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  • appeal
  • 1962-10-26
  • 2 GLR 107109
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Criminal law and procedure?-Stealing?-Dishonest appropriation?-Distinction between dishonest appropriation and exercise of a claim of right?-Criminal Code, 1960 (Act 29), s. 120, illustration (c).


A. Ordered 3,000 bags of cement from G.R.I. Ltd. at ten shillings a bag. A. Arranged to sell part of this cement to the complainant who gave A. a cheque for G1,000 in part payment. A. paid the money to his suppliers and subsequently went to collect the cement, accompanied by a representative of the complainant. G.R.I. Ltd. could not meet the order in toto and delivered to A. Only 1,004 bags. Of this amount, 690 bags were carted away by the complainant?'s representative and A. sold the remaining 314 bags to other customers. The complainant felt he should have received all the cement that had so far been delivered and asked for the return of his money over and above the value of 690 bags. This not forthcoming, the complainant reported the matter to the police.A. was charged in the circuit court with the offence of stealing 314 bags of cement, described as the property of complainant. He was convicted. On appeal,


APPEAL against conviction by the Circuit Court, Accra, for stealing 314 bags of cement, alleged to be the property of the complainant. The facts which are set out in the headnote are taken from the judgment of the Supreme Court.


Van Lare J.S.C. delivered the judgment of the court. [His lordship rehearsed the facts which are set out in the headnote and continued:] The prosecution?'s case is that the complainant was entitled to the whole of the quantity of 1,004 bags delivered to the appellant and that by causing 314 bags of such cement to be sold to other customers the appellant dishonestly appropriated property of which he was not the owner. The [p.108] trial circuit judge appears to have accepted the prosecution's contention that the ownership in the 314 bags was in the complainant and convicted the appellant. He based his decision upon an assumption that the appellant had not denied receiving the 1,004 bags for and on account of the complainant. There is nothing from which the trial circuit judge could infer such an assumption; on the contrary the evidence is clear that the appellant contracted with the suppliers on his own behalf and received the 1,004 bags on his own account and not on the account of the complainant.

In this court learned Senior State Attorney has contended that the appellant was in law an agent of the complainant when he took delivery of the 1,004 bags from his suppliers. With this contention we do not agree. The evidence shows that the appellant was in no sense employed by the complainant to transact any business with the Ghana Rural Industries Ltd. in respect of the cement on the complainant's behalf. The appellant cannot therefore be an agent of the complainant. The evidence is that the appellant contracted to buy 3,000 bags of cement from the suppliers at ten shillings a bag and contracted to sell a quantity of the same to the complainant at seven shillings and sixpence a bag. In either transaction the appellant acted as an independent contractor. Were the appellant acting as the complainant's agent the complainant would have been expected to pay the price of ten shillings a bag for the cement and not seven shillings and sixpence a bag.

To convict upon a charge of stealing the act complained of against the prisoner must amount to a dishonest appropriation or fraud. We find it difficult to discover any criminal fraud in the appellants' transaction with the complainant as it is quite clear that the appellant honestly expected to receive 3,000 bags of cement from the suppliers from which he was to supply to the complainant the whole of the quantity to which his deposit of G1,000 would entitle him, which, reckoning at seven shillings and sixpence a bag, would have been 2,666 2/3 bags. If the Ghana Rural Industries Ltd. had enough stock to cover the 3,000 bags, the complainant would have also received cement to the full value of his deposit. Even if the appellant had received the whole of the 3,000 bags and failed to deliver to the complainant cement to the total value of G1,000 he could not in law be held to have dishonestly appropriated goods of which he was not the owner, nor could he have been guilty of any criminal offence. He would surely have incurred a civil liability. In law the complainant can claim ownership in the cement only when it is delivered to him by the appellant in fulfilment of the contract between them. Although the legal ownership in a thing may be in dispute between two persons and if one of them nevertheless exercises acts of ownership in respect of the thing detrimental to the other, the law does not regard that transaction as amounting to a dishonest appropriation of that thing but rather as an exercise of a claim of right. Thus, as an illustration with regard to the explanation of dishonest appropriation, section 120 of our Criminal Code, 1960, gives the following: "(c) 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."

We are of opinion therefore that in this case even if the appellant were to know that the complainant would object to his selling the 314 bags to other customers he cannot be held to have dishonestly appropriated property which might be argued in law to be the property of the [p.109] complainant. But as we have already indicated the ownership in the 314 bags of cement, subject-matter of the charge, never passed to the complainant but remained in the appellant until he sold to the other customers.

In the result the trial circuit judge erred in law in convicting the appellant on the facts disclosed. We therefore allow the appeal. The conviction is quashed and the sentence, including the order made thereafter, set aside. The appellant is acquitted and discharged.


<P>Appeal allowed.</P> <P>Appellant acquitted and discharged.</P>

Plaintiff / Appellant


Defendant / Respondent



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