Court of Appeal · 21 Dec 1995 · Ghana
(1995) (CA)
CORAM
AMUAH JSC, FORSTER JA, BENIN JA
BENIN JA
The accused, now the appellant, was arraigned before the Ashanti Regional Public Tribunal on a charge of stealing under section 124(1) of the Criminal Code, 1960 (Act 29). The particulars of offence read:
“Nana Owusu Achiaw Brempong II, Omanhene, during the year 1980 at Atebubu in the Brong Ahafo Region and within the jurisdiction of this tribunal, did steal one Mercedes Benz car No GK 1990 value ¢3 million the property of the Atebubu Traditional Council.”
There was a second accused who was charged with abetment but the facts were found not to support the charge and he was thus acquitted and discharged.
The prosecution led evidence to establish that the car belonged to the Atebubu Traditional Council (hereinafter called the council) and was assigned to the occupant of the paramount stool for his use. That sometime in 1980 the appellant took this car to Kumasi from Atebubu and this was the last time the car was seen at Atebubu. Investigations disclosed that the accused had sold the car without the authorisation of the council. Hence the charge.
The accused denied the charge saying he never sold the car. He recounted events which even led the council to appoint a committee to go to Kumasi to see the car and their report was that it was a scrap. That this was the work of people who were bent on destooling him as Omanhene. Details of these facts will soon be unfolded.
But at the end of the trial, the prosecution was found to have established its case beyond reasonable doubt and therefore the tribunal convicted the accused and sentenced him to pay a fine of ¢200,000 or in default to serve four years’ imprisonment with hard labour.
The appellant appealed against both the conviction and sentence on the following grounds:
(1). “The judgment is unsupportable and unreasonable having regard to the issue.
(2). The judgment is against the weight of the evidence and is therefore bad in law.
(3). The sentence is too harsh and unconscionable having regard to the nature of the case.
(4). The Ashanti Regional Public Tribunal erred in law in discharging and acquitting the second accused without the first accused when the tribunal found that no offence had been committed.
(5). The tribunal failed to find that there was doubt at the close of the prosecution’s case which should have entitled the first accused to acquittal and discharge as the offence had not been proved beyond reasonable doubt, with apparent inconsistencies and conflicts.
(6). The tribunal was wrong in law in putting the onus of proof on the accused which influenced it to come to a wrong conclusion of conviction of the accused.
(7). The tribunal was wrong in law in deciding this case based on the balance of probability instead of strict proof of guilt beyond reasonable doubt.
(8). In any event the Ashanti Regional Public Tribunal had no jurisdiction in trying this case and that the trial was null and void.”
With the exception of the second ground which was abandoned all the other grounds were argued. Each of the grounds argued will be taken separately.
Ground (1)—Counsel for the appellant reviewed the entire evidence pointing out certain facts which he considered important and which in his view should have led the trial tribunal to have concluded that the charge of stealing was not established. To begin with, counsel referred to the particulars on the charge sheet which read that the vehicle was stolen in 1980 whereas the evidence disclosed that even as at 1986 the vehicle was still the property of the council. It is not in dispute that the evidence led by the prosecution in respect of the date of the theft was contradictory or inconsistent with the other or both. All the prosecution witnesses testified that the theft took place between 1984 and 1986. They were not very specific. But the complainant’s story was that the last time the council saw this vehicle was in 1980 when it was taken to Kumasi for repairs by the appellant. But it was not until 1986 or thereabouts that the vehicle was sold. And the person who purchased it, one Kramo the third prosecution witness, did not say he bought it in 1980. He said he bought it four years after it had been brought to his workshop. And there was undisputed evidence that the vehicle was earlier sent to the workshop of another mechanic called Yaw who later bolted to Nigeria. For how long Yaw kept the vehicle was not raised at the trial but at least from the evidence of Adutwum, the sixth prosecution witness, the driver of this vehicle, it could be gathered that it was with Yaw for some months before it was towed to the third prosecution witness’s workshop. Thus it was the draftsman’s error that the year 1980 was put on the charge sheet. So the question is whether the insertion of a wrong date on a charge sheet renders the charge bad as to entitle an accused to an acquittal?
