AGYEMAN AND ANOTHER v. THE STATE

JUDGMENT OF MILLS-ODOI J.S.C.

Mills Odoi J.S.C. delivered the judgment of the court. The appellants were convicted by Apaloo J. (as he then was), sitting with assessors at the Criminal Session of the High Court at Kumasi on 12 December 1963, for the offences of conspiracy to steal and stealing various provisions, particulars of which were given in counts two and three of the indictment.

The events leading to the charges occurred at about 2.20 p.m. on 13 March 1963 when a Mr. Gimmi, Manager of Néstles Products (Ghana) Ltd., received through the post, a forged delivery order No. K.0606 dated 28 February 1963, purporting to have been signed by him. It authorised the delivery of large quantities of provisions (valued at £G2,537) to Messrs. Ebony and Company of Tamale, which was later discovered to be a non-existent company. The case put forward by the prosecution which resulted in the convictions of the appellants is as follows: The first appellant was, until the date of his arrest, the wholesale keeper of a company (hereinafter referred to as "Umarco") which acts as agents for Néstles Products (Ghana) Ltd. (hereinafter shortly referred to as Néstles) for the purpose of distributing the latter's goods, including such goods as Milkmaid condensed milk, Milo and Néscafe. Although employed by Umarco, the first appellant in fact worked for Néstles whose headquarters are in Accra, and his duty was to deliver to customers such of the company's goods as were authorised by a delivery order or an invoice signed either by the general manager or his assistant. At the sight of the delivery order or invoice he was to deliver to the customer named in it the goods therein described. He had no authority to sell for cash any of the goods in the wholesale. The second appellant was a copy typist employed by Néstles. He was, up to the date of his arrest, attached to the invoice section at the headquarters in Accra and knew the system of preparing invoices or delivery orders.

On 13 March 1963, when Mr. Gimmi received the forged delivery order, as stated above, he started to look for the duplicate copy which, in the normal course of business, would have been kept in the accounts office of the company. He then discovered that the whole invoice book serially numbered K.0601 K.0650 had disappeared. He therefore telephoned a Mrs. Kannegieter, the Kumasi manageress of Umarco, and asked her to instruct the first appellant not to deliver any more goods on delivery orders K.0601-K.0650.