HIGH COURT, KUMASI
Date: 11 JULY 1975
TAYLOR J
CASES REFERRED TO
(1) Beevis v. Dawson [1957] 1 Q.B. 195; [1956] 3 W.L.R. 1016; [1956] 3 All E.R. 837; 100 S.J. 874, C.A.
(2) Rondel v. Worsley [1967] 1 Q.B. 443; [1966] 3 W.L.R. 950; [1966] 3 All E.R. 657; 110 S.J. 810, C.A.
(3) Collier v. Hicks (1831) 2 B. & Ad. 663; 9 L.J (O.S.) M.C. 138; 109 E.R. 1290.
(4) Nyame v. The Republic [1971] 2 G.L.R. 140, C.A.
(5) Aladesuru v. R. [1956] A.C. 49; [1955] 3 W.L.R. 515; 99 S.J. 760; 39 Cr.App.R. 184, P.C.
(6) R. v. Taylor (1928) 21 Cr.App.R. 20, C.C.A.
(7) Teper v. R. [1952] A.C. 480; [1952] 2 All E.R. 447; [1952] 2 T.L.R. 162; 116 J.P. 502; 96 S.J. 493, P.C.
(8) Nwokorie v. Nwanolue (1960) 4 E.N.L.R. 31.
(9) R. v. Burton (1854) Dears. C.C. 282; 23 L.J.M.C. 52; 22 L.T. (o.s.) 336; 18 J.P. 103; 18 Jur. 157; 2 W.R. 230; 6 Cox C.C. 293; 169, E.R. 728.
(10) R. v. Mockford (1868) 11 Cox C.C. 16.
(11) Fryer v. Gathercole (1849) 4 Exch. 262; 18 L.J. 389; 13 L.T. (o.s.) 285; 13 Jur. 542; 154 E.R. 1209.
(12) State v. Ali Kassena [1962] 1 G.L.R. 144, S.C.
(13) Practice Direction (Submission of no case) [1962] 1 W.L.R. 227; [1962] 1 All E.R. 448, D.C.
(14) R. v. Fell [1974] Crim.L.R. 673.
NATURE OF PROCEEDINGS
APPEAL against a judgment of a district court convicting the appellant of stealing and a ruling on a preliminary objection raised against the continued representation of the appellant by his counsel who had, after the trial in the district court but before the hearing of the appeal, been appointed counsel for the Ashanti Regional House of Chiefs in the Legal Class of the Ghana Civil Service. The facts are fully stated in the judgment.
COUNSEL
J. E. Condua-Lutterodt for the appellant.
R. K. Bruce, State Attorney (with him S. R. Dapaah-Addo, State Attorney) for the respondent.
JUDGMENT OF TAYLOR J
The appellant in this case was arraigned before a district court grade I charged with stealing contrary to section 124 (1) of the Criminal Code, 1960 (Act 29). The particulars of the offence are as follows:
“Robert Eshun aeAffail: train staff: For that you on 7 March 1970, at Kumasi Railway Station, in the Ashanti Magisterial District and within the jurisdiction of this court, did steal 120 dozen balls of thread valued N¢216.00 the property of one Adjoa Aniwaah.”
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The case for the prosecution which was accepted by the district magistrate is that on 7 March 1970, the complainant railed five cases of thread from Koforidua to Kumasi by the Accra-Kumasi train. The appellant was the train guard into whose custody the said thread was entrusted. Shortly after the train had left Koforidua, he asked the Posts and Telecommunications’ officer in the train (who was in charge of the travelling post office) for a mail bag to put something in and the officer gave him one. Each of the five cases of thread contained 50 cartons of thread and each carton contained six dozen balls of thread. When the train arrived at Kumasi the appellant delivered the five cases to the delivery clerk, an employee of the Railways Authority who caused the cases to be stored in the strong room of the railways. The delivery clerk saw the appellant going home carrying a bag filled with something. On 10 March 1970, the complainant (who did not know the appellant) took delivery of her five cases of thread. She noticed that one case was broken, but at the time, she did not suspect that anything had gone wrong. She conveyed the five cases to the central market at Kumasi and at her request the carriers who conveyed the cases from the railway station to the central market opened the cases for her. They noticed that the broken case had only 30 instead of 50 cartons of thread.
The complainant immediately reported to the Railways Authority that 20 cartons of her thread, that is, 120 dozen balls, valued at ¢216.00 were missing while in transit from Koforidua to Kumasi. She was told by the person to whom she complained that the Railways Authority would not accept responsibility since the cases were not opened at the railway station. Disappointed, she went home. On 24 March 1970, she saw a girl in the market hawking thread. She had never seen her previously in the market. The thread she was selling was the same type of thread which she had lost. She called her and interrogated her and learnt that the thread she was selling belonged to a person called “Eshun.” She noted down the name “Eshun” and the address of the house where the said Eshun lived. With this information she contacted the baggage clerk at the railway station and showed him the paper bearing the name “Eshun.”
