COMMISSIONER OF POLICE v. MUTARI

JUDGMENT OF AKIWUMI J.S.C.

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.

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.

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.

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:

(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;"

(b) that the omission of the words "with intent to defraud" in the learned judge's finding was fatal;

(c) that there was no evidence on record to justify the findings;

(d) that there was some doubt in the evidence before the court, the benefit of which should have been given to the appellant.

As to (a) the learned judge acted within his rights by virtue of section 154, Cap. 10 which reads as follows: —

“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.

As to (b), in view of the fact that the evidence