COMMISSIONER OF POLICE V. S. K. KEMAVOR AND OTHERS

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 called 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. v. 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 accuaed alters hie plea to one “of not guilty and asks to stand his trial. Similar application by No. “4 aroused 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.

^{*Page 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 him “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 accomplices, in which case their evidence requires “corroboration.

“6. That the verdict is unreasonable having regard to the “circumstances 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 “Dempster 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 grounds 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, n., Rankin v. Potter, 42 “L.J .C. p. 200; L.R. 6 H.L. 139; vh. Park, ch. 9).

“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. “help himself to the car and deprive ‘A’ of the ownership. “I am not satisfied that the cover or tubes have been “abandoned’ in the usual sense of that word or that they “had no owner at the time of the alleged larceny. On the JJ. “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 did 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. Whiteheatl, 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 of

“justice when it had acquiesced in the procedure. “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 and “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 Rex . 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 by 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 undergoing 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 disregard 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 disregarded amounts to a misdirection in law. The conviction as a result cannot be allowed to stand. We have been asked by counsel for 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