COMMISSIONER OF POLICE v. TUNDAY LAGOS
[SUPREME COURT, ACCRA]
DATE: 23RD FEBRUARY, 1962
COUNSEL
K. Narayan, with him H. P. Swaniker for the appellant.
P. A. Adjetey for the respondent (the State).
JUDGMENT OF VAN LARE J.S.C.
Van Lare, J.S.C. delivered the judgment of the court. The events leading to the arrest and trial of the
appellant were that during the period March to November, 1960, a number of thefts of Post Office
copper wire was reported to the police. Some copper wires were cut down from telephone lines to
various towns such as Accra and Takoradi, and the estimated loss therefrom was given as £G10,000
from January to December, 1960. On the 17th November, 1960, the police in Accra searched the
premises of the appellant, a scrap metal dealer, and discovered a small quantity of certain wires
believed to be property of the Ghana Government valued at about £G2 10s. together with other wires
which could not be identified but were suspected to be government property or genuine scrap.
The appellant was charged before the Circuit Court, Accra, presided over by Judge Jiagge on the 17th
March, 1961, in respect of the articles found in his possession on two counts. The first count charged
him with stealing some of the copper wires and the second count with being in unlawful possession of
the remaining articles including copper and red wires, quantity of water equipment spares, and a
quantity of lead. The trial proceeded summarily and all the articles were exhibited and marked exhibit
Al to A16. We found ourselves unable to ascertain the nature of the exhibits so marked, or their
identity in relation to the charges, and the position became more complicated by the witnesses simply
referring to the exhibit numbers and not by the articles as described in the charges. Confusion became
worse when the exhibits came to be sub-marked, e.g. A1A to J; A3A, B, C, etc. The trial proceeded
with much apparent confusion with regard to the exhibits and it must have appeared to the court that
the charges were defective, and that some alteration should be permitted in order to regularise the
position. We refer to the judge’s minute made at a certain stage, during the case for the prosecution in
the following terms:
“Prosecution continues. C.O.P. applies to amend charge and substitute stealing for unlawful possession
in respect of Exhibits A3c, A8b and A5b. Amendment read to accused. No objection. Amendment
granted”.
The charges were laid under the Criminal Code1(1), and the Criminal Procedure Code2(2) was
applicable, section 172 (1) of which was as follows:
“Where, at any stage of a summary trial before the close of the case for the prosecution, it appears to the
Court that the charge is defective, either in substance or form the Court may make such order for the
alteration of the charge either by way of amendment of the charge or by the substitution or addition of a
new charge as the court thinks necessary to meet the circumstances of the case:
“Provided that, where the charge is altered as aforesaid, the Court shall thereupon call upon the accused person to plead to the altered charge”.
In the case before us it did not appear that the appellant was called upon to plead to the altered charge.
There is also nothing to indicate the amendment which was supposed to have been made. Our enquiry
by calling for the original record book and also the original charge sheet
[p.129] of [1962] 1 GLR 127
could not help; we instead discovered that there was a substitution of another charge sheet not
showing the two counts as amended but rather disclosing three counts, that is to say, two counts of
stealing and one of unlawful possession in respect of the same articles.
We find it difficult to appreciate the true position as to which of the two charge sheets the trial
proceeded from at that stage. There was one with two counts and the other with three counts; but in
the end convictions appeared recorded in respect of “1st Count” and “2nd Count”. Whether the
convictions were in respect of the two counts on the earlier charge sheet or in respect of the first two
of the three counts on the subsequent charge sheet was not clear.
It appeared to us in the circumstances that either the earlier charges were withdrawn and others
substituted, in which case the original charges were no longer before the court at the end of the trial,
and upon which convictions could not have been recorded; or that there was no alteration of the
charges in which case there would not have been no need for the judge’s minute quoted above; but
there was in fact another charge sheet of three counts. We assumed in the circumstances that the
original charges were withdrawn and fresh charges substituted; in that event it was necessary to
discharge the accused on the former charges and take fresh pleas on the new charges, and the trial
should have commenced de novo. This was not done.
The learned trial circuit judge appeared to have overlooked the fresh charge sheet of three counts and
in her otherwise carefully considered judgment dealt with the former charge sheet of two counts
which were no longer before her, and made convictions in respect of them. We found it difficult to
assume that the conviction on the first count as recorded related to the first count of the substituted
charges, and that the conviction recorded as to the second count, related to the second or the third
count of the substituted charges. Even if we assumed the position to be so, there would still be
remaining another count in respect of which it had to be assumed that the trial did not terminate.
We are therefore of the opinion that there was some confusion in the mind of the learned trial circuit
judge as to her conclusions in respect of the exhibits, which were muddled up in the judgment. We
observe from the evidence on record that some of the exhibits could not be identified with any degree
of certainty, and that others were described as genuine scrap; further the expert witness from the Posts
and Telecommunications Department did not know whether the wires identified as government
property, were part of the wires cut down from telephone lines in the country as reported to the police.
Such pieces of evidence were bound to lead to complications and the judgment failed to deal with this
aspect of the matter. This was important for the defence because the appellant being a scrap metal
dealer might come to be in possession of these articles which he could reasonably have innocently
purchased from the public for the purpose of his trade. Complication is a good weapon for the defence
as it would naturally raise a reasonable doubt as to guilt.
We come to the conclusion after anxious consideration of the proceedings that the trial was
unsatisfactory and it would therefore not be safe to let the conviction stand.
DECISION
Appeal allowed.
