AFWIRENG v. THE REPUBLIC
HIGH COURT, ACCRA
Date: 2 FEBRUARY 1972
BEFORE: EDMUND BANNERMAN C.J.
NATURE OF PROCEEDINGS
APPEAL against a conviction for assault entered by a District Court, Accra. The facts are set out in the judgment of Edmund Bannerman C.J. sitting as an additional judge of the High Court.
COUNSEL
de Graft-Johnson for the appellant.
Avah for the respondent.
JUDGMENT OF EDMUND BANNERMAN C.J.
The appellant was charged with assault contrary to section 84 of the Criminal code, 1960 (Act 29), and was tried and convicted by a district magistrate, Accra, and sentenced to a fine of ¢50.00 or four months’ imprisonment with hard labour. A supplementary ground of appeal filed and argued before this court alleged that “the trial magistrate erred in law in holding that failure of the accused to file notice of alibi rendered it impossible for the court to believe him.” It is not necessary for me to go into the facts of the case in any detail. The complainant alleged in his evidence that the appellant picked up a piece of brick and threw it so that it hit his left eye, thus injuring him in that eye; the appellant denied that he did any such thing and said that, not only did he not know the complainant before seeing him in court, but that on the day he was alleged to have committed the assault, he the appellant, was not in the house as he “proceeded to Nsawam.” In commenting on the appellant’s evidence, the learned magistrate said: “The case for the defence was a denial. The accused would have this court believe that at the date and time the incident occurred he was at Nsawam. He made a statement which was silent on that fact. He never even filed a notice of alibi. Consequently his failure to do so renders it impossible for this court to believe him—”Section 131 (3) and (4) of the Criminal Procedure Code, 1960 (Act 30), which deal with the requirement to file notice of a defence of alibi state: [His lordship here stated the provisions as set out in the headnote and continued:]
Assuming that the defence of the appellant was one of alibi (as the learned magistrate found) the above section requires in such a case the trial magistrate to call upon an accused person to file a notice of alibi when such a defence is raised without notice of the particulars of such alibi having been previously given to the prosecution to adjourn the [p.272] of [1972] 1 GLR 270 case for such purposes, if necessary. It is only when the court has complied with this requirement and the accused has failed to furnish the details of his alibi as directed that any evidence of the alibi is shut out and excluded. Where the court has failed to comply with subsection (3) of section 131 by calling on the accused to give particulars of his alibi, there is no question of a refusal to furnish particulars, and subsection 4 of the said section will not apply. It will appear that the case will then proceed ordinarily, especially if the prosecution does not call the attention of the court to the requirement of the law and does not apply for particulars of the defence of alibi to be given (as in this case).
A mere denial of the commission of the offence and a statement that the accused was not even present but proceeded to Nsawam does not appear to me to be a defence of alibi simpliciter and the accused did not give any particulars in his evidence. Be that as it may, I do not agree that a failure to file notice of an alibi makes it impossible for a court to believe an accused person completely. It is still possible to disbelieve an alibi that a person was not present at a particular place during the commission of an offence while at the same time not believing that he was the person who committed the crime or having doubts as to his guilt. Rejection of evidence of alibi does not necessarily make the denial of the commission of a crime untrue, and such rejection does not in any way shift the burden of proof beyond reasonable doubt, which in a criminal trial rests on the prosecution throughout. It is not clear that the learned magistrate, by his ruling, gave adequate consideration to the whole facts of the case, including all aspects of the defence, to feel sure that the case of the prosecution did establish the guilt of the accused beyond reasonable doubt.
However unfortunate the expression used by the magistrate might have been, it indicates a serious
misdirection or wrong approach in the case and this, in my judgment, makes the conviction of the
appellant unsafe and unsupportable.
The appeal is therefore allowed, the conviction is hereby quashed and the sentence set aside and the
appellant is acquitted. It is ordered that the fine, if, paid, be refunded to the appellant forthwith.
DECISION
Appeal allowed.
