Division: IN THE SUPREME COURT
Date: 6 NOVEMBER 1964
Before: MILLS-ODOI, OLLENNU AND SIRIBOE JJSC
JUDGMENT OF OLLENNU JSC
Ollennu JSC delivered the judgment of the court. This is an appeal from a judgment of Acolatse J., as he then was, upholding the convictions of, and sentences passed upon the appellant by the District Magistrate, Somanya. The convictions and sentences are in respect of three counts of stealing. The subject of the alleged offence is three turkeys in the first and one turkey in each of the other two counts.
When the appeal from the decision of the district magistrate came before the High Court on 5 June 1963, the learned judge formed the opinion that it was not a matter which should be dismissed summarily as he is empowered to do under section 328 of the Criminal Procedure Code, 19601; he therefore caused notice to be given to the Attorney-General as provided by section 329 of the said Criminal Procedure Code, 1960. The appeal came before the court again on 1 November 1963, the appellant appearing in person, the respondent represented by a state attorney. After hearing submissions by the appellant, the High Court dismissed his appeal without calling upon the respondent, stating that there is no substance in the appeal.
There was no appearance by or for the appellant in this court; information received from the prisons which was his address is that he had served his sentences and been discharged. The respondent was represented by a senior state attorney. The absence of the appellant notwithstanding, the court, in the interest of justice, called upon learned senior state attorney to support the convictions.
After strenuous efforts, the senior state attorney was obliged to concede that he could not support the conviction on the first count. He however contended that there is sufficient evidence which, in law, conclusively proved the guilt of the appellant in respect of the second and third counts.
The first count charged the appellant with stealing three turkeys, the property of one Emmanuel Kwame Gyasi, the first prosecution witness. The only evidence in respect of that count is that the complainant noticed on the morning of 16 April 1962, that he had lost three turkeys, two male and one female, and went out in search of them. In the course of the search he met two sanitary labourers, the second and third prosecution witnesses. While these three persons, first, second and third prosecution witnesses were together, they saw the appellant approaching their direction holding three empty cardboard boxes. The appellant suddenly dropped the cardboard boxes and took to his heels; the three men chased and arrested him, and took him to the place where he had dropped the three boxes. The witnesses later discovered three turkeys under a tree in the neighbourhood; these were identified by the
first prosecution witness as his property. The first, second and third prosecution witnesses took the appellant, the three turkeys and the three cardboard boxes to the police station, made a complaint and handed the appellant over to the police and the appellant was charged.
The learned district magistrate gave the following reasons for convicting the appellant on this count:
“It is true that the accused was not actually seen with the turkeys, but to my mind there is sufficient evidence, having regard to all the surrounding circumstances to incline this court to believe that the concealing of the three birds under those trees was the act of the accused.”
It has been repeated over and over again that a court ought not to convict upon circumstantial evidence unless guilt is the only reasonable inference which can be drawn from the cumulative effect, that is, unless the circumstantial evidence is such that guilt is the irresistible inference which can be drawn from it. The inference drawn by the learned district magistrate that “the concealing of the three birds under those trees was the act of the accused” is too remote a probability to be inferred from the facts stated above. The conviction on this first count therefore is bad; it cannot be supported upon any ground.
The second count charged the appellant with stealing one turkey the property of one Darpe Ayiku, sixth prosecution witness, a woman fishmonger. The learned district magistrate convicted the appellant on this count stating that:
“On count two, fourth prosecution witness averred that he saw the accused taking one turkey belonging to his father, and as this incident took place in the bush, he rushed home and informed his uncle about what he had seen. This evidence was not challenged and I accept it.”
There is no evidence that the sixth prosecution witness is the person referred to by the fourth prosecution witness as his father; in fact being a woman, she could not be the one. Taking the evidence of the second prosecution witness together with that of the fourth prosecution witness, the probability is that the second prosecution witness is the person the fourthn prosecution witness referred to as his father. Again there was no evidence which connected the appellant with any turkey claimed by the sixth prosecution witness as her property.
Learned senior state attorney seeking to support the conviction on this count, relied upon section 123 (2) of the Criminal Code, 1960,2 which provides that, “In any proceedings in respect of any of the crimes mentioned in subsection (1) it shall not be necessary to prove ownership or value.” The crimes mentioned in the said subsection (2) of section 123 of the Code include stealing. The senior state attorney submitted that by virtue of that subsection, once the fourth prosecution witness had alleged that he saw the appellant taking a turkey, the charge has been conclusively proved, and invited the court to so hold. We cannot agree with this proposition of law; it will be a most unreasonable interpretation to place on the subsection.
The subsection has to be considered along with the essential elements of the offence of stealing in order to arrive at a proper interpretation.
Stealing is defined in section 125 of the Criminal Code as: “A person steals if he dishonestly appropriates a thing of which he is not the owner.” The first essential ingredient of stealing therefore is that the person charged with the theft of a thing is not the owner of the thing, the subject-matter of the theft. Therefore if a person charged with stealing a thing pleads not guilty to the charge, the prosecution cannot under any circumstances succeed without proving either that the subject-matter of the charge belongs to the person in whom ownership of the thing is laid in the charge, or in the alternative that the defendant is not the owner of that thing. In other words, it is enough if the prosecution can prove that the subject-matter of a charge of stealing is not the property of the person charged, even though they may fail to prove that the
property is vested in a particular person. And that is the proper interpretation to be placed upon the said section 123, subsection (2). If the interpretation which senior state attorney propounds is placed upon it, the resulting effect on our law as to stealing will be that a charge of stealing raises a legal presumption that the person accused of the theft is not the owner, and consequently that a charge of stealing places upon the person accused the onus of proving to the satisfaction of the court that he is the owner of the thing; if he fails to discharge that onus he should be convicted automatically.
