HIGH COURT, SEKONDI
DATE: 17 MARCH 1967
BEFORE: KORANTENG-ADDOW J.
CASES REFERRED TO
(1) R. v. Bandoh (1944) 10 W.A.C.A. 190.
(2) R. v. Yakubu (1944) 10 W.A.C.A. 267.
(3) R. v. Jennings (1912) 7 Cr.App.R. 242, C.C.A.
(4) R. v. Dixon (1925) 19 Cr.App.R 36, C.C.A.
(5) R. v. Kelfalla (1939) 5 W.A.C.A. 157.
NATURE OF PROCEEDINGS
APPEAL against the judgment of the Circuit Court, Takoradi, wherein the appellant was tried and convicted of stealing timber logs, the property of his employers. The facts are set out fully in the judgment.
COUNSEL
K. E. Amua-Sekyi for the appellant.
Kaleo-Bioh, Assistant State Attorney, for the State.
JUDGMENT OF KORANTENG-ADDOW J.
The appellant herein was charged with the offence of stealing and tried and convicted at the Circuit Court, Takoradi, on 29 September 1966. He was sentenced to a term of eighteen months’ imprisonment with hard labour. It is from that conviction that he has appealed to this court. He was charged together with one Thomas Quacoo, the second accused. The said Thomas Quacoo was charged on two counts with forgery and aiding and abetting the stealing with which the appellant was charged.
The facts of the case are that the appellant, a driver of a haulage company (C.H.C.), was despatched from Kumasi by his company, as carriers, to convey a load of timber to A. Lang & Co. at Takoradi. The load consisted of sawn boards valued at ¢751.87 (£G313 5s. 7d.). Before reaching Takoradi the appellant diverted to a village on the way called Juaben and sold the timber to one Kwame Bafoe, the fourth prosecution witness.
The evidence for the prosecution has it that after the sale the appellant sent a bearer to convey to the second accused, the receiving clerk at A. Lang & Co., the sum of ¢48.00 as his share of the proceeds of sale and to ask him to sign the waybills covering the transaction to make it appear as if the timber had been duly delivered. The second accused signed the waybills as arranged even though he asserted that he was deceived in doing so. It was when the Kumasi timber dealers submitted their bill for the timber that the theft was discovered. The second accused pleaded guilty to the charges of
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forgery and aiding and abetting and was convicted on his pleas. The appellant however pleaded not guilty but was tried and convicted. The defence of the appellant was that he met one of the drivers in their establishment, that is C.H.C., on the way and that the driver conveyed a message to him from their headquarters in Kumasi asking him to deliver the goods to one Kwame Bafoe, the fourth prosecution witness. He argued that this sort of order to divert is sometimes made to the drivers in their establishment. He denied collecting the purchase price from Kwame Bafoe the fourth prosecution witness, even though there is some evidence that he did. There is evidence that at the point of unloading it was the appellant who employed some labourers to unload and that he paid them himself. The receiving clerk, the second accused, gave evidence for the prosecution and so also did the messenger Owiredu, the eighth prosecution witness, who conveyed the ¢48.00 to the second accused.
Mr. Amua-Sekyi, learned counsel for the appellant argued two interesting grounds of appeal. The first being that the information or charge on which the appellant was convicted is defective and that the conviction must be quashed on that ground. The defect he submitted is that although the alleged crime, according to the evidence, took place at Juaben, the particulars of offence said it took place at Takoradi. He argued forcefully that one of the essential things that the particulars of offence should contain is the place of the commission of the offence. He argued that if the place is not stated in the charge the accused would not have been supplied with sufficient information as to the nature of the charge to enable the accused to plead to it. He submitted that the omission of the place of commission of the offence would deprive the accused person of some of the legal defences open to him such as the pleas of alibi, autrefois acquit or autrefois convict. In support of his argument learned counsel cited the authorities of R. v. Bandoh (1944) 10 W.A.C.A. 190 and R. v. Yakubu (1944) 10 W.A.C.A. 267.
With that as his foundation and spring-board learned counsel jumped to the submission that his contention held good in a case where the place of commission of the alleged offence does not conflict with the evidence. The argument of learned counsel is not only ingenious it is also plausible. That an indictment should contain particulars of offence which would give the accused person reasonably sufficient information of the nature of the charge against him is too well established and supported by authority. But the nature of information which when omitted makes a charge defective, in my view, is such as would deprive the charge of its legal validity—an omission which would leave out an essential ingredient of the charge. Time for instance is an essential ingredient in a charge of burglary
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which must take place at night. Place is a sine qua non in a charge involving breach of the peace, e.g. under section 207 of the Criminal Code, 1960 (Act 29). But certain offences are offences wherever committed and at whatever time they are committed. An example of this is murder. And stealing is another. In these cases the authorities hold that the place need not be indicated with absolute particularity. Section 60 (2) of the Criminal Procedure Code, 1960 (Act 30), states, among other things, that the validity of any proceedings instituted before a district court (which can be read also as a circuit court) cannot be affected by any defect in the charge. In any case in this instant case the name of the place of the commission of the offence alleged herein is given. There is therefore no defect in the charge itself. The difficulty that arises here is that whereas the charge names one place as the place of commission the evidence indicates that the alleged offence was committed at another.
