Republic Vrs Osei [2023] GHACC 420 (25 May 2023)

IN THE CIRCUIT COURT HELD AT TEPA ON THURSDAY THE 25TH DAY OF MAY 2023 BEFORE HER LADYSHIP JUSTICE GWENDOLYN MILLICENT OWUSU, A JUSTICE OF THE HIGH COURT SITTING AS AN ADDITIONAL CIRCUIT JUDGE 28/2019 THE REPUBLIC VRS CHARLES OSEI PROSECUTION: CHIEF INSPECTOR CHARLES AGOVI ACCUSED PERSON SELF REPRESENTING JUDGMENT Accused has been arraigned before the court on a charge of stealing contrary to section 124 (1) of the Criminal Offences Act, 1960 (Act 29). The particulars of the offence are that, on November 30, 2018, at Tepa, in Tepa District within the jurisdiction of this court, you stole cash the sum of seventy-one thousand, four hundred and thirty-five cedis (GHC 71,435.00), the property of one Stephen Assane. The brief facts of prosecution’s case are that, Complainant Stephen Assane is the Goaso Sector Manager for Transroyal Ghana Limited, a cocoa purchasing company and lives at Kumasi Abuakwa. Accused Charles Osei is the Tepa District Manager for the company and lives at Tepa Beposo. Both have been in business for about a year now. On the 30th day of November 2018, complainant issued a cheque with a face value of seventy-one thousand, four hundred and thirty-five Ghana cedis (GH₵71,435.00) to the accused person to be cashed for him at G. C. B Tepa branch, since the accused person has a bank account there in order for him to get a required fund to operate his business. This was because the bank was rationing the little available funds at their disposal. Days later, the accused went to cash the cheque and has since went into hiding. A week later, the accused person called the complainant on phone and pleaded with him to allow him supply him with dried cocoa beans equivalent to the complainant’s money but failed. On the 20th day of December 2018, the complainant met the accused person in Tepa Township. The accused person upon seeing complainant bolted leaving behind his black itel 556 plus mobile phone. Complainant picked same and lodged a complaint to the police. Accused person was arrested and cautioned to that effect. In his investigation caution statement, he admitted having received the cheque from the complainant and cashed same after which he distributed the money to his purchasing clerks to buy dried cocoa beans for him. The accused person later voluntary, before an independent witness, gave police further investigation caution statement in which he stated that he used GH₵ 47,500.00 out of the money to settle a loan he took from Tepaman rural bank. However a cash of GH₵9,000 was retrieved from accused person. After police investigations, accused person was charged with the offence as stated on the charge sheet and brought before this honourable court. BURDEN OF PROOF The prosecution had the burden to prove that the accused person had the intent to cause harm, which harm was unlawful. This is so because in our criminal law jurisprudence, it is the prosecution which carries the burden of proof, the standard of which is proof beyond reasonable doubt as reflected in the statement of Lord Sankey in Woolmington v. DPP [1935] UKHL 1 that “no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained”. In Commissioner Of Police v. Antwi (1961) GLR 408, Korsah C. J. stated that “the fundamental principles underlying the rule of law are that the burden of proofs remains throughout on the prosecution and the evidential burden shifts to the accused only if at the end of the case for the prosecution an explanation of circumstances peculiarly within the knowledge of the accused is called for. The accused is not required to prove anything; if he can merely raise a reasonable doubt as to his guilt, he must be acquitted” Any doubt in the prosecution’s case should inure to the benefit of the accused person. Section 11(2), (3) and (4) of the Evidence Act refers to the burden on prosecution to prove the guilt of the accused person beyond reasonable doubt. Section 11(2) states that “in a criminal action the burden of producing evidence when it is on the prosecution as to any fact which is essential to the guilt requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of a fact beyond a reasonable doubt”. This is true to upholding the fundamental principle in Article (19) (2) (c) of the 1992 Constitution that everyone is innocent until proven guilty. To establish culpability, the prosecution must present enough evidence to convince the court that the accused is guilty of the offence charged. The Prosecution has the burden to provide evidence to satisfy all the elements of the offence charged. According to Section 124(1), “A person who steals commits a second degree felony” Section 125 states “A person steals, who dishonestly appropriates a thing of which that person is not the owner” Per Section 120(1) of Act 29, an appropriation of a thing is dishonest: (a) if it is made with the intent to defraud, or (b) if it is made by a person without claim of right, and with a knowledge or belief that the appropriation is without the consent of a person for whom that person is a trustee or who is owner of the thing, or that the appropriation would, if known to the other person, be without the consent of the other person. According to Section 122(2) of Act 29, an appropriation of a thing in any other case means any moving, taking, obtaining, carrying away or dealing with the intent that a person may be deprived of the right or interest in the thing, or its value or proceeds or part of that thing. Prosecution, in order to succeed, will have to prove that 