DIVISION: IN THE SUPREME COURT
DATE: 8TH NOVEMBER, 1963
BEFORE: CRABBE, MILLS-ODOI AND BLAY JJ.S.C.
CASES REFERRED TO
(1) Eronini v. R. (1953) 14 W.A.C.A. 366
(2) Commissioner of Police v. Bonsu (1957) 2 W.A.L.R. 334, C.A.
(3) Commissioner of Police v. Williams, W.A.C.A. Cyclostyled Judgments, May-July 1948
(4) R. v. Neal [1949] 2 K.B. 590; 65 T.L.R. 557; [1949] 2 All E.R. 438; 33 Cr.App.R. 189, C.C.A.
(5) R. v. Green [1950] 1 All E.R. 38; 34 Cr.App.R. 33, C.C.A.
(6) R. v. Bertrand (1867) L.R. 1 P.C. 520
(7) R. v. Lawrence (1909) 25 T.L.R. 374
NATURE OF PROCEEDINGS
APPEAL against a conviction of forgery and stealing entered by the Circuit Court, Ho. The facts are set
out in the judgment of the Supreme Court.
COUNSEL
Osei Bonsu (with him Kwaku) for the appellant.
D. F. Annan, Senior State Attorney, for the respondent.
JUDGMENT OF BLAY J.S.C.
Blay J. S.C. delivered the judgment of the court. The appellant in this case was arraigned before the Circuit Court, Ho, on 21 counts, eleven of which alleged forgery of documents, six of uttering forged documents and four of stealing. The particulars of the offence in respect of the forgery charges were that the appellant with intent to commit a crime, to wit, stealing, did forge “the signature of the secretary of the Regional Commissioner, Ho,” on the documents mentioned in the charges. The facts of the case
against the appellant may briefly be stated as follows: the appellant who was a clerical officer at the Regional Commissioner’s Office, Ho, [p.414] of [1963] 2 GLR 413
in the month of December 1961, proceeded to Accra armed with a document purporting to be a genuine
requisition for counterfoil receipt books and on the strength of the said document which was marked as
exhibit L during the trial, did obtain from the Accountant-General’s Department, two liquor licence books
marked in the case as exhibits C1 and C2. Having secured these liquor licence books he proceeded to
issue without authority licences to various persons and collected the licence fees thereon from them. The
fees thus collected, amounting in all to the sum of £G80, were not paid into the Government chest but
were misappropriated by the appellant.
The learned circuit judge after a lengthy hearing in which 22 witnesses were called by the prosecution,
found the appellant guilty on the forgery charges and sentenced him to a term of two years imprisonment
on each count to run concurrently. He, however, curiously enough acquitted him on the counts of uttering
forged documents, but convicted him on the counts of stealing in respect of which he imposed a sentence
of six months imprisonment on each count also to run concurrently, but cumulative with the sentence of
two years on the counts of forgery.
It is from these convictions that the appellant has appealed to this court on the following grounds:
“(1) That the verdict is unreasonable or cannot be supported having regard to the evidence.
(2) That the learned trial circuit judge by failing, neglecting or omitting to take the plea of the accused
person, when the charges were altered or amended, acted contrary to section 176 (2), (3), (5), (6) and
(7) of Act 30.
(3) That the learned circuit judge was wrong in convicting the appellant on the stealing counts which were based on the amended charges of forgery.” Learned counsel in arguing ground 2 of the grounds of appeal referred to page 20 of the record of appeal
where the following notes appear: “Prosecution applies to amend counts 1, 3, 6, 9, 12, 13 because there is variance between counts 16-20 charges and evidence in these counts and he applies to strike off the signature of secretary to the Regional
Commissioner, Ho. Under section 176 of Act 30 application granted and amended accordingly. Case to proceed.”
He contended that the charges having been amended under section 176 of the Criminal Procedure Code,
1960,1 the accused should have been called upon to plead to the amended charges as provided by
subsection (2) thereof. That the subsection is mandatory and the court having failed to comply with the
provisions thereof the conviction on the amended charges cannot stand. In support of his contention he
cited the case of Eronini v. R.,2 where the West African Court of Appeal allowed the appeal under similar
circumstances.
