These offences may be categorized in two main groups – There are the acquisitive offences – in the sense of the acquisition of items – these offences involve dishonesty. Then there are offences involving damage or destruction of items
STEALING
By Section 124(1), a person who steals commits a second degree felony. By definition, Section 125 provides that, a person steals if he dishonestly appropriates a thing of which he is not the owner. The actus reus is the appropriation of a thing and the mens rea is the dishonesty with which the thing was appropriated.
To establish these elements, the prosecution must prove three requirements, namely:
⦁ that the accused is not the owner of the thing allegedly stolen
⦁ that the accused appropriated the thing alleged to have been stolen, and
⦁ that the appropriation was dishonest.
LUCIEN v THE REPUBLIC
⦁ Lack of Ownership: the accused must not be the owner of the thing allegedly stolen. There is no requirement that the prosecution should prove who actually owns the thing allegedly stolen – Section 123(3). All that is needed is for the prosecution to show that the accused is not the owner of the thing allegedly stolen – Halm v The Republic.
⦁ Appropriation: The accused must have appropriated the thing alleged to have been stolen. This is governed by Section 122. By Section 122(2), appropriation of a thing means the taking, moving, obtaining, carrying away, or dealing with the thing with the intention of depriving the owner of
⦁ the benefit of his ownership, or
⦁ the benefit of his right or interest in the thing, or
⦁ in its value or proceeds, or
⦁ any part thereof.
ANTWI v THE REPUBLIC, ANING v THE REPUBLIC,
R v WALSH
the prisoner was tried on an indictment for stealing a bag. The bag was placed in the front boot of a coach. The prisoner, who was sitting on the box, lifted the bag. A person who stood beside the wheel on the pavement took hold of the bag, and while the two were trying to draw it out of the boot with a common intent to steal it they were interrupted by the guard, and they dropped the bag. HELD: It was held that even though the bag was not entirely removed from the boot, since the raising it from the bottom had completely removed each part of it from the space that specific part occupied there was complete asportation, and the conviction was right.
It is enough if the intention is to deprive some person temporarily, however fleeting the period, of his benefit or right or interest in the thing appropriated. It also suffices if the appropriation is merely for a particular use, if the accused intended so to use or deal with the thing that it will probably be –
⦁ destroyed, or
⦁ become useless, or
⦁ greatly injured, or
⦁ depreciated, or
⦁ to restore it to the owner only by way of sale or exchange, or for reward, or in substitution for some other thing to which he is otherwise entitled, or if it is pledged or pawned.
⦁ Section 122(3)
Thus, temporary use or temporary appropriation is enough to fix one with liability as long as it is accompanied with the intention to deprive the owner of his ownership, interest, benefit, value, proceeds, or part of the thing.
ILLUSTRATION
If A. borrows a horse without the consent of its owner, intending to keep it until it is worn out before returning it, A. is guilty of stealing the horse
By Section 122(4), It is immaterial whether the act by which a thing is taken, obtained, or dealt with amounts to trespass or conversion or otherwise, or it is not otherwise unlawful except for the dishonesty surrounding the appropriation.
⦁ Dishonesty: The appropriation must be dishonest.
By sec 120, dishonest appropriation arises in one of three ways, namely:
⦁ where the appropriation is made with an intent to defraud; or
⦁ where the appropriation is made without a claim of right, and with the knowledge or belief that the appropriation is without the consent of some person who is the owner of the thing; or
⦁ where the appropriation, if known by the actual owner, would be without his consent.
⦁ Appropriation to defraud: The existence or otherwise of an intent to defraud depends on the circumstances of each case. In terms of section 16, an intent to defraud is an intent to cause, by means of the asportation, any gain capable of being measured in money, or the possibility of any such gain, to any person at the expense or the loss of any other person.
⦁ Appropriation without claim of right: An appropriation without a claim of right is dishonest. Sec 15 defines claim of right as “a claim of right made in good faith”. This definition seem to be inadequate.
A person has a claim of right if he is honestly asserting what he believes to be a lawful claim, even though his claim may be unfounded in law or in fact. That is to say, a man who takes possession of property, which he really believes to be his own, does not take it dishonestly, however unfounded his claim may be.
So, as the illustration goes, A., during a lawsuit with B., as to the right to certain goods, uses or sells some of the goods. Here A. is not guilty of stealing, because, although A. believes that B. would object, yet A. acts under a claim of right
A claim of right must be made in good faith. A claim that is made without good faith – in other words – a claim that is tainted with mala fides or ill or bad faith will render the appropriation dishonest. Thus, all the accused needs to show is a demonstrably honest belief in his claim.
OSEI KWADWO II v THE REPUBLIC.
