PEARCE v. THE REPUBLIC [1968] GLR 211

DIVISION: HIGH COURT, CAPE COAST

DATE: 7 MARCH 1968

BEFORE: ARCHER J.

NATURE OF PROCEEDINGS

APPEAL to the High Court against the conviction of the appellant at the district court of the offence of stealing, contrary to the Criminal Code, 1960 (Act 29), s. 24. The facts are full set out in the judgment of the court.

COUNSEL

A. H. Sackeyfio for the appellant.

J.O. Amui, State Attorney, for the Republic.

JUDGMENT OF ARCHER J.

The appellant was jointly charged with two others on two counts, namely: (1) conspiracy to steal contrary to section 23 of the Criminal Code, 1960 (Act 29), and (2) stealing, contrary to section 124 of Act 29. At the close of the case for the prosecution, the trial circuit judge, sitting at Cape Coast, upheld a submission of no case on behalf of the second accused by name Emmanuel Leteye Lartey and acquitted and discharged him on the two counts. The trial then proceeded in respect of the two others including the appellant, who gave evidence on oath. In his judgment, the trial circuit judge acquitted and discharged the third accused by name Isaac Aikins on both counts. He also acquitted and discharged the appellant on the first count of conspiracy but found him guilty on the second count of stealing, convicted him and sentenced him to one day’s imprisonment plus a fine of £G50 or N¢100.00.

The appellant, being aggrieved by the judgment has appealed to this court on four grounds namely:

(1) The second accused, an accomplice, having been wrongfully acquitted and discharged at the close of the prosecution’s case, the conviction of the appellant (first accused) was improper.

(2) The judgment was against the weight of evidence.

(3) The statement made by the appellant to the police was inadmissible in evidence.

(4) Suppression of evidence by the prosecution.

[p.214] of [1968] GLR 211

The facts briefly are as follows: The appellant and the two others, acquitted and discharged, were all employees of the State Construction Corporation at Cape Coast at the material time. The appellant was employed as storekeeper at a site known as job 637 at the University College, Cape Coast. The second accused Lartey was employed at the same site as works superintendent and the third accused Aikins as gate checker at the same site. Both the appellant and Aikins worked under Lartey who was the corporation’s agent at job 637. The normal procedure at this site was that the appellant issued articles out of his store on a requisition approved by Lartey. A waybill was then prepared by the appellant and it was the duty of Aikins to check the articles on any vehicle which passed out of the gate with the waybill. On 25 April 1967, a security officer, the first prosecution witness E. K. Wotordjor, employed by the State Construction Corporation intercepted a vehicle No. SG 1744 driven by one John Amamu, the third prosecution witness, on its way from the site of job 637. Amamu could not produce any waybill to cover the bags of cement then on his vehicle but his explanation was that the cement was given to him by the appellant to be taken to job 727 at Ankaful. Police investigations revealed that no requisition for 100 bags had been made by job 727. Upon further investigations the police charged the three persons with conspiracy and stealing of 117 bags of cement. The driver of the vehicle gave evidence to the effect that the appellant took him to Lartey’s office where there was a conversation in which he Amamu was introduced by the appellant as the driver who was to cart the cement and thereafter Lartey instructed Amamu’s vehicle to be loaded. The security officer, Wotordjor, also gave evidence indicating that the second accused Lartey begged him to drop the case. The prosecution also brought certain witnesses to prove that there was a meeting at which the second prosecution witness Kwesi Atta, the fifth prosecution witness Mary Maud Mends and the sixth prosecution witness Georgina Abedu were present together with the appellant and Lartey. It was alleged that at that meeting, Lartey advised the appellant what to tell the police but the appellant refused. In his ruling, the trial judge ruled that the evidence of the second, fifth and sixth prosecution witnesses was conflicting. The court also held that as Amamu was an accomplice, his evidence against Lartey required corroboration before Lartey could be safely convicted. The trial judge therefore acquitted and discharged Lartey at the close of the case for the prosecution on a submission of no case by Lartey’s counsel. [p.215] of [1968] GLR 211

