Division: IN THE SUPREME COURT
Date: 6 NOVEMBER 1964
Before: OLLENNU, ACOLATSE AND BRUCE-LYLE JJSC
JUDGMENT OF BRUCE-LYE JSC
Bruce-Lyle JSC delivered the judgment of the court. This is an appeal from the judgment of Siriboe J. (as he then was) sitting in the High Court, Ho, and dismissing an appeal from the convictions by the district magistrate sitting at Sogakope on 4 October 1963.
The appellant was charged with eleven counts of stealing, ten of which related to stealing of moneys and the remaining count to stealing of a kente cloth, the moneys and cloth being the property of one Ben Agbakpe Okudzeto, the father of the appellant (hereinafter referred to as the complainant). The appellant was found not guilty on nine counts of stealing various sums of money and was discharged but was found guilty on one count of stealing £G200 (count four) and another count (count eleven) of stealing the kente cloth and was convicted and sentenced to nine months’ imprisonment with hard labour and six months’ imprisonment with hard labour respectively, the sentences being concurrent.
The case for the prosecution was that the complainant had a store at Adidome and employed his son, the appellant, as a storekeeper at a monthly salary of £G12. The complainant had two other stores outside Adidome and was therefore obliged to travel to see to the business outside
Adidome. According to him he was not at Adidome on 1 March, 9 April, 11 April, 18 April, 24 April and 1 June 1963 and that when he was away on these dates the appellant was in charge of the store and that he also handed over to the appellant the keys of the store and of his house. Whenever the complainant left Adidome he never took stock of the goods in the store and also there was no stock-taking on his return; the appellant only accounted to him in respect of sales made during his absence. When he returned from his last trek on 11 June 1963 he got to know that the appellant had bought a three ton lorry and had also invited 150 persons to an outdooring ceremony of his baby at Ho and when he questioned the appellant as to how he came by the money, the appellant said nothing. Thereafter the appellant was not seen for four
days. During the appellant’s absence, the complainant forced open the appellant’s room and found his kente cloth, which he usually kept in his locked box lying on the bed of the appellant. He also found in the appellant’s room a hire-purchase agreement relating to a vehicle bought in the name of one Isaac Kubame, a bank paying-in slip, a Ghana passport in the name of Yao Gamfat Okudzeto and an international certificate of innoculation and vaccination in the name of Gamfat Okudzeto. The complainant also discovered that he had lost an amount of £G5,000 which he kept in the box in which he also kept his kente cloth. The complainant became suspicious of having lost these moneys from the store and reported to the police and upon investigation by the police it was discovered that the appellant in the month of February 1963 opened a savings account with the Adidome branch of the Ghana Commercial Bank with the initial deposit of £G1 and in the name of Gamfat Yaw Okudzeto. On 1 March 1963 the appellant again opened a separate savings account with £G200 in the name of Winfred Gameli Fatorwome. On 22 March 1963 the appellant opened a current account with the same bank in another name of Winfred Gamfat Gameli. On 5 March 1963 the appellant applied to the bank for a loan of £G600 and he was granted £G300 and he used his savings book showing the deposit of £G200 as his security for the loan. The appellant on 5 December 1962 opened an account with Barclays Bank, High Street, Accra, with a deposit of £G10. Upon these facts the appellant was charged with the eleven counts of stealing.
On count four relating to the stealing of £G200, his defence was that the amount was given to him by his father, the complainant, as a loan to enable him to open an account with the Ghana Commercial Bank at Adidome. The father denied having lent the appellant £G200. On count eleven, relating to the stealing of the kente cloth, the appellant’s defence was that the cloth was given to him by his father per a brother by name Obert Doe Okudzeto for safe-keeping. The father and Obert denied this line of defence.
The trial magistrate in acquitting the appellant on counts one, two, three, five, six, seven, eight, nine and ten found that the prosecution failed to prove that the complainant had lost any moneys or goods from the store and in convicting the appellant on count four relating to the £G200, he found in effect that the prosecution’s case was that the £G200 formed part of the £G5,000 missing from the complainant’s box and further found as a fact that the appellant had
access to this box. Against these findings the appellant has appealed to this court and his counsel has argued the appeal on the following grounds:
“(1) That the learned trial magistrate’s finding that the £G200 formed part of the large amount stolen from [the complainant’s] box is not borne out by the charge nor the evidence.
(2) That the learned trial magistrate wrongly convicted the accused on count four when he had in the same breath acquitted him on counts one, two, three, five, six, seven, eight, nine and ten.”
On count eleven relating to the theft of the kente cloth, the trial magistrate in effect found as a fact that the charge had been proved and that the illustration (b) in section 120 of the Criminal Code,1 1960, relied upon by counsel at the trial was not applicable to the case. The appeal from this conviction is on the following grounds:
(1) That the trial magistrate’s interpretation of illustration (b) of section 120 of Act 29 is wrong.
(2) That the prosecution failed to prove dishonest appropriation in regard to count eleven.”
