REGINA vs. ZONYRA & ORS [1959]DLCA5520

Date	1959-01-26
Suit No.
Citation No.	[1959]DLCA5520

VAN LARE AG. C.J.

GRANVILLE SHARP J.A.

ACOLATSE J.

[1959]DLCA5520
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													<main id="main" class="content" style="min-height: 60rem" >REGINA<o:p></o:p>vs.<o:p></o:p>ZONYRA
&amp; ORS<o:p></o:p>[COURT OF APPEAL]<o:p></o:p>[1959] GLR 26&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;Date:
23RD JANUARY, 1959.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

</div>CORAM:<o:p></o:p>VAN LARE
AG. C.J., GRANVILLE SHARP J.A.,
ACOLATSE J.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

</div><o:p>&nbsp;</o:p>JUDGMENT OF VAN LARE AG. C.J.<o:p></o:p>The four
appellants in this matter complained that they had been wrongly convicted
before Scott J of conspiracy to commit arson, and (so far as concerned all the
appellants except the first) of arson contrary to section 271 of the Criminal
Code, in that they intentionally and unlawfully caused the dwelling house of
Gregor Amoaku to be set on fire.<o:p></o:p>At the
outset of the hearing, Mr. Crabbe, Senior Crown Counsel, acknowledged that he
was unable to support the conviction in the case of the first appellant because
of lack of evidence. With this view we entirely agreed, and we accordingly
allowed the appeal of this appellant, quashed the conviction, substituted a
verdict of acquittal and ordered him to be discharged forthwith.<o:p></o:p>The
evidence against the remaining three appellants was that they were seen
together both before and after the burning of the house. At the time the house
took fire the second appellant was seen to light the thatch with a match. The
third appellant was seen using burning thatch for the same purpose. The fourth
appellant was seen standing by; how near, the evidence does not disclose. He
was seen to be doing nothing.<o:p></o:p>The first
ground of appeal argued on behalf of these appellants by Mr. Apaloo was that
“there being no proof that the house alleged to be set on fire was a dwelling
house in law the learned Judge was wrong in not directing the jury to return a
formal verdict of not guilty in respect of Count 2 (i.e. arson). Counsel drew
attention to the fact that Count 2 as originally framed contained words
appropriate to a charge contrary to section 272 of the Criminal Code, which is
intended for an offence of arson in respect of a building other than a dwelling
house. The words in question “with intent to destroy or materially damage” were
expunged from the count at the instance of prosecuting counsel (by amendment on
the order of the Court) before the trial began. Mr. Apaloo therefore contended
that as the charge was exclusively under section 271 of the Criminal Code,
proof that the building in question was a dwelling house within the meaning of
the definition contained in section 286 of the Code was essential to establish
guilt on such a charge.<o:p></o:p>(His
lordship read the definition of “dwelling house,” and proceeded):<o:p></o:p>It must
be said that there was no direct evidence that the building in question was
ordinarily used as a sleeping place, although the evidence was clear that it
was a building containing all the possessions of the owner, which were
destroyed in the fire. A building, in the sense in which that word is used in
section 272 of the Code, means, according to the definition in section 286,
“any structure .... or other covered place used .... for the habitation or
meeting or shelter of human beings, or for the keeping or shelter of any cattle
or goods.” The building in question, according to the evidence, was undoubtedly
used for the storage of the owner’s goods, and was therefore a “building”
within the meaning of section 272.<o:p></o:p>In these
circumstances it is important to bear in mind the provisions of section 151 of
the Criminal Procedure Code. (His lordship read the section, and proceeded):-<o:p></o:p>It
follows, as a result of those provisions, that although the evidence may have
fallen short of establishing the guilt of the appellants on a count framed
under section 271, it was ample and sufficient to prove their guilt of the
minor offence against 272.<o:p></o:p>The only
way in which the evidence fell short of establishing that a crime under section
271 had been committed was lack of evidence that the building was used as a
sleeping place. In all other respects the several particulars which comprise an
offence under section 271 were proved, and those which were proved are a
combination which constitute a complete minor offence under section 272. In our
view, sections 271 and 272 (each of which deals with the offence of arson of a
building) comprise two offences, one major with a penalty of life imprisonment,
and the other minor with a penalty of imprisonment for 20 years. The reason for
this is obvious because, in the case of arson of the one, life may be
endangered; in arson of the other, goods only may be involved. We shall deal
further with this in our conclusions.<o:p></o:p>So far as
the offence of conspiracy is concerned, it is not clear from the evidence that
any such separ</main>