BREMPONG II v THE REPUBLIC,
The appellant, the Omanhene of Atebubu Traditional Council was arrested and charged with the offence of stealing a Mercedes Benz car belonging to the council. He was given the car by the council to use to which it broke down. The car was towed to Kumasi for repairs for which the appellant paid for the costs. The repairer however collected these monies and dismantled the car and sold them and later absconded to Nigeria with the money. The car was left in a state of disrepair and notice was made to the council. The appellant sold the car for ¢5000. He claimed that the council had abandoned the car and he sold it to recoup his money paid to the repairer. He thus relied on the defence of cliam of right. He was convicted of stealing and he appealed. HELD: in a charge of stealing, it must be proved by the prosecution that the accused dishonestly appropriated the stolen item. She further held that dishonest appropriation must be done with intent to defraud and also, a defence of claim of right can validly negative the claim. A person has a claim of right if he is honestly asserting what he believes to be a lawful claim even though his claim may be unfounded in law or in fact. From the case, the court held the appellant to have the defence of claim of right as he only sold the car to recoup hos monies paid to the absconded repairer
R v BERNHARD
The appellant was once a mistress of the complainant. They broke up and the appellant represented to the complainant that she was broke. The complainant agreed to pay her a sum of £20 per month for one year and paid her four months advance. After the expiration of the four months, the appellant deamded the remainder of the money from the complainant, failure of which she will let his wife know about their relationship. She was arrested and charged with demanding mone with threats and intent to steal. She was convicted and has appealed, on grounds of claim of right, in that, she honestly believed that the money was hers and was only demanding it. HELD: The court held that it was not necessary that the appellant should be right in law or in fact in her claim of right. What is necessary is that he honestly believed she had a claim, for which in this case she had
⦁ Where the appropriation, if known by the owner of the thing, would be without his consent: This point is self-explanatory. The Act provides this illustration:
A being the guest of B writes a letter on B’s paper. Here A has not stolen, because, although A does not use the paper under a claim of right, yet A believes that B, as a reasonable person, would not object to A doing so.
However, the prosecution is not required to show that the accused should know the owner of the thing. It suffices if the accused has reason to know or has reason to believe that some other person, whether certain or uncertain, is interested in the thing or is entitled to it, as owner or by operation of law. Section 120(2).
However, a person may not be guilty of stealing if the ownership of the thing is in doubt. Therefore, where the defence alleges consent on the part of one of the disputed owners, then proof of ownership becomes material, since consent to appropriation by the owner negatives stealing.
DRAMANU v THE REPUBLIC
The appellant, a secretary of the Gonja Traditional Council was ordered by the paramount chief of the area, the Yabonwura, to sell two stray cattle, which by custom had been brought to the chief. An amount of ¢200.00 was realized from the sale, and according to the prosecution, the appellant failed to pay the sum into the traditional council’s coffers. The appellant was therefore charged with stealing.
In his defence he stated that after the sale he gave the ¢200.00 to the chief, who, as the owner, gave it back to him for safe keeping. But later, on the instructions of the chief, he used the money in paying a debt owed by the chief’s son. Even though the prosecution alleged that the money belonged to the traditional council, no evidence was adduced in proof of the fact that the council had lost anything. The trial magistrate found the appellant guilty of stealing and convicted him.
HELD: In allowing appeal, it was held that even though under section 120 (2) of Act 29, a person might be guilty of stealing a thing, the ownership of which was in dispute or unknown, or had been found by another person, on its true construction, the section did not mean that a person might be guilty of stealing when the ownership was in doubt.
And although section 125 of Act 29 made it plain that it was not necessary for the prosecution in proving a stealing charge to establish ownership of the stolen property, where the prosecution had specifically stated in the charge sheet that ownership resided in some particular person, failure to establish such ownership could be fatal to the prosecution’s case.
COMMENT: In this case proof of ownership was fundamental, first in the sense that whereas the prosecution alleged that the traditional council was the owner, the accused alleged that the money belonged to the chief, secondly that although the trial magistrate decided that it was not proved that ownership was in the council, he made a restoration order in their favour and thirdly, it formed the basis of the defence of the appellant for if the paramount chief was the owner as alleged, then he could not have been guilty of stealing.
The consent of the owner to the taking of a thing is a complete defense to a charge of stealing, since the owner’s consent to the taking negatives the essential element of dishonest appropriation. All the factors that negatives consent is applicable here.
Consent here may be actual or implied. Implied consent may be deduced from the relationship between the parties – for instance, in law, ordinarily, marriage operates as implied consent to the taking of property belonging to the other spouse. In law, a wife has the implied consent of the husband to take and use his property, just as he has the implied consent of his wife to the use of her property.
