KWASI MANU vs. COMMISSIONER OF POLICE [1962]DLSC1486

Date	1962-06-01
Suit No.
Citation No.	[1962]DLSC1486

KORSAH JSC

C.J. JSC

SARKODEE-ADOO JSC

ADUMUA-BOSSMAN J.S.C.

APPELLANT IN PERSON.

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

[1962]DLSC1486
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">KWASI MANU <o:p></o:p><a name="_gjdgxs"></a><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:&quot;Book Antiqua&quot;;
mso-bidi-font-family:&quot;Book Antiqua&quot;;color:#548DD4">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">COMMISSIONER OF POLICE <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1962] 1 GLR 425<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 1ST JUNE, 1962.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

APPELLANT
IN PERSON.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 6.0pt 0in">

KORSAH, C.J., SARKODEE-ADOO
AND ADUMUA-BOSSMAN, JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ADUMUA-BOSSMAN
J.S.C.<o:p></o:p>Adumua-Bossman, J.S.C. delivered the judgment of the court. This
appeal is against a conviction by the District Magistrate, Tamale, of the
appellant on two charges of stealing contrary to section 287 (1) of the
Criminal Code,1(1) to wit (a) an Opel Rekord car of the value of £G746 12s.,
the property of one Israel Kenneth Bamfo of Sawla; and (b) a quantity of petrol
of the value of £G 1 10s. 4d. the property of Shell Company of Tamale. The
district magistrate after convicting the appellant expressed the view that the
circumstances of the commission of the offences were too grave for any sentence
which was within his power to impose, and he therefore remitted the case to the
circuit judge for the latter to deal with the question of sentence. Accordingly
Judge Djabanor in the circuit court dealt with the matter and imposed on the
appellant a sentence of four years imprisonment with hard labour on each of the
two charges to run concurrently. The notice of appeal filed, however, has only
challenged the conviction but not the sentence, and the task of this court is
limited, therefore, to considering an appeal against conviction only.<o:p></o:p><o:p>&nbsp;</o:p>Before turning to the grounds of appeal filed, it seems necessary
to consider first of all the course which the trial before the district
magistrate took, as disclosed in or by the record of appeal. The disclosure is
that the appellant was charged under charge sheet 608/60, which contained only
one charge of stealing the Opel Rekord car. The appellant having pleaded not
guilty to the charge the trial commenced on the 3rd October, 1960, when the
prosecution adduced the evidence of five witnesses, including two police
officers who testified to finding the appellant in the Opel car whilst on
patrol duty at night in the Kumasi district and thereupon arresting the said
appellant after some struggle.<o:p></o:p>After the evidence of those five witnesses the trial was adjourned
and was continued on the 10th October, 1960. When the trial was about to
recommence on this latter date, according to the record of appeal:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Police apply to withdraw and substitute charge sheet No. 636/60.
Accused discharged. Trial continues on the new charge sheet No. 636/60. Charges
read and explained. Plea— Not Guilty on both.”<o:p></o:p><o:p>&nbsp;</o:p>The charge on which appellant was standing trial having been
withdrawn and he discharged, it needs no demonstration to show that the whole
of the first trial was at an end, so that a fresh charge sheet with new charges
(albeit one of those new charges was the same charge from which he had just
been discharged) having been put forward to which he pleaded not guilty, a
completely new trial became necessary, in which all the material prosecution
witnesses, notwithstanding some had given evidence at the first abortive trial,
necessarily had to give evidence de novo. Instead of that, the trial was merely
continued and the evidence of six additional witnesses was adduced, after which
the district magistrate, apparently on the whole of the evidence, proceeded to
convict the appellant on both the charges in the new charge sheet, 636/60. It
is clear, however, that in doing so he erred, and that on the charges contained
in the new charge sheet all the evidence adduced was that of the six fresh
witnesses.<o:p></o:p><o:p>&nbsp;</o:p>The evidence of the five witnesses on the old charge sheet (which
was not merely amended by the addition of a fresh additional charge but
completely withdrawn) could not and did not form part of the proceedings or
trial after the appellant had pleaded to the charges in charge sheet 636/60,
and could not therefore be considered in determining whether the charges in the
new charge sheet had been established or not. So in the case of Eronini v. The
Queen2(2) Verity, C.J. (Nigeria) who delivered the judgment of the court, posed
the problem which arises upon the more occurrence of such a situation in these
words:<o:p></o:p>