The baggage clerk did not know that the appellant, Robert Affail, is also known as Eshun and so he told her that he did not know any person by that name. He, however, showed her the house of the guard on the train at the time the goods were railed; that guard being the appellant. When she called at the house she found that that house was the house in fact of the person called “Eshun” and the house bore the address given to her by the girl. She reported the result of her private investigation to a senior officer of the Railways Authority. The officer reported the matter to the police and accompanied by the police, the senior officer and the complainant went to the house of the appellant.
The appellant was absent but they found in his room 631/2 dozen balls and one single ball of thread. The next day the house of the appellant was formally searched and a further 36 dozen balls of threads were also found. He was arrested on 24 March 1970.
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In a statement on caution in his own handwriting made on 25 March 1970, a day after his arrest, the appellant stated that he started trading in thread by buying thread for his sisters to sell two months before his arrest. With regard to the source of the supply of this thread he said he “used to buy from women hawkers very common in town.” As to the quantity of the thread he had at the relevant time he stated that on 21 March 1970, he bought 36 dozen balls and added this to 36 dozen balls which he already had on hand thus making the total thread he had in his possession to be 72 dozen balls. This in effect is the case the prosecution put up at the trial.
The defence which the appellant offered by his evidence and that of his witnesses and which was rejected by the district court as untrue is that he was indeed the train guard who was given the five cases of thread to convey from Koforidua to Kumasi. His explanation was that he did carry the thread safely and handed it to the baggage clerk who found it to be in order and who therefore signed the guard’s rough journal book showing he had received the goods. He denied asking for any mail bag from the Posts and Telecommunications officer of the travelling post office on the day in question.
He said that on 5 January 1970, he saw some Lagosians behind the railway quarters at Kumasi selling goods and he bought, inter alia, 36 dozen balls of thread from one of them, a man whose name and house address he did not know but whom he knew as “Papa Lagos.” His evidence is that he gave the 36 dozen balls of thread to his wife Victoria Fynn to sell and they were all sold. As this was a profitable venture he decided to do more trading in thread and so he went to Accra and bought more thread from the Makola Market and handed the lot to his wife Victoria Fynn and she sold it. On 15 February 1970, he went to Accra once more and he bought 21 dozen balls of thread. At that time his wife was indisposed and as his sister Aba Mensuah and his niece Mary Dadzie had come from Konongo to pay him a visit, he gave the thread to them and the thread was sent to Konongo. It is relevant at this stage to note that the sister Aba Mensuah gave evidence which was amply supported that she left Kumasi some time in December 1969 and did not return until March 1970.
On 11 March 1970, according to his evidence, he bought 36 dozen balls of thread from a Lagosian who had displayed her thread at a place overlooking the Presbyterian Church in Accra. She had displayed some on a table whilst the rest was in a box. He brought the thread to Kumasi by train. On 12 March 1970, as a result of a misunderstanding which developed between him and the wife Victoria Fynn, the said Victoria Fynn left him and had since not returned. Apparently as he had no one to sell this thread, he kept this last lot of 36 dozen balls in a portmanteau in his house. On 21 March 1970, according to his further evidence, at about 9. 00 a.m. in the presence of his sister Aba Mensuah who had just returned from Elmina on the previous day, the Lagos man, “Papa Lagos” accompanied by his little daughter brought to him 80 dozen balls of thread. He told this Lagos man that he already had 36 dozen which had not yet been sold. So apparently he was in no position to buy further thread.
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The Lagosian, however, agreed to reduce the price from ¢1.80 a dozen to ¢1.70 a dozen and so he bought 36 dozen. His evidence is that the Lagos man had since left for Nigeria.
On 23 March 1970, he left Kumasi for Sekondi on duty as train guard and on his return to Kumasi on 24 March 1970, he was arrested. He was told that he was a suspect in a case of stealing thread entrusted to him. He gave a statement to the police which was tendered in evidence. He was granted bail on 25 March 1970. The evidence which was further led on his behalf was that on 23 March 1970, that is, on the day he left Kumasi for Sekondi, the Lagos man called again with another 34 dozen and his sister Aba Mensuah went and borrowed money to buy those 34 dozen balls.
As I have already indicated the district magistrate accepted the case for the prosecution and rejected his defence as untrue and in effect held that the appellant was guilty of stealing the 120 dozen balls of thread valued at ¢216.00 the property of the complainant. He convicted him and sentenced him to six months’ imprisonment with hard labour and made a restitution order in respect of the 991/2 dozen and one ball of thread which were recovered from him. It is against this conviction and consequential order that the appellant appeals. Four grounds of appeal were originally filed as follows:
“(1) That the judgment was against the weight of evidence.
(2) That the judgment was erroneous and not the result of proper resolution of the facts in issue since the magistrate failed to consider the several facts in the case of the prosecution and in the defence which were in favour of the appellant and which were sufficient to exonerate him from the charge.
(3) That the case for the prosecution was in doubt and the magistrate misdirected himself in the judgment because:
(a) Though the charge stated that the stealing took place at the Railway Station, Kumasi, the Railway Authority denied on oath that any such incident occurred there and the appellant had already been officially discharged in writing.
(b) The prosecution’s first witness, the complainant of the alleged loss of packets of thread, failed to identify the exhibits of thread.
(c) There was evidence that the exhibits of packets of thread, differently wrapped and marked with different marks, could not have been contained in one package or box such as the prosecution’s first witness described.