The general rule is that if the wife of the owner of the thing consents to its appropriation by the accused, the accused will be exculpated from liability unless the accused had notice that the wife did not have the husband’s authority to consent to the appropriation. Section 126(1). R v CREAMER
The accused will be deemed to have had notice that the wife did not have the husband’s authority, if the accused has had a sexual connection with the owner’s wife, or if the accused is designing to have a sexual connection with her. However, the accused will not be guilty of stealing by reason only of the fact that he appropriated the thing with the consent of the owner’s wife or by reason only of the assistance rendered to him by the owner’s wife to appropriate a clothing of the wife, or money or other item which the owner’s wife is apparently permitted to have at her disposal or for her own use. Section 126(2). R v FLATMAN
Also, by Section 121, a co-owner of a thing can be guilty of stealing the thing, irrespective of the fact that the thing is jointly owned by the accused and another person or persons. R v MAYWHORT
Subject Matter of Stealing
The list of things that can be stolen are inexhaustible
By sec 123, anything may be stolen –
⦁ whether living or dead
⦁ whether fixed to anything or not
⦁ whether the thing be a mineral or water, or gas, or electricity, or of any other nature
⦁ whether the value of the thing does not amount to one pesewa
⦁ whether the value of the thing is intrinsic (i.e. is only valuable by and of itself and not because of its association with any other thing)
⦁ whether the value of the thing is only for the purpose of evidence
⦁ whether the thing is of value only for a particular purpose
⦁ whether the thing is of value only to a particular person
And if the thing is a document, it is of value, whether it is complete or incomplete; and whether it is satisfied, exhausted, or cancelled.
By Section 123(3), on a charge of stealing, there is no requirement to establish the value of the thing. Therefore, even if the thing has no intrinsic value, the accused would still be guilty. SAM v THE STATE
It should be noted that dominion or possession is critical to the offence of stealing – that is to say, property which is not subject to the dominion of any person such as animals in the wild or fish in a river, lake or sea cannot be the subject-matter of stealing, unless brought to effective possession or dominion of another or regulated by game reserve laws.
Therefore, by sec 127, a person is NOT guilty of stealing if he appropriates a thing which appears to have been lost by another person, except:
⦁ if at the time of appropriating the thing, he knows the owner of the thing or the person by whom it has been lost, or
⦁ if the character or situation of the thing, or the marks on it, or any other circumstances is or such as to indicate the owner of the thing or the person by whom it has been lost – so, for instance A. finds a ring in the highway. If the ring has an owner’s or makers’ name or motto engraved upon it or it is of grave value, A. will be guilty of stealing it if he appropriates it without making reasonable enquiry, or
⦁ if the character or situation of the thing, or the marks upon it, or any other circumstances is or are such that the person who has lost the thing appears likely to be able to recover it by reasonable search and enquiry, if it were not removed or concealed by any other person
KRAMO WALA v THE STATE
The accused was found in the possession of an accordion, the missing property of another, whose room was allegedly broken into during the night and some of his property stolen therefrom. When the accused was challenged, he said that he had picked up the accordion from the ground on his way to the lavatory. He was accordingly taken to the police station and there charged with stealing the accordion.
HELD: In allowing his appeal against conviction, it was held that if a man found goods that had actually been lost or were reasonably suspected by him to have been lost, and appropriated them really believing when he took them that the owner could not be found, that was not stealing; but if he took them with a felonious intent and reasonably believed that the owner could be found, he committed the offence of stealing.
COMMENT: In the instant case, there was no evidence on the record to show that the appellant at the time he picked up the accordion knew or believed he could ascertain who the owner was. It was not sufficient that if he had taken pains the owner might be found because he was not bound to do that.
ALI v THE REPUBLIC
Sometime in July 1988, the first appellant, a blind man, sent some school boys he heard passing by his house to buy him food. One of the boys gave him something wrapped in paper and told him that he had dropped it. Later, he gave the paper to the second appellant who had come to visit him to ascertain what was in it. When he learnt that the paper contained earrings, the first appellant authorised the second appellant to take them to a goldsmith to ascertain their value. Accompanied by the third appellant, a cripple, they were informed that the earrings were made of gold and would sell at ¢1,200. The third appellant bought the earrings when the first appellant offered them for sale. However, when the third appellant sent the earrings to the complainant, another goldsmith who lived in the same house as the first appellant, for another assessment of the value of the earrings, the complainant claimed the earrings were part of a number of missing trinkets valued at ¢55,000. He therefore took the third appellant to the police station and the two others were arrested. At the trial the first appellant was charged with stealing, the second appellant with abetment, and the third appellant with dishonestly receiving. The appellants were convicted and sentenced to six months’ imprisonment with hard labour. They appealed.
HELD: It was held that since there was no evidence that the first appellant, a blind man, who had to rely on the second appellant to ascertain the nature and value of the earrings— which had no identifying marks—knew who their owner was, and besides, he had waited for two weeks when no one reported their loss before selling them, a charge of stealing could not be sustained against him.
ROBBERY
According to Section 149, a person who commits robbery commits a first degree felony. Robbery is stealing with the use of force, or causing of harm, or threat of criminal assault or harm – R v DAWSON.
