REPUBLIC VRS RAFIU (NR/TL/HC/CC1/14/23) [2023] GHAHC 649 (12 October 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE TAMALE, NORTHERN REGION SUIT No: NR/TL/HC/CC1/14/23 JUDGMENT DELIVERED ON 12/10/2023 THE REPUBLIC VRS TUFERU RAFIU COUNSEL ANGELA OBOSHIE ABBA FOR THE REPUBLIC ASURO NAPARI FOR THE ACCUSED PERSON CORAM JUSTICE ERIC ANSAH ANKOMAH JUDGMENT Introduction The accused person was employed by Baobab Micro Finance Company Limited as its branch manager in Yendi in the Northern Region of Ghana. In the course of his employment, the accused person was reported to the police for having stolen money from the Baobab Micro Finance Company. After investigations of the case, the accused person was put before this court on 13th June, 2023 on the offence of stealing. Charge STATEMENT OF OFFENCE Stealing contrary to section 124 (1) of the Criminal Offences Act, 1960 (Act 29) as amended. PARTICULARS OF OFFENCE Tuferu Rafiu, 36 years, that you as the manager of the Yendi branch of the Baobab Micro Finance Company Limited in the Northern region of the Republic of Ghana and within the jurisdiction of this court, by manipulating the bank’s software system, did dishonestly appropriate an amount of Seven Hundred and Ninety-Seven Thousand, One Hundred and Fifty-Two Ghana Cedis (GHs 797, 152.00), being the property of your employers, Baobab Micro Finance Company Limited. The accused person pleaded guilty with explanation to the charge and after his explanation, the court entered a plea of not guilty for the accused person for full trial to commence. Facts The prosecution gave the facts of the case as follows: The Internal Auditor of Baobab Micro Finance Company Limited Tamale, Abdul Rahaman Abdul Razak, the complainant in this case, on 31st January, 2023, conducted a routine checks on past loans that were due for payments in the banking software system. The Auditor came across an Association Loan that was indicating as overdue in the Yendi branch. The manager at the Yendi branch, the Accused person, Tuferu Rafiu, was invited by the Internal Auditor to the head office of the company in Tamale for questioning and interrogations. After the company's interrogation of the Accused person it was clear that the Accused person had embezzled the company's money. On the 4th of February, 2023, the Accused person was arrested and taken to the Tamale Divisional Police Headquarters for further investigations. The Internal Auditor complainant then furnished the police with the Audit report which indicated that the Accused person had embezzled an amount of Seven Hundred and Ninety-Seven Thousand, One Hundred and Fifty-Two Ghana Cedis. (GHC797, 152.00) which is the company's money. Upon police investigations into the case, the Accused person, in his Investigation Cautioned Statement admitted that, he had taken over Four Hundred Thousand Ghana Cedis (GHC400, 000.00) from the company's money for himself. The Accused person stated how he embezzled those monies, by manipulating the company's/bank's software system. That after the company had disbursed association loans to its customers/members he will then manipulate the software system to reschedule payment to these associations for sixteen (16) weeks grace period. He then personally went to these associations' members and collected the repayments and kept same for his personal use. That due to the software manipulation at the Yendi branch by the Accused person, the loans repayment that were due were not reflecting at the Head office in Tamale. It was also found out that the Accused person was using those monies embezzled for betting either on his office computer or his cell phone and was also sending huge sums of money to his relatives and friends through his MTN MoMo numbers, 0548125779 and 0247806134 for some private investments. Upon police investigations and information gathered, a duplicate case docket was prepared and forwarded to the office of the Attorney-General Tamale, by the police for study and advice. Per the evidence available, the accused person was seen to have dishonestly appropriated the sum of GHC797, 152.00 being Baobab Micro Finance Company Limited money. The accused person was charged with the offence of stealing contrary to Section 124 (1) of Criminal Offences Act, 1960 (Act 29) as amended and was arraigned before this honourable court. The prosecutor called two witnesses in support of her case and before I proceed to deal with the evidence of the prosecution I deem it fit to deal with the burden of proof and the legal requirements placed on the prosecution. Presumption of innocence of accused person In criminal actions like this one, the accused person is presumed innocent of the offence charged until he is proven guilty by a court of competent jurisdiction or he pleads guilty. This position of the law is a constitutional provision enshrined in the 1992 constitution and the courts are bound to follow the dictates of the law. Article 19 (2) (c) of the 1992 constitution stipulates that: “A person charged with a criminal offence shall- c. be presumed to be innocent until he is proved or has pleaded guilty.” Burden of proof The prosecution bears the burden of proof which is to produce sufficient evidence to prove the guilt of the accused person beyond reasonable doubt. This principle has been codified in sections 11(2), 13(1) and 22 of the Evidence Act 1975 (NRCD 323). There are plethora of cases to support the principle that, the burden of proof of the guilt of the accused person is on the prosecution and it is proof beyond reasonable doubt. See DONKOR V THE STATE [1964] GLR 598, SC YEBOAH V THE REPUBLIC (CONSOLIDATED) [1972] 2GLR 281 In the Ghanaian context the burden of proof which is on the prosecution, connotes that both the burden of persuasion or the legal burden and the evidential burden or the burden to produce evidence are on the prosecution. It is the duty of the prosecution