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COMMISSIONER OF POLICE v. MILLS


  • appeal
  • 1961-06-16
  • SUPREME COURT
  • GLR 318320
  • Print

KORSAH, C.J., SARKODEE-ADOO AND AKIWUMI, JJ.S.C.


Summary

Criminal law?-Stealing?-Misdirection by trial judge.

Headnotes

The appellant, a typist in the High Court, Kumasi, was at the material dates of the offences charged, in no way connected with the receipt of, nor empowered in the course of his duties to receive, monies for the issues of writs, processes, instruments or other writings emanating from the court. There was clear evidence that the complainant, believing the appellant to be a proper officer entitled to demand money in the ordinary course of his duties, paid to him as court fees, two sums of G36 and G16 4s respectively. No receipts were issued for these payments. The appellant admitted that he did not hand the money to the officer authorised to receive it; and further that he purported to prepare a writ and have it served, in an effort to convince the complainant that it had been duly issued.The appellant was charged with stealing these sums of money on two counts both laid under section 287 (1) of the Criminal Code, Cap. 9 (1951 Rev.), and was convicted on the second count of stealing the sum of G16 4s. On the first count of stealing the sum of G36, the learned trial judge said:?"I agree with the submission of counsel that the G36, subject-matter of the first count was paid to the accused as fees for the issue of probate and there is evidence that the docket on that probate matter got missing and so it has not been possible for the issue of the probate, thereby making it impossible for any monies or fees to be paid. I therefore find that there is no case of stealing against the accused on this count and I do not call upon him to answer this count and he is therefore acquitted.?"The appellant appealed against his conviction on the second count.

Judgement

APPEAL against conviction for stealing by Judge Bruce-Lyle in the Circuit Court, Kumasi, on the 20th February, 1961. The facts are set out in the judgment of the Supreme Court.

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

Sarkodee-Adoo, J.S.C. delivered the judgment of the court. The facts briefly put are that on the 9th March, 1960, one Kwaku Kumasi (P.W.1) in company with his brother Kwadjo Owusu (P.W.2) went to the High Court in respect of probate of the will of his late grandfather, which had been granted by the court. He had been directed to the registrar and upon arrival at the registry he saw on the verandah the appellant who enquired of him what he wanted. Kwaku Kumasi replied that he had been directed by his lawyer to see the registrar for the probate. The appellant then told him that ?"he worked on probates.?" He asked the appellant the fees to be paid for the issue of the probate and was told G36 . This sum was paid to the appellant on the 26th March, 1960; no receipt was issued for the amount nor was the probate issued; notwithstanding repeated demands on several occasions, he was put off by the appellant with divers excuses and reasons. Early in August, 1960, Kwaku Kumasi encountered trespassers weeding one of his deceased grandfather?'s farms and on his visit to the court about the issue of the probate he narrated the incident to the appellant who advised the institution of an action against one Kojo Manu who was alleged to have sent his labourers to weed the farm, and demanded the sum of G16 4s as the fees for the issues of the writ of summons. This sum was paid to the appellant on the 24th August, 1960, but he issued no receipt for the payment saying ?"there was no cause to worry as he would do everything correctly?". A summons was prepared by the appellant who gave it to a bailiff for service and is company with the said Kwadjo Owusu, it was served on the defendant.

Richard Yaw Okyere, Senior High Court Registrar, Kumasi, in the course of his evidence said:

?"I know accused. He is a typist, Grade 1 in the High Court, Kumasi. I know P.Ws 1 and 2. During the month of November, 1960 P.Ws 1 and 2 came to me; they were brought to me by Mr. Joseph Prempeh as his clients. Lawyer Prempeh told me something and as a result I called accused and interrogated them and took note of what happened and all of them signed. During my investigation into the complaint I came across a copy of writ of summons served on 26th September, 1960, and copy of memorandum of appearance in case Kweku Kumasi and Kwadjo Owusu v. Kwadjo Manu. I have not been able to trace the docket in this case and this case does not appear in any of the Cause Books in the office. There are certain handwritings in red ink in the writ of summons and the handwritings resemble that of accused. I asked accused whether he was prepared to give a statement and he said ?'No?'.?"

Under cross-examination by counsel, he said inter alia:

?"The seal on the writ is the genuine seal of court. This writ on the face of it has been regularly issued out of the High Court. The docket in the probate case is now lost. I don?'t know the last time I saw it. When probate is granted the docket is put in an instruction book from the court clerk to the registrar. I at times deal with the dockets and sometimes my assistant deals with the dockets. The docket is necessary to enable the officer dealing with it to complete the preparation of the probate. I cannot help this court very much as to how this docket got missing.

An appearance to the writ was made on 4th October, 1960. It was when appearance was Entered that I looked into the Cause Book and found no entry and I did not see a docket. I made an investigation and got to know the writ was issued with the help of accused and I questioned accused and I asked him for a written statement and he said he would not give a statement.?" [p.320]

At the close of the case for the prosecution learned counsel submitted that no prima facie case was made out to answer on the first count; and the record upon the conclusion of the submission is as follows:-

?"Ruling:

I agree with submissions of counsel that the G39 subject-matter of the first count was paid to accused as fees for the issue of probate and there is evidence that the docket on that probate matter got missing and so it has not been possible for the issue of the probate thereby making it impossible for any monies or fees to be paid. I therefore find that there is no case of stealing against accused on this count and I do not call upon him to answer this count and he is therefore acquitted. I find there is a prima facie case made out on second count and accused is called upon.?"

Upon careful perusal of the record of the proceedings and consideration of the authorities we find it difficult to appreciate or understand the learned circuit judge?'s reasoning whereby he held that there was no case of stealing against the appellant on the first count. In so doing he appears to have misdirected himself and completely lost sight of, and thereby failed to consider, the definition of stealing as provided by section 27 of the Criminal Code, Cap. 9 (now section 125 of the Criminal Code, 1960), as follows: ?"A person is guilty of stealing if he dishonestly appropriates a thing of which he is not the owner.?"

On the evidence as a whole we are satisfied that there was no defence to both counts and quite clearly this is a case in which there has been a miscarriage of justice not against the appellant but rather in his favour. We cannot over-emphasise the danger arising from such a situation in setting a guilty person free. 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.

It should be observed that the appellant as a typist was not entitled either to collect fees in respect of the probate or of the writ which was to be issued. There is also clear evidence on record supporting the view that the complainant believing that the appellant was a proper officer entitled to demand the monies in the ordinary course of his duties as a court clerk paid sums of G36 and G16 4s respectively to him.

In defence the appellant having been called upon for his defence in respect of the sum of G16 4s. admitted receiving the said sum which he knew was intended to be court fees but said he collected it with a view to paying it to the proper officer. He admitted that the money had not been paid by him to the officer who was entitled to receive the money and issue the writ; he further admitted that without paying the money to the said officer he caused a paper purporting to be an office copy of the writ to be served as if the writ had been issued by the court as required by law, in order to make the complainant believe that the sum had been received by Government and the writ duly issued.

Upon these facts the learned circuit judge held that there is proof on record of the intention of the appellant to steal the money paid to him for the issue of the writ. With this conclusion we agree with the learned circuit judge and hold that the appellant was rightly convicted on the second count as he could also have been convicted on the first count.

In the result, the appeal is accordingly dismissed.

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

J.D. Reindorf

Defendant / Respondent

K. Dua Sakyi

Referals

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