By section 150, a person who steals a thing is guilty of robbery if, in and for the purpose of stealing the thing
⦁ he uses any force or causes any harm to any person, or
⦁ if he uses any threat of criminal assault or harm to any person,
all with the intent to prevent or overcome the resistance of the other person to the stealing of the thing
Thus, on a charge of robbery, the prosecution must prove all the elements of stealing and also show:
⦁ that the accused used force or caused harm to some person in the process of stealing, or
⦁ that he threatened some person with assault or harm in the process of stealing, and
⦁ that the accused did so with the intent of preventing or overcoming the resistance of the person to the stealing of the thing
It should be noted that the force or threat need not be directed solely at the person being robbed – so it suffices if the force or threat is directed at some other person if the intention is to prevent or overcome the resistance of the first person to the stealing of the thing.
BEHOME v THE REPUBLIC
The appellant had suspected for some time that his wife had been having an affair with N. On the day in question, the appellant left home on the pretext that was travelling. That same night he led five other persons to the village to watch the conduct of his wife and after laying in waiting for some time they saw the wife enter N.’s room. The appellant thereupon led the other members of the watch into N.’s room, caught the couple, tied them up, stripped them naked, assaulted them and burnt their clothing. A brother of N. who later on came to the scene was also tied up and assaulted. The victims were thereafter frog-marched to the appellant’s cottage and tied to a tree. When another brother of N. came to the scene, the appellant demanded that he should pacify him with ¢40.00 as ayefare otherwise he would kill N. The brother therefore went home and brought the money to the appellant. The appellant then demanded and received another ten cedis towards his taxi expenses. After receiving these sums the appellant refused to hand over N. on the ground that he (N.) might commit suicide on account of the punishment he had meted out to him. The appellant therefore marched his wife and N., naked and with their hands tied, for a distance of six miles to the odikro’s house.
HELD: On a charge of robbery, it was held that under section 150 of Act 29 a person would only be guilty of robbery if in stealing a thing he used any force or caused any harm or used any threat of criminal assault to another with intent thereby to prevent or overcome the resistance of that other to the stealing of the thing. The fear might be either of personal violence to the person robbed or to a member of his family in the restrictive sense of a man, his wife and children. And the thing stolen must be from the person of the one threatened or in his presence, if the property was under his immediate and personal care and protection. In the instant case since the duress was against N. but it was N.’s brother who paid the amount and furthermore there was an interval between the putting in fear and the taking of the money whereby it could not be said that there was an intent to overcome resistance to the stealing by those threats, a charge of robbery could not be sustained against the appellant.
The mental requirement is crucial – merely using force or causing harm or resorting to threats is not robbery. The mental element here involves two aspects:
⦁ first, it must be shown that the accused intended to steal something (animus furandi) i.e. dishonestly appropriate a thing not belonging to him and without a claim of right, and
⦁ second, that he used force or caused harm or threatened to cause harm or assault with intent to prevent or overcome the resistance of any person to the stealing of the thing
It is not necessary that physical harm must be caused. It is enough if a person is threatened with criminal assault or harm with intent to put him in fear of such criminal assault or harm.
EXTORTION
According to Section 151(1), a person who extorts property from any other person by means of threat commits a second degree felony. In this regard, Section 151(2), “threat” does not include a threat of criminal assault or harm to the person threatened. When used in the context of extortion, “threat” may be in the nature of blackmail, libel or slander as seen in Section 17. So, as the illustration goes, if A. obtains money from B. by threat of violence to B., he is guilty of robbery and not of extortion.
The essence of the offence of extortion is not merely demanding or obtaining property but doing so with threats.
If you make a demand for money from another person accompanied by threats not amounting to violence, you may be liable for extortion unless you can show that you had a reasonable and probable cause for making the demand – that is – the demand was justifiable. CSP v N’JIE & GAYE
Related to the offence of extortion is the offence of extortion by a public officer or juror – which is created by section 239 and explained in section 247
A public officer is guilty of extortion if, under the colour of his office, he demands or obtains from any person, any money or valuable consideration, which he knows that he is not lawfully authorized to demand or obtain, or at a time at which he knows that he is not lawfully authorized to demand or obtain.
APPIAH v THE REPUBLIC
The appellant was the special prosecutor of the public tribunal set up under the Armed Forces Revolutionary Council (Special Tribunal) Decree, 1979 (AFRCD 93). He was arraigned before the Circuit Court, Accra on a charge of extortion for demanding and obtaining from two persons, the complainants, who were fugitives from justice and whose cases were before the tribunal, the sums of £1000 and £10,000 respectively, which was paid to his account in London. He was found guilty of the charge and he appealed. HELD: The court held that the offence of extortion in the alternative of demand or obtain. The demand might either be directly or indirectly made. If indirect, proof of the demand might be impossible without other enabling statutes. Obtaining lent itself to readier proof as well as readier defences. It is the suspicious end results that flowed from representation that must be explained. As such, provided there was representation, demand or obtaining, the offence of extortion was committed even when the payment secured no returns. From the case, the conduct of the appellant showed a representation under the colour of his office and there was evidence of obtaining as such.
