Division: IN THE SUPREME COURT
Date: 22 MAY 1964
Before: OLLENNU, APALOO AND AKAINYAH JJSC
JUDGMENT OF OLLENNU JSC
Ollennu JSC delivered the judgment of the court. On 1 May 1964, we allowed the appeal of the appellant against his conviction, quashed his conviction and the sentences passed upon him, and ordered him to be acquitted and discharged. The following are the reasons for our said judgment and order.
The appellant was convicted by the circuit judge, Accra, on 4 March 1963. He was the fourth of six defendants tried upon an indictment containing twelve counts; four of the counts concerned him, namely, count one which charged him jointly with all the other five with conspiracy to steal, contrary to sections 23 (1) and 124 of the Criminal Code, 1960,1 count four which charged him and the sixth defendant jointly with stealing an amount of £G1,800, contrary to section 124 of the Criminal Code, as amended by section 2 of the Criminal Code (Amendment) (No. 3) Act, 1963,2 and counts five and seven each of which charged him alone with forgery, contrary to section 159 of the Criminal Code, 1960. He was acquitted on count four, stealing, and convicted on counts one, five and seven. The appellant appealed against his convictions on the general ground that the verdict in each case is unreasonable and cannot be supported having regard to the evidence.
The case for the prosecution is briefly as follows: All the persons charged jointly with the appellant, with the exception of the sixth defendant, were employees of the Bank of West Africa Ltd., Tudu Branch, Accra. On 9 November 1961, the sixth defendant opened a current account with the said bank in the name of Eric Nee-Lamptey, with an initial sum of £G91. During the course of the same month, November 1961, his said account was credited with two sums of money, £G1,600 and £G1,800 1s. 2d.; the credit of the £G1,600 was made upon authority appearing on a payment order called “Mail Transfer Schedule,” exhibit A in the case, which purported to have issued from a Manchester Bank, and the credit of the £G1,800 1s. 2d. was made upon authority on a “Mail Transfer Schedule,” exhibit B in the case, which purported to have come from a Branch Bank at Apapa, Nigeria. Each of those two mail transfer schedules
were later, i.e. in January 1962, discovered to be fraudulent. It is not known by what process those forged documents got into the bank, but having got there, they went through all the official routine of the bank, save that they were not seen by the manager, the first prosecution witness, who would have received them if they had come in the normal way, i.e. by registered post.
Before the discovery of the fraud upon the bank, the sixth defendant had drawn almost the total amount contained in the said two “Mail Transfer Schedules”; he did this in two withdrawals; he drew £G1,600 on 23 November 1961, by cheque exhibit C1 and £G1,800 on 30 November 1961, by cheque exhibit C2.
The appellant lives in Christiansborg in the house of the Osu Mantse; that house was searched upon the arrest of the appellant, and there, in the public office of the Osu stool, an Imperial typewriter, exhibit R, property of the Osu stool, was found. The tenth prosecution witness attached to the forensic laboratory of the Criminal Investigation Department, Accra, put up as an expert on typewriters types, gave evidence that the said typewriter must have been the machine used to type the forged documents exhibits A and B.
The fifth prosecution witness, gave evidence that in the morning of 30 November 1961, when going to work, he travelled on a taxi together with the appellant and the sixth defendant from a bus stop at Christiansborg to Tudu; that at Tudu, the taxi stopped in front of the Tudu Bank, the appellant and the sixth defendant alighted and went into the bank, while he the witness waited outside in the taxi, that later the sixth defendant alone returned to the taxi holding a bag which appeared to contain something; and the two of them, i.e. the sixth defendant and the witness, then continued to the taxi to the place where he worked at Salaga Market, he there dropped down and the taxi drove off with the sixth defendant on it.
