COURT OF APPEAL
DATE: 20TH NOVEMBER, 1959.
BEFORE: KORSAH C.J., VAN LARE J.A. AND GRANVILLE SHARP J.A.
CASE REFERRED TO
Kwadjo Asamoah v. C.O.P. (unreported; Crim. App. No. 143/1957; 17th October, 1958).
COUNSEL
Appellant (Kwabena Sarpong) in person.
Cross for respondent (Crown). The learned Commissioner does not appear to have considered the defence. There was no judgment, and no reasons were given for the conviction, which the Crown does not support.
JUDGMENT OF GRANVILLE SHARP J.A.
This appeal was the third case of its kind to come before this Court within a period of two weeks.
In each case the record disclosed a failure on the part of a Commissioner of Assize sitting with the aid of assessors to observe the statutory directions given to all Judges in such cases by the provisions of Section 300 of the Criminal Procedure Code. The section reads as follows:-
“300 (1) When, in a case tried with assessors, the case on both sides is closed, the Judge may sum up the evidence for the prosecution and the defence, and shall then require each of the assessors to state his opinion orally, and shall record such opinion.
(2) The Judge shall then give judgment and in so doing shall not be bound to conform with the opinion of the assessors, but he shall record his judgment in writing and in every case such judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the Judge at the time of pronouncing it.
(3) If the accused person is convicted, the Judge shall pass sentence on him according to law.”
The language could not possibly be in plainer or more mandatory terms. In a jury case, when a Judge sums up, it is his duty, according to the decided cases, to marshal and sift the whole of the evidence, so that it is presented to the jury in such a form as will enable them to bring to its consideration in the course of their deliberations clear,
[p.385] of [1959] GLR 383
well-informed and analytical minds. It is not less essential, in a case where a Judge sits with the aid of assessors (and he is so required by the Statute, whether he sums up to the assessors or not) that he should give a judgment in writing, from which it will appear to all who read it that he has, in arriving at his own verdict, instructed himself as fully as his duty would require him to instruct a jury, if he had in fact been sitting with a jury.
We strongly express our hope that what happened in the present case (which cannot, as we have earlier indicated, be regarded as exceptional) will never occur again.
The appellant was charged upon three counts, one of burglary and two of stealing from a dwelling house. The articles involved in the alleged thefts were of a total value of £788, and amongst them were 3 gold necklaces, 6 pairs of gold earrings and 7 gold rings and beads. The appellant, when he was arrested, was found in possession of one necklace and two gold bangles, and these were claimed by a prosecution witness as being a part of her stolen property. They were also identified and claimed by a certain Dagomba woman, who was a defence witness, as being her property which had disappeared from her bag in the course of a night journey by bus. The appellant all along admitted that he had travelled on the same bus with this witness, and had left it at a time earlier than she. He did not claim the articles as his own, but said that they had been found by him in his bag, and must have dropped into the bag from the witness’ bag when he was alighting from the bus.
The learned Commissioner of Assize summed up to the assessors, but no note of his summing-up appears upon the record of proceedings. The opinion of the assessors, are recorded as follows:
“E.A. Bobi – Not guilty on count 1, guilty on Counts 2 and 3.
“J. A. Owusu-Ansah – Guilty on all counts.
“J. E. Gyimah Not guilty on counts 1 and 2 – Guilty on count 3.”
It is to be observed that count 3 was the one which included necklaces and gold rings and beads, and this was the only count in relation to which the opinions of the assessors were in agreement. However this may be, there was on the record evidence that could be said strongly to support the view that what was found in the possession of the appellant was, if stolen, stolen from a defence witness in the course of a bus journey, and not in the course of burglary as alleged in count 1. No other articles material to the case were found on the appellant. The whole record indicates, in fact, that it was pre-eminently necessary that the learned Commissioner should give a
[p.386] of [1959] GLR 383
judgment in writing, stating the points for determination, his decision thereon and the reasons for his decision; and in particular why he accepted the opinion of one assessor without apparently examining the mutually differing opinions of the other two. In such a case he should also bring within the scrutiny of his judgment the evidence for the defence, and in rejecting it he should explain why it was less credible to him than that for the prosecution.
In the case of Kwadjo Asamoah v. C.O.P. (Criminal Appeal No. 143/57 – 17th October, 1958) we observed what we now repeat with emphasis: That reasons are necessary even in the case of a magistrate trying a case summarily, unless it is clearly obvious that guilt must be inferred from the facts and circumstances of the case. If the reason is not obvious to an appellate Court, then the magistrate must be held to have erred in not stating it, because section 173 of the Criminal Procedure Code requires a magistrate to state reasons for his decision “where necessary.” As we have already said, a Judge sitting with the aid of assessors is peremptorily required by the Act to give reasons in every case. Nobody likes a decision against himself (more especially in a criminal matter) if it is given summarily and without a stated reason.
The learned Commissioner, in fact, gave no findings and recorded no reasons. The record reads:-
“Court: The accused is convicted on all three counts.
“Crown: The convict has no previous history.
“Accused: This is my first offence. My aged grandmother is dependent upon me.
“By Court: Sentenced on 1st count for 6 years and 5 years on counts 2 and 3 imprisonment with hard labour to run concurrently.
“Restitution ordered.”
The learned Commissioner ought to have stated some reason from which it could be understood why he made a restitution order in a case such as this, when the whole of the evidence cast ownership in doubt.
DECISION
We felt that the conduct of the learned Commissioner in regard to the matters to which we have referred rendered the trial so unsatisfactory that we had no alternative but to allow the appeal. This we did, and ordered the appellant to be acquitted and discharged.
