pg 198 Appeal Court, 16th Dec., 1941.

  Appellant. Stealing-One of accused pleaded guilty-Called as witnesses fo1' the Crown-Plea changed to Not Guilty-No objection to admission of his evidence by defence-Meaning of Abandonment.

[Five accused charged ".,fore Magistrate's Court with stealing of who)] the fifth accused pleaded guilty. The plea of guilty stood but he had not been sentenced before being called as a witness. This plea was, after hearing his evidence, changed to "Not Guilty." The appellant was convicted and appealed to the Supreme Court who. dismissed the appeal. Appellant! stated that as the goods alleged to have been stolen were incapable , being stolen as they had been abandoned. The question was whether the evidence showed the goods had been abandoned in the natural meaning of the word or in its artificial and technical sense. Supreme Court held it had been used in its technical sense and thus there was no. abandonment Appellant further stated that the fifth accused was not a competent witness Supreme Court held that as District Magistrate was asked to. strike ( evidence of fifth accused it was too late to raise the question of in competency for first time on appeal]

Held: (i) A person pleading guilty and who is to be called as Crown Witness should be first sentenced.

(ii) View of Supreme Court's meaning of use of word " Abandonment was the correct one and

(Hi) The Supreme Court was wrong in holding that the question of incompetency, which was statutory, of the witness could not be raise{ first time in appeal.

Appeal allowed conviction and sentence quashed and verdict acquittal entered.

Cases quoted:-

Rex v . Jackson 6 Cox 525.

Maxwell v. Director of Public Prolfecutions 50 TLR 499

Rankin v. Potter 42 L.J .C. 200; L.R. 6 H. L. 19;j9 Park, ch. 9 ..

R. v. Whitehead L.R. 1 C.C. R. 33; 35 I...J .M.C. ]

C. S. Acolatse for Appellant.

A. J. Loveridge for the Respondent. pg 199

The following joint judgment was delivered:­

KINGDON, C.J., NIGERIA, BANNERMAN AND M'CARTHY, JJ.

In this case the appellant was charged with four other men in the Court of the District Magistrate, Accra, with stealing from a vessel contrary to section 271 (2) of the Criminal Code. The particulars given (as amended in the course of the trial) read as follows: -

"For that you on the 12th day of July, 1941, at Accra in the "Accra Magisterial District and within the jurisdiction of the "Magistrate's Court, did steal from -a vessel to wit, M.V. Sangara "certain articles to wit, one lorry outer tyre value £10, and four " inner tubes value £3, all to the total value of £13, the property of the manager and others of Messrs. Elder Dempster Lines, Limited."

To this charge the first accused and the second accused (the present appellant) pleaded " Not guilty" and the third, fourth and fifth accused "Guilty", but the third accused altered his plea to " Not guilty" before any evidence was taken·. The case proceeded and three witnesses were caped for the prosecution. Then the prosecution called Daniel Tubugtey the fifth accused as the fourth witness. His plea of "Guilty" still stood but he had not been sentenced and here it may be remarked that where it is proposed to call an accused who has pleaded " Guilty " as a witness against a co-accused the proper course is to sentence him first (See Archbold (30th Edition) page 469 and R. 11. Jackson, 6 Cox 525). After hearing Tubugtey's evidence in chief the Magistrate placed the following on record:-

"By Court: At this stage No. 5 accused alters his plea to one " of not guilty and asks to stand his trial. Similar application by No. "4 accused who alters his plea to one of Not Guilty and asks to be " tried."

Thereupon. Tubugtey was cross-examined by counsel for the appellant and re-examined by the police.

The case proceeded and resulted in the conviction of the first four accused and the acquittal of the fifth accused. Against his conviction the appellant appealed. to the Supreme Court. His. appeal was heard by the learned Chief Justice, who dismissed it. He now appeals to this Court with the following grounds of appeal.:-

" 1. That the procedure adopted by the learned Magistrate " whereby one of the accused persons, to wit, the fifth accused, having " pleaded guilty was called as witness for the police after which he was " advised by the learned Magistrate to change his plea to one of Not " Guilty to stand his trial with the other accused persons constituted " an irregularity amounting to a substantial miscarriage of justice.

"2. That the learned Magistrate misdirected himself in law by " placing undue importance to the cautioned statements of Nos. 3 and "4 accused persons and treated such statements as evidence against "the appellant herein. pg 200

          "3, That the goods in question alleged to have been stolen having "been abandoned were therefore not capable of being stolen; "consequently the conviction herein is wrong in law.