Upon these facts, the circuit judge acquitted and discharged the appellant on the fourth count which charged him jointly with the sixth defendant with stealing £G1,800 on 30 November 1961, but convicted him as aforesaid on the one count of conspiracy, and the two counts of forgery. The material part of the judgment, as far as the appellant is concerned, is as follows:
“As regards the fourth accused it is evident that he and sixth accused travelled on 30 November 1961 together in a taxi with P.W. 5 from Osu to B.W.A. Ltd., Tudu Branch and they went into the bank together. This is an act for a common purpose to commit a crime. They went into the bank together but sixth accused was the one who presented the cheque to P.W.3 and got away with £G1,800. The circumstances were such that it can be inferred that they had a common purpose to steal and that fourth accused knew about this. I therefore find fourth and sixth accused guilty on count 1 and convict them accordingly on count 1. I find it difficult to infer from the evidence that fourth accused took part in the stealing of the £G1,800. No evidence that he took part in the receiving of the money from P.W.3. Sixth accused came out alone and went away alone in the taxi with P.W.5. I will therefore give him the benefit of doubt on count 4 and find him not guilty on count 4. Where counts 5 and 7 are concerned, there is the positive evidence that exhibit R was found in fourth accused’s house on search. P.W.10, an expert, whose evidence I accepted, took samples of types from exhibit R on exhibits K1, K2 and by comparing them found certain characteristics which were similar with the letters on exhibits A and B. This makes exhibits A and B forgeries and also proves conclusively that fourth accused, who had access to serial numbers of the bank as a statistician, forged exhibits A and B so as
to appear as if they were mail transfers from Manchester and Apapa. This clearly satisfies the definition under section 164 (a) (1) Act 29. I therefore agree, with first and third assessors on counts 5 and 7 and disagree with second assessor. I also believe the prosecution’s case but
[p.364] of [1964] GLR 361 fourth accused’s defence. In the result I find fourth accused guilty on counts 1, 5 and 7 and convict him accordingly on them and find him not guilty on count 4 and acquit him.”
Learned principal state attorney for the respondent was compelled to confess that he could not support the conviction; he could not honestly have done otherwise.
It is quite clear from this judgment that the conviction is based entirely upon circumstantial evidence. The law on the point has been stated and restated time and again. We will repeat it again: a court ought not to convict upon circumstantial evidence unless guilt is the irresistible conclusion that can be drawn from that evidence; put in another form, there should not be conviction upon circumstantial evidence unless guilt is the only inference which can be drawn from the facts. Therefore where circumstantial evidence is consistent with guilt as well as with innocence, the court must acquit.
Now as appears in his judgment the circumstantial evidence upon which the circuit judge convicted the appellant of conspiracy may be analysed as follows: The appellant and the fifth prosecution witness who were going from their homes in Osu to their respective places of employment, took a taxi together with the sixth defendant who was also going to the Tudu Bank where the appellant worked; the appellant walked together with sixth defendant from the taxi into the bank; there the appellant went to do his work while the sixth defendant withdrew from the said bank an amount of £G1,800 which he dishonestly appropriated. After he had fraudulently withdrawn the money, the sixth defendant continued his journey with the fifth prosecution witness on the taxi to the latter’s place of business, where he, the fifth prosecution witness dropped down and went to do his work. It must be observed that while this evidence
is quite consistent with the innocence of the appellant, it does not by any stretch of the imagination lead to an irresistible conclusion of the complicity of the appellant with the sixth defendant to steal the amount the sixth defendant drew from the bank. Quite apart from this, the positive finding made by the circuit judge that it is difficult to infer from that same evidence that the appellant took part in the stealing of the £G1,800 negatives his finding that the self same evidence shows a common purpose to steal the £G1,800. Inference of guilt from this circumstantial evidence is certainly most unreasonable.
Again the reasoning of the learned circuit judge that because the typewriter, exhibit R, alleged to have been the one used to forge the documents exhibits A and B, was found in a public office in the house where the appellant lived, and because the appellant works in the bank and has access to serial numbers of the bank as a statistician, and also because a a few bank pay in slips were found in his room, therefore the appellant must be the person who forged the documents, exhibits A and B, is falacious; it is most unreasonable to infer from those premises that the appellant and no other, was the person who could have forged the documents exhibits A and B. That finding is not a justifiable inference to be drawn from those facts, and certainly not an irresistible inference which can be drawn from them. The evidence does not even raise a strong suspicion. The learned circuit judge, therefore, misdirected himself on the evidence, and the law applicable; this misdirection has occasioned grave miscarriage of justice. In those circumstances the court is in duty bound to quash the convictions.
DECISION
Appeal allowed.
N.A.Y.
