FRIMPONG vs. THE REPUBLIC [1979]DLHC1060

Date	1979-07-13
Suit No.
Citation No.	[1979]DLHC1060

TAYLOR J.

E. D. MAHAMI FOR THE APPELLANT.

J. O. AMUI PRINCIPAL STATE ATTORNE FOR THE REPUBLIC.

[1979]DLHC1060
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													<main id="main" class="content" style="min-height: 60rem" >FRIMPONG<o:p></o:p>&nbsp;vs. <o:p></o:p>THE REPUBLIC<o:p></o:p>[HIGH COURT, TAMALE] <o:p></o:p>[1978] GLR 575<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:
13 JULY 1979<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">

E. D. MAHAMI FOR THE APPELLANT.<o:p></o:p>

J. O. AMUI, PRINCIPAL 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 1.0pt 0in">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.<o:p></o:p>I have
already allowed the appeal of this appellant who was convicted on two counts
and sentenced to three years’ imprisonment with hard labour on each count, the
sentences to run concurrently. Together with his co-accused, they were
convicted of to steal and stealing contrary to sections 23 (1) and 124
conspiracy (1) of the Criminal Code, 1960 (Act 29), respectively. The facts of
the case which were led by the prosecution are that during the month of July,
fourteen outer tyres, the property of the Omnibus Services Authority, the
employers of the appellant and the other person jointly charged with him, got
missing from the omnibus yard. The tyres had been kept at an open place accessible
to every one In the yard. A witness gave evidence that the other person (the
non-appellant) some time in July gave him four of the tyres for sale, he told
him that his master had given him the said tyres for sale. The witness, a
bookman at the lorry station not far from the premises of the Omnibus Services
Authority yard, sold the tyres for the said non-appellant to two other witness.
The non-appellant was paid ¢320.00 for each tyre. The non-appellant gave the
bookman ¢100.00 for his troubles and four days later he brought another five
tyres also for sale in similar circumstances. These were also sold for ¢320.00
each and four days later another set of five tyres were similarly brought, they
were also sold for ¢320.00 as the previous consignment and the proceeds of sale
handed over to the non-appellant. There was not a single witness who gave
evidence implicating the appellant. However, the non-appellant who was jointly
charged with the appellant in a statement to the police alleged that it was the
appellant who gave him the fourteen tyres for sale. This, of course, the
appellant had denied in his own statement to the police.<o:p></o:p><o:p>&nbsp;</o:p>At the
close of the case for the prosecution, the only evidence against the appellant
was the statement which the non-appellant had made. This statement is clearly
hearsay. It was never given by a witness for the prosecution and it was never
given on oath. As is provided in section 57 (1) of the Courts Act, 1971 (Act
372): “Subject to any enactment or rule of law to the contrary, a Court shall
require any witness to be examined on oath.” The non-appellant at the close of
the case for the prosecution had not given evidence, had not been and could not
be examined on oath to establish his credibility and make any evidence he gave
admissible. In the circumstances, his statement was hearsay and as I held in
Lawson v. The Republic [1977]1G.L.R. 63 at pp. 70-71 following the English
cases of R. v. Christie [1914] A.C. 545, H.L.; R. v. Spencer (1959) Crim. L. R.
284, C.C.A. and R. v. Golder (1960) 45 Cr. App. R. 5, C.C.A., such a statement
by a co-accused is inadmissible against a person and it is therefore no
evidence against his co-accused as the appellant is in this case.<o:p></o:p><o:p>&nbsp;</o:p>It
follows therefore that the appellant ought to have been acquitted and
discharged when his counsel, Mr. E. D. Mahami in the court below, made a
submission of no case for him. The learned circuit court judge, however,
wrongfully ruled against him and on calling upon the non-appellant, evidence
adverse to the appellant was given. The non-appellant is clearly an accomplice
and it was necessary that his evidence should be corroborated in accordance
with the principles enunciated by the House of Lords in Davies v. Director of
Public Prosecutions [1954] A.C. 378 at p. 400, H.L. This principle is now
commonplace. I recall dealing with this matter at some length in Commodore v.
The Republic [1976] 2 G.L.R. 471 at pp. 486-487 where I drew attention to Lord
Reading C.J.’s formulation of the principle in R v. Baskerville [1916] 2 K.B.
658 at p. 667, C.C.A. where Lord Reading said:<o:p></o:p>“ . . .
evidence in corroboration must be independent testimony which affects the
accused by connecting or tending to connect him with the crime. In other words,
it must be evidence which implicates him, that is, which confirms in some
material particular not only the evidence that the crime has been committed,
but also that the prisoner committed it.”<o:p></o:p><o:p>&nbsp;</o:p>There was
in this case, if I may say so, not an iota of independent evidence connecting
the appellant apart from the accomplice’s own assertion made after the close of
the prosecution’s case and in defence. In the circumstances, it is clear to me
that the conviction cannot be supported.<o:p></o:p>