OFEI v. THE STATE [1965] GLR 680

DIVISION: SUPREME COURT

DATE: 23 NOVEMBER 1965

BEFORE: OLLENNU, SIRIBOE AND LASSEY JJ.S.C.

CASES REFERRED TO

(1) R. v. Golathan (1915) 84 L.J.K.B. 758; 112 L.T. 1048; 79 J.P. 270; 31 T.L.R. 177; 24 Cox C.C.

704; 11 Cr.App.R. 79, C.C.A.

(2) R. v. Field (1943) 29 Cr.App.R. 151, C.C.A.

(3) R. v. Muambo (1941) 7 W.A.C.A. 27.

NATURE OF PROCEEDINGS

APPEAL against conviction for stealing on a plea of guilty. The facts are fully set out in the judgment of the court.

COUNSEL

Appellant in person.

S. M. Boison, Principal State Attorney (with him Aikins, State Attorney) for the respondent.

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JUDGEMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. The appellant is an ordained minister of the

Methodist Church, and was at all times material to this case, the circuit superintendent in charge of the

Axim circuit of the Methodist Church; by virtue of that office he was also the local manager of all schools in the district within the Methodist educational unit and others under the management of the said unit; his duties in that regard include payment of salaries of all teachers employed in those schools. He was brought before the Circuit Court, Axim, some time in November 1963, charged with 75 counts of stealing various sums of money, properties of the several teachers of the schools under his management. The case was adjourned from time to time, and on 15 February 1964, the charges were withdrawn and ‘fresh ones preferred against him. The only apparent difference between the charge sheet which was withdrawn and the new one preferred is the title; the title of the original charge sheet read, “C.O.P. v. Sampson Titi Ofei,” while that of the substituted charge sheet reads, “The State v. Sampson Titi Ofei.” Bail was granted to the appellant in the sum of £G1,000 with two sureties each to be justified but he was unable to procure sureties who could be approved of, so he remained in custody throughout the hearing of the case.

The trial of the case commenced on the said 15 February 1964, and continued, adjourned from week to week, until 21 March 1964, when it concluded. The full record of proceedings taken by the circuit judge on that day is as follows:

“The State v. S. T. Ofei.

The accused applies to speak at this stage. Case re-opened. The accused changes his plea to guilty. Charge read and explained to the accused again. Plea: Guilty to all counts. Pleads in mitigation that the stamps were bought and got lost. Forty-five witnesses have given evidence already and the facts are plain and the plea of guilty is accepted. The explanation does not vitiate the plea of guilty.

Sentence: Three years’ imprisonment with hard labour. Exhibit to be refunded to Ghana Government under section 147 (1) of Act 30.”

The impression which this record conveys is that the case for both sides had closed, the appellant then requested that the case should be re-opened, the circuit judge re-opened it in compliance with that request, thereupon the appellant withdrew his plea of not guilty, and pleaded guilty to the charges. It is most unfortunate that this record made by the learned circuit judge contradicts the record he had taken down on the hearing date immediately preceding the hearing on

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21 March 1964. The record prior to that date shows that the prosecution had called 45 witnesses, but had not closed their case; consequently the appellant could not have closed his case, and there would be no question of the court re-opening the case.

Immediately after his conviction and sentence the appellant filed a petition for appeal against his conviction; he supported the petition with an affidavit in which he alleged that he had not pleaded guilty to the charges, that before the court sat on 21 March 1964, the court clerk and the police inspector in charge of the case had come to him in the cells, and told him that the circuit judge who had been trying the case was proceeding on transfer, and so if he the appellant would say that he was guilty with explanation, the circuit judge would accept his explanation and let him off to go and settle the matter with the complainants. Therefore, the appellant said, when the case was called, and the circuit judge asked him again if he had anything to say, he did as the clerk of the court and the inspector of police had told him explained to the court that he had applied the moneys in buying compulsory savings stamps for the complainants, but owing to his many duties he had got some of the stamps mixed up and others mislaid.