The appellant through his learned counsel has argued that Lartey was an accomplice and as he had been wrongfully acquitted and discharged at the close of the case for the prosecution, the conviction of the appellant was improper. This ground of appeal stems from an expression in the judgment of the court below at p. 83 of the record as follows:

“The second accused, as I have stated earlier on, has escaped the claws of the law through no fault of mine but the failure of the prosecution to tender exhibit N which would have strongly proved the charges against him. The acquittal of the second accused does not in any way affect the guilt of the first accused.”

Learned counsel for the appellant urged that the trial judge by his expression was revealing his regret and sorrow at the wrongful acquittal of the second accused Lartey. Whether the expression represents the actual feeling of the trial judge as suggested by learned counsel, I am not prepared to speculate. Who is an accomplice? In Davies v. Director of Public Prosecutions [1954] A.C. 378 at p. 400, H.L. Lord Simonds L.C. attempted this analysis: “There is in the authorities no formal definition of the term ‘accomplice’: and your Lordships are forced to deduce a meaning for the word from the cases in which X, Y and Z have been held to be, or held liable to be treated as, accomplices. On the cases it would appear that the following persons, if called as witnesses for the prosecution, have been treated as falling within the category:—

(1) On any view, persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting (in the case of misdemeanours). This is surely the natural and primary meaning of the term ‘accomplice.’ But in two cases, persons falling strictly outside the ambit of this category have, in particular decisions, been held to be accomplices for the purpose of the rule: viz;

(2) Receivers have been held to be accomplices of the thieves from whom they receive goods on a trial of the latter for larceny (Rex v. Jennings ((1912) 7 Cr.App. R. 242): Rex v. Dixon ((1925) 19 Cr.App. R. 36)):

(3) When X has been charged with a specific offence on a particular occasion, and evidence is admissible, and has been admitted, of his having committed crimes of this identical type on other occasions, as proving system and intent and negativing accident; in such cases the court has held that in relation to such other similar offences, if evidence of them were given by parties [p.216] of [1968] GLR 211 to them, the evidence of such other parties should not be left to the jury without a warning that it is dangerous to accept it without corroboration (Rex v. Farid (1945) 30 Cr.App. R. 168)).”

In the present appeal before me, Lartey did not give evidence for the prosecution but he was a co-accused who was acquitted and discharged at the close of the prosecution’s case. I am therefore at a loss to understand the reference to him as an accomplice in the first ground of appeal. As I understand the law where prisoners are tried jointly and one of them gives evidence on his own behalf incriminating a co-prisoner, the prisoner who has given the incriminating evidence is not placed in the position of an accomplice, nor does the rule of practice with regard to the corroboration of an accomplice apply to such a case. Thus in R. v. Barnes (1940) 27 Cr.App.R. 154 at p. 166, C.C.A., Lord Hewart C.J. held that the rule applies only to witnesses called for the prosecution: see also Commissioner of Police v. Owusu (1958) 3 W.A.L.R. 364. Where however one co-prisoner gives evidence against another co-prisoner and his evidence for that purpose becomes evidence for the prosecution against that co-prisoner, then that co-prisoner who gave that evidence is placed in the position of an accomplice: see R. v. Rudd (1948) 32 Cr.App.R. 138 at p. 143, C.C.A. Lartey did not give evidence for the prosecution and whatever he stated in his police statement exhibit G in the absence of the co-prisoners cannot be evidence against any of the co-prisoners: see Commissioner of Police v. Owusu (supra).

The next point I wish to deal with at some length is what principles govern a submission of no case. Section 173 of the Criminal Procedure Code, 1960 (Act 30), provides:

“If at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require him to make a defence, the Court shall, as to that particular charge, acquit him.”

