Commissioner Of Police V. Fred Batrop Addae (1945)

LawGlobal Hub Judgment Report – West African Court of Appeal

Ten charges of stealing contrary to Section 271 (1) of the Criminal Code—Whether accused properly charged and convicted under the section—Failure of Prosecution to put before Court evidence of revelant evidence and no explanation given for failure—Gratuitous bailee—Charges and convictions (if any) should have been for stealing under Section 270 (1).

The following judgment of the Court was delivered by KINGDON, C.J., NIGERIA :—

The Appellant was charged before the District Magistrate, Koforidua, with ten offences of stealing contrary to section 271 (1) of the Criminhi Code. The particulars given of the first offence were :—

“For that you on or about the 13th day of June, 1944, at Koforidua in the Koforidua Magisterial District and within the jurisdiction of this Court, did steal Permit No. B. 79182 dated at Koforidua on the 12th day of June, 1944, granted to Krontihene Ofei Kwasi Agyemang of Akropong for the purchase cif 4 cases gunpowder 20 lbs. each and 4 tins percussion caps 250 each the property of the said Krontihene Ofei Kwasi Agyemang of Akropong of which you had the custody as a messenger.”

The other 9 charges were all similar, the date in each case being the 13th June, 1944, but the other particulars, i.e. number of permit and person to whom granted, were of course different in each.

He was convicted upon all charges and sentenced to three months’ I.H.L. on each charge, the sentences to run concurrently. He has already served his sentence. In convicting the Appellant all that the District Magistrate said was-

“I consider the charges proved. I do not believe the evidence of the accused and his witnesses. They did not impress me favourably by their demeanour in the box. Their evidence to my mind is a fabrication. Accordingly I find the accused guilty of the charges.”

We think that it is a matter of regret that the District Magistrate did not write a fuller judgment, the case was by no means a simple one and there were ten separate charges to be considered with different considerations applying in different cues.

Upon appeal to the Supreme Court the conviction upon charge 5 was properly quashed for lack of evidence, but the convictions, upon the other charges were upheld. The Appellant has appealed further to this Court.

The facts alleged by the Peosecution are shortly that the Appellant was Principal of Phoenix College, Koforidua, and chairman of the Finance Board of the Akwapim State, of which the District Commissioner, Mr. Moxon, was a member; that he was a frequent visitor upon business at the District Commissioner’s office; that on the 12th June Mr. Moxon signed 24 ammunition permits (each in triplicate) in favour of 24 chiefs of the Akwapim State, who are specified in detail in Exhibits G1 and G2; that on the 13th June the original and duplicate of these 24 permits were handed by the chief clerk in the District Commissioner’s office, named Sagoe, to the Appellant to take to the State Secretary at Akropong, named Martison, for distribution to the proper recipients, that all the permits in respect of which the charges are laid were amongst these 24; that the Appellant there and then stole the ten permits in respect of which he was charged, and, in respect of some at any rate, sold them for cash.

The Appellant’s story is that he received only 12 permits from Segos, and of these he delivered 10 to Martison and the other 2 to the proper recipients.

The first point which arises for consideration is whether or not the Appellant wa.., properly charged and convicted under section 271 (1) of the Criminal Code. That ceads–

“271. Whoever is convicted—

(1) of stealing anything Of which ho had the custody, control, or possession, or to which he had the means of access, by reason of any office, employment, or service; . . . shall be liable to imprisonment for seven years.”

It seems clear to us that to bring an accused person within that sub-section he must be a paid employee ; a mere gratuitous bailee, as the Appellant was, is clearly not covered by the sub-section ; and consequently the charges and convictions (if any) should have been for stealing contrary to section 270 (1). We have power to alter the convictions accordingly, with or without altering the sentences, if we are of opinion that the stealing was proved.

