REPUBLIC VRS KESSE (BR/SY/CT/529/2022) [2023] GHACC 1005 (14 December 2023)

IN THE CIRCUIT COURT HELD AT GOASO IN THE AHAFO REGION ON THURSDAY THE 14TH DAY OF DECEMBER 2023 BEFORE HIS HONOUR CHARLES KWASI ACHEAMPONG ESQ. CIRCUIT COURT JUDGE BR/SY/CT/529/2022 THE REPUBLIC VRS. KESSE RICHMOND JUDGMENT Accused person was a mobile banker working with the Dormaa Area Teachers‟ Co- operative Credit Union Limited hereinafter called the Company. In that capacity, his primary duty was to obtain monies from customers of the Company and deposit same on their behalf in their respective accounts held with the Company. It was the case of Prosecution however that, accused person in his line of duties, received various sums of monies from customers up to the tune of GH₵19,204.00 but failed to deposit these monies into the respective accounts of the customers. This issue only came to light when some customers sought to withdraw monies from their accounts only to realize that the balances in their passbooks did not match the balance in their respective accounts. Since accused person was the one liaising between the customers and the company, he was deemed culpable and a case of stealing lodged against him. Accused person was subsequently charged with the offence of Stealing contrary to section 124(1) of Act 29/1960. On the 16th of June 2022 accused was arraigned before the Court where he pleaded not guilty to the offence of stealing. By this singular act, accused had put Prosecution to strict proof of the offence levelled against him. Section 11(2) of the Evidence Act 1975 (NRCD 323) provides that; “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 the fact beyond a reasonable doubt.” Hence Prosecution is obligated to prove its case against accused person beyond reasonable doubt and this has been affirmed in a number of decided cases such as Tetteh vrs. The Republic [2001-2002] SCGLR 854, Dexter Johnson vrs. The Republic [2011] 2 SCGLR 601, Frimpong a.k.a Iboman vrs. Republic [2012] 1 SCGLR 297. Suffice it however, to note the observation of the Court in Commissioner of Police v. Isaac Antwi [1961] GLR 408 in which the Court stated; “The fundamental principles underlying the rule of law that the burden of proof remains throughout on the prosecution... it always rests on the prosecution to prove the guilt of the accused beyond reasonable doubt.” What constitutes proof beyond reasonable doubt was further explained in the case of Osei v. The Republic [2009]24 MLRG 203, C. A where the Court held that, “proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The Court would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence, „of course it is possible, but not at all probable‟, the case is proved beyond reasonable doubt, but nothing short of that will suffice”. The offence of stealing as noted earlier is proscribed under Section 124(1) of Act 29/1960 which provides that, “a person who steals commits a second-degree felony” while Section 125 attempts to explain how stealing can be said to have occurred as follows; “A person steals if he dishonestly appropriates a thing of which he is not the owner” Hence if a person is not the owner of a thing but dishonestly appropriates that thing, he has committed the crime of stealing. What then is dishonest appropriation? This is explained in Section 120(1) of Act 29/1960 as follows; “an appropriation of a thing is dishonest if it is made with an intent to defraud or 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 some person for whom he is trustee or who is owner of the thing, as the case may be, or that the appropriation would, if known to any such person, be without his consent.” With the above explanation therefore, one may deduce the following as the elements which require proof by Prosecution in order to secure a conviction; a) That the accused person must not be the owner of the thing allegedly stolen; b) That the accused person must have appropriated the thing; c) That the appropriation must have been dishonest. The above elements were identified in the case of The Republic vrs. Godwin Komla Amegbe & 15 Ors. (2017) JELR 107121 (HC) where the Court observed that in a charge of stealing, “the elements that the prosecution had to prove are; a. Appropriation, b. Which was dishonest c. Of a thing d. Belonging to another person other than the accused persons”. It follows therefore that the first issue for determination is whether or not the money in question belonged to any other person other than accused person. It is trite that a person cannot steal his own property, hence if it turns out that the thing alleged to have been stolen, in fact belongs to the accused person, the charge must automatically fail. The need to establish ownership is essential given the holding of the Supreme Court in the Domena vrs. Commissioner of Police [1964] GLR 563 which held that; “to succeed, the prosecution must prove either that the subject matter of