AKOWUAH vs. COMMISSIONER OF POLICE [1964]DLSC1863

Date	1964-06-30
Suit No.
Citation No.	[1964]DLSC1863

MILLS-ODOI JSC

OLLENNU JSC

AKAINYAH J.S.C.

V. OWUSU FOR THE APPELLANT.

A. N. E. AMISSAH DIRECTOR OF PUBLIC PROSECUTIONS FOR THE RESPONDENT.

[1964]DLSC1863
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													<main id="main" class="content" style="min-height: 60rem" >AKOWUAH <o:p></o:p>vs. <o:p></o:p>COMMISSIONER OF POLICE <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1964] GLR 475<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
30 JUNE 1964.<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">

V. OWUSU FOR THE 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">

MILLS-ODOI, OLLENNU AND AKAINYAH
JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.S.C.<o:p></o:p>Ollennu
J.S.C. delivered the judgment of the court. The appellant was convicted by the
Circuit Court, Kumasi, of the offence of fraud by false pretences, contrary to
section 131 of the Criminal Code, 1960.1 He was charged and tried jointly with
another person who was the second defendant but that other person was
acquitted. He appealed against his said conviction to the High Court, Kumasi,
but the same was dismissed, and he has now appealed to this court against the
decision of the High Court upholding his conviction.<o:p></o:p><o:p>&nbsp;</o:p>Six
grounds of appeal were filed, these were argued in two groups, namely, grounds
one and two together, and grounds three, four, five and six also together. The
essence of these two sets of grounds are: (1) the charge is bad because the
particulars failed to allege “defrauding” or “intent to defraud,” and (2) the
false pretence of which evidence was given is at variance with the pretence
alleged in the charge.<o:p></o:p><o:p>&nbsp;</o:p>Each of
these two questions of law was argued in the circuit court as well as in the
High Court. As regards the first point the learned circuit judge held that “by
section 133 [of the Criminal Code, 1960, (Act 29)] it is not necessary to
allege ‘intention to defraud’ in a charge of fraud by false pretences as is the
case in England where the Larceny Act, 1916, section 32 which creates the
offence is so worded that the ‘intention to defraud’ must be alleged”; and that
even if it were so here in Ghana, section 112 of the Criminal Procedure Code,
19602 cures such defect. As regards the second point, he held in effect that
the representation proved was the same as that alleged. As regards the first
point the learned judge of the High Court held3 that by virtue of section 112
of the Criminal Procedure Code, 1960, which prescribes the form in which a
charge and the particulars thereof should be framed, the “obvious object” of
particulars of a charge4 “is to give the appellant reasonable information as to
the legal nature of the charge” and therefore that “those particulars are not
expected to set out all the ingredients of the offence.” He continued5:<o:p></o:p>&nbsp;“The nature of the offence in this case as I
understand it, is that it was alleged by the prosecution that the fraud of
which the appellant stood charged, consisted in his obtaining cash from the
complainant by a false pretence. The latter ingredient is very copiously
statutorily defined in section 133 of the Criminal Code, 1960, and contains an
intent to defraud.”<o:p></o:p><o:p>&nbsp;</o:p>He
concluded6: “The particulars in this case gave the appellant reasonable
information as to the nature of the charge and are, in my opinion, sufficient.”
As regards the second point the learned judge said7:<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">“It is
not difficult to see why, in England, the slightest variance between the
pretence alleged and the one proved by the evidence is deemed to be fatal. This
seems to me to be because the pretence can be reproduced verbatim in the words
of the person accused. In this country, it would normally be in a Ghanaian
language which must be reduced as accurately as possible into English.”<o:p></o:p><o:p>&nbsp;</o:p>Upon that
reasoning he held8: “I am wholly unable to say that there was anything like a
fatal variance between the pretence alleged and the evidence adduced in this
case.”<o:p></o:p>The
charge preferred against the appellant reads9:<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-bo</main>