DIVISION: IN THE SUPREME COURT
DATE: 15TH JULY, 1963
BEFORE: ADUMUA-BOSSMAN, OLLENNU AND BLAY JJ.S.C.
NATURE OF PROCEEDINGS
APPEAL against a conviction for stealing entered by the Circuit Court, Kumasi. The facts are fully set
out in the judgment of Ollennu J.S.C.
COUNSEL
Amankwa for the appellant.
D. F. Annan, Senior State Attorney, for the respondent.
JUDGMENT OF OLLENNU J.S.C
The appellant was tried and convicted by the circuit judge, Kumasi, on nine counts of stealing. The
subject-matter of the charges are nine separate sums of money, the value, in some cases, of a number of
local council rolls of tickets of four penny and sixpenny denominations issued to the appellant and sold
by him to the public, and in others, amounts shown on the council’s counterfoil receipt books as collected
by the appellant on behalf of the council, and in each case not accounted for by him.
The appellant did not give any evidence on his own behalf at his trial, and the whole case therefore rested
upon the evidence adduced by the prosecution which included oral evidence alleging that the appellant
had admitted to the chairman of the council, the sixth prosecution witness in the presence of three
prosecution witnesses, namely, the second, fourth and fifth prosecution witnesses, that he misappropriated
the various sums of money; it also included a statement the appellant made to the police when he was
charged with the offences and cautioned by the police, in which he denied the charges and the allegation
that he had admitted to the chairman of the council and other persons that he had misappropriated the
moneys. The learned circuit judge in his judgment gave consideration to each of the nine counts upon which the
appellant stood charged separately, and dealt with what he thought were the relevant issues raised. He,
however, in the course of his fairly long judgment, made a statement which in our opinion warranted
some of the criticisms which counsel for the appellant, levelled against his judgment.
[p.308] of [1963] 2 GLR 306
The appeal was brought and argued upon the following three grounds:
“(1) Because the trial circuit judge was wrong in law in refusing to uphold the submission of no case at the
close of the case for the prosecution.
(2) Because the prosecution failed to adduce any evidence in support of the charge. The appellant had
been charged with stealing general counter-foil receipt books and rolls of market receipts but the
evidence adduced was to the effect that the appellant had stolen certain sums of money and not receipt
books or market tickets.
(3) Because the prosecution failed to prove its case.”
On ground (1) it was submitted that the circuit judge misdirected himself when he said that, “The accused
never gave evidence in court, nor did he make any statement to the police when he was arrested and
therefore the court could not guess what his explanation would be.” Counsel submitted that although the
circuit judge was right when he said that the appellant did not give evidence, he definitely erred in
directing himself that the appellant did not make any statement to the police and therefore he, the circuit
judge, had no explanation by the appellant which he could consider. This submission of counsel for the
appellant is well founded.
The appellant did make a statement to the police when he was arrested, charged and cautioned; that
statement was admitted in evidence as part of the prosecution’s case and marked exhibit K. In it he gave
an explanation which, if believed, is sufficient to warrant his acquittal. The full statement leaving out the
formal parts is as follows:
“On the 2nd May, 1962, an auditor whose name I do not know arrived at Bekwai to audit my books. In the
course of his auditing he instructed me to produce all receipts concerning payments made to the cashier of
Amansie Local Council. I produced all the relevant receipts covering all moneys collected by me and paid to
the cashier, one Emmanuel Mensah, and the revenue officer, one Mr. Graham. Any time I pay in any money
collected by me to either the revenue collector or the cashier they issued me with a receipt which I fix in my cash book and they retain the duplicate copies in their receipt books. After the auditor had completed his auditing of my accounts he informed me that I was short of an amount of £G1,055 17s. 4d. I told the auditor that I have paid in all the moneys collected by me to the cashier and the revenue officer. I never at any time admitted misappropriating the amount of £G1,055 17s. 4d. I never asked him for time
to produce the amount found short in my cash book. I still maintain that I have paid in the amount to the
cashier and the revenue officer. I have not stolen the amount of £G1,055 17s. 4d.” The auditor, the second
witness for the prosecution, and the audit examiner corroborated the appellant’s statement to some extent;
they each said they saw loose treasury receipts, not pasted in a book, which supported the entries of the
appellant as to payments he had made to the council’s cashier, and consequently ticked the entries in the
appellant’s books against these receipts. They said, however, that they could not find corresponding
entries in the books of the treasurer of such receipts alleged to have been issued to the appellant by the
treasurer and consequently they called for the loose receipts which the appellant had earlier shown them,
but they could not then be found in the office.
[p.309] of [1963] 2 GLR 306
The is no doubt that the circuit judge seriously misdirected himself when he said that the appellant did not
make a statement to the police; and having so misdirected himself, he failed to give consideration to the
explanation which the appellant in fact gave. Misdirection by itself is not a ground for allowing an appeal
unless it can be shown that it has occasioned a grave miscarriage of justice.
