Critical Analysis of Defrauding by False Pretence and Its Distinction from Stealing in Ghanaian Law

Introduction

In the Ghanaian legal system, property offences are designed to protect rights of ownership and possession. Among the most significant of these are the offences of stealing and defrauding by false pretence. While both involve the dishonest acquisition of property, they are distinct crimes with different elements and legal consequences. The Criminal Offences Act, 1960 (Act 29) provides the statutory framework for these offences, but their precise boundaries have been shaped by judicial interpretation. This essay will critically examine the offence of defrauding by false pretence under section 131 of Act 29. It will then differentiate this offence from stealing as defined in section 124 of the same Act.

The central argument of this essay is that the distinction between defrauding by false pretence and stealing, which hinges on whether ownership or merely possession is obtained by the offender, is a fine but fundamental concept in Ghanaian criminal law. This distinction is not merely an academic exercise; it carries significant practical weight for legal practitioners, influencing the choice of charge, the evidence required for conviction, and the ultimate determination of rights to the property in question. While the distinction can sometimes present a challenge for prosecutors, its existence is crucial for maintaining doctrinal clarity and ensuring that the nature of the criminal wrong is accurately reflected in the legal process.

The Offence of Defrauding by False Pretence

The offence of defrauding by false pretence is codified in section 131 of the Criminal Offences Act, 1960, which states: ‘A person who, by a false pretence, and with intent to defraud, obtains the consent of another person to part with the ownership of a thing is guilty of defrauding by false pretences and is liable to the same punishment as for stealing’.[^1] To secure a conviction, the prosecution must prove several distinct elements beyond a reasonable doubt.

#### The Actus Reus

The actus reus consists of three components: (1) a false pretence is made; (2) the defendant obtains the ownership of a thing; and (3) the obtaining is caused by the false pretence.

A ‘false pretence’ is defined in section 132 as a representation of the existence of a state of facts made with knowledge that it is false or without a belief in its truth.[^2] The representation must be of an existing fact, not merely a promise about a future action. For example, a promise to pay for goods in the future is not, by itself, a false pretence.[^3] However, section 133(1) clarifies that a false pretence can relate to a future event if it is coupled with a representation of an existing fact. A statement of intention about future conduct can amount to a false pretence if the person did not in fact hold that intention at the time the statement was made. The court in Dogo Dagarti v The State explained that a person’s state of mind is a matter of fact, and to misrepresent it is to misrepresent a fact.[^4]

The representation can be made by words or conduct. In R v Barnard, an individual who entered a shop wearing an academic cap and gown of the University of Oxford was held to have made a false representation that he was a member of the university.[^5] The pretence must be demonstrably false. A statement that is technically true but intended to mislead may not be sufficient. Furthermore, the pretence must be the operative cause for the victim parting with ownership of the property. In Adu-Boahene v The Republic, the Court of Appeal held that it must be shown that the false pretence was the very thing that induced the victim to consent to parting with ownership.[^6] If the victim was not influenced by the pretence, or knew it to be false, then the offence is not complete, although the accused may be guilty of an attempt.

Finally, the thing obtained must be something capable of being stolen, and the accused must obtain ownership or title to it, not just temporary possession. This is the crucial element that distinguishes the offence from stealing.

#### The Mens Rea

The mens rea for defrauding by false pretence has two parts: (1) the accused must know that the pretence is false or be reckless as to its truth, and (2) the accused must have an ‘intent to defraud’.

The first element is embedded in the statutory definition of a false pretence. The accused must be aware of the falsehood of their representation. An honest belief in the truth of the statement, even if unreasonable, would negate the necessary mens rea.

The second element, ‘intent to defraud’, has been interpreted by the courts to mean an intention to cause economic loss to the victim or to induce the victim to act to their detriment by deceit.[^7] In Cosmos v The Republic, it was held that an intent to defraud is an intention to practice a fraud on another.[^8] It is not necessary for the prosecution to prove that the accused intended to gain a personal benefit, only that they intended for the victim to be deprived of their property through the deception.

The Distinction Between Defrauding by False Pretence and Stealing

The offence of stealing is defined under section 124 of Act 29 as the dishonest appropriation of a thing of which the accused is not the owner. The key concepts are ‘appropriation’ and ‘dishonesty’. Appropriation is defined as any moving, taking, or dealing with a thing with an intent to deprive the owner of it permanently.[^9]

The critical difference between stealing and defrauding by false pretence lies in the state of the victim’s mind and the nature of what is transferred. In stealing, including stealing by a trick, the victim is induced by deception to part with possession of the property, but they do not consent to the transfer of ownership. The appropriation by the accused is therefore without the owner's true consent to the loss of their title. For example, if A deceives B into lending them a car for a day, but A’s intention from the outset is to sell it, A steals the car. B consented to A taking possession, but never consented to A becoming the owner.

