BULLEY-NEEQUAYE v. THE STATE [1965] GLR 424

DIVISION: HIGH COURT, ACCRA

DATE: 3 JUNE 1965

BEFORE: BOISON J.

CASES REFERRED TO

(1) R. v. Abisa Grunshie (1955) 1 W.A.L.R. 36, W.A.C.A. (2) Lutterodt v. Commissioner of Police [1963] 2 G.L.R. 429, S.C. (3) Soames v. Barnardiston (1676) 1 Free. 430; 89 E.R. 321. (4) Commissioner of Police v. Lagos (1942) 8 W.A.C.A. 56. (5) Seedi v. Commissioner of Police (1946) 12 W.A.C.A. 29.

NATURE OF PROCEEDINGS

APPEAL from the District Court, Labadi, against conviction of the offence of allowing a ferocious dog to be at large ummuzzled, contrary to section 296 (22) of the Criminal Code, 1960 (Act 29). The facts are fully set out in the judgment.

COUNSEL S. S. Okunor, State Attorney, for the State. Osafo Buabeng for the appellant.

JUDGMENT OF BOISON J.

Before the District Court, Labadi, Accra, the appellant was charged and convicted of the offence of allowing ferocious dogs to be at large contrary to section 296 of the Criminal Code, 1960.1 The learned district magistrate who tried the case made an order in respect of the dogs. The appellant has appealed to this court against

[p.426] of [1965] GLR 424 of the dogs was unreasonable.her conviction and the order of the learned district magistrate. The particulars of offence read as follows: “For that you, Bulley Neequaye, Teacher, on 14 December 1964 at Nyaniba Estate, Accra, in the Accra Magisterial District and within the jurisdiction of this court did suffer to be at large unmuzzled a certain ferocious dog of which you have the charge.” Later on in the course of the prosecution, the charge was amended to include “September and another dog.” Although the intention of the amendment was, I surmise, to include “September 1964” as to the date of the alleged offence and instead of “a certain ferocious dog” to “have two ferocious dogs,” it is observed that the amendment was inelegantly worded. It would have been better if the amendment should have been in this form: “In the particulars of offence insert the words ‘and September 1964,’ between ‘December 1964,’ and ‘at Nyaniba Estate’ in the second line of the particulars, delete ‘certain ferocious dog,’ appearing on the last line and substitute therefore ‘two ferocious dogs’. That would have better achieved the purpose of the amendment. The case for the prosecution, supported by two material witnesses, was that the appellant is a tenant at Nyaniba Estate at Accra. The appellant has two dogs and in the month of September 1964, the two dogs bit the first prosecution witness who was returning home after selling bread. This took place about 25 yards from the house of the appellant. The first prosecution witness shouted and started to bleed and the appellant applied milton to the wounds of the first prosecution witness who later reported the matter to her father. She was later given some injections. The evidence of the second prosecution witness was that on 14 December 1964, he visited one Mr. Binney. Whilst waiting for Mr. Binney a certain big dog bit him and the dog ran into the house of the appellant after the bite. Both prosecution witnesses reported the matter to the police. The second prosecution witness was also given some injections. The dogs are exhibits B and C. The explanation of the appellant was that she is the owner of the two dogs, exhibits B and C; that there are several similar dogs in the neighbourhood; and that she left Ghana on 1 February 1964 and returned on 20 September 1964. She denied the charge. Learned counsel for the appellant filed two additional grounds of appeal in addition to the two original grounds already filed. The first original ground of appeal was that the conviction was unreasonable and cannot be supported having regard to the evidence adduced. Learned counsel argued that if, indeed, the dogs of the appellant bit the first prosecution witness in or about September 1964, why was no

