ATIEMO v. COMMISSIONER OF POLICE [1963] 1 GLR 117

DIVISION: IN THE SUPREME COURT

DATE: 15TH FEBRUARY, 1963

BEFORE: ADUMUA-BOSSMAN, MILLS-ODOI AND BLAY JJ.S.C.

NATURE OF PROCEEDINGS

APPEAL against a conviction for defrauding by false pretences entered by his honour Judge Bannerman sitting in the Circuit Court, Accra, on the 8th May, 1962.

COUNSEL

K. Narayan for the appellant.

D. F. Annan, Senior State Attorney, for the respondent.

JUDGEMENT OF ADUMUA-BOSSMAN J.S.C

Adumua-Bossman J.S.C. delivered the judgment of the court. The appeal is against a conviction dated the 8th May, 1962, of the appellant by the Circuit Court, Accra (Judge H. P. L. Bannerman, as he then was) on three counts of defrauding by false pretences, contrary to section 131 of the Criminal Code, 1960.1 The particulars in each case were that:

“With intent to defraud, you did obtain the consent of one Sulemanu Mensah Disu, a building contractor of Accra, to part with the amount of £G100 [in the first charge, but £G400 and £G1,000 respectively in the second and third charges] by falsely pretending that you were a top-ranking executive member of the C.P.P., and that if the said sum be given to you, you could obtain existing government contracts for the said Sulemanu Mensah Disu, which pretence you knew to be false.”

The prosecution’s case was: That during April-May 1960 the complainant (P.W.1) was constructing a building at a site near Kimberley Avenue, Accra, when one morning the appellant came there. He asked who was doing the work and the complainant replied that he was. The appellant then said he was one of the executive members of the C.P.P. and had been asked to go round to see “efficient African contractors who can put up good buildings, for now-a-days the government don’t want to give work to Europeans.” The complainant said he had tendered for a long time without success, whereupon the appellant observed that one should not tender without following it up with arrangements; he further said he was “an arrangement-man who dealt direct with the Prime Minister [at that time] through his mother,” and could arrange matters for the complainant if he wished. He then promised to return next morning to take the complainant to the Prime Minister’s mother, and came and took him as promised. They saw the Prime Minister’s sister, Afuah Nkrumah who, at the appellant’s request, took the complainant to greet her mother. From there they went to the complainant’s house where the appellant asked for £G100 with which to start arrangements. The complainant requested him to return in the afternoon and he came at about 3 p.m. and was paid £G100 by the complainant in the presence of his son (P.W.4). Subsequently the appellant got the complainant to drive him to call on one Amponsah (P.W.3), the C.P.P. Chairman of the Akim Abuakwa constituency at Apedwa, who in turn led them to Suhum to call on Mr. Amoah-Awuah (P.W.6), then Deputy Minister for Trade and Industries and Chairman of Tender Board, with whom Amponsah and the appellant had a short conversation. Afterwards the appellant explained that £G400 was wanted for Mr. Amoah-Awuah for the complainant to [p.119] of [1963] 1 GLR 117 secure the contract for a judge’s residence at Ho, and the complainant undertook to supply the amount at Accra. Still later when the complainant was driving the appellant from Suhum to his home town Amanokrom, the latter said there was another contract for a secondary school building at Kibi by the Ghana Educational Trust which was to be given out to Mr. Arthur, Director of the Educational Trust (P.W.2), Mr. Ofori-Atta, the Minister of Justice, and the Prime Minister, and that £G1,000 was required for distribution in the proportion of £G250 to Mr. Arthur, £G250 to Mr. Ofori-Atta, and £G500 to the Prime Minister, to ensure securing that contract also, and he requested the complainant to get both sums for the two contracts ready for him to collect at Accra on the morrow. Accordingly on the morning of the next day, the 27th April, 1960, the complainant accompanied by his son (P.W.4) went and withdrew £G1,500 from his savings account at the British Bank, Accra, and when the appellant called at the house in the afternoon as arranged, he was paid £G400 by the complainant for the Ho contract in the presence of his son (P.W.4). He directed the complainant to hold on to the £G1,000 awhile until he could bring Mr. Arthur (P.W.2) to see how efficiently the complainant could construct a building. Two days later he brought Mr. Arthur whom the complainant showed round, after which he went to the house in the afternoon and was paid the £G1,000 by the complainant in his son’s presence.

