DRAMANU vs. THE REPUBLIC [1973]DLHC2380

Date	1973-07-31
Suit No.
Citation No.	[1973]DLHC2380

KORANTENG-ADDOW J.

DY-YAKAH FOR THE APPELLANT.

CREPPY PRINCIPAL STATE ATTORNEY FOR THE REPUBLIC.

[1973]DLHC2380
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													<main id="main" class="content" style="min-height: 60rem" >DRAMANU <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;[1973]
2 GLR 378<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
31 JULY 1973.<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">

DY-YAKAH FOR THE APPELLANT.<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">

KORANTENG-ADDOW J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF KORANTENG-ADDOW J.<o:p></o:p>The
appellant was charged with the offence of stealing under section 124 of the
Criminal Code, 1960 (Act 29). He was the secretary of the Gonja Traditional
Council. He had in fact served the council for eighteen years by then. He was
alleged to have stolen an amount of ¢200.00, the property of the council some
time in 1968. The allegation was that two stray cattle were found in the area
and, as was the custom, they were brought to the Yabonwura, the paramount
ruler. The chief ordered the cows to be sold. They were sold and the amount
realised was ¢200.00. According to the paramount chief (the fifth prosecution
witness at the trial), when the cows were sold the amount of ¢200.00 was
brought to him. But when it was tendered he instructed the accused to go and
pay it into the coffers of the traditional council because it belonged to the
council, but he did not do so. The accused denied the charge, but he was tried,
found guilty and convicted. He was sentenced to a fine of ¢120.00 or to a term
of six months’ imprisonment with hard labour in default.<o:p></o:p><o:p>&nbsp;</o:p>The
defence of the accused was that he paid the money to the Yabonwura who was the
owner. The Yabonwura gave it back to him for safe-keeping but that later, on
the instructions of the Yabonwura, he added it to an amount given to him by the
Yabonwura to pay off a debt owed by a son of the Yabonwura. The Yabonwura
admitted the payment to him of the money but said that he never asked the
accused to use the money as alleged by him. Besides the mere allegation of the
Yabonwura there was however no evidence in proof of the fact that the
traditional council had lost anything. Not one witness was called from the
council to say that the council had lost any money. On the contrary there was
ample evidence that the money belonged to the Yabonwura, and the evidence was
accepted by the trial magistrate. The prosecution therefore failed completely
to establish the question of ownership. This failure is reflected in the judgment
of the learned trial magistrate. In it he said among other things:<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">“I now
come to the charge and its particulars. The accused was charged for having
stolen the sum of N¢200.00 the property of the Gonja Traditional Council. The
ownership was therefore laid in the Gonja Traditional Council. But there is a
great conflict in the evidence as to where the ownership should be laid, the
traditional council or the Yabonwura.”<o:p></o:p><o:p>&nbsp;</o:p>To
resolve that difficulty of the question of ownership however the learned trial magistrate
sought support from the illustration to section 120 (2) of the Criminal Code,
1960 (Act 29), and relied also on Republic v. Halm, Court of Appeal (full
bench), 7 August 1969, unreported; digested in (1969) C.C. 155 where it was
stated inter alia:<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">“But
further reflection leads us to the conclusion that all that was intended by the
judgment [Domena v. Commissioner of Police [1964] G.L.R. 563, S.C.] is that in
every case, that which the law requires is proof that the person charged is not
the owner of the property stolen, and no more. So that the prosecution, if they
charge that the property belongs to a particular person, may attempt to prove
that fact but if they fail in that attempt they need not necessarily fail on
the charge of stealing as a whole so long as they manage to prove that the
accused is not the owner of the property and to satisfy the requirements of the
other ingredients of the offence.”<o:p></o:p><o:p>&nbsp;</o:p>The
illustration to section 120 (2) of Act 29 reads as follows: “A person can be
guilty of stealing by appropriating things the ownership of which is in dispute
or unknown, or which have been found by another person.” The section says that
a person may be guilty of stealing a thing, the ownership of which</main>