DRAMANU vs. THE REPUBLIC [1973] 2 GLR 378

CASES REFERRED TO

(1) Republic v. Halm, Court of Appeal (full bench), 7 August 1969, unreported; digested in (1969)

C.C. 155.

(2) Armah v. The State [1961] G.L.R. 136, S.C.

(3) Amoako v. Commissioner of Police [1961] G.L.R. 134, S.C.

NATURE OF PROCEEDINGS

APPEAL from a decision of a district court convicting the appellant for stealing. The facts are sufficiently stated in the judgment.

COUNSEL

Dy-Yakah for the appellant.

Creppy, Principal State Attorney, for the Republic.

JUDGMENT OF KORANTENG-ADDOW J.

The appellant was charged with the offence of stealing under section 124 of the Criminal Code, 1960 (Act 29). He was the secretary of the Gonja Traditional Council. He had in fact served the council for eighteen years by then. He was alleged to have stolen an amount of ¢200.00, the property of the council some time in 1968. The allegation was that two stray cattle were found in the area and, as was the custom, they were brought to the Yabonwura, the paramount ruler. The chief ordered the cows to be sold. They were sold and the amount realised was ¢200.00. According to the paramount chief (the fifth prosecution witness at the trial), when the cows were sold the amount of ¢200.00 was brought to him. But when it was tendered he instructed the accused to go and pay it into the coffers of the traditional council because it belonged to the council, but he did not do so. The accused denied the charge, but he was tried, found guilty and convicted. He was sentenced to a fine of ¢120.00 or to a term of six months’ imprisonment with hard labour in default.

The defence of the accused was that he paid the money to the Yabonwura who was the owner. The Yabonwura gave it back to him for safe-keeping but that later, on the instructions of the Yabonwura, he added it to an amount given to him by the Yabonwura to pay off a debt owed by a son of the Yabonwura. The Yabonwura admitted the payment to him of the money but said that he never asked the accused to use the money as alleged by him. Besides the mere allegation of the Yabonwura there was however no evidence in proof of the fact that the traditional council had lost anything. Not one witness was called from the council to say that the council had lost any money. On the contrary there was ample evidence that the money belonged to the Yabonwura, and the evidence was accepted by the trial magistrate. The prosecution therefore failed

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completely to establish the question of ownership. This failure is reflected in the judgment of the learned trial magistrate. In it he said among other things:

“I now come to the charge and its particulars. The accused was charged for having stolen the sum of N¢200.00 the property of the Gonja Traditional Council. The ownership was therefore laid in the Gonja Traditional Council. But there is a great conflict in the evidence as to where the ownership should be laid, the traditional council or the Yabonwura.”

To resolve that difficulty of the question of ownership however the learned trial magistrate sought support from the illustration to section 120 (2) of the Criminal Code, 1960 (Act 29), and relied also on Republic v. Halm, Court of Appeal (full bench), 7 August 1969, unreported; digested in (1969) C.C. 155 where it was stated inter alia:

“But further reflection leads us to the conclusion that all that was intended by the judgment [Domena v.

Commissioner of Police [1964] G.L.R. 563, S.C.] is that in every case, that which the law requires is proof that the person charged is not the owner of the property stolen, and no more. So that the prosecution, if they charge that the property belongs to a particular person, may attempt to prove that fact but if they fail in that attempt they need not necessarily fail on the charge of stealing as a whole so long as they manage to prove that the accused is not the owner of the property and to satisfy the requirements of the other ingredients of the offence.”

The illustration to section 120 (2) of Act 29 reads as follows: “A person can be guilty of stealing by appropriating things the ownership of which is in dispute or unknown, or which have been found by another person.” The section says that a person may be guilty of stealing a thing, the ownership of which is in dispute. It says also that a person may be guilty of stealing a thing even though the owner is unknown. It does not say that a person may be guilty of stealing when the ownership is in doubt, as was stated by the learned trial magistrate.