A few days prior to the receiving the £G1,000 the appellant had persuaded the complainant to take him into his business and change the business or firm name. The appellant brought the necessary forms which they signed together, and he went and effected the registration of the new firm with himself as a member. About the time of the receipt of the £G1,000 the Prime Minister was away in the United Kingdom. The appellant assured the complainant that he would get the contracts when the Prime Minister returned, but at that material time, the appellant could not be found. Meanwhile, through the medium of another friend, the complainant interviewed Mr. Arthur (P.W.2) and discovered something of the appellant’s misrepresentations, and at the same time learnt that the Ho contract had been given to another. Accordingly, accompanied by two friends, Aboagye (away in England at the time of the trial) and Addison (P.W.5) he sought out the appellant at his home in Amanokrom early one morning and confronted him with the discovery of his misrepresentations and frauds whereupon the appellant offered to refund his moneys and asked to be taken to a brother in Tema from whom he would get the amount. He was driven to Tema where the brother could not be found, then driven back to Amanokrom where he could get no money from anybody. The party then returned again to Tema in the hope of finding the brother but as he was still not to be found, the complainant reported the matter to the police who arrested the appellant on the 13th July, 1960, and in due course commenced this prosecution against him. [p.120] of [1963] 1 GLR 117

The appellant denied the case against him. He testified that he and the complainant became friends through membership of the Ghana National Contractors Association; that subsequently they became partners in business (as shown by the business registration forms exhibits D1 and D2 which both the complainant and the appellant mentioned) and that was why he took the complainant to Amponsah who came with them to Suhum to interview Mr. Amoah-Awuah. He also brought Mr. Arthur to inspect work at the site near Kimberley Avenue with the object of getting him to give contracts to their firm. There was however another transaction with the complainant in June 1960: on that occasion, on a visit to the complainant the latter gave him three diamonds to sell at £G400 each, but after leaving the complainant’s house with the diamonds, the appellant became frightened lest he should be found with them and arrested, so he returned and delivered the three diamonds back to the complainant. About a week later, however, the complainant said that he (the appellant) had returned only two diamonds and demanded from him £G400 being the cost of the third one. The appellant testified that he argued at length with the complainant maintaining that he had returned all three diamonds to him, but the latter remained adamant and obdurate, and the appellant therefore left him and went to his home in Amanokrom. On the 13th July the complainant arrived at the appellant’s residence in Amanokrom accompanied by two persons in plain clothes who represented that they were constables and said if he did not pay £G400 to the complainant they would arrest him. He wanted to speak to his wife but they hushed him up and put him in the complainant’s car and drove him to the C.I.D. quarters in Tema. There they again demanded payment of £G400, and on his saying he had no money, they suggested he should give his car as security, and he said in that case they should take him back to Amanokrom to get the car. On the way they branched to the work-site of one Christopher, where after he had got out and explained the circumstances to Christopher, the latter walked with him to the car and told the occupants (the complainant and the two others) that, “I had told him that they were demanding £G400 from me. Christopher then begged them to give me two or three days to get a loan and pay them but they refused.” Thereafter he took them to Asiedu (D.W.2) a mason working for Christopher, and in their presence and to their hearing told Asiedu that, “P.W.1 said I had lost his diamond valued at £G400 and is demanding the £G400 from me. Asiedu begged them for some time but they refused.” Ultimately, at the appellant’s request Asiedu accompanied them in the complainant’s car to Amanokrom where the appellant got his own car and the complainant drove his car back to Tema. The complainant then brought along a man who looked at the appellant’s car and asked how much he was selling it for but after the appellant had said that he was not selling it the complainant left with the man, and shortly afterwards came back with an inspector of police and Corporal Lartey (P.W.8) and the appellant was arrested.

