NTI AND ANOTHER v. THE STATE [1965] GLR 7

DIVISION: SUPREME COURT

DATE: 22 JANUARY 1965

BEFORE: MILLS-ODOI, ACOLATSE AND SIRIBOE JJ.S.C.

CASE REFERRED TO

Commissioner of Police v. Quarshie (1939) 5 W.A.C.A. 130.

[p.8] of [1965] GLR 7-12

NATURE OF PROCEEDINGS

APPEAL against a conviction for robbery entered by Akiwumi, Jun. J. sitting with the aid of assessors at the Criminal Session of the High Court, Sunyani, on 18 December 1963.

COUNSEL

C. F. Hayfron-Benjamin, Jun. for the first appellant.

Second appellant in person.

J. N. K. Taylor, Senior State Attorney, for the respondent

JUDGMENT OF ACOLATSE J.S.C.

Acolatse J.S.C. delivered the judgment of the court. On 3 November 1964 the appeal of each appellant was dismissed and we now give our reasons.

The appellants were convicted at the Criminal Session of the High Court held at Sunyani before

Akiwumi, Jun. J. sitting with assessors on 18 December 1963, of the offence of robbery under section 149 of the Criminal Code, 1960,1 and each was duly sentenced according to law. The particulars of the offence in respect of which the appellants were charged read as follows:

“Kofi Nti and Kojo Boakye on the 30th day of August, 1963, near mile 17 on the Sunyani-Atroni road stole cash the sum of £G24,000 the property of Messrs. Mim Timber Co., Ltd. by threatening shoot one Eric

Doutoh and other servants of the said company in whose custody the said sum was.”

The events leading to the arrest of the appellants are that on the morning of 30 August 1963, the accountant of Mim Timber Company travelled to Sunyani, in the company of four watchmen in a V.W. bus No. AT 2143, which was driven by Kwasi Adusia, to cash a cheque for £G24,000 at the Bank of

West Africa. It was the month’s wages for the company’s employees. The bank paid the amount to the accountant in Ghana notes. On the return journey to Mim, at mile 17 on the Sunyani-Mim road, with the moneys packed in a padlocked wooden box on the bus, they came upon a small tree lying across and obstructing the road. The driver slowed down to stop when suddenly they saw two men, one standing by one side, the other standing by the other side of the bus, each pointing a gun at the accountant and the driver. Both the accountant and the driver were ordered by these two highwaymen at the point of arms to get out of the bus and walk up the road; which they did. They then saw the bus being reversed and driven away in the direction of Sunyani. They could not recognise those who attacked them and drove away with the bus as they could not clearly see their faces. Later on the same day the fifth prosecution witness, a recruit police constable from Sunyani, whilst on duty at

[p.9] of [1965] GLR 7-12

Ntotroso saw the first appellant in charge of an Opel Rekord taxi-cab, No. AT 1266, travelling from the direction of Atroni. The first appellant drove the constable at his request, to a chief’s house at Ntotroso where with the assistance of other constables, the first appellant was arrested on suspicion. The first appellant was taken to Kumasi and at his direction the police went to a house in Kumasi where he pointed out the second appellant as one of the men who took part in the robbery, whereupon the second appellant was arrested.

The conviction of the first appellant was based substantially on the evidence of the thirteenth prosecution witness who saw the first appellant driving vehicle No. AT 2143 which contained the company’s money soon after the robbery and on the cautioned statement (exhibit X) which the first appellant made to the police when he was taken into custody. It is apparent on the face of that statement that he was the master-brain behind the robbery. A passage in the statement material to the issue reads as follows:

“We remained in the bush by the side of the road until the next day which was 30 August 1963. About 7.25 a.m., Volkswagon bus No. AT 2143 driven by Kwasi Adusia passed towards Sunyani direction from Mim.

On it was a European. About 9.20 a.m., we placed a tree on the road. About 9.30 a.m., Volkswagon bus No.

AT 2143 arrived at the spot where we were hiding. It was driven by Kwasi Adusia and the European was sitting by his side. It pulled up when it got to the spot where the tree was lying. We rushed to the bus with

Kojo Boakye pointing the gun on the European. I opened the right hand side door of the vehicle, slapped the driver who fell. All the occupants of the bus then took to their heels. I went to the steering gear and with my colleagues on the vehicle, I drove towards Kenyasi with the intention of going to Kumasi. When I boarded the vehicle, I noticed a wooden box in it and I knew that it contained money. As we were going, I noticed that Kojo Boakye and the two men were breaking the box. Before we could arrive at Kenyasi the box had been broken and the money placed in the empty cocoa bag. The money placed in the bag were £G1 and 10s.

Ghana notes . . . Between Whidiem and Teppa, I drove the bus into the bush. We then took the money with the bag to a spot in the bush about a quarter of a mile from where the vehicle was abandoned and hid it with the hope of sharing it afterwards. Kojo Boakye and two men took £G5 each whilst I took £G20 to enable me to effect repairs on my car. We then dispersed.”