The charges remaining after the quashing of the fifth fall naturally fall into two categories, viz. : (a) Charges Nos. 1, 2, 3, 4, 6 and 7 and (b) Charges Nos. 8, 9 and 10. In the case of all the charges the Prosecution found itself in a difficulty in that the District Commissioner’s chief clerk, Sagoe, had died before the trial. He consequently could not be called as a witness to prove that the permits the subjects of the charges were amongst those handed by him to the Appellant. He had made a written statement giving particulars, but this was quite rightly rejected as having any probative force against the accused and admitted only to substantiate Mr. Moxon’s evidence that a certain quantity of permits were issued by him and handed over to Sagoe.

As to charges 1, 2, 3, 4, 6 and 7, in the absence of the direct evidence which might have been given by Sagoe, the Prosecution relied upon the Court drawing the inference that the permits Exhibits A1-6 were amongst those handed to Appellant from the facts that the six grantees specified in the six charges were amongst those enumerated in Exhibits 01 and 02 and that it was to the State Secretary of the Akwapim State to whom the Appellant was to take the 24 permits entrusted to him. In addition the Prosecution proved that the 6 permits had never reached the proper recipients. This is certainly some evidence in support of the ease; it would for instance be corroborative of other evidence implicating the Appellant in stealing. But there was other evidence which it appears to this Court ought to have been given and was not, nor was any explanation given for not calling the necessary witnesses.

According to the ordinary routine explained by the Prosecution witnesses when the final purchase of gunpowder is complete, the original permit remains in the hands of the purchaser.

According to the evidence of Gyima, the U.A.C. storekeeper at Koforidua, from whom the gunpowder on permits (Exhibits A1-6) was purchased, these permits were presented to him by “three young men dressed as chiefs “. By the routine these three young men must have had the originals in their possession after completion of the transactions. Presumably it was from them that the police obtained these six permits to produce at the trial. Obviously these three young men were the most important witnesses that the Prosecution could call to prove how they came by the permits, in particular that they obtained them from the Appellant if they did so obtain them. If not, that fact might be most important evidence in Appellant’s favour. Whatever the reason may be, the fact is that the Prosecution failed to call these witnesses and offered no explanation of that failure.

Before now this Court has quashed convictions for the reason that the Prosecution has failed in its duty to put all the available evidence before the Court. The case of Rex v. Kuree (7 W.A.C.A.,

175) is a case in point. We propose to take the same course now Copl-

and to quash the convictions upon charges 1, 2, 3, 4, 6 and 7 on miseioner of

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the ground that the Prosecution failed in its duty to put before Polic

the Court evidence of the utmost importance bearing upon the guilt Fred ^v.

or otherwise of the Appellant and offered no explanation of that Batrop

Addeo

failure.

Kingdon,

The questions arising upon charges 8, 9 and 10 are somewhat ej. different. In respect of these the Prosecution did call the man named Ossei Kwabena, to whom it was alleged that the defendant sold the three permits in question, Exhibits C1-3. He gave a circumstantial account of the negotiations for the purchase and of the actual purchase. His wife, Abena Kwabena, gave evidence to the same effect. If their evidence was believed, and it evidently was believed, by the District Magistrate, it is conclusive of the guilt of the Appellant upon those three charges. The only answer which the Appellant has to this is to contend that both these witnesses were accomplices and that there is no corroboration of their evidence. We cannot agree with his counsel as to this. In our view the man and possibly his wife, too, may have been guilty receivers, but the evidence does not bear out the contention that they were accomplices in the stealing. We agree that their evidence should have been accepted only with caution, but this must have been present to the mind of the District Magistrate, because immediately before he gave judgment counsel for the Appellant had submitted that they were accomplices. In any case there was ample corroboration to implicate the accused by evidence in ‘regard to Exhibits C1 and C3 similar to that led by the Prosecution in respect of charges 1, 2, 3, 4, 6 and 7. For these reasons we think that the Appellant can properly be convicted of stealing upon charges 8, 9 and 10.

In the result the findings and sentences upon charges 1, 2, 3, 4, 6 and 7 are reversed and the Appellant is acquitted upon those charges. Upon charges 8, 9 and 10 the findings are altered to findings of “Guilty of stealing contrary to section 270 (1) of the Criminal Code”, and the sentences upon those three charges are maintained to run concurrently.

As previously mentioned, the Appellant has already served his sentence.