" 4. That during the trial of the case for the prosecution the " learned Magistrate argued, treated and considered the case before hith " under the Wrecks and Salvage Ordinance and having done so ought " to have brought the case within the purview of the said Ordinance.

" 5. That the evidence of the witnesses for the prosecution must be " regarded as that of accomplice!!, in which case their evidence requires " corroboration.

" 6. That the verdict is unreasonable having regard to the " circumstance!! of the case which raise grave doubts in favour of the " accused, and fraught with an element of miscarriage of justice against "the appellant herein.

" 7. That the ownership of the property having been laid in Elder " Demputer Lines and they having disclaimed ownership of the goods, " the accused persons should have been discharged at that stage."

Ground 6 was struck out as being on a matter of fact and so not lying without the permission of the Court, a permission which had not been obtained. There is no substance in ground's 2, 4, 5 and 7, but ground 3 raised a rather difficult point of law. This ground was the same as ground 3 in the appeal to the Supreme Court. In that Court the learned Chief Justice thoroughly threshed the matter out and gave the following ruling:-

" So far I have only heard argument on the third ground " of appeal, which is ' that the goods in question alleged to " , have been stolen having been abandoned were therefore " , not capable of being stolen, consequently the conviction " , herein is wrong in law.'

" Things of which the ownership has been abandoned by " its owner are not, under our Criminal Code capable of being "stolen. It has been contended that it results from the " evidence of Mr D. R. H. Christian, Shipping Agent for " Elder Dempster and Company that the tyre and four inner " tubes alleged to have been stolen were abandoned and had " no owner.

" As stated in Stroud's Judicial Dictionary under the " word ' Abandonment' :-

" 'The word 'abandon' is one in ordinary and " , common use, and in its natural sense well understood; " , but there is not a word in the English language used " , in a more highly artificial and technical sense than " 'the word 'abandon'; in reference to constructive " , total loss, it is defined to be a cession or transfer of " , the ship from the owner to the under-writer, and of " , all his property and interest in it, with all the claims " , that may arise from its ownership, and all the profits " , that may arise from it, including the freight then being earned' (per Martin, B Rankin   v. Potter 42 .. , L.J .C. P.' 200; L.R. 6 H.L. 139; ch. Park, ch. 9). pg 201

 In my opinion the word 'abandoned' has been used •• by Mr Christian not in its natural but in its highly artificial .. and technical sense as defined in the passage just quoted.

" The result of holding otherwise would be that if ' A ' " had shipped his car by the Sangara anybody would come " along after Elder Dempster had abandoned the ship and K' " help himself to the car and deprive' A ' of the ownership.

" I am not satisfied that the cover or tubes have been Bannerman " , abandoned ' in the usual sense of that word or that they had no owner at the time of the alleged larceny. On the " contrary it seems to me on the evidence as a whole that they had not been abandoned and were capable of being  stolen.

" Appellant has failed on ground 3 and I will now hear " the other grounds."

We concur with this reasoning and will only add that it appears to us that the learned Chief Justice's view that Christian (lid not mean that the goods had been abandoned so as to have no owner is confirmed by the following statement in Christian's evidence when he was re-called: "If a tyre were found on the " boat it would be state property."

There remains ground 1, which is the same as ground 1 in the Supreme Court. The learned Chief Justice gave the following judgment upon this ground:-

",The fifth accused was 'a competent witness when he "gave his evidence but directly he withdrew his plea he "became incompetent. The proper procedure then appears ., to' be that set out at page 457 of the 29th Edition of Archbold: -                                                    

If the Judge has admitted a witness as competent " , to give evidence but upon proof of subsequent facts " 'affecting the capacity of the witness, and upon " , observation of his subsequent demeanour, the Judge " 'changes his opinion as to his competency, he may " 'stop the examination of the witness" strike his " 'evidence out of his notes, and direct the jury to " , consider the case exclusively upon the evidence of the " 'other witnesses. R. ·v. Whitehead, L.R. 1 C.C.R. "'33; 35 L.J. M,C. 186.'

