Division: IN THE SUPREME COURT
Date: 18 DECEMBER 1964
Before: MILLS-ODOI, ACOLATSE AND SIRIBOE JJ.S.C.
JUDGMENT OF MILLS-ODOI J.S.C.
Mills Odoi J.S.C. delivered the judgment of the court. The appellants were convicted by Apaloo J. (as he then was), sitting with assessors at the Criminal Session of the High Court at Kumasi on 12 December 1963, for the offences of conspiracy to steal and stealing various provisions, particulars of which were given in counts two and three of the indictment.
The events leading to the charges occurred at about 2.20 p.m. on 13 March 1963 when a Mr. Gimmi, Manager of Néstles Products (Ghana) Ltd., received through the post, a forged delivery order No. K.0606 dated 28 February 1963, purporting to have been signed by him. It authorised the delivery of large quantities of provisions (valued at £G2,537) to Messrs. Ebony and Company of Tamale, which was later discovered to be a non-existent company. The case put forward by the prosecution which resulted in the convictions of the appellants is as follows: The first appellant was, until the date of his arrest, the wholesale keeper of a company (hereinafter referred to as “Umarco”) which acts as agents for Néstles Products (Ghana) Ltd. (hereinafter shortly referred to as Néstles) for the purpose of distributing the latter’s goods, including such goods as Milkmaid condensed milk, Milo and Néscafe. Although employed by Umarco, the first appellant in fact worked for Néstles whose headquarters are in Accra, and his duty
was to deliver to customers such of the company’s goods as were authorised by a delivery order or an invoice signed either by the general manager or his assistant. At the sight of the delivery order or invoice he was to deliver to the customer named in it the goods therein described. He had no authority to sell for cash any of the goods in the wholesale. The second appellant was a copy typist employed by Néstles. He was, up to the date of his arrest, attached to the invoice section at the headquarters in Accra and knew the system of preparing invoices or delivery orders.
On 13 March 1963, when Mr. Gimmi received the forged delivery order, as stated above, he started to look for the duplicate copy which, in the normal course of business, would have been kept in the accounts office of the company. He then discovered that the whole invoice book serially numbered K.0601 K.0650 had disappeared. He therefore telephoned a Mrs. Kannegieter, the Kumasi manageress of Umarco, and asked her to instruct the first appellant not to deliver any more goods on delivery orders K.0601-K.0650. On 14 March, the assistant manager of Néstles travelled to Kumasi to look into the matter. He then discovered that similar goods amounting to £G800 were alleged to have been delivered to that non-existent company at Tamale on the strength of delivery order K.0603 dated 3 March 1963. The goods stated in the order were in fact delivered on 13 March 1963 and that order was also forged. The goods delivered on the strength of delivery order No. K.0606 were those alleged in count two as having been stolen and those delivered on the strength of order No. K.0603 were the subject-matter of count three.
When the case came on for hearing before the High Court, Kumasi, four traders gave evidence that they purchased merchandise from the first appellant and paid him cash for some of the goods, the subject-matter of the charges in counts two and three. The first trader, one Atta Owusu Afriyie, said inter alia that in March 1963, the first appellant delivered at his provision store in Kumasi 30 cartons of Néscafe and 15 cartons of Milo which he later sold for £G250. He said that he paid the whole of the amount to the first appellant in the presence of his store assistant in about the middle of March 1963. The second trader, one Amusa Adeyemi Adaade, whose evidence was corroborated, was to the effect that on 13 March 1963 he bought from the first appellant 60 cases of Milkmaid condensed milk and paid him the sum of £G208 together with an obligation to pay an outstanding debt of £G7. The third trader, one Emmanuel Ola Oyemo, who had been trading with the first appellant as far back as 1958, said on oath that in the first week of March 1963, he bought 65 cases of condensed milk and 20 cases of Milo from the first appellant and that he paid him the sum of £G408 in his store at the central market in the presence of one Solomon Dokun. The evidence of the fourth trader, one Safaratu Ayinke, also shows that on 3 March 1963 she bought from the first appellant 70 cases of condensed milk and paid to him the sum of £G234 10s. A large quantity of these goods were recovered by the police from these traders when the case was under investigation.
