1941) 7 W.A.C.A. 175.

NATURE OF PROCEEDINGS

APPEAL from a conviction by the District Court, Christiansborg, Accra, of a charge of fraud by false pretences. The facts are fully set out in the judgment of the Supreme Court delivered by Akainyah J.S.C.

COUNSEL

Appellant in person.

J. N.K. Taylor, Senior State Attorney, for the respondent.

JUDGMENT OF AKAINYAH J.S.C.

Akainyah J.S.C. delivered the judgment of the court. The appellant was convicted by the district court on

5 October 1964, on a charge of fraud by false pretences and was committed to the High Court for sentence under the Punishment of Habitual Criminals Act, 1963,1 because, he admitted three previous convictions for stealing, one for conspiracy and another for housebreaking. On 30 October 1964, the appellant was sentenced to a term of three years’ imprisonment with hard labour by Kingsley Nyinah J.

The particulars of the charge were as follows:

“For that you, Lomo Tetteh, on the 8th day of August, 1964, at Christiansborg, Accra, in the Accra

Magisterial District and within the jurisdiction of this court, with intent to defraud did obtain cash the sum of

£G116, from one Rev. Conard Alexander Lutterodt by falsely pretending to the said Rev. Conard Alexander

Lutterodt, that if he gave you the sum of £G116, you could buy him some photographic materials at Tema

Harbour, whereas in fact and in truth you well knew at the time of making it the statement to be false.”

The facts of the case are as follows: On 8 August 1964, the appellant visited the house of the complainant, the Rev. Conard Alexander

[p.672] of [1965] GLR 670

Lutterodt, accompanied by a man named Atta Boye. It was admitted that the appellant and the complainant (who described himself as a minister and photographer) became friends while they were both serving terms of imprisonment at the Nsawam Prison in the year 1962. It is alleged that on the date in question, the appellant introduced Atta Boye to the complainant as an auctioneer in charge of auction sales at Tema Harbour and asked the complainant for the sum of £Gl16 with which to obtain some photographic materials at the auction for him.

Consequently, the complainant produced a sum of money which he handed to his two wives to check for him in the presence of the appellant. When the counting was over, the complainant told his wives what the money was intended for and handed the sum of £Gl15 plus an extra one pound to the appellant in the presence of the said wives. The photographic materials were to be delivered to the complainant on

Monday, 10 August 1964, but neither the appellant nor Atta Boye turned up again. On 27 August 1964, the complainant made a report to the police and the appellant was arrested on the same day.

Upon his arrest, the appellant made a statement to the police (exhibit A) on which he relied at the trial. In it he recounted his association with the reverend gentleman in the Nsawam Prison and said that on the day of the complainant’s discharge from prison, he gave to the appellant an open written invitation to visit him after his (the appellant’s) release. About two-and-a-half months prior to 8 August 1964, the appellant was discharged. He therefore visited the complainant accompanied by a friend of his named Atta Boye and asked for a loan of £G20 to enable him to re-start his (the appellant’s) fishing business. The complainant said he could not afford to lend him the whole amount of £G20 required but he gave him the sum of £G16. In cross-examination, the appellant put it to the complainant that he lent him only £G16 and that he had won that sum at the races. The complainant admitted that he attended races but denied that he won any sum of money there.

In support of the complainant’s story, only one of his two wives, Miss Alexander Asugba Addy, was called by the prosecution and she testified that on the date in question when she and her husband returned from the races, the appellant and another man came to their house and had a conversation with the complainant in the sitting room. She was in the kitchen. Later on, the complainant called her and another wife of his and gave them some money to check for him which they did. It was £G116. The complainant then handed the

[p.673] of [1965] GLR 670 said sum to the other man who also gave it to the appellant and said that the appellant was taking the money to buy some photographic materials for him at an auction at Tema. In answer to a question by the appellant, this witness admitted that she personally counted about £G78 and the complainant’s other wife counted the rest of the money.

In view of the appellant’s contention that the complainant gave him the sum of £G16 only, coupled with the disclosure that the complainant had served a term of imprisonment in 1962, and the voluntary admission by the complainant in his evidence-in-chief, the evidence adduced in proof of the amount alleged to have been given to the appellant should be such as to lead to no other conclusion than that it was £G116. In our opinion, the prosecution failed to prove conclusively that the sum of money given to the appellant was £G 116.

