TETTEH v. COMMISSIONER OF POLICE [1963] 2 GLR 352

DIVISION: IN THE SUPREME COURT, ACCRA

DATE: 22ND OCTOBER, 1963

BEFORE: ADUMUA-BOSSMAN, OLLENNU AND BLAY JJ.S.C.

CASES REFERRED TO

(1) Commissioner of Police v. Sencherey [1959] G.L.R. 225, C.A.

(2) Aboah v. R. (1953) 14 W.A.C.A. 252

(3) R. v. Ansere (1958) 3 W.A.L.R. 385, C.A.

[p.354] of [1963] 2 GLR 352

NATURE OF PROCEEDINGS

APPEAL against a conviction entered by the Circuit Court, Accra, on a charge of stealing. The facts are fully stated in the judgment of the court.

COUNSEL

P. A. Adjetey for the appellant respondent.

D. F. Annan, Senior State Attorney, for the respondent.

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. The appellant was convicted by the circuit judge, Accra, on two counts: the first count charged him with stealing 6,795 gallons of petrol valued at £G1,189 2s. 6d. and the second charged him with falsification of accounts.

The appellant was employed as works clerk in the survey and design section of the Division of Public Construction which was later converted into the Ghana National Construction Corporation, hereinafter referred to as the corporation, and had served in that capacity for eight years before his conviction. His duties included requisitioning petrol for the running of a number of vehicles used by his section, receiving the petrol when supplied, making a record of the quantities received in a book provided for that purpose, making issues of petrol to the drivers of the said vehicles, and recording the issues he so made in another book; he also had to see to it that each driver to whom he issued any petrol recorded the quantity issued to him in a log-book allocated to his vehicle. On the 10th July, 1961, an investigation officer of the corporation checked the books of the appellant, and discovered that although he had correctly entered up all petrol he received on behalf of the corporation up to that date, he had made no record in the appropriate book for recording issues made to drivers since 1959; the last entry in the issue book being made on the 23rd June, 1959; the officer also discovered that there were only six gallons of petrol in stock on the say day. When called upon by the investigating officer to account for the petrol, the appellant said he had issued all the petrol for the use of the corporation’s vehicles. The appellant produced four log-books in respect of four of the vehicles, but even these covered only the 29th January, 1960, to the 10th July, 1961. The total quantity of petrol recorded by the appellant as received on behalf of the corporation worked out at 9,095 gallons, and the total issues to the four vehicles over that portion of the period covered by the log-book was 2,300, leaving 6,795 gallons unaccounted for. That quantity therefore formed the subject of the count of stealing, and the omissions to make entries of petrol supplied to the vehicles as and when the issues were made formed the subject of the count of falsification.N Counsel for the appellant argued firstly that each of the two counts upon which the appellant was convicted was bad for duplicity and contravened the provisions of section 109 subsection (1) of the Criminal Procedure Code, 1960,1 which says “For every distinct offence of which any person is accused there shall, subject to subsection (2), be a separate charge or count.” Counsel submitted that although ex facie the first count

[p.355] of [1963] 2 GLR 352 alleged one offence of stealing of a quantity of petrol, the evidence led in support thereof disclosed that in fact what was alleged was several acts of stealing, and that the total quantity of the several thefts was the quantity charged in the count. He supported his submission with Commissioner of Police v. Sencherey,2 where the Court of Appeal held that where evidence led in support of a charge discloses that several offences are alleged to have been committed, the charge would be bad for duplicity although ex facie it may appear to charge one single offence. In respect of count 2, counsel submitted that ex facie several distinct offences of falsification were alleged, and consequently the charge was bad for duplicity. The senior state attorney conceded that count two was bad ex facie for duplicity; he therefore did not seek to support the conviction on it. As regards count one, however, he submitted that both in the charge itself as well as in the evidence, only one offence of stealing was charged and that was the stealing of a quantity of petrol which should have been in the possession of the appellant at a particular point of time, i.e., the 10th July, 1961, when the account was taken of all petrol he had received over a period of time, and therefore that charge conformed with the provisions of section 109 subsection (1) of the Criminal Procedure Code, 1960.