The evidence of the thirteenth prosecution witness shows that during the second week in February 1963 the second appellant hired his cab, bearing registration No. ER 1148, from Accra to Kumasi and back again at an agreed fare of £G12. In Kumasi, on the direction of the second appellant, he drove to the first appellant’s store at Umarco at about twelve noon. The first appellant on seeing the second appellant in the taxi, closed his store, boarded the taxi and they all drove to the first appellant’s house. At first all three sat together in the first appellant’s hall, then the first and second appellants repaired to the first appellant’s chamber and conferred for about thirty minutes. When it was getting on to 2 p.m. the first appellant told them he was going to work and they therefore parted company, the other two returning to Accra. Four days later the second appellant once again hired this taxi cab for a trip to Kumasi to see the first appellant.
When they arrived in Kumasi the taxi cab developed engine trouble. The second appellant therefore left the driver alone to carry out the repairs but instructed him to call on the first appellant, which he did. The first appellant then hired the taxi for eight days to perform various services in Kumasi. On the seventh day of the hire the driver was instructed by the first appellant to accompany the driver of a truck in discharging cases of Milo, coffee and Milkmaid milk in front of the central market in Kumasi. The truck was loaded with the goods at the wholesale at the request of the first appellant and they were conveyed to the market on his direction. They were the goods which were bought by the four traders.
The first appellant denied making these sales and described as false the evidence of the various traders that he sold goods to them and that they paid him cash for the goods. He explained both in his cautioned statement to the police, and in his evidence at the trial, that on 4 March 1963 he received invoice No. K.0606 for Ebony and Company, Tamale, and on the strength of the invoice he supplied some of the goods therein stated to the representative of that company, a Mr. E. R. Mahama.
On 7 March 1963, he received another invoice for the self-same company and supplied the goods to the representative of the company who called at the wholesale on 13 March 1963. His defence was that he acted in the ordinary course of business and in good faith in supplying the goods on the strength of the invoices to the persons who claimed to be representatives of Messrs. Ebony and Company; that he had no reason to doubt or even to suspect that that company was not existing; and that he had not known that the invoices were forged documents, because they both had on them the initials of the manageress of Umarco in Kumasi, Mrs. Kannegieter. The charge of conspiracy was also denied by him. When the second appellant was arrested on 23 March 1963 he made a statement, in which he said one Krah consulted him about an invoice in mid-February 1963 but he told him he could not help him. However, during the same month he travelled by taxi No. ER 1148 to Kumasi and they were invited by the first appellant to his house where the first appellant told them that he had prepared the invoice and that everything had been signed. The second appellant continued:
“This time be told me to try my best when I go to Accra to get an official envelope so that the invoice could be posted with it. After leaving for Accra that same day, I left the driver because his car was then giving him engine trouble … It was Agyeman [first appellant] who arranged for truck and customers who are ready to buy. In actual fact it was Agyeman and Kwame Krah who organised the plans.”
When the case came on for hearing, the second appellant gave evidence in the witness-box and denied having had any transactions at all with the first appellant. He said he did not even know the first appellant or the taxi driver and had not travelled to Kumasi during the month of February 1963.
The learned judge after carefully considering the case and debating the evidence on both sides, rejected the defence of the appellants and convicted them on each of the three counts. It is against that conviction that they have appealed to this court.
At the hearing of the appeal learned counsel for the appellants abandoned the grounds of appeal filed on behalf of the appellants and was given leave to argue the following additional grounds of appeal:
(1) That in the absence of any evidence or finding as to the authorship of the forged invoices there was little or no evidence supporting the charge of conspiracy.
(2) The learned trial judge misdirected himself and the assessors by non-direction as to the degree of proof required in a criminal case. Particulars of misdirection: Absence of any direction either in the summing-up or in the judgment that even if the story of the accused person is not believed they still are entitled to acquittal if their stories were reasonably probable.
(3) Following upon and because of the complaint in ground two above the learned trial judge failed adequately or at all to direct himself and the assessors on those aspects of the case, even of the prosecution, which clearly showed that the story of the appellant was reasonably probable.
(4) The learned trial judge did not put to the assessors and himself adequately or at all the case of the appellant.
(5) The learned trial judge on the face of the record had condemned the appellant’s witnesses as untruthful witnesses without first having heard them when he said in support of the prosecution’s refusal to call them: ‘I have no reason to doubt what was said by the learned state attorney about his reason for not calling the three witnesses etc.’ This is more so as the so-called good reasons of the prosecution were never disclosed to the court.