to prove every element of the charge against the accused person. Again the prosecution assumes the evidential burden to adduce evidence that will suffice to establish every element of the charge. See Section 11(2) of the Evidence Act 1975 (NRCD 323) states: “In a criminal action the burden of producing evidence when it is on the prosecution as to any fact which is essential to 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." The standard of proof beyond reasonable doubt was explained by Lord Denning in the case of Miller v Minister of Pensions (1947)2 A. L. R 372 as follows: "Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is strong against a man as to leave a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice". The following Supreme Court cases have affirmed the fact that when we say proof beyond reasonable doubt it actually means proof of the essential ingredients of the offence charged and not mathematical proof. TETTEH v THE REPUBLIC [2001-2002] SCGLR 854 DEXTER JOHNSON v THE REPUBLIC [2011] 2 SCGLR 601 FRIMPONG A. K. A IBOMAN v REPUBLIC [2012] 1 SCGLR 297 It is the law that, the prosecution must lead evidence to establish all the elements of the offence of stealing failing which the accused person is entitled to acquittal. However if the prosecution succeed in establishing a prima facie case against the accused person, the accused person must produce sufficient evidence to raise doubt as to his guilt failing which the court will proceed to convict the accused. See section 11 (3) of the Evidence Act 1975 (NRCD 323) “In a criminal action the burden of producing evidence, when it is on the accused as to any fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt.” The prosecution called two (2) witness in support of her case and I hereby set out the evidence of the prosecution witnesses. Summary of Evidence of PW1- The Internal Auditor In his 25-paragraph witness statement filed on 21/06/2023 and adopted as his evidence in chief on 4/07/2023 by this court, PW1 stated that, he is the Manager for Internal Audit of Baobab Micro Finance Company Limited hereinafter called the company. That the accused until his arrest was the Yendi branch manager of the company. That until accused person became the branch manager, he worked under him as one of his assistants at the Internal Audit Department of the company. That on 31/01/2023 during his routine checks on past due loans (ie loans that are due but not paid) in the Banking Software System, he came across an association loan that was showing as past due in the Yendi branch. That the said loan had been set up in the system for 16 weeks grace period which was very abnormal per the rules and regulations of the company. That his checks revealed that the accused person had illegally entered the banking software system to reschedule these loans after all the due process in disbursing loans had been followed. That normally when loans are disbursed to associations, they are given one week grace period before repayment start, but since the accused changed the grace period in the system to 16 weeks, if you go into the system you will not recognise that those loans were due for repayment. Meanwhile after the one week grace period, the accused person will go to the association directly to collect the repayments and used same for his personal purposes. That he called the accused person on phone after detecting the abnormalities and the accused person pleaded with him to give him some time to pay the monies he had personally spent. That before the telephone conversation, the witness instructed his deputy to also check on the findings and he also came out with the same abnormalities. That he reported the matter to the Human Resource Manager and he advised the witness to invite the accused person to the headquarters for interrogation into the case. That on 4/01/2023 he invited the accused person to the head office and the Human Resource Manager and the Deputy Managing Director were all there as witnesses to the interrogation. That the accused person confessed in the presence of all of them about his illegal act and even stated that what they have seen in the system is less than 10% of what he has actually taken from the company due to his illegal manipulation of the software system. That he asked the accused person to tell him how much in rough estimate he had stolen from the company and the accused responded that he cannot actually give the figure but it was in excess of GHs 500,000.00. That whilst the conversation was going on, the Human Resource Manager was recording with his phone to be used as evidence for the bank. That after the interrogation, they decided to report the accused person to the police and indeed handed him over to the police. That the company commissioned a comprehensive audit into the activities of the accused as branch manager of the Yendi branch. That after the audit, it was established that the accused person had stolen GHs 797,152.00. This lump sum included loans rescheduled in the system, loans disbursed to unidentified persons, (ghost), Susu deposits of clients, unauthorized withdrawals from customers’ accounts and loans repayment from customers. That the accused person was served with a copy of the findings from the audit on 16/02/2023 for the accused persons responds to the findings against him on 13/03/2023. That in a letter dated 13/03/2023, the accused person responded to the audit and accepted the findings of the audit exercise. However, the accused raised issues on appendix 3 in relation to the figure being repeated twice. That the transactions appeared without dates thereby making it difficult to verify. That some clients’ accounts were sorted out partially and fully balanced their subsequent withdrawals. That he (PW1) responded to the concerns of the accused person in a letter dated 13/03/2023. That he acknowledged the concerns of the accused