the charge belongs to the person in whom ownership is laid in the charge or in the alternative that the accused is not the owner of that thing” In the instant suit, according to the particulars of offence, the accused person is alleged to have stolen an amount of GH₵19,204.00. This sum was however not without controversy given the fact that the sum stated on the charge sheet as that allegedly stolen was different from the amount which Isaac Owusu Adjei (Pw2) indicated in his evidence as the sum actually stolen. It was Pw2‟s contention that the money allegedly stolen amounted to GH₵20,254.00. According to him, he arrived at this total sum when the passbooks of 74 affected customers were assessed and a reconciliation was done with their respective statement of accounts. He then tendered Exhibit A, the audit report, to confirm the said figure. However his cross examination revealed that the sum of GH₵20,254.00 captured in Exhibit A was also not accurate since the audit had included one customer, Nimo Diana, who was in fact not a customer of accused person and ought not to have been included. This was admitted by Pw2 under cross examination as follows; “…I also wish to indicate that we have filed statement of Nimo Diana who accused alleged was not his customer. Indeed, her name should not have been there. There was an error in debiting her account hence that development” Consequently, neither sums of GH₵19,204.00 nor the GH₵20,254.00 bandied about by Prosecution were accurate and as such same cannot be relied upon by the Court is the sum actually missing or allegedly stolen. There was therefore the need to ascertain the accurate sum and this could be achieved by a reconciliation of the passbooks and statement of accounts of the respective affected customers. Unfortunately, Prosecution only managed to procure and tender the passbooks and statements of accounts of only 13 customers out of the 74 customers allegedly affected. The reason for Prosecution’s inability was not far-fetched as Pw2 indicated that some customers could not be met and hence their passbooks could not be retrieved. He further stated that, other customers had since changed their passbooks and had been issued with new ones. These reasons are in the view of the Court reasonable given the fact that it was well over six (6) months since the audit was carried out and circumstances would have changed. Nevertheless, by virtue of this handicap, the Court is only able to reconcile the figures as captured in the passbooks and statement of accounts available to it which were tendered and marked as Exhibits G series to V series. The details of the relevant customers are as follows; NAME AMOUNT GH₵ EXHIBIT 1. AYARICK NAOMI 150.00 G series 2. SAMUEL ADUHENE 100.00 H series 3. POWER ARTHER 800.00 J series 4. PAUL ABANGA 3,966.00 K series 5. ANOKYE JOSEPH 6. ABDUL KARIM LATIF 7. OPPONG ERNESTINA 89.00 50.00 L series M series N series 8. FREMA MAVIS 110.00 P series 9. ALEX BEDIAKO 90.00 Q series 10. GLADYS EFFAH ADDAI 275.00 S series 11. TUTUWAA COMFORT 20.00 T series 12. ADAM LATIF U series 13. Loku Gideon 55.00 V series TOTAL 6,205.00 Consequently, the total sum of money which this Court has verified as the amount actually missing or allegedly stolen is GH₵6,205.00. There is no doubt that this sum would certainly have been higher had Prosecution managed to procure the respective pass books and accompanying statements of account for the remaining customers who were affected. With the above finding, the question therefore to ask is whether or not the sum of GH₵6,205.00 belongs to any other person other than accused person. By now, one gets the hint that that sum in question does not belong to accused person for a number of reasons as shall be seen subsequently. Firstly, the particulars of offence indicates that ownership of the said money was vested in the customers of the Company and this was confirmed by Twumasi Kwasi (Pw1), the branch manager of the Company at Kasapin who testified to the effect that the Company discovered some imbalances in the accounts of some customers whose monies were usually collected by accused person as their mobile banker. Secondly, Pw2 the internal auditor of the Company corroborated Pw1‟s assertion. The import of their respective testimonies was that the amount in question, that is, the amount representing the imbalances in the accounts of the customers which has been verified by the Court as amounting to GH₵6,205.00, were apparently monies belonging to the customers. Accused person had the opportunity to cross examine both witnesses, he however did not challenge them on the ownership of the money allegedly stolen. In fact, never at any point in time did Accused person allege that the sum of money he is alleged to have stolen belonged to him. This Court therefore has no difficulty in holding that the monies in question did not belong to accused person and given his failure to challenge Pw1 and