The particulars of offence are to give reasonable information as to the nature of the charge. In a charge of stealing, the particulars of offence, going by section 125 of Act 29, will have to tell the accused what item or article he is alleged to have appropriated and that he did so dishonestly and that the particular item or article did not belong to him. These will be sufficient particulars as far as the definition of stealing goes. Other details like who the owner of the thing is and the date or time of the theft or both are not essential to give sufficient particulars, for a person can be charged with stealing a thing, the owner of which is unknown, and so can a person be charged with stealing a thing even when the precise date or time that the thing got lost was not known to its owner. Let us take this illustration: A has ten pieces of cloth which he believes he has securely locked up in his wardrobe. For five years he never opened this wardrobe. Then after five years he opens this wardrobe and discovers that two pieces of his cloth are missing from the wardrobe. He is able to identify one of these missing cloths with B but is unable to tell when it got missing. If it is established that the cloth found with B is really one of A’s cloths, B would have to answer on a charge of stealing, notwithstanding A’s inability to tell when it was stolen. Hence in this illustration the prosecution will have to satisfy the trial court that B dishonestly appropriated A’s cloth at any date or time during which A’s ownership of the cloth existed.
In the instant case, all the important particulars of the offence of stealing were set out so as to give the accused reasonable information as regards the charge. He was accused of stealing a Mercedes Benz car belonging to the council. The 1980 inserted on the charge was the year the accused took this car away to Kumasi and never returned to Atebubu with it. And this the accused does not deny. The objection is thus purely technical. The date or time may become important in a charge sheet where the accused is not established to be in possession or custody of the article alleged to have been stolen by him and he is merely suspected of having stolen it, and he decides or intends to plead alibi. In such a situation, failure to establish the date or time of the alleged theft may prove fatal to the prosecution.
The objection as I said earlier, is purely technical since the particulars gave sufficient information as to the charge and the prosecution led evidence to explain why 1980 appears on the charge sheet and evidence was also led to show that the theft took place in or about 1986. At worst it was only a defect in the charge sheet by the draftsman but this does not entitle an accused to an acquittal. At the time this case was decided, the Courts Act, 1971 (Act 372) was in force. Section 26 (12) thereof provided as follows:
“(12) The appellate Court on hearing any appeal before it in a criminal case shall allow the appeal if it considers that the verdict or conviction or acquittal ought to be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment in question ought to be set aside on the ground of a wrong decision of any question of law or fact or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal:
Provided that the said Court shall notwithstanding anything to the contrary in this subsection dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred or that the point raised in the appeal consists of a technicality or procedural error or a defect in the charge or indictment but that there is evidence to support the offence alleged in the statement of offence in the charge or indictment or any other offence of which the accused could have been convicted upon that charge or indictment.”
These provisions have been reenacted by section 31 (1) and (2) of the Courts Act, 1993 (Act 459). It goes to show the legislative intendment that an appeal should not be allowed merely on account of what appears to be a technical objection or defect in the charge sheet where evidence has been led to support what is being objected to. If the charge sheet said the theft took place in 1980 but the evidence showed that the theft took place in or about 1986 it causes no miscarriage of justice since the appellant does not dispute that the car in question was given to him and that he was the one who took it to Kumasi in 1980 and that since then it has not been returned to the council. He also does not plead alibi. He had every opportunity to contest the prosecution’s story. It is my view, therefore, that the objection is untenable and ought to be dismissed. Also, as long as the statement of offence disclosed the offence with which he is charged, an appeal based on a defective particulars of offence cannot hold.
Ground (2)—Counsel further submitted that there was no evidence of dishonest appropriation. He cited in support the case of Commissioner of Police v. Anane [1962] 2 GLR 107, SC. That was a case which dealt with a claim of right and hence the court concluded no dishonest appropriation existed. That situation clearly ought to be distinguished from this case where the appellant has never claimed any right to the car beyond a privilege to use it in his capacity as the Omanhene of the Atebubu Traditional Area. Section 120(1) of Act 29 defines dishonest appropriation as follows:
“120. (1) 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.”