(d) That the magistrate based his findings on extraneous matters and erred in failing to see primarily whether the case for the prosecution was probable or possible and whether the case constituted a prima facie case against the appellant.
(4) That the conviction was wrong in law and the sentence was harsh.”
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On the hearing of the appeal before me, counsel for the appellant sought leave which was granted to argue the following additional grounds of appeal:
‘(1) The magistrate very seriously misdirected himself on the facts in finding, inter alia, that ‘the accused is a railway guard and not a seller of thread,’ a finding which he made the basis of his judgment even though it was completely inconsistent with the evidence of both the prosecution and the appellant.
(2) The judgment was wrong since it was based on a wrong presumption created by a misdirection on the facts. The magistrate thus erred in law in shifting the onus of proof and calling upon the appellant to rebut the presumption. He could have avoided that error if he had carefully considered the material aspect of the case, e.g.
(a) that the appellant was a seller of thread long before 7 March 1970;
(b) that several people sold that kind of thread in the market;
(c) that the prosecution’s first witness should establish without any doubt that she lost some thread at the Kumasi Railway Station and that she was bound by law to identify particularly and conclusively exhibit H to be part of the alleged thread; and
(d) that exhibit H could not have been contained in that one box alone, exhibit K, and was therefore consistent with the appellant’s evidence that he purchased the same in bits from different places and at different times.
(3) A grave doubt was created in the evidence for the prosecution and the benefit thereof ought to have been given to the appellant. It made the evidence for the prosecution insufficient to convict the appellant. The magistrate could have felt the doubt the more if he had considered carefully the evidence of the appellant and his witnesses as well as the evidence of the prosecution witnesses under cross-examination which evidence, when considered under the following heads, made the charge against the appellant quite improbable:
(a) The box of thread as it was entrusted to the appellant at Koforidua until it was delivered up and received at Kumasi Railway Station on 7 March 1970. The appellant was discharged in writing.
(b) The box of thread and the evidence of persons who dealt with it from the time it was received by the baggage officer at Kumasi until the appellant was arrested sixteen (16) days later.
(c) The weight of the box of thread as it was entrusted to the appellant and as it was delivered to the prosecution’s first witness, weight was clearly relevant.
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(4) The prosecution failed to prove the charge against the appellant beyond all reasonable doubt but the magistrate allowed himself to be influenced by an extraneous matter, namely the alleged pilfering at the Railway Authority so he had to convict the appellant, an innocent person, at all costs.”
This case has been unfortunately protracted for reasons which are not too clear. The appellant was convicted by the district magistrate on 12 September 1970, and he filed his petition of appeal on 16 September 1970. The case, however, came before me for summary hearing on 12 March 1971 by which date the appellant had already served his sentence. On 21 May 1971, I granted leave to appeal against conviction and sentence and the case was subsequently adjourned to 24 June 1971 for full hearing. On that date in the course of the argument by counsel for the appellant, Mr. J. E. Condua-Lutterodt, it turned out that the exhibits which counsel considered were very relevant as showing that his client was entitled to acquittal were not in court. I, therefore, ordered that the district registrar should transmit the exhibits to this court without delay. It became clear on subsequent adjourned dates that the relevant exhibits were nowhere to be found. Subsequently, however, the exhibits were traced and the case was accordingly fixed for hearing on 26 March 1975.
On that day after counsel for the appellant had begun his argument, the state attorney appearing for the Republic raised a preliminary objection to the continued representation of the appellant by Mr. Condua-Lutterodt. He pointed out that since 1 March 1973, Mr. Condua-Lutterodt has been a civil servant having been appointed as counsel for the Ashanti Regional House of Chiefs in the Legal Class of the Ghana Civil Service and he produced a certified true copy of a letter of appointment to that effect dated 22 February 1973. He argued very forcefully that by virtue of section 26 (e) of the Civil Service Act, 1960 (C.A. 5), Mr. Condua-Lutterodt as a civil servant is precluded from engaging in any gainful employment outside the civil service. He said that Mr. Condua-Lutterodt, on his appointment, should have either put an end to his services for the appellant or transferred this case to another lawyer; and he submitted very firmly and vigorously that there would be conflict of interest and so I should not give further audience to Mr. Condua-Lutterodt.
Mr. Condua-Lutterodt replied that having taken the case since 1970 he felt that he was under an obligation, moral if not legal, to continue the case. Furthermore he said he wrote to the Attorney-General for permission to continue with this appeal, but for over one month he has had no reply to his letter.
I overruled the objection of the state attorney but because the objection was pressed on me with unrestrained vigour and in particular because of the plausible argument relating to the alleged conflict of interest, I thought that it was expedient that I give a well considered ruling on the matter. Consequently, I reserved my reasons for overruling the objection to judgment day and I now proceed to give the said reasons.
