MANTEY AND ANOTHER v. THE STATE [1965] GLR 229

DIVISION: HIGH COURT, ACCRA

DATE: 8 APRIL 1965

BEFORE: ARCHER J.

NATURE OF PROCEEDINGS

APPEAL by the first appellant against his conviction for stealing and by the second appellant against his convictions for aiding and abetting stealing and dishonestly receiving stolen property. The convictions had been entered by a district magistrate, Accra. The facts are fully set out in the judgment.

COUNSEL

I. Amoo-Lamptey for the first appellant.

Miss Asabea Ayisi for the second appellant.

V. E. A. Kisseih, State Attorney, for the State.

JUDGMENT OF ARCHER J.

The first appellant, Emmanuel Essiam Mantey, was convicted at a district magistrate’s court sitting at

Accra on a charge of stealing one West African Examinations Council map for the Joint School

Certificate Examinations and General Certificate of Education 1964 valued at three pence being the property of the West African Examinations Council, Accra. He was sentenced to one day’s imprisonment and fined £G25 or three months’ imprisonment with hard labour in default. He, was also required to execute a bond in the sum of £G200 with one surety to be justified to be of good behaviour for twelve months in default. The second appellant Isaac Costello Dei, was convicted at the same court on two counts, namely, aiding and abetting the first appellant in stealing the said map valued three pence and secondly dishonestly receiving the said map from the first appellant.

Both appellants have appealed against their convictions. It was argued on behalf of the first appellant that the learned magistrate was wrong in law in convicting the first appellant on the evidence of the second appellant which is contained in a statement he made to the police – exhibit A. The whole judgment with its remarkable qualities of conciseness and brevity bereft of any details and super – fluities is as follows:

“On the evidence I am satisfied the guilt of each of the accused has been proved to the hilt. I do not believe the second accused from his demeanour in the box. From the said

[p.231] of [1965] GLR 229 demeanour I accept as true rather the content of his statement exhibit A which taking the case as a whole shows the picture. I find as a fact that the accused approached the first accused for a map to be sent to the fourth prosecution witness at Winneba. I therefore find the first accused guilty on the first count and the second accused also guilty on counts 2 and 3 and I convict them accordingly.”

The learned counsel for the first appellant has impeached this judgment and has relied on the case of

Danso v. R.1 which reiterated the principle of criminal evidence that a cautioned statement by a second appellant implicating the first appellant was not in law evidence against the first appellant. It was also submitted on the strength of Egbe v. R.2 that as the evidence for the prosecution showed inconsistencies and conflicts the learned magistrate should have clearly and in detail stated the considerations which affected his mind and the reasons for his judgment; and then finally reliance was placed on the now popular cases of R. v. Ansere3 and R. v. Abisa Grunshie4 which establish that a court is not entitled to reject a defence simply because it does not believe it. The court must consider, short of believing a defence, whether or not it may reasonably be true.

In reply the learned state attorney argued that there was evidence to support the conviction of the first appellant after consideration of the whole evidence on the authority of R. v. Abisa Grunshie (supra). I have had the opportunity of reading and re-reading the whole evidence and it seems to me that there are inconsistencies and conflicts which should have compelled the learned magistrate to state in detail why he thought the charge of stealing preferred against the first appellant had been proved to the hilt, to use his own words.

The chief lithographer, the first prosecution witness, received the order to print the maps in August 1963.

He printed and despatched them to the customer, i.e. the West African Examinations Council, although the date of despatch was not given in evidence. According to the first prosecution witness damaged sheets are cut in parts and destroyed. He identified exhibit C the alleged stolen map as a damaged sheet. He also stated that he made several maps for several purposes such as for schools examinations and offices.

Although he said there was instruction to destroy surplus maps yet he did not know whether such instruction was to printers over whom he had

[p.232] of [1965] GLR 229 control. The second, prosecution witness, who works under the first prosecution witness, said on 18

October 1963 he received an order from the first prosecution witness to print maps for the West African

Examinations Council and that whilst printing the maps, the first appellant did not come to his office, although he had access to his machine. He was emphatic that damaged maps were used as cancelled sheets-that is they are kept for the unprinted side to be used in setting a new job. They do not throw away cancelled sheets or damage them.

