EXTRACTS FROM JUDGMENT:
Per Azu Crabbe J.A.: “In 1968, the point now raised by learned state attorney was canvassed before a full bench of the court of Appeal in the case of Asare (F.Y.) v The Republic, C.A., 11 October 1968, unreported. There the appellants were charged on various counts of defrauding by false pretences, but the trial judge, exercising his powers under section 157 of he Criminal Procedure Code, 1960 (Act 30), convicted them of stealing. In the course of its judgment the full court said (per Ollennu JA):
‘Learned Director of Public Prosecutions conceded that the learned judge misdirected himself and erred in convicting the appellants of the offence of stealing upon the charge of fraud by false pretences. But while learned counsel for the appellants relying upon the authority of R. v Fisher 16 Cr. App. R. 53 and R. v Olua (1943) 9 WACA. 30, contended that that misdirection and error are fatal to the conviction and that the appellants are entitled to acquittal upon that alone, the learned Director of Public Prosecutions submitted that upon the authority of R v Fisher (supra), and C.O.P. v Bonney [1959] G.L.R. 237, there being no record that the trial court entered acquittal of the appellants on the offence charged, this court can substitute conviction for fraud by false pretences charged for the conviction for stealing, if the evidence supports that offence, which in his view it did.’
And after referring to the powers of the court under sections 156 and 157 of the Criminal Procedure Code and paragraph 14(2) of N.L.C.D. 84, the majority of the court (3-2) concluded the matter as follows:
“…Where a trial court fails to exercise powers given to it under a statute, e.g. sections 156 and 157 to convict of an offence other than the offence charged, but found the ingredients of that alternative offence proved, the Court of Appeal will, by virtue of paragraph 14(2) of N.L.C.D. 84 exercise the powers which the trial court could have exercised. But since, as stated in State v Andoh, Practice Note, [1962] 2 G.L.R. 106, SC., the trial court could only have exercised that discretion where it is satisfied that “the prosecution have failed to prove the charge,” the Court of Appeal will not where the trial court has convicted on the alternative offence, substitute conviction for the offence charged, since the trial court has already exercised that discretion which it could only do, because it found the charge preferred not proved. The trial court ne