The crucial part of the prosecution’s case as to the misrepresentations and the receipt of the three separate sums charged was confirmed by the

[p.121] of [1963] 1 GLR 117 complainant’s son (P.W.4); the portions about how the appellant contrived to bring Mr. Arthur (P.W.2) to the work-site near Kimberley Avenue, Accra, and how he took him through Apedwa to Suhum to see Mr. Amuah-Awuah (P.W.6) were confirmed by those witnesses; and the concluding portion as to how the complainant went with two companions to Amanokrom to confront the appellant, and the ensuing journeys to Tema, then back to Amanokrom, and back again to Tema where the appellant was finally arrested, was confirmed by Addison (P.W.5).

On the part of the appellant, the portion of his case about the branching, together with the complainant, Aboagye, and Addison, to Christopher’s work-site at Aburi was, to an extent which will be made more apparent later in this judgment, confirmed by his two witnesses, Christopher and Asiedu (D.Ws. 1 and 2). The learned circuit judge after hearing all the evidence, in his judgment firstly reviewed the evidence of the complainant in considerable detail and held that it was corroborated as regards payment of the three respective sums to the appellant by the evidence of the complainant’s son (P.W.4); he did not however discuss or comment on the evidence of the other prosecution witnesses. Secondly, he passed on to the appellant’s evidence and took note of the substance of it which he set out as follows: “The accused is denying the allegations that he received the moneys and alleges that the whole transaction was a diamond transaction in which P.W.1 (complainant) gave him three diamonds to sell. He couldn’t (was afraid to) sell them and returned them to P.W.l. Later P.W.1 told him that he (accused) returned two instead of three diamonds, and he was claiming £G400 being the value of the one which accused did not return.” In the case of the defence also he did not discuss or comment on the evidence of the two defence witnesses, but proceeded to make the following findings: “I am satisfied from the evidence that the accused represented himself to P.W.1 as an executive member of the C.P.P. who could arrange for him to get government contracts. P.W.1 believed this representation. Accused took him to President’s mother, to see Mr. Amoah-Awuah (P.W.6) and took Mr. Arthur (P.W.2) to P.W.1’s work-site. On the strength of this representation the accused obtained the consent of P.W. 1 to part with £G100 to start with arrangements for the contracts, £G400 to get him the contract for the judge’s residence at Ho, and £G1,000 for the secondary school building at Kibi. P.W.4 has confirmed and corroborated P.W.1’s evidence in respect of these payments. From the evidence and according to P.W.10, Mr. Ogum, the accused is not an executive member of the C.P.P. with any special opportunities to get contracts for P.W.1…. I do not believe the accused’s story about the diamonds. I find all the charges proved. I find the accused guilty on all counts and I convict him on all counts accordingly.” This decision is sought to be impugned on the ground (the only one of the grounds advanced which merit any serious consideration) that “the defence was not adequately considered.”

[p.122] of [1963] 1 GLR 117

Arguing this ground, learned counsel contended that the evidence of the two defence witnesses, if believed, lent support to the appellant’s case; but the learned judge completely ignored and did not consider that evidence at all, and that that is shown by the circumstance that that evidence was not discussed or commented on in any manner whatsoever in the judgment.

In this connection, let it be stressed at once and as forcefully as possible, that undoubtedly it must be recognised as undesirable, even reprehensible, for a trial judge after taking a considerable amount of evidence from both sides in a case, not to go to just that little extra trouble and discuss the whole evidence, draw attention to those parts which bear more directly on the issues outstanding in the case and are therefore the more material, and finally express his reactions to the whole evidence by commenting on it and indicating what he is able, and what he is not able, to accept. From that point of view, it is unfortunate that the learned judge in the instant case did not discuss and comment on the evidence on both sides more than he did. Nevertheless, we do not think the general complaint against his decision, namely, that he did not give adequate consideration to the defence is well-founded. In Azumah v. The King,2 a similar complaint was made against the manner in which the trial judge had dealt with the case of the accused. Blackhall P. explained and pointed out the scope and limits of a trial judge’s duty when he embarks upon a consideration of the defendant’s case:

“Another ground of appeal was that the learned trial judge did not go into sufficient detail about appellants’ defence of Alibi and in particular second appellant’s defence, and in support of this the case of Rex v. Kamara & Others, 8 W.A.C.A. 95 was cited. In that case the Court of Appeal criticised the trial Judge for failing to direct the jury in detail as to the defence of one of the accused. Presumably the evidence in that case was of such a nature that the Court considered it was necessary to examine the defence in detail but the passage should not be taken as laying down a general rule that in every case the defence must be examined in detail. The well-established principle is simply this: that the prisoner’s defence must be adequately placed before the jury, that is to say, the jury must have been reminded of the general nature of the defence and so long as the real nature of the defence has been explained, a Court of Appeal will not interfere merely because particular points have not received the emphasis or attention that the defence would like.” According to this test, namely whether or not the real nature of the appellant’s defence was placed before the jury, there can be no doubt that the learned judge in the instant case reminded himself about the appellant’s defence, the substance whereof he took the trouble to set out in his judgment. It is however argued that the gravamen of the defence was the evidence that on the 13th July, 1960, as the party consisting of the appellant, the complainant, Aboagye, and Addison, in the course of driving in the complainant’s car from Tema to Amanokrom, branched to [p.123] of [1963] 1 GLR 117

Christopher’s work-site at Aburi, and the appellant got down from the car and went and spoke to Christopher, he reported or explained to the latter that the complainant was demanding from him £G400 representing the value of a diamond which the complainant alleged he, the appellant had lost, and therefore he (the appellant) was in need of £G400 to pay to complainant to secure his release; that Christopher then walked with the appellant to the complainant and his companions in the car, and Christopher then put to the complainant the terms of the appellant’s report against him, mentioning specifically that the appellant’s report was that £G400, the cost or value of a diamond, was being claimed or demanded from him; that the complainant then accepted or agreed to what was put to him as accurate or true; that in the same way the appellant also reported or explained to Asiedu that £G400, the value of a diamond which the appellant was alleged to have lost was being claimed or demanded from him, and Asiedu in turn put this report to the complainant, and again the complainant accepted or agreed that what the appellant reported to Asiedu and the latter put to him, the complainant, was accurate or true. In those circumstances the evidence of those two defence witnesses supported the appellant’s defence, but the learned judge did not discuss or comment on their evidence, which meant that he did not adequately consider the defence. It falls therefore to examine that submission critically.

In embarking upon a critical consideration of this submission, it will be found, firstly that on the 13th July, 1960, on the occasion of the appellant’s arrest, according to Corporal Lartey (P.W.8) the complainant pointed out the appellant and said, “This is the man who has defrauded me in the sum of £G1,500,” whereupon he was arrested and taken to the police station; that he (Corporal Lartey) asked the appellant if he was the man who, as the complainant had alleged to his hearing, had defrauded the complainant of the sum of £G1,500; and that the appellant, contrary to what one would have expected, did not then put forward the defence that the whole matter originated in a diamond transaction and that only a few hours previously the complainant had admitted that to Christopher and Asiedu. Secondly, and this is much more important, the appellant himself voluntarily made two separate statements to the police; exhibit B dated the 14th July, 1960, the day after his arrest, and exhibit Fl dated the 13th August, 1960, after he had been on bail as from the 14th July, 1960. In both statements, which are relied on as supporting the defence, he specifically narrated the incident of the visit to Christopher’s work-site at Aburi, and how he told first Christopher, then Asiedu, as a prelude to applying to each for a loan, that the complainant was claiming £G400 from him which was the value of a diamond which the complainant alleged the appellant had lost. It is, however, of crucial and decisive importance and significance that in neither statement did he disclose this defence now so strongly relied on in this appeal, namely, that Christopher and Asiedu (or even one of them) put to the complainant that the appellant said the complainant was claiming £G400 the value of a diamond alleged to have [p.124] of [1963] 1 GLR 117 been lost by the appellant and the complainant admitted or agreed that that was so.

What he said in his first statement exhibit B was this:

“Soon they took me back to Aburi where I approached a friend of mine by name Asiedu if he could help me. Asiedu said he was having no money at present. I went to another friend of mine a white man called Christopher for help, but he too said he was having no money at the moment. From there I was brought back to Tema and taken to police station.”