The case for each appellant was adequately and sufficiently dealt with by the learned trial judge in his direction to the assessors which

[p.10] of [1965] GLR 7-12 is highly commendable, and in his judgment which is unimpeachable. The learned judge had no difficulty in dismissing as false the defence of each appellant which was a bare denial of the charge and whereupon each appellant was convicted of the offence of robbery and sentenced to ten years’ imprisonment with hard labour. Against these convictions the appellants have appealed to this court and the notice of appeal of each appellant contained the following grounds of appeal: (1) errors in law; (2) mistake and misrepresentation of facts; and (3) mere presumption without facts. At the hearing of the appeal Mr.

Hayfron-Benjamin, counsel for the first appellant, abandoned the grounds of appeal referred to supra, and was given leave to argue the following additional grounds of appeal filed on behalf of the first appellant:

“(1) The learned trial judge in failing to direct the assessors properly thereby misdirected himself on the evidence and therefore prevented the assessors from giving the proper assistance which the law required them to give the trial judge.

(2) Exhibit X was improperly admitted as the issue of its admissibility was not properly tried thereby influencing the learned trial judge in his judgment.

(3) The prosecution failed to make out a prima facie case against the first accused.

(4) Even if the prosecution made out a prima facie case against the first accused the accused gave a reasonable explanation of his activities relating to the day of the incident and was not challenged about them.

(5) The first accused person’s defence being in the nature of an alibi the learned trial judge erred in law when he failed to direct the assessors and himself on the defence of alibi open to the first accused.

(6) The judgment of the trial court is unreasonable and cannot be supported having regard to the weight of evidence on record.

(7) Proceedings a nullity for misjoinder of offenders in indictment.”

The second appellant was not represented by counsel and he appeared in person.

In developing his argument on ground (2) learned counsel contended that exhibit X was improperly admitted in evidence, his reason being that the question of admissibility of that exhibit was not properly tried. He then argued that the learned judge erred in basing the conviction of the first appellant on that exhibit. The

[p.11] of [1965] GLR 7-12 learned counsel in the course of his argument, however, conceded that the statement contained in exhibit

X was properly admitted and he therefore abandoned that ground of appeal.

Learned counsel next argued grounds, (1), (3) and (6) together and stated “that the judgment is unreasonable and cannot be supported by the evidence.” He then proceeded to argue that the evidence of the sixth prosecution witness contained certain passages which were hearsay and therefore inadmissible.

But when he critically examined the said passages he found himself unable to support his earlier contention. He then withdrew his submission and chose not to argue further on these grounds.

Learned counsel then shifted to comment upon the evidence of the sixth prosecution witness in which he testified that, “the first and second accused took me to a corner in the same office and there the first accused told me that he and the second accused and two others staged the robbery and that the money brought in was far less than what has been shown to the police now. I took them back to Jacob Baidoo (twelfth prosecution witness) and one Lovi and I repeated what the first accused had told me and the second accused confirmed.”

Counsel then argued that the evidence of the alleged confession by the first appellant was inadmissible because the first appellant was not cautioned by the witness before the said confession was made. He cited the case of Commissioner of Police v. Quarshie2 to support his argument. It is evident that the trial court accepted, as a fact, the evidence of the sixth prosecution witness that the alleged confession was made and the question posed to us is whether in the circumstances the alleged admission of guilt to him by the first appellant, without caution, is admissible as evidence against him. The record clearly shows that the first appellant made that statement while he was under arrest and he believed at the time of making it that he was being charged with robbery. In our view the first appellant should have been cautioned when he was making the statement. As no such caution was administered to the first appellant we are of the opinion that that part of the evidence of the sixth prosecution witness which is the subject of criticism in this court, ought not to have been received in evidence. But the conviction of the first appellant, as we have stated earlier in the judgment, was evidently based upon his “confession statement” contained in exhibit X and the evidence of the thirteenth prosecution witness. The wrongful admission of the evidence of the sixth prosecution witness. The wrongful admission of the evidence of the sixth prosecution witness

[p.12] [1965] GLR 7-12 referred to above, has therefore not occasioned any miscarriage of justice to vitiate the of conviction of the first appellant.

Learned counsel then took up ground (4) which in effect was that the explanation of the first appellant was not adequately considered since the activities of the appellant relating to the day of the incident were not challenged. Later in his argument the appellant’s counsel conceded that the defence of the first appellant which was in the nature of an alibi was challenged by the prosecution in the evidence of the thirteenth prosecution witness who saw the first appellant on the morning of 30 August 1963 and hailed him and that he was at the time driving vehicle No. AT 2143, the vehicle concerned in the robbery. We therefore find no substance in this ground which is considered as frivolous. Counsel then abandoned the other grounds of appeal.

The second appellant made a brief statement to the court in support of his appeal. He said:

“I was not at the scene of the incident when the robbery was committed. First appellant knew I was not at the scene. He brought the police to my residence in order that I might corroborate his story that he travelled with me to Kenyasi on a Thursday. I did not travel out of Kumasi on 30 August 1963, a Friday.”

The second appellant has consistently denied the charge against him before the trial court and before this court but, like the first appellant, his conviction was amply supported by evidence. There is evidence that he led the police to the bush to recover part of the stolen money.

Upon a consideration of the evidence as a whole we are unable to say that the conviction is unreasonable or that it cannot be supported having regard to the evidence. We venture to say that there is nothing in this appeal which can very well be argued against the convictions of the appellant. We accordingly therefore dismiss the appeal of each appellant.

DECISION

Appeals dismissed. T. G. K.