Pw2 as to the ownership of the monies, accused person is deemed to have admitted the truth of same. The case of Republic vrs. Kwame Amponsah & 6 ORS (2019) JELR 107122 (HC), discussed the legal effect of a party’s failure to cross examine on material facts. The Court in that case, observed that a “…failure by the defence to cross-examine amounted to an admission by the defence”. Consequently, this Court finds that the monies allegedly stolen belonged to the customers of the Company and not accused person. Now, if the money allegedly stolen did not belong to accused person, did accused person appropriate same? This question seeks to ascertain whether or not accused person appropriated the sum of GH₵6,205.00. However, since the sum GH₵6,205.00 is the cumulative sum of various amounts of monies received from individual customers, all Prosecution had to do was establish a single appropriation from a single customer and the second element would have been made out. Section 122(2) of Act 29/1960 explains appropriation to mean; “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.” Flowing from the above explanation and given the facts as adduced by Prosecution, the issue can be reformulated as follows, that is, whether or not accused person dealt with monies amounting to GH₵6,205.00with the intent of depriving the respective customers of the benefit of their ownership? In support of Prosecution’s case, Pw2 testified in paragraphs 3 and 8 of his witness statement as follows; “3. That the credit union discovered some imbalances in the books of some customers whom accused go and collect monies from them as a mobile banker. 8. that accused having collected the said amount failed to deposit the amount into the account of the customers.” (sic) In other words, Pw2 was alleging that accused person received monies from customers in his capacity as a mobile banker, yet accused person failed to deposit these monies into the accounts of the respective customers thereby causing certain imbalances in their accounts. In proof of this assertion, Pw2 tendered 13 passbooks and account statements representing 13 affected customers and a perusal of these revealed very interesting facts. Firstly, an analysis of these passbooks and account statements revealed that accused person stopped working for the Company in the month of March 2021 as all transactions relating to him ended that very month. Furthermore, the passbooks and account statements confirmed that these 13 customers indeed had accused person as their liaison officer or rather mobile banker as his signature is riddled in each of the passbooks and his name is found in some corresponding deposits in the respective account statements. The evidence further revealed that any transaction which bore the name of accused person beyond March 2021 was only an attempt by the Bank to Credit the respective customers‟ account with the sums missing from the accounts and such transaction was not a deposit made personally by accused. With this in mind I shall proceed to give an analysis of the respective exhibits to determine whether or not accused person has appropriated any monies not belonging to him. According to Exhibit H series between 3rd of April 2020 and 28th January 2021, accused person is alleged to have received a total sum of GH₵ 5,950.00 from Samuel Aduhene. He however deposited only an amount of GH₵5,840.00 leaving a balance of GH₵110.00 which remains unaccounted for. In Exhibit J series which involves the account of one Power Arther, Prosecution alleges that accused person failed to deposit an amount of GH₵800.00 which he received on the 12th of March 2021. Indeed, a perusal of the passbook of the said customer indicates that on the 12th of March 2021, accused person received an amount of GH₵800.00 but this was never credited to the account of Power Arther. In other words, accused person never deposited the said GH₵800.00 into the customer’s account. By the statement of account, a transaction was however recorded on the 2nd of June 2021 which narration read, “being uncredited cash deposit to ……Power Arther as at 12/3/2021 by Kesse Richmond”. However, this subsequent credit to the account of the customer was not the doing of accused person but it was a credit made by the company to offset the imbalance in the customer’s account. Consequently, the sum of GH₵800.00 remains unaccounted for by accused person. With regards to Exhibit K series which involved the customer called Paul Abanga, an analysis of his passbook and his statement of account revealed that between the period 3rd November 2020 and 18th March 2021 the accused received a total sum of GH₵9,485.00 but only deposited a total amount of GH₵5,460 leaving a balance of GH₵4,025.00 outstanding. Exhibit L series involved the customer Anokye Joseph and his passbook indicates that on the 10th of February 2021 he gave accused person an amount of GH₵600.00, however there is no corresponding