Ref.: Anatomy Act, 1963, S. 2
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The appellant together with two others was charged with two counts, (1) conspiracy to commit a crime to wit: stealing and (2) stealing a skull of a human being from a grave of one deceased Ama Akowa. The three persons were charged jointly and appeared before the district magistrate grade I, sitting at Cape Coast on 23 January 1967. When the charges were read, the appellant pleaded guilty to the count of conspiracy. The two others pleaded not guilty to both counts. After the facts of the case had been narrated by the prosecuting officer, the trial magistrate wrote as follows:

“By court:
I am satisfied that the removal of a dead body or part of it which has been interred is a thing which has ownership vested in it, bearing in mind the set-up of our African society. Sentence: One day’s imprisonment and a fine of ¢120.00 or six months’ imprisonment with hard labour.”

As the appellant pleaded guilty, the trial magistrate, after hearing the facts passed sentence., The appellant was not represented by counsel at the trial in the court below although the two other persons charged jointly with him were represented by counsel.

Section 324 (3) of the Criminal Procedure Code, 1960 (Act 30), provides: “No appeal shall be entertained against conviction by an accused person who has pleaded guilty and has been convicted on his plea.” It would therefore follow that the appeal could not be entertained by the court. Nevertheless the grounds of appeal as filed made it necessary for this court to entertain the appeal. The grounds filed were:
“(1) The conviction cannot be supported having regard to the facts adduced before the court.
(2) Although the accused pleaded guilty to the charge, there was no criminal offence before the court to which the accused could have been called upon to plead.
(3) The sentence is harsh and excessive.”

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The real interesting legal point in the appeal was whether a human skull was capable of being stolen from a grave in which the corpse was buried. Learned counsel for the appellant referred to Archbold’s Criminal Pleadings, Evidence and Practice (35th ed.), para. 1529 at p. 626 and argued that at common law, the dead body of a human being was not capable of being stolen. He argued further that once a dead body had been buried then it must be deemed to have been abandoned and it was therefore difficult to understand why the learned magistrate said that ownership was vested in the dead body in view of the set-up of our African society.
The learned assistant state attorney in answer, submitted that according to our Criminal Code, 1960 (Act 29), a human skull was a thing capable of being stolen and he referred to section 123 of the Criminal Code which reads:
“123. (1) Any of the crimes of stealing, fraudulent breach of trust, robbery, extortion, or defrauding by false pretences can be committed in respect of anything, whether living or dead, and whether fixed to the soil or to any building or fixture, or not so fixed, and whether the thing be a mineral or water, or gas, or electricity, or of any other nature, and whether the value thereof be intrinsic or for purpose of evidence, or be of value only for a particular purpose or to a particular person, and whether the value thereof do or do not amount to the value of the lowest denomination of coin; and any document shall be deemed to be of some value, whether it be complete or incomplete, and whether or not it be satisfied, exhausted, or cancelled. (2) In any proceedings in respect of any of the crimes mentioned in subsection (1) it shall not be necessary to prove ownership or value.”

The learned assistant state attorney also referred to para. 3904 of Archbold where it is stated that as there is no property in a corpse, it is not therefore the subject of larceny although the executors have a right to its possession. But larceny may be committed with respect to coffins, shrouds or property interred with the corpse. He submitted further that the skull could not be estimated in terms of money and as it was not necessary to prove ownership, the appellant was correctly sentenced. The learned counsel for the appellant replied that nobody had any interest in the human skull removed from the grave.

The facts of the case as narrated by the prosecuting officer were that on 8 January 1967, at twelve noon, one Kweku Arhin who lives at Amosima heard an unusual noise in the cemetery. He went there to find what was happening and he met the present appellant by a