person about the repetition which involved a figure of GHs 900 and dealt with it. That the second concern on the missing dates for two customers were also provided and lastly, they could not verify the last concern of the accused on payments he claimed were made by some clients since it did not pass through the cashier of the bank. That after the findings and the arrest of the accused person, clients were still coming with issues of withdrawals from their accounts by the accused person that did not reflect in the audit report. That he knows that the accused has embezzled an amount of GHs 797,152.00 being Baobab Micro Finance Company money. The audit report was admitted in evidence without objection and it was marked as exhibit A. The court rejected the audio recording of the interrogation between the accused person and the officers of the company on grounds that it was a secret recording of which the accused person attention was not drawn to the said recording. That the Court relied on the authority of the Raphael Cubage v Michael Yeboah & 2 others No. J6/04/2017 dated 28/02/2018 SC in rejecting the secret recording. The witness was cross-examined thereafter. Summary of Evidence of PW2 No. 43777 D/SGT Prosper Abuchow That he is stationed at Tamale Divisional Headquarters. That on 4/02/2023 PW1 arrested and brought to the Police station the accused person in respect of the offence of stealing. That the accused person was re-arrested by the counter NCO and detained to assist investigations into the mater. That PW1 submitted his written statement and same was filed in the case docket. That investigation cautioned statement was obtained from the accused person and same was filed. That during the investigations the accused person admitted the offence in his investigation cautioned statement. That on 6/02/2023, the accused was released on police enquiry bail. That on 16/02/2023, PW1 brought the audit report which he conducted at the company branch in Yendi. That the audit report revealed that, the accused had stolen GHs 797,152.00. That the accused person raised two concerns on the audit report on payments of GHs 2,400.00 he paid on 21/03/2021 to a customer and also GHs 2,500.00 he paid on 14/04/2021 to another customer all in respect of appendix 3 of the audit report. That he obtained a court order from the District court on the MTN number of the accused person to trace the transactions from the said accounts on the allegation of how the accused person transferred huge sums of money to his relatives and friends for his private investments. That he served the court order on MTN and that the accused actually requested for his Momo account statement from MTN Ghana Limited through his cell phone but failed to serve same on the police. That on 9th March, 2023, PW1 brought to the police station an audit observation and enquiry report. That on 13th March, 2023, the accused brought to the police station his response to the audit where he raised three (3) concerns in appendix 3 and same was served on PW1. That on 16/03/2023, PW1 brought to the police station answers of the re- audit observation and enquiry raised by the accused and same was served on the accused person. That he filed all the audit reports and the re-audits report was also filed in the case docket. That after investigations, a duplicate docket was served on the Attorney General Department for advice. That he was instructed to charge the accused with the offence of stealing. That the accused maintained his investigation cautioned statement in which he admitted that he stole over GHs 400,000.00 from the company and used same for betting on his office computer and cell phone. The witness tendered in evidence without objection the investigation cautioned statement of the accused person and it was admitted in evidence and marked as exhibit B. The charged cautioned statement of the accused person was rejected by the court and marked as R1 after a mini trial on its admissibility. The witness was cross-examined thereafter. It must be noted that, the failure of the prosecution to lead credible evidence to support the charge of stealing after a plea of not guilty has been entered for the accused person will lead to his acquittal. It is therefore my duty to lay bare the nature of the offence of stealing, the ingredients that make out the offence as defined by law and evaluate the evidence. The Law on the offence of Stealing Section 124 (1) of Criminal Offences Act 1960 (Act 29) as amended creates the offence of stealing and it states that; “A person who steals commits a second degree felony.” The offence of stealing has been defined by section 125 of Act 29 and it states as follows; “A person steals who dishonestly appropriates a thing of which that person is not the owner.” From this definition, the basic ingredients of the offence of stealing which the prosecution must prove beyond reasonable doubt are three (3). i. ii. iii. That the accused person was not the owner the a thing/property That the accused person appropriated the thing/property. That the appropriation was dishonest. These elements were confirmed by the Court of Appeal decision in the case of; AMPAH v THE REPUBLIC [1977] 2 GLR 171, C. A. The Court identified the elements of stealing as: (i) dishonesty; (ii) appropriation; and (iii) property belonging to another person. The Court of Appeal further held in the case that barring any defence or explanation put forward by the accused person which can cast a reasonable doubt on the case of the prosecution after these elements have been proved by the prosecution, the trial court is bound to convict the accused person. From the position of the law, the prosecution must lead evidence to establish all the three elements as aforementioned. The prosecution in the course of establishing the three elements relied heavily on the evidence of PW1, PW2 and the accused person own investigation