The difference between extortion simpliciter and extortion by a public officer is that while the essence of the demand in the former is the use of threats, the essence of the demand in the latter is “under the color of office”. YEBOAH v THE REPUBLIC
FRAUDULENT BREACH OF TRUST
By Section 128, a person who commits a fraudulent breach of trust commits a second degree felony. The purpose of the creation of the offence is to discourage trustees from dishonestly exploiting their position of trust as regards the trust property and the beneficiaries of the trust property. Thus, by Section 129, a person is guilty of fraudulent breach of trust if he dishonestly appropriates a thing the ownership of which is vested in him as trustee for or on behalf of another person.
The prosecution must prove three essential ingredients to succeed on a charge of fraudulent breach of trust, namely:
⦁ that the ownership of the thing is vested in him as trustee for or on behalf of some other person;
⦁ that the trustee appropriated the thing while it was so vested in him; and
⦁ that the appropriation was dishonest.
According to Section 122(1), An appropriation of a thing by a trustee means a dealing with the thing by the trustee, with the intent of depriving a beneficiary of the benefit of the right or interest in the thing, or in its value or proceeds, or a part of that thing.
However, by Section 130, a gratuitous trustee cannot be guilty of the offence of fraudulent breach of trust unless an instrument of trust in writing has been executed by the trustee specifying the nature of the trust and the beneficiary. A gratuitous trustee is one, who being the owner of a thing in his own right and for his own benefit, undertakes to hold or apply the thing as trustee for another person.
FRAUD BY FALSE PRETENCES
According to section 131, A person who defrauds any other person by a false pretence commits a second degree felony. By section 131(2), a person who by means of a false pretence or by personation obtains or attempts to obtain the consent of a person to part with or transfer the ownership of a thing by a false representation of acting in accordance with the instructions, orders or a request of the President or a member of Cabinet also commits a second degree felony and is liable to term of imprisonment of not less than 10 yrs and not more than 25 yrs.
Fraud by false pretences involves obtaining the consent of a person to part with or transfer the ownership of a thing by means of a –
⦁ false pretence, or
⦁ personation
⦁ sec 132
To succeed on a charge of defrauding by false pretences, the prosecution must prove the following essential conditions:
⦁ that the accused made a false pretence or engaged in impersonation, and that
⦁ that by means of the false pretence or personation, the accused obtained the consent of a person to part with or transfer the ownership of a thing
Clearly then, it must be proved that the person who parted with or transferred the ownership of the thing in question would not have done so but for the false pretence or impersonation
The element of inducement is very important – that is to say, the victim must have been persuaded to accept the false pretence of or impersonation by the accused as true and to have acted upon it to his detriment. So, if it is shown that the complainant was not induced by the false pretence of, or impersonation by the accused, then it cannot be said that the complainant was defrauded. Also, if it is shown that the complainant had knowledge of the falsity of the representation by the accused, but still acted upon it to his detriment, it cannot be said that the complainant has been defrauded. RABBLES v THE STATE.
On another score, by Section 133(2)(c), it does not matter that had the complainant used ordinary care and judgment the false pretence would not have induced him – the accused is liable as long as the false pretence influenced the decision of the complainant.
What then is the position of the law where consent is obtained by a false representation as to the quality or value of a thing?
Here, by Section 133(2)(c), the consent will be deemed to have been obtained by a false representation only where the thing is substantially worthless in comparison to what it was represented to be, or the thing is substantially different from what it was represented to be.
There are separate definitions of false pretence and personation. Despite the separate definition, personation is a species of false pretence, while false pretence is the genus. False pretence, according to Section 133(1), is a representation of the existence of a state of facts made by a person, made with the knowledge that the representation is false or without the belief that it is true, and made with an intent to defraud. By Section 133(2)(a), The representation may be made in writing or orally, or by personation, or by any other conduct, or sign, or means. Also, by Section 133(b) representation of the existence of a state of facts includes a representation as to the non-existence of a thing or condition of things.
A representation as to existence of a state of facts renders the accused liable but a representation as to the occurrence of a future event does not render the accused culpable. Therefore, a mere representation or promise that anything will happen or will be done, or is likely to happen or is likely to be done, will not do. SECTION 133(2)(b). REPUBLIC v KUMA.
From the illustrations, the following acts by A. do not amount to defrauding by false pretences, although they are false:
⦁ that a picture he is selling is a valuable work of art
⦁ that he expects to receive a legacy when a relative dies
However, a false representation as to future conduct or the promise of an event in the future coupled with a false representation as to the existence of a state of facts could found liability. CSP v CEESAY.
For the accused to be culpable, the accused had an intention to defraud. Section 16 defines intent to defraud as an intent to cause any gain capable of being measured in money, or the possibility of any such gain, to any person at the expense or to the loss of any other person by the means of a false pretence.
Personation involves either
⦁ a false representation or false pretence by a person that he is a different person – it does not matter whether the person he purports to be is dead or alive or is a fictitious person; or
⦁ giving or using one’s name with the intention that one may be believed to be a different person of the same or similar name – sec 134 – the wording of sec 134(2) suggests that personation may amount to a crime standing on its own.
