REX
V.
EBENEZER TAWIAH AND OTHERS
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
23RD DAY OF NOVEMBER, 1939
2PLR/1939/27 (WACA)
OTHER CITATION(S)
2PLR/1939/27 (WACA)
(1939) V WACA PP. 161 – 165
LEX (19390 – V WACA PP. 161 – 165
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BEFORE THEIR LORDSHIPS:
STROTHER-STEWART, AG. C.J., GOLD COAST
DOORLY, J.
MCARTHY, J.
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BETWEEN:
REX – Respondent
AND
EBENEZER TAWIAH, ENOCH ALLOTEY QUARTEY, DANIEL ROBERT AKRONG AND TWENTY-EIGHT OTHERS – Appellants
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ORIGINATING COURT(S)
APPEALS FROM CONVICTIONS IN SUPREME COURT
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REPRESENTATION
Arthur Ridehalgh — for Crown
A.G. Heward-Mills with A. B. Amissah — for all appellants save the twenty-ninth appellant
Frans Dove — for the twenty-ninth appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Stealing contra section 271(2) of Criminal Code connected with looting of village by multiple persons — Proof of — Inadvertent omission to mention all the accused by name in respect of a court — No individual identification of the accused but circumstantial evidence of identification was led — All but two of the accused represented by counsel who did not call evidence at the trial — Two accused who were unrepresented giving evidence on their own behalf and calling two of the co-accused in their defence with the said witnesses denying the charges in the course of their evidence — Trial judge, in his summing up, mistakenly informing the Jury that none of the accused who were represented by counsel had given evidence — Conviction arising therefrom — How treated on appeal
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CASE SUMMARY
Twenty-nine accused were uniformed members of the band of the Territorial Forces and were travelling on two lorries (the drivers of which were the other two accused) from Cape Coast to Accra. In the course of the journey looting occurred at two villages and arising from it all accused were charged on three counts with stealing contra section 271(2) of the Criminal Code. By inadvertence sixteen only of the accused were mentioned by name in the information in respect of count 2. There was no individual identification of the accused but circumstantial evidence of identification was led. At the trial all but two of the accused were represented by counsel who did not call evidence. The two accused who were unrepresented gave evidence on their own behalf and called two of the co-accused in their defence, and the latter in the course of their evidence denied the charges in toto. In his summing up the learned trial Judge mistakenly informed the Jury that none of the accused who were represented by counsel had given evidence. The thirty one accused were convicted on all three counts and appealed against their convictions and sentences.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that;
1. With regard to the two appellants who were witnesses for two of the other appellants there was misdirection of the Jury and their appeals allowed;
2. With regard to the fifteen appellants whose names did not appear on the information in respect of count 2 their convictions on that count were quashed; all other appeals dismissed there being ample evidence upon which to convict but all sentences reduced from imprisonment to fines.
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MAIN JUDGMENT
The following joint judgment was delivered:-
STROTHER-STEWART, AG. C.J., GOLD COAST, DOORLY AND MCARTHY, JJ.
This is an appeal against the conviction of 31 persons on charges of stealing under section 271(2) of the Criminal Code at the Assizes held at Winneba on the 30th day of August, 1939. They were charged under three counts, and the charges all arose out of incidents which occurred on the 9th day of June, 1939, when the appellants were returning from Cape Coast to Accra after taking part in the King’s Birthday celebrations. They were members of the band of the Territorial Force, and were travelling in two lorries. The drivers of the two lorries were included in the number of persons convicted. The charges took their basis out of looting which had taken place at two villages through which they had passed.
The names of all 31 persons appeared in the information in respect of counts 1 and 3, but through an inadvertence in copying out the information, only 16 of the names of the 31 persons appeared in count 2. This was not noticed at the time the appellants were arraigned, and all appellants were called upon to plead in respect of all three counts, and did so, and all were convicted. The conviction of the 15 appellants whose names were not mentioned in count 2 must accordingly be quashed, as far as their conviction in respect of that count is concerned.
The 31 persons were not identified individually by the storekeepers, and villagers, of the places in which the looting took place though all the witnesses for the Crown described them as volunteers. It was impossible for them actually to identify the persons they described as volunteers, as there were so many of them, and they were strangers, but the occupants of the two lorries, whose numbers were taken by one of the witnesses for the prosecution, were known to have travelled in the two lorries from Accra, as was adduced in evidence for the prosecution, and the same persons were found in the lorries, when they were apprehended in the lorries by the police at the Police Depot before entering Accra, and after the looting had taken place. The evidence for the prosecution was that all had taken an active part in the looting. In addition to this, goods which were alleged to have been taken were found in the possession of a number of the travellers on the lorries, which were identified by the storekeepers, who had been the victims of the looting, as their property. Some of such goods, such as tins of corned beef, might have been obtained from other stores, or even issued as rations, but others of the goods were of quite a different category and capable of identification. It cannot, therefore, be said that there was no evidence upon which the jury could convict, either in respect of the individuals who were charged with stealing, or in respect of the goods which were found in their possession.
We are satisfied that all the appellants were acting as one, and that the possession of any one of them was the possession of all.
The defence alleged that there was misjoinder of charges, and misjoinder of accused. The matter is governed by our own local Ordinance, namely, the Criminal Procedure Code (Cap. 10). We set out the subsections of the two sections which appear to the Court to apply to the cases we are considering. They are as follows:
“Section 103 (a): Where a person is accused of more than one offence of the same kind committed within one year of each other, he may be charged and tried at the same time for any number of them not exceeding three;”
“Section 104 (d): Persons accused of different offences committed in the course of the same transaction.”
