REPUBLIC vs. BAYFORD [1973] 2 GLR 421

NATURE OF PROCEEDINGS

RULING on a submission of no case made on behalf of an accused charged with dishonestly receiving stolen property. The facts are sufficiently stated in the ruling.

COUNSEL

I. Ahlijah, Senior State Attorney, for the Republic.

R. S. Blay, with him Polley, for the accused.

JUDGMENT OF CHARLES CRABBE J.

The accused is charged on two counts of dishonestly receiving, on the first count 860 brass nuts and on the second count 23 water meters.

At the end of the case for the prosecution, counsel for the accused submitted that no prima facie case had been made against the accused. The accused was charged under section 146 of the Criminal Code, 1960 (Act 29), which is a straight forward case of dishonestly receiving stolen property knowing it to have been stolen or knowing it to have been dishonestly appropriated. According to Archbold, Criminal Pleading, Evidence & Practice (36th ed.), there are certain ingredients to be proved. The first is that if it is stealing, then the theft must be proved. If it is dishonestly appropriated, that must be proved. Having proved that, the prosecution must go further and prove that the accused did receive the goods that were misappropriated in any of the following manners: that is, with guilty intent, knowing or should have known or ought to have known that they were stolen or dishonestly misappropriated.

According to the defence counsel there has not been a tittle of evidence to prove any of these ingredients. The evidence so far is that of the second prosecution witness who is the star witness for the prosecution that the accused, even though the manager of the company, does not himself buy or receive goods except in one respect, namely, that when companies or corporations have scrap or goods to sell in bulk the accused personally goes to the company or corporation to negotiate the sale, and bid for the goods. When that is done he returns to the office and the goods are received on waybills; and that is the only time that the accused comes into contact with the goods sold.

The company’s other source of supply comes from agents of the company at Kumasi and Accra. Local sales and purchases are made by the employees of the company at Takoradi under the supervision of police officers who are constantly on duty at all working hours of the company. The only time when the accused comes into contact is where there is suspicion and the police on duty complain. The accused then phones to

[p.423] of [1973] 2 GLR 421 the police who come and investigate the matter and where necessary arrests are made. So there is not a tittle of evidence against the accused. If anything, the evidence led by the prosecution tends to exculpate the accused from any crime.

At most what the prosecution has proved is that exhibits A and B were found on the premises of the company. If that is the case, one would have thought that it is the company which ought to have been prosecuted and not the accused. Under section 192 of the Criminal Procedure Code, 1960 (Act 30), the company could have been brought here as such. The company should have been prosecuted and not the accused. Something more than the goods being found on the company’s premises must be proved if the accused is to be prosecuted personally and they should have gone on to say that exhibits A and B were brought to the accused, the accused personally, and he must know or must have known that the things were dishonestly obtained and none-the-less he bought them.

Counsel for the accused continued that the statements taken from the accused show that he did not know anything about exhibits A and B. He said that if he had seen them he would not have bought them and that being the case, counsel submitted that the prosecution has failed totally. The burden on the prosecution never shifts. It is only when the prosecution has made a prima facie case that it shifts. Counsel then asked the court to rule that no prima facie case had been made and that the accused should be discharged. Counsel relied on Roscoe on Evidence (15th ed.), p. 1026, and argued that the explanation of the accused is contained in the evidence led by the prosecution and therefore the accused should not be called upon to enter his defence. He should be acquitted and discharged.

Counsel for the prosecution drew the attention of the court to section 192 of the Criminal Procedure Code, 1960 (Act 30), and tried to draw a distinction between the definition of a company under section 2 of the Criminal Code, 1960 (Act 29), and a statutory corporation or a public corporation. He submitted that the Pan African Metal Co., Ltd. is a company not a corporation, and that the two words were distinct. A company derives its authority from the Companies Code, 1963 (Act 179). A statutory corporation on the other hand traces its origin from the Statutory Corporations Act, 1964 (Act 232), and therefore a corporation is not the same as a company. He submitted that the accused lives in the same place as the company. His premises are the company’s premises. And it must be said that these things were found solely in the company’s premises. There is evidence that exhibits A and B were stolen and were found sealed in drums ready for exportation. The procedure is that the drums must be inspected before they are sealed. In this particular case the police were not informed. There was also evidence that the accused himself goes out to buy scrap and that the scrap is conveyed to Takoradi under waybills. The waybills do not specify the items. There was also the evidence of the agents for the accused at Accra and Kumasi who said that they never bought any of either exhibit A or exhibit B. Three per-

[p.424] of [1973] 2 GLR 421 sons buy for the company, the accused and the other two gents. The agents have said that they never bought ether exhibit A or exhibit B. They must have been bought by the accused.

