Jonathan Ade Olujomoye V. Rex (1936)

LawGlobal Hub Judgment Report – West African Court of Appeal

Conviction under Section 309 of Criminal Code—Meaning of ” any Appeal from instrument or thing “—Constructive possession—Evidence in Conviction111rebuttal when defence raises no new facts.

Held : Meaning of ” thing ” not to be restricted tb a thing ejusdem generis with ” instrument.” Possession of a thing by a person over whom accused has control in relation to such thing is possession by accused of such thing. Evidence in rebuttal admissible by Court if interests of justice require it, even when defence raises no new facts. Appeal dismissed.

The facts are sufficiently set out in the judgment.

K. A. Bossman for Appellant.

T. A. Brown for Crown.

The following joint judgment was delivered :-

PETRIDES, C.J., GOLD COAST, BARTON AND DOORLY, JJ.

Appellant and his wife were charged before a Judge and jury under section 309 of the Criminal Code for that they “^–.without lawful excuse did have in their possession things specially contrived for the purpose of committing a crime relating to coin.’ Appellant was convicted and his wife acquitted of this offence.

The ” things ” referred to in the information were pieces of paper cut to the size of a West African currency note, some of which bore Arabic characters., similar to those to be found on the back of a currency note.

One of the grounds of appeal relied on was that the words ” any instrument or thing ” in section 309 should be construed ejusdem generis, and that if this were done it was dear that the pieces of paper were not ” things ” within the meaning of section 309, and that accordingly no offence had been proved under that section.

Maxwell, on the Interpretation of Statutes, 7th edition, p. 289, says :—

” If it can be seen from a wide inspection of the scope of the legislation that the general words, notwithstanding that they follow particular words, are nevertheless to be construed generally, effect must be given to the intention of the legislature as gathered from the larger survey.

Bearing this principle in mind we are satisfied that the word ” thing ” is not to be restricted to a thing ejusdem generis with ” instrument,” but to be regarded as applying to anything specially

contrived or adapted for purposes of forgery or of committing any crime relating to coin.

Another ground relied on is that these pieces of paper were not found in the possession of the appellant, but in that of his wife. It is clear that actual manual possession of goods by a defendant is not necessary to the completion of the offence of receiving ; it is sufficient if they are in the actual possession of a person over whom the defendant has a control, so that they would be forthcoming if ordered ; R. v. Smith, Dears. 494, and R. v. Gleed, 12 Cr. App. R. 32. In our opinion the same principle applies to ” possession ” under section 809 of the Criminal Code. There was in our opinion ample evidence of possession by the appellant to justify the verdict.

We are not satisfied that there has been misdirection by the learned trial Judge on this or any other point.

The only remaining ground of appeal of substance relied upon by the appellant was that the trial Judge wrongly allowed evidence to be adduced by the prosecution after the case for the defence had been closed for the purpose of rebutting the evidence for the defence that certain policemen had visited accused at his house the night before he was arrested and that one of them, S.O.P. Amable, said he wanted to buy a metal press.

Section 271 of the Criminal Procedure Code empowers a Court in its discretion on the application of the advocate for the prosecution to grant him leave to call evidence to disprove any new facts set up by the defence. It was contended on behalf of the appellant that the evidence for the defence did not disclose any new facts—that their case on this point had been disclosed in their cross-examination of Constable Bernard, Corporal Darkwa and Superintendent Amable, who all denied that they had visited accused, and in the cross-examination of Nunoo who supported the version of the defence as to the visit.

Phipson on Evidence at p. 40 of the seventh edition, omitting authorities quoted, says : ” Whenever the accused, in defence, gives evidence of fresh matter which the prosecution could not foresee, whether it be an alibi, lawful excuse, good character, insanity, or merely some collateral fact impeaching an opposing witness, the prosecution is entitled to contradict it, provided such evidence be not merely confirmatory of the original case, for then it should have been tendered first.” In a subsequent passage on the same page he says : ” As in civil cases, however, the Judge may, when the interests of justice require it, admit evidence in rebuttal although it was available in chief ” (R. v. Crippen (1911), 1 K.B. 149 ; R. v. Smith, 11 Cr. App. R. 230).

In our opinion the suggestion that the police visited the accused the night previous to his arrest was disclosed in the cross-examination of the witnesses for the prosecution and did not therefore constitute new facts within the meaning of those words in section 271 of the Criminal Procedure Code.

The line of cross-examination adopted entitled the prosecution to ask for leave to call additional evidence, before it closed its case, to rebut the suggestion made, and it cannot be doubted that in the circumstances such an application would have been granted.

This being so, and as, having regard to the evidence as a whole, we are satisfied that no miscarriage of justice has occurred by reason of Mary Kobla, Superintendent Amaview and Sergeant Ansah being allowed to give evidence in rebuttal after the case for the prosecution was closed, the appeal is dismissed.