As already indicated, the appellants on the day in question were a party of men who were travelling together. The offences in respect of which they were charged were all committed on the same day, and in the course of the same journey. The circumstances were similar in each case, and justified the inference that Stewart, they were the result of a pre-concerted arrangement.
We are of opinion that these offences formed part of the same transaction within the meaning of sections 103 and 104 of the Criminal Procedure Code. We therefore hold that there was no misjoinder either as to charges or as to persons.
It was further pointed out on behalf of the appellants with regard to charges 2 and 3 that the evidence for the prosecution was to the effect that some of the appellants raided one store while the others raided an adjoining store simultaneously. The persons charged were however net individually identified. In view of this, it was asked, on what ground were the 16 persons included in count 2 selected for prosecution for stealing from one particular store, and why were the 31 accused all charged with stealing from the other store?’
Under section 46 of the Criminal Code, where a crime is actually committed, an abettor of such crime is deemed to be guilty of the crime. Thus in this case if both stores mentioned in counts 2 and 3 were looted in pursuance of an agreement between the 31 accused, all could be convicted as principals, if they were so charged. The evidence in support of count 2 was that all the occupants of the two lorries took part in the looting of both stores.
There was ample evidence upon which the jury could come to the conclusion that though each store was looted by only some of the appellants, yet those who did not steal with their own hands from one store or the other, or even enter that store, nevertheless abetted the crime. This ground of appeal must therefore also fail.
A difficulty has arisen in respect of two of the appellants, namely, Joseph Lamptey and Nathaniel Lartey Mingle. Mr. Heward-Mills who at the trial represented all the appellants except Sam Bannerman and George Tetteh Laryea, who were the drivers of the two lorries, intimated at the close of the case for the prosecution, that he would not call any of his clients to give evidence. The other two appellants clected to give evidence on their own behalf, and called Joseph Lamptey and Nathaniel Lartey Mingle two of their co-accused as witnesses. The latter said that they, as well as the two drivers for whom they were giving evidence, never left the lorries, and that they saw no looting take place. They declared their innocence of the charges brought against them. The jury disbelieved this evidence, and the two drivers were convicted, and it is difficult to see how Joseph Lamptey, and Nathaniel Lartey Mingle, who, whilst giving evidence for them, set up the same defence for themselves could have escaped the same fate. Nevertheless the learned trial judge in his note of his summing up to the jury, said, when dealing with the evidence of the two drivers, that the other 29 accused did not give evidence. This was not strictly correct and may have given the jury the impression that there was some distinction between the weight to be placed on evidence given by an accused person on his own behalf and that to be given to his evidence when called by one of his fellow accused. This is not so. It is possible that had the jury had their attention drawn to the fact that Joseph Lamptey and Nathaniel Lartey Mingle, had, whilst giving evidence for the two drivers, also given evidence for themselves, it might have had some influence with the jury in their favour. We think this amounts to a misdirection in law as far as they were concerned, and although the result is anomalous, we feel we have no option but to allow their appeal, and quash their conviction on all counts, which we do.
The names of those whose convictions are quashed in respect of count 2, through their being improperly arraigned, except Nathaniel Lartey Mingle, whose conviction on all three counts has just been quashed, are -Robert Agiri Ashley, Emmanuel Lamptey, D.T.O. Ahineakwa, Kobina Attah Amoah, Jacob A. Addo, Emmanuel Abiodu Palomeras, Daniel O. Annah, Samuel Tettey Tetteh, Frederick A. Lamptey, Felix Hammond, Ebenezer L. France, James A. Kotey, Joseph Akai Nettey, and Brandford Boye Hammond.
Except as aforesaid the appeal in respect of the convictions of all the appellants in respect of all the counts will be dismissed.
There is an appeal against sentence in respect of all the appellants. They are young men. They were members of the Territorial Force. They were returning home after a celebration of the King’s Birthday in which they had taken part. They probably had old customs in their mind. What they did was wrong, and they must have known that what they did was wrong, and they disgraced the uniform they were wearing. We feel, however, that in view of all the circumstances, the sentence of the trial Judge of imprisonment should be altered to a fine.
In fixing the fine we are going to be governed by the ages of appellants. The following who are 20 years of age, or under, will be fined £2 10s. on each count. on which their convictions are upheld, non-cumulative, or in default 1 month’s imprisonment with hard labour:- Ebenezer Tawiah, Enoch Allotey Quartey, Daniel Robert Akrong, Robert Agiri Ashley, Emmanuel Lamptey, D.T.O. Ahineakwa, Jacob A. Addo, Emmanuel Abiodu Palomeras, Daniel O. Armah, Frederick A. Lamptey, Felix Hammond, Ebenezer L. France, James A. Kotey, Joseph Akai Nettey, Brandford Boye Hammond, George Allotesy. Joseph M. Komla, James Kwamina Quaye, Stephen Ahile Quao Emmanuel Okoe Abbey, Emmanuel K. Quartey, Enoch Saka Quarshie, Emmanuel O. Martins, and Jacob Kwaku A. Laryea.
The following, who are over 20 years of age, will be fined £5 for each count, on which their convictions are upheld, non-cumulative or in default 2 months’ imprisonment with hard labour:- Kobina Attah Amoah, Samuel Tettey Tetteh, Emmanuel Kwaku Akwetteh, Sam Bannerman, and George Tetteh Laryea.
All whose convictions have been upheld will be bound over to be of good behaviour for 6 months in the sum of £25, with two sureties each in the sum of £25, such sureties to be justified by the Chief Registrar of this Court.
The appellants will be given until 12 noon on Monday, the 27th November, 1939, to pay their fines and enter into their recognizances.
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