KANJARGA vs. THE STATE [1965]DLSC1813

Date	1965-06-21
Suit No.
Citation No.	[1965]DLSC1813

OLLENNU JSC

BRUCE-LYLE JSC

SIRIBOE J.S.C.

HEWARD-MILLS FOR THE APPELLANT.

GYEKE-DAKO SENIOR STATE ATTORNEY FOR THE RESPONDENT.

[1965]DLSC1813
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													<main id="main" class="content" style="min-height: 60rem" >KANJARGA <o:p></o:p>vs. <o:p></o:p>THE STATE <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1965] GLR 479<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
21 JUNE 1965.<o:p></o:p>

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

HEWARD-MILLS FOR THE APPELLANT.<o:p></o:p>

GYEKE-DAKO, SENIOR STATE ATTORNEY, FOR THE
RESPONDENT.<o:p></o:p>

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

OLLENNU, BRUCE-LYLE AND SIRIBOE JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.S.C.<o:p></o:p>Ollennu
J.S.C. delivered the judgment of the court. The appellant was tried upon an
indictment which charged him with two counts: the first, unlawful entry,
contrary to section 152 of the Criminal Code, 1960,1 the second, stealing the
sum of £G3,211, contrary to section 124 of the Code. He was convicted on each
of the two counts and sentenced to a term of five years’ imprisonment with hard
labour on each count, sentences to run concurrently. The appellant was a
steward boy to the complainant and had been in his service for some time before
the theft. He was in the house in the morning of 15 June 1964, when the
complainant left the house for work, but was not in when his master returned
later in the day. On his return to the house, the complainant met the doors
locked in the same condition that he had left them; but on entering the bedroom
he discovered that three of the glass louvres of one of the windows of the
bedroom had been broken leaving an opening in the window. He said that he
looked for his money which he had kept in a drawer, but it was not there and so
he made a report to the police who came and carried out investigations. It is
doubtful whether the complainant noted the loss of his money before making the
report to the police, because, according to the evidence he gave under
cross-examination, and that given by the police, the drawer in which the money
was kept was locked at the time police arrived on the scene, and the police had
to force it open before the loss was discovered. The appellant never returned
to the house after that date 15 June 1964; he was traced by the police, on 18
June 1964, to his hometown in the Upper Region, where he was arrested together
with the second prosecution witness.<o:p></o:p><o:p>&nbsp;</o:p>The
prosecution’s case depended upon circumstantial evidence, and upon direct
evidence given by the second prosecution witness who said that the appellant
confessed to him that he had stolen £G3,000 odd of his master’s money, and that
he the second prosecution witness accompanied the appellant at his request to
the Upper Region to enable him, the appellant, to dispose of the money, for
which services, the appellant promised to reward him with an amount of £G200,
but failed to honour his promise.<o:p></o:p>Learned
counsel for the appellant argued five of the eight grounds of appeal filed, and
made the following points:<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">(1) The
trial judge failed properly and adequately to direct himself on the evidence of
the second prosecution witness, who is an accomplice in the crime,<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">(2) The
matters referred to by the learned judge as corroborative of the evidence of
the second prosecution witness are not matters which the law can regard as
corroboration, and entered the room before he succeeded in committing the
theft. Therefore, the senior state attorney submitted, the circumstantial
evidence leads to the irresistible conclusion that the appellant made an
unlawful entry into the room.<o:p></o:p><o:p>&nbsp;</o:p>This
submission made by the senior state attorney overlooks the following points:
(1) upon the evidence, the money must have been in the room for some time, not
specified by the prosecution before the date of the theft; (2) there is no
evidence showing the last time that the first prosecution witness saw the money
in the drawer, certainly there is no evidence that the money was in the drawer
when he left the house that morning; consequently there is no evidence that the
theft took place during the absence of the first prosecution witness from the
house that day. The appellant entered the room from time to time for the
purpose of performing his lawful duties therein as a steward boy to the
complainant; he might well have discovered and stolen the money during the
course of the performance of his lawful duties in the room. It was for that
reason that the learned trial judge held that the presence of the finger prints
of the appellant appearing on the glass louvres along with those of the
complainant is not of any assistance to the case for the prosecution.<o:p></o:p>The
elements of the offence of unlawful entry are contained in sections 152 and 153
of the Criminal Code, 1960, which read as follows:<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">