MALI v. THE STATE [1965] GLR 710

DIVISION: SUPREME COURT

DATE: 6 DECEMBER 1965

BEFORE: OLLENNU, AKAINYAH AND LASSEY JJ.S.C.

NATURE OF PROCEEDINGS

APPEAL against conviction for unlawful entry and stealing. The facts are fully set out in the judgment of

Ollennu J. S.C.

COUNSEL

Appiah (with him Sotomey) for the appellant.

S. M. Boison, Principal State Attorney, for the respondent.

JUDGMENT OF OLLENNU J.S.C

Ollennu J.S.C. delivered the judgment of the court. The appellant was charged jointly with one Baba

Gao with one count of unlawful entry, and five counts of stealing various sums of money totalling

£G3,835 17s. 6d. Baba Gao was acquitted on each of the six counts, while the appellant was convicted on each one. Originally one Zaria Mali, a brother and night watchman to the complainant was also arrested together with the appellant and the other defendant, and charged with the offence, but was later released by the police and not brought before the court.

Briefly stated the facts relevant to the case are as follows: The complainant in the case, one Mahamadu

Mali, is a Malian and a treasurer for a number of Mali subjects trading in fish between Kumasi and Mopti in the Republic of Mali. As such treasurer he from time to time had in his possession various sums of money belonging to his colleagues. He usually put these moneys in white flour bags, and kept them in boxes and chest of drawers in a room which he had rented for the purpose; the appellant and other persons also kept money in the same room, similarly enclosed in white flour bags. The room was commonly known to these Mali fish traders as “the bank” and the keys thereof were kept by the complainant; and

Zaria Mali, aforesaid, was the night watchman in charge.

At about noon on 25 February 1965, the appellant and Zaria Mali observed that the room had been broken into, so they proceeded to the market where Mahamadu Mali was, and reported the matter to him.

Mahamadu Mali went with the two to “the bank” and examined the same, he noticed that a chest of drawers had been forced open; in that drawer he said he had kept £G2,800. A report was then made to the police who after carrying on investigation arrested the appellant, Zaria Mali and Baba Gao; but later they decided not to proceed against Zaria Mali. When searched the said Baba Gao produced the amount of

£G3,835 17s. 6d. in a white bag which both he and the appellant said the appellant had collected from the room after the breaking into the room had been discovered. Originally Baba Gao had been asked to produce the money stolen from the room and he had denied having any such stolen money. Some weeks after the police had collected the money from Baba Gao, the complainant informed the police that the amount of money missing from his room was not £G2,800 as he had originally said but

[p.712] of [1965] GLR 710 rather £G3,835 17s. 6d., the exact amount which the appellant had given to Baba Gao for safe keeping.

The police accordingly framed the charges to correspond with the latter figures given by the complainant.

The evidence against the appellant was given by the second prosecution witness and is as follows:

“About 12 noon, I left my house going to a store. I was coming from Blackpool towards a store when I saw the first accused coming from the direction of the first prosecution witness’s house. The first accused was walking towards Zongo road direction. The first accused was holding a bulky hand bag under his armpit. Not long after seeing the first accused, I saw the second accused also following. I did not speak to either of the accused persons on seeing them.

I later went to the store to buy some clothes. I did not buy the clothes but returned to Blackpool. Later I heard some information regarding the theft of some money. When I heard of the news I went to the first prosecution witness’s house to see him but he was absent. I was giving some information as regarding the first prosecution witness’s whereabouts. As a result I went to the police station. I later saw policemen, the first prosecution witness, the first accused and Zaria Mali in the room of the first prosecution witness. I then gave information to the police as to what I saw at noon that day.”

The case of the appellant is that round about noon of that day he and Zaria Mali noticed that the locks on the door of “the bank” had been broken, he and Zaria Mali thereupon went into the room, he noticed that one drawer had been broken but all other drawers and the boxes including the box in which he kept moneys entrusted to him were intact. He there and then decided that it would be irresponsibility on his part further to leave people’s moneys in his keeping in such a room. He, therefore, in the presence of

Zaria Mali, collected his bag of money and gave the same to Baba Gao for safe keeping, and thence proceeded with Zaria Mali to the complainant at the market and made a report to him.

The police admitted in cross-examination that both the appellant and Zaria Mali gave this account right from the beginning. The learned trial judge convicted the appellant giving the following as his reasons for so doing:

I accept the evidence of the prosecution in its totality and reject the defence of each accused person. Each of the prosecution’s witnesses was vigorously cross-examined but each did not appear to be shaky.

[p.713] of [1965] GLR 710

Although there is no direct evidence to connect the first accused with the unlawful entry into the first prosecution witness’s room, since he was seen by the second prosecution witness with exhibit A soon after the breaking into the first prosecution witness’s room, the presumption is that he was the person who broke into the room and stole all the moneys listed in the charge. He has not been able to rebut that presumption and I find him guilty on all counts and convict him accordingly.”

