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REX
V.
KWAW AYANFUL AND OTHERS
THE WEST AFRICAN COURT OF APPEAL
5TH DAY OF FEBRUARY, 1945
2PLR/1945/16 (WACA)
OTHER CITATION(S)
2PLR/1945/16 (WACA)
(1945) XI WACA PP. 20 – 23
LEX (1945) – XI WACA PP. 20 – 23
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BEFORE THEIR LORDSHIPS:
HARRAGIN C.J., GOLD COAST
DOORLY, J.
M’CARTHY, J.
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BETWEEN:
REX – Respondent
AND
1. KWAW AYANFUL,
2. VINCENT KOFI NINSON,
3. KOFI TEKYI,
4. ABUSUAPANYIN KWAME BADU,
5. KOFI AMANI,
6. EBENEZER ARTHUR FERGUSON – Appellants
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ORIGINATING COURT(S)
APPEAL FROM SUPREME COURT, GOLD COAST.
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REPRESENTATION
E. C. Quist with E. A. N. Ffoulkes Crabbe — for 1st Appellant
A. G. Heward-Mills — for 2nd, 3rd, 4th and 5th Appellants
A. Sawyerr — for 6th Appellant
N. A. Ollennu — for Crown
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Conspiracy to use forged document contrary to Sections 49(1) and 306 of the Criminal Code — Using forged document contrary to Section 306 of the Criminal Code — Case unsatisfactorily prepared and unsatisfactorily presented to the Court — A witness whose name did not appear on the back of the Information and who did not make a deposition at the Preliminary Inquiry called by the Crown at the Trial although his evidence was in possession of the Police before any of the Appellants had been arrested — Where case not provided with that degree of certainty required by Criminal Law and therefore dangerous in all the circumstances of the case to uphold convictions — How treated
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeals):–
1. That this case was unsatisfactorily prepared and unsatisfactorily presented to the Court.
2. And so in view of the general unsatisfactoriness of the investigation and presentation of the case, and of certain unsatisfactory features at the trial to which allusion has been made, that the case against the accused was not proved with that degree of certainty which is required by the criminal law and that it would be dangerous in all the circumstances of the case to uphold their convictions.
Appeals allowed, convictions quashed and a judgment and verdict of acquittal entered in respect of each Appellant.
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MAIN JUDGMENT
The following judgment of the Court was delivered by DOORLY J.:-
This Appeal arises out of the convictions of the six Appellants by the Judge of the Divisional Court at Cape Coast sitting without a jury on both counts of an information charging them (1) with conspiracy to use a forged document punishable under sections 49(1) and 306 of the Criminal Code and (2) with using the said forged document punishable under section 306 of the Code and of the sentences of Appellants Nos. 1, 2, 4 and 6 to 5 years’ imprisonment with hard labour and of Appellants 3 and 5 to 3 years’ imprisonment with hard labour on each of the two counts, the sentences to run concurrently.
At the outset we have to state with regret that this case was unsatisfactorily prepared and unsatisfactorily presented to the Court.
The Crown came to the trial with a certain case the case made at the Preliminary Investigation which all the accused were entitled to expect was what they had to answer. On the third day of the trial, however, the Crown called a witness Micah whose name did not appear on the back of the information and who did not make a deposition at the Preliminary Inquiry. He testified that on the 2nd August, 1944, the 2nd Appellant had admitted to him that the document in issue (Exhibit F) was forged and had been made since the death of its alleged maker, Kwame Yeboah. This admission purported to have been made in order to requisition the services of Micah with the Police to get them to drop the prosecution and to allow him (2nd Appellant) to reimburse the complainant, Aduamuah, 2nd witness for the prosecution. Micah’s evidence was further to the effect that he saw the Assistant Superintendent of Police Winneba who told him to call the 2nd Appellant. An interview took place in the Police Station at which the 2nd Appellant repeated his admission.
This evidence was in the possession of the Police from the 2nd August, before any of the Appellants .had been arrested on these charges, yet they (the Police) elected to withhold the evidence of Micah until a late stage of the prosecution evidence at the trial.
Micah’s evidence, if true, was only evidence against the 2nd Appellant.
As soon as Micah had concluded his evidence, Aduamuah, 2nd witness for the prosecution, was recalled. On his recall he testified that the 6th Appellant had made an admission similar to that of the 2nd Appellant in the presence of Police Officers. None of this new evidence appeared in Aduamuah’s deposition or in his original evidence at the trial; and, if true, it was only evidence against the 6th Appellant.
From this it is clear that from a date early in August the Police had this material at their disposal, yet they withheld it until a late stage of the trial, thereby producing an entirely new case which the Appellants were suddenly called upon to face, the new case being admissible in evidence only against the 2nd and 6th Appellants. No Police Officer gave evidence at the trial in respect of the alleged confessions.
