HIGH COURT, TAMALE
Date: 30 JULY 1974
ATA-BEDU J
CASES REFERRED TO
(1) R. v. Turvey [1946] 2 All E.R. 60; [1946] W.N. 121; 96 L.J. 304; 175 L.T. 306; 110 J.P. 270; 62 T.L.R. 511; 90 S.J. 395; 44 L.G.R. 227; 31 Cr.App.R. 154, C.C.A.
(2) R. v. Oliver [1944] K.B. 68; [1943] 2 All E.R. 800; 113 L.J.K.B.119; 170 L.T. 110; 108 J.P. 30; 60 T.L.R. 82; 42 L.G.R. 37; 29 Cr.App.R. 137, C.C.A.
| (3) | R. v. Scott (1921) 86 J.P. 69. |
| (4) | R. v. Turner (1816) 5 M. & S. 206; 105 E.R. 1026. |
| (5) | Williams v. Russell (1933) 149 L.T. 190; 97 J.P. 128; 49 T.L.R. 315; 77 S.J. 198; 31 L.G.R. 182; 29 Cox C.C. 640, C.C.A. |
| (6) | R. v. Powell (1909) 3 Cr.App.R. 1, C.C.A. |
| (7) | R. v. Sbarra (1918) 87 L.J.K.B.1003; 119 L.T. 89; 82 J.P. 171; 34 T.L.R. 321; 26 Cox C.C. 305; 13 Cr.App.R. 118, C.C.A. |
| (8) | R. v. Holmes (1915) 11 Cr. App. R. 130. |
| (9) | R. v. Havard (1914) 11 Cr. App. R. 2. |
| (10) | R.v. Cohen and March (1951) 2 T.L.R.402. |
NATURE OF PROCEEDINGS
APPEAL against the judgment of the district court wherein S. and B. were convicted of stealing and dishonestly receiving respectively. The facts are fully set out in the judgment.
COUNSEL
Oppong for the first appellant.
Alhassan for the second appellant.
I. Y. Buamah, Assistant State Attorney, for the Republic.
JUDGMENT OF ATA-BEDU J
The two appellants were charged and tried jointly at the District Court Grade I, Tamale, for stealing 30 bags of paddy rice valued at 0240.00 the property of the Ministry of Agriculture, Savelugu. On 10 March 1972, the first appellant, (the second accused) was convicted on the charge and sentenced to a term of twelve months’ imprisonment with hard
[p.294] of [1974] 2 GLR 291
labour while the second appellant (the first accused) was convicted of receiving in accordance with section 156 of the Criminal Procedure Code, 1960 (Act 30), and sentenced to a term of nine months’ imprisonment with hard labour.
Against these convictions the appeals have been brought on the following grounds: In the case of the first appellant the original ground of appeal was that the judgment is against the weight of evidence having regard to all the circumstances. The further ground is that the conviction is wrong in law as the appellant ought not to have been called upon at the close of the prosecution’s case. In the case of the second appellant the original grounds of appeal are: “(1) The appellant ought not to have been called upon after the close of the prosecution’s case. (2) The judgment cannot be supported by the evidence on record.”
Since the state of mind of the second appellant at the time of the receipt of the property alleged to have been stolen is the pivot around which arguments in receiving cases invariably revolve, I think it convenient to deal first with the appeal of the first appellant in whose case the alleged act of dishonesty was found by the learned magistrate to constitute the offence of stealing.
The case for the prosecution is that on 9 September 1970, the first appellant who, at the material time, was the store assistant to the mechanical supervisor in charge of the agricultural mechanisation, Savelugu (the second prosecution witness) loaded a Bedford vehicle belonging to the Ministry driven by the third prosecution witness with 30 bags of rice. On the following day, 26 out of the 30 bags of rice were found in the room of the second appellant who on confrontation later explained that he bought the 30 bags of rice in good faith from the first appellant and paid 0210.00 for them.
