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COMMISSIONER OF POLICE
V.
KWAKU KLU AND OTHERS
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST (GHANA)
30TH DAY OF MAY, 1938
2PLR/1938/19 (WACA)
OTHER CITATION(S)
2PLR/1938/19 (WACA)
(1938) IV WACA PP. 87 – 89
LEX (1938) – IV WACA PP. 87 – 88
BEFORE THEIR LORDSHIP(S)
DONALD KINGDON, C.J., (NIGERIA)
PETRIDES, C.J., (GOLD COAST)
YATES, J.
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BETWEEN:
COMMISSIONER OF POLICE — Respondent
AND
KWAKU KLU AND OTHERS — Appellants
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REPRESENTATION:
A. J. AINLEY — for Crown
T. HUTTON-MILLS — for Appellants
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW — OFFENCES:- Charge of unlawful assembly contra. section 346 Cap 29 but conviction of Riot when not so charged — Powers of sections 319 and 325 of cap. 10 invoked by Appeal Court — Legal effect
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ORIGINATING COURT(S)
APPEALS FROM SUPREME COURT EXERCISING APPELLATE JURISDICTION
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DECISION(S) OF WEST AFRICAN COURT OF APPEAL
Held:
Findings altered; sentences maintained.
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MAIN JUDGMENTS
The following joint judgment was delivered:
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND YATES, J.
In this case fifty-eight persons were charged in the Court of the Magistrate held at Krachi “for that they on the 24th day of October, 1937, at Krachikrom … did unlawfully assemble together with a purpose of committing a riot contrary to section 346, Cap. 29”.
The Magistrate on the lat November, 1937, convicted fifty-four out of the fifty-eight and adjourned the case of the other four till next day. The ultimate fate of these four does not appear in the record before us, but are informed by counsel that they were acquitted and discharged. But the whole fifty-eight seem to have appealed against the conviction to the Supreme Court as though they were all convicted. The Supreme Court dismissed all the appeals.
From This decision all the fifty-eight have appealed to this Court. The appeals of the four men, viz., Yaw Okunyi, Yaw Donkor, Kwesi Djatto and Kwadjo Mparah, against whom there is no record of a conviction are struck out. In the case of the other fifty-four men there is no substance whatever in their appeals, but there is an error in the form of the judgment which requires to be corrected. At the opening of his judgment the learned Magistrate says:
“With regard to the fifty-eight accused before the Court, excepting Yaw Okunyi, Yaw Donkor, Kwesi Djatto “and Kwadjo Mprah, I am satisfied that the charge is proved “.
But when it comes to recording an actual finding he says referring to the remaining fifty-four only):
“In doing so, their action constituted an act of riot, in the commission of which I find them all guilty, and order that each shall pay a fine of £5 or three months imprisonment in lieu thereof”.
This on the face of it is a conviction for “riot”, an offence with which the appellants were not charged.
We, therefore, acting under the powers conferred upon us by the combined effect of sections 319 and 325 of the Criminal Procedure Ordinance (Cap. 10), alter the finding to one of “Guilty” of the offence charged in the case of each of the appellants, and, in each case, maintain the sentence.