And what he said in his further statement exhibit Fl dated the 23rd August, 1960 (at a time when he had been on bail as from about the 14th or 15th July after giving his first statement) was this:

“When I arrived at Aburi with Disu and the two men who said they were policemen, the first man I saw was Mr. Christopher to whom I revealed the diamond transaction; and asked for £G400 loan as the men said they would not set me free if I failed to pay the £G400. After talking with Mr. Christopher I enquired of Mr. David Kwabena Asiedu from Mr. Christopher, who informed me that he (Asiedu) was working upstairs. I went to see Asiedu at the upstairs with Mr. Disu and the two men.”

In our view, if it were true, as is now submitted, that on the occasion of that visit to Christopher’s work-site, both Christopher and Asiedu (or even only one of them) put the appellant’s explanation of the origin of the complainant’s alleged demand for £G400 to the complainant and he agreed or admitted that it was true as alleged by the appellant, that it was the cost or value of a lost diamond which he was claiming, and the appellant knew of this admission by the complainant as far back as 13th July 1960, and prior to his arrest, then it is impossible to account for or give any reasonable explanation of the appellant’s failure to disclose that crucial part of his defence in both or either of his statements. He made a third statement, exhibit F2 on the 25th August, 1960, in which also he did not disclose this all important defence. In our opinion, therefore, that non-disclosure had a conclusive and decisive effect on the veracity of the story. Thirdly, when the defence came to be first raised at the trial, it was introduced in the form that the complainant expressly admitted to Christopher that the appellant was owing him £G400 “for diamond.” The classic dictum of Lord Herschell L.C. in Browne v. Dunn3 is:

“It seems to me to be absolutely essential … where it is intended to suggest that a witness is not speaking the truth on any particular point, to direct his attention to the fact, by some questions put in cross-examination showing that that imputation is intended to be made.”

Accordingly the appellant’s version was put to the complainant during the latter’s cross-examination. Now the question which was put in cross-examination and denied by the complainant, can be clearly ascertained from his answer that, “It is not true that at Aburi Mr. Christopher said the accused asked him [for] £G400 for diamond.” In other words, did not Christopher put to the complainant the appellant’s allegation that the

[p.125] of [1963] 1 GLR 117 complainant was claiming £G400 from him “for diamond,” or as the value of a diamond, and he admitted? The further suggestion that the same thing took place as far as Asiedu also was concerned, i.e. that he also put the appellant’s report to the complainant, must be deemed abandoned, because no question as to what Asiedu also put to the complainant was asked the latter under cross-examination. It is important, however, that the same question, whether Christopher did not put forward the appellant’s allegation that £G400 was being claimed from him which was the value of a diamond alleged lost by him, was put to Addison (P.W.5) during his cross-examination, for he answered as follows: “Mr. Christopher didn’t talk about diamond at all.”

When, however, we leave the suggestion made in cross-examination to the complainant and to Addison, namely, that Christopher put specifically to them that they had reported to him (Christopher), and then turn to the appellant’s own evidence on this crucial point, we find that what the appellant himself said was this:

“At Aburi we met a European by name Christopher. I begged them and went to Christopher and told him that the gentleman said I had lost his diamond so I should pay £G400. I asked him to find a loan of £G400 for me to pay him. I walked with Christopher to them … Christopher told them that I had told him that they were demanding £G400 from me.”

In other words, the sting in the story, the most vital part, that Christopher had mentioned to the complainant and his companions in the car that according to the appellant they were claiming the value of a diamond from him, was now abandoned by the appellant himself in his evidence-in-chief. We find that still later in his cross-examination he unequivocally and categorically abandoned this suggestion of the mention of a diamond by Christopher to the complainant, when he stated in answer to cross-examining counsel that, “I told Christopher about the diamond…Christopher told P.W.1 that Atiemo [appellant] said he [P.W.1] was claiming £G400 from him. He made no mention of diamonds.” (The emphasis is mine.) With regard to Asiedu, what the appellant said about him was this:

“When we went to Asiedu I told him that P.W.1 said I had lost his diamond valued at £G400 and he was demanding the £G400 from me. Asiedu could not get the £G400. He begged them for some time but they refused.”

