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ARMAH AND OTHERS v. THE STATE


  • appeal
  • 1961-03-03
  • SUPREME COURT
  • GLR 136-142
  • Print

VAN LARE, SARKODEE-ADOO AND AKIWUMI JJ.S.C.


Summary

Criminal law?-Practice and Procedure?-Trial with assessors?-Powers and duties of trial judge on close of case for prosecution?-Failure of justice occasioned by grave irregularities?-Criminal Procedure Code, Cap. 10 (1951 Rev.) ss. 274, 277 and 285?-Courts Act, 1960 (C.A.9.) s. 16(6).Criminal law?-Housebreaking and stealing?-Doctrine of recent possession?-Criminal Code, Cap. 9, (1951 Rev.) s.27.

Headnotes

At the trial at Accra Assizes of three persons charged jointly with stealing and housebreaking before the learned judge sitting with the aid of assessors, the following irregularities occurred:(1) the judge held that the prosecution had failed to identify the goods found in the possession of the accused as the property of S.A.T. Co. Ltd., but(2) he later made a restitution order in favour of the said company;(3) he failed to apply properly the doctrine of recent possession although this doctrine was brought to his notice; [p.137](4) he sought the opinion of the assessors as to the guilt or otherwise of the third appellant at the close of the case for the prosecution;(5) having called upon the first and second appellants to answer the charges against them, to which they made no defence, he found them guilty not of stealing and housebreaking, but of receiving, without calling upon them to answer that charge. The third accused was also found guilty of receiving.

Judgement

APPEALS from convictions for receiving before Charles, J. sitting with assessors at Accra Assizes on the 6th January, 1960. The facts are fully set out in the judgment.

JUDGMENT OF SARKODEE-ADOO, J.S.C.

Sarkodee-Adoo J.S.C. delivered the judgment of the court. This is an appeal from convictions before Charles, J. sitting with the aid of assessors at the Assizes holden at Accra on the 6th January, 1960. The appellants, the first and second of whom are husband and wife, were all jointly charged on two counts of housebreaking and stealing from the shop of Messrs. Swiss African Trading Company, Limited, Accra, (hereinafter referred to as S.A.T. Co. Ltd.), goods to the total value of G1, 549 6s. 7d. the property of the said company.

The facts briefly put are that during the night of the 29th May, 1959, the shop of S.A.T. Co. Ltd., in Knutsford Avenue, Accra, was broken into and goods stolen therefrom. Within the space of a few hours thereafter the appellants were found in possession of a large quantity of goods very similar to those stolen from the shop, and gave no reasonable [p.138] explanation as to how they came by them save a fantastic story that they were found at Takoradi.

The appeal principally involves a consideration of substantial irregularities in the conduct of the trial. The record of proceedings shows that at the close of the case for the prosecution Mr. Heward-Mills, counsel for the first and second appellants, submitted as follows:

?"There is no sufficient case made out against them for the court to call on them to enter upon their defence. There is no evidence to show that the goods tendered in evidence belong to S.A.T. Co. Ltd., or form part of the property alleged to have been stolen from S.A.T. Co. Ltd. The only evidence adduced is that the suitings and other materials are similar to those alleged to have been stolen from S.A.T. Co. Ltd. There are no marks of identification to show that the goods produced in court are the property of S.A.T. Co. Ltd. In law nobody can be convicted of stealing any property unless it is first established that the property mentioned in the indictment had been stolen.

At this stage, the learned trial judge informed Mr. Heward-Mills that the court was of opinion that the prosecution had failed to identify those goods as the property S.A.T. Co. Ltd. In doing so the learned trial judge appears to have completely lost sight of, and thereby failed to consider, the definition of stealing as provided by section 27 of the Criminal Code1 as follows: ?"A person is guilty of stealing if he dishonestly appropriates a thing of which he is not the owner.?" We must point out that ownership in goods in a charge of stealing is not an essential ingredient of that charge, as a person may be properly convicted of stealing a thing or goods the property of an unknown person.

Mr. Cudjoe, counsel for the third appellant, similarly submitted that no prima facie case was made out against his client to answer.

Mr. Boison, Crown Counsel (as he then was) in reply submitted, inter alia, that the first and second appellants were in possession of articles similar to those recently stolen from S.A.T. Co. Ltd., and as they had not given any explanation, a prima facie case had been made out against them; and as to the third appellant that, as he was assisting in the disposal of the goods, he knew or ought to have known that they had been stolen.

