COMMISSIONER OF POLICE vs. MUTARI [1960]DLSC134

Date	1960-10-21
Suit No.
Citation No.	[1960]DLSC134

VAN LARE J.S.C

GRANVILLE SHARP J.S.C.

AKIWUMI J.S.C.

BENJAMIN FOR APPELLANT.

AMISSAH FOR RESPONDENT.

[1960]DLSC134
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													<main id="main" class="content" style="min-height: 60rem" >COMMISSIONER OF POLICE <o:p></o:p>vs. <o:p></o:p>MUTARI<o:p></o:p>&nbsp;[SUPREME
COURT]<o:p></o:p>[1960] GLR 201<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
21ST OCTOBER, 1960.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

BENJAMIN FOR APPELLANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

VAN LARE, GRANVILLE SHARP AND AKIWUMI, JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AKIWUMI J.S.C.<o:p></o:p>Akiwumi,
J.S.C. delivered the judgment of the court: In October, 1959, the appellant
misrepresented to the complainants that he had some French francs which he
wanted to change into English notes. Acting upon this inducement the
complainants parted with their moneys to him to be exchanged for French francs.
After receiving the moneys the appellant failed to give them French francs and
denied receiving any money from any of the complainants. Eventually the
appellant was arrested and charged with stealing—on three counts.<o:p></o:p><o:p>&nbsp;</o:p>The case
was tried by the learned district magistrate at Accra and the appellant was
convicted of stealing and sentenced. From this conviction he appealed to the
Divisional Court in its appellate jurisdiction.<o:p></o:p>The
learned judge confirmed the conviction but in so doing, he, by virtue of
section 154 of Cap. 10 altered the conviction, to read “ guilty of false
pretence “—as the evidence showed that, but for the false representation of a
present fact, the complainants would not have parted with their moneys.<o:p></o:p>From this
finding the appellant has appealed to this court. The appeal was argued on five
grounds which were argued at length by learned counsel for appellant. These
boil down to:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(a) That the learned judge
wrongly operated section 154 Cap. 10 by not finding that the appellant was
guilty of false pretences “ with intent to defraud;”<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(b) That the omission of the
words “with intent to defraud” in the learned judge’s finding was fatal;<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(c) That there was no evidence on
record to justify the findings;<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(d) That there was some doubt in
the evidence before the court, the benefit of which should have been given to
the appellant.<o:p></o:p><o:p>&nbsp;</o:p>As to (a)
the learned judge acted within his rights by virtue of section 154, Cap. 10
which reads as follows: —<o:p></o:p>“When a
person is charged with stealing anything and it is proved that he obtained the
thing in any such manner as would amount under the provisions of the Criminal
Code to obtaining it by false pretences with intent to defraud he may be
convicted of obtaining it by false pretences although he was not charged with
that offence.” The evidence on record clearly indicated that although the
complainants parted with their money willingly they were influenced to do so
through the inducement of the appellant with intent to defraud them. This changed
the offence from stealing to that of false pretences as was found by the
learned judge.<o:p></o:p><o:p>&nbsp;</o:p>As to
(b), in view of the fact that the evidence did not support the original charge
of stealing but that of false pretence, the omission of the words “ with intent
to defraud “ was not fata</main>