cautioned statement as well as his evidence in court. In the first place, there is no shred of doubt that, the accused person was the manager of the Yendi branch of Baobab Micro Finance Company Limited and as the manager he was entrusted with managing the affairs of the company including keeping safe the money of the company. The property which the accused person was entrusted with to take care of is the money from clients of the company, the loans recovered from customers by the accused person, as well as deposits. The unchallenged evidence of PW1 is that; “That the accused person confessed in the presence of all of them about his illegal act and even stated that what they have seen in the system is less than 10% of what he has actually taken from the company due to his illegal manipulation of the software system. That he asked the accused person to tell him how much in rough estimate he had stolen from the company and the accused responded that he cannot actually give the figure but it was in excess of GHs 500,000.00.” This piece of material evidence was not challenged by the accused person in cross- examination or even in his evidence in chief. The law is that when a party has made an allegation or averment and that averment or allegation is not denied, no issue is joined and no evidence need be led on that averment. Again when a party has given evidence of a material fact and he is not cross-examined upon that, he need not call further evidence of that fact. See FORI v AYIREBI [1966] GLR 627 SC I must hasten to add that the accused person himself in his investigation cautioned statement (exhibit B) corroborated the evidence that the money he used for his personal gains did not belong to him but that of the company and I hereby quote the relevant portion: “I have been working with Baobab Micro Finance Company for about nine (9) years now. In fact I have been using the aforementioned company money for betting for the past two years. I do use the company computer at my office or my cell phone for the betting. However as a branch manager I normally manipulate the system for head office not to be on the known. The money I used for betting is over GHs 400,000.00… ” (the emphasis is mine) The investigation cautioned statement was tendered in evidence without objection. The accused person did not deny the contents. This piece of evidence from the accused person has corroborated the evidence of PW1 to the effect that the money the accused person used for his betting and personal use did not belong to him but rather the property of the company. Section 7 (1) of the Evidence Act 1975 (NRCD 323) states that; “Corroboration consists of evidence from which a reasonable inference can be drawn which confirms in some material particular the evidence to be corroborated and connects the relevant person with crime, claim or defence.” I hereby pronounce that, the prosecution has discharged the burden of producing sufficient evidence beyond reasonable doubt that the money the accused used for his personal gain was not his personal money but the property belonging to Baobab Micro Finance Company Limited. Thus, one of the elements of the offence of stealing to wit; property belonging to another person has been proved beyond reasonable doubt. I will now proceed to discuss the second element of the offence of stealing to wit appropriation. Section 122 (2) of Act 29 as amended states that; “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 a person may be deprived of the benefit of the ownership of that thing, or of the benefit of the right or interest in the thing, or in its value or proceeds, or part of that thing.” Before I apply this particular provision, it is instructive to draw attention to the fact that, a thing as expressed in section 122 (2) of Act 29 supra by law include money belonging to another as in this instant case. Therefore, by definition, appropriation of a thing you are not the owner thereof include, depriving the owner of the thing (money) permanently or even temporary where the intent is to use or deal with the thing such that it will probably be destroyed or become useless or greatly injured or depreciated. The uncontroverted evidence before me by the prosecution is that, the accused person manipulated, the banking system of the company such that he delayed the repayment of loans deadlines to enable him use the repaid loans by clients for his personal gains. To that effect, the accused person as at the time his nefarious activities were detected had taken cash in excess of GHs, 400,000.00 the property of the company. By this action the accused person deprived the company of the use of the money for not less than two years. As at now, the accused person has not refunded the money he himself admitted taking from the company. The appropriation of the money by the accused has permanently deprived the company of the use of the money that the accused person by virtue of his position as manager came into possession of it. The accused person has not refunded the money as at now. As to the quantum of money the accused person appropriated, I will at the later part of this judgment deal with it in extensor. What is important to prove by the prosecution is the appropriation of the money of which same has been done by cogent evidence by the prosecution. I hereby pronounce that the evidence on record has proven that, the second element of the offence of stealing, to wit appropriation of money of Baobab Micro Finance Company Limited by the accused person has been established by the prosecution beyond reasonable doubt. I will now proceed to delve into whether the appropriation of the money of the company by the accused person was dishonest as the last ingredient of the offence of stealing. The law is that appropriation of a thing is dishonest if it is made with intend to defraud or if it is made by a person without claim of right