It is true that in his evidence the third prosecution witness, the investigation officer, appeared to have divided the period over which the account was taken into two parts, i.e., 1959 by itself, and 1960 to July 1961 by itself, and worked on two quantities of shortages of petrol. But it is equally clear on the record that what he did was to take account of the petrol supplied over the whole period 1959-1961, debit the appellant with the total, and to credit him over that same period with issues made from 1960-1961 only, as he had no data for credit over the first part of that period. We therefore agree with the submissions of the senior state attorney and hold that count one was good.

Counsel for the appellant next argued that the trial circuit judge misdirected himself in holding that the prosecution had proved shortage, and therefore the appellant was under a duty to account for that shortage, but he failed to do so. The senior state attorney, on the other hand, submitted that having shown the quantity of petrol he received for the corporation, the onus was upon the appellant to account for the quantity. He submitted that the way he could have accounted for the quantity was by entering up the issues he made from time to time in the books, but this too he failed to do, and he was only able to produce log-books in respect of four vehicles for part of the period. He submitted, therefore, that having credited the appellant’s account with the petrol shown in the four log-books as issued, and since there still remained a balance, the prosecution had discharged the onus which lay on them to prove a shortage, [p.356] of [1963] 2 GLR 352 and the onus shifted upon the appellant to account for that shortage, or suffer conviction. He supported this submission with the case of Aboah v. R.3 which held that where a shortage occurs in property which a servant holds for his employers, and he is unable to produce the said property or given an account as to how it was lost, the servant could properly be convicted of theft of that shortage.

The principle laid down in Aboah v. R. is sound law; but it can only be applied where the prosecution succeeds in proving beyond reasonable doubt that a shortage has indeed occurred. In other words conclusive proof of shortage by the prosecution is a condition precedent to the application of the principle of law laid down in Aboah v. R. A mere allegation by the prosecution, or evidence given showing a suspicion that a shortage might have occurred is not enough to discharge the onus upon the prosecution in such a case. To hold otherwise is to go contrary to the fundamental principle of our criminal law, namely, that it is for the prosecution who lay a charge upon a person to prove the offence charged to the hilt, but that it is not for the person charge to prove his innocence. This submission of the senior state attorney was based upon two fallacious premises: (1) the assumption that the vehicles used by the corporation during the year 1959, whatever their number was, did not consume petrol for their operation, or if they did, the petrol they used was not part of the quantity supplied to the section; and (2) the assumption that there were only four vehicles operating during the period January 1960 to July 1961.

As to the first assumption it is only necessary to say that it is fantastic to suggest that the vehicles could be run without fuel; and if the suggestion is that the fuel they must have used was not part of the quantity in question no evidence was led to establish that fact. Therefore the submission in respect of the period 1959 amounts to saying that once the prosecution proved that petrol was supplied during that period for the use of vehicles, it was for the appellant to satisfy the court that the vehicles consumed the petrol to enable them to work for the corporation and not for the prosecution first to prove that the petrol was not used. This is obviously fantastic. On the contrary, since the vehicles cannot run except on petrol, and since they in fact worked, the prosecution cannot succeed in proving a prima facie shortage in the quantity of petrol supplied, unless they proved that the vehicles did not run, or that petrol other than the quantity supplied to the appellant was used to work them. The prosecution made no attempt to prove any of these two alternatives.

