Commissioner of Police V. Clement Cobla Dogbe (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Convictions for stealing, contra. sec. 276 (1) of Cap. 29.

Held : Evidence unsatisfactory and appeal allowed. There is no need to set out the facts.

C. S. Acolatse for Appellant.

S. E. Ellis for Respondent.

The following joint judgment was delivered :—

The appellant appeals against his conviction upon two charges of larceny contrary to section 276 (1) of Cap. 29, one charge being in respect of three Goodyear and four Dunlop motor tyres alleged to have been stolen in August, 1937, and the other in respect of three Goodyear motor tyres alleged to have been stolen in September, 1937. Upon another charge regarding other motor tyres alleged to have been stolen in October, 1937, the appellant was acquitted. Three other persons were tried with the appellant on charges of receiving motor tyres in October, knowing the same to have been stolen, and two of them were convicted. On appeal to the Divisional Court the conviction of the appellant was affirmed but the two persons who had been convicted of receiving were acquitted.

The appellant was employed by the United Africa Company as storekeeper at their branch at Kumasi, and it appears that at the monthly stock-takings for August, September and October, there were found to be deficiencies including the items in respect of which he was charged. The appellant was unable to account for the disappearance of these items otherwise than by saying that it might be due to ” wrong issues,” or to sales on credit (which he was not authorised to make), but admittedly there was so attempt at concealment by him, and it would seem that the reason why criminal proceedings were taken was that the company’s representative believed that it would be possible to establish that the appellant had fraudulently disposed of some of the tyres to the three other persons who were charged with zaceiving.

But, as has been seen, these charges broke down and the

sioner of appellant himself was acquitted in respect of the shortage found
Policeon the stock-taking for October. All that was left, therefore, to

P’

support the two remaining charges against the appellant was the

Clement

fact that these tyres were missing from his stock, and unaccounted

Cobla

Dogbe.for, at the end of August and September. And it is very plain

that, in the circumstances in which the company’s business is

Kingdon,carried on, a mere deficiency in stock is not regarded very

C.J.,seriously, much less taken as prima facie evidence of dishonesty;

Petrides,the Manager said in his evidence ” The deficits are never taken

C.J.,” as money stolen unless we have some definite proof,” and the

andextracts from the ledger showed that month after month there

Webb, C.J. were shortages of stock, sometimes of a considerable amount, of
which no particular notice appears to have been taken.

At the trial there was put in evidence a statement (Exhibit ” S “) made by one of the persons charged with receiving, Ayequaye, the sense of which was extremely damaging to the appellant while exculpatory of Ayequaye himself. In his sworn evidence at the trial Ayequaye denied that he had ever made this statement, which he said he had been compelled to sign by the Police Inspector. While all these matters were proper to be considered so far as regarded the trial of Ayequaye it was necessary for the Magistrate to warn himself that the statement (Exhibit ” S “) was not evidence against the appellant. From his judgment it does not appear whether or not he did so, and it may be that it did affect his mind.

In all the circumstances we are of opinion that the evidence does not support the conviction; the appeal is accordingly allowed, the conviction and sentence quashed, and it is ordered that a judgment and verdict of acquittal be entered.