DOORLY, ACTING C.J., FUAD, J. AND QUASHIE-IDUN, ACTING J., GOLD COAST. The appellant was convicted by the District Magistrate Sekondi sitting at Tarkwa of the offence of aiding and abetting one Yaya Zabrama in selling twenty-four bottles of Gordon’s gin and twenty-four bottles of White Horse whisky above the controlled price and was sentenced for that offence to two months’ imprisonment with hard labour.
The appellant appealed to the Divisional Court at Sekondi against his conviction and sentence and his appeal was dismissed. The present appeal is from that dismissal.
For the appellant seven grounds of appeal (a) to (g) were originally filed and by leave of the court an additional ground (h) was filed at the hearing of the appeal. Ground (g) to the effect that the record was imperfect was withdrawn by Mr. Heward-Mills. Ground (e) that the appellant was entitled to the benefit of a reasonable doubt was not argued and it is merely an elementary statement of the criminal law. Grounds (b), (c) and (d) were argued together. These grounds, stated shortly, are to the following effect: - “No evidence to support the charge conviction bad in law, verdict unreasonable having regard to the evidence.”
On these grounds Mr. Heward-Hills put forward the following propositions: -
1. That the charge did not state and there was no evidence of what was the controlled price of Gordon’s gin and White Horse whisky at the date of the alleged sale.
This is true, but in answer Mr. Plange for the Crown pointed to the definition of “ Ordinance “ in section.3 (C) (28) of the Interpretation Ordinance. By that definition “Ordinance” includes “any order regulation, duly made under the authority of an ordinance or of an Act of the Imperial Parliament applied to the Gold Coast.
The appellant was charged with aiding and abetting the breach of Defence Regulation 41 of the Defence Regulations, 1939-1943. The Defence Regulations are regulations made under the Emergency (Defence) Acts, 1939 and 1940 of the Imperial Parliament and those Acts are applied to the Gold Coast.
Regulation 41 empowers the Competent Authority by order to provide for regulating “ the sale of articles and in particular to control prices at which such articles may be bought and sold, in respect of which the Competent Authority may either himself fix maximum prices or authorise specific persons to do so, subject to his directions.” The Director of Supplies is the Competent Authority in this matter and by Order made under these Regulations published in the official Gazette Extraordinary No. 44 of 1943 dated 1st July, 1948, the Competent Authority fixed the maximum price at which all gins including Geneva should be sold at Tarkwa at l1s 3d a bottle and White Horse Whisky at 15s 9d a bottle.
The charge was therefore of aiding and abetting the breach of an Order made under Regulations issued under the authority of Acts of the Imperial Parliament applied to the Gold Coast. Both the order and the regulations are therefore included in the definition of “ordinance”. Although we consider that the charge could with advantage have been set out in greater detail and with clearer reference to the Ordinance and Regulations, we do not find that it was necessary to lead evidence to prove the contents of the Order or of the Regulations. The court was entitled to take judicial notice of both.
2. That there was no evidence that the appellant abetted the sale of 24 bottles of Gordon’s gin for £18 6s 0d and 21, bottles of White Horse whisky for £26 6s 0d or at all.
Actually the appellant was not so charged. He was charged merely with aiding and abetting “one Yaya Zabrama in the commission of an offence to wit selling Gordon Gin and White Horse Whisky above the control price.” The charge is lacking in detail, though there can be no question that the appellant had notice of the nature of the charge against him as he was charged at the same time with Yaya Zabrama who was charged with selling “24 bottles of Gordon gin for £18 6s 0d and 24 bottles White Horse Whisky for £26 8s 0d.”
The evidence on this matter is to the following effect: One Uwakara stated that he agreed to buy from the appellant whisky and gin on the 28th September, at the controlled price. On that day the witness went to Tarkwa to the United Africa Company cash-store of which appellant was storekeeper. The first accused Yaya, who is a store-boy of United Africa Company in that store, gave the witness a piece of paper on which was written the figures
£ s d “18 6 0 26 8 0 ------------- 44 14 0”.
This paper is Exhibit A. Yaya also made a statement to the witness which is not evidence against the appellant. Yaya then showed the witness “ this drink-24 whisky and 24 gin " as it is recorded. The witness paid £44 14s 0d to Yaya and Yay a called a carrier. This carrier “Was Mama Sokoto who also states that Yaya called him to the cash-store and he carried “ this box” to the Railway station for Uwakara. At the station a policeman arrested Uwakara. What happened to the paper Exhibit A is not clear. The witness Uwakara says it was given him by Yaya and does not mention the matter further. A policeman, Apedua, is recorded as stating that on 28th September he seized Exhibit A from “the accused. “Now the accused were Yaya and the appellant. There is nothing to show that Exhibit A was in the possession of the appellant at any time that day and Yaya denies all knowledge of it. Clearly then there is a difficulty as between the evidence of Uwakara and of Apedua on this matter and the learned Judge in first appeal has been criticised for stating in his reasons for dismissing the appeal that the paper was found upon Uwakara. It seems to the Court that the question of the source from which the police detained Exhibit A is not proved by the evidence, but that does not appear to be a vital point in the case. There is no doubt that the police obtained Exhibit A in the course of the invetigation of this matter and there is Uwakara’s evidence that he obtained the paper from Yaya at the time when he received the whisky and gin from Yaya.
