ARMAH MENSAH vs. THE REPUBLIC [1971]DLHC2081

Date	1971-02-12
Suit No.
Citation No.	[1971]DLHC2081

TAYLOR J.

R. ALLASSAN FOR DY-YAKAH FOR THE APPELLANT.

CREPPY SENIOR STATE ATTORNEY FOR THE REPUBLIC.

[1971]DLHC2081
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													<main id="main" class="content" style="min-height: 60rem" >ARMAH MENSAH <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC <o:p></o:p>[HIGH COURT,
TAMALE]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1971] 2 GLR 331<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:
12 FEBRUARY 1971.<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">

R.
ALLASSAN FOR DY-YAKAH FOR THE APPELLANT.<o:p></o:p>

CREPPY,
SENIOR STATE ATTORNEY, FOR THE REPUBLIC.<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">

TAYLOR J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.<o:p></o:p>The
appellant in this case was arraigned before the District Court Grade I, Wa,
charged with stealing N¢33.00, the property of one Teiku Dagarti. The facts
which the prosecution led and which were apparently not challenged are that one
Teiku Dagarti was arrested on suspicion by the Nandom police and when he was
searched on or about 11 April 1969, N¢36.00 and other articles not relevant to
the present charge were found on him. It was not shown why he was arrested. The
appellant was the Inspector of Police at the Nandom Police Station. The suspect
Teiku Dagarti asked for N¢3.00 which was given to him and the police kept the
balance of N¢33.00. Teiku Dagarti later absconded. There was no evidence as to
the date when he ran away. On 12 August 1970 the appellant was requested to
hand over his duties to another inspector, the second prosecution witness. On
that day the appellant gave the second prosecution witness a post-dated cheque
for the N¢33.00 with the explanation that he had used the money. This was
reported to the first prosecution witness, the Assistant Superintendent of
Police in charge of the district. The second prosecution witness made it clear
to the appellant that he would not accept the post-dated cheque in payment of
the money although he took possession of it. The appellant on the following day
13 August 1970 refunded the money, N¢33.00 in cash, and the second prosecution
witness accepted that. On 16 August 1970 the prosecution alleged that the
appellant volunteered a statement on caution. This statement was admitted as
exhibit B after the appellant had objected to it.<o:p></o:p><o:p>&nbsp;</o:p>There can
be no doubt that if the prosecution’s case is accepted in toto a clear case of
stealing has been made against the appellant and a conviction is in order. It
is however necessary to consider the case which the appellant put forward at
the trial in answer to the charge.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant gave evidence that he was the inspector at the Nandom Police Station
as from 12 May 1969 to the date of the alleged offence. He said he took over
the station on 12 May 1969 and took possession of the N¢33.00 and other
exhibits. On 12 August 1970 he was asked to hand over the station to the second
prosecution witness which he did. On 8 August 1970 he told the second
prosecution witness that he was travelling to Bolgatanga and he needed the
N¢33.00 in this case and that he would issue a cheque to be cashed at Wa and
the second prosecution witness agreed. On 12 August 1970 he gave the said
cheque to the second prosecution witness in the presence of the first
prosecution witness, but the second prosecution witness then said he would not
accept the cheque without the consent of the first prosecution witness. When
the cheque was shown to the first prosecution witness he said he would not
accept it in payment but would keep it until the physical cash was paid. As
this would delay the handing over the appellant deposed that he paid the
physical cash the next day, 13 August 1970.<o:p></o:p>In this
court the following grounds of appeal were filed:<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
conviction is bad and cannot be supported having regard to the evidence. <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
learned magistrate erred in holding that there was dishonest appropriation of
the sum in question. <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">(3) That
the sentence was excessive having regard to all the circumstances.”<o:p></o:p>