For convenience, I shall first deal with the appeal relating to count eleven. Illustration (b) of section 120 of the Criminal Code, 1960, relates to subsection (1) of the section and the subsection reads: [His lordship here read the provisions of section 120 (1) of the Criminal Code, 1960, and illustration (b) to it as set out in the headnote and continued:]
In support of his grounds, learned counsel for the appellant has argued in this court that once the learned trial magistrate did not accept the defence that the kente cloth was given to the appellant by the complainant for safe-keeping, the illustration applied to the evidence adduced by the prosecution in proof of the count, in that the appellant believed that the complainant, as a reasonable person would not object to the appellant’s use of the cloth. Counsel further supported this contention by urging that there was no evidence by the prosecution to show any intention on the part of the appellant to defraud the complainant. This court is of the opinion that if the appellant had not put up the defence which he did but had simply said that he took the kente cloth without the consent of the father with the sole purpose of using it and later returning it, knowing that the father would have no objection, the argument that the illustration applied would be tenable, but in this case the trial magistrate was left with the option of either accepting the prosecution’s version and rejecting the defence as not being reasonably probable or accepting the defence as being reasonably probable as against the prosecution. The trial magistrate, left in this position, accepted the evidence of the complainant and Obert as against that of the appellant. The trial magistrate’s finding was one of fact supported by evidence on record and this court is not prepared to interfere with it. In accepting the prosecution’s case as against the defence, it is clear, having regard to the circumstances of this case, and more particularly to the fact that the kente cloth was not removed from a place in the room open to the view of anyone on entering the room but rather from a locked box, that the appellant’s father would certainly have objected to the appellant taking the cloth. We are therefore satisfied that the illustration relied upon by counsel is not applicable as there was an appropriation of the cloth without the consent of the owner and the appeal against the conviction on count eleven should fail, and it is accordingly dismissed.
In support of the grounds against the conviction on count four, learned counsel for the appellant has argued that on the evidence by the prosecution there is no doubt that the allegation of the stealing of the £G200 related to stealing from the store of the complainant and not from the box of the complainant from which he alleged he had lost an amount of £G5,000, and that the learned trial magistrate was wrong in holding that the £G200 was part of the missing £G5,000. There is no doubt whatsoever that the appellant in his defence admitted that the £G200 he saved with Ghana Commercial Bank was money belonging to the complainant. In a case like this in which the prosecution alleged that the moneys were missing from the store and from the box it was incumbent on the prosecution to lead evidence in clear and unambiguous terms to show whether the £G200 was stolen from the store or from the box so as to enable the appellant to know the particular case against him to answer. Counsel for the appellant at the trial endeavoured to obtain such clarification and had the success which is of the utmost assistance to this court. The tenth prosecution witness, police corporal Akyea, in answer to question by counsel for the appellant under cross-examination said, inter alia, “These charges — one to ten relate to theft in the store and not £G5,000.” This police officer was the one who investigated the case and no doubt knew of the complaint lodged by the complainant. Learned senior state attorney (Mr. Taylor) has referred this court to further evidence by this witness under re-examination where he said, “I cannot say that all the moneys,
subject-matter of the various counts were from the store,” and has urged on this court to accept this evidence as an explanation of the earlier evidence under cross-examination. We are unable to accept this argument on the ground that this evidence in re-examination is clearly in contradiction of the earlier evidence, and the whole evidence of this witness should have been discredited by the trial court. The object of re-examination is to explain evidence given under cross-examination, and re-examination is never to be used to get a witness to deny or cancel evidence already given under cross-examination, and this evidence on re-examination should not have been allowed by the trial court. In the circumstances, we consider that the evidence by this witness under cross-examination should have been the pointer to the determination of the issue as to whether the £G200 was part of the £G5,000 or was from the store. The trial magistrate in his judgment in holding that the prosecution’s case on count four, “is that the £G200 formed part of the large amount stolen from the third prosecution witness’s box” failed to consider adequately the evidence of the tenth prosecution witness under cross-examination and on the strength of that evidence we do not hesitate to hold that that part of the trial magistrate’s finding is unsupported by the case put forward by the prosecution.
In convicting the appellant on count four it appears from the judgment that the learned magistrate accepted as proved that the complainant, the third prosecution witness, lost £G5,000 which he kept in his locked box. The only evidence of the loss of this large amount was only that of the third prosecution witness and it is significant that this supposedly important evidence in support of a complaint appears at the tail-end of the evidence-in-chief of the witness. The evidence that the third prosecution witness had £G5,000 in the box was very weak and uncorroborated, and in the circumstances of this case it was very dangerous to convict on such uncorroborated evidence.
In conclusion we find that from the evidence of the tenth prosecution witness under cross-examination the learned trial magistrate should have come to the irresistible conclusion that the £G200 was alleged to have been stolen from the store and should have found the appellant not guilty on count four, i.e. the count relating to the theft of £G200 on the same consideration by which he found the appellant not guilty on counts one, two, three, five, six, seven, eight, nine and ten.
For these reasons the appeal against conviction on count four should be allowed and we hereby allow it accordingly and quash the conviction and set aside the sentence of nine months’ imprisonment with hard labour passed on it. The appellant is acquitted and discharged on this count but the appeal against conviction on count eleven is dismissed.
DECISION
Appeal allowed in part.
N. A. Y.