When the illustration to section 120 (2) of Act 29 says a person may be guilty of stealing a thing when the ownership of it is in dispute, in my view, what it meant is that when it is known that persons or parties are disputing the ownership of the things if a third person dishonestly appropriates them he may be guilty of stealing. It does not mean that a person may be guilty of stealing a thing the ownership of which is in doubt.

Again, it is true that a person may be guilty of stealing a thing of which the owner is unknown. In my view, that situation may only arise when the fact that the thing has been stolen is settled beyond any doubt but there is no means of knowing the owner. He may also be guilty when the stealing itself is admitted or undenied. The fact that the clause containing the idea that a person may be guilty of stealing even though the owner of the stolen property is unknown, is followed by the clause: “which have been found by another person,” shows that a person may be

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guilty of stealing without proof of ownership of the stolen article only in cases where it is impossible to establish ownership. There is an association between the ideas of “being unknown” and “finding.” In this case the very question of stealing was disputed. The evidence and defence of the accused was that he never dishonestly appropriated the money: rather it belonged to the Yabonwura; he paid it to the Yabonwura who instructed him to use it in a particular way and he did.

The evidence of the fact that stray cows belonged to the Yabonwura given by the accused person was supported by Mr. Mahama the defendant’s first witness who was for five years the clerk of the council. In his evidence he said among other things:

“I have served as secretary to the Gonja State from 1951 to part of 1956. I know Gonja custom. When I was secretary a number of the chiefs, divisional chiefs and the paramount chief were paid. During my time as secretary I heard of stray animals picked up in the Gonja area. If a stray animal was picked up in the Bole area it was given to the chief. If it was picked up in the paramount chief’s area it was given to the paramount chief. If a stray animal is sent to a divisional chief and he uses it he must inform the paramount chief of it otherwise he has to send it to the paramount chief who can do anything with it. When a stray animal is found it is kept for some time and if there is satisfaction that the owner is not coming then it is sent to the paramount chief. During my tenure I have seen quite a number of times stray animals given to the paramount chief. They are his personal property. I am not aware that since I left the secretaryship this custom has been changed. No one divisional chief can unilaterally change the custom without the decision of the traditional council.”

It is also supported by the evidence of the Yabonwura himself. Under cross-examination he gave this rather weak answer to a question. He said: “Some time ago I received a cow from Finbu. I was not told it was a stray cow. I did not ask the reason why it was brought to me.” That definitely was an answer given in distress. It is my view that it was to incorporate such situations as are contained in section 120 (2) that section 125 of Act 29 was worded in such a way as to dispense with proof of ownership in the stolen article.

The wording of section 125 of the Criminal Code makes it plain that there is no necessity to prove ownership in a charge of stealing under our Criminal Code. But there is still the need to prove that the person charged is not the owner of the thing stolen. In a case in which the accused person has pleaded “not guilty” the burden lay on the prosecution to establish all the three ingredients to the charge, namely:

(1) that there was an appropriation,

(2) that the appropriation was dishonest, and

(3) that the accused was not the owner of the stolen thing.

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To satisfy the third ingredient, unless the fact that the accused is not the owner of the thing stolen is admitted or not disputed, the only way of proving that the article did not belong to the accused is to prove that it belongs to some one else. If ownership is alleged to reside in a named person and if the prosecution failed to establish that fact, then it has failed also to prove that the accused is not the owner. The prosecution must then fail. Take for instance this hypothetical case: Riding a brand new bicycle in the street, A., is arrested and charged with having stolen the bicycle. In the charge it is alleged that the property belonged to the U.A.C. The defence of A. is that the property belonged to him. The prosecution proceeds with the trial. They call the U.A.C. but the U.A.C. gave evidence that they had not lost any bicycle. Can it be said that the proof of ownership is unnecessary in such circumstances? How else can it be established that A. was not the owner of the bicycle? Definitely the failure to establish the ownership in such a case must be fatal to the prosecution’s case. If the prosecution knew the real owner they would not have laid the ownership in another. To satisfy the ingredient of the negative phrase: “of which he is not the owner,” in such a case one has to prove positively that somebody else, a particular person, is the owner.