and knowing that if the owner of the thing gets to know of the appropriation, he will not give consent. See section 120 of Act 29. In the investigation cautioned statement of A1, he voluntarily admitted that, he (accused person) manipulated the banking software of the company to conceal the deferred repayment of loans from customers so he could use the money for his personal gains. The accused person further admitted in exhibit B that he succeeded in embezzling over Four hundred Thousand Ghana Cedis (GHs 400,000.00) of the loan repayments of customers of the company. I hereby reproduce the salient portion of the investigation cautioned statement. “Meanwhile management of the company discovered that I have misappropriated a cash sum of GHs 20,000.00 last week on 3/02/2023 which I was ordered to pay it or management take a decision on me, today the 4/02/2023 management again called me to provide the cash of GHs 20,000.00 but I could not provide it. Hence I told management the money I have appropriated is over GHs 400,000.00…” From the accused person own mouth, he knew his actions were not approved by the company or could not have been approved by the company hence his decision to manipulate the banking software to conceal his nefarious activities of misappropriation of the funds of his employer. This is a further proof that the appropriation of the money of the company by the accused person was malicious with intent to defraud the company. The accused could not tell the court the exact amount he embezzled save that he embezzled more than GHs 400,000.00. In cross examination, the accused person further admitted that he withdrew money from customers of the company accounts without their consent. The answers given by the accused person further corroborates the prosecution case that, the appropriation of the money was dishonest irrespective of the accused person lame excuse that he intended paying the embezzled money at a later date. This excuse is just not only shambolic but a deliberate attempt to cover up his fraudulent conduct. In cross-examination of the accused person, the following ensued: Q: You manipulated the company software to aid you embezzle the company funds. A: I made manipulations to postpone payment of loans to later dates. Q: You went to customers of the company and took repayments meant for the company without depositing the monies in the company accounts. A: Yes but I wanted to pay at a later date. Q: You inserted ghost names in the group loans and actually benefited personally from the ghost names. A: Yes I was paying with interest. Q: I put it to you that the monies you took in the name of loans for customers did not go to the customers but for your personal benefit. A: Yes. I was paying back. Q: You agree with me that you withdrew monies from customers of the Company without their consent and knowledge. A: Yes but I was paying it. From the evidence before me I hold that the third element of the offence of stealing to wit; dishonest appropriation has also be proved beyond reasonable doubt and barring any reasonable defence from the accused person the court will convict him on the evidence led against him. Quantum of money misappropriated by accused person Before I go into the defence of the accused person, I deem it fit to deal with the last strand of issues in this matter as to the quantum of money embezzled by the accused person. I do not see this as a challenge in establishing a prima facie case against the accused person since it is not the quantum of the property or money stolen that determines the offence of sealing. The law is that it is not necessary to prove the value of the property for the offence of stealing, fraudulent breach of trust, robbery, extortion defrauding by false pretence to be made out. See section 123 of Act 29 titled: Subject matter of stealing. (1) The criminal offence of stealing, fraudulent breach of trust, robbery, extortion, or defrauding by false pretence can be committed in respect of a thing a) Whether living or dead, and whether fixed to the soil or to a building or fixture, or not so fixed, and b) whether the thing is a mineral or water, gas, or electricity, or of any other nature, and c) whether the value of the thing is intrinsic or for the purpose of evidence, or is of value only for a particular purpose or to a particular person, and d) whether the value of the thing does or does not amount to the value of the lowest denomination of coin. 3) In proceedings in respect of criminal offence mentioned in subsection (1), it is not necessary to prove ownership or value. I have decided to go into this issue about the quantum of money stolen in view of the defence put up by the accused person that, the money he embezzled is over GHs 400,000.00 and not up to GHs 797, 152.00 as stated in the audit report. The evidence of PW1 is that, the accused person after his admission of manipulating the software of the bank to enable him embezzle the company funds, the company caused an audit into the activities of the accused person. After the audit, adverse findings were made against the accused person and pursuant to that, PW1 served a copy of the audit report on the accused person for his response to the queries. That the accused person responded to the audit report and challenged the figures in appendix three (3). This piece of evidence was not controverted by the accused person. In fact the accused person admitted that he responded to the adverse findings made against him in the audit report in a letter which is already in evidence. In exhibit A (Audit report) the summary at paragraph 8 of page two states as follows: “We observe that you embezzled a sum total of Seven Hundred and Ninety Seven Thousand One Hundred and Fifty Two Ghana Cedis and Twenty Four Pesewas (GHs 797,152.24) as a result of the above-mentioned violations. We request you to respond to the above observations on or