As I read the section, the duty of the court is mandatory if no evidence, sufficient to require the accused to make his defence, has been adduced by the prosecution. In this respect, I wish to refer to a Practice Note (Submission of no case) in [1962] 1 All E.R. 448 where Lord Parker C.J. directed as follows.

“Those of us who sit in the Divisional Court have the distinct impression that justices today are being persuaded all too often to uphold a submission of no case. In the result, this court has had on many occasions to send the case back to the justices for the hearing to be continued with inevitable delay and increased expenditure. Without attempting to lay down any [p.217] of [1968] GLR 211 principle of law, we think that as a matter of practice justices should be guided by the following considerations.

A submission that there is no case to answer may properly be made and upheld: (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.

Apart from these two situations a tribunal should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict. If a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer.” I cannot think of a better expatiation of the rules governing a submission of no case. The next point I wish to consider is whether the trial court was entitled to acquit Lartey after the court had upheld the submission of no case on his behalf. In the very early case of R. v. Elizabeth and James Martin (1889) 17 Cox C.C. 36, it was held that a person jointly charged with another but against whom no case is made out and the submission has been upheld by the court, is nevertheless, not entitled to be discharged at the close of the case for the prosecution where the other person charged elects to give evidence. In Ghana, section 173 of the Criminal Code is couched in mandatory terms. That is to say, as soon as the court rules or upholds a submission of no case, the court shall acquit the accused on the particular charge. In R. v. Abbott [1955] 2 Q.B. 497 the Court of Criminal Appeal allowed the appeal as the judge had come to a wrong decision in point of law in rejecting the submission of no case and in leaving the case to the jury when there was no evidence against him at the close of the case for the prosecution. It held that in a case where two persons were jointly charged and the judge wrongly rejected a submission on behalf of one that there was no case to answer against him only, the conviction ought to be quashed because the only evidence against him was that of his co-accused, who had an obvious intent in trying to place the blame upon him. In the present appeal, there is no doubt that some evidence was adduced by the prosecution against the second accused Lartey but the trial court held that as Amamu the driver was an accomplice,

[p.218] of [1968] GLR 211 corroboration was required. As I understand the law, corroboration can be provided either through the evidence adduced by the prosecution or by evidence adduced by the defence. In R. v. Medcraft (1931) 23 Cr.App.R. 116, C.C.A. it was held that there may be corroboration of accomplices in the prisoner’s own evidence and in the circumstances of the case, including the prisoner’s own conduct. It seems to me therefore that even if there had been no corroboration of the evidence of Amamu, there was still room to find corroboration from the circumstances of the case and the conduct of Lartey and his evidence, if he had chosen to give evidence, assuming that his submission of no case had been overruled. There was also exhibit N which the trial court lamented had not been tendered before Lartey’s acquittal and discharge. There is therefore no doubt that the trial court was precipitate in upholding that submission in favour of Lartey. The Republic has not appealed against the acquittal of Lartey and it will therefore be useless on my part to consider his acquittal any further. In any case the trial court ruled that the appellant had a case to answer and I think it was a proper ruling and the mere fact that Lartey had been acquitted at that stage did not Warrant the acquittal of the appellant. In R. v. Frazer (1911) 7 Cr.App.R. 99 at p. 107, C.C.A. Lord Alverstone C.J. stated that where an objection is taken by counsel unsuccessfully, and he then calls evidence, the appellate court is not bound to disregard the effect of that evidence. In the earlier case of R. v. Joiner (1910) 4 Cr.App.R. 64, C.C.A. Darling J. had held that if at the end of the case for the prosecution there is no case to go to the jury, the court, on a submission, ought to withdraw it from them. Darling’s principle was not followed in Frazer’s case and when the same Darling J. had to deal with R. v. Power [1919] 1 K.B. 572, C.C.A., he did not follow his own ruling in Joiner’s case but chose the principle as enunciated by Lord Alverstone C.J. in Frazer’s case. However when R. v. Abbott (supra) came before the Court of Criminal Appeal Lord Goddard C.J. was of the opinion that R. v. Power did not decide that if a judge wrongly overrules a submission of no case and allows the case to go to the jury and the accused persons give evidence and one gives evidence against the other, the appellate court is not bound to say that it will quash the conviction because it may take into account the whole of the evidence given. Lord Goddard C.J. stated the correct principle at p. 503 as follows:

“If two people are jointly indicted for the commission of a crime and the evidence does not point to one rather than the other, and there is no evidence that they were acting in concert, the jury ought to return a verdict of not guilty against both because

[p.219] of [1968] GLR 211 the prosecution have not proved the case. If, in those circumstances, it is left to the accused persons to get out of it if they can, that would put the onus upon them to prove themselves not guilty.”

And referring to Power’s case, Lord Goddard C.J. continued at pp. 505–506 as follows:

“What was said was that, if the case did go to the jury, the evidence given by the prisoners respectively was part of the sum of the evidence in the case, and this court when asked to quash a conviction might take the whole of the evidence into account. They did not say that the court must do so, but that this court might do so. They certainly did not say that if there was no evidence given against one of two or more prisoners the judge could simply leave the case to the jury to see whether, when the case for the defence was opened, one or other of the prisoners would support the case set up by the prosecution. . . . it cannot be right for a judge to leave a case to the jury where the whole of the structure upon which the prosecution has been built up to that moment collapses and falls, . . . it seems to me that it was not only the duty of the judge to point out, but that it was the prisoner’s right to say, that the case against him has collapsed, and that he was not called upon to answer the case any further.”

Some of the cases I have cited were fully considered by Adumua-Bossman J., as he then was, in the case of R. v. Osabu and Maaseyo (1957) 3 W.A.L.R. 180, C.A. which now appears to be the law in Ghana.

Now what was the evidence which was adduced by the appellant after his submission of no case had been rejected? In cross-examination, the prosecution tendered in evidence exhibit N with alterations which by their nature looked very suspicious and dishonest. The appellant’s history of exhibit N is as follows:

“I did not prepare a waybill to cover the cement because a waybill cannot be prepared without a requisition. The second accused was in his office when the truck was being loaded. The second accused gave me a requisition note to cover the cement after it had been taken away on 25 April 1967 … I had issued out fourteen bags of cement on 24 April 1967 and the second accused issued exhibit N for 131 bags to include the 117 which he had asked me to supply to the third prosecution witness. The practice was that a requisition was issued a day after materials had been supplied for work at the site to cover the materials as it [p.220] of [1968] GLR 211 is only at the close of work that the quantity of materials is known. I kept the cement tally and exhibit F. Exhibit N was issued by the second accused.”

Then at p. 71 of the record the appellant continued, “I was told by Ainoo that the second accused came for exhibit N and altered the 131 bags of cement he had written on it to fourteen.” As I have already said, exhibit N is obviously and patently fraudulent. The prosecution did not bother to apply for the leave of court to adduce evidence in rebuttal and this piece of evidence was clearly not against the appellant but in his favour. I have failed to understand why exhibit N was not tendered during the prosecution’s case. The fourth ground of appeal suggests that this piece of evidence was suppressed. Whether it was deliberately suppressed by the prosecution or not, I am most unwilling to say. All that I wish to say is that it was tendered too late in the interest of the prosecution but rather timely and opportunely in favour of the appellant. This brings me to the last ground of appeal which was argued, namely, that the judgment was against the weight of evidence. I wish to observe now that when the court below acquitted and discharged the second accused it took into consideration the finding that the third prosecution witness Amamu was an accomplice and as there was no corroboration of his evidence, no case had been made against the second accused. Unfortunately, it did not occur to the court below that the third prosecution witness had given evidence against the appellant and if the third prosecution witness was an accomplice so far as Lartey was concerned then the same ruling that the third prosecution witness was an accomplice must also have been applied in considering appellant’s case. There is no doubt that the court below relied on the evidence of the third prosecution witness in convicting the appellant but there is no indication in the judgment that the court warned itself that the third prosecution witness was an accomplice and if so whether there was corroboration in law. The learned state attorney has urged that the third prosecution witness was not an accomplice. I must say that the court below made a finding of fact in his ruling that the third prosecution witness was an accomplice and I have no reason to challenge that finding. Only the third prosecution witness knew where he was taking the cement and for whom, after having driven for the Public Works Department for 25 years before retiring. At p. 82 of the judgment, we read the following extract: “I believe the evidence of the first accused that only fourteen bags of cement were used at job 637 on 24 April 1967, but the