The learned judge of the High Court, Bruce-Lyle J. (as he then was) before whom the appeal came, caused copies of the affidavit of the appellant to be served upon the clerk of the court and the inspector of police mentioned therein, to enable them to reply to the allegations made therein by the appellant against them. The two officers then swore to and filed affidavits in almost identical terms; the relevant paragraphs of the affidavit of the police inspector, Joshua Benjamin Hayford, are as follows:

“(2) That when the case was called and the accused came into the dock the presiding judge asked the accused if he still maintained his plea of ‘not guilty’ and the accused replied yes.

(3) That the judge then told prosecuting police officer Mr. Ashong that he would adjourn the case to be retried afresh by another judge as he the presiding judge was going on transfer to Cape Coast.

(4) That when the judge said this the accused started to make a statement explaining how he could not trace the bond stamps which he had kept in an envelope and entreated the judge to consider his case.

(5) The presiding judge then remarked to the accused that it seemed from what he was saying he was trying to change his plea.

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(6) That the accused replied ‘yes’ and the court asked all the 75 charges to be read to the accused who pleaded guilty to each count.

(7) That the accused pleaded guilty of his own accord and I never at any time told or persuaded the accused person to plead guilty.”

By their affidavits, the clerk of the court and the inspector of police discredited the proceedings of 21

March 1964, as recorded by the circuit judge, and showed the true proceedings of the day in a worse light than the appellant had had courage to portray them. The learned judge of the High Court considered the remarks made by the circuit judge in court on 21 March to be “most indiscreet and uncalled for”; yet he said he felt “very reluctant to entertain this appeal against conviction,” giving as his reason: “I … find from the circumstances as deposed in the affidavits before me that there is nothing to show that appellant did not intend to change his plea to that of guilty.” With this finding of the learned High Court judge we entirely disagree.

The case came before the trial circuit court no less than eight times during the two months that the trial lasted. Apart from the plea taken on the first day at the commencement of the trial, at no time was a fresh plea taken before the proceedings of any subsequent day began. Why was it then that on this fateful day

21 March 1964, the trial circuit judge asked the appellant as soon as he came into the dock whether he was persisting in his plea of not guilty? Was he expecting the appellant to change his plea that morning from not guilty to guilty? Again, upon what legal grounds did the learned circuit judge tell the appellant that the explanation he gave is tantamount to a plea of guilty? The explanation being that he had not stolen the moneys ‘ but had applied them in purchasing development bonds stamps on behalf of the teachers, but had misplaced the envelope in which the stamps were kept?

We are of the opinion that the conduct of the circuit judge as revealed in the three affidavits, contravenes all principles of justice as administered in our courts, and deserves greater condemnation than saying merely that it is “most indiscreet and uncalled for” as the learned judge of the High Court described it.

When a magistrate or judge receives notice of transfer at a time when he is in the middle of a part-heard case he may do one of three things:

(i) give a little more time to the part-heard case without prejudice to other cases on his list to enable him to finish it in time before his departure,

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(ii) adjourn all new cases and continue with the part-heard case from day to day until he concludes it, or

(iii) report the pendency of the part-heard case to the Chief Justice who may do one of four things:

(a) direct that the judge or magistrate should conclude the particular part-heard case before proceeding on the transfer,

(b) direct that the judge or magistrate should go on the transfer but should go back at a stated time to conclude the case,

(c) transfer the part-heard case to the district, circuit or the court to which the officer is proceeding on transfer to enable him to conclude the case there, or

(d) direct that the case be heard de novo by the new judge or magistrate exercising jurisdiction in the area.

So that trial de novo is the last resort, and is very rare. The circuit judge was therefore wrong to have made capital of the possibility of trial de novo, and any consequential inconveniences and expenditure.

Now a brief statement of the facts in the case is necessary for a proper appreciation of points of law upon which the decision of the appeal turned.

The appellant, as earlier pointed out, is not only saddled with pastoral duties over a number of congregations in the Axim circuit of the Methodist Church, but is also the local manager of primary and middle schools within that district. His duties as manager of the schools include payment of salaries of the teachers employed in these schools. The 75 various sums of money he was charged with stealing are deductions or portions of deductions made from the salaries he paid to 75 of those teachers. The case for the prosecution is that the appellant appropriated these various sums to his own use.