[p.427] of [1965] GLR 424 report made to the police then? There was no medical report about the first prosecution witness. The medical report of the second prosecution witness exhibit A, does not show if, indeed, a dog had bitten the second prosecution witness. The second prosecution witness contradicted himself when he said a “certain big dog” bit him for he identified “a small dog.” As there were similar dogs in the area it is possible it could be any of the dogs in the neighbourhood which bit the complainants. Original ground (b) was that the order to destroy the two dogs was unreasonable in that only one dog was in issue as per the particulars of offence. Additional ground (a) reads as follows: “That the judgment was wrong in law in that the learned trial magistrate stated that scienter or knowledge of the ferocity of the dogs by the accused is not necessary for the prosecution to prove before conviction under section 296 (22) would be sustained.” Learned counsel argued that the charge is bad and the proceedings a nullity as the charge does not specify the subsection under which the appellant was charged. Even if the appellant was charged under section 296 (22) of Act 29, the substantive section implies that an accused person must have knowledge of the ferocity of the dog, and suffer or allow it to be at large unmuzzled before conviction can be sustained. Counsel argued that criminal law, not unlike the civil law of tort, recognizes dogs as mansuetae naturae, i.e. “tame dogs” and ferae naturae or “wild dogs.” Knowledge, scienter of the ferocity of the dog is a sine qua non to sustain conviction. He further argued that the evidence of the first and second prosecution witnesses does not establish the knowledge of the appellant as to the ferocity of the dogs in question. As regards what Mr. Binney told the appellant that her dogs were ferocious- the appellant admitted Mr. Binney told her that but does not admit by this that the dogs are ferocious. In respect of the additional ground “that the learned trial magistrate failed to consider the defence of the appellant fairly,” it was contended that the reasonable probability of the appellant’s case was not considered: R. v. Abisa Grunshie2 and Lutterodt v. Commissioner of Police3 were cited. Learned counsel argued that it is not the owner of a ferocious dog who is necessarily within the section but the person who has control or custody. This was not considered by the learned district magistrate. It was not also considered whether or not the appellant was in the country in September 1964, and that [p.428] of [1965] GLR 424 the learned district magistrate did not give reasons for saying “that the defence of the appellant is without any substance for one to consider it as reasonably true.” The learned state attorney contended that from the particulars of offence and the statement of offence the appellant was given sufficient information as to the nature of the charge and on the record it was apparent that the appellant fought the case on the footing of section 296 (22) of Act 29. In so far as the scienter element is concerned, learned state attorney contended that in the law of tort there is classification but it is not so in criminal law. Whether or not knowledge of the ferocity of the dog by the accused is essential depends on the construction of the particular section creating the offence. In criminal law, however, under section 296 (22) of Act 29, it is not material for the prosecution to prove knowledge, scienter, of the ferocity of the dog. Even if it was material the cross-examination evidence of the appellant about what Binney told her afforded knowledge of the appellant as to the ferocity of the dogs: see Soames v. Barnardiston.4 As regards the original ground (a) the learned state attorney argued that the charge was amended and that it is not a condition precedent to a prosecution that a dog bite should be reported to police. A medical report is not also necessary for prosecution under the section. As the charge was amended to include two dogs, it was proper for the learned district magistrate to have made the order under section 287 (4) of Act 29. The learned district magistrate gave reasons for disbelieving the appellant and the appellant herself said the dogs were free to move about and were also unmuzzled. With regard to the ground that the subsection under which the appellant was charged was not quoted, section 112 (1) of the Criminal Procedure Code, 1960,5 states: “(1) Subject to the special rules as to indictments hereinafter mentioned, every charge, complaint, summons, warrant, or other document laid, issued, or made for the purpose of or in connection with any proceedings before any Court for an offence, shall be sufficient if it contains a statement of the specific offence with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge. (2) The statement of the offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the [p.429] of [1965] GLR 424 essential elements of the offence, and, if the offence is one created by an enactment, shall contain a reference to the section of the enactment.” The effect of these subsections is that the charge, summons, complaint, etc. should contain such particulars as may be necessary for giving reasonable information as to the nature of the charge. In this case the statement of offence and the particulars of offence complied with the above-quoted sections. Section 296 itself, as such, does not create any offence but subsections (1) to (26) do. However, the case was fought, from the record of proceedings, on the basis that the offence was one under subsection (22) of section 296. The failure of the prosecution to insert “subsection (22)” after “section 296” in my view is a mere technicality which, in the circumstances of this case, is not an irregularity in limine and is not fatal to the proceedings: see Commissioner of Police v. Lagos6 and Seedi v. Commissioner of Police.7 The mere omission has not occasioned any miscarriage of justice in so far as section 296 of Act 29 was quoted and the statement of offence and the particulars of offence gave the appellant sufficient information as to the nature of the charge preferred against her: see also section 406 (1) (a) of Act 30. The appeal on this ground therefore fails. The ground of scienter or knowledge by the appellant about the ferocious nature of the dogs appears to be the most interesting ground of appeal. Section 296 (22) reads: “suffers to be at large, unmuzzled, any ferocious dog of which he is the owner or has the charge, or sets on or urges any dog to attack or put in fear any person or cattle.” If I understood learned counsel for the appellant, his ground was that in order to sustain a conviction under the subsection the prosecution, inter alia, must establish that the accused has knowledge of the ferociousness of the dog and this knowledge is not established by hearsay evidence, i.e. what somebody has told an accused. Whether or not it is essential to establish the knowledge of ferociousness of the dog by an accused will depend on the construction of the subsection. Section 4 (a) and (b) of Act 29 reads thus: “(a) This Code shall not be construed strictly, either as against the State or as against a person accused of any offence, but shall be construed amply and beneficially for giving effect to the purposes thereof;