[p.221] of [1968] GLR 211 second accused prepared a requisition covering 131 bags to include the 117 bags which had been given to the third prosecution witness. The alterations made on exhibit N, confirm the first accused’s story. Had the prosecution tendered exhibit N in evidence before the close of their case the position as regards the second accused must have been different.”

Now what is the accused’s story? His story was that the second accused Lartey instructed him to supply the cement to the third prosecution witness and later Lartey issued exhibit N and made alterations on it. If exhibit N confirms the appellant’s story as the court below found, then the appellant gave an explanation which the trial court believed. But the trial court relied on exhibits E and N to convict the appellant. Exhibit N is a requisition signed by Lartey with the dishonest alterations on it and I cannot see how that document can incriminate the appellant. In exhibit E, the appellant maintained that he supplied the cement to the driver Amamu on the instructions of Lartey and whether that document was intended to shield Lartey or not is not clear. Exhibit E tends to put all the criminal responsibility, if any at all on Lartey. The court below also thought that the order was not accompanied by a requisition in accordance with the usual practice. But it seems to me that in his evidence the appellant said that “the practice was that a requisition was issued for work at the site to cover the materials as it is only at the close of work that the quantity of materials used is known.” This piece of evidence is supported by evidence from the mouth of a prosecution witness the third prosecution witness at p. 15 of the record as follows: “From my experience materials could be sent out to a site without a waybill when they are urgently needed for work. A waybill is later prepared to cover them.” This same witness, the third prosecution witness, had earlier stated that because the first accused took him to the second accused he knew that he was carrying out the second accused’s instructions. The appellant’s story was that he was obeying the instructions of the second accused but the court below held that as the instructions were manifestly irregular and unlawful, the appellant had no defence. In the case of Wilson v. Stewart (1863) 3 B.& S. 913, there was conclusive and undisputed evidence that numerous prostitutes were found in a place of public resort kept by one Fryer whose head waiter or manager was the respondent Stewart and both were charged for suffering these prostitutes to be on the premises. Crompton J. with Blackburn and Mellor JJ. concurring, held at p. 916 that: “if the keeper of a place of public resort instructs his servant to manage it in such a way as to be a violation of the statute . . . and

[p.222] of [1968] GLR 211 the servant does so, the master is guilty of an offence within that Act, and the servant is guilty as aiding and abetting him.”

In the present appeal before me the appellant was not charged with aiding and abetting the crime of stealing and I find Wilson v. Stewart not very helpful. The Criminal Code, 1960 (Act 29), does not provide that obedience to superior orders is a defence but it seems to me that the defences expressly provided in the Criminal Code are not exhaustive and one can rely on decided authorities in other countries for guidance. English law is not settled on this point but it appears that four cases throw some light on the matter and Willes J. appears to be a pioneer in this field. Thus in the early case of R. v. Trainer (1864) 4 F. & F. 105 at pp. 111-112 Willes J. is reported as having stated that:

