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COMMISSIONER OF POLICE
V.
BENJAMIN FRANK ASAMOAH
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST (GHANA)
17TH DAY OF DECEMBER, 1938
2PLR/1939/26 (WACA)
OTHER CITATION(S)
2PLR/1939/26 (WACA)
(1938) IV WACA 242 – 245
LEX (1938) – IV WACA PP. 242 – 245
BEFORE THEIR LORDSHIPS:-
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
WEBB, C.J., SIERRA LEONE
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BETWEEN:
COMMISSIONER OF POLICE — Respondent
AND
BENJAMIN FRANK ASAMOAH — Appellant
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ORIGINATING COURT(S)
APPEAL FROM SUPREME COURT EXERCISING APPELLATE JURISDICTION
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REPRESENTATION
A. SAWYERR — for Appellant
The Solicitor-General — for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE – PROOF OF CRIME:- Convictions for stealing, contrary to sec. 270(1) of Cap. 9 — Secs. 27 and 32(2) of Cap. 9 considered – Possession without proof of conversion – Legal effect
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CASE SUMMARY
The appellant was chairman and representative of a trading corporation which had an agreement with a farming union whereby the former was to market the cocoa of the latter. The union consigned cocoa to another corporation but before delivery to it the appellant obtained possession of the cocoa, signing the consignment note and receipts. He then openly caused the cocoa to be taken to a store he had hired. He was convicted on two counts of stealing.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
There being no evidence that the appellant converted the cocoa to his own use, appeals allowed.
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MAIN JUDGMENT
The following judgment was delivered:
KINGDON, C.J., NIGERIA.
In this case the appellant was brought before the District Magistrate, Accra, on the following two charges:-
“1. Benjamin Frank Asamoah on or about the 11th day of June, 1938, at Accra in the Accra Magisterial District and within the jurisdiction of this Court, did steal seventy bags of cocoa value £49 the property of the Manager of the Trading Association of Gold Coast, contrary to section 270 8.8. (1) of Cap. 9.
2. Benjamin Frank Asamoah on or about the 13th day of June, 1938, at Accra in the Accra Magisterial District and within the jurisdiction of this Court did steal sixty bags cocoa value £32, the property of the Manager of the Trading Association of Gold Coast, contrary to section 270 8.8. (1) of Cap. 9.”
The Magistrate found the appellant guilty on both charges and sentenced him to eighteen months imprisonment with hard labour on each charge, the sentences to run concurrently. He gave no reasons for the finding.
The facts are shortly that the appellant was chairman and representative of the African American Trade Corporation which had an agreement with the Abamansu Farmers Union whereby the corporation was to market the cocoa of the Union. The Union’s representative at Kadzebi sent two consignments of cocoa, one of seventy bags and one of sixty bags, to Accra consigned, not to the appellant or his company, but to the Trading Association of the Gold Coast, but before they could be delivered the appellant took charge of them, being able so to do, so it is alleged by the prosecution, by falsely pretending that he was the representative of the consignee. He signed the consignment notes acknowledging the receipt of the cocoa and caused the cocoa to be taken to the store of one Baksmaty which he had hired. He made no secret of this and at once showed where the cocoa was when enquiries were started.
The appellant appealed to the Divisional Court in which Bruce, J. summarily dismissed the appeal giving the following ruling:
“In this case the grounds of appeal were as follows:
1. That the judgment was against the weight of evidence.
2. That the appellant was not guilty of stealing, and
3. That there was no case, made out against the accused.
The main point made by appellant’s counsel was that there was no evidence of “mens rea” and that therefore the accused could not be convicted of dishonestly appropriating the goods of the Manager of the Trading Association of the Gold Coast. To my mind, there was evidence from which the Magistrate could infer that the appellant had a dishonest intention when he appropriated these bags of cocoa to his own use. Although the appellant could easily have got in touch with the Manager of the Trading Association of the Gold Coast and found out how the matter stood he made no attempt to do so, but coolly appropriated the cocoa to his own use although it is admitted that he knew perfectly well that the cocoa was consigned to someone else.
Appellant’s counsel argued that the letter from the appellant to Owusu dated the 12th of June, 1938, and marked “I” shows that he had no dishonest intention in appropriating the cocoa, but this letter was put in by the defence not by the prosecution, and it is evident that the Magistrate did not believe that the statements in the letter were true. It has been laid down on many occasions by the Court of Criminal Appeal in England that where there is evidence on the record to support the conviction, the conviction will not be interfered with. I consider that there is evidence on the record in this case to support the conviction, and I am not prepared to interfere with the conviction.
I therefore dismiss this appeal summarily.”
From this dismissal the appellant now appeals to this Court on the following grounds:
“(a) The evidence adduced against the accused was not sufficient in law to support his conviction and there was no case made out against the accused either of stealing or of any other offence.
(b) The conviction of the accused was against the weight of evidence.”
It will be seen from the ruling in the Divisional Court that the judge took it for granted that it was proved that the appellant appropriated the bags of cocoa to his own use, and then examined the question of whether dishonest intention in so appropriating could properly be inferred. Apart from the question of dishonesty, this Court is of opinion that the assumption that the appellant appropriated the cocoa to his own use was an erroneous one and a finding to that effect could not be supported by the evidence. There is nothing in the whole case to suggest that the appellant did anything more than take charge of the cocoa in order that his corporation might market it for the Union. The evidence is, in the opinion of this Court, altogether insufficient to establish the charge that the appellant stole the cocoa in the ordinary sense of the word “stole,” that is to say that he intended to sell it and put the proceeds into his own pocket. A man who steals a purse doesn’t give his victim a signed receipt.
But owing to definitions in the Criminal Code the scope of the offence of stealing extends beyond the ordinary meaning of the word. Section 27 reads:
“A person is guilty of stealing if he dishonestly appropriates a thing of which he is not the owner “.
and the relevant part of section 32 (2) reads:
“An appropriation of a thing … means any moving, taking, obtaining, carrying away, or dealing with a thing, with a purpose that some person may be deprived of the benefit of his ownership, or of the benefit of his right or interest in the thing, or in its value or proceeds, or any part thereof.”
It is possible that by calling in the aid of these provisions the act of the appellant in taking the cocoa might be shown to amount to stealing if it could be shown that he took the cocoa with the purpose either that the Ahamansu Farmers Union should be deprived of the benefit of part of its right in the cocoa, e.g. the right to decide who should market it, or that the Trading Association of the Gold Coast should be deprived of the benefit of its right or interest in the cocoa, e.g. a right to take possession of it for the purpose of marketing, a right which may have accrued immediately upon consignment. Such questions raise nice points of law which it would only be possible to decide upon definite findings of fact.
There are no findings of fact in this case to act as a foundation for considering the question of law involved, nor does it appear that it was ever part of the prosecution case either in the Magistrate’s Court or in the Divisional Court that the crime of stealing could be established by invoking the aid of the definitions quoted; except, of course, so far as it is necessary to do so in order to establish an ordinary case of stealing.
On the contrary from the ruling of the Judge in the Divisional Court it appears unlikely that these questions were even considered, and when the learned Solicitor-General, who must be presumed to know what the prosecution case was, made his submissions to this Court, he did not touch upon these points till the Court raised them itself. The Court therefore is not prepared to hold that on the case as presented to the Magistrate there was an appropriation within the meaning of section 32(2) of the Criminal Code.
For these reasons the appeal is allowed, the findings and sentences are reversed and the appellant is acquitted and discharged.
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