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It seems to me that the objection, having regard to the seriousness with which it was urged, raises the question of the duties of counsel particularly the respective roles of prosecuting counsel and defence counsel at criminal trials. I, therefore, proposed to examine these rules. In this respect I recall that Lord Birkett, a great English advocate and one of the British judges at the trial of the major war criminals at Nuremberg at the end of the Second World War and who afterwards became one of Her Majesty’s Lord Justices of Appeal, gave a series of “Seven Sunday Talks” on the British Broadcasting Corporation home service programme in April and May 1961 and in the last of the series he dilated on the role of the advocate in court which was published entitled Six Great Advocates (Penguin Books 1702). He said at pp. 99-100:
“The function of the advocate is to present one side of the case with all the skill he possesses, so that the judge, or the judge and jury, can compare his presentation with that of the counsel on the other side and then decide after full investigation, where the truth lies. In a criminal case many people suppose that an advocate who is prosecuting . . . is trying to get the accused convicted at all costs. I speak with knowledge when I say that the duty of prosecuting counsel is to act as a minister of justice in the fullest sense. He must make sure that the evidence is relevant and admissible and is presented without bias. He must also make sure that the evidence in favour of the prisoner is before the court, and is given the same prominence and emphasis as the evidence tendered to show guilt. And he will never omit to tell the jury that the duty of the prosecution is to prove the case against the accused beyond all reasonable doubt.
And what is the duty of the advocate who shoulders the heavy burden of defending the prisoner… ? It is to devote himself completely to his task whatever he himself may think of the charges, and to lay aside every other duty, so that he may watch constantly in the interest of the accused, and say for him all that he would wish to say for himself, were he able to do so. The purpose of this procedure in English law is not that a guilty person shall escape, but to make certain, so far as human fallibility can do so, that no innocent person shall suffer.”
Also, Sir Hartley Shawcross, Chief Prosecutor for the United Kingdom at the said Nuremberg war crime trials and Attorney-General of Great Britain from 1945 to 1951, delivering the seventeenth Benjamin N. Cardozo lecture before the Association of the Bar of the City of New York on 28 May 1958 adverted to the role of the advocate “to assist justice,” published in the Nature and Functions of Law by Berman and Greiner (2nd ed.). He said as stated at p. 357:
“In our common law system the most we seek is objective truth within the limits of the admissible evidence. But the application of even objective justice requires technical skill in knowledge of the law, dialectical skill in its presentation and argument. The ordinary
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citizen often over-awed and tongue-tied by his unfamiliar surroundings must have a spokesman to argue for him. As Lord MacMillan put it in one of those charming essays of his, the lawyer is there to assist justice; ‘It is his business to present to the court all that his client would have said for himself had he possessed the requisite skill and knowledge’.”
And I remember Mr. Christmas Humphreys, Senior Prosecuting Counsel at the Old Bailey, in an address to the Inns of Court Student Union on 5 July 1955 reported in [1955] Crim.L.R. 739-748, spelling out the role of counsel in court. Of the distinction between the duties of prosecuting counsel and defence counsel he said at p. 746: “The Crown is interested injustice; the defence is obtaining an acquittal within the limits of lawful procedure and Bar etiquette.” And on the duty of counsel in cases of appeal he stated at pp. 747-748 as follows:
“At any appeal he acts as a lawyer only and is merely present to assist the Court of Criminal Appeal to exercise its powers in the interest of justice. With the result, as with the verdict at the trial he is enormously unconcerned. He has only one criterion of success in his own efforts — his own standards as a lawyer, advocate and minister of justice. He has only one concern; has he in that particular case achieved or fallen short of the standard of his own ideal? If these are satisfied he is reasonably content, for he will have acted in accordance with the highest traditions of his profession in the administration of English justice according to English law.”
As a Nigerian writer, Nwabueze succinctly put it in the Machinery of Justice in Nigeria (1963) at p. 267:
“The advocate thus guides his brother on the Bench of the law applicable to the dispute.” This duty to assist justice is well entrenched in the law and practice of our courts and it found expression in the views of Singleton and Parker L.JJ. as stated in the headnote in Beevies v. Dawson [1956] 3 W.L.R. 1016 at p. 1017, C.A.: “A member of the Bar is in court to assist in the administration of justice; he is there to help the judge and, when there is one, the jury to arrive at a proper result.”
In Rondel v. Worsley [1966] 3 All E.R. 657, C.A. the duties and responsibilities of an advocate, which I have sought to delineate herein were put in a characteristically memorable and imperishable language by that loveable doyen of the common law, Lord Denning M.R. At p. 665 he said this of the English barrister:
“As an advocate he is a minister of justice equally with the judge. He has a monopoly of audience in the higher courts. No-one save he can address the judge, unless it be a litigant in person. This carries with it a corresponding responsibility. A barrister cannot pick or choose his clients. He is bound to accept a brief for any man who comes before the courts. No matter how great a rascal the man may be. No matter how given to complaining. No matter how undeserving or unpopular his cause. The barrister must defend him to the [p.80] of [1975] 2 GLR 69 end. Provided only that he is paid a proper fee, or, in the case of a dock brief, a nominal fee. He must accept the brief and do all he honourably can on behalf of his client. I say ‘all he honourable can’, because his duty is not only to his client. I say ‘all he honourably can, because his duty is not only to his client. He has a duty to the court which is paramount. It is a mistake to suppose that he is the mouth-piece of his client to say what he wants: or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice. He must not consciously mistake the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support it. He must produce all the relevant authorities, even those that are against him. He must see that his client discloses, if ordered, the relevant documents, even those that are fatal to his case. He must disregard the most specific instructions of his client, if they conflict with his duty to the court. The code which requires a barrister to do all this is not a code of law. It is a code of honour. If he breaks it, he is offending against the rules of the profession and is subject to discipline.”
