COMMISSIONER OF POLICE V. THEODORE ASARE

President :-

In this case the Appellant was convicted in the Court of the District Magistrate, Swedru of an offence contrary to section 4 (1) of the Survey Ordinance (Cap. Ill) and fined £20 which he has paid.

The particulars of the alleged offence were stated on the charge as follows:-

“Theodore Asare, clerk of Agona Duakwa in or during the month of March, 1943, at Budu Atta in the Swedru Magisterial District and within the jurisdiction of this Court being a person other than an official surveyor or a licensed surveyor or a public officer in the course of your duties as such, did survey a certain land, to wit: Kotokum, lying at Budu Atta for the purpose of preparing the plan of such land for attachment of transfer.”

It is to be observed that the particulars do not set out, as they should, the particular transfer to which the plan was to be attached.

In fact no evidence was given that the preparation of any document requiring the attachment of a plan was in contemplation and there was no evidence in proof of one of the matters which the prosecution had to prove in order to justify a conviction, viz. that the preparation of the plan was for the purpose of attachment to an instrument of conveyance, leases, assignment, charge or

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transfer. “Instead the prosecution asks that the inference be drawn that that was the purpose for which the plan was prepared. The learned Judge in the Supreme Court, to which the Appellant appealed against his conviction, upheld this submission on the part of the prosecution saying :-

“There is ample evidence to prove that document required for purpose set out in section 4 (1) of Cap. 1ll, e.g. attachment to document of title. The inference as to purpose drawn by the Magistrate can be inferred from the evidence as a whole and I am unable to interfere with his discretion in this matter.”

We are unable to agree as to this. As we have already said there was no proof whatever upon this point, although the man who might have supplied the necessary evidence, if it were available, viz. the purchaser Kwao Buawumah, was a witness for the , prosecution. It is significant that he was not apparently asked the all-important question as to purpose for which he required a f plan. An inference adverse to an accused person and on which his guilt or otherwise depends can only be drawn if it is inescapable; here this is far from being the case.

For these reasons the appeal is allowed, the conviction and sentence are quashed and it is directed that a judgment and verdict of acquittal be entered. The fine must be refunded.