ANSAH-SASRAKU v. THE STATE [1966] GLR 294

Division: SUPREME COURT

Date: 18 APRIL 1966

Before: MILLS-ODOI, APALOO AND SIRIBOE JJ.S.C.

CASES REFERRED TO

(1) Aikins v. The State [1966] G.L.R. 170, S.C.

(2) R. v. Ansere (1958) 3 W.A.L.R. 385, C.A.

NATURE OF PROCEEDINGS

APPEAL by the appellant against his conviction of fraud by false pretences by the District Court, Tema and sentence by the High Court, Accra. The facts of the case are fully set out in the judgment.

COUNSEL

P. A. Adjetey for the appellant.

K. A. Sekyi, State Attorney, for the respondent.

JUDGMENT OF APALOO J.S.C.

Apaloo J.S.C. delivered the judgment of the court. On 9 April 1965, the appellant was convicted by the District Court, Tema, of the offence of fraud by false pretences and was sentenced by the High Court, Accra, under the Punishment of Habitual Criminals, Act, 1963,1 to ten years’ preventive custody with productive hard labour. The facts which gave rise to the prosecution and which the learned district magistrate found are as follows: some time in January 1965, the complainant who was an engineering superintendent of the Ministry of Agriculture was in dire need of money. He required the money to make good some defalcations committed in his department by his subordinate officers. As the complainant was not himself in funds, his wife saw the appellant who is a relation of her’s and requested him to give a loan to the complainant. The appellant agreed to grant a loan of £G300 to the complainant. Accordingly, the latter came down to Accra from Dunkwa for this purpose. He lodged with the appellant. This was on or about 2 January 1965.

In the evening of 7 January 1965, the appellant requested the complainant to make out a receipt for the sum of £G300 in his favour. The former did so in longhand. This was typed out by the appellant and was thereafter signed by the complainant. As the appellant promised to hand over the sum of £G300 to the complainant the next morning in return for the signed receipt, the latter left the receipt in his notebook overnight. The receipt disappeared from the note-book the next morning but the appellant admitted to the complainant that he had in fact taken it. The former then invited the latter to go with him to the bank to receive payment. Both set off for the bank and while en route, the appellant confessed to the complainant that he was then not in credit at the bank and would require some time to arrange an overdraft facility. Upon learning this, the complainant requested the return for the time being of the receipt which was still in the appellant’s possession. The appellant declined to do this and [p.296] of [1966] GLR 294 claimed that he had in fact paid to the complainant the £G300 and obtained the receipt in acknowledgement thereof. This was found to be false.

From these facts, the learned district magistrate felt satisfied first, that the appellant represented to the complainant that he was in a position to lend the complainant £G300; secondly, that this representation was false to the knowledge of the appellant; thirdly, that the complainant executed the receipt for the appellant in the belief of this representation and fourthly, the appellant’s intention was to defraud. Holding therefore that all the ingredients of the offence were established, he proceeded to convict the appellant of the offence of fraud by false pretences. Evidence was given of the appellant’s antecedents, apparently to enable the learned magistrate to impose an appropriate sentence. This reveals a shocking record of crime. It was proved that the appellant had 27 previous convictions dating from 1934 to 1958 most of which are offences involving dishonesty. Accordingly, the magistrate committed him to the High Court to be dealt with under the Punishment of Habitual Criminals Act, 1963. The learned judge of the High Court thought this a fit case for invoking the provisions of Act 192 and imposed on the appellant a sentence of ten years’ preventive custody with productive hard labour. Against this conviction and sentence, the appellant appealed to this court.

It was submitted on behalf of the appellant that the conviction for obtaining the receipt by false pretences was wrong as the evidence for the prosecution, taken at its best only shows that the appellant procured the signing of the receipt. There was no evidence, counsel argued, that the appellant obtained the consent of the complainant to part with the possession or ownership of the receipt. In any event, said counsel, the receipt belonged to the appellant and it cannot be said that he obtained the consent of the complainant to part with his own property. Counsel referred us to the complainant’s evidence and pointed out that on his own showing, he did not part with the possession of the receipt to the appellant who, according to him, took possession of it without his consent. Accordingly, counsel intended us to say that the conviction on the charge of fraud by false pretences was wrong and asked us to quash it.

