ASIMAKU v. THE STATE

JUDGMENT OF KORANTENG-ADDOW J.

The appellant herein was charged with the offence of stealing and tried and convicted at the Circuit Court, Takoradi, on 29 September 1966. He was sentenced to a term of eighteen months' imprisonment with hard labour. It is from that conviction that he has appealed to this court. He was charged together with one Thomas Quacoo, the second accused. The said Thomas Quacoo was charged on two counts with forgery and aiding and abetting the stealing with which the appellant was charged.

The facts of the case are that the appellant, a driver of a haulage company (C.H.C.), was despatched from Kumasi by his company, as carriers, to convey a load of timber to A. Lang & Co. at Takoradi. The load consisted of sawn boards valued at ¢751.87 (£G313 5s. 7d.). Before reaching Takoradi the appellant diverted to a village on the way called Juaben and sold the timber to one Kwame Bafoe, the fourth prosecution witness.

The evidence for the prosecution has it that after the sale the appellant sent a bearer to convey to the second accused, the receiving clerk at A. Lang & Co., the sum of ¢48.00 as his share of the proceeds of sale and to ask him to sign the waybills covering the transaction to make it appear as if the timber had been duly delivered. The second accused signed the waybills as arranged even though he asserted that he was deceived in doing so. It was when the Kumasi timber dealers submitted their bill for the timber that the theft was discovered. The second accused pleaded guilty to the charges of [p.151] forgery and aiding and abetting and was convicted on his pleas. The appellant however pleaded not guilty but was tried and convicted.

The defence of the appellant was that he met one of the drivers in their establishment, that is C.H.C., on the way and that the driver conveyed a message to him from their headquarters in Kumasi asking him to deliver the goods to one Kwame Bafoe, the fourth prosecution witness. He argued that this sort of order to divert is sometimes made to the drivers in their establishment. He denied collecting the purchase price from Kwame Bafoe the fourth prosecution witness, even though there is some evidence that he did. There is evidence that at the point of unloading it was the appellant who employed some labourers to unload and that he paid them himself. The receiving clerk, the second accused, gave evidence for the prosecution and so also did the messenger Owiredu, the eighth prosecution witness, who co