There is evidence that the first appellant was generally in charge of spare parts, oil and fuel stores at Savelugu and issued these items out of these stores to the workshop on the instructions of the workshop supervisor (the second prosecution witness). The evidence of the fourth prosecution witness, the then senior executive officer in charge of the administration in the Regional Crop Production Office and also of the administration of the Regional Agricultural Office and who was the marketing officer to the Tamale Rice Mill Committee, is that in 1969—70 when the Tamale Rice Mill Committee was in charge of purchase of paddy rice, Savelugu was made a rice buying station. He put the first appellant in charge of the buying of the rice at Savelugu. The first appellant’s duty was to weigh the rice and come to the fourth prosecution witness in Tamale to tell him the name of the farmer for payment. The bags of rice were stored in a big shed belonging to the Savelugu Local Council because there was no space at the Tamale Rice Mill. In early 1970 about 2,000 bags of rice had been bought at Savelugu and at some time in that period the first appellant went and reported to the fourth prosecution witness in Tamale that a strong wind had ripped off the roof of one of the two stores. The first appellant was given instructions to start carting the bags of rice in that store to Tamale. He was issued with an official
[p.295] of [1974] 2 GLR 291
receipt each time rice was dispatched from the store to Tamale. According to the fourth prosecution witness when there was need for rice he went to Savelugu to give an order to the first appellant; the driver who carted the rice was given receipts for the quantity of rice received in Tamale. According to the fourth prosecution witness he sent a note to the first appellant to despatch rice to Tamale only on one occasion. From Savelugu the bags of rice were sent to the Tamale Rice Mill for milling and not to any other place.
The evidence of the watchman at the Ministry of Agriculture, Savelugu (the first prosecution witness) on the record is that on 9 September 1970, he saw Amoako (the third prosecution witness) the driver of the Ministry, drive a Bedford lorry to the yard with the first appellant who told him (the first prosecution witness) that one Mr. Adu Amantem had asked them to come to remove 30 bags of rice and send them to the rice mill in Tamale. They loaded the vehicle with the 30 bags of rice and the driver left unaccompanied by the first appellant. The second prosecution witness at that time was not in the office but the first prosecution witness reported this to him when he came to the office. The second prosecution witness asked for the note from the first appellant who in answer to a question by the second prosecution witness as to whether he (the first appellant) was sure the note came from the fourth prosecution witness, said he was not sure of the writing and the signature on the note. According to the second prosecution witness, Mr. Adu Amantem (the fourth prosecution witness) was in charge of the rice but the first prosecution witness and the first appellant took care of them while the fourth prosecution witness was in Tamale. He minuted on the note and sent the first prosecution witness to give it to the fourth prosecution witness. The fact that the bags of rice were removed from the store either by the fourth prosecution witness or by a note issued by him to the first appellant is confirmed by the second prosecution witness. The evidence as to the circumstances under which the 30 bags of rice got into the house of the second appellant is given by the third prosecution witness. According to him, the first appellant went with the second appellant to him at Nyankpala where he was stationed and told him that the second appellant had bought rice from their department and that Mr. Adu Amantem had asked him to go and collect the rice. Although the third prosecution witness told the first appellant that he was repairing his vehicle to travel to Yendi on the following day, the first appellant prevailed on him to go and collect the rice for the second appellant after the repairs. The first appellant is alleged by the third prosecution witness to have told him that he would give a note to the second appellant to be given to the third prosecution witness for the collection of the rice. The first and the second appellants directed the third prosecution witness as to where he could get the second appellant at Aboabo in Tamale. On the following day the third prosecution witness was filling his vehicle with petrol in Tamale for Yendi when he was seen and queried by the second appellant why he had not gone to Savelugu for the rice. The third prosecution witness was reluctant but after the second appellant had pleaded with him, he agreed to go to Savelugu first. He arrived at Savelugu with the
[p.296] of [1974] 2 GLR 291
second appellant who alighted and left the third prosecution witness who proceeded at break time to the store but did not see the first appellant there. The second appellant directed and went with the third prosecution witness to a house where they found the first appellant and there the second appellant gave the third prosecution witness the note authorising the removal of the rice and asked permission to go and see somebody in the town and left. The second appellant is alleged to have provided about four labourers to go and load the third prosecution witness’s vehicle. After the loading of 30 bags of rice, the first appellant gave a small note to the third prosecution witness to be given to the second appellant who did not accompany the third prosecution witness to the store. On his way to Tamale, the third prosecution witness saw the second appellant whom he picked up and drove to the house of the second appellant where the 30, bags of rice were unloaded from the vehicle. According to the third prosecution witness, he did not deliver the small note to the second appellant because he was in a hurry. The third prosecution witness said he used to go to Savelugu on business on several occasions but his first time of conveying rice from there was on that material day. He was later taken to the place where he took the rice and there 26 out of the 30 bags of rice were found. He did not claim to know the system or the procedure for the removal of rice from Savelugu and whether bags of rice when taken from Savelugu were sent to Nyankpala, or the rice mill in Tamale or to anybody’s house he did not know.
