LUCIEN vs. THE REPUBLIC [1977]DLHC1353

Date	1977-07-27
Suit No.
Citation No.	[1977]DLHC1353

TAYLOR J.

COLONEL F. G. BERNASKO FOR THE APPELLANT.

MRS. OWIREDU GYAMPOH STATE ATTORNEY FOR THE REPUBLIC.

[1977]DLHC1353
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													<main id="main" class="content" style="min-height: 60rem" >LUCIEN <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1977] 1 GLR 351<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:
27 JULY 1976<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">

COLONEL F. G. BERNASKO FOR THE APPELLANT.<o:p></o:p>

MRS. OWIREDU GYAMPOH, 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 1, Accra
New Town, on 12 May 1975 charged with stealing contrary to section 124 of the
Criminal Code, 1960 (Act 29), on two counts the particulars of which are 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">“Count
One PARTICULARS OF OFFENCE Dzakpo Quarshie Lucien: Teacher: For that you during
the month of August 1973, at Kotobabi in the Accra magisterial district and
within the jurisdiction of this court did steal one big wall clock value
¢540.00, one big brass school bell value ¢25.00 and one bedspread all to the
total value of ¢599.65.”<o:p></o:p><o:p>&nbsp;</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">“Count
Two PARTICULARS OF OFFENCE Dzakpo Quarshie Lucien: Teacher: For that you during
the month of August 1973 at Accra New Town in the Accra magisterial district
and within the jurisdiction of this court did steal six text books value ¢60.00
the property of one John Winfred Dumoga.” On 5 January 1976, after a trial
lasting many months, the learned district magistrate found the charges proved.
She therefore found the appellant guilty and convicted him. She sentenced him
to two years’ imprisonment with hard labour on each count. The sentences were
to run concurrently. The appellant originally appealed against the sentences
imposed. At the hearing of the appeal he was unrepresented and he experienced
tremendous difficulties in arguing his case. Colonel Bernasko, a legal
practitioner present in court, seeing his plight offered to appear for him and
he subsequently filed on the appellant’s behalf four additional grounds of
appeal directed against the conviction as follows: (1) The verdict is
unreasonable and cannot be supported having regard to the evidence. (2) The
judge’s appreciation of the law was erroneous and its application to the facts
established at the trial was equally unsatisfactory. (3) The trial magistrate
failed to consider and examine fully the defence of the appellant. (4) There
was a substantial miscarriage of justice.”<o:p></o:p><o:p>&nbsp;</o:p>In order
to appreciate the relevance of the grounds of appeal filed for the appellant,
it is necessary to have regard to the facts led in evidence by the prosecution
and which founded the conviction. The facts are that the appellant was a school
teacher at an Accra New Town elementary school some time in 1973. He resigned
from the school and took up employment at Sokpoe Agricultural School in 1974.
In the later part of the year he resigned from the school and upon information
received, his house at Anyako was searched by the police and many items and
books including the items, the subject-matter of the two counts, were found
with him. Some of the other books and items found with him belonging to various
persons were made the subject-matter of four counts of stealing charges which
he faced at Sogakofe in November 1974 before the district magistrate grade II,
his worship Mr. G. A. Atitsogbui, and for which he was sentenced on 26 March
1975 to two years’ imprisonment with hard labour on each count. The sentences
were to run concurrently. Prior to the said conviction of 26 March 1975, he had
been convicted by the same district magistrate grade II on 7 November 1974 on
offences arising out of the same transaction and involving some of the items
found on him when his room was searched and he was on that occasion sentenced
to three months’ imprisonment with hard labour. It was after these two separate
trials and their respective sentences that he was arraigned before the Accra
New Town District Magistrate Court Grade I on the present charge in connection
with the same transaction.<o:p></o:p><o:p>&nbsp;</o:p>With
regard to the second count, the defence of the appellant in evidence was that
the books were given to him by the complainant. The evidence which the
complainant gave supported this evidence of the appellant. In an able argument,
Colonel Bernasko, counsel for the appellant, has demonstrated in the course of
arguing third ground of the additional grounds he filed that the district
magistrate completely failed to consider this obvious defence and he therefore
submitted that the conviction on count two cannot stand. Counsel for the
Republic in the best tradition of the legal profession conceded that for the
reasons assigned by Colonel Bernasko the conviction on the second count cannot
be supported. I am in entire agreement with the submission of counsel for the
appellant supported as it is by counsel for the Republic that the conviction on
the second count cannot be supported. This is because the fact that it was the
complainant who gave the books to the appellant was not challenged. It was
accepted. In her judgment, however, the learned district magistrate said as follows:<o:p></o:p>