OBENG ALIAS DONKOR AND OTHERS vs. THE STATE [1966]DLSC1735

Date	1966-03-28
Suit No.
Citation No.	[1966]DLSC1735

CRABBE JSC

AKAINYAH JSC

BRUCE-LYLE J.S.C.

APPELLANTS IN PERSON.

GYEKE-DAKO SENIOR STATE ATTORNEY FOR THE RESPONDENT.

[1966]DLSC1735
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													<main id="main" class="content" style="min-height: 60rem" >OBENG ALIAS DONKOR AND OTHERS <o:p></o:p>vs. <o:p></o:p>THE STATE <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1966] GLR 259<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:
28 MARCH 1966.<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">

APPELLANTS IN PERSON.<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">

CRABBE, AKAINYAH AND BRUCE-LYLE JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF CRABBE J.S.C.<o:p></o:p>Crabbe
J.S.C. delivered the judgment of the court. All the appellants in this case
were convicted on various counts by Apaloo J.S.C., sitting with assessors, in
the High Court of Ghana held at Accra on 25 January 1965. They were charged
together with others, who were acquitted at the trial, on the first count of
conspiracy to steal contrary to sections 23 (1) and 124 of the Criminal Code,
1960,1 and all, except the first appellant, were charged with abetment of crime
contrary to sections 20 (1) and 124 of the Criminal Code, 1960. The first
appellant alone was charged on six counts of stealing various sums of money
belonging to the United Ghana Farmers Council. The first appellant was
acquitted on the fourth count of stealing, and about this acquittal we shall
say more later in this judgment. The fourth accused was dead at the hearing of
this appeal, and, therefore, we treated his appeal as having abated.<o:p></o:p><o:p>&nbsp;</o:p>The case
turned purely on the facts which we think it is unnecessary to set out. After a
detailed and meticulous summing-up by the learned trial judge, the assessors
expressed different opinions as to the guilt of the appellants on the counts
with which each was charged. In a well-considered judgment the learned trial
judge found each appellant guilty of the count on which he was charged, except,
as we have said earlier, that the first appellant was acquitted on the fourth
count of stealing. We have carefully considered the evidence on record and we
are satisfied that the guilt of each appellant was clearly proved, and we find
no merit in any of the appeals which are accordingly dismissed.<o:p></o:p>The
acquittal on the fourth count calls for some comment. In his judgment the
learned trial judge said:<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">“The sum
charged against the accused in count 4 is that he stole £G321 19s. 6d. No
evidence whatsoever was led to prove this sum although evidence was led which
satisfies me of the appropriation by the accused of £G315. As the charge was at
no time amended, I am bound to hold that the amount charged in count 4 was not
proved.”<o:p></o:p><o:p>&nbsp;</o:p>With all
due respect to the learned trial judge, we think he erred in the view he took
of the law. In count 4 the first appellant was charged with stealing the sum of
£G321 19s. 6d., but the evidence proved that the first appellant stole only
£G315, and in his judgment the learned judge said, “I am satisfied beyond
reasonable doubt that the first accused dishonestly appropriated these sums and
made the false receipts to cover up the theft.” One of these sums referred to
in the judgment is a voucher covering the amount of £G315, which was taken to
be part of the total sum of £G321 19s. 6d. Under the law of Ghana a person is
guilty of stealing if he “dishonestly appropriates a thing of which he is not
the owner.” “Dishonest appropriation” is explained in section 120 (1) of the
Criminal Code, 1960, thus:<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">“An
appropriation of a thing is dishonest if it is made with an intent to defraud
or if it is made by a person without claim of right, and with a knowledge or
belief that the appropriation is without the consent of some person for whom he
is trustee or who is owner of the thing, as the case may be, or that the
appropriation would, if known to any such person, be without his consent.”<o:p></o:p><o:p>&nbsp;</o:p>Acts
which amount to appropriation are also explained in section 122 of the Code and
subsection (2) of this section, which is relevant to this case, reads:<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">“An
appropriation of a thing in any other case means any moving, taking, obtaining,
carrying away, or dealing with a thing, with the intent that some person may be
deprived of the benefit of his ownership, or of the benefit of his right or
interest in the thing, or in its value or proceeds, or any part thereof”.<o:p></o:p>