I think it is well settled law that intent is normally not capable of being proven by direct or positive evidence, it is usually inferred from proven facts. In this case, some of the facts on the record were:
(i) that the council was interested in the car at all material times;
(ii) that the appellant did not inform the council before he sold the car;
(iii) that the appellant did not inform the council after the sale of the car;
(iv) that the appellant did not pay the proceeds from the sale to the council; and
(v) that the appellant did not have an honest belief that the council had consented to the sale.
It must be pointed out that when the council was told at its meeting of 12 August 1986 that the car was a scrap, it did not authorise the appellant to sell it. Thus as a trustee of the council, the appellant was bound either to keep the scrap for the council or if he exercised the discretion of selling it, to pay over the proceeds to the council. Thus in the case of Rogers v. Arnott [1960] 2 QB 244 where D came into possession of a tape recorder as bailee and, knowing that he had no right to do so, he, dishonestly offered it for sale, it was held that the complete offence of larceny had been committed. In explaining the decision, this is what Donovan J had to say at 251:
“If I am lent property, and then determine in my own mind to sell it for my own benefit contrary to the terms of the bailment, I have determined that in relation to the property I will no longer be a borrower but an owner, and an owner who wishes to sell. When I proceed to carry that intention into effect by offering the property for sale, I am standing in the owner’s shoes in relation to that property and exercising an owner’s right. In these circumstances I have, in my view, already converted the property to my own use whether the attempted sale takes place or not …”
This is what exactly happened in the instant case except that here the appellant was a trustee, and not a bailee, who decided to sell the car without the owner’s knowledge and consent. The sale was clearly an act of dishonest appropriation with intent to defraud the council since the proceeds were not also handed over to it. I therefore dismiss this ground.
Ground (3)—Counsel’s submission was that in view of the fact that the car was a scrap and the only amount said to have been realised from its sale was ¢5,000, the fine of ¢200,000 was too harsh and excessive. In reply, counsel for the Republic said, the sentence was rather too lenient and that if anything at all, it ought to be enhanced. The court below did not give any reason for its sentence and it was in law not bound to do that any way. Nor did it decide to embark upon imposing the sentence based on any existing principle, eg punitive, deterrent, etc. As a result, an appellate court can only interfere in the sentence if it was not made within the limits allowed by law or was out of all proportion to the offence committed having regard to all the circumstances of the case. It is not argued that the sentence was illegal in the sense that it was outside the limits of the law. The argument is in respect of the value of the car in relation to the fine imposed. There was this case of Kwashie v. The Republic [1971] 1 GLR 488, CA decided by this court which appears quite relevant. In that case, the appellants were found guilty and convicted of stealing a quantity of items the total value of which was ¢3,171 and were sentenced to a term of seven years’ imprisonment with hard labour. Delivering the judgment of the court this is what Azu Crabbe JA (as he then was) said at 493:
“The determination of the length of sentence within the statutory maximum sentence is a matter “within the discretion of the trial court, and the courts always act upon the principle that the sentence imposed must bear some relation to the gravity of the offence.”
The court went on to hold that when a court decides to impose a deterrent sentence the value of the subject matter of the charge becomes irrelevant. I admit that in this case the value of the car as stated on the charge sheet was not established. What was established, however, was that the appellant sold it for 65,000 as a scrap. But in imposing sentence, a trial court is not limited to the value obtained by the accused from the sale, but it may also look at the offender and the gravity of the offence, the subject matter of the charge is of no material significance. In the circumstances of this case, the Omanhene who was a trustee of his people was expected to show exemplary conduct just like the two policemen in the case of Kwashie v. The Republic (supra). The court was thus perfectly justified in imposing the sentence as it did. We do not intend to enhance it as suggested by the counsel for the Republic since she offered no reason or ground for it and I have found none either. I dismiss this ground also.