In contrast, for defrauding by false pretence, the victim is deceived into consenting to part with ownership of the property. The consent is vitiated by fraud, but the victim nevertheless intends for title to pass to the accused. As the Supreme Court of Ghana clarified in the landmark case of Frimpong alias Iboman v The Republic, the distinction is fundamental:

> ‘The distinction between the offence of stealing, on the one hand, and the offence of obtaining by false pretences, on the other hand, is that in the former case, the owner of the goods has no intention of parting with his property therein to the person who obtains the goods, whilst in the latter case the owner does intend to part with the property in the goods but his consent is obtained by fraud.’[^10]

Therefore, if A convinces B, a collector, that a worthless replica is a valuable antique and B agrees to buy it, B intends to transfer ownership of the money to A. A has obtained the money by false pretences. If, however, A had asked to borrow the money on the pretence of showing it to a friend but intended to run off with it, that would be stealing.

The Significance of the Distinction in Legal Practice

The subtle distinction between obtaining possession and obtaining ownership has significant and practical consequences in the administration of criminal justice in Ghana.

First, and most importantly, it dictates the charge that must be brought by the prosecution. The two offences are mutually exclusive. An accused person cannot be guilty of both stealing and defrauding by false pretence on the same set of facts concerning the same property. If the prosecution brings the wrong charge, it will fail. In Frimpong, the Supreme Court quashed a conviction for defrauding by false pretence because the evidence established that the victim had only parted with possession, not ownership, meaning the correct charge should have been stealing.[^11] This puts a heavy burden on prosecutors to carefully analyse the evidence, particularly the victim’s intention, before framing a charge. A mistake can lead to the acquittal of a defendant who is clearly criminally culpable, undermining public confidence in the justice system.

Secondly, the distinction affects the evidence that must be adduced at trial. To prove defrauding by false pretence, the prosecution must specifically identify the false representation of fact and prove that it was this representation that induced the victim to hand over ownership. Proving stealing by a trick might focus more broadly on the deceptive scheme and the subsequent dishonest appropriation, without needing to isolate a single, specific factual misrepresentation.

Thirdly, the distinction has profound implications for civil law, especially in relation to the rights of innocent third parties. Where goods are obtained by stealing, no title passes from the original owner to the thief. Based on the principle of nemo dat quod non habet (no one gives what they do not have), the thief cannot pass good title to a subsequent purchaser, even if that purchaser is acting in good faith. The original owner can trace and recover the property. However, where goods are obtained by false pretences, the fraudster obtains a voidable title. This means that while the original owner can rescind the contract and recover the property from the fraudster, if the fraudster sells the goods to an innocent third party who buys them for value without notice of the fraud before the original owner rescinds, that third party acquires good title. The original owner’s only recourse is then against the fraudster. This difference in outcome for innocent third parties underscores the practical importance of correctly categorising the offence.

Conclusion

In conclusion, the offence of defrauding by false pretence under Ghanaian law is a carefully defined crime centred on the fraudulent obtaining of ownership through a factual misrepresentation. Its distinction from stealing, which rests on the victim’s intent to part with ownership rather than mere possession, is a cornerstone of Ghanaian property offences. While this distinction may appear technical, it is far from trivial. It is a critical determinant of legal practice, shaping prosecutorial strategy, dictating the focus of evidence, and having significant ramifications for the property rights of victims and third parties.

The case law, particularly the Supreme Court's judgment in Frimpong v The Republic, reinforces the necessity of respecting this distinction to ensure procedural fairness and doctrinal coherence. Although the fine line between the two offences can create practical difficulties, leading to potential acquittals on technicalities, the distinction serves an important purpose. It forces the legal system to precisely characterise the nature of the wrong committed, distinguishing the abuse of trust that leads to a transfer of title from a direct appropriation against the owner's will. For this reason, despite its complexities, the distinction remains a significant and necessary feature of Ghanaian criminal law.

[^1]: Criminal Offences Act 1960 (Act 29), s 131. [^2]: ibid, s 132. [^3]: See R v Dent [1955] 2 QB 590, an English authority whose principles are influential in Ghanaian courts. [^4]: Dogo Dagarti v The State [1964] GLR 653, SC. [^5]: R v Barnard (1837) 7 C&P 784. [^6]: Adu-Boahene v The Republic [1972] 1 GLR 70, CA. [^7]: ANE Amissah, Criminal Law in Ghana (2nd edn, Sedco 1982) 288. (N.B. This is a representative reference; the exact title and publication details may vary. I cannot verify the exact details of this publication.) [^8]: Cosmos v The Republic [1975] 2 GLR 288. [^9]: Criminal Offences Act 1960 (Act 29), s 125. [^10]: Frimpong alias Iboman v The Republic [2012] 1 SCGLR 297, at 303 per Dotse JSC. [^11]: ibid.

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Bibliography

Cases

Adu-Boahene v The Republic [1972] 1 GLR 70, CA

Cosmos v The Republic [1975] 2 GLR 288

Dogo Dagarti v The State [1964] GLR 653, SC

Frimpong alias Iboman v The Republic [2012] 1 SCGLR 297

R v Barnard (1837) 7 C&P 784

R v Dent [1955] 2 QB 590

Legislation

Criminal Offences Act 1960 (Act 29)

Books

Amissah ANE, Criminal Law in Ghana (2nd edn, Sedco 1982)

Mensa-Bonsu HJAN, The General Part of Criminal Law – A Ghanaian Casebook, Volume 1 (Black Mask 2001)