FICTITIOUS TRADING
This is governed by Section 135. This is where a person orders or makes a bargain for the purchase of goods by way of sale or exchange and after obtaining the goods he defaults in paying the purchase money or defaults in supplying the goods.
Here, such a person is guilty of defrauding by false pretences in one of two situations:
⦁ if at the time of placing the order or making the bargain, he intended to default in paying for or supplying the goods, that is to say, he had no intention whatsoever of paying for or supplying the goods; or
⦁ if the order was placed, or the bargain was made with intent to defraud and not in the course of any trade carried on in good faith. DARKRUGU v THE REPUBLIC.
Distinction between Stealing and False Pretences
The distinction lies in the existence or otherwise of the consent of the owner or a person with authority to part with the ownership of the subject-matter of the charge.
So where the owner of a thing or person having authority to part with ownership of the thing, gives his consent to the appropriation of the thing by the accused, the accused is not guilty of stealing the thing, even if the consent was obtained by deceit – in such a case, the accused may be guilty of defrauding by false pretences. Sec 136(1)
So as the illustration goes, A. intending fraudulently to appropriate a horse belonging to B., obtains it from B., under the pretence that he wants it for a day. Here, A. is guilty of stealing.
On the other hand, A., intending to defraud B. of a horse without paying him induces B. to sell and deliver it to him without present payment, by a false pretence that he has money in his account. Here, A. is guilty of obtaining by false pretences, but is not guilty of stealing
If the accused alleges that he obtained the thing with the consent of the owner or someone authorized to give consent, he must establish that the consent was unconditional for the immediate and final appropriation of the thing. Sec 136(2). In line with the policy under Act 29 to stem the tide of fraud, charlatanic advertisements have been criminalized under sec 137
Thus, the advertisement or the issue of a notice relating to fortunetelling, palmistry, astrology, or the use of any subtle craft, means or device, by which it is sought to deceive or impose on a person, or which is calculated or is likely to deceive or impose on a person, is illegal. Sec 137(1). In such a case, the editor, publisher, proprietor, or printer of a news media in which the advert or notice is published is liable to be fined an amount not exceeding 25 penalty units.
DISHONEST RECEIVING
This is where a person takes possession or control of goods obtained by a crime – the typical case is where a thief sells stolen goods to another person.
By section 146 of Act 29, it is an offence for a person to receive property, which that person knows to have been obtained or appropriated by stealing, fraudulent breach of trust, defrauding by false pretences, robbery, extortion or unlawful entry.
A person who dishonestly receives property obtained or appropriated by any of these offences is liable to the same punishment as if that person had committed that offence. For, instance, if A. obtains goods from B. by false pretences and C., knowing that A. obtained the goods by this means, dishonestly receives the same, he will be guilty of dishonestly receiving the goods and liable to be punished for defrauding by false pretences.
On another score, by section 148(1) of Act 29, where a person is under a charge of dishonestly receiving property, is shown to have had in his possession or under his control, anything which is reasonably suspected of having been stolen or unlawfully obtained, and that person does not give an account, to the satisfaction of Court, as to the possession or control, the Court may presume that the thing has been stolen or unlawfully obtained, and that person may be convicted of dishonestly receiving in the absence of evidence to the contrary. R v SANTUOH.
This is an aspect of what is known in the common law as the concept of recent possession – this concept posits that if a person is found to be in possession of any property which has been recently stolen and he is unable to give satisfactory explanation as to how he came by the property, he will be presumed to have dishonestly received it, unless he gives a reasonable explanation as to how he came by it.
By Section 148(2), it should be noted that the possession or control of a carrier, an agent, or a servant is deemed to be the possession or control of the person who employed the carrier, agent or servant. This is what is known as constructive possession. This is what is known as constructive possession.
To succeed on a charge of dishonest receiving, the prosecution must satisfy the following requirements:
⦁ that the accused received property which he knew to have been obtained or appropriated by stealing, or fraudulent breach of trust, or defrauding by false pretences, or robbery, or extortion or unlawful entry.
⦁ that the receipt by the accused of the property was dishonest.
The actus reus consists of receiving, buying, or assisting in the disposal of the property otherwise than with a purpose of restoring it to the owner as seen in SECTION 147(1). Further, it must be established that the accused either physically received the goods or that the goods were in the possession of a person over whom he had control.
Another aspect of the actus reus is the knowledge on the part of the accused that the property was obtained or appropriated by a crime – merely proving that the accused received property obtained or appropriated by a crime is not sufficient to establish the actus reus. SALIFU v THE REPUBLIC. On this point, knowledge may be inferred from the circumstances of the case – for instance, where the accused secrets the property in very unlikely places. R v BOATENG.
Knowledge may also be inferred, for instance, where goods are offered for sale at “any price” or where the goods are offered for sale at a ridiculously low price – in situations such as these, knowledge may be imputed to the accused since the circumstances are such as to put him on reasonable enquiry – that is the accused ought to have known that the property was probably obtained or appropriated by a crime.