The record upon the conclusion of these submissions is as follows:-

?"By Court:

Submissions of Mr. Heward-Mills overruled and Nos. 1 and 2 accused called to give a defence in respect of both counts. Court directs assessors that on the evidence a prima facie case has not been made out against No. 3 accused in respect of the 1st and 2nd counts but there is a prima facie case made out against the No. 3 accused to answer a charge of receiving stolen goods contrary to s.301 of Cap. 9. Court directs assessors to express an opinion that No. 3 accused is not guilty on the 1st and 2nd counts.

The following is the opinion of the assessors:

Mr. Quist:-No. 3 accused not guilty on 1st and 2nd Counts.

Mr. Quaye:-No. 3 accused not guilty on 1st and 2nd Counts.

Mr. Kofie:-No. 3 accused not guilty on 1st and 2nd Counts. [p.139]

By court:-No. 3 accused is found not guilty on the 1st and 2nd counts and acquitted and discharged but No. 3 accused is called upon to answer a charge of receiving stolen property contrary to s.301 of Cap. 9.

Court adjourned for 10 minutes at 10.10a.m. to get Mr. Heward-Mills in court. Court resumed at 10.20a.m.. Court as before with the three assessors and three accused present. Court overruled the submission of Mr. Heward-Mills.

Mr. Heward-Mills reiterates his submission that ownership of the goods has not been proved and he therefore closed the defence of Nos. 1 and 2 accused.

Mr. Codjoe informs court that he is relying on his submission and he is closing the defence of No. 3 accused without leading any evidence. Mr. Codjoe submits that No. 3 accused conveyed similar suitings to the exhibits in court for No. 1 accused for a charge of G2 10s. That No. 3 accused paid a reasonable price for the material which he purchased. Crown has not discharged the onus of proof and as there is a reasonable doubt, the doubt should be resolved in favour of the accused.

Both counsel for the accused decline to address assessors and court. Mr. Boison also declines to address assessors and court. Court sums up from 9 a.m. to 10.20 a.m.

The following is the opinion of the assessors:

Mr. Quist:?- No. 1 accused not guilty of housebreaking

No. 2 accused not guilty of housebreaking

No. 1 accused not guilty of stealing

No. 2 accused not guilty of stealing

Nos. 1, 2, and 3 accused guilty of receiving.

Mr. I. Quaye:?- No. 1 accused not guilty of housebreaking

No. 1 accused not guilty of stealing

No. 2 accused not guilty of stealing

Nos. 1 and 2 accused guilty of receiving

No. 3 accused not guilty of receiving.

Mr. I. T. Cofie:?- Nos. 1 and 2 accused not guilty of housebreaking

Nos. 1 and 2 accused not guilty of stealing

Nos. 1, 2 and 3 accused guilty of receiving.

Adjourned to 10/3/60 for judgment

(Sgd.) M. A. Charles J.

Written judgment delivered.

Receiving the suitings tendered in evidence knowing them to have been stolen.

Each accused is convicted accordingly.

Court:- Has any of the accused anything to say why sentence should not be passed on them according to law?

No. 1 accused replies:-Nothing to say.

No. 2 accused replies:-Nothing to say.

No. 3 accused replies:-Nothing to say.

No. 1 accused sentenced to 3 years I.H.L.

No. 2 accused informs court that she has 9 children the youngest being one year only.

No. 2 accused is sentenced to one day?'s imprisonment and fined G100 or 12 months imprisonment with hard labour.

No. 3 accused is sentenced to 15 months I.H.L.

Restitution order made in respect of the Exhibits to S.A.T. Co. Ltd. Bail granted in the sum of G500 with two sureties to be justified for each accused on [p.140] condition that appeal is made against the convictions and sentences within the period prescribed by law.

(Sgd.) M. A. Charles Judge."

It is apparently clear from the record of the proceedings that the learned trial judge fell into error in the exercise and discharge of his powers and duties during the trial. The provisions as to trial with assessors are clearly set out in section 274 of the Criminal Procedure Code2, as hereunder:

?"Upon every such trial the decision of the Judge, with the aid of the assessors, as to all matters arising thereupon, which in the case of a trial by jury would be left to the decision of the jurors, shall have the same force and effect as the finding or verdict of a jury thereon.?"

It should be observed that the decision referred to is at the conclusion of the whole case and not at the close of the case for the prosecution.

Section 277 provides that:

?"The opinion of each assessor shall be given orally, and shall be recorded in writing by the Court, but the decision shall be vested exclusively in the Judge. Any assessor dissenting from any decision of the Court may have his dissent and the grounds thereof recorded in the minutes."

This decision referred to also relates to that to be given at the conclusion of the whole case.

The consideration as to whether or not there is a case to answer at the conclusion of the case for the prosecution is vested solely and exclusively in the judge under and by virtue of section 285 of the said Code without any reference to the assessors for their opinion.