We cannot agree that the ownership of the receipt which formed the subject-matter of this charge was in the appellant. In our opinion, it was in the complainant and the evidence shows plainly that the physical handing of the £G300 to the complainant by the appellant and the transfer of ownership of the receipt by the complainant to the appellant were intended to take place simultaneously. Although the appellant took possession of the receipt without the complainant’s [p.297] of [1966] GLR 294 knowledge, the latter on becoming aware of it, was willing to let him keep it in the belief that the appellant would, in return, hand him £G300. The learned district magistrate found that the appellant well knew that he did not have £G300 to give to the complainant or that if he had it, he had no intention of giving it to him. We hold therefore that at the time the complainant agreed to let the appellant keep the receipt, the appellant obtained his consent to transfer his property in the receipt to the appellant. This was by a representation which the magistrate found to be false. This pretence, the magistrate found, was that the appellant was capable of and in position to hand £G300 to the complainant.

On the question of the false representation, it was submitted that, it did not come within the ambit of section 131 of the Criminal Code, 1960,2 because it was not made before or contemporaneously with the parting with the receipt and therefore the offence was not proved. We profoundly disagree. We think the false representation was made to the complainant before he parted with his property in the receipt to the appellant and indeed it was this false pretence that induced him so to do. Although the false pretence was at first made to the complainant’s wife, the complainant himself gave evidence that the appellant promised to grant him a loan and induced him to make out a receipt in his favour. At the time that the complainant finally consented to the appellant keeping the receipt, this false pretence had already been made and was clearly anterior to the parting with ownership in the receipt. In our opinion, all the ingredients of the offence of fraud by false pretences were established and the learned district magistrate was right in so holding. It was next argued on behalf of the appellant that the learned magistrate erred in holding that the guilt of the appellant depended whether or not the appellant was truthful and that the magistrate misdirected himself in implying that a discrepancy in the evidence of the defence witnesses was decisive of guilt. In our opinion, there is nothing in this contention. The appellant put up a story which, if true, was a complete answer to the prosecution’s case and we think it perfectly legitimate for the magistrate to express his view of the veracity of either the appellant or any of the witnesses.

It was finally submitted on behalf of the appellant that the learned magistrate misdirected himself in not considering whether the appellant’s story was reasonably probable inasmuch as it was capable of both innocent and fraudulent interpretations. Counsel referred us to some portions of the evidence and submitted that the appellant’s version was the more probable of the two and ought to have been [p.298] of [1966] GLR 294 preferred. On this aspect of the case, counsel referred us to R. v. Ansere.3 This argument does not weigh with us. On the facts, the only matter on which issue was joined between the prosecution and defence was whether the appellant in truth paid to the complainant the sum of £G300 in respect of which the former held the latter’s receipt. The prosecution asserted that no such payment was made. The defence averred the contrary. These two facts are mutually exclusive and having found that the prosecution’s version was the truth, it followed that the defence story was a fabrication. There was nothing in it which affected the magistrate’s mind with any doubt and we are unable to see why the magistrate should have considered as reasonably probable, what he found to be wholly false. In our opinion, this ground of appeal has no merit. As we said, all the ingredients of the offence of fraud by false pretences were proved and we think therefore that the conviction was right and ought not to be disturbed.

On the question of sentence, it was submitted for the appellant that the provisions of section 2 of the Punishment of Habitual Criminals Act, 1963, had not been complied with inasmuch as the learned judge did not conduct the inquiry required by that section. Accordingly, it was said the sentence was illegal. In our opinion, this contention is unsound as there is nothing on record which suggests that the learned judge had reason to believe that the physical or mental condition of the appellant rendered him unsuitable for a sentence of preventive custody. We think the appellant ought properly to be dealt with under section 1 of the Act. But we do not think the learned judge made “inquiries into the circumstances of the case” as he was obliged by subsection (1) (c) of section 1 of the Act, to do. What form that inquiry should take was laid down by this court in the case entitled Aikins v. The State.4 We accordingly affirm the conviction but quash the sentence passed upon the appellant and remit this case to the High Court and direct that the learned judge shall comply with subsection (1) (c) of section 1 of Act 192 and avail himself of the guidance which this court gave in the Aikins case referred to above.

DECISION

Conviction affirmed but sentence quashed. Case remitted to High Court for sentence.

G. N.