We will illustrate the practical application of that submission with the following example: A is charged with stealing a book. The first prosecution witness goes into the witness-box and gives evidence as follows:
“On such and such a day, I saw A, taking a book from the Bar table in the Supreme Court, I have not seen the book since. I latter made a report to police.”
The first prosecution witness is not cross-examined, and the second prosecution witness, a police constable, is then called and gives evidence as follows:
“On such and such a day the first prosecution witness made a report to me at the police charge office. In consequence of that report I went out and arrested A, the defendant. I charged him with stealing a book, and cautioned him, he said he would make his statement in court.”
And that closes the case for the prosecution. Upon the interpretation which the senior state attorney invites the court to place upon section 123 (2), the trial court should, upon that evidence, rule that since by virtue of section 123 (2) it is not necessary for the prosecution to prove ownership, the defendant has a case to answer; and then call upon him to make his defence; and thereafter convict him, unless he proves that he is the owner of the book he picked. This is too ridiculous for words, and does great violence to the whole fabric of the administration of our criminal law, and should not be countenanced by our courts.
In this case there is no evidence which connected the appellant with any turkey, the ownership of which is claimed by the sixth prosecution witness, and there is no evidence connecting the appellant with any turkey of which he is not the owner. Therefore the conviction on count two also cannot stand.
Before passing from count two, we would observe that the practice of trial court of taking refuge under “seeing and hearing witnesses and watching their demeanour” to accept their testimony without testing their credibility or considering their evidence in the light of other evidence, direct or circumstantial, is not one to be encouraged. In the present case the fourth prosecution witness upon whose sole evidence the learned district magistrate convicted the appellant, said that while at school he saw the appellant taking a turkey from the bush and running away with it, and immediately reported the matter to the second prosecution witness; the second prosecution witness also said that in consequence of what the fourth prosecution witness told him, he immediately chased some one who turned out to be the appellant, and that the appellant at that time was carrying cardboard boxes, not a turkey. No further evidence was led as to the whereabouts of the turkey allegedly taken from the bush. That evidence of the second prosecution witness and the other circumstances which detracted very much from the credibility of the fourth prosecution witness on this second count received no attention from the trial district magistrate.
Finally to the third count: It charged the appellant with stealing one turkey, property of Awuni Tango who was the second prosecution witness in the case. In respect of it the trial district magistrate said:
“On count three: fifth prosecution witness, a seller of cooked yam was requested by the accused to keep an empty key soap box containing one live-turkey, because according to him (the accused) he was in a haste to proceed to Amedekah and would subsequently return for that parcel. The accused however, returned with the police and fifth prosecution witness identified him as the person who left it with her.”
Nowhere in the evidence did the second prosecution witness allege that he had lost any turkey. He himself gave evidence that he together with the first prosecution witness and the third prosecution witness took the appellant to the police station with three turkeys and three cardboard boxes; and it is in evidence that the ownership of those three turkeys so taken to the police station was claimed by the first prosecution witness, and formed the subject of count one. Consequently, up to the close of their case the prosecution had not proved that the appellant had fraudulently appropriated anything of which he is not the owner. Therefore, the appellant should not have been called upon for his defence.
On this count learned senior state attorney submitted first, that the evidence of the fifth prosecution witness which the trial court accepted shows that the appellant had been in possession of a turkey, that by virtue of section 123 (1) of the Criminal Code, 1960, the prosecution need not prove ownership of that turkey, and thirdly the appellant in his evidence did not claim that the ownership of the turkey which the fifth prosecution witness spoke about is vested in him, therefore the charge was conclusively proved. With respect, this submission is exactly the same as the illustration we have given supra as to an alleged theft of a book. It would only be worth considering if, as we had earlier observed, our law casts the onus upon a person charged with stealing to prove that he is the owner of the subject-matter of the charge. Our law is that by bringing a person before the court on a criminal charge, the prosecution take upon themselves the onus of proving all the elements which constitute the offence to establish the guilt of the defendant beyond reasonable doubt, and that onus never shifts. There is no onus upon an accused person, except in special cases where the statute creating the offence so provides; stealing is not covered by such a statute.
In this case the prosecution failed to discharge the onus upon them and the trial court should have acquitted and discharged the appellant. The trial court having failed in its duty, it became incumbent upon the High Court to have allowed the appeal; but the court also failed to give the case any consideration of any sort, and did not do its duty; it dismissed the appeal without considering any of those points of law which are apparent on the face of the record. We are in duty bound to put right this grave injustice done to the appellant who unfortunately has already served the terms of imprisonment imposed upon him.
For these reasons the appeal is allowed, the convictions of the appellant and the sentences passed upon him are each quashed, a judgment and verdict of acquittal is entered and the appellant is acquitted and discharged.
DECISION
Appeal allowed.
N.A.Y.