Ground (4)—When the facts of the case were disclosed to the tribunal by the prosecution, it concluded that they did not support the charge of abetment made against Kofi Adutwum who was the second accused and therefore acquitted and discharged him. It was counsel’s submission that the tribunal should have also acquitted the appellant when it concluded that no offence was committed by Kofi Adutwum. I do not think counsel seriously meant to press home this argument. For unlike a conspirator, an abettor stands alone. It is only in conspiracy charges that one person cannot be found guilty or innocent and the other found innocent or guilty as the case may be. Thus a person who is charged with abetment of a crime can be found not guilty even though the crime itself is found to have been committed by the person who he is alleged to have been abetted. It is a baseless ground which I reject accordingly.
Ground (5)—Counsel submitted that at the close of the case for the prosecution there was no case to answer, so the accused should have been acquitted at that stage. He said there were conflicts and inconsistencies in the story as told by the prosecution witnesses. That the actual sale was not established. The principles governing whether or not there is a case for the accused to answer at the end of the prosecution’s evidence have been set out in the case of State v. Ali Kassena [1962] 1 GLR 144 at 148, SC as follows:
“(a) where there has been no evidence to prove an essential element in the alleged offence;
(b) when the evidence adduced by the prosecution has been so discredited as a result of cross- examination or is so manifestly unreliable that no reasonable tribunal could safely convict upon it.”
In this case, there was evidence from the prosecution witnesses, especially Kramo, the third prosecution witness, and his apprentice, the fifth prosecution witness, that the appellant sold the car to the third prosecution witness for ¢5,000. As the tribunal rightly observed, whatever conflicts or inconsistencies or both that existed in the prosecution’s story were not such as could materially affect the case. The tribunal was mindful of these conflicts and inconsistencies and took them into account in reaching its verdict. In law for conflicts and inconsistencies in evidence to influence a decision they must be material and such that they destroy proof of an element of the offence or totally discredit the witnesses such as to make their story unreliable. So long as there was evidence to support the charge of stealing which any reasonable tribunal could act upon to convict, there was a prima facie case made out. A court should not reject a party’s case simply because the witnesses contradicted themselves here and there, especially when they testified to events which occurred some years earlier. The court should consider the materiality of the conflicts in the light of the issue(s) which such evidence sought to prove and decide whether it makes proof of the issue, if relevant to the case, highly unacceptable or unreasonable to accept. But where the conflicts and inconsistencies do not affect the main issue before the court or proof of the elements of the crime, then the court could only consider them in the light of the witnesses’ credibility. If after considering all these the trial court is still satisfied with the evidence, then an appellate court will hardly, if ever, step in to set aside the decision, since the trial court has had the singular privilege of observing the witnesses give their testimony. I am satisfied that there was sufficient evidence from the third and fifth prosecution witnesses that the accused sold the car and they were not challenged in any meaningful way, and being totally disinterested persons in the chieftaincy dispute between the complainant and the accused, the tribunal was justified in relying on their testimony. The conflicts as regards whether the council was informed about the whereabouts of the car, the particular year the sale took place, and others are of little consequence in regard to the charge before the court. There was a prima facie case made out by the prosecution, I so hold.
Ground (6)—Counsel said that the tribunal decided the case by putting the onus of proof on the accused and that this was wrong in law, and thus fatal to the prosecution. He referred to a portion of the tribunal’s judgment in which it delivered itself as follows:
“The accused has asserted that he did not sell the car to the third prosecution witness. In fact he has failed completely to show any connection between the car and the third prosecution witness. He does not even say that the car was given to the third prosecution witness to repair. He denies that. It is the oath of the third and fifth prosecution witnesses against that of the accused. But there is ample evidence that the car at least found its way to the third prosecution witness’s workshop.”
Counsel for the Republic replied that this passage should not be taken out of context and that it should be interpreted in the light of the entire judgment.