deposit of that amount in the account of the customer. The only deposit that is recorded subsequently is a transaction that took place on the 10th of May 2021 on which day an amount of GH₵89.00 was deposited into the account which had the transaction narration, “being uncredited cash deposit to Anokye Joseph as at 10/2/21 by Kesse Richmond”. However, this deposit can also not be attributed to the accused person given the fact that by that time accused person had vacated his post and it was an attempt by the company to liquidate the debt caused by accused person. It follows therefore that the sum of GH₵600.00 still remains unaccounted for by accused person. In Exhibit M series, between 17th February 2021 and 25th March 2021 accused person is alleged to have received from Abdul Karim Latif a total amount of GH₵1037.00 but accused person only deposited an amount of GH₵1007 leaving a balance of GH₵30.00 unaccounted for. With regards to Exhibit P series, between 6th July 2020 and 16th March 2021, accused person received from Fremah Mavis a total amount of GH₵1,550.00 but deposited the sum of GH₵1,430.00 leaving a balance of GH₵120.00 outstanding. Furthermore, according to Exhibit Q series between 15th March 2021 and 25th March 2021 accused person received from Alex Bediako a total sum of GH₵210 but only deposited a total amount of GH₵150.00 indicating that an amount of GH₵60.00 remained outstanding which Accused person could not account for. In Exhibit S series, accused person received from Gladys Effah Addai a total sum of GH₵910.00 between 2nd October 2020 and 12 March 2021. However, the statement of account indicates that accused person only deposited a total sum of GH₵635.00 leaving an outstanding sum of GH₵275.00. Exhibit T series also reveals that between 22nd January 2021 and 25th March 2021, accused person received from Tutuwaa Comfort the total sum of GH₵760.00 but deposited into her account a total sum of GH₵740.00 leaving a balance of GH₵20.00 unaccounted for. In Exhibit U series Adam Latif, the customer, gave accused person a total sum of GH₵1,000.00 between the 3rd of February 2021 and 10th March 2021 but accused person only deposited a total sum of GH₵878.00 within that period leaving a balance of GH₵122.00 and lastly per Exhibit V series, accused person is alleged to have received an amount of GH₵330 from Loku Gideon for the period between 1st December 2020 and 2nd June 2021. Accused person however deposited a total amount of GH₵275 leaving a balance of GH₵55.00. In summary, by virtue of Exhibits H, J, K, L, M, P, Q, S, T U and V series, this Court finds that accused person received a total of GH₵6,217.00 being a total of the various monies he obtained from various customers as a mobile banker. This money was however never deposited into the respective customers‟ account by accused person. By virtue of Section 122(2) of Act 29/1960 this Court finds that accused person appropriated the money in question. Despite the above finding the offence is not established unless Prosecution leads further evidence to establish that the appropriation was in fact dishonest. An appropriation of a thing can be said to be dishonest in two main ways which are; i. ii. If it is made with an intent to defraud; or 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 some person for whom he is trustee or who is owner of the thing, as the case may be, or that the appropriation would, if known to any such person, be without his consent.” Consequently, if there is a clear case of an intent to defraud for which another‟s property was disposed of, one can say that the appropriation was dishonest. Section 16 of Act 29/1960 explains an intent to defraud to mean “an intent to cause, by means of such forgery, falsification, or other unlawful act, any gain capable of being measured in money, or the possibility of any such gain, to any person at the expense or to the loss of any other person”. Hence, where a person forges of falsifies documents or does an unlawful act in order to obtain something belonging to another person, the person is said to have an intent to defraud. This case however revolves around the second type of dishonest appropriation which is deemed to have taken place if it is established that; a. accused person has no claim of right over the item appropriated; and b. that the appropriation was without the consent of the owner or beneficiary or if such owner or beneficiary would not have consented to such appropriation in the first place if he/she had known prior to the act. In this case, the evidence as adduced by Prosecution establishes that accused person had no claim of right over the respective monies given to him by his customers. His duty was simply to receive the monies from these innocent customers and subsequently deposit same in their respective accounts which he failed to do. On his part, accused person raised issues with the only two of Exhibits tendered by Prosecution