On receipt of that paper Uwakara testifies that he paid £44 14s 0d to Yaya.
From this evidence the prosecution inferred that £18 6s 0d were paid by Uwakara in respect of gin and £26 8s 0d in respect of whisky. This may be a reasonable inference to draw regard being had to the contents of Exhibit A and the relative prices of whisky and gin, but it is not one that can be said to be proved by the evidence beyond reasonable doubt. It is to be noted again that no figures were mentioned in the charge against the appellant; but allowing (as it is right that we should) that the details set out in the charges against Yaya were meant to apply to the charge against appellant we are of opinion that the charge in that form was not supported by the evidence.
The first charge should rather have laid that Yaya sold 24 bottles of Gordon’s gin and 24 bottles of White Horse whisky to Uwakara for £44 14s 0d a price in excess of the maximum controlled price for those articles.
There is here a variance between the charge and the evidence, but this is a variance which by section 162 of the Criminal Procedure Code is not material and is therefore not enough to invalidate the conviction had on the charge. In any event it was the charge against Yaya that is the subject of this criticism.
As to the question whether there was evidence on which the trial Magistrate was entitled to find that Yaya sold 48 bottles to Uwakara for £44 14s 0d (the matter of accomplice evidence will be dismissed later), there was the evidence of Kybiades, United Africa Company storekeeper at Sekondi that Uwakara had asked him to help him to get spirits, that he had asked appellant if he had any thing for Uwakara, that Uwakara had been to see him one day and that he had sent a telegram to appellant.
Uwakara himself states that he paid £44 14s 0d to Yaya after having agreed to buy spirits from appellant; he says however that the agreement was for purchase at controlled prices and that the surplus over and above the controlled price was to be kept for the following month.
The Magistrate believed Uwakara in every respect save that he refused to believe that the payment of £44 14s 0d was not the purchase price of the gin and whisky there and then delivered by Yaya and he rejected Uwakara’s story that the balance was to remain as a deposit for the following month.
It has been argued that a trial Court is not at liberty to believe I one portion of a prosecution witnesss evidence and to reject another portion. The Court does not accept _that proposition as of universal application. A trial Court is not justified in arbitrarily accepting as-true some parts of the evidence of a witness and rejecting others, but Uwakara was an accomplice and might well perjure himself in respect of the price agreed in order not to incriminate himself. In fact (provided that he had not been convicted) he could have refused to answer ‘any question as to the price he paid if it was likely to incriminate him. There was no such reason why he should perjure himself in respect of his evidence as to the payment of £44 14s 0d, the receipt of 48 bottles and the receipt of Exhibit A. His explanation that he paid £44 14s 0d because it was the figure which appeared on Exhibit A, but that the sale was at the controlled price and the surplus was for a deposit appears to the Court to be unworthy of credence and contradicted by the surrounding circumstances of the case and the Court is of opinion that the Magistrate was justified in rejecting that portion of Uwakars’ evidence,
In addition to this evidence there is that of James Kofi Essuman, a clerk in the United Africa Company Central store. He stated that he knew the handwriting of the appellant in the course of business and testified that he was sure that the writing on Exhibit A was that of the appellant.
It is a question for consideration whether a person is likely to be able to identify the writing consisting only of figures of another person, but the relation between the appellant and Essuman was such that Essuman in the course of business would see especially figures written by the appellant and see them frequently. This evidence of handwriting may not be such as to be conclusive taken by itself, but it is evidence which was not shaken but confirmed in cross-examination and in face of it the appellant did not offer even a bare denial save in so far as his plea of Not Guilty can be regarded as such.
The Court considers that there was evidence on which the Magistrate could find that Exhibit A was in the handwriting of the appellant.
