SEY vs. THE REPUBLIC [1995-96] 1 GLR 60

CASES REFERRED TO

(1) Commissioner of Police v Anom [1965] GLR 512, SC.

(2) Bodua alias Kwata v The State [1966] GLR 51, SC.

(3) Asante v Bogyabi [1966] GLR 232, SC.

(4) Tsrifo v Dua VIII [1959] GLR 63.

(5) Yaw (Osei) v Domfeh [1965] GLR 418, SC.

(6) R v Ajani (1936) 3 WACA 3.

(7) Otsiba v The Republic [1978] GLR 290, CA.

(8) R v Akatia (1946) 12 WACA 98.

(9) Mawaz Khan v R [1967] 1 AC 454, PC.

(10) Popvic v Derks (1961) VR 413.

(11) Commissioner of Police v Kwashie (1953) 14 WACA 319.

(12) Atiemo v Commissioner of Police [1963] 1 GLR 117, SC.

NATURE OF PROCEEDINGS

APPEAL by the appellant to the Court of Appeal against his conviction (with four others) by the Ashanti Regional Public Tribunal for doing an act with intent to sabotage the economy of Ghana contrary to section 9(1)(f) of the Public Tribunals Law, 1984 (PNDCL 78) arising from the loss of 1,340 gallons of gas oil out of the quantity of gas oil ordered by their employer, the Ghana Railway Corporation, [p.63] of [1995-96] 1 GLR 60 after some of the employees of the corporation had taken delivery of the gas oil into a container at the premises of the corporation. The facts are sufficiently set out in the judgment of Wood JA.

COUNSEL

Captain (Rtd) Efah Dartey for the appellant.

Anthony Gyambiby, Senior State Attorney, for the respondent.

JUDGMENT OF WOOD JA.

A quantity of gas oil which was supplied to the Ghana Railway Corporation, Kumasi on 2 March 1989, was found to be short by 1,340 imperial gallons. Six persons, who were all employees of the corporation were, in connection with this matter, arraigned before the Ashanti Regional Public Tribunal on a charge of “doing an act with intent to sabotage the economy of Ghana” contrary to section 9(1)(f) of the Public Tribunals Law, 1984 (PNDCL 78). The act complained of.

After the trial, five of them were found guilty and convicted. The sixth accused, the appellant in these proceedings, being aggrieved by his conviction and sentence, has appealed to this court on five grounds. One of them, though improperly formulated, is a most common ground of appeal. It is ground (a) of the original grounds of appeal and reads as follows: “(a) That the conviction is against the weight of evidence.”

The more acceptable formulation in criminal appeals is “The conviction cannot be supported having regard to the evidence.” Be that as it may, the substance of this ground (a) is contained in an additional ground (1), namely: “The conviction was an error in law because looking at the ingredients of the offence charged and the particulars thereof, nowhere in the record is there established evidence to support a conviction.”

The argument with respect to the additional grounds (1) and (2) simply is that the prosecution failed woefully to prove beyond reasonable doubt that the appellant was one of those who stole the oil. It was contended that of all the seven witnesses called by the prosecution, none testified that the appellant was present at the measuring and discharge of the oil. Furthermore, it was argued, the statement of the appellant was not a confessional one either, so that as at the close of the prosecution’s case no prima facie case has been made out against him. Counsel’s contention therefore is that since the fifth accused whom he asked to sign the invoice covering the oil did not also implicate him in the offence, he ought to have been acquitted

[p.64] of [1995-96] 1 GLR 60 and discharged.

Again the argument in support of grounds (3) and (4) is that the inferences and conclusions that were drawn from the evidence led were all in error. It was urged that the trial tribunal made a wrong finding of fact, one not supported by the evidence, when it held that the appellant to start with denied being instrumental in the signing of the invoice. The contention here is that it was this wrong finding that made the tribunal conclude he was inconsistent and so guilty.

Counsel for the Republic conceded the following: That at the close of the prosecution’s case there was no evidence—direct or indirect—connecting the appellant to the offence. His contention however is that as the other accused persons opened their defences, evidence they led implicated the appellant and destroyed the claim made by him that he was not present when the oil was discharged. Pleading that we do not disturb the conviction, he urged that the tribunal found he was an untruthful witness and consequently they were justified in drawing those inferences and conclusions.

The most important question of fact the tribunal had to determine was whether or not the appellant was present when the oil was being discharged. The tribunal did not treat this question as a light matter. It seems to me it was the central plank upon which his conviction and indeed the conviction of the others were based. The importance they attached to its finding can be gleaned from these opening paragraphs of their judgment:

“The way the facts appear on the record, there is no hypothesis upon which the shortage can be explained except to say that those who took delivery of the oil are directly responsible for it. The circumstances lead irresistibly to that conclusion and it would be a travesty of justice if it were held otherwise.”