It is true that Asiedu himself in his evidence, after that of appellant, said:

“When the accused was telling about the diamond the people (complainants, Aboagye and Addison] heard it. I told them that accused had asked me to find him money to pay for diamond but I had none, so they should give him time to pay. They left me and went down to Christopher.”

But, having regard to the cross-examination of both the complainant and Addison when it was never suggested to either of them that Asiedu also put any report which the appellant allegedly made to him to them, and

[p.126] of [1963] 1 GLR 117 more important, to the appellant’s own description in his statements to the police and his evidence in court above set out, when he never suggested that Asiedu also put any report he made to him to them, it is clear that Asiedu’s evidence was false, and the learned judge was entitled to withhold the adverse or unfavourable comment which, in all the circumstances, was the only proper comment he could have made against that evidence: see R. v. Nicholls.4

The resulting position, then, was that even when at the trial this suggestion was made that Christopher put to the complainant the appellant’s report of a debt of “£G400 for diamond” and he denied it, the evidential onus then fell on the appellant to establish his suggestion which had been denied. But the appellant in the making or proving of his case completely abandoned the crux or substance of it, namely, that a diamond transaction was put to the complainant and he admitted it. In these circumstances, it seems reasonably clear that the appellant’s story of a diamond transaction did not derive or draw any support whatsoever from any admission of it which the complainant was proved to have made to either Christopher or to Asiedu or to both as a result of either or both of them having put the appellant’s alleged report to the complainant and his having accepted or assented to it, as is suggested by counsel for appellant in his submissions. On the contrary that diamond transaction story rested only and solely on the appellant’s statements and evidence, and accordingly, the learned trial judge cannot, in our view, be legitimately or properly criticised for having, allegedly, wrongly neglected to discuss or comment on the evidence of Christopher and Asiedu in relation to his rejection of that diamond transaction story of the appellant. A careful study and appreciation of the evidence before him reveals that to neither Christopher nor Asiedu did the complainant admit any diamond transaction specifically put by either to him, and counsel’s submission to the contrary was misconceived. The trial judge was therefore, in our opinion, more than justified in his rejection of the appellant’s diamond transaction story.

In R. v. Kwaku Owusu,5 the court observed that:

“Every case must rest upon its own facts, and in every case it is for the judge of the facts at the trial—whether that judge of facts be a jury, or, as in this case, a judge assisted by assessors—having the advantage of seeing and hearing the witnesses, to decide . . . on the facts . . .”

In view of that and other decisions to the effect that where there is evidence before the “judge of the facts,” it is not for the appeal court to interfere and disturb findings of fact by the trial judge, the presiding judge at the hearing enquired from counsel for appellant if he could cite any case which might assist the court; counsel was not able to do so at the time but subsequently forwarded to the court the case of R. v. Stepto6 (coram Lord

[p.127] of [1963] 1 GLR 117

Goddard C.J., Ormerod and Barry JJ.) the report of which is the following:

“S. was convicted at West Sussex Quarter Sessions of receiving stolen property. At the trial, S. contended that he could not have received the property because he was elsewhere at the time it was alleged to have been received, and he called four witnesses to support his case. S. appealed to the Court of Criminal Appeal against his conviction on the ground of misdirection of the jury in that the defence was not put to the jury.

Held, allowing the appeal, that the learned Chairman did not refer at all to the evidence given by the witnesses for the defence, and all that was said about the case for the defence in the summing-up was that the defence was an alibi which the jury would no doubt think had been pulled to pieces by counsel for the prosecution. The learned Chairman did not remind the jury about the evidence for the defence, nor did he comment on it. The fact that the jury would probably not accept the defence was not relevant; the prisoner was entitled to have it put to the jury. The conviction would be quashed.”