(6) The verdict cannot be supported having regard to the evidence.
(7) The learned trial judge erred in permitting the assessors to remain in court whilst evidence was being led on whether the second appellant’s statement was voluntary or not and failed further to direct them that notwithstanding his having admitted it, the question of whether it was true or not was one still open to them.”
As a matter of convenience we shall deal with the grounds of appeal in the order in which learned counsel argued them. The first ground of appeal he argued was ground two of the additional grounds of appeal.
In developing his argument on that ground counsel submitted that the following passage appearing in the summing-up of the learned judge namely, “Burden on prosecution to satisfy you of their guilt beyond reasonable doubt. If you feel any such doubt must resolve it in favour of the accused” were the only notes which referred to the burden of proof in the direction which the learned judge gave to the assessors. He submitted further that failure to direct the assessors properly on the burden of proof required in criminal law is fatal to conviction, no matter whether the trial was with assessors or jury and cited the case of Bharat v. R. to support his submission. He contended also that the case for the prosecution and that for the defence raised a narrow issue and the learned judge failed to direct the assessors on the lines indicated in R. v. Abisa Grunshie.
The complaint of learned counsel for the appellants, as we understand it, is that as the learned judge did not direct the assessors sufficiently or adequately on the burden of proof the appeal should be allowed; because in Bharat’s case (supra), when the learned trial judge misdirected the assessors by not directing them on the defence of provocation but nevertheless directed himself on that law, it was held that the non-direction to the assessors was fatal to conviction. It would seem that learned counsel for the appellants has misconceived the facts and circumstances in Bharat’s case which led to the appeal being allowed. In that case, the prisoner who was tried on a charge of murder before a single judge sitting with assessors, put forward two possible defences, (a) a defence of self-defence and (b) a defence of provocation. After hearing the summing-up, each of the assessors gave his opinion that the prisoner was guilty of murder. In a reasoned judgment, holding the prisoner guilty of murder, the learned judge dealt fully with the question of self-defence and rejected it. But he did not, at any stage of the judgment, deal with the defence of provocation. It was apparent on the face of the record in Bharat’s case that the learned judge not only failed to direct the minds of the assessors on the question of provocation but he also failed
to direct himself on that point. If he had so directed the assessors and particularly himself on the vital issue, the very core of the defence, the accused would inevitably have been found guilty either of murder or of manslaughter. Their lordships therefore came to the conclusion that it was clearly a case where the question of provocation should have been considered. See also Bullard v. R. The failure of the judge to direct the assessors properly on it, or to consider it himself in his summing-up, meant that the judgment could not stand. It was for this reason, and none other, that the appeal was allowed.
In this case, as distinct from Bharat’s case, the learned judge did direct the assessors on the burden of proof as follows:
“Accused charged on counts of conspiracy and stealing. Having pleaded not guilty. Burden on prosecution to satisfy you of their guilt beyond reasonable doubt. If you feel any such doubt must resolve it in favour of accused.”
After the learned judge had considered the defence of the first appellant, he concluded his charge to the assessors in the following words: “Well, if you believe his defence or it leaves you in reasonable doubt, return an opinion of not guilty.” Similarly, he dealt with the defence of the second appellant and directed the assessors in the following concluding words:
“Well, that is his case. He is not obliged to prove his innocence. The prosecution must prove his guilt. If you, having seen him believe him or feel any reasonable doubt about his guilt, you ought to return an opinion in his favour.”
There is no particular formula laid down by the courts for a judge to follow in explaining to the jury or to the assessors (as in this case) that the burden of proof lies on the prosecution. However, he is in duty bound to deal with the question of burden of proof And that duty is discharged if the summing-up notes show that he has directed the minds of the jury, or the assessors, to the question of burden of proof, and has made it quite clear to them that it is for the prosecution to establish the guilt of the accused, and if such guilt is not established, the accused must, as of right, be found not guilty.
In this case, the learned trial judge not only directed the minds of the assessors that it was for the prosecution to establish the guilt of the appellants, but he went further to say that if the case for the prosecution left them in doubt they must resolve it in favour of the appellants. In other words, if they were not satisfied by the evidence put forward by the prosecution in proving the charge against the appellants, then they must, as of right, be found not guilty. This direction by the learned judge, taken together with his subsequent charge to the assessors at the time he dealt with the defence of each appellant, shows that he adequately or sufficiently directed the minds of the assessors on the question of burden of proof .