The case, as shown upon the evidence before the court resolved itself into one important question: did the
appellant pay these moneys to the treasurer or any other revenue officer of the council and the said
officers failed to enter them up in their own books, or did he not pay the moneys to them? If the trial court
was satisfied that he did, or if it had reasonable doubt whether or not he did, the appellant would be
entitled to acquittal; but if it had no doubt that he failed to pay, the appellant should be convicted. The
solution to this most important question depends upon whether or not the court was sufficiently satisfied
about the credibility of the fourth witness for the prosecution, the chief revenue officer, the fifth witness
for the prosecution, and acting treasurer of the local council in question, to prefer their denial of payment
to the appellant’s assertion, in exhibit K, that he paid the moneys. If the learned circuit judge had directed
his attention to this most important issue in the case, and had accepted the evidence of the fourth and fifth
witnesses for the prosecution that would have been the end of the matter, and no miscarriage of justice
could be said to have occurred.
But instead of dealing with the case on those lines, the learned circuit judge erroneously assumed that the
entries in the books of the cashier or the chief revenue officer sealed the matter; therefore after saying that
the appellant made no statement to the police from which the court could know his explanation, he
continued to direct himself as follows:
“But whatever may be the truth of any explanation that the accused might offer, the truth could be more clear
from examination of the books of account tendered during the trial. Counsel for the defence contended that
this is a case of general deficiency.
In this case accused was charged with stealing specific sums on different dates.
Under the dicta in Bediako v. C.O.P. (Cyclostyled Judgments, January-June 1958, 95 at p. 100) I do hold
that this is not a case of general deficiency. It has been established that the accused received the receipt
books and market tickets, issued receipts to the value of £G187 5s. and £G146 15s. 6d. respectively and
also sold the tickets but never paid the amounts into the treasury even though he entered them in exhibit F
as having sold them.”
The learned circuit judge would have been quite right in this direction to himself if the issue in the case had been whether or not the amounts in question were entered up in the relevant books of the council; but definitely that is not the issue; the issue, as earlier stated is whether or not the appellant failed to pay the said sums of money to any revenue officer of the council, namely, to either the chief revenue officer, the fourth prosecution witness, or the treasurer, the fifth prosecution witness, in other words whether the
appellant fraudulently appropriated the said sums of money.
[p.310] of [1963] 2 GLR 306
Each of the fourth and fifth witnesses for the prosecution said that the appellant did not pay the said
amounts to him, while the appellant on the contrary said he did. The only way in which the court could
judicially resolve that issue is to make a proper evaluation of the evidence in that behalf, which naturally
would involve an appraisal of the credibility of the persons involved. This the circuit judge failed to do.
This direction of himself is, therefore, another serious misdirection; in holding that “whatever may be the
truth of any explanation that the accused might offer, the truth could be more clear from examination of
the books of account tendered during the trial,” the circuit judge showed that he took a one-sided view of
the case; he was in fact directing himself that it did not matter whether or not the treasurer received the
payments from the appellant but omitted to make entries in his own books, it was enough that the
treasurer had made no entries of those sums in his books. This part of the judgment in effect amounts to
direction that the credibility of the revenue officer notwithstanding, the mere fact that they made no
entries of the payments in their books is conclusive evidence that the amounts in question were not paid
to them.
At this stage it is necessary to refer to a few pieces of evidence given by the fourth and fifth prosecution
witnesses. It came out in the evidence-in-chief of the fifth prosecution witness, the treasurer, that some of
the receipt books of the council, out of which the loose receipts the appellant showed the auditor might
have come, were missing, and that someone, other than the appellant, was “facing a charge concerning it.”
The fourth witness for the prosecution, the revenue officer, also gave the following significant piece of
evidence concerning those missing receipts: “The missing receipt book was in my custody before. I kept
the receipt books in a cupboard which had not got a good lock. I am alone in my office. No one could go
in during my absence.” Certainly if a treasurer had received moneys and issued receipts for them, and
kept or destroyed the book of receipts containing the duplicates, and also failed to enter the amounts he
received in the accounts books kept by him, the mere omission to make such entries, and the consequent
non-appearance of those amounts in his books cannot be conclusive evidence that the revenue collector,
the appellant, did not pay the said amounts to him.
It is true evidence was led that the appellant admitted stealing the money, but considering that two of the
people who gave that evidence were the fourth and fifth prosecution witnesses, it is uncertain whether or
not the circuit judge would have accepted that evidence in preference to the denial of the appellant, if he
had been conscious that the appellant made a statement denying that allegation, and more so if he had
considered the vital question of whether or not these two witnesses in all the circumstances of the case,
were witnesses of truth. That being the case it is obvious that a grave miscarriage of justice has been
occasioned by these misdirections. The conviction therefore cannot stand.
[p.311] of [1963] 2 GLR 306
The appeal is allowed, the conviction and sentence of the appellant are quashed, and a verdict of not
guilty is entered; the appellant is acquitted and discharged on each of the counts.
DECISION
Appeal allowed.
Appellant acquitted and discharged.
K.T.