Now, of course, no one can possibly doubt or dispute the force of the line of cases which stress the very salutary principle that just as the prosecution’s case must be fairly put to the jury, so correspondingly, the defence’s case must be fairly put to the jury. The line of cases commenced with R. v. Warner,7 dealt with at the first Session of the English Court of Criminal Appeal in which Walton J. said, “I think it is a serious flaw in a summing-up if it does not put the case for the prisoner to the jury as carefully as the case for the prosecution.” It reached its highest level with R. v. Dinnick,8 where Lord Alverstone C.J. said: “But there is a principle of our criminal law which we think has been violated in this case—namely, that when a defence, however weak it may be, is raised by a person charged, it should be fairly put before the jury. The appellant, during the trial, raised the defence that he had a right, as an officer of this church, to object to the proceedings that were going on. It may have been very foolish and unfounded, but that defence ought to have been put before the jury—this is a paramount principle of our criminal law—so that they could judge whether, in doing what he did, he was ‘wilfully and maliciously’ or ‘contemptuously’ disquieting or disturbing the meeting … From the beginning to the end of the trial the appellant’s defence was not put before the jury; and under the circumstances we think that the conviction must be quashed.” But then, as is only too obvious, the principle was expressed in cases where a judge is presiding in a trial with a jury constituting “the tribunal of fact”—where there is the overwhelming necessity of affording to the laymen constituting the jury the maximum assistance by directions and explanations to appreciate and understand the legal points involved in the case, and each side’s version of facts in relation to those legal points. The principle has also been extended to cases where although the judge alone is ultimately “the tribunal of fact,” nevertheless he is legally bound to consult assessors and consider their opinions, and having failed to

[p.128] of [1963] 1 GLR 117 explain to or direct the assessors adequately or at all on the real nature of the prisoner’s defence, his own decision is expressly or at least plainly based on his adoption of the assessors’ opinion, and is silent as to his having considered the real nature of the prisoner’s defence.

So in R. v. Annan,9 Michelin J. who delivered the judgment of the court, after holding that in his opinion, an “omission of the learned Judge to direct himself and the assessors to the evidence had been given by the witnesses Hayford, Hasford, and Adams, . . . amounted in law to misdirection . . .,” proceeded in respect of the decision of the trial judge, as follows, “As his decision was evidently based entirely upon the opinions expressed by the assessors, it is impossible to say now what that decision would have been, if the case for the defence had been properly put before the Assessors.”10 Again in R. v. Bio11 Kingdom C.J. (Nigeria) held as follows:

“In some cases omission to direct the assessors on some point does not necessitate the quashing of a conviction, more especially when the decision rests with the Judge alone and he has clearly arrived at his finding independently of the Assessors’ views. But in this case the Judge has stated unequivocally that if the assessors had ‘thought otherwise’ he would have deferred to them, in other words in coming to his decision he accepted the guidance of the assessors’ views. It was therefore essential—just as essential as in a trial with a jury—that the assessor’s should be correctly and fully instructed in the Judge’s summing-up. In our view they were not so instructed, in particular the learned trial Judge altogether failed to put the case of the defence adequately and fairly before the assessors—though he put the Prosecution case fully and strongly—as strongly indeed as it could have been put by counsel for the Prosecution pressing for conviction.”

The instant case however is one tried by the learned circuit judge alone as “the tribunal of fact” and having regard to the principle so often repeated by the former West African Court of Appeal and the Ghana Court of Appeal that if there be evidence before the court constituted by a magistrate or judge sitting alone which he has accepted to found a conviction, it is not the place of the appeal court to interfere with that conviction, we are unable to see how the case R. v. Stepto cited and relied on by counsel for appellant assists him. Of the many cases in which that principle has been expressed, we would mention only Attoh Kojo Okine v. Commissioner of Police,12 in which Van Lare J.A. said: “We desire to state at the outset that it is not for this court to re-try a criminal case in which a conviction has been based upon evidence which the trial court was entitled to accept. The first ground of appeal can only succeed if it is clear on the record that there is no substantial evidence in support of the conviction. If there was evidence before the trial court to support the conviction, such ground fails.”

[p.129] of [1963] 1 GLR 117

That being the principle applicable, we are satisfied there was evidence which the trial judge was entitled to accept and we would therefore not interfere with his conviction but dismiss the appeal.

DECISION

Appeal dismissed.

J. D.