Section 3 of the Compulsory Savings Act, 1963 (Act 173), now repealed provides that:

“(1) Every employer shall deduct each month from the chargeable income of his employees the amount specified in the Schedule to this Act in relation to his chargeable income; and the amount so deducted shall be used within one month of the deduction for the purchase of stamps on behalf of such employees:

Provided that no such deductions shall be made for the three months preceding the date on which a person who is not a citizen of Ghana leaves Ghana permanently.

(2) The provisions of the preceding subsection shall apply to the Republic.”

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The evidence led by the 45 witnesses called for the prosecution is to the effect that the appellant made deductions from their salaries, and that afterwards he gave development stamps to some of the teachers covering part only of the amounts deducted, but in other cases he gave none at all. Letters written by the appellant to headteachers and all teachers concerned were also put in evidence. In those letters he explained that he had purchased the development stamps which he was to paste on appropriate cards for delivery to the teachers but that in the midst of his multifarious duties he had got mixed up with the stamps and the cards, and also misplaced an envelope in which he had kept some of the stamps and that was why some of the stamps have not yet been distributed to the appropriate persons.

In deducting the amounts from the salaries of the teachers, the appellant was performing a statutory duty and so is his act in laying out the amounts in the purchase of savings stamps. It is not suggested that the appellant deducted a larger sum than he was lawfully authorised to do. Therefore his failure to deliver the amount deducted in specie to a teacher is not ipso facto evidence of theft. Again, the letters written by the appellant to the teachers that he had used all the moneys to purchase stamps was made part of the case for the prosecution. Therefore the only evidence on the record from which a presumption of appropriation of the money may anse, is the evidence that some of the stamps had not been delivered to some of the teachers. But wrongful appropriation of the moneys, the value of the stamps, is not the sole inference which can be drawn from that evidence.

Now, according to the police inspector and the court clerk, the statement which the appellant made, and which the circuit judge said amounted to a plea of guilty and the appellant agreed to, is that he had kept the bond stamps in question in an envelope and could not trace the envelope. But is this, in law, a plea of guilty of theft of money which the trial court should have accepted and convicted upon? Even if the appellant had said that he was guilty with explanation and had given the explanation he gave, that plea would be ambiguous, and imperfect and the circuit court should not have accepted that plea. The law is that a court must not take a defendant to have admitted his guilt unless he does so in unmistakable terms. Thus in R. v. Golathan,1 where a defendant charged with the offence of entering a dwelling-house by night with intent to steal, was convicted, he having pleaded guilty to entering the premises but added that he did not do so for the purpose of stealing, the Court of

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Criminal Appeal in England quashed the conviction and acquitted him, holding that his said plea was not a plea of guilty of the offence charged, and he should never have been convicted thereon. Again, in R. v.

Field,2 the indictment charged the defendant with aiding and abetting two daughters of his in concealment of birth; the defendant pleaded “I am guilty of harbouring” and then in reply to a question by the presiding chairman of the session, “Do you want to admit that you knew about this happening when you helped the people concerned?” he replied “Well I did help the people concerned”; the Court of

Criminal Appeal in England held that it is misapprehension to regard that as a plea of guilty to the offence charged.

The charges against the appellant being that he had stolen the moneys and not applied them in procuring savings stamps, his plea that be had used the money to buy the stamps, but had mislaid the envelope in which the remaining stamps were kept, is not an admission of theft of the moneys. The circuit judge therefore erred grievously in interpreting that statement as a confession of guilt. A local case in point is R. v. Muambo.3 The trial therefore is a nullity and we must so declare it.

We are aware of the powers in us vested by section 16 (5) of the Court Act, 1960,4 to order the appellant to be re-tried if justice would thereby be done. But having regard to the treatment the appellant received at the hands of the circuit court judge, the length of time he has wrongly been in custody and all the other circumstances of the case, we think, in the interest of justice, that this is not a case in which that power can justly be exercised.

It is for the reasons given above that we allowed the appeal, quashed the conviction and sentence, acquitted and discharged the appellant.

DECISION

Appeal allowed.

S. Y. B.-B.