Rex V. Yaw Preprah & Ors (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Charges of Conspiracy to commit forgery, forgery, and utteringconvictionscontra. sections 49, 302 and 310 Criminal Code—Trial byin SupremeJury—Findings of fact will be upset on appeal if unjustifiedCourt.by the evidence.

Held: Appeal allowed, convictions quashed, etc.

There is no need to set out the facts.

T. A. Brown for Respondent.

E. 0. Asafu-Adjaye (with him A. 0. Larbi) for Appellants.

The following joint judgment was delivered :— PETRIDES, C.J., GOLD COAST, YATES AND BARTON, JJ.

At the Assizes in Accra the three appellants were convicted of conspiring to commit forgery of a promissory note for £400 ; the second appellant was also convicted for the ” forgery ” and the third appellant for the ” uttering ” of the said promissory note. The case is one in which this Court has to determine whether it shall exercise the jurisdiction conferred upoh it by section 10 (1) of the West African Court of Appeal Ordinance which provides : —

 ” The Court of Appeal on any such appeal against ” conviction shall allow the appeal if they think that the ” verdict should be set aside on the ground that it is ” unreasonable or cannot be supported having regard to the ” evidence or that the judgment of the Court before whom ” the appellant was convicted should be set aside on the ground ” of a wrong decision of any question of law or that on any ” ground there was a miscarriage of justice, and in any other ” case shall dismiss the appeal.”

The first appellant sued the complainant, Ibadan, and the second appellant, upon the promissory note, the subject matter of the charge in the present case, and obtained judgment againt them jointly and severally for the amount of his claim, the date of the judgment being the 25th February, 1936. From the record of the proceedings which have been put in evidence it appears that at the

start of the civil case, the second appellant, who Was sued as BOX guarantor, admitted liability, and that upon the plaintiff’s caseV.
being closed the complainant’s counsel informed the Court that the ^Yaw

Pregrah

complainant submitted to judgment.& ors.

The present case rests entirely on an alleged meeting in the Petaides house of one Okyere Darko in Koforidua where the prosecution 0. J. Yates alleges that the three appellants agreed to make the alleged false and Barton, promissory note in such a way that the complainant would be the jj.

debtor, the second appellant the guarantor, and the first appellant the creditor. The case for the defence is that there was no such meeting, and that the complainant and second appellant came to the first appellant and asked him for a loan of money to buy a motor lorry, and that the first appellant lent the complainant the money for this purpose, and was then given the promissory note, Exhibit C, this being the promissory note upon which he subsequently sued and obtained judgment. We have fully considered the whole case; although it is true that this Court must always bear in mind that the jury have seen the witnesses and had the opportunity of forming their own opinion of their credibility, there are certain aspects of the case which in our opinion raise grave doubts as to whether the appellants were justly convicted. For instance, is it likely that when the alleged plot against the complainant was being concocted people who are unacquainted with the parties would have been called in to be present? If the complainant knew that there was no case against him is it likely that he would have consented to judgment? The date of the judgment in the civil case was the 25th February, 1936, yet the complainant_never made his application for review till the 2nd June, 1936. Although the meeting was alleged to have been on the 2nd November, 1934, the witness Sani Lagos did not write to the District Magistrate informing him of the alleged plot till January, 1936. It is not denied that this witness Sani Lagos lives in the house with complainant, yet he never informed the complainant about the alleged plot although he says in his evidence that he was present when it was being made All these and other matters raise grave doubts in our minds as to whether there was not a miscarriage of justice. The learned Crown Counsel in his argument in support of the conviction has stressed the fact that the date on the promissory note appears to have been altered from some month ending with the letter ” y ” to the 2nd November and stated that this no doubt greatly influenced the jury, the object of the alteration being to insert a date which would coincide with the alleged visit of the witness Okyere Darko to Barclays Bank in Kumasi on the 2nd November, 1934; a reference to the information, however, shows that the charge was laid as having taken place in November, 1934; there is therefore no substance in this contention. The summing up of the learned trial Judge is in favour of the appellants and the opinion of the trial Judge is a

factor to be taken into consideration, he also having had the opportunity of forming his opinion on the credibility of the witnesses (R. v. Rice 20 Cr. App. R.p. 21).

There is another matter; it appears from the record that the witness Okyere Darko stated on examination-in-chief that the complainant had been convicted of money-doubling; it does not appear, and we are unable to say, whether this statement was made voluntarily by the witness, or as a result of being asked whether he knew that the complainant was a money doubler; if the former then the counsel for the prosecution should never have subsequently suggested in cross-examination that two of the appellants were ex-convicts.

Further, although it is not a ground of appeal, if the evidence of the three principal witnesses for the prosecution is true they must be regarded as accomplices in which case their evidence requires corroboration, and we cannot find any corroboration such as is required by law.

In considering all the aspects of the case we are of opinion that having regard to the evidence and the facts to which we have alluded there may have been a miscarriage of justice and the verdict cannot be supported. We therefore quash the convictions and direct a judgment and verdict of acquittal to be entered in the case of all three appellants.

Court below to carry out.