COMMISSIONER OF POLICE vs. MILLS [1961]DLSC10230

Date	1961-06-16
Suit No.	G L R 318 - 320
Citation No.	[1961]DLSC10230

KORSAH C.J.

SARKODEE-ADOO J.S.C

AKIWUMI J.S.C.

J.D. REINDORF FOR THE APPELLANT.

K. DUA SAKYI FOR THE RESPONDENT (THE STATE).

[1961]DLSC10230
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													<main id="main" class="content" style="min-height: 60rem" >COMMISSIONER
OF POLICE<o:p></o:p>vs.<o:p></o:p>MILLS<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>COUNSEL:<o:p></o:p>J.D.&nbsp;
REINDORF FOR THE APPELLANT.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

K.&nbsp; DUA SAKYI FOR THE RESPONDENT (THE STATE).<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

KORSAH C.J.,
SARKODEE-ADOO J.S.C, AKIWUMI J.S.C.<o:p></o:p>

</div>&nbsp;<div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

JUDGMENT<o:p></o:p>

</div>&nbsp;SARKODEE-ADOO,
J.S.C.<o:p></o:p>&nbsp;Sarkodee-Adoo, J.S.C. delivered the judgment
of the court.&nbsp; The facts briefly put are
that on the 9th March, 1960, one Kwaku Kumasi (P.W.1) in company with his
brother Kwadjo Owusu (P.W.2) went to the High Court in respect of probate of
the will of his late grandfather, which had been granted by the court.&nbsp; He had been directed to the registrar and
upon arrival at the registry he saw on the verandah the appellant who enquired
of him what he wanted.&nbsp; Kwaku Kumasi
replied that he had been directed by his lawyer to see the registrar for the
probate.&nbsp; The appellant then told him
that “he worked on probates.” He asked the appellant the fees to be paid for
the issue of the probate and was told £G36 .&nbsp;
This sum was paid to the appellant on the 26th March, 1960; no receipt
was issued for the amount nor was the probate issued; notwithstanding repeated
demands on several occasions, he was put off by the appellant with divers
excuses and reasons.&nbsp; Early in August,
1960, Kwaku Kumasi encountered trespassers weeding one of his deceased
grandfather’s farms and on his visit to the court about the issue of the
probate he narrated the incident to the appellant who advised the institution
of an action against one Kojo Manu who was alleged to have sent his labourers
to weed the farm, and demanded the sum of £G16 4s as the fees for the issues of
the writ of summons.&nbsp; This sum was paid
to the appellant on the 24th August, 1960, but he issued no receipt for the
payment saying “there was no cause to worry as he would do everything
correctly”.&nbsp; A summons was prepared by
the appellant who gave it to a bailiff for service and is company with the said
Kwadjo Owusu, it was served on the defendant.<o:p></o:p>&nbsp;Richard Yaw Okyere, Senior High Court
Registrar, Kumasi, in the course of his evidence said:<o:p></o:p>&nbsp;“I know accused.&nbsp; He is a typist, Grade 1 in the High Court,
Kumasi.&nbsp; I know P.Ws 1 and 2. During the
month of November, 1960 P.Ws 1 and 2 came to me; they were brought to me by Mr.
Joseph Prempeh as his clients.&nbsp; Lawyer
Prempeh told me something and&nbsp; as a
result I called accused and interrogated them and took note of what happened
and all of them signed.&nbsp; During my
investigation into the complaint I came across a copy of writ of summons served
on 26th September, 1960, and copy of memorandum of appearance in case Kweku
Kumasi and Kwadjo Owusu v.&nbsp; Kwadjo
Manu.&nbsp; I have not been able to trace the
docket in this case and this case does not appear in any of the Cause Books in
the office.&nbsp; There are certain
handwritings in red ink in the writ of summons and the handwritings resemble
that of accused.&nbsp; I asked accused whether
he was prepared to give a statement and he said ‘No’.”<o:p></o:p>&nbsp;Under cross-examination by counsel, he said
inter alia:<o:p></o:p>&nbsp;“The seal on the writ is the genuine seal of
court.&nbsp; This writ on the face of it has
been regularly issued out of the High Court.&nbsp;
The docket in the probate case is now lost.&nbsp; I don’t know the last time I saw it.&nbsp; When probate is granted the docket is put in
an instruction book from the court clerk to the registrar.&nbsp; I at times deal with the dockets and sometimes
my assistant deals with the dockets.&nbsp; The
docket is necessary to enable the officer dealing with it to complete the
preparation of the probate.&nbsp; I cannot
help this court very much as to how this docket got missing.<o:p></o:p>&nbsp;An appearance to the writ was made on 4th
October, 1960.&nbsp; It was when appearance
was Entered that I looked into the Cause Book and found no entry and I did not
see a docket.&nbsp; I made an investigation
and got to know the writ was issued with the help of accused and I questioned
accused and I asked him for a written statement and he said he would not give a
statement.”<o:p></o:p>&nbsp;At the close of the case for the prosecution
learned counsel submitted that no prima facie case was made out to answer on
the first count; and the record upon the conclusion of the submission is as
follows:-<o:p></o:p>&nbsp;“Ruling:<o:p></o:p>&nbsp;I agree with submissions of counsel that the
£G39&nbsp; subject-matter of the first count
was paid to accused as fees for the issue of probate and there is evidence that
the docket on that probate matter got missing and so it has not been possible
for the issue of the probate thereby makin</main>