in support of its case, these Exhibits related to one Diana Nimo (Exhibit B series) and one Luku Godfred. According to accused person, these persons were never his customers and so any monies missing from their accounts cannot be attributed to him. As noted earlier, Pw2 admitted that Diana Nimo was not the customer of accused person it was for this reason that the Court excluded her statement of account Exhibit B from its analysis and made no reference to it in the final determination of the suit. With regards to the said Luku Godfred however, there is no evidence on record bearing the customer name Luku Godfred. The closest similar name is Loku Gideon (Exhibit V series) if Loku Gideon was the customer accused was referring to then his assertion cannot be supported by the evidence on record for Exhibit V series reveals that accused person received various sums of monies from the said Loku Gideon and deposited some monies into the customers account. It is therefore not true that Accused person never collected any monies from him as he alleged. Accused person further disputed the accuracy of Exhibit A, the audit report and indicated that same could not be relied upon. Accused is right to dispute Exhibit A especially when Pw2 admitted that a customer was included which in actual fact she ought not to have been part of the list. Prosecution‟s saving grace was the fact that they tendered the passbooks and account statements of some of the customers numbering about thirteen (13). However, three of these passbooks and account statements could not be relied upon by the Court in its analysis. These were; i. ii. The account statements and passbook of Nimo Diana tendered and marked as Exhibit B series and Exhibit 1 respectively. The passbook and account statement of Ayarick Naomi tendered and marked as Exhibit G series. iii. The passbook and account statement of Oppong Ernestina tendered and marked as Exhibit N series Without sounding repetitive, as noted earlier, Nimo Diana was not the customer of accused person hence there was no need to include her account details in the evidence analyzed by the Court. With regards to Exhibit G series relating to the passbook and account statement of one Ayarick Naomi. The Court observed that the account number on her passbook differed from the account number on her account statement, hence same was not useful in establishing any culpability on the part of accused person. Likewise Exhibit N series which revealed that the passbook and account statement of Oppong Ernestina bore different account numbers hence same was not useful in proof of accused persons culpability. Aside the above identified exhibits, all the other documents which were tendered by Prosecution in the course of the trial namely Exhibits H, J, K, L, M, P, Q, S, T U and V series were sufficient in the view of the Court, in establishing the fact that accused person dishonestly appropriated the sum of GH₵6,217.00. The evidence further revealed that even in cases where the accused person paid monies into his customers‟ accounts, he never did so promptly but took several days, and in some cases weeks, before depositing the monies into the customers‟ accounts and when he did deposit the monies, he most often than not deposited only a portion of it. Accused person per his Defence failed in the view of the Court provide any reason or explanation for his conduct thus failing to raise any doubt in the case of Prosecution. For this reason, this Court finds as established beyond reasonable doubt that accused person stole the some of GH₵6,217.00 belonging to customers of the Company. Accused person is accordingly found guilty on the offence of stealing and hereby convicted. It is true that had Prosecution managed to procure all the passbooks and account statements of all the customers affected, the amount of money found to have been stolen by accused person would very much have been larger than that found by the Court. the Company may institute a civil suit against accused person to claim any excess sum not established by this judgment. Given the fact that accused person stood in a fiduciary position by virtue of his office as a mobile banker, his conduct betrayed the trust his customers had in him as well as that of his employers. A punitive sentence would therefore suffice. However, my attention has been drawn to the fact that the parties have entered into an agreement by which accused person is to pay the company the entire sum this Court has found as stolen by him as well as all other sums outstanding. This is a mitigating factor which the Court shall take into consideration as well as the fact that accused is young and a first-time offender. This suit shall be adjourned for sentencing in order for the said agreement to be furnished the Court on the next adjourned date. Accused person is remanded into prison custody. SGD H/H CHARLES KWASI ACHEAMPONG ESQ. CIRCUIT COURT JUDGE - GOASO 16