[p.430] of [1965] GLR 424

(b) In the construction of this Code, a Court shall not be bound by any judicial decision or opinion on the construction of any other enactment, or of the common law, as to the definition of any offence or of any element of any offence.” What is the purpose of this section 296? This section is subheaded “Nuisances and Obstructions in Street and the like” and forms part of Chapter 8 of the Criminal Code headed “Public Nuisances.” Under this chapter we have “Hindering Burials etc.,” “Selling unwholesome food,” “Carrying on Noxious trade etc.,” “Drunkenness, Riotous and Disorderly Conduct.” The purpose of this section 296 and, indeed, the whole Chapter 8 of Act 29 is to prohibit public nuisance, and it has long been the policy of the law that in offences of this nature the interpretation has been strict; one of absolute criminal responsibility. Once the act which is prohibited is done notwithstanding the presence or absence of the necessary state of mind of the accused (mens rea), the offence has been committed. Examples are selling adulterated food or milk to the public; the sale of adulterated food or milk is sufficient to found criminal liability notwithstanding absence of knowledge of the food or milk being adulterated. In selling drinks to a drunken person, the absence of knowledge that the person is drunk is no defence. In carrying on gaming on licensed premises – non-concurrence of the licensee is no defence. For the protection of the public the responsibility is absolute. Thus section 296 (22) being for the prevention of public nuisance, the protection of the public against ferocious dogs, I am of the opinion that knowledge of the ferocity of the dog is not an essential ingredient of the offence. The necessary ingredients of the offence are therefore: (1) allowing a ferocious dog to be at large; (2) without muzzle, i.e. without a strap for the mouth of the ferocious dog to prevent it biting; (3) by the owner or the person in whose custody the dog is. Whether or not the dog is ferocious is for the court to decide on the evidence. It is not necessary therefore for an offence under section 296 (22) for the prosecution to prove that an accused has knowledge of the ferocity of the dog in the same way that it is not necessary in a charge of selling drink to a drunken person for the prosecution to prove that the accused knew that the customer was drunk, or in a charge of selling unwholesome or adulterated food or milk for the prosecution to prove that the milk or food is unwholesome or adulterated to the knowledge of the accused. Even if it was [p.431] of [1965] GLR 424 necessary for the prosecution to prove that the accused has knowledge of the ferocity of the dog, in the circumstances in this case, Mr. Binney’s telling the appellant about the ferocity of the dogs constituted knowledge: see Soames v. Barnardiston.8 If a dog belonging to Mr. A. behaved ferociously and bit Mr. B. and C. and the owner of the dog admits that he has been told of this incident before, if this is not held to constitute knowledge of Mr. A. or the owner as to the ferocity of the dog, how can the knowledge of accused, if it is necessary to be proved at all, be established? As regards ground (b) of the additional grounds that the defence of the appellant was not fairly considered, the judgment of the learned district magistrate at p. 6 line 36 reads as follows: “The defence of the accused is without any substance, for me to consider it as reasonably true. These dogs were left to go anywhere, unattended; how then could she, the accused, deny or challenge their behaviour and conduct? How would the accused know what the dogs did or would be doing outside, while she was at home?” It does appear that the learned district magistrate gave reasons for disbelieving the appellant. In the cross-examination evidence of the appellant she said her dogs are free to go about. Even at the time she was giving evidence the dogs were unmuzzled. On the face of this evidence by the appellant all that the learned district magistrate had to decide was whether the dogs in question were ferocious and belonged to the appellant or were dogs under her charge at the material time of the offence. On the evidence, on 14 December 1964, the accused was in Ghana and in September 1964, she was in Ghana. The first prosecution witness even though she said she was not sure of the date remembered it was about four to five months ago that she was bitten by the dogs and that the appellant took her to her house and applied milton to the wound. In respect of the second prosecution witness he mentioned the specific date 14 December 1964 and on the evidence the appellant did not deny that she was in Ghana on 14 December 1964. The learned district magistrate having seen the first prosecution witness believed her that it was about September 1964 that the dogs bit her. The learned district magistrate preferred the evidence of the first and second prosecution witnesses in view of the defence that the dogs were free to move about and unmuzzled, which defence confirmed or tended to confirm the prosecution’s case. The evidence supports