In my view this sums up to some extent the role of a lawyer in Ghana. I have adverted to these views of the judges and the speeches of these eminent members of the legal profession to show that there can hardly be any question of conflict of interest in the respective duties performed by counsel for the prosecution and the defence at criminal trials and criminal appeals. In my view they are both concerned as ministers of justice in the administration of criminal justice and in assisting to maintain the integrity of the judicial process. As the late lamented Professor Kwamina Bentsi-Enchill so ably put it in “The Lawyer’s Calling in Africa” (1971 & 1972), Nos. 1 & 2, Vols. 3 & 4, p. 8 of the Zambia Law Journal:
“the ethical code of his profession as well as the law governing it impose a dual role on the lawyer, namely client representation as well as guardian of society’s interests, particularly in the fair treatment of individuals, the discouragement of conduct inconsistent with the interests of society and the maintenance of the integrity of the judicial process.”
Although the defence may be primarily concerned, as Mr. Christmas Humphreys put it “with obtaining an acquittal within the limits of lawful procedure and bar etiquette,” if having regard to the legal position that ought to be the result, then prosecuting counsel must also desire the same and the opinion thus expressed by Mr. Christmas Humphreys above ought not to be taken in my view as showing any sharp divergence of duties. Indeed at p. 746 he said:
“Wherever English law obtains, the court will rely, and know that it can rely, on both sides in the right presentation of the law to the jury. Even defending counsel must reveal any case which he knows to derogate from his argument. How much more must the
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Crown, at all stages of the trial, reveal any law which helps the defence, and reveal, in my view, every fact of possible relevance which may appear as the trial proceeds.”
As far as the objection based on conflict of interest is concerned, I find that as a general rule, it can be stated that the roles of state attorney and defence counsel in criminal trials and criminal appeals do not involve a conflict of interest. Of course there may be exceptional situations in specific cases which may involve conflict. For example, if counsel while a private practitioner advised his client who had been accused of crime and following his appointment as a state attorney he handed the defence of the accused to another lawyer, then in these circumstances, if he were to prosecute the same case, there would obviously be conflict of interest having regard to his prior role. But apart from such factual situations, I think as a general proposition in the absence of special circumstances, the roles qua roles of prosecuting and defence counsel in criminal trials and appeals are not in conflict. To talk of conflict of interest is to misconceive these roles and therefore in my view counsel for the appellant ought not to be prevented from acting as advocate on the ground of conflict of interest. As Parke J. said in Collier v. Hicks (1831) 2 B. & Ad. 663 at p. 672:
“No person has a right to act as an advocate without the leave of the Court, which must of necessity have the power of regulating its own proceedings in all cases where they are not already regulated by ancient usage. In the Superior Courts, by ancient usage, persons of a particular class are allowed to practise as advocates, and they could not lawfully be prevented.”
And in the same case, Lord Tenterden C.J. dealing with the superior courts in England said at p. 668:
“The Superior Courts do not allow every person to interfere in their proceedings as an advocate but confine that privilege to gentlemen admitted to the Bar by the members of one of the Inns of Court.”
In this country quite apart from the English usage which we inherited when the Supreme Court was established in 1876, section 2 of the Legal Profession Act, 1960 (Act 32), provides, inter alia, that every person whose name is entered on the roll of lawyers, shall, subject to certain exceptions which are not relevant here be an officer of the court and be entitled to practise as a lawyer whether as a barrister or solicitor or both. By ancient usage as I have already indicated having regard to our colonial past, barristers have a right of audience in the superior courts of this country and unless there are compelling reasons founded on positive law or practice they could not be prevented from exercising their right.
The state attorney, however, sought to give some legal reasons why I should refuse defence counsel audience. Apart from the argument relating to conflict of interest which I hope I have disposed of, another argument which he put forward quite strongly is that Mr. Condua-Lutterodt is a
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civil servant and therefore he is disabled by virtue of the relevant provision of the Civil Service Act, 1960 (C.A. 5), from defending the appellant. The provision which he cited as authority for this proposition is section 26 (e) of the Civil Service Act, 1960 (C.A. 5). It is as follows:
“It is misconduct for a Civil Servant . . .
(e) to engage in any gainful occupation outside the Civil Service without the consent of the prescribed authority.”
It is noteworthy that according to this provision, engaging in a gainful employment as is conceded to be the case here is not an unlawful act. It is only misconduct for which disciplinary proceedings may, I apprehend, be taken. Furthermore it is clear that with the relevant consent of the prescribed authority the act of representing the appellant would be unexceptionable. This is a further indication that representing the appellant as such is not an unlawful act. It would seem therefore that Mr. Condua-Lutterodt can, aware of the probable disciplinary sanctions, engage in practice without the permission or consent of the prescribed authority and prepare himself to face any disciplinary consequences. In this respect I have considered the fact that he has written for permission and the reply to his request had been delayed. In the circumstance, it is my view that his civil service status cannot affect the legality of his representation and my findings therefore is that the said Civil Service Act, 1960 (C.A. 5), per se does not disable him from representing the appellant.
