Appeal Court
17th Dec., 1938. Appeal
from Supreme Court exercising
appellate jurisdiction.
Convictions for stealing, contra
sec. 270 (1) of Cap.
9.-Secs. 27 and 32 (2) of
Cap. 9 considered.
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Th'1
appellant was chairman and
representative of a trading
corporation which had an
agreement with a farming union
whereby the former was to market
the cocoa of the latter. The
union consigned cocoa to another
corporation but before delivery
to it the appellant obtained
possession of the Cocoa, signing
the consignment note and
receipts. He then openly caused
the cocoa to be taken to a store
he had hired. He was convicted
on two counts of stealing.
Held: There
being no evidence that the
appellant converted the cocoa to
his own use appeals allowed.
A. Sawyer
for Appellant.
The
Solicitor-General for the
Respondent.
The following
judgment was delivered:-
KINGDON, C.J.,
NIGERIA.
In this case
the appellant was brought before
the District :Magistrate, Accra,
on the following two charges:-
" 1. Benjamin
:Frank Asamoah on or about the
11th day " of June, 1938, at
Accra in the Accra Magisterial "
District and within the
jurisdiction of this Court, "did
steal seventy bags of cocoa
value £49 the " property of the
Manager of the Trading
Association "of Gold Coast,
contrary to section 270 s.s. (1)
of Cap. 9,
" 2. Benjamin
Frank Asamoah on or about the
13th day " of .June, 19:J8, at
Accra in the Accra Magisterial "
District and within the
jurisdiction of this Court, "
did steal sixty bags cocoa value
£32, the property " of the
"Manag.3r of the Trading
Association of Gold " Coast,
contrary to section 270 S.s. (1)
of Cap. 9."
The
Magistrate found the appellant
guilty on both charges and
sentencered him to eighteen
months imprisonment with hard
labour on each charge, the
sentences to run concurrently.
He gave no reasons for the
finding.
The fact:;
are shortly that the appellant
was chairman and representative:
of the African American Trade
Corporation which had an
agreement with the Ahamansu
:Farmers Union whereby the
corporation was to market the
cocoa of the union. 'the Union's
representative at Kadzebi sent
two consignments of cocoa, one
of seventy bags and one of sixty
bags, to Accra consigned, not to
the appellant or his company,
but to 'the Trading Association
of the Gold Coast, but before
they could be delivered the
appellant took charge of them,
being able so to do, so it is
alleged by the prosecution, by
falsely pretending that he was
the representative of the
consignee. He signed the
consignment notes acknowledging
the receipt of the cocoa and
caused the cocoa to be taken to
the store of one Baksmaty which
he had hired. He made no secret
of this and at once showed where
the cocoa was when enquiries
were started.
The appellant
appealed to the Divisional Court
in which Bruce, J. summarily
dismissed the appeal giving the
following ruling: -
" In this
case the grounds of appeal were
as follows:=. That the judgment
was against the weight of "
evidence.
"2. That the
appellant was not guilty of
stealing, " and
.. 3. 'That
there was no case. made out
against the " accused.
" 'fhe main
point made by appellant's
counsel was that " there was no
evidence of "mens rea"
and that therefore "the accused
could not be convicted of
dishonestly "appropriating the
goods of the Manager of the
Trading " Association of the
Gold Coast. To my mind, there
was " evidence from which the
Magistrate could infer that the
" appellant had a dishonest
intention when he appropriated "
these bags of cocoa to his own
use. Although the appellant
"could easily have got in touch
with the Manager of the "
Trading Association of the Gold
Coast aIHl found out how " the
matter stood he made no attempt
to do so, but coolly "
appropriated the cocoa to his
own use although it is admitted
" that he knew perfectly well
that the cocoa was consigned to
" someone else. Appellant's
counsel argued that the letter "
from the appellant to Owusu
dated the 12th of June, 1938, "
and marked" I " shows that he
had no dishonest intention " in
appropriating the cocoa, but
this letter was put in by " the
defence not by the prosecution,
and it is evident that the "
Magistrate did not believe that
the statements in the letter "
were true. It has been laid down
on many occasions by the " Court
of Criminal Appeal in England
that where there is "evidence on
the record to support the
conviction, the "conviction will
not be interfered with. I
consider that "there is evidence
on the record in this case to
support the .• conviction, and I
am not prepared to interfere
with the " conviction. " I
therefore dismiss this appeal
summarily."
:From this
dismissal the appellant now
appeals to this Court on the
following grounds:-
" (a)
The evidence adduced against the
accused was not " sufficient in
law to support his conviction
and there " was no case made out
against the accused either of "
stealing or of any other
offence.
" (b)
The conviction of the accused
was against the weight " of
evidence."
It will be
seen from the ruling in the
Divisional Court that the judge
took it for granted that it was
proved that the appellant
appropriated the bags of cocoa
to his own use, and then
examined the question of whether
dishonest intention in so
appropriating could properly be
inferred. Apart from the
question of dishonesty, this
Court is of opinion that the
assumption that the appellant
appropriated the cocoa to his
own use was an erroneous one
and a finding to that effect
could not be supported by the
evidence. There is nothing in
the whole case to suggest that
the appellant did anything more
than take charge of the cocoa in
order that his corporation might
market it for the Union. The
evidence is, in the opinion of
this Court, altogether
insufficient to establish the
charge that the appellant stole
the cocoa in the ordinary sense
of the word" stole," that if:!,
to say that he intended to sell
it and put the proceeds into his
own pocket. A man who steals a
purse doesn't give his victim a
signed receipt.
But owing to
definitions in the Criminal Code
the scope of the offence of
stealing extends beyond the
ordinary meaning of the word.
Section 27 reads:-
" A person is
guilty of stealing if he
dishonestly appropriates a thing
of which he is not the owner"
and the
relevant part of section 32 (2)
reads:-
" An appropriation of a thing
...................... means any
"moving,
taking, obtaining, carrying
away, or dealing with " a thing,
with a purpose that some person
may be deprived " of the benefit
of his ownership, or of the
benefit of his right " or
interest in the thing, or in its
value or proceeds, or any " part
thereof."
It is
possible that by calling in the
aid of these provisions the act
of the appellant in taking the
cocoa might be shown to amount
to stealing if it could be shown
that he took the cocoa with the
purpose either that the Ahamansu
Farmers Union should be deprived
of the benefit of part of its
right in the cocoa, e.!?
the
right to decide
who should market· it, or that the
Trading Association of the Gold
Coast should be deprived of the
benefit of its right or interest
in the cocoa, e.g. a right
to take possession of it for the
purpose of marketing, a right
which may have accrued immediately
upon consignment. Such questions
raise nice points of law which it
would only be possible to decide
upon definite findings of fact. 'l'here
are no findings of fact in this
case to act as a foundation for
considering the question of law
invoJ:ved, nor does it appear that
it was ever part of the
prosecution case either in the
Magistrate's Court or in the
Divisional Court that the crime of
stealing could be established by
invoking the aid of the
definitions quoted; except, of
course, so far as it is necessary
to do so in order to establish an
ordinary case of stealing. On the
contrary from the ruling of the
Judge in the Divisional Court it
appears unlikely that these
questions were even considered,
and when the learned
Solicitor-General, who must be
presumed to know what the
prosecution case was, made his
submissions to this Court, he did
not touch upon these points till
the Court raised them itself. The
Court therefore is not prepared to
hold that on the case as presented
to the Magistrate there was an
appropriation
. within the
meaning of section 32 (2) of the
Criminal Code.
For these
reasons the appeal is allowed, the
findings and sentences are
reversed and the appellant is
acquitted and discharged.
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