before Monday 13/03/2023. Find attached an excel sheet marked appendix 1, 2 and 3 containing details and breakdown of all the various infraction for your perusal.” In the accused person responds to the adverse findings made against him in the audit report dated 13th March, 2023 and addressed to the Internal Auditor (PW1), the accused person admitted findings made against him save three issues and I hereby reproduce the contents of the accused person’s response to the audit report. Dear Sir, RE-AUDIT OBSERVATION AND ENQUIRY In response to the audit observation and enquiry served me on 9th March, 2023 I confirm that all findings stated in the report are true reflection of the sins I have committed against Baobab, myself, my family and humanity in general. I wish to bring to you (sic) notice in appendix three (3) that; 1. Samata Abukari with account number 1610501003682 with same amount and date appeared twice which I believe is a repetition. 2. Some of the transactions have no date attached to them which makes is (sic) difficult for my verification. 3. Some clients’ accounts were sorted out partially and some fully balanced during their subsequent withdrawals in the office, Thank you. Signed Tuferu Rafiu In a subsequent letter to the accused person by PW1 the repetition complained of was admitted and was corrected. The dates on the customers he complained of were also supplied to the accused person. However, his third complaint could not be verified since the said transactions did not pass through the Cashiers at the banking hall during business hours. All these documents were tendered in evidence without objection. The accused person response to the audit is a further admission of his guilt of stealing GHs 797, 152.24 the property of Baobab Micro Finance Company Limited. Exhibit A page 11 (Accused person Response) is a documentary evidence duly signed by the accused person in the comfort of his home after he was granted police enquiry bail and I have no reason to reject same or downplay its contents. The employment history of the accused person which was not controverted is that, he was Assistant Auditor who worked under PW1 for some time before he became the branch manager. The accused person is not a novice in auditing and haven risen through the ranks to become a branch manager, I am of the firm view that the accused person knew of the consequences of exhibit A and his response to same cannot be a mistake, undue influence or any other excuse but an honest admission of same. The accused person subsequent answers in cross-examination to discredit exhibit A and his own response to the audit report is in sharp contrast with the documentary evidence and I have no reason to whittle down its effect in law. I rather reject the oral evidence of the accused person on the audit report which seem to contradict the findings made against him on the quantum of money he embezzled as clear case of afterthought. The position of the law is that a witness whose evidence on oath is contradictory of a previous statement made by him whether sworn or unsworn is not worthy of credit. See STATE v OTCHERE [1963] 2GLR 463 BOUR v THE STATE [1965] GLR 1 SC I hereby state the viva voce evidence of the accused person which seem to contradict the amount stolen by him in the audit report is an afterthought and I hereby confirm that the accused person embezzled cash the sum of GHs 797,152. 24 the property of Baobab Micro Finance Company. From the above analysis, I hold that the prosecution has establish all the ingredients of the offence of stealing against the accused person beyond reasonable doubt and I will now proceed to look at the evidence of the accused person to find out whether it discloses any defence in law or raises reasonable doubt under section 11 (3) of the Evidence Act 1975. Evidence of the accused person The accused person testified on oath and I hereby reproduce his viva voce evidence in court. I am called Tuferu Rafiu. Before I was remanded into lawful custody, I was living in Yendi Kuga. I worked with Baobab Microfinance Company Limited as the Branch Manager in Yendi. I know PW1 the complainant in this case. I know I have been accused of stealing cash the sum of GH₵797,152.00 which I beg to differ. I was arrested on 4th February, 2023 and I was detained in Police Custody for two days. When I was arrested, PW2 who investigated the matter cautioned me on this issue. I admitted the fact that I have involved myself in unauthorized funds of Baobab Microfinance Company Limited. He the investigator tried to find out how much money of the company that I had embezzled. I told him that I had embezzled more than Four Hundred Thousand Ghana Cedis (GHs 400,000.00). After the police granted me bail, PW2 called me on 16/02/2023 and gave to me an audit report. The audit report that the Company brought was just one copy. The CID man (PW2) asked me to sign the audit report. I told him that I cannot sign without perusing the audit report. I was actually given the chance that same day to go through the audit report. The environment there was not conducive for me as well as the time given to me was limited. In that situation as I found myself in, I felt that I was being commanded to study the audit report in that environment. When I cursory perused the document, I detected errors in the audit report and I pointed one of such errors to the auditor who also confirmed the error from the banking system against the audit report. The auditor (PW2) then cancelled the error and signed against the cancellation, since there was only one copy available, PW2 promised to make a copy available to me. It was on 9th March, 2023 that PW2 gave me a copy of the audit report. I realized that it was not a complete document as some columns were missing. I want to tender the copy of the audit report that was given to me on 9/03/2023 in evidence. Counsel for the Republic says she has