I think it must be appreciated that as a general proposition the position of a barrister in Ghana is not unlike that of an independent contractor. In the instant case, the brief of the appellant was first in point of time to be taken by Mr. Condua-Lutterodt before the government appointment. In my opinion the government is in the circumstance like any other employer or individual employing an independent contractor; consequently Mr. Condua-Lutterodt’s obligation to the appellant commenced from the date he was briefed to represent him in this appeal and in the nature of things it would continue until the conclusion of the appeal. This appeal therefore has prima facie priority over the government appointment as far as this court is concerned and in the absence of any statutory provision or any arrangement mutually arrived at between the appellant and Mr. Condua-Lutterodt to contain the appeal and the government appointment I will hesitate before I give priority to the government appointment merely because the employer in this case is the Republic of Ghana.
I think I have a duty to consider the inevitable and probable consequences of acceding to counsel’s request: if I refuse audience to Mr. Condua-Lutterodt who has had long association with the case I put the appellant to the additional expense of briefing another counsel who may moreover need further time to study the proceedings. This is a court of justice and in the circumstance I doubt whether I will be dispensing justice if I sustain the objection raised by counsel for the Republic. This case has been delayed long enough and in my view it is in the greater interest of justice to save the appellant further unnecessary costs. It is for
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these reasons that I overruled the objection and heard Mr. Condua-Lutterodt for the appellant. Now to the appeal itself. On behalf of the appellant, the first ground argued was the first ground filed, namely, “That the judgment was against the weight of the evidence.” In other words having regard to the probabilities, the case for the prosecution was more consistent with acquittal than conviction. This ground of appeal was fiercely deprecated by counsel for the Republic. This, his argument proceeds, is more like the ground in a civil appeal and he raised an objection to the propriety of arguing this ground in a criminal appeal. He drew my attention to the view of Azu Crabbe J.S.C. (as he then was) in Nyame v. The Republic [1971] 2 G.L.R. 140 at p. 143, C.A. where the learned judge had said of this ground of appeal, “this is not a proper ground to allege in a criminal appeal.” In Nyame v. The Republic, the appellant applied for an amendment which was accordingly allowed and the ground of appeal was altered to read as it was held it should read: “The verdict cannot be supported having regard to the evidence.” And the appeal in that case was then heard on this new ground. In this case, no application for amendment was made and although his attention was necessarily called by the state attorney in the course of argument to the alleged impropriety of arguing this ground, defence counsel nevertheless continued the argument in his reply.
I note, however, that in Nyame v. The Republic (supra) Azu Crabbe J.S.C. (as he then was), adopted the reasoning of Lord Tucker in the Privy Council in the case of Aladesuru v. R. [1956] A.C. 49, a Nigerian case, on the interpretation of section 10 of the West Africa Court of Appeal Ordinance, Cap. 229 (1948 Rev.) of the Laws of Nigeria and held that as the corresponding words of paragraph 13 of the Courts Decree, 1966 (N.L.C.D. 84), now repealed, the provision at that time grounding jurisdiction in the Court of Appeal are specific and gave, inter alia, right of appeal if the court thinks “That the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence . . ., “ any ground not in keeping with the expressed terms of this provision must be considered improper so that appealing on the ground that, “The verdict is against the weight of evidence” will be accordingly wrong. Viewed from this stand point and having regard to the ratio decidendi of the Aladesuru and Nyame cases it seems to me that this ground of appeal can only be considered improper in cases of appeals to the Court of Appeal since the enabling provision which at the relevant time was section 324 of the Criminal Procedure Code, 1960 (Act 30), now repealed spelling out grounds on which appeals can be lodged to the High Court from district courts was differently worded as follows:
“(1) A person convicted of any offence by . . . a District Court . . . may appeal to the High Court against the conviction or any sentence or order made thereon, on a question of fact, or on a question of mixed law and fact, if—
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(a) he has been ordered to pay a fine or costs or compensation of not less than five pounds; or
(b) he has been ordered to do or not to do some act other than the payment of money; or
(c) he has been sentenced to imprisonment.
(2) The prosecution or the defence may appeal on a question of law to the High Court against any conviction or order of . . . a District Court . . .”
The point which the appellant’s counsel argued before me was in effect that the judgment of the district court, namely, the conviction was against the weight of evidence. In other words and this is my understanding of the ground, having regard to the evidence adduced at the trial, the conviction was wrong. I am therefore called upon to examine the facts which the magistrate accepted and to decide whether those facts ought to be accepted or whether if accepted they can ground the conviction. This ground would seem therefore to involve mixed law and facts and would come under section 324 (1) (c) of Act 30.
