REPUBLIC VRS KODANE (UE/ NA /DC /B7/45/2023) [2023] GHADC 1272 (14 December 2023)

IN THE DISTRICT COURT HELD AT NAVRONGO IN THE UPPER EAST REGION ON THURSDAY THE 14TH DAY OF DECEMBER, 2023 BEFORE HIS WORSHIP FAMOUS YAO AMANYO (DISTRICT MAGISTRATE) SUIT NO. UE/ NA /DC /B7/45/2023 THE REPUBLIC V DESMOND KODANE JUDGMENT [1]The Accused was arraigned before this court on 23rd May, 2023 on two counts of stealing contrary to section 124 (1) of the criminal offences Act, 1960(Act 29). He was convicted on count one upon a plea of guilty but the sentence was deferred till completion of trial on count two to which he pleaded not guilty. [2]The facts are that PW1 is a business woman dealing in Agro chemicals and floor tiles. She resides at Nogsenia. Accused is unemployed and lives at Pungu. Accused was employed by PW1 as her salesman at her tiles shop at Nogsenia Navrongo. On 22nd August, 2022 PW1 instructed accused to convey some quantities of floor tiles from her warehouse at fire service yard at Navrongo to the tiles shop at Nogsenia. Accused together with loading men conveyed the tiles to the shop. [3]On 8th April, 2023 accused dishonestly appropriated five boxes of butaplus chemicals from PW1’s shop. In the course of investigations in the butaplast chemical case, a search was conducted in accused’s room. It was discovered that accused used some of the tiles he conveyed to the shop, in his room with two boxes he left unused. In all accused used twenty boxes of floor tiles in his room. [4]Prosecution relied on two witnesses to prove its case against accused. PW1, Ayishetu Ibrahim stated that she employed accused in 2019. On 22nd August, 2022 she asked accused to convey 270 boxes of rastic and twyford floor tiles from her warehouse to the shop at Nogsenia. Accused sent the tiles to the shop. She instructed accused that he should not sell the 270 boxes of the tiles because it was a special order. On 8th April, 2023 she caught accused with five boxes of her butaplus chemicals and reported the matter to the police. A search was conducted in accused’s room and two boxes of twyford floor tiles were found and retrieved from Accused. On 10th May, 2023 an inventory of the tiles store at Nogsenia was taken in the presence of herself, the police and accused. It was detected that the Accused stole 115 twyford floor tiles valued GH¢17,625.00. [5]PW2, D/Inspector Dramani Mahamadu is the investigator in the case. According to him, he was on duty when PW1 came with five boxes of butaplus chemicals and made case of stealing against Accused. Accused upon arrest led him to Accused’s room and a search revealed two boxes of twyford floor tiles in the room. Accused admitted in his caution statement that he stole eleven boxes of floor tiles from PW1’s store. And that he used nine boxes in tiling the floor of his room. On 29th May, 2023 he returned with accused to his house and counted the tiles he admitted to have stolen and used on his floor and found that they were twenty boxes. He tendered the caution statement, charge statement, photograph of the two boxes of floor tiles retrieved, photograph of the remaining 155 floor tiles and the floor tile the Accused allegedly stolen and used in his room marked as Exhibits A, B, C, D and E respectively. [6]Accused remained in the dock and made a statement as his defence. Accused stated that there was no written document between him and PW1 concerning the tiles he took from PW1’s store. He and PW1 did not call anybody to serve as a witness. The agreement was between him and PW1. As an employer and employee he was the one taking care of the tiles shop. When he closed he rendered account. On the day he took the tiles, he informed PW1 he has a building where he needed tiles to use in the room, so that she would deduct the money from his salary. According to Accused, PW1 agreed. At the end of May, 2020 PW1 did not deduct any money from his salary. In June, 2020 PW1 did not pay his salary. Accused did not call any witness. [7]There is burden on both prosecution and accused in this case. Prosecution’s burden is to produce sufficient evidence in proof of this case against accused beyond reasonable doubt. Accused has burden to produce sufficient evidence to raise doubt as to his guilt if the need arises. Sections 11(2) and 11(3) of the Evidence Act, 1975 (NRCD 323) provide for these burdens. The provision in 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 prosecuton to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt. [8]The standard to which prosecution ought to prove its case and which is prove beyond reasonable doubt was explained in Adwoa Manso v The Republic [2009] MLRG 154 CA as follows “the doubt which is expected to be beyond reasonable doubt needs to reach therefore of certainty. It does not need to proof beyond the shadow of doubt but the same time, it should not be fanciful, it should not lead to fanciful possibilities or raise fanciful possibilities”. [9]On the part of accused section 11(3) provides that “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 the evidence a reasonable mind could have a reasonable doubt as to guilt. [10]In Mallam Ali Yussif v The Republic [2003-2004] SCGLR 174 the Supreme Court noted that “the burden of producing evidence and the burden of persuasion are components of the burden of proof. Thus although an accused person is not required to prove his innocence during the course of his trial, he may run a risk of non-production of evidence or non-production to the required degree of belief, particularly when he is called upon to