“The learned Judge said he should hold that in a criminal case an inferior officer must be held justified in obeying the directions of a superior, not obviously improper or contrary to law—that is, if an inferior officer acted honestly upon what he might not unreasonably deem to be the effect of the orders of his superior, he would not be guilty of culpable negligence, those orders not appearing to him, at the time, to be improper or contrary to law.” Then in Keighly v. Bell (1866) 4 F. & F. 763 the same Willes J. said at p. 805:

“If it were necessary to state any principle on which it would be competent to me to decide such a case, it would be that a soldier, acting honestly in the discharge of his duty—that is, acting in obedience to the orders of his commanding officer—is not liable for what he does, unless it be shown that the orders were such as were obviously illegal. He must justify any direct violation of the personal rights of another person, by showing, not only that he had orders, but that the orders were such as he was bound to obey.” The footnote to this report makes it clear that the learned judge was speaking of orders given, and acts done in time of peace, and so under ordinary law. I am not dealing with time of war. Still in another case Dawkins v. Lord Rokeby (1866) 4 F. & F. 806 at p. 831 Willes J. repeats his principle that to raise the defence of superior orders, the command must be legal and the subordinate must have acted bona fide. The Keighly v. Bell and Dawkins v. Lord Rokeby principles as laid down by Willes J. seem to have been supported by Kennedy J. in Marks v. Frogley [1898] 1 Q.B. 888. So also in R. v. Thomas (1816) 4 M. & S. 442, C.C.R. a marine who, thinking to obey orders, shot a boatman [p.223] of [1968] GLR 211 who insisted on rowing up to the ship, was held guilty of murder because his act was not necessary for the preservation of the ship. Notwithstanding these judicial attempts to formulate a principle it appears that there is no settled English law on the matter. Russell on Crime (12th ed.), Vol. 1 at p. 88 thinks “the circumstances may be such as to create ‘a claim of right’ admitted under the provisions of a statute, or negative a special intent.” Kenny’s Outlines of Criminal Law (17th ed.), p. 61 advocates that: “such orders, when not obviously unlawful, may be relevant to his [a subordinate’s] defence under some more general rule of law. They may give him such a claim of right as renders it no larceny for him to appropriate another man’s goods, or such grounds for supposing the immediate circumstances to justify his conduct as will render this mistake of fact a valid defence, or negative a particular intent or excuse apparent recklessness.” Also Halsbury’s Laws of England (3rd ed.), Vol. 10 has this principle at p. 291, para. 541:

“The mere fact that a person does a criminal act in obedience to the order of a duly constituted superior does not excuse the person who does the act from criminal liability, but the fact that a person does an act in obedience to a superior whom he is bound to obey, may exclude the inference of malice or wrongful intention which might otherwise follow from the act.”

The offence before the trial court was that of stealing which is defined in section 125 of the Criminal Code, 1960 (Act 29), as “A person steals if he dishonestly appropriates a thing of which he is not the owner.” Section 120 (1) of the same Act also provides that:

“120. (1) 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.”

It seems to me that when the appellant raised the defence of superior orders, it was incumbent upon the trial court to consider whether such a defence although not known to the Criminal Code would tend to negative any intent to defraud or prove knowledge or belief that the appropriation was with the consent of some person for whom he is trustee or who is owner of the thing. The appellant worked under Lartey who was the site agent. The appellant took his [p.224] of [1968] GLR 211 instructions from him. Exhibit N proved that the appellant issued the bags of cement on the instructions of Lartey, who was the representative of the State Construction Corporation at job 637.

