REPUBLIC VRS ASIAMAH (D7/79/2020) [2024] GHACC 218 (15 March 2024)

IN THE CIRCUIT COURT HELD AT AMASAMAN – ACCRA ON FRIDAY THE 15TH DAY OF MARCH, 2024 BEFORE HER HONOUR ENID MARFUL-SAU, CIRCUIT COURT JUDGE CASE NO. D7/79/2020 THE REPUBLIC VRS. FELIX ASIAMAH ACCUSED PERSON PRESENT PROSECUTION: ASP DORA AMOH PRESENT NO LEGAL REPRESENTATION JUDGMENT The Accused is charged with one count of stealing contrary to section 124(1) of the Criminal Offences Act, 1960, (Act 29). The facts as presented by prosecution are that the Accused is an employee of the complainant, Felix Sogbey. Prosecution says that on 19/12/2019, complainant called on the Accused to render account to him which was usually done weekly. Prosecution says that the Accused disclosed to complainant that on the previous day, whilst returning from work, he misplaced cash the sum of GHȼ8,000.00 but was unable to inform complainant until he was called to render account. According to Prosecution, a check on the Accused revealed that an amount of GHȼ6,300.00 could also not be accounted for hence a complaint was lodged at the Ofankor police station and the Accused was arrested. Based upon these facts he was arraigned before this court. Page 1 of 6 Prosecution called four witnesses in support of its case. PW1 was the complainant Felix Sogbey, PW2 was Agyei Elvis, PW3 was Opoku Benjamin and PW4 was the investigator D/PW/Cpl. Theresa Delali Amevor. PW1 testified that the Accused person had been an employee of his who was handling his mobile money shop at Muus. He testified that the Accused rendered weekly accounts to him at the end of each Saturday and on all transactions at the end of each month to enable him to pay him. According to him, on 16/12/2019, he waited for the Accused to render account, but he failed so he tried reaching the Accused on his mobile phone, but he was not getting him. He testified that later on the Accused called and informed him that he had lost an amount of GHȼ8,000.00 so he asked the Accused to meet him at the shop. He testified that when the Accused came, he checked all the transactions of the Accused and realized another shortage of GHȼ3,000.00. He testified that his worker named Benjamin Opoku informed him that Accused collected an amount of GHȼ1,400.00 but failed to pay. He stated that another worker named Agyei Elvis also complained that the Accused collected an amount of GHȼ1,400.00 from him but failed to pay. He testified that when the Accused was questioned as to where the total amount of GHȼ14,300.00 was, he could not give any tangible answer so he was reported to the police and arrested. PW2 testified that he is a mobile money vendor. According to him, on 18/12/2019 at about 3:30pm the Accused requested an amount of GHȼ1400.00 cash with the pretext that he had run out of cash which he was given but he failed to refund it. So, he was informed by PW1 that the said amount had been included in the amount he failed to render account to PW1. PW3 testified that he is a mobile money vendor. He stated that on 11/12/2019 at about 11:00am, Accused called to collect cash the sum of GHȼ9,000.00 that he was short of money and again at 12:00pm he collected GHȼ1,000.00 but has since not returned the money to him. He testified that since they work for the same person, they are allowed to send money to another when he is short of physical cash and return it when they Page 2 of 6 receive cash, but the Accused failed to do that, so he complained to PW1 and he added it to the Accused person’s accounts he failed to render. PW4 testified that she is stationed at the Ofankor S.C.I.D. According to her on 19/12/2019, PW1 reported to police that his sales boy being the Accused had stolen cash sum of GHȼ14,300.00 after rendering accounts. She testified that she obtained witness statements and on the same day arrested the Accused. She tendered the following: - Exhibit A: Statement of Felix Sogbey - Exhibit B: Statement of Benjamin Opoku - Exhibit C: Statement of Agyei Elvis - Exhibit D: Investigative Cautioned Statement - Exhibit E: Charge Cautioned Statement At the close of Prosecution’s case the Accused person was called upon to open his defence. The Accused elected to give evidence on oath. He testified that on 19/12/2019, he closed from work at one of their work branches and was going to another branch. On the way, he realized that the money he had on him was no longer in his bag. He testified that when he got to the main office, he called his boss severally, but he did not pick his calls, so he waited awhile and called again but this time the phone was off. He stated that the intent was to inform his boss about what had happened. So, the next morning he went to the main branch and met him, and he narrated his ordeal. He testified that his boss locked him up in his office and called the police to pick him up. As already indicated, the Accused person is charged with stealing. The ingredients of the offence of stealing were