mount a defence”. [11]Prosecution discharges its burden in the case of stealing if it proves the essential elements such as appropriation, dishonesty and that the person who steals was not the owner of the thing appropriated. [12]In Brobbey and others v The Republic [1982-1983] GLR 60 Twumasi J (as he then was) held in holding 2 that “by the provision of Act 29 section 125, the essential elements of the offence of stealing were that (i) the person chaged must have appropriate the thing allegedly stolen (ii) the appropriation must be dishonest and (iii) the person charged must not be the owner of the thing allegedly stolen. Consequently a person could not be guilty of stealing unless he was proved to have appropriated the thing in the first place”. [13]In this case, it was alleged that accused conveyed 270 tiles from PW1’s warehouse to her store at Nogsenia. Accused sought to deny that he was present when the tiles were counted in cross examination of PW1 as follows:- Q: Before the tiles were conveyed to store did you count them in my presence. A: Yes Q:-That is not true because I was not there at the time you were counting the tiles. A:-You were there. When we finished counting, I left the key with you and the Engineer from the Assembly who was there to see to it that I vacate the place because the District Assembly needed the place. Q:-Since we moved the tiles to the new place has the place been opened for business. A:-The key has been with you since. You have been going there. Q:-I put it to you that when I handed over the keys to you, you also visited the store. A:-That is not correct. When your brother brought the keys I hanged them in my inner room of my second store. [14]I am of the view that if really accused was not present when the tiles were counted, he must have asked for the number or counted them himself when he finally conveyed them to the shop at Nogsenia. A prudent salesman would usually know the quantity of goods in his store at the beginning of his operations. Moreover he was unable to tell the number he admitted to have conveyed to the shop at Nogsenia. [15]I am not told whether the Engineer took part in the counting. He was said to be present when the key was handed over to Accused. Accused did not challenge the handing over of the key to him but tried to introduce evidence to show that he was outside when the tiles were counted. He did so in cross examination of PW2 as follows: Q. You said it was I, Engineer and PW1 who counted but PW1 said I was outside and she and Engineer counted the tiles. A. I never heard PW1 said that you were outside when the tiles were counted. [16]There is nowhere in PW1’s evidence which shows that accused was outside at the time the tiles were counted. So accused was only trying to put words in the mouth of PW2. [17]PW2 also stated that apart from the two boxes of tiles found and retrieved from Accused’s room, he counted the tiles accused used in tiling his floor and he got twenty boxes. He tendered photograph of these tiles as Exhibit ‘E’ without objection from Accused. Accused did not challenge the number of tiles found in his room. Rather, he stated that that the tiles in Exhibit ‘C’ and ‘E’ were the tiles found in his room and they are 6o by 60 polished tiles and not Twyford and Rustic tiles. [18]In cross examination of PW2 by accused the following transpired:- Q:-When you were searching for items to incriminate me, was the tiles the only item you saw in my room. A:- Yes, Q:-What type of tile case has PW1 reported to you? A:-Twyford and Rustic tiles. Q:-What type of tiles did you find in my room. A:-I found both tiles; twyford and Rustic Q:-Exhibits C and E are the tiles found in my room and these tiles are 60 by 60 polished tiles not Twyford and Rustic tiles. A:-The Exhibits shown to me are the photograph of the tiles I found in your room. [19]Comparing the tiles in Exhibits ‘C’ and ‘E’ to the content of Exhibit ‘D’ there is no noticeable difference as accused tried to portray. Exhibits C and E are the same as the tiles in Exhibit D. [20]In Exhibit A accused confessed he stole eleven boxes of floor tiles from the shop and took them to his house. And that these tiles were valued at GH¢715.00. He used nine in his room leaving two boxes unused. [21]PW2 tendered exhibit A with objection from Accused. Which objection was overruled. In cross-examination of PW2 by accused, accused denied making the statement in Exhibit A as follows:- Q:- When you were investigating about the tiles what did I tell you? A:-You admitted that you stole the tiles from PW1’s shop. Q:-I put it to you that I told you I had an agreement with PW1 about payment for the tiles. And that since from the day of agreement she has not been paying me. A:-You admitted in your caution statement that you stole the floor tiles from PW1’s shop and went further to append your signature to the statement. Q:-When you called me, I signed in respect of the Butaplus case and not tiles case. A:-You signed in the Butaplus case and also in the tiles case on different dates. Q:-I can remember I signed only once. And it was my statement in Butaplus case which was read to me which I understood and which I signed not tiles case. A: - You signed in the presence of independent witness. [22]It is not in doubt that accused confessed to the crime in exhibit A as his denial to the making of the said statement was examined in a mini trial and a ruling given on it in favour of prosecution as a confirmation of the ruling on his objection to exhibit A at the time it was tendered. [23]In Ekow Russel v