As regards the presence of the police at the premises of the company, counsel submitted that they only arrested people who brought things which the police suspected were stolen. In his view of the doctrine of omnia praesumuntur rite et solemniter esse acta would apply in this case. If the exhibits had been bought locally for sale the police would be there to check, therefore if they were not checked then in his view they were not bought locally or sold locally. The police at the place do not check things bought on waybills. The exhibits were not bought locally, they were bought on waybills. There was evidence also that the brass nuts, exhibit B, were used at the Location at Takoradi and there was evidence, coming from the prosecution, that the accused had been going around even in Takoradi to buy scrap. If it was not bought or sold locally then it was bought on waybills and the only person responsible for buying in Takoradi is the accused. There was also evidence that the exhibits are not scrap. If this is the act of the company then he should go into the witness box and say so.

Counsel then referred to section 148 of the Criminal Code, 1960, which deals with possession and control and presumption of guilt in the absence of evidence to the contrary. In his view, there is evidence that the exhibits were stolen. There is evidence that they were found under the accused’s control or possession. In this case the evidential burden is cast on the accused. In view of the provisions of section 148 of the Criminal Code, 1960, he asked that the accused must be called upon to do some explaining, as there was ample evidence for the accused to be called upon to explain.

Section 146 of Act 29, under which the accused is charged, is to the effect that any person who dishonestly receives any property which he knows to have been obtained or appropriated by any offence commits the offence of dishonestly receiving. Section 147 (1) of Act 29 explains dishonestly receiving as follows:

“A person is guilty of dishonestly receiving any property which he knows to have been obtained or appropriated by any crime, if he receives, buys, or in any manner assists in the disposal of such property otherwise than with a purpose to restore it to the owner.”

Both in section 146 and in section 147 of Act 29 the expression “which he knows to have been obtained or appropriated by any offence [crime]”is used. In each case the expression is so tied to the words “dishonestly receiving [receives]” as to create the impression that once a person “receives, buys, or in any manner assists in the disposal of such property otherwise than with a purpose to restore it to the owner” he is guilty of the offence of dishonestly receiving.

This is rather harsh; and I am inclined to think that knowledge that the property had been obtained or appropriated by an offence is essential. But how does an innocent person know that a certain property which he

[p.425] of [1973] 2 GLR 421 intends to buy is property obtained or appropriated by an offence? It is, I submit, a matter for inference from the circumstances of each particular case and on the merits of each particular case, how far it can be said that an accused knew or ought to have known that the property was obtained or appropriated by an offence.

It is essential, in the first place, that the property reached the possession of the accused. This means that the prosecution must adduce evidence sufficient to establish that the property was in such a condition as to be under the dominion of the accused to the exclusion of the person who obtained or appropriated it by an offence. It is not necessary only that an accused had physical or manual possession. It must be shown that the property was under his control.

In the second place, it must be established that he received the property, that is to say, that the accused took possession of the goods meaning thereby, possession actual or constructive. It must be sufficiently shown that the accused and the person who obtained or appropriated the property by an offence did not both have possession actual or constructive at the same time. The possession of a thief is different in law from that of the receiver.

The third consideration is that at the time the property was received by the accused it had actually been obtained or appropriated by an offence. The prosecution must establish that the property had been stolen, that is to say, that there should be adduced sufficient evidence which would be necessary to convict the person who obtained or appropriated the property by an offence. This must be so for if that person could not be found guilty of having obtained or appropriated the property by an offence, another person could not be convicted of having received the property as having been obtained or appropriated by an offence.

And so to knowledge. Guilty knowledge is largely a matter of inference. The nature of the property is important. The condition of the property is important. And so are the circumstances of the receipt of the property. When an Indian Rajah sells a diamond the chances are that he had not obtained it or appropriated it by an offence. But when a coolie tries to do the same thing, then there is danger. When an haberdasher is selling obruni wawu there is no need to raise eyebrows. But when an impan pam store man tries to do the same thing one must be on one’s guard.