I cannot do anything else than to agree with counsel for the Republic. A judgment of the court is to be read and interpreted or construed as a whole. At the same page where counsel for the appellant picked the above-quoted passage from, the trial court had said earlier on that:
“This long review of the evidence and examination of the relevant provisions of the law brings us back to the question of whether or not the prosecution, which is duty bound by law to prove its case beyond reasonable doubt, has discharged that onus by leading evidence to support the charge.”
The trial court no doubt knew where the burden of proof lay. The passage counsel referred to was merely part of a summary of the defence case, having earlier on embarked upon a similar exercise in respect of the prosecution’s case. This ground is clearly baseless and is accordingly dismissed.
Ground (7)—Counsel submitted that the tribunal having decided the case on a balance of probability instead of strict proof of guilt beyond reasonable doubt erred in law. He referred to the case of Lutterodt v. Commissioner of Police [1963] 2 GLR 429 at 439, SC on the various steps the court should consider in assessing the defence case. Let me set out these steps here as stated by Ollenu JSC who delivered the judgment of the court:
“Where the determination of a case depends upon facts and the court forms the opinion that a prima facie case has been made, the court should proceed to examine the case for the defence in three stages:
(1). Firstly it should consider whether the explanation of the defence is acceptable, if it is, that provides complete answer, and the court should acquit the defendant;
(2). If the court should find itself unable to accept, or if it should consider the explanation to be not true, it should then proceed to consider whether the explanation is nevertheless reasonably probable, if it should find it to be, the court should acquit the defendant; and
(3). Finally quite apart from the defendant’s explanation or the defence taken by itself, the court should consider the defence such as it is together with the whole case, i.e., prosecution and defence together, and be satisfied of the guilt of the defendant beyond reasonable doubt before it should convict, if not, it should acquit.”
Counsel said the trial court should have considered which of the three steps was applicable here and in his submission the third one was applicable. Just to add to what I said in respect of ground (6), the trial court considered the totality of the evidence before it in reaching its conclusion. Nevertheless, let me examine the judgment again in the light of counsel’s submission. Counsel referred to a portion of the judgment to buttress his argument. The first portion of the judgment put under attack reads:
“After we have had the opportunity to observe the demeanour of all the witnesses, including the accused, we have scrutinised the case for both the prosecution and the defence. We are unshaken in our belief that the story of the prosecution witnesses is more worthy of belief.”
Counsel’s concern was in regard to the comparison of the respective evidence and the fact that one was found to be “more worthy of belief” which in his view did not amount to a proof beyond reasonable doubt but a proof on a balance of probability. I believe the phrase or expression “more worthy of belief” should be construed in the light of the entire judgment in order to discover what the trial court actually meant. The court had earlier placed the burden of proof beyond reasonable doubt on the prosecution. And after it had made the pronouncement quoted above, it went on in the closing remarks:
“We have adjudicated on a criminal charge and have found that the case for the prosecution has met the required standard set by the law. Thus the prosecution has proved the charge beyond reasonable doubt. In coming to our conclusion we have applied all the relevant tests required by law and are satisfied beyond doubt that the prosecution’s case against the accused is very strong and meets the requirements of the law.”
Taking the above points into consideration, I am satisfied that the trial court did not decide the case on a balance of probability but on proof beyond reasonable doubt after considering the case put forward by both sides. It properly directed itself, and that is what is important for this court to consider. There is no magic formula for a trial court in directing itself as to the burden and standard of proof required in criminal cases; it is sufficient if it directs its attention to the fact that the burden of proof beyond reasonable doubt rests with the prosecution. This the tribunal was able to do with satisfaction in this case. Be that as it may, a trial court, if it concludes a case by saying it believes the prosecution as against the defence, or to use the expression here that the prosecution’s case is more worthy of belief, will not be deciding the case on a balance of probability. It will only be drawing a conclusion as regards the truthfulness or otherwise of the case put forward by both sides which it is entitled to do. And the law is that even if it does not believe the accused’s story it should consider whether or not it is reasonably probable in which case it must acquit. But if it accepts the prosecution’s story as more truthful and goes on to consider it as establishing the case beyond reasonable doubt it is entitled to convict. A mere comparison of the evidence of the two sides is not tantamount to deciding a case on a balance of probability. The trial court is bound to weigh the two stories and decide which one to accept and for what reasons always bearing in mind that the accused assumes no burden to prove his innocence. I dismiss this ground accordingly.
