REPUBLIC VRS YOKPO (D2/296/19) [2023] GHACC 1057 (6 December 2023)

IN THE CIRCUIT COURT ONE HELD AT ACCRA ON TUESDAY, 6TH DECEMBER, 2023, BEFORE HER HONOUR AFIA OWUSUAA APPIAH (MRS), CIRCUIT COURT JUDGE CC NO.: D2/296/19 THE REPUBLIC V THOMAS YOKPO ACCUSED PERSON JUDGMENT Section 124(1) of the Criminal Offences Act 1960, Act 29 (hereinafter referred to as Act 29) provides that stealing is second degree felony. Stealing is defined under Section 125 of Act 29, as follows; “A person steals if he dishonestly appropriates a thing of which he is not the owner” Accused person stands charged with stealing cash sum of $16,000 the property Madaihli Fadlelah contrary to section 124(1) of Act 29 per the particulars of the offence. Per the facts of the case attached to the charge sheet are as follows “Complainant Mdaihli Fadlelah is a business man and lives at Regimmanuel Estate on the Spintex road whilst the accused Thomas Yokpo is a househelp for the complainant and lives in the complainant's house. On 14" March 2023, the complainant gave an amount of $16,000.00 US Dollars to the accused person to be given to one Ali on the Spintex road but the accused person after receiving the money abscond with same together with the complainant's Apsonic motorbike with registration number M-22-GT 1613 valued GHC 8,000.00 to an unknown destination. In the cause of investigation, Police had information that the accused person left the motorbike with a friend in Koforidua who is a witness in the case and traveled to Nigeria for Greener Pastures. On 27 September 2023, Richmond Annin, the accused person's friend in Koforidua was arrested and through him the accused person came from Nigeria to Ghana and was subsequently arrested on the 30th September 2023. In his cautioned statement, the accused person confessed to the offence as stated in the charge sheet and mentioned that it was his friend one Gideon who is now at large aided him to abscond with the money and the motorbike. The motorbike has been retrieved and is currently with the Police. After investigations the accused person was charged with the offence as stated in the charge sheet and put before this honourable Court. Accused person pleaded not guilty to the offence upon his arraignment before court on 12/10/2023. In every criminal prosecution, when an accused person denies an offence, prosecution assumes a statutory obligation to prove beyond reasonable doubt the guilt of accused. Section 11(2) of the Evidence Act, 1975, NRCD 323 (hereinafter referred to as NRCD 323) with specific reference to criminal cases 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 the fact beyond reasonable doubt.” Also Section 13(1) of NRCD 323 provides “in any civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt”. Further, Section 15(1) of NRCD 323 also provides that “unless and until it is shifted, the party claiming that a person is guilty of a crime or wrong doing has the burden of persuasion on that issue”. TAMAKLOE VS THE REPUBLIC (2011) SCGLR 29 at 46 holds that, where a statute creates an offence, it is the duty of the prosecution to prove each and every element of the offence which is a sine qua non to securing conviction, unless the same statute places a particular burden on the accused. The fundamental and the cardinal principle as to criminal burden of proof on the prosecution should not be shifted even slightly. See also the case of KWAKU FRIMPONG VRS THE REPUBLIC (2012) 45 GMJ, 1 SC which establishes that the burden of proof remains on the prosecution throughout the trial, and it is only after a prima facie case has been established that the accused will be called upon to give his side of the story. Prosecution’s case was made by the evidence of two witnesses. Complainant testified as PW1 whilst the investigator of the case testified as PW2. PW2 tendered in evidence the following documents in evidence; i) Investigation caution statement of accused dated 3rd October, 2023 marked of exhibit A Police wireless message marked B Photocopy of form C of Apsonic motorcycle marked exhibit C Charge statement of Accused dated 3rd October, 2023 marked exhibit D. ii) iii) iv) Complainant who testified as PW1, stated that accused Person was his house help before the incident. According to him, on the 14th of March 2023 at about 3pm, he gave an amount of $16,000 in an envelop to accused to be sent to his brother Ali Mdaihli at Regimanuel Estate, Spintex road, Accra. Accused after receiving the money absconded with it together with the motorbike with Registration number M-22-GT 1613 which he sent him with. The investigator of the matter PW/Inspector Abigail Quarcoopome in her testimony before the court stated that on 14th March 2023, a reported case of stealing was reported and same referred to her for investigations. After taking down the statement of PW1, she sent a wireless message to