Section 285 is as follows:

?"It shall be lawful for the Judge to consider at the conclusion of the case for the prosecution whether there is any case for submission to the jury, and if the Judge shall be of opinion that there is no evidence that the accused has committed any offence of which he could be lawfully convicted on the information upon which he is being tried, the Judge shall forthwith direct the jury to enter a verdict of not guilty and shall acquit the accused.?"

In this case the learned trial judge's conduct of the proceedings was in complete disregard of the provisions of the Criminal Procedure Code when he sought the opinions of the assessors as to the guilt or otherwise of the third appellant in respect of counts 1 and 2 at the close of the case for the prosecution. The learned trial judge appears to have been confused as to when to seek the opinions of the assessors.

There are yet other instances of confusion: (1) It is observed that upon the submission of Mr. Heward-Mills, the learned judge held that the prosecution had failed to establish the goods as the property of S.A.T. Co. Ltd., but later in his judgment, as he concluded that the goods which had been found in the possession of all the three accused and [p.141] exhibited in the proceedings were the property of S.A.T. Co. Ltd., he made a restitution order in favour of the said company. We fail to understand how in the absence of any further evidence the judge had changed his mind as to the ownership of the exhibits in question. (2) The learned trial judge overruled the submissions of Mr. Heward-Mills and called upon the first and second appellants to enter into their defence in respect of both counts; although no defence whatsoever was offered he nevertheless found them guilty not of the counts preferred but of the offence of receiving without having called upon them to answer that charge.

The principles are well settled and the authorities numerous in respect of the points in issue, and we may here give a resume of a few which in our view have clearly enunciated the principles. The law on these points does not appear to be in doubt. If at the close of the case for the prosecution counsel?'s submissions are overruled on the ground that a prima facie case had been made out against the accused who is called upon to enter into his defence but refused to offer any defence he can be properly convicted upon the evidence given by the prosecution of the offences charged: R. v. Akinpelu Ajani and other3.

In the case of R. v. Abbott4, it was held that where there is no evidence against the appellant at the close of the case for the prosecution, it is the duty of the judge to withdraw the case against him from the jury and upon failure or omission to do so if the case proceeds an there is a conviction it must be quashed.

As to the doctrine of recent possession, what constitutes ?"recent possession?" depends upon the nature of the property and the circumstances of the particular case; and in the doctrine of ?"recent possession?" of stolen property, ?"recent?" relates to the date of the stealing: R. v. Marcus5.

In R. v. Loughlin6 it was held that where it is proved that premises have been broken into and property stolen therefrom, and that very soon after the breaking the prisoner has been found in possession of that property, it is open to the jury to find the prisoner guilty of breaking and entering, and the jury should be so directed.

It does appear on the evidence as a whole that, on the proper consideration and application of the doctrine of recent possession upon which Mr. Boison, Crown Counsel (as he then was) had unequivocally addressed the learned trial judge, each of the accused could have been found guilty and convicted of the offences charged and not of the offence of receiving.

Quite clearly, the learned trial judge?'s failure to appreciate his powers and duties in the conduct of the trial and the resulting failure to consider adequately and apply the doctrine of recent possession, are not mere irregularities. We are of opinion that in all the circumstances of this case the conduct of the trial has been so gravely irregular as to occasion [p.142] a failure of justice according to the requirements of the law. It is a settled principle of law that justice must not only be done, but it must manifestly and undoubtedly be seen to be done.

In the exceptional circumstances of this case and the interests of justice, we think that the case calls for the exercise of our powers under section 16(6) of the Courts Act, 1960.7 In order to do so we hereby quash the conviction and sentence recorded against each appellant, and do order a re-trial by the court differently constituted. The order for restitution in respect of the exhibits is also set aside; and the fine imposed on the second appellant, if paid, is to be refunded.

In order to remove doubt we declare that the quashing of the convictions and sentences however does not acquit nor discharge the appellants of the offences charged. Subject to the above the appeal is allowed.

Decision

<P>Convictions and sentences quashed.</P> <P>Order for re-trial before differently constitute

Plaintiff / Appellant

A.G. Heward-Mills for first and second appellants. S.M. Codjoe for the third appellant.

Defendant / Respondent

K. Dua Sakyi, with him S. S. Okunor

Referals

(1) R. v. Ajani and Other (1936) 3 W.A.C.A. 3

(2) R. v. Abbott [1955] 2 Q.B.497; 39 Cr. App.R. 141; [1955] 2 All E.R.899

(3) R. v. Marcus (1923) 17 Cr. App.R. 191

(4) R. v. Loughlin (1951) 35 Cr.App. R.69; 95 S.J. 516

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