1. There has been an appropriation, 2. The appropriation is dishonest, 3. The accused person, not being the owner of the item has stolen it. Prosecution is enjoined by law to prove all the ingredients of the offence and prove it beyond reasonable doubt. This burden remains on the prosecution throughout the trial. All that an accused person will have to do is to cast a reasonable doubt. PROSECUTION’S CASE In the month of November, 2018, GCB Bank was rationing money for cocoa purchasing clerks because the bank had insufficient money at their disposal. According to PW1, the sector manager for Trans-Royal Ghana Limited, a cocoa buying company, he needed money to shore up his operations and the accused who was then the District Manager for Trans-Royal Tepa ‘B’ agreed to help him by using his account to withdraw the money for him. PW1 issued a cheque with a face value of GHC 71, 435.00 for the accused to cash and bring same to him but accused after cashing the money failed to bring same to PW1, and went into hiding. Thereafter, PW1 could neither trace the whereabouts of the accused nor reach him on his mobile number, and lodged a complaint with the police. Police arrested the accused at his hideout on December 25, 2018. Accused was admitted to police enquiry bail, and he promised to bring the money on 03/01/19. On 04/01/19, accused paid GHC 9000.00 of the amount to the investigator. Accused thereafter disappeared and forfeiture of recognizance was served on the surety to produce the accused before Tepa Circuit Court. On 29/01/19, the surety brought the accused to the court, and he was remanded into police custody. On 26/02/19, accused was admitted to bail after he informed the court that he has a parcel of land he intends to dispose of and use the proceeds to settle PW1 if granted bail, but accused never made good his promises. At the close of prosecution’s case, the court ruled that a prima facie case had been made and called on the accused to open his defence under Section 174(1) of Criminal Procedure Act, 1960 (Act 30). Section 174(1) states that “At the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused sufficiently to require the accused to make a defence, the court shall call on the accused to make the defence and shall remind the accused of the charge and inform the accused of the right of the accused to give evidence personally on oath or to make a statement” Prima facie evidence is evidence which on its face or first appearance without more, could lead to the conviction if the accused fails to give reasonable explanation to rebut it. It is the evidence that the prosecution is obliged to lead, if it hopes to secure conviction of the person charged. See Kwabena Amaning alias Tagor vs. Republic (2009) 23 MLRG 78 C. A. THE DEFENCE OF THE ACCUSED Accused in his defence admitted having cashed the said cheque but says the cheque was given for the purchase of dry cocoa beans for Trans-Royal Ghana Limited. According to the accused, he had requested for funds to purchase 200 bags of dried cocoa beans for the company. However, the cheque for GHC 71,435.00 was equivalent to157 bags, and so he applied for a loan. However, he had earlier taken a loan, and the bank, Tepaman Rural Bank Limited agreed to grant him his request only if he pays off his outstanding loan debt, so the bank went ahead to deduct GHC 47, 500.00 from the amount he deposited. Accused says he distributed the amount left to the purchasing clerks and waited for the bank to credit him with the loan he had applied for, but on 12/12/18, PW1 came to his office to assault him, demanding for the cocoa beans. Then on 25/12/18, PW1 met him at Tepa township and started assaulting him so he bolted and in the process, dropped his mobile phone which PW1 picked up. Accused per paragraph 18 of his witness statement said the verbal and physical assaults were getting out of hand so he delivered 27 bags. He was later arrested by the police, and PW1 told his bankers that he had stolen his money so the bank so the bank refused to give him the loan. Accused also stated that it is not uncommon for a District Manager to be short of the number of bags he is supposed to supply. This is usually recorded as a credit against his account and he is allowed to either pay with cocoa beans or pay in cash. Accused however admits that upon his arrest, he told PW1 that he will refund his money so he should give him some time, and had as at the time of testifying paid GHC 35,500.00 and 27 bags of cocoa beans so he has not stolen GHC 71,435.00 belonging to PW1. ANALYSIS The position of the law is that, “Where the determination of a case depends upon facts and the court forms the opinion that a prima facie case has been made, the court shall proceed to examine the case for the defence in three stages: Firstly, it should consider whether the explanation of the defence is acceptable, if it is, that provides complete answer, and the court should acquit the defendant; If the court should find itself unable to accept, or if it should consider the explanation to be not true, it should then proceed to consider whether the explanation is nevertheless reasonably probable, if it should find it to be, the court should acquit the defendant; and Finally quite apart from the defendant’s explanation or the defence taken by itself, the court should consider the defence such as it is together with the whole case, i.e., prosecution and defence together, and be satisfied of the guilt of the defendant beyond reasonable doubt before it should convict, if not, it should