KWAME ATTA AND ANOTHER v. COMMISSIONER OF POLICE [1963] 2 GLR 460

DIVISION: IN THE SUPREME COURT

DATE: 6TH DECEMBER, 1963

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

NATURE OF PROCEEDINGS

APPEAL from a decision of the High Court affirming the conviction of the appellants for stealing entered by a district court. The facts are fully set out in the judgment of the Supreme Court.

COUNSEL

N. Y. B. Adade for the appellants.

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

JUDGMENT OF BLAY J.S.C.

Blay J.S.C. delivered the judgment of the court. The appellants were convicted by the district magistrate at Kumasi on a charge of stealing a quantity of undried cocoa beans, valued at £G27, the property of one [p.461] of [1963] 2 GLR 460

Oppon Yaw. They were each sentenced to one day’s imprisonment and a fine of £G10 or two months imprisonment with hard labour and in addition to enter into a bond of £G50 in their own recognisance to keep the peace for six months, and in default three months imprisonment with hard labour. They both appealed against the conviction and sentence to the High Court and the learned judge of the High Court dismissed both appeals summarily. It is against this dismissal by the High Court that the appellants have appealed to this court. The appellants filed identical grounds of appeal, the gist of which amounted to a complaint that the learned magistrate had failed to consider adequately the defence put up at the trial. The case against the appellants was that they were found in the morning on the cocoa farm ofOppon Yaw by one Kojo Krah busily removing or collecting undried cocoa beans from a cocoa drying mat into baskets. Kojo Krah challenged the appellants who threatened him with a knife, and he Kojo ran away and met one Kwasi Gari and one Mame Nyamikye with whom he had originally set out for the farm but who had somewhat lagged behind. He reported to Kwasi Gari and Mame Nyamikye what he had seen on the farm. The three of them then returned to the farm and discovered that all the cocoa beans had been carried away and that the appellants were nowhere to be found. They then followed a path on which some cocoa beans had been dropped which led to a place where they found the appellants drying cocoa beans. It appears that when they saw the appellants drying the beans no questions were asked before a report was made to the police against them. Under cross-examination Krah admitted that he knew the first appellant owned a cocoa farm which had a boundary with the farm of Oppon Yaw. The evidence of Kojo Krah was the only evidence direct or circumstantial which the prosecution adduced against the appellants, except that of the policeman who said that when he visited the farm he found some cocoa beans on the path which led to the place where the appellants were drying cocoa. The policeman also said that when he took up the investigation of the case he obtained statements from the appellants which were tendered in evidence as part of the prosecution’s case against the appellants. In these statements the appellants denied going to Oppon Yaw’s cocoa farm and removing cocoa beans therefrom. They said that when Kojo Krah and others met them drying their cocoa beans, Kojo Krah told them somebody had stolen cocoa from Oppon Yaw’s farm and they were looking for the thief. That they were not accused of the theft until they were taken to the police station the following day. They also said that they were not liked by the villagers around there hence the charge against them which was a frame-up. The second appellant went on to say that this was not the first time the complainant had made a false charge against him; that at one time he accused him of burning his (the complainant’s) cocoa farm when he (the second appellant) was in Kumasi at that time. Each of the appellants gave evidence at the trial repeating substantially the statements they had made to the police. They also called witnesses who testified that they had helped the appellants to break cocoa pods from the first appellant’s cocoa farm just a few days before the [p.462] of [1963] 2 GLR 460 appellant’s arrest. The evidence of these witnesses were never challenged in any way by the prosecution. The learned magistrate in his judgment convicting the appellants merely summarised the evidence given for the prosecution and touched on the defence as follows: “The accused’s defence is that they have cocoa farms and it is not likely they would go on Oppong Yaw’s farm to steal his cocoa as they had been breaking pods round about that time, and the cocoa they were drying was theirs.”

The learned High Court judge in dismissing the appellant’s appeal summarily said the magistrate’s judgment was a little terse, but did not agree that it was vague or ill-considered. With respect we do not agree with the learned judge. In our view the magistrate’s judgment was more than terse. He did not consider the defence of the appellants at all especially their statements to the police which formed part of the case for the prosecution. Neither did he consider the evidence given by the witnesses for the defence which was unchallenged and the probability that the cocoa which the appellants were found drying could be cocoa from the first appellant’s farm.

The learned senior state attorney who appeared for the Commissioner of Police has argued that all that this court was concerned with was whether there was some evidence on record which if accepted entitled the magistrate to the conclusion he reached. With that statement of the law we are in entire agreement. But it is also the duty of the court sitting on an appeal from a conviction to ascertain whether that standard of proof of the guilt of the appellants’ required by law was reached at the trial. And more particularly whether the appellants’ defence was adequately considered by the trail court. In the present case we are not satisfied that that standard of proof was reached; neither do we consider that the defence of the appellants was adequately considered by the trial court. See R.v. Dinnick1 That being the case we have no alternative but to allow the appeals, quash the conviction of the appellants and enter a verdict of acquittal in each case.

DECISION

Appeals allowed.

Verdict of acquittal entered.

K.T.

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