The report to the police for inquiries was made by the fourth prosecution witness after the note in question had been referred to him by the second prosecution witness through the first prosecution witness for confirmation. The fourth prosecution witness denied knowledge of the note and said he did not know who wrote it. According to the fourth prosecution witness, nobody except him could authorise the first appellant to allow rice to be taken from the Savelugu store. He brought the first appellant from Savelugu to Tamale and questioned him but the first appellant denied knowledge of the note (exhibit B). He went with the first appellant and the police to the house of the second appellant where 26 out of the 30 bags of rice belonging to the Tamale Rice Mill Committee were found. When asked about the rice, the second appellant said he bought it from the first appellant. According to the fourth prosecution witness,, what the first appellant had to say at that juncture was that the third prosecution witness brought a note to him purporting to have come from him (the fourth prosecution witness) and so he delivered the rice and denied knowing anything about the rice found there. In the presence of the appellants the third prosecution witness in answer to him (the fourth prosecution witness) as to how he went to Savelugu without passing through his office, said the second appellant gave him the note (exhibit B) to be taken to Savelugu to bring the rice. From the house of the second appellant, the third prosecution witness and the first and second appellants were taken to the police station together with the 26 bags of rice. Due to lack of storage facility, the fourth prosecution witness was permitted to take possession of the rice; it was taken to the Bolgatanga Rice Mill on
[p.297] of [1974] 2 GLR 291
the following day. Under cross-examination, the fourth prosecution witness said that the first signature on exhibit B was not his signature.
Of the two grounds of appeal filed, the only one argued by learned counsel for the first appellant is ground (1) which is that “the appellant ought not to have been called upon after the close of the prosecution’s case.” In arguing this ground learned counsel adopted the statement of the law as submitted by learned counsel for the second appellant which is indicated in section 173 of the Criminal Procedure Code, 1960 (Act 30), in the following terms:
“If at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require him to make a defence, the Court shall, as to that particular charge, acquit him.”
The submission on behalf of the first appellant is that the essential element of dishonest appropriation had not been proved at the close of the case for the prosecution. Learned counsel quite frankly conceded that there was ample evidence of the fact that there was some quantity of rice at Savelugu belonging to the Ministry of Agriculture; that the rice was under the immediate care of the first appellant and that at the material time the first appellant did allow the 30 bags of rice to be taken away. But the questions posed by learned counsel in this appeal are: (1) whether the first appellant’s act of allowing the 30 bags of rice to be taken away amounted to dishonest appropriation and (2) whether there was any evidence of dishonest appropriation.
There is no doubt that the crucial ingredient or element in a charge of stealing is dishonest appropriation. An appropriation is dishonest, under section 120 (1) of the Criminal Code, 1960 (Act 29):
if it is made with an intent to defraud or if it is made by a person without claim of right, and with a knowledge or belief that the appropriation is without the consent of some person for whom he is trustee or who is the owner of the thing, as the case may be, or that the appropriation would, if known to any such person, be without his consent.”
The substance of the above provision is that a thing is not stolen unless taken without the consent of the owner or of his duly authorised agent: see R. v. Turvey [1946] 2 All E.R. 60, C.C.A. The ruling of the learned magistrate on this submission of “no case” was as brief as this: “It is my opinion that a prima facie case has been made against each of the accused persons. They are therefore called upon to make their defence.” On perusal of the record of the proceedings, I cannot say that the learned magistrate was wrong in rejecting the submission made on behalf of the first appellant. I think at the close of the prosecution’s case there was a complete case when evidence had clearly established that the first appellant got 30 bags of rice loaded on the third prosecution witness’s vehicle and taken away from the store at Savelugu to the second appellant in Tamale under an earlier private offer of sale to the second appellant. Although the
[p.298] of [1974] 2 GLR 291
first appellant jointly with the watchman (the first prosecution witness) took care of the stock of rice at Savelugu while Mr. Adu Amantem (the fourth prosecution witness) was away in Tamale, there was evidence that they could release rice from the store only on the authorisation, either personal or written, of the fourth prosecution witness. There was evidence that on the material day the 30 bags of rice were taken away without any written authorisation from the fourth prosecution witness.