So far the evidence for the prosecution in this case has established that the 860 brass nuts and the 23 water meters had been stolen. The evidence of the third prosecution witness established that exhibit A is the property of the Ghana Water and Sewerage Corporation; that they are not sold to the public; and that as many as 70 of those meters had been stolen. He was challenged on his assertion that his corporation is the only authority that supplies water in Ghana. It was not put to him that exhibit A could be the property of some other authority. The evidence of the fourth prosecution witness also established the theft of exhibit B which belongs to the Railway and Ports Authority. He also proved that it is not

[p.426] of [1973] 2 GLR 421 in all cases that such items have the mark of the authority, and that exhibit B forms part of a larger consignment of brass nuts ordered through to the Crown Agents some time during 1969. They are not sold nor issued to the public.

The evidence of the first prosecution witness shows that exhibits A and B were found on the premises of the accused or of the company of which he was a director or manager. The evidence of the first prosecution witness is very vital in this case. He gave evidence as to the procedure which requires police inspection at the invitation of the accused prior to the shipment of scrap. In the case of exhibit A and B, there had been no such application for inspection prior to shipment. He had this to say in his evidence-in-chief:

“When we got there we saw several drums sealed up and the army captain called the labourers to have them opened. We went to the workshop with the accused. The captain asked the labourers to open the drums for inspection. They were opened. We found the nuts and the water meters. These were in various drums not all in the same drum. From the various drums we found 23 water meters … [and] about 860 of the brass nuts.

We picked on these because they appeared very new. If during an invitation for inspection I had found any of exhibit A or B I would not allow them to be exported as scrap.”

This man, the first prosecution witness, is the police inspector who usually goes to inspect the materials before they are exported as scrap. He says he never had any such invitation to inspect. They must have gone there on some information or suspicion. But then they found the drums already sealed up ready for exportation. There is a question which needs to be answered: Why did not the accused invite the police as he was wont to do to inspect the drums before they were sealed up?

Indeed the ninth prosecution witness did ask the accused that question. He is alleged to have replied, “the officer to examine them has every liberty to have them opened for the examination.” Said the ninth prosecution witness, “I saw so many drums already sealed on the premises. I asked him [the accused] whether these drums were ready for exportation. He said, ‘Yes’; he was going to make a request for the examination. I asked why were the drums sealed then before making the application for examination. He replied that the officer to examine them has every liberty to have them opened for the examination. I asked him if he knew this was not the normal procedure and he said, ‘Yes’.”

And the ninth prosecution witness was not cross-examined.

The evidence of these two police officers throws some considerable light on the circumstances surrounding the possession of exhibits A and B by the accused or his company, and thereby some glimpse as to the circumstances under which they were received. The accused did not deny

[p.427] of [1973] 2 GLR 421 any knowledge of these exhibits when they were found on the premises at that time. That was the first opportunity that he had to explain himself having regard to the circumstances under which the exhibits were found. But he did not avail himself of that opportunity.

Exhibits A and B were not found in the same drum. I have seen them in court. I have been to the premises and I have seen some of the drums in which these things were put. At most both exhibits A and B could have been conveniently put in two or three drums. Why were they scattered among scrap in several drums? That does not suggest innocence. It is indicative of guilty consciousness such as disturbs the foundations of the innocence of the accused. Then there is the evidence of the agents of the company in Accra and Kumasi. They each denied that they were responsible for the purchase of either of the exhibits A or B. The cashier of the company also said, “I do not go about with him [that is, the accused] when he goes about buying that scrap.” His evidence tends to support the contention of counsel for the prosecution that there were three people buying for the company: the one at Accra, the other at Kumasi, and the accused himself; the accused being responsible for the purchases from the Takoradi-Sekondi area and from Tarkwa and Prestea. It has been suggested that the company and not the accused should have been brought before the court. There is considerable force in that argument. A company acts through its officers and agents and servants and employees. A director could be an officer of the company. So could a managing director. But we are here dealing with a statutory offence; and there is the need to draw a distinction between the duty of an officer of a company to do certain acts within his competence on behalf of the company and how far the company can be made criminally liable for the acts of the officer or servant of the company acting within the scope of his employment. In other words, how far does section 146 of the Criminal Code, 1960, impose a liability upon the company, in the circumstances of this case, even though the company, qua company, does not know of, and is not a party to, the particular acts done by this officer or these agents. The relationship of the accused to the company is not one primarily of master and servant. A company as such cannot act. It has to act through the directors, the officers of the company, the agents of the company or its servants. This is not a case where a master has chosen to delegate the conduct of his business to a servant. It is a case where the company cannot act for itself and must of necessity act through its officers, agents and servants.