The learned trial Judge cautioned himself that Micah’s evidence was evidence only against 2nd Appellant, but he failed to caution himself that Aduamuah’s evidence as to Appellant 6 was evidence only against that Appellant.
In spite of any caution which the most fair-minded and scrupulous Judge might administer to himself, we find it almost impossible that any man, having to decide the issue in regard to four of the Appellants whether a document was forged or not, should be able entirely to ignore the fact, proved to his satisfaction, that two other Appellants had admitted the forgery. From a perusal of the Judge’s judgment it does not appear to us that he was able so to separate out the cases against each Appellant individually.
Apart from the evidence of the confessions of Appellants 2 and 6, the evidence against the Appellants was that of Assistant Superintendent Strike, a witness expert in handwriting, who had never seen the signature of Kwame Yeboah. This evidence was to the effect that the signature on Exhibit F “Kwame Yeboah” was not written by the person whose signature appeared on various other documents, admitted to have been signed by Kwame Yeboah. Assistant Superintendent Strike was not invited to assist the Court by explaining his reasons for coming to this conclusion, and it must here be observed that it is the jury in a Jury case or the Judge when sitting alone who is the final judge of the issue.
This Court has previously accepted Assistant Superintendent Strike as an expert witness on handwriting and we do so in this case also. It should however be pointed out that Kwame Yeboah was really an illiterate person who could only sign his name and there was clear evidence that his signature varied from time to time. Apart from Mr. Strike, three prosecution witnesses who knew Kwame Yeboah’s signature stated in cross-examination that the signature to Exhibit F was that of Kwame Yeboah. The learned trial Judge discussed this conflict in his judgment. He pointed out that these witnesses were not handwriting experts and that from their demeanour he did not regard their evidence as credible. The Judge however added that the only purpose for which these witnesses were called was for the production of documents. This is true of Barning, the Tribunal Registrar, but not of Annan, for Annan was called by the prosecution to identify the signatures of Kwame Yeboah to two receipts (Exhibits G1 and G2) as a person who knew Kwame Yeboah’s signature well. If Counsel for the Crown calls a witness for this purpose, it does not lie in his mouth to criticise the same witness when he identifies the signature of the same person on another document. In this the learned Judge seems to have misdirected himself. Another witness Edwin said he was unable to say whether the signature on Exhibit F was genuine or not, but he thought it might be and would have accepted it in the course of his business.
Apart from this evidence of handwriting the only evidence for the prosecution was the fact that Kwame Yeboah had owed money on a Tribunal Judgment to Aduamuah, 2nd witness for the Crown, that Aduamuah had gone to execution against Kwame Yeboah’s land, that 1st Appellant had successfully interpleaded making use of Exhibit F, which contains a pledge of those lands by Kwame Yeboah to 1st Appellant, had given evidence in support of the authenticity of Exhibit F and in that evidence had stated that one Adama (alias Ferguson) approached him to lend money to Kwame Yeboah and mentioned that the document at the time of its execution was read over by V. K. Ninson, Yeboah’s younger brother. Ebenezer Arthur Ferguson, who gave evidence, stated that he approached 1st Appellant about the loan, that the document (Exhibit F) was read over and explained by Ninson and marked by ”Badu, Amani and Tekyi”. One Kwame Badu also gave evidence admitting that he understood the contents and made his mark. There is enough evidence to connect V. K. Ninson with 2nd Appellant and Ebenezer Arthur Ferguson with 6th Appellant. There is however no proof that the Kwame Badu who gave evidence was the 4th Appellant or that the illiterate marksmen to Exhibit F were the 3rd, 4th and 5th Appellants.
The evidence of 1st and 6th Appellants and of Kwame Badu was admitted in evidence by the trial Judge as against all the Appellants as an act done in furtherance of a conspiracy. That, however, is only proper when a conspiracy has been proved, and in this case we see no evidence to justify the conclusion that a conspiracy had been proved.
In regard to Appellants 1, 3, 4 and 5, against whom the alleged confessions are not evidence, we find that there was no evidence on the record to justify their convictions on either of the counts of the information.
With regard to Appellants 2 and 6 the evidence is stronger, but in view of the general unsatisfactoriness of the investigation and presentation of the case, and of certain unsatisfactory features at the trial to which allusion has been made we consider that the case against them was not proved with that degree of certainty which is required by the criminal law and that it would be dangerous in all the circumstances of the case to uphold their convictions.
This decision is not and should not be taken to be a declaration by this Court that Exhibit F is not a forged document.
For the reasons given we quash the convictions of all the Appellants on both counts and direct that a judgment and verdict of acquittal be entered in respect of each of them.
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