Commissioner of Police V. Kwaku Klu & Ors (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Charge of unlawful assembly contra. section 346 Cap 29 but conviction of Riot when not so charged—Powers of sections 319 and 32.5 of cap. 10 invoked by Appeal Court.

Held: Findings altered; sentences maintained.

There is no need to set out the facts.

A. 1. Ainley for Crown.

T. Hutton-Mills for Appellants.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST ND YATES, J.

In this case fifty-eight persons were charged in the Court of the Magistrate held at Krachi ” for that they on the 24th day of

October, 1937, at Krachikrom ** did unlaw-
‘ fully assemble together with a purpose of committing a riot

contrary to section 346, Cap. 29 “. The Magistrate on the 1st November, 1937, convicted fifty-four out of the fifty-eight and adjourned the case of the other four till next day. The ultimate fate of these four does not appear in the record before us, but

Ire are informed by counsel that they were acquitted and disharged. But the whole fifty-eight seem to have appealed against he conviction to the Supreme Court as though they were all ^,-onvieted. The Supreme Court dismissed all the appeals. From ‘his decision all the fifty-eight have appealed to this Court. The sppeals of the four men, viz., Yaw Okunyi, Yaw Donkor, Kwesi Djatto and Kwadjo Mparah, against whom there is no record of a conviction are struck out. In the case of the other fifty-four men them is no substance whatever in their appeals, but there is an error in the form of the judgment which requires to be corrected.

At the opening of his judgment the learned Magistrate says :—

” With regard to the fifty-eight accused before the Court,

” excepting Yaw Okunyi, Yaw Donkor, Kwesi Djatto

” and Kwadjo Mprah, I am satisfied that the charge

” is proved “.

Bt when it comes to recording an actual finding he says referring to the remaining fifty-four only) :—

” In doing so, their action constituted an act of riot, in ” the commission of which I find them all guilty, ” and order that each shall pay a fine of £5 or three ” months imprisonment in lieu thereof “.

This on the face of it is a conviction for ” riot “, an offence with

sioner of which the appellants were not charged.

Police

v.We, therefore, acting under the powers conferred upon us

Kwaku^4. by the combined effect of sections 319 and 325 of the Criminal

Kint Procedure Ordinance (Cap. 10), alter the finding to one of
& ors.” Guilty of the offence charged ” in the case of each of the

;appellants, and, in each case, maintain the sentence.