no object to the tendering of the document in evidence. By Court: Let the covering letter of the audit titled Audit Observations and Enquiry be admitted in evidence and marked as exhibit 3. Let Apendix 1 be marked as exhibit 3 A Apendix 2 be marked as exhibit 3 B and Apendix 3 be marked as exhibit 3 C. I realized that the audit report I was caused to sign at the Police station is different from exhibit 3, 3A, 3B and 3C. In exhibit A appendix 3 pages 3, 4, 5, 6 and 7 had missing items which were very important for my verification. The one I signed had the name Association, Number and Book Balance which is missing from the one that I was served with. That appendix accused me of embezzling customers’ money by withdrawing from customers’ accounts and undeposited deposits. As employee I could identify the said customers only by the Association they belong to. I could have also assessed the unauthorized withdrawals if I had the opportunity to have the book balances of the accounts. These two items were in the audit report I signed at the Police station but when I was served with a copy, the two items were missing. The covering letter demanded a response to the audit report from me on or before 13th March, 2023. I responded to the queries raised in the audit report and sent my response in hard copy to the PW1 the Auditor. He also responded back to me admitting some of the errors I detected. He informed me that there were some issues I raised he is not in a position to verify same. I could not take any steps towards getting the customers that I had personally made payments to because I was incapacitated by the company because the Human Resource Manager called me on phone which was a conference call for me not to talk to any of the customers. If I had been given opportunity to meet the customers in person, the payments I made to them would have been established. From my explanation herein, the figures that have been mentioned in the audit report on unauthorized withdrawal and uncredited deposits cannot be correct. Also the amount on exhibit 3A GH₵586,193.65 cannot be correct because the amount contains interest component. On group loans, the members of the group have four (4) months to repay the loan with interest. This embezzlement started in March 2022. Looking at the time frame, there will be three cycles of groups within the stated period. Because I embezzled some of the loans, the company has added the interest it would have gained from the beneficiary groups and that is why the figure has gone so high though I did not embezzle that much. I must say that I disagree with the amount stated on the charge sheet as the money I have embezzled. It is not correct that I took money from the company and gave it to any relatives or friends for private investment. End of evidence in chief. The accused person was cross-examined thereafter. Evidence of DW1 The accused person called one Abdul Razak Bin-Salifu his family member to testify on his behalf. His evidence is as follows: There was a complaint that the Accused person had spent monies meant for the company from the accounts of customers. I cannot tell exactly how much the Accused person was accused of spending but certain figures were mentioned at some point, I heard in excess of GH₵400,000.00, GH₵500,000.00 and GH₵700,000.00. As at now, the accused person and I have not been able to point to a specific figure that he spent. In the conference call, the company officials complained that the accused person was talking to some customers and my attention was drawn to it to stop him from discussing the matter to avoid panic withdrawals. The Accused person informed me that there was an audit report on the matter but I have not personally gone into it. The Accused person informed me that the figures that were put before him as money spent were way above what he actually spent so he called some of the customers who have received repayment from him personally. The witness was cross examined. Analysis of the Accused Person Defence I need not spend any time on the evidence of the accused person and his witness as same is nothing but a confession of having committed the offence of stealing of over GHs 400,000.00 the property of Baobab Micro Finance Company Limited. The accused person evidence in chief without more has corroborated the investigation cautioned statement he gave to the police (exhibit B). The accused person only witness also confirmed in his evidence that the company money spent by the accused person was over GHs 400,000.00 The confession from the accused person without more, is sufficient to convict him on the offence of stealing. The sworn evidence of the accused person confessing that he embezzled not less than GHs 400,000.00 of the company cannot be a defence to justice the offence of stealing of GHs 797, 152.00. See the case of BILLA MOSHIE v THE REPUBLIC [1977] 2GLR 418, CA OFORI v THE STATE [1963] 2GLR 452, SC. The accused person having confessed to stealing money belonging to the company in his investigation cautioned statement and in his sworn evidence in court is enough for me to convict him. The accused person explanation he gave in embezzling the money that he was going to pay at a later date is shambolic and it does not raise any reasonable defence in law against the case of the prosecution which has been established beyond reasonable doubt. In court the accused person in an answer to a question from me clearly demonstrate that the accused person had no intention of paying the money in a lame defence he put up. His conduct of concealing the stealing by manipulating the software system to facilitate the crime clearly show that he had a criminal mind. Hear the accused person answer to a question from his own counsel; Q: You have told this court that you have involved yourself in unauthorized funds of the company (your employer). What do you mean by this? A: I used funds of