In my view, therefore, having regard to the wording of paragraph 13 of N.L.C.D. 84, this might very well be a wrong ground in an appeal before the Court of Appeal. But taking into consideration the wording of section 324 (1) of the Criminal Procedure Code, 1960 (Act 30), this would not seem to be a wrong ground to urge at the High Court. I accordingly left Mr. Condua-Lutterodt to argue this ground and I did not feel obliged to insist on any amendment. The point which Mr. Condua-Lutterodt made when arguing this ground and indeed all the other grounds is that there is no direct evidence connecting the appellant with the alleged theft if indeed there was any theft. The whole evidence according to this argument is merely circumstantial and consequently insufficient in the circumstances to ground conviction. In this respect before I examine the cogency of the evidence founding conviction I must remark that circumstantial evidence, if it is the best evidence in the circumstance and points irresistibly to guilt, can on principle ground conviction. In R. v. Taylor (1928) 21 Cr.App.R. 20 at p. 21, C.C.A. where the question of circumstantial evidence was raised in the English Court of Criminal Appeal, Lord Hewart C.J. remarked as follows:
“It has been said that the evidence against the appellant is circumstantial, so it is, but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.”
Of course, I am aware of the danger of slavishly relying on circumstantial evidence. In fact Lord Normand reading the opinion of the Judicial Committee of the Privy Council in Teper v. R. [1952] A.C. 480 at p. 489 drew graphic attention to its dangers. He said:
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“Circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. Joseph commanded the steward of his house, ‘put my cup, the silver cup, in the sack’s mouth of the youngest,’ and when the cup was found there Benjamin’s brethren too hastily assumed that he must have stolen it. It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”
This view of Lord Norman offers us a guide as to how to appraise circumstantial evidence. If the facts found by the magistrate are narrowly examined, what emerges as the relevant circumstances pointing to guilt in this case? Are there any co-existing circumstances which destroy or strengthen the inference as to guilt? Is the inference of guilt irresistible? These are the questions I propose to examine.
The appellant was a train guard who took charge of the thread from Koforidua to Kumasi. That is not in dispute. He borrowed a post office bag from the officer-in-charge of the travelling post office after the train had left Koforidua and although he denies borrowing any such bag his denial is very interesting when the circumstances are meticulously examined. Thus in cross-examining the post office officer, his counsel suggested that the officer gave the bag to the appellant at Asuoya station, a station at which the train calls on its way to Kumasi before getting to Koforidua and it was therefore further suggested by counsel in a subtle way that this was done to enable the appellant to buy foodstuffs. The officer, however, rejected the suggestion and gave very clear evidence that he gave the bag after the Koforidua station and not before. In the circumstance, the subsequent denial of the appellant after this unsuccessful attempt through his counsel to obtain admission that the bag was given to him at the Asuoya station, does considerable damage to his credibility and undermines the defence he was attempting to set up, for as Reynolds J. said in the Eastern Nigeria case of Nwokorie v. Nwanolue (1960) 4 E.N.L.R. 31 at p. 32:
“There is…. a strong presumption that when a person, a lawyer, acts for another in an action he will not act otherwise than in accordance with his instructions.”
Now, 991/2 dozen and one ball out of 120 dozen balls of thread said to be lost were found in his house and the argument of his counsel which was pressed on me with great force is that the thread could not and had not been identified as that belonging to the complainant especially as some of the thread was of a different colour. I do not think this question of identity is crucial and must necessarily be resolved in favour of the appellant. It ought to be considered in the context of the totality of the evidence and alongside the explanation of the appellant as to how he came by the thread. In his statement to the police dated 25 March 1970 he indicated that he bought the thread in Kumasi from “women hawkers very common in town.” When, however, he came to give evidence on 13 August 1970 he indicated that he bought the bulk of the thread, namely, 70
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dozen balls from a Lagos man called “Papa Lagos” who he said had since left Ghana after the coming into force of the Ghanaian Business (Promotion) Act, 1970 (Act 334). These were purchases which, according to the defence were made from this Lagos man on 21 March 1970 and 24 March 1970 respectively. If this is true and this information had been given to the police on 25 March 1970 the date on which he and his sister made their statements, the Kumasi police could have easily checked this information. It seems to me that the magistrate was right in rejecting the defence regarding these purchases. Why, one may ask, did he not tell the police on 25 March 1970 only four days after the first purchase and one day after the last purchase that he bought thread from Papa Lagos, a man, but he rather sought to show that the sellers were women hawkers who because they were hawkers would obviously be difficult to trace.
