REGINA v. ZONYRA & ORS

The four appellants in this matter complained that they had been wrongly convicted before Scott J of conspiracy to commit arson, and (so far as concerned all the appellants except the first) of arson contrary to section 271 of the Criminal Code, in that they intentionally and unlawfully caused the dwelling house of Gregor Amoaku to be set on fire.

At the outset of the hearing, Mr. Crabbe, Senior Crown Counsel, acknowledged that he was unable to support the conviction in the case of the first appellant because of lack of evidence. With this view we entirely agreed, and we accordingly allowed the appeal of this appellant, quashed the conviction, substituted a verdict of acquittal and ordered him to be discharged forthwith.

The evidence against the remaining three appellants was that they were seen together both before and after the burning of the house. At the time the house took fire the second appellant was seen to light the thatch with a match. The third appellant was seen using burning thatch for the same purpose. The fourth appellant was seen standing by; how near, the evidence does not disclose. He was seen to be doing nothing.

The first ground of appeal argued on behalf of these appellants by Mr. Apaloo was that "there being no proof that the house alleged to be set on fire was a dwelling house in law the learned Judge was wrong in not directing the jury to return a formal verdict of not guilty in respect of Count 2 (i.e. arson). Counsel drew attention to the fact that Count 2 as originally framed contained words appropriate to a charge contrary to section 272 of the Criminal Code, which is intended for an offence of arson in respect of a building other than a dwelling house. The words in question "with intent to destroy or materially damage" were expunged from the count at the instance of prosecuting counsel (by amendment on the order of the Court) before the trial began. Mr. Apaloo therefore contended that as the charge was exclusively under section 271 of the Criminal Code, proof that the building in question was a dwelling house within the meaning of the definition contained in section 286 of the Code was essential to establish guilt on such a charge.

[p.32]

(His lordship read the definition of "dwelling house," and proceeded):

It must be said that there was no direct evidence that the building in question was ordinarily used as a sleeping place, although the evidence was clear that it was a building containing all the possessions of the o