SUPREME COURT, ACCRA
DATE: 1ST JUNE, 1962
BEFORE: KORSAH, C.J., SARKODEE-ADOO AND ADUMUA-BOSSMAN, JJ.S.C.
CASE REFERRED TO
Eronini v. The Queen (1953) 14 W.A.C.A. 366
NATURE OF PROCEEDINGS
APPEAL against conviction on two counts of stealing entered by the District Magistrate, Tamale (S. A. Wiredu, Esq.)
COUNSEL
Appellant in person.
K. Dua Sakyi for the respondent (the State).
[p.426] of [1962] 1 GLR 425
JUDGMENT OF ADUMUA-BOSSMAN J.S.C.
Adumua-Bossman, J.S.C. delivered the judgment of the court. This appeal is against a conviction by the District Magistrate, Tamale, of the appellant on two charges of stealing contrary to section 287 (1) of the Criminal Code,1(1) to wit (a) an Opel Rekord car of the value of £G746 12s., the property of one Israel Kenneth Bamfo of Sawla; and (b) a quantity of petrol of the value of £G 1 10s. 4d. the property of Shell Company of Tamale. The district magistrate after convicting the appellant expressed the view that the circumstances of the commission of the offences were too grave for any sentence which was within his power to impose, and he therefore remitted the case to the circuit judge for the latter to deal with the question of sentence. Accordingly Judge Djabanor in the circuit court dealt with the matter and imposed on the appellant a sentence of four years imprisonment with hard labour on each of the two charges to run concurrently. The notice of appeal filed, however, has only challenged the conviction but not the sentence, and the task of this court is limited, therefore, to considering an appeal against conviction only.
Before turning to the grounds of appeal filed, it seems necessary to consider first of all the course which the trial before the district magistrate took, as disclosed in or by the record of appeal. The disclosure is that the appellant was charged under charge sheet 608/60, which contained only one charge of stealing the Opel Rekord car. The appellant having pleaded not guilty to the charge the trial commenced on the 3rd October, 1960, when the prosecution adduced the evidence of five witnesses, including two police officers who testified to finding the appellant in the Opel car whilst on patrol duty at night in the Kumasi district and thereupon arresting the said appellant after some struggle.
After the evidence of those five witnesses the trial was adjourned and was continued on the 10th October, 1960. When the trial was about to recommence on this latter date, according to the record of appeal: “Police apply to withdraw and substitute charge sheet No. 636/60. Accused discharged. Trial continues on the new charge sheet No. 636/60. Charges read and explained. Plea— Not Guilty on both.”
The charge on which appellant was standing trial having been withdrawn and he discharged, it needs no demonstration to show that the whole of the first trial was at an end, so that a fresh charge sheet with new charges (albeit one of those new charges was the same charge from which he had just been discharged) having been put forward to which he pleaded not guilty, a completely new trial became necessary, in which all the material prosecution witnesses, notwithstanding some had given evidence at the first abortive trial, necessarily had to give evidence de novo. Instead of that, the trial was merely continued and the evidence of six additional witnesses was adduced, after which the district magistrate, apparently on the whole of the evidence, proceeded to convict the appellant on both the charges in the new charge sheet, 636/60. It is clear, however, that in doing so he erred, and that on the charges contained in the new charge sheet all the evidence adduced was that of the six fresh witnesses.
[p.427] of [1962] 1 GLR 425
The evidence of the five witnesses on the old charge sheet (which was not merely amended by the addition of a fresh additional charge but completely withdrawn) could not and did not form part of the proceedings or trial after the appellant had pleaded to the charges in charge sheet 636/60, and could not therefore be considered in determining whether the charges in the new charge sheet had been established or not. So in the case of Eronini v. The Queen2(2) Verity, C.J. (Nigeria) who delivered the judgment of the court, posed the problem which arises upon the more occurrence of such a situation in these words: “There remains the question … whether the proceedings subsequent to the second amendment and fresh plea are to be treated as a valid trial upon which if the evidence heard on 28th July [prior to the amendment] be excluded (as it must be) there was insufficient evidence to warrant the conviction which should therefore be quashed.”
The learned Chief Justice proceeded to discuss the situation and to give a definite answer to the problem which arose in these words: “on the 29th July a further amendment was granted, a fresh plea was taken to the charge … and the trial thereupon proceeded. The Crown should then have opened the case for the prosecution and adduced evidence in support of the charge as required by . . . the Ordinance. This in fact was done but unfortunately the evidence so called did not include that of the witnesses whose testimony had been adduced in the course of the invalid proceedings on the previous day. Had the Crown re-opened the case for the prosecution on the 29th and adduced the whole of the evidence we do not think that the proceedings subsequent to the fresh plea could have been open to attack . . . The failure of the Crown to commence the examination of the witnesses de novo cannot we think affect the matter by rendering that null which, had they called the witnesses, would have been valid.
We are therefore constrained to reach the conclusion that the proceedings on the 28th and following days until the delivery of judgment on the 11th August constituted a valid trial, and if in the course thereof the evidence adduced was insufficient to warrant conviction the appellant is entitled to an acquittal.”3(3)
It seems to us that the case with which we are now concerned is covered by the authority of Eronini v. The Queen (supra) and that in our consideration of this appeal we are restricted to ascertaining how far the sum total of the evidence adduced subsequent to the appellants’ plea of not guilty to the charges contained in the new charge sheet, 636/60, is or is not sufficient to establish either or both of those charges. Even in that state of the matter however, we are satisfied that the evidence was ample to warrant the conviction on both charges, because the decisively incriminating evidence of the arrest of the appellant with the car was supplied not only by P.W.6 but by the appellant’s own statement to the police, exhibit D, which he adopted during the course of his evidence in his defence. As regards the charge of stealing petrol, the incriminating evidence was supplied by P.W.7.
In the result we are satisfied that the appellant’s conviction was amply warranted and we accordingly dismiss this appeal against his conviction.
DECISION
Appeal dismissed.