acquit.” Is the explanation of the defence acceptable? In exhibit ‘C’, the investigating cautioned statement of the accused given to the police on Tuesday December 25, 2018, accused said PW1 had given him a cheque with a face value of GHC 74, 575 to supply him with 157 bags of dried cocoa beans, which he cashed six (6) days later and disbursed to purchasing clerks to buy cocoa for him. He further stated that one Godwin who is also a District Manager gave him cash of GHC 71,250.00 to supply him 150 bags of dried cocoa beans and he supplied him with about 130 bags. On 12/12/2018, PW1 came to his office to violently hold his shirt demanding for the cocoa beans because he had been informed that he was supplying another company with dried cocoa beans; clerks that were present came to his rescue. At about 1900 hours on December 17, 2018, he met PW1 in town and bolted leaving behind his mobile phone. Accused said in his witness statement that he met PW1 on 25/12/2018 when he bolted because the verbal and physical assaults were getting out of hand, but in exhibit ‘C’, he said he met him on 17/12/18 and bolted. There was no mention of any verbal or physical assault. In exhibit ‘D’, further investigating cautioned statement given by the accused to the police on 29/01/2019, accused now states that the face value of the cheque was GHC71, 435.00 and he cashed it after three (3) days. Here, he states that he disbursed only GHC 23, 935.00 to purchasing clerks and used GHC 47, 500.00 to pay a loan he had taken from Tepaman Rural Bank, and on 12/12/2018, PW1 came to attack him angrily at his office because he had heard that accused had used had used the money to settle his debt. Again, he states in this exhibit that he met PW1 at about 1900 hours on 19/12/2018 and bolted leaving his mobile phone behind, and on 25/12/2018, he was arrested by the police. During cross-examination of PW1 by the accused, accused sought to establish that it is the practice that PW1 gives him cheques for same to be cashed and disbursed to purchasing clerks but PW1 refuted same: Q. Do you remember telling this Court that whatever cheque you give to me to cash, I bring the money to you before you give me what I need out of it. A. The cheque I give to him is a personal cheque. All cocoa cash are withdrawn by myself and based on your accounts with me, I either give you what you want or decline. If it were for the purpose of cocoa, I would have given him a Company cheque, not a personal one. Q. Apart from this cheque which has brought us here, have you given me any other cheque which is your personal cheque before? A Yes, but all of them were cashed and same handed to me, except this particular one that has brought us here. Q. I am putting it to you that if you accuse me that I have stolen from you, it is never true. A It is true he stole the cash, because he was nowhere to be found. The last time I saw him after cashing the money, he took to his heels, I gave him a hot chase, and in the process fell in the middle of the road and nearly run over by an on-coming vehicle. It was just by God’s grace that I only sustained some bruises and laceration. Q. I am putting it to you that if you tell this Court that you gave me the cheque in issue to withdraw and bring same to you, it is never true. A. It is true I gave him the cheque to withdraw for me. It will interest the Court to know that apart from this stealing case involving the cashed cheque, he is in arrears of 102 bags of cocoa owed to Trans Royal Ghana Ltd. for the 2017/2018 main crop season, which I have separated from this case because that one is for cocoa and this is a theft case and I even lost my job on his account. And I intend to have that one tried after this matter separately. Q. The investigator says you made the case on 20/12/2018. With the money being such a huge amount granted without conceding that the money was taken on 28/11/18 or 30/11/18, why did it take you so long to make a complaint. A. He went into hiding as I have already said, so I was scouting around to see if I could find him. The very day I spotted him he took to his heels. Even upon reporting the case, the police could not find him until I laid ambush one Sunday, personally arrested you on a motor bike, and called the investigator to come and re-arrest you. Q. When and where did you search for me and could not find me. A. I went to his house, Tepa township and its environs, trying to locate him but to no avail. Q. If it is true that you went to my house, did you enquire of me from my wife and pastor who stood as security for me when you were employing me? A On all the occasions I went to the house, there was nobody available, so I could not ask anybody. Neither the wife nor the pastor stood surety for him when I was employing him. He used a house as security for the cocoa business, which is another matter. Q. I am putting it to you that it is not true that I absconded when I cashed the money, and you had to lay ambush to arrest me. A I am telling the truth. My driver chased him on the motor bike, arrested him and I called the investigator to come for him. Q. If you arrest someone in his house does that imply that the person had absconded? A. He went into hiding. In my first attempt of arresting him, he run away and went into hiding only to resurface on that Sunday when I got him. Q. It is not true if you say that I had absconded. Do you recollect that after I cashed the money, you came to my office, and held me by my shirt in the presence of witnesses and enquired of the whereabouts of cocoa worth