REPUBLIC VRS. MINTAH (D4/91/2023) [2024] GHACC 178 (13 March 2024)

IN THE CIRCUIT COURT OF GHANA HELD AT CIRCUIT COURT ‘2’, ACCRA ON WEDNESDAY, 13TH MARCH, 2024 BEFORE HIS HONOUR ISAAC ADDO, THE CIRCUIT COURT JUDGE CASE NO: D4/130/2023 THE REPUBLIC VRS MICHAEL OWUSU MINTAH ACCUSED PERSON PRESENT ASP SETH FRIMPONG FOR THE REPUBLIC PRESENT MABEL LARYEA, ESQ. HOLDING THE BRIEF OF FRANCIS DOE-GLAH, ESQ. COUNSEL FOR THE ACCUSED PERSON PRESENT RULING ON A SUBMISSION OF NO CASE TO ANSWER AS FILED BY COUNSEL FOR THE ACCUSED PERSON ON BEHALF OF THE ACCUSED PERSON On the 2nd August, 2023, the Accused person was arraigned before this Court charged with 17 Counts of Stealing contrary to section 124(1) of the Criminal Offences Act, 1960 (Act 29). The Accused person pleaded Not Guilty to all the charges. THE FACTS OF THE CASE 1 The Complainant is a pastor and a car dealer whilst the Accused person also deals in cars. The complainant’s brother, Richard Owusu Snr who is domicile in Canada has been shipping cars to the complainant to sell and send the proceeds to him. Somewhere in the years 2020 to 2022, the complainant received different brand of cars from his brother such as Toyota Corolla, KIA Sportage, Ford Escape and Hyundai Elantra totaling GH¢1,214,000.00. The complainant contacted the Accused person and gave the cars to him to sell and return the proceeds to enable him send same to his brother in Canada. The accused person sold the vehicle but failed to return the proceeds and went into hiding. The accused person failed to respond to calls made to him. The complainant reported the case to the police. The police received information that the accused person was hiding in Aflao trying to cross Togo border to Lome. On the 25th January, 2023, the Accused person was arrested by the National Security personnel and subsequently handed over to the police for investigation. The prosecution called three (3) witnesses to testify in support of its case. The testimony of PW1 (George Yeboah) confirmed the facts as presented by the prosecution. PW2 (Detective Inspector Samuel Mensah) investigated the case. PW2 relied on his Witness Statement and tendered in evidence, the Cautioned and Charge Statements of the Accused person without any objection by the defence. PW3 (Michael Agyapong) told the Court that he had been paying the duties on vehicles shipped to Ghana from Canada by Richard Owusu Snr. At the close of the case of the prosecution, the defence counsel filed a Written Submission of No Case to Answer on behalf of the Accused person and submitted that the evidence adduced by the prosecution is too contradictory or so discredited as a result of cross 2 examination. The defence counsel again submitted that the evidence led by the prosecution is so manifestly unreliable that no reasonable court could safely convict on it. THE LAW ON SUBMISSION OF NO CASE At this stage, this Court is enjoined to determine whether or not a prima facie case has been made out against the Accused person to warrant him to enter into his defence. Sections 173 and 174(1) of the Criminal offences (Procedure) Act, 1960 (Act 30) provides: “173 Where at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require the accused to make a defence, the Court shall, as to that particular charge, acquit the accused. 174(1) At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused sufficiently to require the accused to make a defence, the Court shall call on the accused to make the defence and shall remind the accused of the charge and inform the accused of the right of the accused to give evidence personally on oath or to make a statement.” In the case of Michael Asamoah & Another vrs The Republic [2017] DLSC 2628 @ page 4, the Supreme Court speaking through Adinyira JSC stated the law on submission of no case as follows: “The grounds upon which a trial court may uphold a submission of no case as enunciated in many landmark cases whether under a summary trial or trial on indictment may be restated as follows: There had been no evidence to prove an essential element in the crime; 3 a. The evidence adduced by the prosecution had been so discredited as a result of cross- examination; or b. The evidence was so manifestly unreliable that no reasonable tribunal could safely convict upon it; c. The evidence was evenly balanced in the sense that it was susceptible to two likely explanations, one consistent with guilt and one with innocence. See also the cases of Tsatsu Tsikata vrs The Republic [2003-2004] SCGLR 1068; Affail vrs The Republic [1975] 2 GLR 69; Apaloo and Others vrs The Republic [1975] 1 GLR 156-192; State v. Ali Kassena [1962] 1 G.L.R. 144, S.C.” Furthermore, from the above authorities, this Court is not expected to do anything beyond a determination of whether or not a prima facie case has been made against the accused person. In doing so, one has to consider whether or not the evidence so far adduced has been so discredited as a result of cross-examination that it would be unreasonable to continue with the trial, or whether an essential ingredient or element of the charges against the accused person has not been established by the evidence so far adduced. In the case of Atsu vrs The Republic [1968] GLR 716 @719 CA, the Court stated; “As a general rule, evidence from the defence is not taken until the court has held that the