IDDI vs. THE REPUBLIC [1979]DLHC1068

Date	1979-10-10
Suit No.
Citation No.	[1979]DLHC1068

TAYLOR J.

J. B. KABA (WITH HIM G. K. MENSA-ETSI) FOR THE APPELLANTS.

MRS. S. ADENYIRA FOR THE STATE.

[1979]DLHC1068
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													<main id="main" class="content" style="min-height: 60rem" >IDDI <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC<o:p></o:p>[HIGH COURT, BOLGATANGA] <o:p></o:p>[1978] GLR 623<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:
10 OCTOBER 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">

J. B. KABA (WITH HIM G. K. MENSA-ETSI) FOR THE
APPELLANTS.<o:p></o:p>

MRS. S. ADENYIRA FOR THE STATE.<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>On 29
August 1979, I allowed the appeal of the appellants and quashed their
convictions for the offence of dishonestly receiving. I also set aside the
sentences of nine months’ imprisonment with hard labour imposed on each of them
and I acquitted and discharged them reserving my reasons for quashing their
convictions to today. I now proceed to give the said reasons. One Paul Kwabena
Frans and the two appellants were arraigned before the Circuit Court, Wa, on a
two-count charge sheet, in which the said Frans was charged in count one with
stealing two ceiling fans valued ¢700, the property of the Ghana Government,
contrary to section 124 of the Criminal Code, 1960 (Act 29). The appellants
were charged in count two with the offence of abetment of stealing contrary to
sections 20 (1) and 124 of Act 29. The particulars of the offence which they
faced jointly are that they did purposely encourage the said “Paul Kwabena
Frans to commit crime to wit stealing.” At the trial the said Paul Kwabena
Frans was acquitted and discharged. The learned circuit court judge however in
the course of reading his judgment suo motu purported to amend the charge to
read dishonestly receiving and he convicted the appellants of dishonestly
receiving and sentenced each of them to nine months’ imprisonment with hard labour.<o:p></o:p><o:p>&nbsp;</o:p>It is
against the convictions and sentences that the appellants appeal to this court.
I do not think that it is really necessary to go into the facts of the case. I
only give a very brief account for the purpose of enabling the legal aspects to
be set in their proper perspective.<o:p></o:p><o:p>&nbsp;</o:p>The
acquitted person, Paul Kwabena Frans, occupied a government bungalow at Wa and
the case of the prosecution is that he removed two ceiling fans belonging to
the government which were installed in the bungalow and gave them to the two
appellants to sell for him as he was short of money. The two appellants agreed
that the fans were given to them, but they denied knowing that they were
stolen, and gave evidence that they did sell the fans and gave the proceeds to
the acquitted person. This, of course, the acquitted person denied. He said the
case against him is malicious and that the ceiling fans are indeed still in the
room ever since they were installed. The court moved to the locus in quo and
discovered that the fans were indeed in the ceiling a circumstance that thus
corroborated the evidence of the acquitted person. The prosecution, however,
led evidence showing that the ceiling fans in the case are government property.
For these reasons, the learned circuit court judge acquitted the said Paul
Kwabena Frans of the offence of stealing but amended the second count to read
dishonestly receiving in order to enable him to convict the appellants and the
purported amendment was announced as I have pointed out in the course of reading
his judgment when the cases of the prosecution and the defence had been closed.<o:p></o:p><o:p>&nbsp;</o:p>Two
grounds of appeal were filed on behalf of the appellants:<o:p></o:p>“(1) The
conviction is unreasonable having regard to the evidence. (2) The learned trial
circuit judge seriously erred in law when he acquitted and discharged the
principal offender on the stealing charge but convicted the petitioners for
dishonestly receiving a property which was proved not to have been stolen or
unlawfully obtained.”<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">Subsequently,
his counsel before this court, Mr. J. Ben Kaba, filed on his behalf an
additional ground of appeal: “That the learned judge erred in law in that at
the stage he purported to amend the charge, he had no power to do so.”<o:p></o:p><o:p>&nbsp;</o:p>In this
court counsel abandoned ground one of the original grounds of appeal and argued
only ground two and the additional ground. Cou</main>