Turning now to the further point raised by learned counsel for the appellants, that the case for the prosecution and that for the defence raised a narrow issue and that the learned trial judge failed to direct the assessors on the line shown in R. v. Grunshie (supra), it is sufficient to say that the direction given to the assessors, as stated earlier in the judgment, was on the lines indicated in Grunshie’s case.
The next ground of appeal dealt with by Mr. Owusu was additional ground seven, namely, that:
“The learned judge erred in permitting the assessors to remain in court whilst evidence was being led on whether the second appellant’s statement was voluntary or not, and failed further to direct them that notwithstanding his having admitted it, the question of whether it was true or not was one still open to them.”
In developing his argument on this ground Mr. Owusu submitted that the learned judge having expressed the view in the presence of the assessors, that the second appellant made his statement voluntarily, that he was not beaten up by the police and that at that stage he had formed an impression of the second appellant which he would later express, amount to a direction to the assessors that he was satisfied that the second appellant’s statement to the police was a true statement, and by so saying, he usurped the functions of the assessors. It was further submitted that the irregularity in procedure by allowing the assessors to remain in court was not a mere technicality which could be cured by the proviso to section 15 (1) of the Courts Act, 1960,4 and that whether the trial was with a jury or with assessors, a departure from the proper procedure would have the same effect. In support of this submission he cited the case of R. v. Chadwick.
In reply to the submissions of learned counsel for the appellants, the senior state attorney, stated forcefully that the presence of the assessors in court while the learned judge was considering the admissibility of the second appellant’s statement was not improper. He stated further that the assessors should not be asked to leave the court except at the request of or with the consent of the defence.
We entirely agree with the view expressed by the senior state attorney that the presence of the assessors in court while the admissibility of the statement was being considered was not improper. The general rule is that if a presiding judge is of the opinion that any argument as to the admissibility of certain evidence may unfairly prejudice the accused, if heard in the presence of the jury, or of the assessors as the case may be, he should order them to retire and then hear the argument in the open court. “This course should only be adopted” said Viscount Reading C.J. in R. v. Thompson, “when the judge in the exercise of his discretion thinks that the defence would be unfairly prejudiced, and the question cannot be argued in the abstract, as it frequently may be, when the evidence objected to appears on the depositions.” But the jury should not be asked to leave the court except at the request of or with the consent of the defence. Thus in the case of R. v. Anderson7 Lord Hewart C.J. made the following pertinent observations,
“It is difficult to imagine any circumstances in which, except at the request or with the consent of the defence, a jury can possibly be asked to leave the box in order that statements may be made during their absence.”
The Chadwick case (supra) was cited by learned counsel for the appellants in support of a similar submission which counsel made on behalf of his client in the case of R. v. Moshie and Blackall P. who read the judgment of the court commented on the principle enunciated in the Chadwick case in the following manner:
“It was further submitted that the learned Judge should have ordered the jury to retire during the argument as to the admissibility of the confession. The case of R. v. Chadwick (24 Cr.App.R. 138) was cited in support. The headnote to that report is couched in somewhat wider terms than the judgment itself, which does not appear to have gone any further than to comment adversely on the fact that certain evidence in the particular case, which would properly have been heard in the absence of the jury, was heard in their presence. This accords with the usual practice at criminal trials, where the jury is not required to retire during the hearing of argument on the admissibility of evidence unless the argument would involve the mention of matters which could not be given in evidence, and which might affect the minds of the jury in a manner adverse to the accused.”
We are in entire agreement with Blackall P. and we adopt the reasons given above and the conclusions
arrived at. It is quite clear from the authorities referred to supra that the jury or assessors (as the case may
be) need not retire during the hearing of argument on the admissibility of evidence, unless: (a) the
argument will involve the mention of matters which cannot be given in evidence, or (b) the argument may
contain certain matters which may unfairly prejudice the person who is being tried, or (c) a request has
been made by the defence that the jury (or assessors) be ordered to retire, or (d) the consent of the
defendant has been obtained for the jury (or assessors) to retire. The procedure stated above is also
followed when evidence as to the admissibility of a statement alleged to have been made by an accused is
being given.