But more important, section 146 opens with the word “whoever.” In legislation the word “whoever” means every person who. The word “every” implies each. Yet it embraces all. So the word “whoever” in section 146 embraces, as the colloquial expression goes, “any Tom, Dick and Harry” whatever may be the attributes of his personality. It marks out the company as well as the officers of the company. And the accused cannot therefore, it would seem, rely on vicarious liability.

Then section 148 of the Criminal Code, states as follows:

[p.428] of [1973] 2 GLR 421

“(1) Where a person is charged with dishonest receiving and is proved to have had in his possession or under his control, anything which is reasonably suspected of having been stolen or unlawfully obtained and he does not give an account, to the satisfaction of the Court, as to how he came by it the property may be presumed to have been stolen or unlawfully obtained and the accused may be presumed guilty of dishonest receiving in the absence of evidence to the contrary.

(2) The possession or control of a carrier, agent, or servant shall be deemed to be the possession or control of the person who employed the carrier, agent, or servant, and that person shall be liable accordingly.

It does appear then that under subsection (2) of section 148 if the accused is the agent or servant or carrier of the company the company would be liable to face the charges now being faced by the accused. This would be in consonance with the provisions of sections 137-140 of the Companies Code, 1963 (Act 179), which make a company criminally and civilly liable to the same extent as if it were a natural person for the acts of the members in general meeting, the board of directors or a managing director, with certain exceptions.

Under subsection (1) of section 140 of the Companies Code, 1963 (Act 179), the acts of any officer or agent of the company shall not be deemed to be acts of the company, unless “(a) the company, acting through its members in general meeting, board of directors, or managing director, shall have expressly or impliedly authorised such officer or agent to act in the matter; or

(b) the company, acting as aforesaid, shall have represented the officer or agent as having its authority to act in the matter, in which event the company shall be civilly liable to any person who has entered into the transaction in reliance on such representation, unless such person had actual knowledge that the officer or agent had no authority or unless, having regard to his position with, or relationship to, the company, he ought to have known of such absence of authority.”

Then subsections (2) and (3) of the same section are as follows:

“(2) The authority of an officer or agent of the company may be conferred prior to action by him or by subsequent ratification; and knowledge of action by such officer or agent and acquiescence therein by all the members for the time being entitled to attend general meetings of the company or by the directors for the time being or by the managing director for the time being, shall be equivalent to ratification by the members in general meeting, board of directors, or managing director, as the case may be.

(3) Nothing in this section shall derogate from the vicarious liability of a company for the acts of its employees while acting within the scope of their employment.”

[p.429] of [1973] 2 GLR 421

So, how far the accused, in this case, has the authority of the company to act is a matter which he and he alone will have to tell the court, since whatever action he may have taken on behalf of the company must depend upon the authority which he derives from the company, from the members in general meeting and from the board of directors, and also what the regulations of the company say. The last prosecution witness did say that the accused is also a director of the company. So, is he also an officer of the company within the meaning of section 2 of the Companies Code, 1963 (Act 179).

Then also sections 146 and 147 of the Criminal Code, 1960, use the expression “which he knows.” This implies knowledge and its attendant implications of mens rea. And how close one can recognise, under the circumstances of this case, vicarious criminal liability will depend, as already indicated, on the authority of the accused to act on behalf of the company. There are matters which call for some explanation. It has also been urged that exhibits A and B were found on the premises of the company which are, in fact, the ground floor in the same building as occupied by the accused as his dwelling-house. Again questions arise, having regard to the evidence as established by the prosecution, how far it can be said that the accused had under his control or in his possession, as distinct from the possession or control of the company, exhibits A and B. The answers should be forthcoming from the accused.

In the circumstances it is my opinion that there is a case for the accused to answer and I accordingly call upon him to do so.

DECISION Submission of no case overruled.

S.O.