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dug-up grave. As a result of what the appellant told him, the other persons were arrested. An exhumation order was made and it was found that the skull of the buried body of Ama Akowa was missing. A search was conducted but the skull was not found. The appellant admitted having stolen it.
The only legal point I have to determine in this appeal is whether a human skull buried in a grave is capable of being stolen. Before I do so, I wish to bear in mind section 8 of our Criminal Code which provides: “No person shall be liable to punishment by the common law for any act.” Without hesitation, I take the common law referred to as the English common law. I shall therefore confine myself to the various sections in the Criminal Code relating to the offence of stealing. Section 125 of the Criminal Code provides: “A person steals if he dishonestly appropriates a thing of which he is not the owner.” Then section 120 (2) reads:
“It is not necessary, in order to constitute a dishonest appropriation of a thing, that the accused person should know who is the owner of the thing, but it suffices if he has reason to know or believe that some other person, whether certain or uncertain, is interested therein or entitled thereto, whether as owner in his own right, or by operation of law, or in any other manner; and any person so interested in or entitled to a thing is an owner thereof for all the purposes of the provisions of this Code relating to criminal misappropriations and frauds.”

Another relevant section is section 122 (2) which reads:
“An appropriation of a thing in any other case means any moving, taking, obtaining, carrying away, or dealing with a thing, with the intent that some person may be deprived of the benefit of his ownership, or of the benefit of his right or interest in the thing, or in its value or proceeds, or any part thereof.”

It is significant to note that the Ghana Criminal Code has very wide provisions relating to stealing unlike the narrow provisions of the English Larceny Act, 1916 (6 & 7 Geo. 5, c. 50). In Ghana, it seems to me that-any person who has an interest in a thing is deemed to be the owner of the thing whose value need not be proved. This is a very wide definition indeed.
Russell on Crime (12th ed.), Vol. 2, p. 889 has this passage:

“It was, however, always necessary at common law to establish that the owner either had possession or had previously had such possession as would have enabled him to maintain trespass. Thus, there could be no larceny of things which were not the subject of ownership, such as the open air, the water

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in the sea, a human corpse; nor yet of things which at the moment are not owned, such as abandoned things and wild creatures in their natural liberty.”

The only case cited in both Archbold and Russell on human corpses which is available in the court library is R. v. Haynes (1614) 12 Co. Rep. 113, but that case dealt with the stealing of the winding sheets in which the dead body was wrapped. The note of the case however, goes further and states:
“If apparel be put upon a boy, this is a gift in the law, for the boy hath capacity to take it; (a) but a dead body being but a lump of earth hath no capacity: also, it is no gift to the person, but bestowed on the body for the reverence towards it, to express the hope of resurrection.”

It is therefore fascinating to note that as far back as 1614 in England, a dead body was regarded as “a lump of earth.” The learned trial magistrate in the present case, ruled that ownership of the skull was vested in the dead body of Ama Akowa bearing in mind the set-up of our African society. It is difficult to understand how the learned trial magistrate can attribute ownership of the skull to the person who is dead. There is no doubt that during her lifetime, Ama Akowa was the owner of her skull but it seems to me that on her death, her dead body went into the legal possession of her family until her burial, because even the Anatomy Act, 1963 (Act 280), in section 2 refers to “The executor or any other person having lawful possession of the body of a deceased individual.” This means that on a person’s death he has no longer control or possession of his body.

Learned counsel for the appellant has argued that once the dead body has been buried, the family abandons the body and the body becomes ownerless. There is no doubt that this argument is akin to the principle laid down in The Crystal [1894] A.C. 508, H.L. to the effect that an owner who abandons a thing, ceases to be the owner.

Learned counsel for the appellant equated the dead remains with refuse or rubbish and cited the case of Williams v. Phillips (1957) 41 Cr.App.R. 5, D.C. where dustmen employed by a corporation were convicted by justices of stealing goods from dustbins collected in the course of their duties and selling the things to dealers and sharing profits. The Divisional Court held that refuse put in a dustbin was not abandoned; it was the householders’ property until it was taken away when it became the corporation’s property. The court held that the men knew that they were not allowed to take anything from the refuse and the convictions were correct.

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If this case is relevant, then it may be argued that as soon as dead body is deposited in the grave by the relatives, it is abandoned as refuse and as such the local authority which owns the burial ground then becomes owner not only of the corpse in the grave, but also the coffin and all the expensive accoutrements which accompany the dead body.