In the instant case, the second appellant who made the confession statement was represented by counsel at
the trial and had the benefit of
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counsel’s advice. But no request was made by him or by his counsel to the court that the assessors be
ordered to retire when evidence as to the admissibility of his statement was being heard. The evidence
given by the witnesses before the assessors which led to the admissibility of the statement did not contain
any matter prejudicial to the appellant’s case nor was any argument made which involved the mention of
matters which could not be given in evidence. The only question which was discussed before the
assessors was whether the second appellant was beaten up by the police at the time he made the statement.
It is interesting to note that the second appellant himself when he gave his evidence-in-chief at the trial
said, inter alia, “I made a statement to the police. I made that statement under duress.” When he was
cross-examined by counsel for the state, be explained the statement as follows, “By duress I mean I was
beaten by the police.” For the above reasons, we are of the opinion that the presence of the assessors at
the time the court was considering the admissibility of the statement was not improper. In any event the
matters which were discussed before the assessors cannot form the basis of any complaint by learned
counsel for the appellants since they were the self-same matters given in evidence by the second
appellant.
We shall now deal with the criticism by learned counsel for the appellants that the learned judge failed to
direct the minds of the assessors as to what weight they should attach to the second appellant’s statement,
in other words, as to whether the contents of the statement were true. In his charge to the assessors the
learned judge dealt with the defence of the second appellant, which was a complete denial of the charges,
and a further denial of knowing the first appellant and the taxi-cab driver. He then ended his charge, in so
far as the case for the second appellant is concerned, in the following words:
“Admits writing the statement of 23 March but says he was beaten by the police to write it at their dictation.
Says his only true statement is that of 28 March. On that he relies for his defence. Well, that is his case. He is
not obliged to prove his innocence. The prosecution must prove his guilt. If you, having seen him believe
him or feel any reasonable doubt about his guilt, you ought to return an opinion in his favour.”
The meaning which the above passage conveys is this: If the defence of the second appellant is accepted,
including his explanation that he was assaulted by the police and did not make the statement voluntarily,
or if it leaves them in reasonable doubt, then no weight should be attached to the statement and they must
return an opinion in his favour. In the circumstances we are unable to accept learned counsel’s criticism
that no direction was given to the assessors as to the weight which they should attach to the statement. We
are also of the opinion that the statements made by the learned judge before the assessors, namely, that he
was satisfied that no policeman assaulted the second appellant; that he was satisfied that the statement
was made by the appellant voluntarily; and that he preferred at that stage not to express the view he had
formed of the second appellant, did not convey any meaning that the learned judge pre-judged the defence
of the second appellant by forming an adverse
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opinion of him. He only decided against the second appellant on the question of the admissibility of the
statement. On this score learned counsel for the appellants did not refer us to any passage in the
summing-up or in the judgment which supports the contention that the defence of the second appellant
was pre-judged. The case put forward by the prosecution and that put forward by the second appellant
were exhaustively debated by the learned judge in his charge to the assessors who had no difficulty in
giving their unanimous opinion independently of the decision of the learned judge, that the second
appellant was guilty on each of the three counts in respect of which he was charged.
In dealing with the next ground of appeal, additional ground five, Mr. Owusu submitted that the statement
made by the state attorney in the presence of the assessors indicating his unwillingness to call three of the
prosecution witnesses whose names were listed on the indictment, namely, “I have reason to think that
their statements are untrue,” followed by the learned judge’s comments that he had no reason to doubt
what was said by the attorney, shows that the learned judge’s mind was already made up on those three
witnesses. In other words that they were not witnesses of truth. In support of his submission he cited the
case of State v. Sowah and Essel.9 To this submission the senior state attorney replied that the
prosecution is relieved from calling a witness whose name is listed at the back of the indictment if he has
reason to believe that the witness will not speak the truth and that his statement is untrue. He cited the
case of Yeboah v. The Queen,10 contending that the learned judge merely stated that he had no reason to
doubt what the state attorney had told him, namely, that he had no reason to believe that their statements
were true. “It is not correct,” said the senior state attorney, “that the learned judge formed a wrong
opinion of the witnesses who the prosecution did not call.” The circumstances which led to the comments
of the learned judge are as follows: Towards the end of the prosecution’s case, the state attorney told the
trial court that there were three witnesses listed on the indictment whom he did not propose to call
because he had reason to think that their statements were untrue. Learned counsel for the first appellant
then said, “I want these witnesses either called by the prosecution or tendered to me for
cross-examination. My learned friend must say more for the court to decide why these witnesses should
not be called” (the emphasis is mine). Whereupon the learned judge stated as follows:
“I have no reason to doubt what was said by the learned state attorney about his reason for not calling the
three witnesses. They are available for the defence and I do not know of any rule of law which compels me
to order the prosecution to call witnesses who they cannot be in a position to put forward as truthful
witnesses. I think these witnesses should be available and called for the defence if either counsel is so
advised.”