Assuming therefore that Amamu wanted cement to buy and he approached the appellant who referred him to Lartey, was there any proof that if the cement were paid for, the proceeds would not have gone into the chest of the State Construction Corporation? Nor was it proved that the State Construction Corporation does not sell cement to private individuals. The bags of cement were intercepted en route from the site of job 637. They were not found at Kotokuraba or Ankaful. The driver Amamu gave inconsistent statements to Wotordjor the first prosecution witness when he confronted him. The prosecution should therefore have proved intent to steal on the part of the appellant and knowledge on his part that the supply was without the consent of the State Construction Corporation or its accredited agent, that is, Lartey. In the present appeal, the court below held “no doubt that there had been an arrangement between the first accused [that is the appellant] and the second accused to sell some cement to the third prosecution witness and that it was in pursuance of that agreement that 117 bags of cement were supplied to the third prosecution witness.” Is the court below not reviving the conspiracy charge after he had acquitted all the three accused persons on that count? The third prosecution witness denied that he made any approach to buy any cement from the appellant and the second accused. If Lartey instructed the appellant to supply the cement and load the driver’s vehicle, was that command obviously illegal to use Willes J.’s phrase? I think not on the evidence. There was evidence that at times, vehicles were loaded without requisition and waybills and that the requisition and waybills were later prepared. If the appellant then followed Lartey’s instructions to supply the cement and exhibit N was later issued by Lartey, was not the procedure in conformity with the usual practice at the State Construction Corporation? I think there was evidence favourable to the appellant which the trial court could have relied upon in acquitting the appellant. The learned state attorney has urged that there has been no substantial miscarriage of justice. With great respect to him, I do not share that view. The court below treated a prosecution witness as an accomplice for the purpose of acquitting a co-accused but became oblivious of this treatment when convicting another co-accused. Exhibit N and the alterations stand as a cheap portrait depicting an amateurish feat in “applied dishonesty” designed to pervert the [p.225] of [1968] GLR 211 course of justice. Furthermore the evidence favourable to the appellant was not given the judicial consideration it deserved. The trial court’s lamentations over the revelations in exhibit N did not warrant the conviction of the appellant. When one reads the record of proceedings, it becomes imaginable that the appellant since his conviction must have been walking through the streets of Cape Coast with his chin looking up to the starry heavens and saying in his head “Almighty God, I have been unfairly treated.” It is the duty of the appellate court to ensure that an appellant leaves a court of law with the firm conviction that he has not been unfairly treated. It is reported that an ancient Jewish judge, Deborah, dwelt under a palm tree near Mount Ephraim “and the children of Israel came up to her for judgment.” (See Judges IV, verses 4 and 5.) Deborah’s system of trial has evoked the derisive allusion “palm tree justice.” But I must confess that I do not sit here under a palm tree to dispense justice. I sit here in a court of law to protect the poor from the wicked and to ensure that the ordinary person in the Republic is fairly treated according to the law of the land. Fiat justitia, ruat coelum (Let justice be done, though the heavens should fall). But I think this is a case in which the heavens will refuse to fall so long as the appellant’s conviction stands. Lord Denning in his Road to Justice has said at pp. 6-7:

“When you set out on this road (to justice) you must remember that there are two great objects to be achieved: one is to see that the laws are just; the other that they are justly administered. Both are important; but of the two, the more important is that the law should be justly administered.”

I have therefore decided to allow the appeal fully conscious of the possible consequences of my decision. But I must confess that I am greatly inspired by the great learned English judge Bowen L.J. when he defended the modern generation of English judges as follows:

“These are not days. . . in which any English judge will fail to assert his right to rise in the proud consciousness that justice is administered in the realms of Her Majesty the Queen, immaculate, unspotted and unsuspected. There is no human being whose smile or frown, there is no Government, Tory or Liberal [and I may add Labour and Socialist] whose favour or disfavour can start the pulse of an English judge upon the Bench, or move by one hair’s breadth the even equipoise of the scales of justice.” See Cunmingham’s Lord Bowen (1897) at p. 175. I do not see why the days of judges in the Republic of Ghana should be different from those described in Bowen L.J.’s eulogy and rhetoric. For the above

[p.226] of [1968] GLR 211 reasons, the appeal is allowed. The conviction is quashed and the sentence set aside and the appellant is acquitted and discharged. The fine if paid should be refunded.

DECISION

Appeal allowed.

Conviction quashed and sentence set aside.

S.K.T.