all police stations throughout the nation for the arrest of accused person. During investigations, it came to light that accused person also took the Apsonic motorbike he was sent with to a friend in Koforidua and travelled to Nigeria. On 27th September, 2023, Richmond Annin, the friend of accused who had the motorbike with him in Koforidua was arrested with the motorbike and later granted bail to assist in arresting the accused person. On 30th September, 2023, accused person was lured back to Ghana through the effort of Richmond Annin and arrested. During the taking of the investigation caution statement of accused, he confessed to using $200 to play bet, travelled to Nigeria with the remaining amount on the advice of one Perry to invest same in Oil business. According to PW2 accused stated that the said Perry collected $890 to start the process but bolted to back to Ghana with the money. She continued that accused became stranded in Nigeria and decided to use the remaining $4,500 to trade in phone and accessories but he was defrauded in the process. In his defence, accused testified that he is a gardener. He denied the assertion of the police that he had stolen $16,000 and a motorbike from Madaihli Fadlelah. According to accused, when he was sent by PW1 with the amount of $16,000, he left the motor bike with him his friend Richmond and travelled to Nigeria. He stated that he does not know why the police have left the said Richmond off the hook when PW2 in her witness statement at paragraph 7 stated that on 27th September 2023 Richmond Anin was arrested riding the motorbike in Koforidua. According to accused after his master PW1 gave the money to him he went to Nigeria but it wasn’t his own will. He stated that returned from Nigeria because of Richmond. Before he came back to Ghana he heard the motorbike he had left with Richmond had been in custody of Manet Police without my friend Richmond. In view of that I decided to come and investigate the reason why the motorbike was at the police station. He contended that he was sent to go and give the said money to someone but based on the breach of his agreement with his boss, PW1, he decided to go with the said money. In construing section 124(1) of Act 29, the Court in BROBBEY AND OTHERS v. THE REPUBLIC [1982-83] GLR 608-616 at page 610 stated that the essential elements of the offence of stealing as follows; (i) the person charged must have appropriated 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.” In the case of Republic vrs Mallam Ali Yusuf Isa suit No FT /MISC 2007 the trial judge outlined what constituted stealing: He stated thus: “For the offence of stealing to be constituted, therefore the relations, acts and intention to be proved in connection with the thing are: (i) That the person charged must not be the owner of it. (ii) That he must have appropriated it and (iii) That the appropriation must have been dishonest. In analyzing the first element that the accused person must not be the owner of the thing stolen I would refer to the case of Republic vrs Halm and Another (1969) CC 155 C. A, where it was held that “ On the issue of ownership… a charge of stealing is founded not on a relationship between the person charged and an identified owner but on the relationship between the person charged, and the thing alleged to have been stolen. Therefore the law only required proof that the accused was not the owner of the chattel. . Section 122 of the Criminal Offences Act 1960 Act 29 dealing with acts, which amount to an appropriation provided in subsection (2) 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 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” Therefore to amount to an appropriation in our criminal law, an offence against the right of property, the prosecution must prove that the accused took, moved, obtained or carried away the thing and he did so with the intention to deprive some person of the benefit of his ownership. Counsel for accused contends through his cross-examination of PW1 and PW2 that because PW1 had given the money to accused, accused person became the legal owner of the money holding same in trust for PW1. He further contended that the proper charge that should have been preferred against accused is fraudulent breach of trust. Section 128 of Act 29 provides that “A person who commits a fraudulent breach of trust commits a second degree felony. Fraudulent breach of trust is defined under section 129 of Act 29. Per the section a person commits a fraudulent breach of trust if that person dishonestly appropriates a thing the ownership of which is invested in that person as a trustee for or on behalf of any other person.