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The three witnesses were thereafter called by the first appellant to support his defence.
The Yeboah case (supra) is an authority for saying that a prosecutor is relieved from calling a witness
whose name is listed on the indictment if he has a reasonable belief that the witness will not speak the
truth and that his statement is untrue. The reason given by the state attorney to the trial court for not
calling the three prosecution witnesses was therefore in accord with the principle stated above. In spite of
this reason, learned counsel for the first appellant at the trial was trying to get him to say more, which he
did not do. In our view the comment which the learned judge made in reply to the request of learned
counsel for the first appellant at the trial, when considered in its context, means no more than that he had
no reason to doubt the reason which the state attorney gave for not calling the three witnesses. Unlike the
Sowah and Essel11 case where the learned judge stated categorically in his judgment that, “I was so
satisfied [of the accused’s guilt] before the accused gave evidence,” an expression which completely
destroyed the fundamental principle which has been laid down in criminal law that a person accused of a
crime is presumed to be innocent until his guilt is proved beyond reasonable doubt; the learned judge, in
the instant case, did not become convinced of the first appellant’s guilt before he opened his defence. In
his summing-up he dealt exhaustively with the evidence of the first appellant and referred also to the
evidence of his three witnesses. Also in his judgment, he considered at length the defence of the first
appellant and gave reasons why he did not believe him and his witnesses. We cannot, therefore, accept
learned counsel’s submission that the learned judge pre-judged the case of the first appellant and put the
onus on him to prove his innocence.
Learned counsel for the appellants then shifted to grounds three, four and five and argued them together.
In developing his arguments on these grounds Mr. Owusu submitted that the learned judge in putting the
case of the defence to himself and the assessors should not only repeat the evidence of the appellants and
their witnesses but should also indicate to himself and to the assessors those aspects of the prosecution’s
case that lend support to their story or might at least raise the reasonable probability of their story being
true. In support of this contention he cited the case of State v. Boateng.12
In cases tried with assessors, all that the judge is required to do when the case on both sides is closed and
before he gives his judgment, is to sum up the evidence for the prosecution and the defence and thereafter
require each of the assessors to state his opinion orally, and then record their opinions: see section 287 (1)
of the Criminal Procedure Code, 1960.13 In this case the learned judge not only summed up the evidence
on both sides to the assessors, as required by section 287 (1) of Act 30, but he
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also debated the evidence of the prosecution and the defence. Furthermore, in a well reasoned judgment,
he dealt sufficiently with the case on both sides, the points set out for determination, and gave reasons
why he preferred the case put forward by the prosecution to that put forward by the defence. And this is
amply supported by the following passages in the judgment of the learned judge which read as follows:
“In my judgment, the greatest stumbling block in the way of first accused’s seemingly good defence is the
evidence of at least four traders who swore that they bought from the first accused and paid cash for some
of those goods.” He then dealt exhaustively with the evidence of the four traders and continued:
“A substantial quantity of these goods were recovered from the traders by the police. The first accused
denied making these sales and stigmatised their evidence as falsehood. I feel no doubt whatsoever that those
traders are truthful and reliable witnesses and that their side of the matter is the side of truth. As the first
accused himself admits, he has no business to sell for cash any of these goods. In my judgment, the first
accused could only have sold these goods of his own but if he knew what Sergeant Setsofia says is a fact,
that no trading company or firm exists in Pong Tamale by the name of Ebony and Company or Ebony and
Sons. In my opinion, the delivery orders . . . were brought into being for the purpose of providing cover for
the theft of these goods . . . The first accused himself appreciated that the sale of these goods was
irreconcilable with his innocence of the conspiracy and theft. He therefore sought the aid of Moses Agbejimi
to use his good offices to procure Oyewo and Dokun to deny to the police what he knew to be the truth,
namely that he in fact sold the goods to them. This conduct points plainly to his guilt.”