What learned counsel for the first appellant was relying on is the note (exhibit B) alleged by the first appellant to have been issued by the fourth prosecution witness. His submission was that at the close of the prosecution’s case the fact that the note (exhibit B) was not issued by the fourth prosecution witness had not been established. But, in reply, learned assistant state attorney said that the denial by the fourth prosecution witness that he was the author of the note was complete proof that this note did not emanate from him. He said the prosecution went further to prove the handwriting by expert witness but the report was rejected.
Another point taken in respect of the same note was that since the genuineness or otherwise of it was the crux of the case for the prosecution its falsity should have been proved. I think, on this point, I do not fall in with learned counsel because the genuineness of the note was part of the case for the first appellant; he relied on it for his defence and, therefore, on the principle that he who asserts the affirmative has the burden of proving it, he had to prove it and not the prosecution. The further submission that if the first appellant said that the note was in the fourth prosecution witness’s handwriting then it was not enough for him (the fourth prosecution witness) to deny is not very persuasive. If the first appellant said so, there is evidence to show that he knew and could tell the court more about it and get off safely by proving the facts of the authorisation.
The law, in cases where knowledge of a fact in issue is peculiarly within the knowledge of the accused, is that the negative is not to be proved by the prosecution, but on the contrary, the affirmative must be proved by the accused as a matter of defence. In the present case the procedure or the system was that no rice could be removed and taken away from the store at Savelugu without the oral or written authority of the fourth prosecution witness. There is evidence that the first appellant reported to the third prosecution witness in the presence of the second appellant at Nyankpala and to the first prosecution witness at the store at Savelugu that it was the fourth prosecution witness who had authorised the removal of the 30 bags of rice from the store. According to the third prosecution witness, the first appellant told him at Nyankpala that he would give the note to the second appellant. The second appellant later gave the note to him in the presence of the first appellant at Savelugu authorising the conveyance of the rice. If the first appellant said he had exhibit B as the written authority from the fourth prosecution witness then the burden of proving this, in the light of the above principle of law, lay on him and it was not for the prosecution to prove the negative. The above principle of law is demonstrated in the case of R. v. Oliver (1944) 29 Cr.App.R. 137, C.C.A.
[p.299] of [1974] 2 GLR 291
in which R. v. Scott (1921) 86 J.P. 69 was applied and R. v. Turner (1816) 5 M. & S. 206 was also approved.
In the case of Oliver where the appellant was charged with the offence of supplying sugar without licence granted by the Ministry of Food the point taken on behalf of the appellant was that the prosecution had not discharged the onus of proof, which rested on them, to show that the appellant had no licence to supply sugar. The opinion of the court expressed at p. 146 was that “the prosecution was under no necessity of giving prima facie evidence of the non-existence of a licence.”
In the case of Scott where the defendant was charged with selling cocaine without a licence and did not have a licence, it was held that the onus of proving the fact of the possession of a licence or authority was on the defendant as it was a fact which was peculiarly within his own knowledge. In Turner’s case, Bayley J. had this to say at p.211:
“I have always understood it to be a general rule, that if a negative averment be made by one party, which is peculiarly within the knowledge of the other, the party within whose knowledge it lies, and who asserts the affirmative is to prove it, and not he who avers the negative.”
Also, in the case of Williams v. Russell (1933) 149 L.T. 190 at p. 191, C.C.A. Talbot J. also relying on the principle in Turner’s case said: ‘Where it is an offence to do an act without lawful authority, the person who sets up lawful authority must prove it, and the prosecution need not prove the absence of lawful authority.” Upon these authorities, I think the contention must fail.
Contending also that the note (exhibit B) if regarded as false, was not enough to show dishonest intent on the part of the first appellant, learned counsel submitted that before any such inference is drawn it must be established that the first appellant knew or ought to have known that the note was false. I am not impressed by this contention. A document is false if it purports to be made by or on behalf or on account of a person who did not make it or authorise its making. If the note is regarded as false, and in the opinion of the learned magistrate it was, then the self-evident inference is that the appropriation of the 30 bags of rice was without the consent of the fourth prosecution witness and therefore was dishonest in the light of the provisions of section 120 (1) of Act 29. There is undisplaced evidence that the note was given to the second appellant by the first appellant to be given to the third prosecution witness who at Savelugu gave it back to the first appellant for the conveyance of the rice. This establishes the fact that the first appellant knew that it was false. However, as I have said, with the support of the authorities referred to earlier, the burden of proving the genuineness of the note rested on the first appellant and not on the prosecution. I am not in any doubt, therefore, that the learned magistrate was right in his finding that there was a case to answer at the close of the case for the prosecution. The ground of appeal on this point, therefore, falls to the ground.
