NONDE v. THE REPUBLIC [1968] GLR 119

DIVISION: HIGH COURT, ACCRA

DATE: 2 FEBRUARY 1968

BEFORE: EDUSEI J.

NATURE OF PROCEEDINGS

APPEAL against conviction for stealing contrary to section 124 of Criminal Code, 1960 (Act 29). The facts are set out in the judgment.

COUNSEL

Ako Adjei for the appellant.

T. Ahlidjah, Assistant State Attorney, for the respondent.

JUDGMENT OF EDUSEI J.

The appellant was convicted of stealing ¢127.50, the property of one D. K. Annane on 9 May 1967 contrary to section 124 of the Criminal Code, 1960 (Act 29). Against this conviction the appellant has appealed to this court.

Counsel for appellant filed a number of grounds of appeal but the most important grounds were: (1) that the charge was bad for duplicity, and (2) that the conviction cannot be supported having regard to the evidence. The particulars of offence read as follows:

“For that you Peter Anako Nonde, on 10 November 1966 at Tema in the Accra Magisterial District and within the jurisdiction of this court did steal 85 bags of cement value ¢127.50 the property of one D. K. Annane.”

The district magistrate Grade I, Tema, convicted him of stealing the sum of ¢127.50. The evidence of D. K. Annane, the first prosecution witness, clearly showed that the appellant on different dates in October 1966 recorded the correct number of bags of cement sold out to customers on the daily sales returns but in sending the original copies to the first prosecution witness he reduced the number of bags of cement sold. By so doing he was able to misappropriate on those diverse dates various sums of money amounting to ¢127.50 which represented the value of 85 bags of cement. The evidence also showed that he forged the daily sales returns on 28 September 1966, 4 October 1966, 8 October 1966, 14 October 1966, 20 October 1966, 22 October 1966, 24 October 1966 and 25 October 1966; and was thus able to make use of the amount stated in the charge.

[p.121] of [1968] GLR 119

There is no doubt from the evidence that what the appellant stole was money which he received on the various dates on behalf of his master, D. K. Annane, and not bags of cement. It is also clear that he stole the specific sum of money on specific dates, and there can be no doubt also that each sum of money should have formed the subject-matter of a separate count. It is to be noted that section 109 of the Criminal Procedure Code, 1960 (Act 30), states: “109. (1) For every distinct offence of which any person is accused there shall, subject to subsection (2), be a separate charge or count.

(2) Charges or counts for any offences may be joined in the same complaint, charge sheet, or indictment and tried at the same time if such charges or counts are founded on the same facts, or form or are a part of a series of offences of the same or a similar character.”

It is incontrovertible that each theft of money committed on each specific date was a distinct offence and it should have formed the subject-matter of a separate count. But the various counts could appear on the same charge sheet. There should have been eight counts but all would appear in the same charge sheet since the offences form part of a series of offences of the same character. The learned state attorney however made some attempt, though feeble, to support the conviction by resorting to the provisions of section 111 of Act 30 but it was pointed out to him by the court that that section was inapplicable in the instant appeal. That section only applies where an accused person is charged with several counts in the same charge sheet and there is the likelihood of the accused being prejudiced or embarrassed in his defence then a separate trial may then be ordered. For instance if the counts with which the accused person is charged are not founded on the same facts or do not form part of a series of offences of the same or similar character (e.g. joining counts of assault and stealing committed on different dates in the same charge sheet) the court may order a separate trial if the defence will be prejudiced or embarrassed thereby. The submission therefore of the learned counsel for the appellant that the charge is bad for duplicity is unanswerable, and which the attention of the state attorney was drawn to the case of Commissioner of Police v. Sencherey [1959] G.L.R. 225, C.A. he conceded and intimated to the court that he did not intend to make any further submissions. In effect he was impliedly not supporting the conviction of the appellant. I think also that it was wrong in law for the district magistrate to convict the appellant of stealing the sum of ¢127.50 when he

[p.122] of [1968] GLR 119 was not charged with that offence; rather he was charged with stealing 85 bags of cement. There was not a tittle of evidence adduced in support of the charge of stealing cement by the prosecution and it is indisputable that the conviction in these circumstances cannot be supported having regard to the evidence. As a matter of fact the appellant was entitled to an acquittal at the end of the prosecution’s case, no prime facie case having been made out against him.

It must be pointed out to district magistrates that when police officers undertake prosecutions before them it is their duty to draw their attention to any defects in the charges so that amendments may be made at the earliest opportunity. Police officers are not learned in the niceties of criminal pleadings and failure on the part of district magistrates to advise such amendments in charges does cast a sombre reflection on the administration of justice. Members of the public can hardly understand why an obvious criminal is being let off simply because a proper charge was not preferred against him. I am not trying to suggest for a moment that trial magistrates must undertake prosecution themselves. Far from it. All that I am advocating here is that where an amendment at the earliest opportunity will conduce to justice being done in a case the trial magistrate must draw the attention of the police prosecutor to the needed amendment. If this is not done “injustice may well result, and a sense of injustice is a grievous thing”: per Parker L.J. (as he then was) in R. v. Medical Appeal Tribunal; Ex parte Gilmore [1957] 2 W.L.R. 498 at p. 506, C.A. The scales of justice must be held even between the state and an accused person. It is lamentable to observe that here is a criminal who is being set free solely on legal grounds which could have been avoided if a little care had been exercised. I cannot resist reiterating what van Lare J.A. said in Amoah v. Commissioner of Police, Court of Appeal, 19 June 1959, unreported: “This is one of those cases where an apparent criminal on the evidence wins his appeal on purely legal grounds where the objection lies in limine.” For the above reasons I allow the appeal, and quash the conviction and sentence.

The appellant is acquitted and discharged.

DECISION

Appeal allowed.

S. K. T.