Ground (8)—This deals with the issue of jurisdiction. Counsel for the appellant submitted that the offence took place at Atebubu in the Brong Ahafo Region but the trial took place in Kumasi in the Ashanti Region so it was a nullity since each regional public tribunal was confined to cases emanating from its region. In reply, counsel for the Republic said even though the car belonged to the council and was brought to Kumasi from Atebubu, yet the sale (resulting in the theft charge) took place in Kumasi, so the police was at liberty to choose the forum convenience which is Kumasi.
The regional public tribunals were established under the Public Tribunals Law, 1984 (PNDCL 78), since repealed. Its original jurisdiction was derived from section 7 thereof and it reads:
“7. (1) Subject to the provisions of subsection (2) of this section, a Regional Public Tribunal shall have original jurisdiction to try any offence under subsection (1) of section 4 of this Law.
(2) Notwithstanding the provisions of subsection (1) of this section a Regional Public Tribunal shall not without the prior permission in writing of the Board try an offence referred to in section 4(1)(b), section 9(1)(c), (g) and (h) of this Law or exercise jurisdiction in respect of matters under section 25 of the Provisional National Defence Council (Establishment) Proclamation (Supplementary and Consequential Provisions) Law, 1982 (P.N.D.C.L. 42).”
Stealing is one of those offences triable by a regional public tribunal without the prior permission of the Board of Public Tribunals since it comes under section 4(1)(c) of PNDCL 78. The Law did not say that the regional public tribunal should hear only offences arising out of the particular region in which it was situate. PNDCL 78 only specified what offences it had jurisdiction to hear. If it was intended to confine it to offences arising within the particular region that it was sited in, the Law would have said so expressly. This is buttressed by the fact that the lawmaker in section 7(3) of PNDCL 78 specifically confined the regional public tribunal’s appellate jurisdiction to appeals coming from district and community tribunals within their regions. It is my view that though called regional public tribunals, yet those tribunals were not limited in exercising their original jurisdiction, to only cases arising within the regions where they were sited.
Be that as it may, even on the facts of this case it could safely be said that the theft took place in Kumasi. This is so because at the time the appellant took the car from Atebubu he had no intention of appropriating it, he took it for repairs. It was later on that he decided to sell it whilst the vehicle was in Kumasi and did sell it to the third prosecution witness also in Kumasi. Therefore the prosecution of the accused could still take place in Kumasi where the offence was committed and not Atebubu where the owner of the stolen property was. Thus even though the charge sheet read that the offence took place at Atebubu, this was a defect which did not affect the substance of the charge as there was clear evidence led by the prosecution to show that the offence was committed in Kumasi. Moreover, this defect caused no miscarriage of justice, let alone a substantial one.
Besides all this, I think this objection, if it were even proper, should have been raised at the earliest opportunity which in a trial would be at the court below before the case is concluded. After succumbing to a criminal court’s territorial jurisdiction, it is plainly unjust to kick against it for the first time on appeal. I will accordingly dismiss this ground of appeal also.
In conclusion, it is my view that the appeal is unmeritorious in so far as there was acceptable evidence on record to support the trial court’s verdict. The fact that another court, differently constituted, would have reached a different verdict is no reason why an appellate court should set aside the trial court’s decision or judgment. The appeal is dismissed accordingly.
AMUAH JSC.
I agree.
FORSTER JA.
I also agree.
Appearances
ASARE BEDIAKO FOR THE APPELLANT; BARBARA ACQUAH (MRS) FOR THE REPUBLIC.
judy.legal
“[1995-96] 1 GLR 350” copied to clipboard.
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