One most important matter must be mentioned at this stage. After the case for the defence had closed, the learned judge on his own motion, and in exercise of the powers in him vested by section 119 of the

Criminal Procedure Code, 1960,1 called Zaria Mali to give evidence in the case, and the witness confirmed every material fact deposed to by the appellant in his evidence.

It is very strange that the learned judge never considered it necessary in any part of the lengthy judgment he wrote in the case, to make even a casual reference to the evidence given by this witness which he felt bound to call. But of this more hereafter.

It should also be pointed out in passing that the complainant, the first prosecution witness, never at any time identified the flour bag exhibit A as the bag in which he kept the £G2,800 or as he later alleged the

£G3,835 17s. 6d. Therefore the evidence of the appellant identifying the said exhibit A as his property stood uncontradicted.

The first point made by learned counsel for the appellant is that the evidence relied upon by the prosecution to sustain the charges is partly circumstantial, and that in its totality that evidence is consistent only with innocence. That evidence is that the appellant was found in the vicinity of the room where the money was kept at about the same time he gave exhibit A with its contents of £G3,835 17s. 6d. to Baba Gao for safe keeping.

We entirely agree with the submission that this evidence is in no way consistent with guilt. This is so for the following reasons:

(a) Upon the prosecution’s own case it was the appellant and Zaria Mali who first discovered the breaking into the room, and that this was at about noon, and that upon making the discovery he went to report the same to the first prosecution witness at the market. Therefore his presence in the neighbourhood at that time of the day is not consistent with his guilt.

(b) The flour bag, exhibit A, was never identified by the first prosecution witness as his property; it is admitted by the prosecution that the appellant kept money in a bag of that nature in the

[p.714] of [1965] GLR 710 room broken into, and there is no evidence that his said bag with its contents was in the room when the first prosecution witness went there after the theft. Therefore his possession of that bag with its contents which he claimed as his, is not consistent with guilt.

And now to the most crucial point in the case. Both the prosecution and the defence say that the appellant gained entrance into the room in question and collected therefrom a bag containing money. The issue joined between them, is whether he broke open the room in order to gain such entrance. The onus is upon the prosecution to prove that he did. They failed completely to lead any evidence on that issue except the circumstantial evidence already referred to. They however proved that they had in their possession facts which prove conclusively that the appellant gained the entrance after the room had been broken into; this fact they said was contained in a written statement given to them by an eye-witness to the said entry and collection, that person is Zaria Mali the watchman of the building and a brother of the whole blood of the complainant the first prosecution witness. Upon that evidence the trial judge should have ruled at the close of the case for the prosecution that there was no case to answer and thereupon have acquitted the appellant.

When called upon for his defence the appellant gave evidence on oath that it was upon discovery that the door of the room had been broken that he went into the room and collected his money because he considered it unsafe that his money should remain in that room with its door broken. There was nothing to rebut that evidence, and so the learned judge was in law bound to accept it and to acquit the appellant.

Instead of doing so he rather, as already pointed out,called the said Zaria Mali suo motu as a witness of the court under and by virtue of the powers in him vested by section 119 of the Criminal Procedure Code,

1960, which reads, “Any Court may at any stage of any inquiry, trial, or other proceeding under this Code call any person as a witness or recall and re-examine any person already examined.” These powers given to the court are intended to be exercised judicially to prevent injustice, e.g. to clarify an obscure or ambiguous point in the case for the prosecution. The law is that in order that injustice should not be done to a defendant the calling of such witness after the close of the case for the defence should be limited to cases where something has arisen on the part of the defendant ex improviso, which no human ingenuity could have foreseen: see Archbold, Pleading, Practice & Evidence in Criminal Cases (35th ed.), para.

1396 and the cases there cited. The reason for this principle of law is very plain. If evidence led on behalf of the

[p.715] of [1965] GLR 710 defence makes the court require an independent witness or further evidence to enable it to decide the issues raised in the evidence given by the prosecution, the irresistible inference is that the evidence led on behalf of the defence has created a reasonable doubt in the mind of the court. In that situation the court is under a legal duty to acquit. Therefore the moment the learned judge felt, after hearing the case for the defence, that further evidence was necessary to support the case for the prosecution, he should have returned a verdict of not guilty and acquittal and should not have done anything more. He failed to do so, in this he erred.

But worse still, the evidence led by the witness so called by the court corroborated the already uncontradicted evidence led by the defence on the material point. Strangely enough the learned judge did not so much as mention the evidence given by this witness in his judgment.

It is for the reasons stated herein that we allowed the appeal of the appellant on 12 October 1965, quashed his conviction and the sentence passed upon him and acquitted and discharged him.

DECISION

Appeal dismissed. Verdict of acquittal entered.

A. K. F.