[p.432] of [1965] GLR 424 a finding that the appellant was the owner or the person in charge of the dogs on the material dates in question and that the dogs exhibits B and C were ferocious. As regards ground (b) of the original grounds of appeal that the order to destroy the dogs was unreasonable and only one dog was in issue, on 13 January 1965 the charge was amended to include September 1964 and another dog. In accordance with section 176 of Act 30 the amended charge was read over to the appellant and she pleaded not guilty. It cannot therefore be contended that there was only one dog in issue. Section 297 (4) of Act 29 empowers the court to make such an order. In so far as this order is concerned what I have to consider is whether the order was reasonable. The appellant admitted that Mr. Binney has told her that the dogs were ferocious, even though according to learned counsel for the appellant this does not mean that the appellant admitted the ferocious nature of the dogs. But the fact that Mr. Binney has told her, in my view should and ought to have put the appellant on her guard to have taken some reasonable positive and immediate steps to see that the dogs are chained. But according to the appellant the dogs were still at large and unmuzzled. The appellant took no heed of what Mr. Binney told her and appeared indifferent to the whole matter. Apart from this case there was another case pending against the appellant involving one of the dogs in this case. One of these two dogs has bitten another person. After she was found guilty in this case, she pleaded guilty to the second charge. It thus appears that the two dogs between them have bitten three people. The offence is committed if an owner or a person in charge of a ferocious dog permits or allows the dog to be at large without muzzle. It is not an ingredient of the offence that the ferocious dog bites somebody. A dog biting somebody may be one of the factors to be taken into consideration in deciding if the dog is ferocious. If an owner or a person in charge of a ferocious dog allows the ferocious dog to be at large unmuzzled and the dog bites people, the biting is an aggravating circumstance of the offence. In all the circumstances the order of destruction is therefore not unreasonable. The public must be protected. As regards the argument that no medical report or no better hospital reports were produced, as I have pointed out, the essence of the offence of section 296 (22) is not that the person is charged with a ferocious dog biting another person. It is not comparable to, for instance, assault or causing harm where it may be more necessary to produce a medical certificate to substantiate the assault or causing harm. It is therefore not necessary and essential on a charge under

[p.433] of [1965] GLR 424 section 296 (22) of Act 29 to produce a medical report—its non-production is not fatal to conviction. For the above reasons the appeal is dismissed.

DECISION

Appeal dismissed.

S.K.D.-B.