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MAHAMADU LAGOS v. COMMISSIONER OF POLICE


  • appeal
  • 1961-03-24
  • SUPREME COURT
  • 1 GLR 181-183
  • Print

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


Summary

Criminal law?-Being found by night in possession of house-breaking implements?-Duty to consider whether defence might reasonably be true?-Criminal Code, Cap. 9 (1951 Rev.), s. 310.Criminal law?-Practice and procedure?-Summary dismissal of appeal?-Criminal Procedure Code, Cap. 10 (1951 Rev.), s.331.

Headnotes

The appellant, a taxi-driver, was convicted of being found by night in possession of house-breaking implements, and sentenced to two years I.H.L. His explanation, which was disbelieved, was that the implements must have been placed in his taxi by his passengers, who had themselves run away when the police came onto the scene. The district magistrate in convicting the appellant. said:"I am satisfied upon the evidence and from all the surrounding circumstances that the accused knew about the presence of Exhibits A3 and A4 in his taxi-cab. I do not believe the accused when he said that he did not know how the implements came into his vehicle. It is quite clear that [but for the] diligent search made by P.W.1 the implements would not have been discovered. It is also quite clear that but for the vigilance of P.W.1 and P.W.2 the accused would have run away.?"The appellant appealed to the circuit court on the grounds, inter alia, that there was no evidence that the implements were in his possession, and that the evidence before the court showed that he had not in fact attempted to run away. His appeal was dismissed summarily.

Judgement

APPEAL from the decision of Judge Bannerman in the Circuit Court, Takoradi, on the 7th December, 1960, dismissing an appeal against conviction under section 310 of the Criminal Code Cap 9 (1951 Rev.) by the District Magistrate, Sekondi (S. Asafu-Adjaye, Esq.,) on the 15th October, 1960. The facts are fully set out in the judgment of the Supreme Court.

JUDGMENT OF VAN LARE, J.S.C

Van Lare J.S.C. delivered the judgment of the court. The appellant was convicted and sentenced to two years I.H.L. for the offence of being found by night in possession of house-breaking implements, to wit: a pair of large shears and a long crow bar, without lawful excuse. The appellant owns a taxi, which he drives himself and plies for hire. This vehicle was hired by certain passengers to go to Sekondi, which they reached at night. The vehicle parked by the roadside while the appellant and his passengers refreshed themselves. The police came on the scene, whereupon the passengers took to their heels and escaped arrest. The policemen said that the appellant did not attempt to run away but they nevertheless detained him [p.183] in view of the unexpected escape of the passengers of the vehicle. Upon a search of the vehicle the passengers?' luggage was found in the boot of the car and underneath the seat at the back were found the implements complained of. It is not in dispute that the implements are adapted for the purpose of house-breaking. The appellant expressed his surprise at finding in his taxi such implements. This is confirmed by the police witness for the prosecution. The explanation of the appellant of the presence of these implements in his taxi was that they must have been placed there by the passengers who had, in the view of the policemen, suddenly run away. The appellant denied knowledge of the presence of the implements in his taxi and thereby denied legal possession of them.

The trial district magistrate expressed the view that he was satisfied that the prisoner knew about the presence of these implements. He gave no reasons and we can find no satisfactory evidence from which such inference could be drawn and therefore think that the district magistrate erred in such a finding. We are also of opinion that had the trial magistrate fully considered the explanation offered by the prisoner when he stated to the police, at the earliest opportunity, that the passengers must have planted the implements in the taxi without his knowledge and in his absence visiting the lavatory, his finding would most probably have been different. Further, we find that the trial district magistrate simply dismissed the explanation of the prisoner by saying he did not believe him. This we think is a case in which it was the duty of the trial district magistrate to have considered whether the explanation of the prisoner could reasonably be true. It appears obvious to us that the prisoner's explanation of the presence of the implements could reasonably be true and on that footing the verdict should have been one of not guilty - see Regina v. Abisa Grunshie.1

On appeal to the learned circuit judge, the appellant?'s appeal was summarily dismissed as of no merit. In this procedure he erred, for as the prisoner was in custody, it was his duty to give opportunity for the appellant's advocate to be heard, as provided by section 331 of Cap. 10 - then applicable.

In view of what we have indicated it is obvious that the learned circuit judge on appeal omitted to consider the points we have discussed in this judgment and erred in dismissing the appeal.

It is from the decision of the circuit judge that this appeal comes before us, and we have no alternative, for the grounds indicated, but to allow the appeal. The appeal is accordingly allowed, conviction and sentence quashed and set aside. The appellant is acquitted and discharged.

Decision

<P>Appeal allowed.</P>

Plaintiff / Appellant

B. Gaisie

Defendant / Respondent

K. Dua Sakyi

Referals

Regina v. Abisa Grunshie (1955) 1 W.A.L.R. 36, W.A.C.A.

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