[p.300] of [1974] 2 GLR 291
The evidence of the first appellant was a complete denial. Both in his statement to the police and in his evidence, it appears quite manifest that his absolute denial of his meeting the second appellant any where after leaving school together and his denial of his going with him to Nyankpala to ask the third prosecution witness to convey the 30 bags of rice to the second appellant must have been a surprise to the trial court as it is to this court also. He exculpated himself and created the impression that he did not know what went on before the loading at the store. This type of defence does not commend itself to any reasonable tribunal as being true or, short of being true, as to the probability of its being true. In my judgment, I think there was ample convincing evidence to justify the conviction of the first appellant of stealing the 30 bags of rice belonging to the Ministry of Agriculture.
As regards the second appellant, it has been contended on his behalf that at the close of the case for the prosecution the element of dishonest appropriation as required by section 125 of Act 29 had not been proved. The argument is that the second appellant was not mentioned by the first prosecution witness and the second prosecution witness in their evidence but that it was the third prosecution witness who did mention him and his evidence did not disclose dishonest appropriation. If I may draw the attention of learned counsel for the second appellant to the fact that the issues on a charge of stealing which had to be considered were different from the issues on a charge of receiving property knowing it to have been stolen. If, therefore in this case, at the close of the prosecution’s case the learned magistrate, finding at that stage that the evidence could not justify the conviction for stealing but that the facts disclosed that the 30 bags of rice were delivered to and received by the second appellant instead of their delivery to the Tamale Rice Mills as directed in the note, exhibit B, and that 26 bags out of the lot were found in his possession, was of the opinion that he had a case to answer and must have the opportunity of being heard; he could do so when he was called upon. As Lord Alverstone C.J. said in R. v. Powell (1909) 3 Cr.App.R. 1 at p. 2, C.C.A.: “The possession of recently stolen property throws on the possessor the onus of showing that he got it honestly.” All that the second appellant can do, in the circumstances is to say where he got them and if his explanation is consistent with innocence and is not proved to be untrue, he is entitled to acquittal.
After hearing the evidence in explanation given by the second appellant the learned magistrate acted under section 156 of the Criminal Procedure Code, 1960 (Act 301), and convicted him of dishonestly receiving the 30 bags of rice proved to have been stolen by the first appellant. Section 156 of Act 30 provides as follows:
“When a person is charged with stealing anything and it is proved that he received the thing knowing the same to have been stolen, he may be convicted of receiving, although he was not charged with that offence.”
The first ground of appeal therefore must fail.
[p.301] of [1974] 2 GLR 291
The question before this court in this appeal is whether there was any justification for the conviction of the second appellant of dishonesty receiving the 30 bags of rice stolen. The definition of dishonest receiving as contained in section 147 (1) of Act 29 is as follows:
“A person is guilty of dishonestly receiving any property which he knows to have been obtained or appropriated by any crime, if he receives, buys, or in any manner assists in the disposal of such property otherwise than with a purpose to restore it to the owner.”
What is indispensable to proof of the charge of dishonestly receiving in these provisions is the knowledge at the time of receipt of the thing that it was stolen. In determining whether there was justification for the conviction of receiving, the record must show evidence from which the learned magistrate was satisfied beyond reasonable doubt that the second appellant received the 30 bags of rice knowing them to have been stolen or that the circumstances under which he received them were such that he knew or ought to have known that they were or must have been stolen.
On the second ground of appeal alleging that the judgment cannot be supported by the evidence on the record, if I understand learned counsel quite properly, his contention seemed to be that the findings and the conclusions of the learned magistrate based on the impressions and inconsistencies were wrong. What the learned assistant state attorney had to say, in reply, was that if the court found that these were wrong the court could find that there was sufficient evidence on the record to support the conviction.
The law is that where stolen goods have been found in possession of an accused person the inference of guilty knowledge is warranted by his possession together with the absence of an explanation of that possession. If any explanation is given, it may be incredible or it may be consistent with innocence or it may raise sufficient doubt to entitle the accused to an acquittal. Reliance may also be placed on the circumstances of the receipt or the accused’s possession. In the case of R. v. Sbarra (1918) 13 Cr.App.R. 118 at p. 120, C.C.A. Darling J. had this to say: “The circumstances in which a defendant receives goods may of themselves prove that the goods were stolen, and further may prove that he knew it at the time when he received them.”