On 30 May the fourth prosecution witness, Akuffo, received the mail containing exhibits C and D. The first appellant made exhibit B his statement to the police on 5 June 1964, in which he said the second appellant approached him two months previously for some cancelled sheets. If the cancelled sheets were therefore stolen at all the act of stealing must have taken place some time in early April 1964 or afterwards. There is no doubt that the first appellant gave some cancelled sheets to the second appellant and what the learned magistrate should have considered was whether the first appellant had the intent to steal those sheets including specifically exhibit C. In my view the animus furandi must be proved by the prosecution. Moreover section 125 of the Criminal Code, 1960,5 states that “A person steals if he dishonestly appropriates a thing of which he is not the owner.” Then section 120 (2) of the same Act also provides that:

“It is not necessary, in order to constitute a dishonest appropriation of a thing, that the accused person should know who is the owner of the thing, but it suffices if he has reason to know or believe that some other person, whether certain or uncertain, is interested therein or entitled thereto, whether as owner in his own right, or by operation of law, or in any other manner . . .” The crux of this appeal is therefore did the first appellant have reason to know or believe that the West

African Examinations Council was interested in the damaged sheet exhibit C or entitled to it? In my view there is no evidence to support such knowledge or belief. The first prosecution witness himself had said that he had dispatched the printed order to the customer and he identified exhibit C as a damaged sheet which should have been destroyed or burnt. Wherein lies the council’s interest in or entitlement to the damaged sheet? The view I take is that there is a complete laxity in

[p.233] of [1965] GLR 229 the security measures in the lithographic section of the Survey Department. This laxity led to damaged papers meant for an examination being placed at the disposal of other workers in the printing section of the department. There is no evidence that the first appellant knows that the second appellant would send this damaged sheet to the fourth prosecution witness at Winneba.

The learned magistrate appears to have convicted the first appellant solely on the demeanour of the second appellant in the witness-box without indicating what aspect of the demeanour shattered the credibility of the second appellant. He also convicted the first appellant solely on the statement by the second appellant to the police, exhibit A, which the second appellant renounced in the witness-box. There is therefore no doubt that the learned magistrate erred in law in view of the authority of Danso v. R.

(supra) and failed to give reasons for his judgment notwithstanding the conflicts in the evidence of the first and second prosecution witnesses as to whether or not damaged examination maps are destroyed according to standing instructions.

I have always looked upon R. v. Abisa Grunshie and R. v. Ansere (supra) as twin astronauts capable of achieving feats in the judicial firmament for the benefit of convict appellants but I have also observed that they are always subject to ground control which is the whole evidence itself. In this appeal I think the whole evidence cannot support the conviction of stealing a damaged map which any officer in the printing section can lay his hands on for a variety of purposes for instance in wiping his hands or cleaning himself in the lavatory. Indeed the damaged sheet was scrap.

As an appellate court I should be naturally loth and slow to disturb a finding of fact by the trial magistrate who has had the advantage of observing the demeanour of the witnesses including the appellants; and in the words of Lord MacMillan in Watt (or Thomas) v. Thomas,6 “Their candour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial.”

Nevertheless R. v. Ansere (supra) establishes that where facts are capable of both innocent and criminal interpretations of the conduct of an accused person, a court is bound to take the innocent interpretation unless there is some definite evidence or circumstances which completely exclude that interpretation. The view I hold is that in this case, there were circumstances capable of an innocent interpretation and reasonable doubt which should have been resolved in favour of the first appellant.

[p.234] of [1965] GLR 229

Byrne J. in R. v. Patel7 put the role of an appellate court, in these words:

“to steer between the Scylla of releasing to the world unpunished an obviously guilty man and the Charybdis of upholding the conviction of a possibly innocent one. In such a case the court would lean to the more merciful course, since it is better to release the guilty than to run the risk of convicting the innocent.”

I must confess I have not come across a better locus classicus than Byrne J.’s words although the same principle appears to have been reduced into plebeian language by other judicial pronouncements.

For the above reasons, the appeal of the first appellant is allowed and his conviction quashed and the sentence set aside. He is acquitted and discharged.

As learned counsel for the second appellant has submitted that if the first appellant succeeds then the convictions against the second appellant could not stand, I am of the view that it is not necessary for me to consider the grounds of appeal by the second appellant.

The second appellant’s convictions for aiding and abetting and for dishonestly receiving stolen property are also quashed and the sentence set aside. It is further ordered that the fines imposed by the court below if paid should be refunded to the appellants and the bonds if executed are declared of no effect as if they had not been executed.

DECISION

Appeal allowed.

S. K. D.-B.