" The District Magistrate did not adopt that procedure " and was not asked to do so. Counsel for the other accused " did not then or at any time during the trial take objection .• that the witness was not competent. In my opinion it was " open to the defence to take the point that the witness was ." not competent at any time during the trial but that it is ~, too late to raise for the first time on appeal and then to "allege that this constituted a substantial miscarriage  If  pg 202 justice when it had acquiesced in the procedure. In " paragraph 1392- of Taylor on Evidence, 12th Edition, it is " stated: -" 'In ordinary cases, if the objection to the competency of a witness be not taken until after the trial, " , it will be considered as coming too late, and the Courts " , will not grant a new trial for this cause alone, unless the " 'competency were known and concealed by the party " , producing the witness, or other evidence can be given of " , mala praxis on his part.' "

We may add that in the same paragraph Taylor states that the rule on this subject is the same in Criminal as in Civil cases.

We find ourselves unable to concur with the view that this ground could not be raised 'for the first time on appeal and that the appellant must not be allowed to raise it because in the trial Court his counsel acquiesced in the procedure. In the case of Re:x v. Whitehead the witness whose competency was in question was a deaf and dumb girl and the question was individual to her-" self, there was no question of principle involved. It seems that that is the kind of case which is referred to be Taylor's expression "-in ordinary cases." But the present case is, in our view quite different; the incompetence of the witness is statutory and more­over it is a fundamental principle that an accused person under-, going trial can only be called as a witness ,upon his own applica­tion. He is not eligible as a witness for the Crown. Disregard of that principle strikes at the whole root of the administration of the criminal law. It is the duty of the Courts to be guided by that principle and regard to it cannot be waived by an accused person's counsel. We hold that the point is one which we must allow to be raised and considered on its merits. We are of opinion that the procedure adopted constitutes a grave and substantial l1isreganl of the form of legal process; and further that the failure of the learned Magistrate to direct himself that the evidence in chief of the witness Tubugtey must be di8regarded amounts to a misdirection in law. The conviction as a result cannot be allowed to stand.

We have been asked by counsel fol' the Crown to exercise the discretion conferred upon the Court by the proviso to section 10 (1) of the West African Court of Appeal Ordinance (Chapter 5) which reads:-

" Provided that the Court may, notwithstanding that they " are of opinion that the point raised in the appeal might be " decided in favour of the appellant, dismiss the appeal if " they consider that no substantial miscarriage of justice has " actually occurred."

We do not see fit to act under this proviso in this case for two reasons; the first is that when there has been such a fundamental disregard of procedure as in this case we are unwilling to use our discretion in order to cure it; and the second is that we are not satisfied pg 203 hat without the evidence of Tubugtey the case for the prosecution was sufficiently established so that the finding must inevitably have been the same. In this connection Sankey, L. C., in considering the corresponding provision of the English Criminal Appeal Act, 1907, in the case of Maxwell v. The Director of Public Prosecutions (50 T.L.R., p. 499) said:-        -

"The rule which has been established is that, - if the " conviction is to be quashed on the ground of misreception " of evidence, the proviso cannot operate unless the evidence " objected to is of such a nature and the circumstances of the " case are such that the Court must be satisfied that the jury ., must have returned .the same verdict even if the evidence " had not been given."

It is clear that it never occurred to the learned Magistrate that the evidence of Tubugtey was inadmissible and he must have taken it into consideration in making his finding. The evidence of the other witnesses is extraordinarily conflicting as to date and time of the alleged offence. Presumably the alleged offence took place in the afternoon or early evening of Saturday the 12th July, and the Police Occurrence Book was produced to show that the first two accused, who were policemen, were on duty on board the M.V. Sangara from 6.10 a.m. until 7 p.m. on that. day. But according to the record the first witness Kobina Benevor, a boat boy, speaks to an occurrence at 5 a.m. on the 13th July; the second witness Willabrod Gboga, a launch driver and engineer, speaks to an occurrence at 5.30 a.m. on the 12th July; the third witness Kwesi Mansi, a boat boy, began by saying: "About ., two weeks ago we went out to the steamer in harbour about 5 " a.m. this Saturday morning." He then described the incident and in cross-examination said it happened in the evening. It may be that, in spite of that confusion and conflict as to date and time, the learned Magistrate would have convicted the appellant even without the evidence of Tubugtey, but we are quite unable to say that he would inevitably have done so.

For these reasons-the appeal is allowed, the conviction and sentence passed upon the 'appellant are quashed and it is directed that a judgment and verdict of acquittal be entered. The appellant is discharged.