Again, the assumption that only four vehicles operated during 1960-1961, completely disregards the evidence given by the first prosecution witness, the engineer in charge of the section, that there were seven vehicles working the registration numbers of which he gave; and again the court deliberately shut its eyes against the facts proved by official record,

[p.357] of [1963] 2 GLR 352 exhibit 1 tendered for the defence, which proved that there were a minimum of nine and a maximum of eleven vehicles being used by the section during the relevant period. Again the learned circuit judge recorded among the facts he stated that there were six vehicles, and stated their numbers. We must say in passing that that statement of the circuit judge does not find support either from the prosecution or the defence. Be that as it may, upon the evidence on the record, the prosecution showed that they had not bothered about ascertaining the quantity of petrol lawfully used for the corporation during the period covered by the accounts, and were therefore not in a position to prove that any shortage had occurred. Consequently the position they took in respect of this period 1960-1961 is exactly the same as the one they took with regard to 1959, namely, that all they need to prove is that petrol was supplied to, and received by the appellant for the corporation, and that they need not prove that the petrol so supplied was not used for the purpose for which it was supplied, and the appellant is therefore liable to conviction unless he could prove that the vehicles did not run without that petrol.

Without proof of the quantity of petrol legitimately used by the vehicles in the corporation’s service over the period, or in the alternative, without proof that no petrol was used for the said vehicles, the prosecution cannot prove shortage, and unless the prosecution proved shortage, no explanation is called for from the appellant.

But that is not all. The evidence for the prosecution further showed that the appellant did not have exclusive control or custody of the petrol supplied to his section of the corporation, and that other senior officers could issued out petrol from the stock received by the appellant for the corporation. In respect of that fact the first prosecution witness, the engineer-in-charge of the section, said, “The first accused [meaning the appellant] is in charge of petrol stores, he prepares P.V.s, he attends to all correspondence and he often goes down to Ring Road Stores. During his absence, if a driver comes for petrol at times the draughtsman helps in issuing the petrol. It is not only the first accused who issued out petrol. The key is left in the office and any officer had access to it.”

In R. v. Ansere,4 it was held that the principle in Aboah v. R.5 will not apply to cases where the servant had, to the knowledge of his employers, delegated his authority to hold property, however wrongly, to a subordinate servant. In this case it is proved that it was lawful for other servants of the corporation to deal with petrol in the absence of the appellant. That being so, proof of shortage which could result in criminal liability of the officer in charge of the petrol, requires evidence excluding all probability of the alleged shortage being due to acts of others who had lawful access to the petrol. Mere negligence on the part of the appellant, however gross, cannot render him criminally liable for a shortage which might be due to dealing with the petrol by other servants of the corporation.

[p.358] of [1963] 2 GLR 352

Now to the judgment of the trial court. It is obvious that the learned circuit judge did not direct his attention to the case for the prosecution in the way he should, in order to determine whether or not they established a shortage. He too assumed quite improperly that the appellant having failed to make entries of the issues of petrol in the books the onus fell upon him to prove that the corporation’s vehicles did use petrol to enable them to run. Thus as it appears from the critical part of his judgment, the circuit judge directed his mind only to the issue of whether or not the appellant had given a satisfactory explanation of the shortage, without first considering whether a shortage has been proved. He said:

“According to the first accused he did not steal the petrol, and that he supplied the petrol to vehicles. He said he failed to make the entries because he was too busy. He suggests also that the engineer and senior officers could have taken the petrol. He quoted as an example Mr. Sowatey who took petrol after office hours. What Mr. Sowatey took was known even to a watchman, and he has paid for it. If the first accused supplied petrol to vehicles, how was this done ? This must be accounted for by the first accused. This has not been done. The first accused has not given any account of shortage.

I am satisfied that the prosecution proved their case against the first accused on the first and second counts and convict him on both counts accordingly.”

If the circuit judge had proceeded upon the right principles and properly directed himself it would have been quite obvious to him at the close of the case of the prosecution that no shortage has been proved and consequently there was no case which he should call upon the appellant to answer. That wrong step he took led the circuit judge into the further error of misdirecting himself on the onus of proof which has occasioned a grave miscarriage of justice. In those circumstances the conviction on the first count also cannot stand.

The appeal is allowed, the conviction of the appellant on each of the two counts and the sentence passed upon him in respect thereof are each quashed; a verdict of not guilty is entered in respect of each of the said two counts. The appellant is acquitted and discharged on each of the said counts.

DECISION

Appeal allowed.

Appellant acquitted and discharged.

K.T.