the amount of GH¢71,435? A It is not true. I remember going there to heckle him on the previous and current debt he owed which was 102 bags for 2017/2018 and 48 bags for 2018/2019 main crop season which had nothing to do with the cheque, and he paid 5 bags of that debt in his office on that day. Q. I am putting it to you that on that day when you came, I gave you 27 bags of cocoa in respect of the cash which I took the cheque in question for. A It is not true. Any payment of cocoa bags was in respect of the 48 bags owed. Ever since he cashed the said cheque, I did not see him again until the time stated. Accused called one witness but the said witness only mounted the witness box to tell the court about his personal opinions and suppositions. He was not privy to anything that transpired. Accused in his bid to persuade the court produced 4 different carbon copy leaflets of Trans-Royal produce clerk’s receipts. On one of the receipts bearing the serial number 0181901, accused who was the District Manager for Tepa ‘B’ purports to issue a receipt from himself as the District Manager to himself, Charles Osei as a purchasing clerk for an amount of GHC 71,250.00. All the other 3 receipts he presented were issued from him Charles Osei, in his capacity as the District Manager to 3 various purchasing clerks. The receipt accused had issued to himself originally bore the date of 24/10/18 at all three dated places, and all three dates have been altered to read 24/12/18 without any form of authentication. Accused after purporting to issue to himself, the amount of GHC 71,250.00 on a receipt on which all dated places have been altered to read 24/12/18 instead of 24/10/18, now states in paragraph 11 of his witness statement that he disbursed the cheque cashed to three purchasing clerks on 3rd, 14th, and 15th December, 2018. He had also earlier stated in exhibit ‘C’ that another District Manager called Godwin had given him the said amount of GHC 71,250.00 to purchase 150 bags of dried cocoa beans for him, for which PW1 had come to his office to confront him in anger that he was buying cocoa for another company. Meanwhile, the said produce clerk’s receipt is a Trans-Royal Ghana Limited receipt, and has Tepa ‘B’ written on it, emanating from the District Manager, who is the accused herein, and is issued to Charles Osei, who is the accused herein. The serial number on the said receipt also shows that it is from the same booklet that accused had used to issue a receipt from Charles Osei, which is himself, to a purchasing clerk named only as Awuah. Why then will the accused after purporting to disburse the money to purchasing clerks, issue a receipt to himself as a purchasing clerk? This court is unable to accept the explanations of the accused person. Is the explanation of the defence nevertheless reasonably probable? Accused stated in his witness statement that he had not stolen money belonging to PW1 but it was a business transaction as admitted by PW1 to the police and repeated in the facts of the case. However, this assertion is untrue because PW1 never admitted anywhere in the facts that he had issued the cheque to the accused for accused to use same for a business transaction. Accused also said in his witness statement at paragraph 13 that Tepaman Rural Bank deducted GHC 47,500.00 from the amount he deposited. Accused mentioned that evidence of this is attached and marked exhibit ‘3’, but there is no such exhibit. During CMC for the defence of the accused, the court pointed out to the accused that there is no such exhibit and adjourned three (3) consecutive times for accused to file it as well as another exhibit ‘3’, a list of purchasing clerks that accused claimed to have disbursed monies to, but accused was never able to file any of the said exhibits. When the bank account into which the accused deposited the GCB Bank cheque from PW1 for clearance for same to be cashed was GCB Bank, how could Tepaman Rural Bank deduct monies from an amount that has been lodged into same? This court finds the explanation of the defence not reasonably probable. Under the law as laid down, the accused is not required to prove anything, he is only to raise a reasonable doubt. However, the statements and defence of the accused person are fraught with so many inconsistencies that it has failed to raise that reasonable doubt. In Munkaila v The Republic (1995-96) 1 GLR SC Edward Wiredu JSC stated: “When an accused person took refuge in telling lies before a trial court, the only inference of his behaviour was that he had a guilty mind and wanted to cover up”. In Gyabaah v The Republic (1984-86) 2 GLR 461 CA, the Court of Appeal held that “the law was that a witness whose evidence on oath was contradictory of a previous statement made by him, whether sworn or unsworn, was not worthy of credit and his evidence could not be regarded as being of any importance in the light of his previous contradictory statement unless he was able to give a reasonable explanation for the contradiction”. Considering the defence such as it is together with the whole case, the court is satisfied of the guilt of the accused beyond reasonable doubt, and hereby convicts him accordingly. SENTENCE Considering the evidence before the court in its entirety, and going by the Ghana Sentencing Guidelines, and considering all aggravating and mitigating factors, I hereby sentence the convict to a term of seven (7) years in prison in hard labour. The accused has a right of appeal. SGD H/L JUSTICE GWENDOLYN MILLICENT (JUSTICE OF THE HIGH OWUSU COURT)