The mens rea of the offence consists of a dishonest intent – therefore, it is not enough merely to show that the accused received or bought or assisted with the disposal of property with the knowledge that it was obtained or appropriated by a crime.
However, by Section 147(1), where the intention of the accused is otherwise than to restore the property to the owner, liability may arise. Also, by Section 147(2), it does not matter that the offence by which the property was obtained or appropriated, was not committed within the jurisdiction of the Court.
FORGERY
The things in respect of which forgery may be committed include: judicial or official documents, any document, hallmarks on gold or silver plate or bullion, trade-marks, stamps of any description and currency notes.
Ghanaian law draws a distinction between official/judicial documents and unofficial and non-judicial documents. By Section 158, it is a second degree felony to forge a judicial or an official document with intent to deceive another person. An official document is one purporting to be made, used or issued by a public officer for a purpose relating to that public office – Section 163(3)
According to Section 159 It is a misdemeanor to forge a non-judicial or unofficial document with intent to defraud or injure another person; or with the intent to evade the requirements of the law; or with the intent to commit, or to facilitate the commission of, a criminal offence.
To succeed on a charge of forgery under either sec 158 or sec 159, the prosecution must prove that the thing alleged to have been forged is a document. A document is defined under Section 179(1) of the Evidence Act, 1975 (NRCD 323)
Also, under Section 160, It is a misdemeanor to forge or counterfeit a hall-mark or mark appointed, under the authority of a law, by a public corporation or public officer to denote the weight, fineness, age, or place of manufacture of gold or silver-plate or bullion with the intention to defraud.
The mens rea requirement of an intent to deceive under section 158 is different from the mens rea requirement of an intent to defraud or injure under sections 159 and 160. Intent to defraud (deceive) is explained under Section 16. Intent to injure on the other hand means that some person may act to his detriment or loss.
With respect to “intent to deceive”, the law does not require the person deceived to have been deprived of anything. Thus, where the accused sets out with an intent to deceive, but not to defraud or injure, he may not be culpable under sec 159.
YIRENKYI v THE REPUBLIC.
The appellant was an employee of the G.N.T.C. attached to the provisions wholesale. His mother-in-law was a baker who had tried on many occasions without success to obtain flour from the G.N.T.C. As a result, her business was failing. The appellant found a chit for the supply of ten bags of flour to the Ghana Police Force which had not been cancelled or countersigned by the district manager. Thinking it was still valid and had not been utilised, he cut off the heading “Ghana Police Force” and substituted his wife’s name. The chit was then given to his mother-in-law who paid for and collected ten bags of flour. The appellant was charged with forgery with intent to defraud. He was convicted on his own plea and he appealed, contending that he only intended to deceive and not to defraud. HELD: The court held that there was a difference between an intent to defraud and an intent to deceive. To deceive is to induce a man to believe that a thing is true which is false and to defraud is to deprive by deceit. There are two essential elements to the commission of the crime of forgery under Section 159. off the heading “Ghana Police Force” and substituted his wife’s name. The chit was then given to his mother-in-law who paid for and collected ten bags of flour. The appellant was charged with forgery with intent to defraud. From the case, the act of the appellant did not induce the storekeeper to do what was not his duty and as such, had no intent to defraud
By section 161, it is a misdemeanor to forge or counterfeit a trademark in relation to goods or the sale of goods or sell or offer for sale any goods or thing so marked or have in one’s possession, custody or control the goods or a thing so marked, or the materials contrived or means prepared or contrived for the forging or counterfeiting a trademark, or for the marking of goods or a thing with the intention of fraudulently passing off, or to enable another person to fraudulently pass off, the goods as having been lawfully marked with the trade-mark or as being a character signified by the trademark. Look at Section 163(1) for the definition of trademark.
Counterfeiting is an offence on its own – thus, by section 168(2) the offence of counterfeiting consists of making anything, which is intended to serve as a specimen, or pattern or trial of a process for counterfeiting a stamp or mark. Counterfeiting is defined by section 168(1) as the making of an imitation of a stamp or mark, or anything which is intended to pass or which may pass as that stamp or mark or thing.
By section 165, it is a misdemeanor to possess a means of forging – that is having in one’s possession, without lawful excuse, an instrument or a thing specifically contrived or adapted for the purposes of forgery. OLUJOMOYE v THE REPUBLIC. By section 166, it is an offence to possess a forged, counterfeited or falsified document or stamp with the requisite mens rea. The accused must know that the document is forged, or that it is counterfeited, or that it is false or not genuine.
OKPARA v C.O.P
The appellant was convicted on four counts of possessing forged documents and aiding and abetting another to commit forgery. He was convicted and he has appealed. HELD: It is essential that for a charge under section 166 of the Criminal Code, 1960, to succeed it must be alleged in the particulars thereof, and it must be proved by evidence, that the person charged knew that the document in his possession is forged or that it is otherwise not genuine. Failure to prove that essential ingredient of the charge is fatal to the prosecution. No evidence from the prosecution substantiated the claim.
