ANNOH vs. COMMISSIONER OF POLICE [1961]DLSC1979

Date	1961-07-15
Suit No.
Citation No.	[1961]DLSC1979

ADUMUA-BOSSMAN JSC

OLLENNU JSC

BLAY JSC

AMANKWA FOR THE APPELLANT

D. F. ANNAN

SENIOR STATE ATTORNEY

FOR THE RESPONDENT.

[1961]DLSC1979
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ANNOH

[SUPREME COURT]

[1963] 2 GLR 306

DATE: 15TH JULY, 1963.

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COUNSEL:&nbsp;&nbsp;

AMANKWA
FOR THE APPELLANT ,D. F. ANNAN, SENIOR STATE ATTORNEY, FOR THE RESPONDENT.

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ADUMUA-BOSSMAN, OLLENNU AND
BLAY JJ.S.C.

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&nbsp;

JUDGMENT OF OLLENNU J.S.C

The appellant was tried and convicted by the circuit judge,
Kumasi, on nine counts of stealing. The subject-matter of the charges are nine
separate sums of money, the value, in some cases, of a number of local council
rolls of tickets of four penny and sixpenny denominations issued to the
appellant and sold by him to the public, and in others, amounts shown on the
council’s counterfoil receipt books as collected by the appellant on behalf of
the council, and in each case not accounted for by him.

The appellant did not give any evidence on his own behalf at his
trial, and the whole case therefore rested upon the evidence adduced by the
prosecution which included oral evidence alleging that the appellant had
admitted to the chairman of the council, the sixth prosecution witness in the
presence of three prosecution witnesses, namely, the second, fourth and fifth
prosecution witnesses, that he misappropriated the various sums of money; it
also included a statement the appellant made to the police when he was charged
with the offences and cautioned by the police, in which he denied the charges
and the allegation that he had admitted to the chairman of the council and
other persons that he had misappropriated the moneys.

The learned circuit judge in his judgment gave consideration to
each of the nine counts upon which the appellant stood charged separately, and
dealt with what he thought were the relevant issues raised. He, however, in the
course of his fairly long judgment, made a statement which in our opinion
warranted some of the criticisms which counsel for the appellant, levelled
against his judgment.

“(1) because the trial circuit judge was wrong in law in refusing
to uphold the submission of no case at the close of the case for the
prosecution.

(2) Because the prosecution failed to adduce any evidence in
support of the charge. The appellant had been charged with stealing general
counter-foil receipt books and rolls of market receipts but the evidence
adduced was to the effect that the appellant had stolen certain sums of money
and not receipt books or market tickets.

On ground (1) it was submitted that the circuit judge misdirected
himself when he said that, “The accused never gave evidence in court, nor did
he make any statement to the police when he was arrested and therefore the
court could not guess what his explanation would be.” Counsel submitted that
although the circuit judge was right when he said that the appellant did not
give evidence, he definitely erred in directing himself that the appellant did
not make any statement to the police and therefore he, the circuit judge, had
no explanation by the appellant which he could consider. This submission of
counsel for the appellant is well founded.

The appellant did make a statement to the police when he was
arrested, charged and cautioned; that statement was admitted in evidence as
part of the prosecution’s case and marked exhibit K. In it he gave an
explanation which, if believed, is sufficient to warrant his acquittal. The
full statement leaving out the formal parts is as follows:

“On the 2nd May, 1962, an auditor whose name I do not know arrived
at Bekwai to audit my books. In the course of his auditing he instructed me to
produce all receipts concerning payments made to the cashier of Amansie Local
Council. I produced all the relevant receipts covering all moneys collected by
me and paid to the cashier, one Emmanuel Mensah, and the revenue officer, one
Mr. Graham. Any time I pay in any money collected by me to either the revenue
collector or the cashier they issued me with a receipt which I fix in my cash
book and they retain the duplicate copies in their receipt books. After the
auditor had completed his auditing of my accounts he informed me that I was
short of an amount of £G1,055 17s. 4d.

I told the auditor that I have paid in all the moneys collected by
me to the cashier and the revenue officer. I never at any time admitted
misappropriating the amount of £G1,055 17s. 4d. I never asked him for time to
produce the amount found s</main>