The Boateng case (supra), cited by learned counsel for the appellants, does not apply to the instant case.
In our view the learned judge discharged the duty imposed upon him by section 287 (1) and (2) of Act 30.
The latter subsection required him “to give in writing [his judgment which] shall contain the point or
points for determination, the decision thereon and the reasons for the decision. . . .”
It was further submitted in support of grounds three, four and five, that the learned judge failed to direct
the assessors and himself that on the face of the denial of the prosecution witnesses, Kwabena Kwarteng
and Wabi, that they signed any paper when they took delivery of the goods, as contrasted with the
evidence of the first appellant and his witnesses that they did in fact sign the invoices, coupled with the
evidence of Karim Kotokoli, which lends support to the defence story, the defence of the first appellant
was reasonably probable.
In reply to this submission the senior state attorney stated that although the evidence of Karim Kotokoli
lent support to the story of the first appellant yet the learned judge chose to believe the other witnesses for
the prosecution and rejected Kotokoli’s evidence. And since Kotokoli’s evidence was already on record
the failure by the learned judge to direct them on that piece of evidence is not fatal to conviction.
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A careful examination of the record shows that the learned judge did not base the conviction of the
appellants on the conclusiveness of the evidence of Kwarteng and Wabi but on the whole of the evidence,
in so far as he was able to believe it, put forward by the prosecution. At the trial the first appellant
admitted that he had no business to sell for cash any of the goods in the wholesale; but the case put
forward by the prosecution shows that some of the goods particularised in the indictment were sold by the
first appellant to various traders who paid him cash for them. Contrariwise, the first appellant said that he
delivered the goods to persons who claimed to be representatives of Ebony and Company in the normal
course of his business and that those persons signed the invoices and took delivery of the goods. He then
referred to Kwarteng and Wabi as being the persons who signed the invoices. The learned judge rejected
the explanation of the first appellant and said, “I feel no doubt whatsoever that those traders are truthful
and reliable witnesses and that their side of the matter is the side of truth.” It is obvious from the above
passage in the judgment of the learned trial judge that he did not believe the defence of the first appellant
that he did not sell for cash the goods found in the possession of the various traders. It follows, therefore,
that he did not also accept the story of the first appellant that Kwarteng and Wabi signed the invoices as
representatives of Ebony and Company and received the goods on the strength of these exhibits.
Similarly, he disbelieved that part of the evidence of Kotokoli in which he stated that he saw Wabi “sign
some paper” at the wholesale which he later gave to the first appellant. In our view the learned judge’s
failure to address the assessors on this piece of evidence which is already on the record of proceedings is
therefore not fatal to the conviction.
The last ground of appeal argued by Mr. Owusu was additional ground one, particulars of which we have
given earlier in our judgment. In support of that ground learned counsel submitted that the prosecution
left in the air the authorship of the forged invoices, i.e. whether they were signed by Kwarteng and Wabi
who admitted going to the wholesale to collect the goods. In his contention the trial court erred in
accepting their bare denials without strict proof that they did not sign the said exhibits.
We do not find any substance in this ground of appeal. The evidence that the invoices are forged
documents was given by the director of the complainant’s company, the person whose signature was
forged. What better evidence the prosecution is required to produce to substantiate the forgery of the said
documents, we are unable to conjecture. The case put forward by the prosecution was that the invoices
were forged, not by any of the witnesses called by the prosecution, but that they were brought into being
for the purpose of providing a cover for the theft of the goods particularised in the indictment. In our view
the denial on oath of Kwarteng that the invoices were signed by Wabi and himself was sufficient.
On the whole of the evidence therefore, we cannot say that the conviction is unreasonable or that it cannot
be supported by the evidence.
[p.695]
of [1964] GLR 681
There is no misdirection in law. There is nothing in the case to show that there has been a miscarriage of
justice, and it is only on those grounds that this court will allow appeals. For these reasons the appeal is
dismissed.
DECISION
Appeal dismissed.
T. G. K.