the company meant for the business of the company for personal use. Conclusion From the totality of the evidence before me, I hold that the prosecution has succeeded in proving the offence of stealing against the accused person. The accused person has failed to raise any reasonable doubt by way of defence to the prosecution case. Conviction I hereby convict the accused person of the offence of stealing. Before I sentence the accused person, the law enjoins me to hear a plea of mitigation from the accused person. Plea of Mitigation of Sentence Counsel for the convict prayed that, the Court grant the convict a reasonably low sentence on grounds that the convict has a wife and young children. That the convict has been in lawful custody from 13th June, 2023 till today. That the convict is a young man of 36 years this is his first brush of the law. That period spent in prison from his detention has humbled him and he has regretted his actions. That being a young offender, I pray that the reformative aspect of punishment should play hugely in the Court’s mind. By the Prosecution: The convict is not known to the law but punishment is supposed to be reformative and also to deter others from repeating what the convict has done. I pray that the punishment be reasonable such that it will deter like minds. Sentence I have made enquiry whether the accused person is known or not from the prosecution and there is no record of him having committed any offence involving dishonesty prior to this case. That notwithstanding, his conduct and the premeditation on the commission of the offence coupled with the fact that he is highly educated in finance and knowing the consequences of his action will not permit me to deal leniently with him. The amount stolen if care is not taken may collapse the entire business of the company that employed him and many others. It may cause panic withdrawal and the adverse effect of such panic withdrawal is imminent to liquidity challenges of the company. In KWASHIE V THE REPUBLIC (1971) 1 GLR 488, the Court in dealing with sentencing power had this to say: "In determining the length of sentence, the factors which the trial judge is entitled to consider are: (1) the intrinsic seriousness of the offence; (2) the degree of revulsion felt by law-abiding citizens of the society for the particular crime; (3) the premeditation with which the criminal plan was executed; (4) the prevalence of the crime within the particular locality where the offence took place; or in the country generally; (5) the sudden increase in the incidence of the particular crime; and (6) mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed" See also the cases of FRIMPONG @IBOMAN v REPUBLIC SUPRA, ADU-BOAHENE v THE REPUBLIC [1972] 1 GLR 70, CA See the case of KAMIL V THE REPUBLIC [2011] 1 SCGLR 300 where the court re-emphasized that in considering the factors apart from giving consideration to the offence and the offender, it is important the interest of society is considered as well. The court therefore expressed its opinion on the issue as follows: “A judge in passing sentence may consider the offence and the offender as well as the interest of society. Where a appellant complains about the harshness of a sentence (as in this case) he ought to appreciate that every sentence is supposed to serve a five-fold purpose, namely, to be punitive, calculated to deter others, to reform the offender, to appease the society and to be a safeguard to this country.” In GLIGAH V ATISO [2010] SCGLR 870 the Supreme Court in considering sentencing stated that, the status and the profession of the convict has to be taken into consideration. The Court per Dotse JSC at page 889 of the report said: “We are, however, of the opinion that the time has come for the courts of law to take into consideration, the status and type of profession and/or work the accused person does before sentence is imposed. For example, if an auditor, whose duty it is to check the accounts in the performance of their work either colludes or abets in the embezzlement of funds of the organization, one would expect the internal auditor to be drastically dealt with because it was he who abdicated his watchman role to facilitate the committing of the crime”. The maximum custodial sentence for the offence of stealing is 25 years imprisonment as stipulated under section 296 (5) of Criminal and Other Offences (Procedure) Act 1960 (Act 30). “A person convicted of a criminal offence under any of the following sections of the Criminal Offences Act, 1960 (Act 29), that is to say, sections 124, 128, 131, 138, 145, 151, 152, 154, 158, 165, 239, 252, 253, and 260 is liable to a term of imprisonment not exceeding twenty-five years.” The convict who was once Assistant Auditor and later became Manager ought to have known better and the consequences of his action. To borrow the words of Dordzie (Mrs) JSC in the case of COBBINA Vrs REPUBLIC (J3 7 of 2019, [2020] GHASC 4 (19 February 2020) “To hold such a position, generally, a high standard of integrity especially in matters of accounting is expected of him… we will reduce the higher sentence of 20 years imprisonment with hard labour by two years…The sentence of 20 years IHL on the charge of stealing is hereby reduced to 18 years imprisonment with hard labour.” The convict has been in custody since his first appearance in Court on 13th June, 2023 up to date. Pursuant to Article 14(6) of the 1992 Constitution, I am enjoined by law to consider the period the convict has already been in lawful custody into consideration before sentencing him. On the totality of the case, I hereby sentence the accused person to 12 years imprisonment in hard labour. I order that the convict refund cash the GHs 797,152.00 to Baobab Micro Finance Company Limited or in default serve two (2) additional years in prison. SGN HIS LORDSHIP ERIC ANSAH ANKOMAH JUSTICE OF THE HIGH COURT 32 33