In this instant case the proof of ownership was fundamental in the sense that whereas the prosecution was alleging that the Gonja Traditional Council was the owner of the stolen property, the accused was alleging that the money belonged to the Yabonwura, the paramount chief of the traditional area. The proof of ownership of the property became very relevant also because at the conclusion of the case the learned trial magistrate made a restitution order ordering the property to be restored to the Gonja Traditional Council even though in effect he decided that the allegation of the prosecution that the council was the owner of the property was not proven. In this case the establishment of the fact of ownership became very relevant also because it formed the basis of the defence of the accused person and the deciding factor in the whole trial. For, if the Yabonwura was the owner, as alleged by the defence, the accused person could not be guilty of stealing.

Even though it is true as stated in Republic v. Halm (supra) that, from the wording of section 125 of Act 29, to succeed in proving a stealing charge the prosecution did not have to establish the ownership in the stolen property, and that failure to establish that fact was not necessarily fatal, in stating that fact the court was not enunciating any new principle. It was only stating the obvious. That principle has been stated in other cases, see, for instance, Armah v. The State [1961] G.L.R. 136, S.C. In spite of this, however, as I have illustrated above, in my view, there are cases in which failure to prove ownership would be fatal.

The question whether the money that was alleged to have been stolen belonged to the accused person in this case did not arise. The accused person never laid any claim to it. He said it belonged to the Yabonwura. What the trial court was called upon to decide therefore was whether or not there was a dishonest appropriation. In performing that function the

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trial magistrate would seem to have followed a red herring. He would seem to have beclouded his view with the question as to whether in a stealing charge ownership in the stolen article had to be established by the prosecution. He dismissed the claim made by the prosecution that the Gonja Traditional Council was the owner of the property, accepted the defence case that it belonged to the Yabonwura, and yet held that “the circumstances showed dishonest appropriation.”

That conclusion is definitely wrong in law because if the Yabonwura, as the owner of the property, handed it over to the accused of his own free will, then there could have been no dishonest appropriation. Again the prosecution did not establish any fraudulent intention on the part of the accused person at the time he received the money from the Yabonwura. Even though the accused was not the owner of the property, as I have said above, the two other ingredients of the charge, namely, that there was an appropriation and that the appropriation was dishonest were not satisfied. In my view, in deciding these matters it is how the stolen article got into the hands of the accused that matters.

The situation in this case is analogous to the circumstances in the case of Amoako v. Commissioner of Police [1961] G.L.R. 134, S.C. There, during the course of his investigating a case, a cheque book belonging to an insurance company got into the hands of the investigating policeman. He subsequently issued out a cheque from the book to satisfy the importunate demands of a creditor and took steps immediately to stop the creditor from presenting the cheque as he had no account at the bank on which the cheque was drawn. The policeman was eventually charged, among other things, for having stolen the leaf from the cheque book. He was tried and convicted by the magistrate. The decision was confirmed by the High Court. But the Court of Appeal held in allowing the appeal at p. 136 that:

“We are satisfied that there was never any intent to defraud and the circumstances of the case clearly show that the appellant had no intent of dishonest appropriation when he used someone else’s cheque leaf.

The learned judge of the High Court erred in not considering the main intent of the appellant. If he had done so he would naturally have felt himself constrained also to find in favour of the appellant on the charge of stealing the cheque leaf.”

As the two ingredients of the offence were not satisfied the charge could not be sustained. I would therefore allow the appeal, quash the conviction, sentence and the consequential restitution order. In their place I would order an acquittal and discharge. The fine imposed on the accused if paid is to be refunded to him. Court below to carry out.

DECISION Appeal allowed.

S. O.