As has been observed above, the indication of the place of offence is only to give the accused sufficientinformation about the charge. It is in itself, in a charge like the present one, not of the essence of the charge. If in spite of it the offence is sufficiently identifiable by the accused I cannot see how he may be embarrassed in any way in his defence. From his statement (exhibit C) made to the police on 14 January 1966, and also from the description of the goods alleged to have been stolen as given in the particulars of offence it is abundantly clear that the accused was never in doubt as to what it was all about. The authorities cited by learned counsel for the appellant, in my view, do not therefore apply to a case like this. In R. v. Bandoh (supra) what was omitted in the particulars of offence was of the essence of the charge. In a charge of perjury the particulars failed to state that the accused made the statement attributed to him with the knowledge of the falsity thereof. In R. v. Yakubu (supra) there was a similar vital omission in the particulars of offence. There, in a charge of forgery the particulars failed to state that the accused intended by the forgery to defraud. Counsel’s submission that by giving the wrong name of the place the accused was deprived of the legal defences open to him, namely, the defences of autrefois acquit or autrefois convict, in my view, would not hold. The accused knew all the time the particulars of the charge he was facing and could have entered either of those pleas if it would have availed him. With regard to the defence of alibi, rather than deprive him thereof, the door was thrown wide open for the accused by the contents of the particulars of offence.
Nothing stopped him from pleading that he was not at Takoradi on 24 December 1965, I am therefore not convinced by that argument.
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The other legal ground put forward by learned counsel for the appellant is that the verdict arrived at by the learned circuit judge is wrong in law as the learned circuit judge failed to warn himself that he was convicting on the uncorroborated evidence of an accomplice or accomplices. He submitted that the fourth prosecution witness (Kwame Bafoe) is definitely an accomplice and that the eighth prosecution witness (Owiredu) was an accomplice by implication.
Before I come to discuss the question of the two named witnesses being accomplices I would like to point out that the useful warning that it is dangerous to convict on the uncorroborated evidence of an accomplice, which has almost crystallised from a rule of practice into a rule of law does not say that it is wrong in law to convict on such evidence. It only enjoins the court to have that circumstance in mind when considering the verdict. The danger of the position is removed when the evidence of the accomplice is corroborated in any material particular by some other evidence, even the evidence of the accused himself. In this case there were other such corroborative pieces of evidence which if believed by the trial circuit judge left him free to arrive at the verdict he found, provided that he bore in mind the warning discussed above. And again only if the only evidence at hand in arriving at his verdict was that of an accomplice or of accomplices. There is only one true accomplice in this case, namely, Thomas Quacoo, the second accused, who was charged with having aided and abetted the appellant on the commission of the offence herein. With his evidence however learned counsel does not quarrel. He rather quarrels with the evidence of the fourth prosecution witness Kwame Bafoe and indeed he has cause to, because, according to him, the learned trial circuit judge “relied heavily” on his evidence in his judgment. In my view the fourth prosecution witness is not an accomplice. There is no evidence to show that he was a receiver. There are none of the indicia which stamps a person as a receiver in the evidence against him. The timber was sold to him in day-light. There is no evidence that, for instance, he bought the timber at an exceptionally low price and there are no other suspicious circumstances about the transaction to make him appear to have known that the timber was stolen. He would have been an accomplice vel non were there any such evidence from which the court, in the absence of a jury, could have arrived at the conclusion that he was a receiver. The conduct ofthe witness in R. v. Jennings (1912) 7 Cr.App. R. 242, C.C.A. cited by learned counsel in support of his contention that
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Bafoe was an accomplice is quite the opposite to that of the fourth prosecution witness in this case. There was evidence that Jennings bought the logs, the subject-matter of the charge, at an exceptionally low price, that he did not record the purchase in his books and in fact there were some other indicia which should have led to the trial judge leaving it to the jury to decide whether or not they considered him a receiver whose evidence needed corroboration. In fact the only evidence relied on by the prosecution in the matter was that of an isolated witness. In R. v. Dixon (1925) 19 Cr.App.R. 36, C.C.A., also relied on by learned counsel, the evidence of the prosecution was that of a man who bought the potatoes involved at a very low price and in respect of whose evidence the trial judge should have put the jury on their mettle as regards the effect of such evidence. Both cases are therefore distinguishable from this case. With regard to Owiredu the eighth prosecution witness, as learned counsel for the appellant himself asserted, “his position is not clear” and in such a doubtful situation, to cover himself, the trial circuit judge should have warned himself about convicting on the uncorroborated evidence of an accomplice. He cited the case of R. v. Kelfalla (1939) 5 W.A.C.A. 157 at pp. 159-160 in support of this contention. Even assuming that learned counsel were right in his contention, my observation above would hold good, namely, that the verdict of the trial circuit judge did not depend solely and entirely on the uncorroborated or corroborated evidence of an accomplice or accomplices.
The learned counsel for the appellant repeated also in this court the submission he made in the trial court, namely, that no prima facie case was made out against the appellant and that he should not have been called upon to answer the charge. I do not think that that submission lay in a matter like this. In fact the two previous submissions of the appellant which I have dealt with and dismissed above also have no bearing in this instant case. The facts of the case displace them completely. In this case the appellant’s case is not that he did not do the act complained of — that he did not deprive the owners (A. Lang & Co.) of the timber involved herein. He admits having given them to the fourth prosecution witness instead of conveying them to A. Lang & Co. as he was originally instructed to do. If, as alleged by the prosecution, what the appellant did amounted to a misappropriation of the goods then the evidential burden shifted on to the appellant to discharge, his defence being an independent one.
The defence put forward by the appellant cut no ice with the learned trial circuit judge. He considered it “unreasonable and untrue.” I may add that besides making it the appellant did not
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attempt to prove the allegation in any way and had therefore to be convicted.
For the above reasons I would dismiss this appeal.
DECISION
Appeal dismissed.
S. E. K.