I do not think such an argument is tenable. Human beings do not treat dead human bodies in the same manner and fashion as they do other personal items which they throw away as unwanted and spent. Those relatives who cremate their dead in some cases preserve the ashes. It is not unimaginable to suppose that if human beings had their own way, they would keep the skeletons of their dead in their wardrobes but the hideousness of these skeletons and the attendant hallucinations and nightmares which will torment the inmates of the house, forbid the retention of these skeletons. Moreover, some relatives, who can afford, do embalm their dead and preserve them for generations. In America, a new scientific system of freezing dead bodies to ensure a possible revival in future has been invented and it is now lucrative business. With all these practices and notions in mind, I do not think human beings treat their dead as refuse.

The question I have to ask is whether when Ama Akowa’s body was buried, her family abandoned her corpse so as to divest them of any scintilla of ownership or possession or interest in the mortal remains. I am convinced that but for the Registration of Births and Deaths Act, 1965 (Act 301), the relatives could have buried her even in the family house as was formerly done in the olden days.

Section 24 of Act 301 provides that: “It shall not be lawful to bury a dead body elsewhere than in a burial ground authorised under this Part, except with the permission of the local authority.” Section 27 (1) also provides that: “The Minister may order or authorise the exhumation of any corpse and also its removal.” Then subsection (3) of section 27 makes it clear that “Subject to the provisions of the Coroners Act, 1960 (Act 18) no person shall exhume or after burial remove any corpse except under subsection (1) of this section.”

It follows that nobody may remove a corpse from a grave without the permission of the Minister. It therefore seems to me that the appointed Minister is interested to see that these buried corpses are not removed. When a person dies, his relatives if they can afford, erect a tombstone on the grave and go to the grave with periodic presentation of flowers and at times they pour libation. This is a clear indication that the relatives have not totally abandoned the remains, but they are compelled by the State for sanitation purposes

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to keep the remains in a specified area. It is true that when Christians bury their dead, we hear the usual resonances, “Earth to earth, dust to dust, ashes to ashes,” but we also sing the hymn, “Father, in Thy gracious keeping, leave we now Thy servant sleeping.” I do not know what the Mohammedans do, but I have seen ‘ on several occasions, when I was young, that they do not bury their dead in a coffin, nevertheless, their prayers commit the dead to the protection of Allah. Pagans, atheists and agnostics perhaps also do not abandon their dead, but they maintain the graves of their dead. So far as Ghana customary law is concerned, there appears to be abundant evidence from the multiplicity of funeral rituals that the relatives do not abandon the dead.

I remember that when the old Tema township was evacuated to enable the corporation to develop the area the old cemetery had to be cleared. The dead bodies were exhumed from their respective graves in the presence of the medical officer and relatives took their dead and re-buried them. Was this not an indication that the State appreciated that the families of these deceased had an interest in -their mortal remains?

There is no doubt that the appellant could have been prosecuted under the Registration of Births and Deaths Act, 1965 (Act 301), subsection (4) of section 27 of which reads:
“Any person contravening any of the provisions of this section [that is no person shall exhume without authorisation] shall be guilty of an offence and shall be liable to a fine, not exceeding two hundred and fifty cedis or to imprisonment for a term not exceeding one year, or to both.”

It is obvious that the penalties are less severe for offences under section 27 of Act 301 than for the offence of stealing under the Criminal Code, which carries a maximum imprisonment of 25 years. I am of the opinion that notwithstanding what the English common law says that a corpse is not stealable, sections 122 (2) and 123 of the Criminal Code are couched in such wide terms as to make a’ an skull a thing capable of being stolen because the relatives of the deceased, are “interested in the corpse” of which the skull forms part. The local authority has also an interest in the corpse because it is buried in its ground and no exhumation can be allowed without the Minister’s authority.

I am therefore unable to subscribe to the learned trial magistrate’s view that ownership of the skull is vested fix the dead body. Such a doctrine is clearly hedged with metaphysics and perhaps steeped in Rosicrucian mysteries. Its substance will give an opportunity to

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the ingenuity of advocates and to the humanity of judges to develop fictions in law, and distinctions of fact, which may be highly artificial.

The appeal is therefore dismissed.

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