(emphasis mine) From this provision, the ingredients of the offence of fraudulent breach of trust are as follows; i. There must be a property invested in accused person as a trustee for and on behalf of another person. (iv) Accused must have appropriated the thing vested in him. (v) the appropriation must be dishonest From the definition above, the contention of counsel for accused in the opinion of the court is flawed. From the evidence on record, he money was given to accused with specific instructions to give or deliver same to Ali Madhahli. At no point in time was the money invested in accused as a trustee. The Criminal Act further defines what amounts to dishonest appropriation. Per section 121 (1) of Act 29 " 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. The Supreme Court held in the case of AMOAKO V. COMMISSIONER OF POLICE [1961] G. L. R. 134, that where an accused person had been charged with stealing, it was necessary for the prosecution to prove dishonest appropriation and fraudulent intent on the part of the accused, otherwise the charge could not be sustained. DATEH-BAH JSC in the case of OSEI KWADWO II V THE REPUBLIC, discussed the elements of stealing expatiated on this section thus, “this provision appears to establish three disjunctive criteria for determining dishonest appropriation. The first criterion is that of an appropriation made with intent to defraud. The second is an appropriation made without a claim of right and with a knowledge or belief that it is without the consent of the owner of the thing or of the beneficiary for whom the appropriator is a trustee. The third criterion is where the appropriation, if known to the owner or the beneficiary of the trust, would be without his consent”. In the case of Ampah and Another vrs the Republic (1976) 1 GLR 403, the appellants were convicted of stealing. On appeal, their appeal were dismissed because there was enough evidence of dishonesty, appropriation and property belonging to another. The court indicated that there are two kinds of dishonest appropriation: an appropriation made without a claim of right, and an appropriation without the consent of the owner. The court further held that proof of either one would be sufficient evidence of dishonest appropriation. Prosecution’s evidence in support of the charge against accused person is that accused person on the 14th of March 2023 PW1 sent accused person with the sum of $16,000 to be given to one Ali Mdaihli. Accused person instead of sending the money to the said Ali, took the money away to Nigeria without the consent of PW1 thereby depriving PW1 and or the said Ali of the amount of $16,000. Accused however in his defence contends that he took the said amount because PW1 had breached the agreement they had reached during his employment and therefore his actions did not amount to dishonest appropriation. Per this evidence, accused without the knowledge and consent of PW1 took the $16,000 and left with same to Nigeria. Accused contends on oath that he took what the money because PW1 had failed to honour the agreement they had as part of his employment. Can this the act of accused taking the dollars without the knowledge or consent of PW1 amount to a claim of right? A claim of right is a defence in law. Therefore the claim being laid by accused must be a lawful claim and an enforceable claim. The alleged agreement between accused and PW1 which PW1 had failed to honour and for which reason accused decided to take the said $16,000 was not made known to the court. There must be certainty to every agreement. In exhibit A, accused person narrated to PW2 how he used $100 to bet and later went to Koforidua and was advised by one Gideon and Perry to invest the remaining amount in Oil business and was finally defrauded by the said Perry and some people in Nigeria. He stated he lost all the money and got stranded in Nigeria with no money to return to Ghana until his friend Richard sent him money to come return to Ghana and he was arrested. Per the statement of accused in exhibit A, he carried away the money of PW1 without the consent of PW1. Accused intended to deprive and did deprive Pw1 and Ali of the use of the said $16,000. The court finds and holds that accused dishonestly appropriated $16,000 belonging to PW1. The defence of accused therefore woefully fails to raise doubt in the mind of the court as to his guilt in dishonestly appropriating dollars belonging to PW1. Prosecution therefore at the end of trial has proved beyond reasonable doubt the guilt of accused and the court accordingly convict her of same. SENTENCING Taking into consideration the facts of the case, pre-sentence trial conducted in open court, the amount the court finds to have been stolen from PW1 $16,000 the age of accused i.e 27year, sentenced to 2 years 6months imprisonment IHL. Retrieved motorbike to be released forthwith to Complainant forthwith. ACCUSED PRESENT INSP. WISDOM ALORWU FOR PROSECUTION PRESENT. MR EDWARD AMAKO FOR ACCUSED PRESENT H/H AFIA OWUSUAA APPIAH (MRS) (CIRCUIT COURT JUDGE) 10