The alleged purchases of 21 March and 24 March 1970 raised curious problems not favourable to the appellant. According to him his sister was present when on Saturday, 21 March 1970 the Lagos man, Papa Lagos , called with 80 dozen balls of the thread. He was only able to buy 36 dozen out of the lot and yet in his absence this same Lagos man called again on Monday and offered 36 dozen and the sister had to borrow money to buy this lot when on the Saturday previously in her presence he had made it clear that he could not afford to buy more than the 36 dozen which he bought on that Saturday. Furthermore that sister, Aba Mensuah, gave a statement to the police on 25 March 1970. This was a day after, according to her, she had bought this thread. It was a statement which she gave following the arrest of her brother the appellant for stealing that thread, 70 dozen balls of which she knew, if her evidence was to be believed, were bought from a Lagos man and yet nowhere in that statement of hers did she refer to the purchases from this Lagos man. According to the statement she made, she arrived on Saturday 21 March 1970 and she was given the thread already in the house to sell. It was while selling that thread that the complainant confronted her in the market. Her statement was tendered in evidence. In the light of this her subsequent evidence in August 1970 in support of her brother that she bought 34 dozen balls of thread on 24 March 1970 can hardly be accepted by any tribunal committed to do justice according to law. In view of the contradictory explanations as to the sources from which the appellant obtained the thread the point regarding actual identification which was pressed on me so very strongly by counsel for the defence loses its significance. That point however raises a question dealt with by Cockburn C.J. in R. v. Burton (1854) 6 Cox C.C. 293. The facts of that case adverted to in a footnote in the somewhat similar case of R. v. Mockford (1868) 11 Cox C.C. 16 at p. 18 are as follows:
“On the first floor of a warehouse a large quantity of pepper was kept in bulk. The prisoner was met coming out of the lower room of the warehouse where he had no business to be, having on him a quantity of pepper of the same kind as that in the room above. On [p.87] of [1975] 2 GLR 69 being stopped he threw down the pepper and said, ‘I hope you will not be hard on me.’ From the large quantity in the warehouse it could not be proved that any pepper had been taken from the bulk. It was objected that as there was no direct proof that any pepper had been stolen the judge was bound to direct an acquittal, but this Court held that without such direct proof of a loss there was evidence to warrant a conviction.”
It will be noted that the Burton case is in a certain respect weaker than the present case, for here there was evidence of loss of 120 dozen balls of thread whilst in the said Burton case there was no evidence of any loss whatsoever. The principle however is very clear and in the report of the said R. v. Burton in (1854) Dears. C.C. 282 at p. 284 in answer to a question by Ribton, counsel for the prisoner who had argued as Mr. Condua-Lutterodt had argued in this case that the corpus delicti meaning the property stolen must be proved in every case, Maule J. stated the principle as follows:
“The offence must be proved. If a man goes into the London Docks sober without means of getting drunk, and comes out of one of the cellars very drunk wherein are a million gallons of wine, I think that would be reasonable evidence that he had stolen some of the wine in that cellar though you could not prove that any wine was stolen or any wine was missed.”
A fortiori in this case where the appellant was actually given the thread to convey to Kumasi and thus had the opportunity to interfere with the cases and there was short delivery and a quantity of the type of thread was found with him and his explanation is demonstrably false, it seems to me the magistrate was right in rejecting his case and accepting the prosecution’s case. To call on the complainant to identify the thread bought new and contained in cartons in the manner suggested by counsel will create an impossible situation for the fair and proper administration of criminal justice. No charge of stealing can ever hold in court in any case where a person buys a quantity of items in a container and before he could open the container someone steals part. As Pollock C.B. said in Fryer v. Gathercole (1849) 3 Jur. 542 “There are many cases of identification where the law would be rendered ridiculous if positive certainty were required from witnesses.” It was argued further on the appellant’s behalf that at the close of the prosecution’s case the magistrate ought not to have called upon him to answer the charge and that the submission of his counsel at the trial that there was no case to answer, a submission which was rejected
by the magistrate, ought to have been upheld. The submission was based on counsel’s obvious view that the case put forward by the appellant ought to have been accepted in preference to the case put forward by the prosecution. The submission was adequately dealt with by the learned magistrate and it is pointless for me to canvass it at length. It is sufficient to point out as the magistrate rightly appreciated that a submission of no case at the close of the case for the prosecution can only succeed on grounds which are now legally well settled. In the case of
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the State v. Ali Kassena [1962] 1 G.L.R. 144 at p. 148, S.C. a similar submission was made to the then Supreme Court and Azu Crabbe J.S.C. (as he then was) adopted the practice direction to justices given by Parker C.J. at the sitting of the Queen’s Bench Division on 9 February 1962, reported in [1962] 1 All E.R. 448, D.C. as follows:
“Without attempting to lay down any principle of law, we think that as a matter of practice justices should be guided by the following considerations.
A submission that there is no case to answer may properly be made and upheld: (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.
Apart from these two situations a tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer.”
As I have already pointed out, the district magistrate adequately considered the submission of no case and was guided in this by the practice direction in the Kassena case. I find his conclusion unexceptionable. All the other grounds argued although differently worded were calculated to show that the decision of the district magistrate was unreasonable and cannot be supported having regard to the evidence, but by evidence defence counsel was referring not to the evidence led by the prosecution but the explanation of the appellant at the trial. As his explanation was in my view rightly rejected all the other grounds fail. In the result I dismiss the appeal and affirm the conviction.
There was also an appeal against sentence but no argument was urged on me in reduction of sentence obviously because the sentence had already been served. I note however that in sentencing the appellant to a term of six months’ imprisonment with hard labour, the district magistrate took account of the prevalence of pilfering in the railways and intentionally set out to impose a deterrent sentence. This is a well recognised approach to sentencing as is shown by the English case of R. v. Fell [1974] Crim.L.R. 673. In the circumstance I will also dismiss the appeal against sentence.
Appeals dismissed. The 991/2 dozen and one ball of thread to be returned to the complainant Adjoa Aniwaah.
DECISION
Appeal dismissed.
K. T.