The mere possession of a forged document is not an offence – the intent with which it is posed is a crucial factor. BAWA @ ISSAHAQUE v THE REPUBLIC. Section 167 provides what constitutes possession for this purpose.
By sec 169, it is an offence to utter or deal with or use a document or stamp with the knowledge that it is not genuine or that it is forged, counterfeited or falsified and with the requisite mens rea.
Further, by section 164(1), a person forges a document if he actually makes or alters the document, with intent to cause it be believed:
⦁ that the document has been made or altered by a person who did not in fact make it or alter it – it is immaterial if the person is dead or alive or is a fictitious person; or
⦁ that the document has been made or altered with the authority or consent of a person who did not in fact give the authority or consent – it is immaterial if the person is dead or alive or a fictitious person; or
⦁ that the document has been so made or altered at a different time from that at which it was in fact made or altered.
Also, by Section 164(2), it is forgery to issue or use a document, which is exhausted or cancelled, with the intent that it may pass or have the effect as if it were not exhausted or cancelled. It is also forgery if a person makes or alters a document in his own name if he does so with the requisite mens rea of the offence of forgery. Section 164(3)
However, by Section 164(4), it is not forgery if a person makes or alters a document in a name which is not his real or ordinary name unless he does so with the requisite men rea of the offence of forgery.
UNLAWFUL ENTRY
Section 152 provides that, a person who unlawfully enters a building with the intention of committing a criminal offence in the building commits a second degree felony. To constitute entry, it must be shown that either the whole or some part of the body of the accused or an involuntary agent employed by the accused entered the building. Therefore, to avoid a charge of unlawful entry, no part of the body or any part of an employed involuntary agent should enter the building. Thus, where in breaking a window with the intent of stealing property in a house, the accused’s finger went within the building, it was held to be sufficient entry – R v DAVIS
From Section 13(1), a person who intentionally causes an involuntary agent to cause an event is deemed to have caused the event and this may include an animal or anything. Thus, a person who pushes into a building, a stick or iron or any instrument adapted to be able to take from an object from a building without actually physically entering the building, will still be guilty of unlawful entry.
According to Section 153, entry is unlawful if a person enters a building where he has no lawful right to do so or where a person enters a building without the consent of a person who is able to give consent for the purpose for which the person enters. It may be a defense if the accused entered the building under a mistake or ignorance of fact in good faith.
Unlawful entry is not a strict liability offence – prove of the mens rea is essential. It must be established that the accused so entered the building with the intention of committing a crime.
KANJARGA v THE STATE
On a master’s return from work one day, he discovered that his steward boy had disappeared and that some of the louvres of a bedroom window had been broken leaving an opening in the window. Money that he had kept in a locked drawer was no longer there. The steward boy was later traced by the police to his hometown in the Upper Region. He was arrested and charged with stealing and unlawful entry. HELD: The court held that, To establish the crime of unlawful entry, the prosecution must, in addition to proving entry, prove that an intent to commit a crime in the premises existed at the time of entry and was the purpose for the making of the entry.
According to Section 154, where the accused, without actually entering a building, is found, without lawful excuse, in possession of a tool or an implement adapted or intended for use in unlawfully entering a building, he will be held to have committed a misdemeanor.
BEING ON PREMISES FOR UNLAWFUL PURPOSE
According to Section 155, a person who is found in or about a market, wharf, jetty, or landing place, or in or about a vessel, verandah, outhouse, building, premises, passage, gateway, yard, garden or an enclosed piece of land, for an unlawful purpose, commits a misdemeanor.
The actus reus of the offence is being found in or about a market, wharf, jetty, landing place, vessel, verandah, outhouse, building, premises, gateway, yard, garden, or an enclosed piece of land. The mens rea is presence in or about such premises for an unlawful purpose. AMOAH v THE STATE
The phrase “in or about” appears to suggest that the accused need not have actually entered the premises or building. Therefore, it seems that it is sufficient if the accused is found or seen loitering or wandering about the premises for an unlawful purpose. ADLER v GEORGE
TRESPASS
This offence is in relation to land. Trespass to land under Act 29 are of two types – the first type is entering upon land unlawfully and the second type is entering upon land lawfully but subsequently engaging in conduct which renders the continued stay of the person on the land unlawful – sec 157
The first type of trespass include:
⦁ unlawfully entering a piece of land in an insulting, annoying or threatening manner
⦁ unlawfully entering a piece of land after having been forbidden to do so
⦁ unlawfully entering and remaining on a piece of land after having been required to depart from that land
The second type of trespass include:
⦁ lawfully entering on a land but subsequently acting in an insulting, annoying or threatening manner.
⦁ lawfully entering a piece of land and remaining on same after having been lawfully required to depart from the land.
In all these cases, it must be shown that the accused is not the owner or occupier of the land – therefore, the offence may not lie if the accused is a lawful tenant or lessee or attorney or agent of an owner or occupier. Section 156 defines owner or occupier.