prosecution has established a prima facie case. This is based upon the well-known principle that it is the prosecution which has an onus to prove the guilt of the person they accuse of an offence, and not the accused who should establish his innocence, the accused should therefore not show his hands until the need arises.” On this same issue of establishing prima facie case, I will quote the venerable Justice (Rtd) S.A. Brobbey in his Book titled “The Essentials of the Ghana Law of Evidence” at page 55: 4 “The law is well-settled that at the end of the case for the prosecution, only prima facie case can be made against the accused. This principle was well articulated in the case of The State v. Sowah and Essel ([1961] GLR 743) where it was held at page 745 that: “It is wrong therefore to presume the guilt of an accused merely from the facts proved by the prosecution. The case for the prosecution provides prima facie evidence from which the guilt of the accused may be presumed, and which therefore calls for an explanation by the accused. THE LAW AND EVALUATION OF EVIDENCE Stealing is defined at Section 125 of Act 29 as follows: “A person steals who dishonestly appropriates a thing of which that person is not the owner”. The definition of stealing therefore requires the prosecution to prove the essential elements of the offence. In the case of The State vs. W. M. Q. Halm and Aryeh Kumi Crim. App Nos. 118/67 and 113/67, 7 August, 1969; (1969) CC155, the Court per Akufo Addo, C.J., Ollennu, Apaloo, Amissah JJ.A and Archer J stated the three essential ingredients which prove a charge of Stealing under our criminal law as: “(i) That the person charged must not be the owner of the thing allegedly stolen; (ii) That he must have appropriated the thing; (iii) That the appropriation must have been dishonest.” See also Lucien vrs The Republic [1977] 1 GLR 351-359 at holding 2. 5 There is no doubt that the seventeen (17) vehicles belonged to the complainant. The complainant also gave the vehicles to the Accused person to sell and render accounts. It is clear from the definition that a person cannot be guilty of stealing unless he is proved to have appropriated a thing in the first place. Section 122 (2) of the Criminal and Other Offences Act, 1960 (Act 29) defines Appropriation as follows: “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”. The defence in the course of the trial tendered Cash Deposit Slips through PW1 and same marked as Exhibit ‘1’ Series. The defence through cross examination of the prosecution witnesses forcefully submitted that the Accused person after selling the vehicles made payment into the Account of Richard Owusu. On the face of Exhibit ‘1’ Series, the said payments were made on the 22nd September, 2021, 21st December, 2020, November, 2020, 15th March, 2021, 5th February, 2020 and 11th August, 2021 with the total being GH¢137,688.00. In the Cautioned and Charge Statements of the Accused person given to the police on the 25th January, 2023 and 31st March, 2023 respectively, the Accused person unambiguously confessed to receiving sixteen (16) vehicles from Richard Owusu Snr and Richard Owusu Jnr but did not return the proceeds from the sale of these cars to them. Justice Twumasi J. in stating the position of the law as to whether confession statements can be taken as part of prosecution’s case in establishing whether a prima facie case had been made stated 6 in the case of Amukyi vrs The Republic [1982-83] GLR 1010-1016 @ 1012 per holding 2 as follows: “The court would like to sound a note of warning to trial lower courts that in considering whether a prima facie case had been made by the prosecution in a criminal trial, they should confine themselves to the analysis of the evidence of the prosecution witnesses with regard to their credibility. Thus, a police statement made by an accused person, unless it was a confession statement admitted in evidence, was not to be taken as part of the prosecution's case …………”. (Emphasis mine). The Cautioned and Charge Statements of the Accused person were taken in compliance with section 120 of the Evidence Act, 1975 (NRCD 323). Assuming without admitting that the said payments allegedly made by the Accused person as per Exhibit ‘1’ Series were for the sixteen (16) cars, then it could not have been for the full payment. Certainly, the Accused person has some questions to answer. As rightly pointed out by the defence counsel citing the case of Tsatsu Tsikata vrs The Republic (supra), the decision as to whether or not the prosecution has proved its case beyond reasonable doubt should be made at the end of the entire trial. From a reading of section 173 of Act 30, the catch word is “sufficiently”. Therefore, once the court finds out that a prima case is not made out against an accused at all or a prima case is not made out against an accused sufficiently, the court shall acquit him. Upon a careful evaluation of the evidence adduced at this stage of the trial, the Court finds that a prima facie case has been made out against the Accused person. In the circumstances, I overrule the Submission of No Case to Answer filed by the defence 7 counsel on behalf of the Accused person on the 12th March, 2024. Accordingly, the Accused person is invited to enter into his defence. (SGD.) H/H ISAAC ADDO CIRCUIT COURT JUDGE 13TH MARCH, 2024 8