set out in the case of AMPAH v. THE REPUBLIC [1977] 2 GLR 171; CA as follows: “A statute, creating and defining an offence, determined the ingredients of the offence which were to be proved. To establish the offence of stealing as defined by section 125 Page 3 of 6 of Act 29, the prosecution was required to prove the following three elements: (i) dishonesty, (ii) appropriation, and (iii) property belonging to another person…” Also in SALIFU AND ANOTHER v. THE REPUBLIC [1974] 2 GLR 291 it was held that: “The substance or ingredient of the offence of stealing was dishonest appropriation and a thing was not stolen unless it was taken without the consent of the owner or of his duly authorised agent.” From the particulars of offence, the Accused is charged with stealing an amount of GHȼ14,300.00. From the testimonies of Prosecution’s witnesses, the components of this amount include cash sums Accused took from PW2 and PW3 in the course of work and amounts which Accused is said to have failed to render accounts for. Accused does not dispute that he took monies from PW2 and PW3. During cross examination however, he indicated that he was on his way to render accounts when he was notified by a passer by that the bag he was carrying had been opened and when he checked the bag, the amount of money he was going to render accounts had been taken from his bag. According to him, the said sum included the cash sum he took from PW2 and PW3. Accused indicated further that the said GHȼ3,000.00 included as part of the money he is alleged to have stolen was as a result of mobile money fraud he fell victim to and there was an agreement between himself and PW1 who was his boss to pay the said amount back. This fact was not disputed by prosecution. Also, from PW3’s evidence he indicated that since they work for the same boss, they are permitted to send money to another worker when he runs out of cash and the said worker was to return the amount when he receives cash. Clearly then, it was not unusual or out of place for Accused to have taken cash from PW2 and PW3 as that was the practice within their business. The condition was that once cash was available, the said person was to repay, thus there is no evidence before the court indicating that after Accused took the said cash sums from PW2 and PW3, he subsequently had cash available and failed to pay same to PW2 and PW3. From the Page 4 of 6 breakdown of the components of the said sums of money therefore, it could not be said that Accused dishonestly appropriated the monies taken from PW2 and PW3 in the course of his work or the said GHȼ3,000.00 which he claimed to have lost as a result of mobile money fraud. Now, could the Accused be held liable for the loss of the cash sum which he stated was lost in transit while on his way to render accounts? In the case of DRAMANU v. THE REPUBLIC [1973] 2 GLR 378 it was held as follows: “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.” Also, in AMPAH v. THE REPUBLIC [1977] 2 GLR 171 it was held as follows: “The crucial issue was whether the appropriation was dishonest which depended on the state of mind of the person doing the act amounting to appropriation. Whether an accused person had a particular state of mind was essentially a question of fact which had to be decided by the trial court.” In this case, it is apparent that some amount of money belonging to PW1 or his business has been lost and the said amount was under the immediate care of Accused who says he carried same in his bag. Clearly then, the said amount contained in the bag which was lost was taken without the consent of its owner. However, I am unable to find from the evidence adduced that the Accused at the material time allowed the said amount to be taken from his bag or that it was the Accused himself who took the said amount. Though the case put across during cross examination of Accused by Prosecution was that the Accused dishonestly appropriated the said amount and used same for betting, no such evidence has been adduced before this court. In the case of OSAE v. THE REPUBLIC [1980] GLR 446 it was held as follows: Page 5 of 6 “It was not sufficient in a charge of stealing money to merely prove general deficiency. Proof must rather be given of a specific misappropriation of a particular sum of money or of circumstances from which it could be reasonably inferred that the accused stole the whole or part of the sum involved.” As already mentioned, there is no evidence of the specific sum of money which is said to have been misappropriated by the Accused nor is there evidence that it was the Accused person who dishonestly appropriated the said amount of money. Again, I consider that the defence put up by Accused is reasonably probable on which basis a charge of stealing cannot be sustained against him. See. HODGSON V THE REPUBLIC [2009] SCGLR 642. The Accused person is accordingly acquitted. (SGD.) H/H ENID MARFUL-SAU CIRCUIT JUDGE AMASAMAN Page 6 of 6