ARMAH AND OTHERS v. THE STATE

JUDGMENT OF SARKODEE-ADOO, J.S.C.

Sarkodee-Adoo J.S.C. delivered the judgment of the court. This is an appeal from convictions before Charles, J. sitting with the aid of assessors at the Assizes holden at Accra on the 6th January, 1960. The appellants, the first and second of whom are husband and wife, were all jointly charged on two counts of housebreaking and stealing from the shop of Messrs. Swiss African Trading Company, Limited, Accra, (hereinafter referred to as S.A.T. Co. Ltd.), goods to the total value of £G1, 549 6s. 7d. the property of the said company.

The facts briefly put are that during the night of the 29th May, 1959, the shop of S.A.T. Co. Ltd., in Knutsford Avenue, Accra, was broken into and goods stolen therefrom. Within the space of a few hours thereafter the appellants were found in possession of a large quantity of goods very similar to those stolen from the shop, and gave no reasonable [p.138] explanation as to how they came by them save a fantastic story that they were found at Takoradi.

The appeal principally involves a consideration of substantial irregularities in the conduct of the trial. The record of proceedings shows that at the close of the case for the prosecution Mr. Heward-Mills, counsel for the first and second appellants, submitted as follows:

“There is no sufficient case made out against them for the court to call on them to enter upon their defence. There is no evidence to show that the goods tendered in evidence belong to S.A.T. Co. Ltd., or form part of the property alleged to have been stolen from S.A.T. Co. Ltd. The only evidence adduced is that the suitings and other materials are similar to those alleged to have been stolen from S.A.T. Co. Ltd. There are no marks of identification to show that the goods produced in court are the property of S.A.T. Co. Ltd. In law nobody can be convicted of stealing any property unless it is first established that the property mentioned in the indictment had been stolen.

At this stage, the learned trial judge informed Mr. Heward-Mills that the court was of opinion that the prosecution had failed to identify those goods as the property S.A.T. Co. Ltd. In doing so the learned trial judge appears to have completely lost sight of, and thereby failed to consider, the definition of stealing as provided by section 27 of the Criminal Code1 as follows: “A person is guilty of stealing if he dishonestly appropriates a thing of which he is not the owner.” We must point out that ownersh