OBENG ALIAS DONKOR AND OTHERS v. THE STATE [1966] GLR 259

Division: SUPREME COURT

Date: 28 MARCH 1966

Before: CRABBE, AKAINYAH AND BRUCE-LYLE JJ.S.C.

NATURE OF PROCEEDINGS

APPEALS against the convictions of the appellants by Apaloo J.S.C. sitting with assessors in the High Court, Accra. The facts are sufficiently set out in the judgment of the court.

COUNSEL

Appellants in person.

Gyeke-Dako, Senior State Attorney, for the respondent.

[p.260] of [1966] GLR 259

JUDGMENT OF CRABBE J.S.C.

Crabbe J.S.C. delivered the judgment of the court. All the appellants in this case were convicted on various counts by Apaloo J.S.C., sitting with assessors, in the High Court of Ghana held at Accra on 25 January 1965. They were charged together with others, who were acquitted at the trial, on the first count of conspiracy to steal contrary to sections 23 (1) and 124 of the Criminal Code, 1960,1 and all, except the first appellant, were charged with abetment of crime contrary to sections 20 (1) and 124 of the Criminal Code, 1960. The first appellant alone was charged on six counts of stealing various sums of money belonging to the United Ghana Farmers Council. The first appellant was acquitted on the fourth count of stealing, and about this acquittal we shall say more later in this judgment. The fourth accused was dead at the hearing of this appeal, and, therefore, we treated his appeal as having abated.

The case turned purely on the facts which we think it is unnecessary to set out. After a detailed and meticulous summing-up by the learned trial judge, the assessors expressed different opinions as to the guilt of the appellants on the counts with which each was charged. In a well-considered judgment the learned trial judge found each appellant guilty of the count on which he was charged, except, as we have said earlier, that the first appellant was acquitted on the fourth count of stealing. We have carefully considered the evidence on record and we are satisfied that the guilt of each appellant was clearly proved, and we find no merit in any of the appeals which are accordingly dismissed. The acquittal on the fourth count calls for some comment. In his judgment the learned trial judge said: “The sum charged against the accused in count 4 is that he stole £G321 19s. 6d. No evidence whatsoever was led to prove this sum although evidence was led which satisfies me of the appropriation by the accused of £G315. As the charge was at no time amended, I am bound to hold that the amount charged in count 4 was not proved.”

With all due respect to the learned trial judge, we think he erred in the view he took of the law. In count 4 the first appellant was charged with stealing the sum of £G321 19s. 6d., but the evidence proved that the first appellant stole only £G315, and in his judgment the learned judge said, “I am satisfied beyond reasonable doubt that the first accused dishonestly appropriated these sums and made the false receipts to cover up the theft.” One of these sums referred to in the [p.261] of [1966] GLR 259 judgment is a voucher covering the amount of £G315, which was taken to be part of the total sum of £G321 19s. 6d. Under the law of Ghana a person is guilty of stealing if he “dishonestly appropriates a thing of which he is not the owner.” “Dishonest appropriation” is explained in section 120 (1) of the Criminal Code, 1960, thus:

“An appropriation of a thing is dishonest if it is made with an intent to defraud or if it is made by a person without claim of right, and with a knowledge or belief that the appropriation is without the consent of some person for whom he is trustee or who is owner of the thing, as the case may be, or that the appropriation would, if known to any such person, be without his consent.”

Acts which amount to appropriation are also explained in section 122 of the Code and subsection (2) of this section, which is relevant to this case, reads:

“An appropriation of a thing in any other case means any moving, taking, obtaining, carrying away, or dealing with a thing, with the intent that some person may be deprived of the benefit of his ownership, or of the benefit of his right or interest in the thing, or in its value or proceeds, or any part thereof”. Therefore where a person is charged with stealing a certain sum it is sufficient if the prosecution proves that he in fact stole part of that sum.

DECISION

Appeals dismissed.

S. K. T.