According to the record of proceedings, there were two other persons, namely, the complainant’s other wife and Atta Boye whose evidence would have resolved the doubt one way or the other. There is nothing on record showing that any attempt was made to call the said two persons. Since there is no reason shown on the record that the prosecution had reason to believe that the said persons would not speak the truth or that they could not be traced, we are of the opinion that they should have been called because they were material and relevant witnesses.

In the case of R. v. Kuree,2 the West African Court of Appeal discussed a similar point and made the following observations3:

“Agudey said ‘When I heard the shouts Amamki was there. She and I were having our meals at the time.’

Obviously, if Agudey heard shouts, Amamki must have heard them too, unless she was deaf. Even if she was deaf she would have seen Agudey ‘rush’, if Agudey did rush. Her evidence must almost certainly have settled one way or the other the truth or otherwise of the story of the shouting. Without her evidence we feel that the learned trial Judge could not adequately gauge the truth and we are not satisfied that if she had been called, as in our view she should have been called, the verdict would necessarily have been the same.

Consequently we have come to the conclusion that in the fair administration of the criminal law this conviction cannot stand.”

In this court, the appellant who was not represented by counsel submitted that he was not satisfied with the conviction and asked the

[p.674] of [1965] GLR 670 court to look into the case properly. Learned senior state attorney conceded quite rightly that the representation alleged in the charge sheet cannot, in law, support the charge of false pretences but submitted that the evidence shows that the case is one of theft because the appellant denied receipt of the whole amount.

Learned senior state attorney’s submission is obviously based upon the provisions of section 157 (2) of the Criminal Procedure Code, 1960,4 which provides that, “When a person is charged with defrauding by false pretences and it is proved that he stole the thing he may be convicted of stealing it although he was not charged with that offence.”

In our view, the operation of section 157 of Act 30 is by no means automatic. It can only be applied when the facts proved justify a conviction for the alternative offence with which the accused has not been charged. If the facts proved establish neither the offence charged nor the alternative offence, the accused must be acquitted.

In his judgment, the learned magistrate said:

“The second prosecution witness corroborated the first prosecution witness in all details as to the counting of the money and as to its quantity and the purpose for which the accused collected it. She denied the accused’s suggestion that he had borrowed the money to get a fishing net and added that the accused promised to get photographic materials for the first prosecution witness, her husband.”

The above quotation is not borne out by the evidence. The record does not show that the second prosecution witness corroborated the complainant’s story in all details as the learned magistrate erroneously held. She rather admitted that she counted about £G78 of the money. There is no record that the appellant suggested to the second prosecution witness that he borrowed the money to get a fishing net nor is it recorded that the second prosecution witness said so at all. According to the record of proceedings, the appellant cross-examined the complainant himself on the alleged sum of £G16 and put it to him that he borrowed that sum to buy a rope to mend his fishing net and that the complainant had won the said sum at the races.

The learned magistrate again said:

“The accused was not able, in his statement on caution to mention the name of the person who accompanied him to the first prosecution witness’s house; if he had done so, the police

[p.675] of [1965] GLR 670 could have found him and made him say something either in support of the accused’s contention or against it. This failure is to the detriment of the accused, since it is his duty to help the police in their enquiries if he should be released. His failure to produce or lead the police to his companion confirms the court’s belief that he had something to hide. . . . The only thing that makes the court sure of his guilt is the fact that he was not able to throw any doubt on the prosecution’s case at all.”

We have examined the appellant’s statement (exhibit A) referred to by the learned magistrate and found that the appellant did mention the name of the friend who accompanied him to the complainant’s house as

Atta Boye. The magistrate clearly misdirected himself on the burden of proof. There is no duty on a person accused of crime to help the police in their inquiries, because an accused person is not under any obligation to prove his innocence. The onus is on the prosecution to prove the guilt of the accused. If a certain fact beneficial to an accused person is peculiarly within his knowledge then commonsense requires that in his own interest and for his own safety the accused should let the police know of such a fact.

In the instant case, the complainant and his wives themselves saw the man and the appellant mentioned his name. It is therefore a mis-statement of the facts for the learned magistrate to say that the appellant failed to mention the name of the man. For the reasons stated herein the appeal was allowed on 29

October 1965, and the conviction and sentence were quashed. A judgment and verdict of acquittal were entered and the appellant was discharged.

DECISION

Appeal allowed.

Conviction and sentence quashed.

Appellant acquitted and discharged.

S. K. D.-B.