Further points made .for the appellant on the evidence were :-(1) that he was not present when Uwakara says he received the bottles and paid the money; (2) that Yaya does not sell drinks downstairs, but cloth up above; (3) that 10 bottles of whisky and 12 of gin were the only sales entered in the United Africa Company books for 28th September and there was no entry of the sale of 48 bottles of gin and whisky and (4) that Essuman did not see 48 bottles leave the store. All these matters may help or damage the appellant according as it is accepted or not that Uwakara received 48 bottles of spirits that morning and paid £44 14s 0d and that appellant was a party to the transaction. If these matters are believed, the absence of the appellant while ,an unlawful operation is being put through may well count against him, similarly the fact that the boy who ordinarily sells drinks was not employed and also the absence of any entry in the books of the sale of 48 bottles of gin and whisky that day, as the learned Divisional Court Judge found. The failure of Essuman to see the transaction, if it occurred, tends to show a certain amount of secrecy about the matter. To these may be the exiguous and unrevealing nature of the figures appearing on Exhibit A.
The next ground argued for the appellant was ground (h). this consisted of three charges of misdirection against the Magistrate :- (1) that he admitted in evidence a conversation alleged to have taken place between Uwakara and Yaya which was not evidence against the appellant. The portion of the evidence complained of is this: ”He (Yaya) said his master said I must pay that money.”
Now Yaya was tried jointly with the appellant and what said to Uwakara was admissible in evidence against him. This piece of evidence cannot therefore be said to be inadmissible. The real complaint is that the Magistrate made no note to show that he realise that this evidence was not evidence against the appellant.
The Court takes note of the dictum of this Court in the appeal of Ajani ors. v. Rex, (3. W .A. C. 3) that if no such note is made “the Court might well feel itself compelled to quash the conviction, even though there Were sufficient admissible evidence to support it.” In Ajani, however, the Court found no sufficient admissible evidence to support the conviction, so that the statement of the Court quoted above was no more than obiter. In Okpalu and ors. v. Rex (2 W.A.C.A. 345) this Court held that the admission of hearsay does not justify the quashing of a conviction if there is other admissible and credible evidence sufficient to support the conviction. In the opinion of this Court each case must be considered on its merits. In the present case the evidence at this point (omitting that which was inadmissible against the appellant) reads as follows :- “I saw Yaya. He gave me a paper “A” and showed me this drink- 24 whisky and 24 gin. I paid £44 148 0d and Yaya called a carrier.”
In ground h (2), the admission of Exhibit A as evidence is objected to. The Court does not accede to that objection. Exhibit A was admissible against Yaya and later there was evidence that the figures written thereon were in the handwriting of the appellant, that made it evidence against the appellant also.
It is not certain that the Magistrate used the inadmissible evidence against appellant in coming to his conclusion that appellant was guilty.
In the opinion of the Court there was sufficient evidence against the appellant (uncontradicted by him) apart from the inadmissible evidence to justify the verdict of the Magistrate.
Ground h (3) is to the effect that the Magistrate failed to direct himself that Uwakara was an accomplice and that it was dangerous to convict on his uncorroborated evidence.
It is true that nowhere in the record is there any sign that the Magistrate warned himself that Uwakara was an accomplice, but the fact was sufficiently obvious and the Court will not do the Magistrate the injustice of assuming that he did not realise this fact.
Apart from that, the Court finds that there was evidence tending to corroborate the evidences of Weaker on material matters. The evidence of Mama Sokoto, of Es8uman and of Keyboarded is all corroborative of Uwakara's evidence on material particulars.
In the view of the Court ground (h.) of appeal fails.
Ground (a) is to the effect that the charge was bad in law and it was supported in argument by pointing to the fact that the charge against Yaya was divided into two---one in respect of selling gin and the other in respect of selling whisky-while the one charge against the appellant was in respect of aiding and abetting Yaya in respect of both. It was further pointed out that the Magistrate and convicted Yaya on two counts.
In convicting Yaya as he did, the Court is of opinion that the Magistrate was wrong and had cumulative sentences been imposed one of the sentences would have been unjustified.
On the other hand it is to be observed that the charge against Yaya is numbered (1) and that against appellant is numbered (2), Furthermore only two pleas are recorded-the one of Yaya and the other of appellant.
In the view of the Court there was only one charge against Yaya which was incorrectly broken up for purposes of unnecessary detail, but the Court does not consider that that irregularity would affect the conviction of Yaya and it certainly does not affect the conviction of appellant.
The Court is of opinion on the evidence taken as a whole that a case was made out against the appellant sufficient to call upon him for a defence. He offered none, his counsel contenting himself with the statement that there was no cage against his client and that the appellant was not there at the time of the sale.
The appeal against conviction is accordingly dismissed.
As to the appeal against sentence the Court is satisfied that a serious breach of the Defence regulations was committed by the appellant and that his position aggravated the seriousness of the offence. It does not consider the sentence excessive.
The appeal against sentence is therefore dismissed.
Although the Court is in favour of cases being tried with reasonable expedition, it has to be stated that the record of the evidence would have been clearer had there been a less meager note than was made by the trial Magistrate.