I shall first deal with the explanations given by the second appellant, the first appellant and the third prosecution witness when the 26 bags of rice were found in the house of the second appellant. According to the fourth prosecution witness, the second appellant said he bought the rice from the first appellant; the first appellant said the third prosecution witness brought a note to him purporting to have come from the fourth prosecution witness and so he delivered them and therefore did not know anything about the rice. According to the fourth prosecution witness, the third prosecution witness told him that the second appellant gave him the note to be taken to Savelugu to bring the rice to the rice mill. This explanation alleged to have been given by the third prosecution witness tends to show that the second appellant knew the 30 bags of rice
[p.302] of [1974] 2 GLR 291
were intended for the rice mill and yet received them. But it is significant to observe that nowhere in his evidence did the third prosecution witness say that the second appellant gave him the note to bring the rice to the rice mill, nor was it suggested to him that he gave that explanation. Throughout his evidence the third prosecution witness made it clear that the first appellant promised to give a note to the second appellant for the conveyance of the rice and that the second appellant gave the note exhibit B to him in the presence of the first appellant at Savelugu. It therefore cannot be true that the third prosecution witness said at any time anywhere that the second appellant gave him the note to take to Savelugu and bring the rice to the rice mill so as to justify the inference that the second appellant knew the 30 bags of rice which were intended for the rice mill had been diverted to him and therefore knew or ought to have known that they had been stolen when he received them.
As I have said earlier the most essential element of the offence of receiving is knowledge at the time of receipt of the goods that they were stolen or unlawfully obtained. Knowledge acquired subsequent to the time of the receipt would not warrant conviction. In the present case it is the direct evidence proving the delivery to and the receipt of the 30 bags of rice by the second appellant which must be examined to find out whether or not the circumstances surrounding such delivery and receipt show that the second appellant knew or ought to have known that they were stolen.
The learned trial magistrate quite rightly found that the first appellant told the second appellant that he had 30 bags of rice for sale and so removed them without authority and sent them to the second appellant. It is therefore clear that the second appellant received them as goods sold and delivered in pursuance of a prior agreement of sale not wrapped in any shroud of secrecy but made known to the third prosecution witness, a driver of the Ministry. The offer was made by the first appellant and was accepted by the second appellant and it is immaterial whether acceptance was on behalf of himself or his brother. The delivery was in fact made openly in the broad daylight and not surreptitiously or under cover of the night. The evidence of the third prosecution witness negatived the evidence of the first appellant denying knowledge of the sale.
Circumstantially the price of 0210.00, to my mind, cannot be deemed to be very much under value. The explanation of the second appellant who is himself a rice farmer and a vendor is that he used to sell his rice at either 07.00 or 08.00 a bag. This lower price paid for the 30 bags of rice cannot be a substantial and conclusive basis for any inference of guilty knowledge: R. v. Holmes (1915) 11 Cr.App.R. 130 at p. 133.
The learned magistrate based his conviction of the second appellant upon the following circumstances: (a) the second appellant’s presence at Savelugu and his return to Tamale on the vehicle driven by the third prosecution witness the explanation for which given by the second appellant was not satisfactorily disposed of as untrue; (b) the negligence or even the recklessness in not realising that the 30 bags of rice were stolen from the Ministry’s store. This on the authority of R. v. Havard (1914) 11 Cr.App.R. 2, will not create guilt; and (c) the fact that the
[p.303] of [1974] 2 GLR 291
second appellant and or his witnesses had told an untruth in connection with the transaction. This also, on the authority of R. v. Cohen and March (1951) 2 T.L.R. 402, was not evidence of guilty knowledge; (d) differences or inconsistencies as to the time of arrival at and departure from Savelugu of the third prosecution witness and arrival at Tamale with the load of the 30 bags of rice were immaterial because the time does not form part of the offence.
For the foregoing reasons, it is my considered opinion that the circumstances in which the second appellant received the 30 bags of rice were not in themselves sufficient to prove that he knew they were stolen at the time when he received them. I think, therefore, that the second appellant was wrongly convicted. The appeal of the second appellant is allowed. The conviction and with it the sentence imposed is quashed and the second appellant is accordingly acquitted and discharged. The 26 bags of rice found must be returned to the Ministry of Agriculture.
The appeal of the first appellant is dismissed.
DECISION
Appeal of first appellant dismissed.
Appeal of second appellant allowed.
S. E. K.
