COMMISSIONER OF POLICE vs. BELLO [1961]DLSC10221

Date	1961-11-13
Suit No.	G L R 647 - 652
Citation No.	[1961]DLSC10221

SARKODEE-ADOO J.

ADUMUA-BOSSMAN J.S.C

CRABBE J.S.C.

APPELLANT IN PERSON.

K. DUA SAKYI WITH HIM SARKODEE FOR THE RESPONDENT (THE STATE).

[1961]DLSC10221
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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>BELLO<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormalCxSpMiddle" align="center" style="margin-bottom:0cm;margin-bottom:
.0001pt;mso-add-space:auto;text-align:center;line-height:150%;border:none;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">G L
R 647 - 652&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:&nbsp; 13TH NOVEMBER, 1961<o:p></o:p>

</div>COUNSEL:<o:p></o:p>APPELLANT IN PERSON.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

K. DUA SAKYI WITH HIM
SARKODEE FOR THE RESPONDENT (THE STATE).<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm;">

SARKODEE-ADOO J.,
ADUMUA-BOSSMAN J.S.C, CRABBE J.S.C.<o:p></o:p>

</div>&nbsp;<div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

JUDGMENT<o:p></o:p>

</div>&nbsp;<o:p></o:p>CRABBE,
J.S.C.<o:p></o:p>&nbsp;Crabbe, J.S.C. delivered the judgment of the
court. [His lordship rehearsed the facts as set out in the headnote and
continued:] The appellant obviously [p.649] had the penalty under the
Illiterates Protection Ordinance1 in mind when he strenuously denied that&nbsp; he received the sum of £G3 10s. from&nbsp; the complainant as remuneration for preparing
the documents. He maintained that he charged only ten shillings for his
services and issued a receipt, exhibit B, for that amount. We are, however,
satisfied that there was ample evidence on record to sustain the allegation
that the complainant paid the sum of £G3 10s. to the appellant on the 17th September,
1960. But the crucial matter to determine was whether the appellant was guilty
of stealing. The offence of stealing is defined in section 125 of the Criminal
Code, 19602 as follows: “A person steals if he dishonestly appropriates a thing
of which he is not the owner."&nbsp; In
section 120 there is an explanation of&nbsp;
what amounts to dishonest appropriation.<o:p></o:p>&nbsp;The learned circuit judge found as a fact
that the appellant charged, and was paid £G3 10s., but he had some difficulty
in finding the appellant guilty as charged. In his judgment he said:<o:p></o:p>&nbsp;“From one point of view it appears that since the accused
is said to have charged the complainant £G3 10s. and since the complainant paid
this sum willingly accused could not be said to have appropriated the money
without the complainant’s consent, because in fact complainant agreed to the
charge. From this point of view it looks as if in view of the receipt for ten
shillings, the accused may have committed another offence—not stealing.”<o:p></o:p>&nbsp;Instead of acquitting and discharging the
appellant on this view of the evidence the learned circuit judge proceeded to
consider what he called “this other side of the question”. This involved a
consideration of whether the complainant was made to part with the money by a
trick in which case the consent of the complainant was unreal and the appellant
could be convicted of stealing. The following passage from the judgment shows
how the trial circuit judge considered the question:<o:p></o:p>&nbsp;“But there is this other side of the
question. If complainant was made to part with the money by a trick then the
consent is nullified and the accused could be found guilty of stealing. What is
the trick, if any, here? The accused told the complainant that the charge was
£G3 10s. knowing&nbsp; that&nbsp; it is in fact ten shillings. If the
complainant knew the charge was ten shillings he would not have paid £G3 10s.
In fact as soon as he got to know he claimed the money back. To take another
example. If the accused was working in partnership with another and he charged
and was paid £G3 10s. but gave a receipt for ten shillings the accused would be
held liable for stealing the £G3.<o:p></o:p>&nbsp;The trial circuit judge then concluded his
judgment in these words:<o:p></o:p>&nbsp;“It seems from the above that since the accused told the
complainant that he had charged £G3 10s. when in fact he charged (according to
the receipt) ten shillings the accused had thereby induced him to pay £G3 more
without his consent. The&nbsp; appropriation
by the accused of this amount therefore, amounts to stealing. I accordingly
find the accused guilty of stealing £G3 and convict him accordingly.”<o:p></o:p>&nbsp;In effect the learned trial circuit judge
appears to have found the appellant guilty of “larceny by a trick.” But in
Oppenheimer v. Frazer,3 Kennedy, L.J. said:<o:p></o:p>&nbsp;"The expression ‘larceny by a trick’ is not really a
legal expression indicating [p.650] a distinct kind of larceny. It is merely a
convenient, or perhaps it may be said, having regard to the questions which
have been raised in this case, an inconvenient mode of describing certain cases
of larceny in which goods have neither been taken by force nor clandestinely
without the knowledge of the owner. The cases so described are none the less
cases of stealing."<o:p></o:p>&nbsp;There can be no doubt in this case that the
appellant knew that the charge of £G3 10s. was in contravention of the
Illiterates Protection Ordinance4 and it was solely for that reason that he
issued a receipt for a lesser sum of </main>