The Republic [2017-2020] SCGLR 469 Akamba JSC said “A confession is an acknowledgement in expressed words, by the accused in a criminal charge of the truth of the main fact, charge or of some essential part of it. By its nature, such statement if voluntarily given by an accused person himself, offers the most reliable piece of evidence upon which to convict the accused. It is for this reason that safeguard have been put in place to ensure that what is given as a confession is voluntary and without any fear intimidation, coercion, promises or favours.” [24]Use of confession statement criminal in trials was discussed in Francis Arthur v The Republic[2021] DLSC 11148 where Amegatcher JSC speaking for the Supreme Court referred to the cases of State v Aholo [1961] GLR 626, State v Otchere and Ors [1963] 2 GLR 463 and State v Owusu & Anor [1967] GLR 114 and noted “we are, therefore clear in our minds that the criminal jurisprudence of this court leans towards the conviction of an accused person based on voluntary confession to commission of a crime charged. However, we are aware that in the peculiar facts of some cases where the only evidence available to convict was the confession statement, the court decried the unreliability and indeed set aside a conviction solely on the confession without some corroborative evidence that the crime was committed and by accused person.” [25]In this case apart from the confession statement made by accused, prosecution found twenty boxes of tiles used by accused on the floor of his room. Prosecution retrieved two other boxes of tiles from Accused’s room. All these tiles are the same type of tiles Accused conveyed to the shop at Nogsenia. These show that the confession of accused to stealing the tiles does not stand alone but has an ample support of other cogent pieces of evidence of prosecution upon which accused could safely be convicted. [26]In accused’s defence, he stated in the dock that he had an agreement with PW1 to take the tiles and pay by installment from his salary. However when PW1 testified, the issue of agreement never came up. It only came up for the first time when accused cross examined PW2 as follows:- Q:-When you were investigating about the tiles what did I tell you? A:-You admitted that you stole the tiles from PW1’s shop. Q:-I put it to you that I told you I had an agreement with PW1 about payment for the tiles. And that since from the day of agreement she has not been paying me. A:-You admitted in your caution statement that you stole the floor tiles from PW1’s shop and went further to append your signature to the statement. [27]What was intriguing is, accused’s assertion that he had an agreement with PW1 and took eleven boxes of floor tiles. If indeed he took only eleven boxes, why did he not challenge PW2 when he stated in evidence in chief that on 29th May, 2023, he counted the floor tiles Accused admitted stealing and used in his room and found same to be twenty boxes valued at GH¢3,000.00. What accounts for the increase in number of the tiles accused used in the room. [28]In my opinion accused’s failure to challenge PW2 on the alleged twenty boxes of tiles found in his room shows his admission to that fact. Although Accused alleged that he had agreement with PW1 to purchase eleven boxes of tiles he could not explain the excess tiles found in his room. [29]In Rahim Ibrahim and 3 others v The Republic unreported Appeal No H2/2/2001 dated 18th July, 2017 Barbara Ackah-Yensu JA(as she then was) speaking for the Court of Appeal noted “Therefore, where evidence is adduced to show that an item found in the possession of an accused person was stolen, the accused person has the legal burden of proving how he came by that item.” So clearly accused failed to discharge his burden. [30]On the totality of evidence adduced by prosecution and accused, it became clear to me and I find and hold that prosecution’s version of this case is more probable than that of Accused. Accused has confessed to stealing the tiles and there is corroborative evidence by prosecution against accused. Prosecution has proved this case beyond reasonable doubt. [31]I therefore find Accused guilty on count two and he is convicted accordingly. [32]In sentencing accused I have given serious consideration to the fact that Accused is an employee of PW1. This relationship places accused in a fiduciary position. He is expected to exhibit utmost good faith towards PW1. Accused has breached this relationship. And this is worrying. I have also looked at accused plea for mitigation. Even though I am inclined to deal with him with mercy, I am mindful of the modern trend where employees take delight in dishonest appropriation of Employers property. This behavior ought not to be allowed to take root in our society else, there will be no future for job seekers. [33]I therefore sentence Accused to pay a fine of 150 penalty units on count one or imprisonment for six months IHL. On count two he is sentenced to pay a fine of 200 penalty units or imprisonment for eight months IHL. The sentences are to run consecutively. [34]Accused is ordered to pay GH¢1,000.00 compensation to PW1 for the trauma she is going through. He is again ordered to return the remaining tiles he had stolen from the shop or pay its purchase price to PW1. The tiles retrieved so far should be returned to PW1 forthwith. (SGD.) H/W FAMOUS YAO AMANYO (DISTRICT MAGISTRATE) REPRESENTATION 1. Chief Inspector Emmanuel Darko Nimako held brief of Inspector Francis Amana for Prosecution. 2. No representation for Accused person.