[p.415] of [1963] 2 GLR 413
He very properly also referred the court to the case of Commissioner of Police v. Bonsu,3 where the
Court of Appeal seemed, by an obiter, to indicate that where there had been a failure to observe the requirements of section 172 (1) of the Criminal Procedure Code,4 now section 176 (1) of the Criminal Procedure Code, 1960, the test applied by the court will be whether or not such defect could have resulted in a failure or miscarriage of justice, following the case of Commissioner of Police v. Williams.5 He however argued that the case of Commissioner of Police v. Williams (supra) is distinguishable from the
present case as in this case the charges were amended after eighteen prosecution witnesses had been
called and neither counsel nor the appellant was given the opportunity of objecting to or accepting the
amendments; that in any case the amendments were so material and substantial that they went to the very
root of the charges preferred against the accused; and that by striking off what the charges alleged the
accused had forged, namely, “the signature of the secretary to the Regional Commissioner, Ho,” it was
not certain what the accused was alleged to have forged. He therefore submitted that there had been a
gross miscarriage of justice and that the appeal should therefore be allowed.
In reply to the above submissions learned senior state attorney who appeared for the respondent, while
agreeing that there had been an infringement of the provisions of section 176 (1) of the Criminal
Procedure Code, 1960, argued that this was a mere irregularity which did not necessarily warrant
quashing of the conviction. He invited the court to look at the evidence in the case as a whole and
submitted that no miscarriage of justice had resulted from the irregularity. In support of his contention he
referred the court to the case of Commissioner of Police v. Bonsu (supra) and to the English case of R. v.
Neal.6 Now what constitutes a miscarriage of justice? There is a passage in the judgment of the case R. v. Neal
(supra) which appears to us to supply the answer. It is stated that7:
“Now there is no doubt that to deprive an accused person of the protection given by essential steps in
criminal procedure amounts to a miscarriage of justice and leaves the Court no option but to quash the
conviction.” The irregularity there complained of, was that after the jury had retired to consider their verdict and had
been given into the charge of the bailiff, they sent a message to the recorder asking if they might be
allowed to leave the court for the purpose of getting luncheon during the mid-day adjournment. The
recorder gave them permission to do so, and they afterwards returned and gave their verdict. It was held
that the irregularity was one which constituted a departure from established rules of criminal procedure
and rendered the trial abortive. The court there did not consider the merit or otherwise of the case against
the accused, even though it went
[p.416] of [1963] 2 GLR 413
on to say that if an irregularity in the course of a trial comes to the knowledge of counsel before the
verdict, it was the duty of counsel to bring the irregularity to the attention of the court at the earliest
possible moment. See also R. v. Green.8
In the above cases the irregularity complained of, was a departure from the normal procedure in criminal
proceedings. A fortiori, it seems to us that where the irregularity complained of relates to a breach of a
mandatory statutory provision, such as in this case, it is no excuse to say that the irregularity had
occasioned no substantial miscarriage of justice.
In the present case counsel for the appellant at the close of the case for the prosecution submitted that the
charges in respect of the forgery had been amended after eighteen witnesses had been called. He also
complained that no particulars of the alleged forgery had been given and the appellant did not therefore
know what constituted the forgery alleged against him. These submissions were overruled summarily by
the learned circuit judge who proceeded to convict on the forgery charges after the accused had given
evidence denying the charges. In our view the point raised in this appeal is fully met by the case of Eronini v. R.9 The case of Commissioner of Police v. Williams10 turned on a section of the Criminal
Procedure Code then in force which did not require the court to call on the accused to plead to the
amended charge as does section 176 of the Criminal Procedure Code, 1960, the equivalent of section 172
of the Criminal Procedure Code.11 It seems to us that the obiter in Commissioner of Police v. Bonsu12
which was based on the decision in Commissioner of Police v. Williams (supra) was given per incuriam.
In criminal matters, a person cannot waive what the law requires. See R. v. Bertrand13 and R. v.
Lawrence.14
In the circumstances it cannot be said that the amendment and the subsequent irregularity had not
occasioned a substantial miscarriage of justice. We have therefore no option but to allow the appeal in
respect of the charges of forgery and quash the conviction thereon.
As regards the appeal against the convictions on the charges of stealing we find no merit whatever in the
appeal. There is ample evidence on record to justify the view taken by the learned trial judge and we see
no reason to interfere with his decision. By the provision of section 123 (2) of the Criminal Code,
1960,15 it is not necessary to prove ownership in any crime of stealing.
DECISION
Appeal allowed in part.
K. T.