I am here not castigating them for attaching so much importance to this question. On the contrary I would indorse their view, that given the facts of this case, the particulars of offence, that is to say the act complained of and which is said was intended to sabotage the economy of Ghana, their approach, that is of determining who was present at the point of discharge, was perfectly legitimate. The trial tribunal accepted the evidence of the co-accused that the appellant was present and rejected his version that he was not. In other words, the conclusion

[p.65] of [1995-96] 1 GLR 60 was that he took part in receiving the oil for the corporation. This is how they concluded the matter: “. . . then it cannot be wrong to hold that all that the co-accused said about him concerning his presence at the delivery point which he denied was as true as those matters admitted by him after his own witness had testified.”

My aim then, is to determine whether this finding is justified having regard to the evidence on the record. The learned state attorney has honourably conceded that none of the prosecution witnesses deposed to the fact that he was present at the delivery. What the tribunal did was to choose between the two rival claims of the appellant and the other accused persons, particularly as they led evidence in their defence.

Commissioner of Police v Anom [1965] GLR 512, SC is authority for the proposition that an appellate court will not normally interfere with a conviction based on the uncorroborated evidence of an accomplice. The case of Bodua alias Kwata v The State [1966] GLR 51, SC was one which turned on the oath of the prosecution witness against the oath of the appellant. Even in a case such as that, that is to say prosecution evidence versus evidence of the accused or the appellant, the Supreme Court, speaking with one voice, held at 55 that:

“. . . since the case depends upon the oath of the first prosecution witness against the oath of the appellant, it is not just for the trial judge to point out to the jury matters which could be used to discredit the appellant without at the same time examining the evidence of the first prosecution witness and pointing out evidence which materially affects his own credibility.”

Admittedly, that trial was by a jury, but this sound principle of law is the same whether the trial is by a single judge or by the tribunal which is the body clothed with jurisdiction to determine the facts. And the principle is this, that where the tribunal has to choose between two conflicting versions of evidence on oath, and it includes the conflicting versions of two or more accomplices, the correct approach, to my mind, is to point out all of those pieces of evidence which go in favour of or against the credibility of all the contenders. And in my humble opinion, it will be perfectly just for an appellate court to interfere with [p.66] of [1995-96] 1 GLR 60 those findings of facts made and not based on this approach but on a one-sided review of the evidence, they intend to reject. In other words, where the tribunal has failed to point out and take into consideration, those pieces of evidence which materially affect the credibility of the witness whose version has been chosen or opted for, this court has power to interfere with the finding.

And it seems to me that the tribunal fell into this error when deciding the question of whether or not the appellant was present at the discharge of the oil. For, it failed to consider the evidence of the most vital prosecution witness, the driver who discharged the oil. He was emphatic that the appellant was not present. I have no doubt that their error occasioned a grave miscarriage of justice. This is his testimony: “The measurement was done by the first and fourth accused persons … It was the second accused who held the hose at the base. The sixth accused was in the office in front of which we took the measurement … After the measurement I drove to the bridge and discharged the consignment into the wagon. After that the first and fourth accused climbed the tanker again and satisfied themselves that it was signed and I moved to my office.”

He testified further under cross-examination:

“Q The third accused was not present when measurement was taken of the fuel you had delivered?

A No, he was not present.

Q In the same vein the sixth accused was also not there?

A He was not present. In fact I got to know the sixth accused at the tribunal.

Q When the fuel was being off-loaded from your vehicle into the pontoon the third accused was not present?

A He was not present.

Q The sixth accused was also not there?

A No he was not present. I do not know him at all.”

It seems to me that quite apart from their testimony and that of the sixth appellant himself by which he denied taking part in receiving the oil, the prosecution itself has accepted his absence as the true position. So the cross-examination of the appellant now shifted and took this form:

[p.67] of [1995-96] 1 GLR 60

“Q I put it to you that because you did not supervise the delivery of the oil brought and did not sign the invoice, you contributed to the loss of 1,340 gallons for which you stand charged.

A That is not correct.”

(The emphasis is mine.)

The point is that even in civil cases where the standard of proof is not as onerous as in criminal cases, the time honoured principle of law as is stated in the head note of Asante v Bogyabi [1966] GLR 232, SC is that:

“(2) Where the evidence of one party on an issue in a suit was corroborated by witnesses of his opponent, whilst that of his opponent on the same issue stood uncorroborated even by his own witnesses, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for some good reason (which must appear on the face of the judgment) the court found the corroborated version incredible or impossible.”

This principle of law was first stated by Ollennu J (as he then was) in Tsrifo v Dua VIII [1959] GLR 63 at 64-65. It was quoted with approval by the Supreme Court in Yaw (Osei) v Domfeh [1965] GLR 418 at 423, SC.

I think there are equally weighty matters on the record which detract on the credibility of the co-accused, particularly the fifth accused who also on his evidence alleged that the appellant assured him that the correct quantity of oil had been discharged. None of them disclosed any incriminating evidence against the appellant when they appeared before their superior officer. This explains why he was not arrested and handed over to the police. In all of their various statements to the police, with the exception of the first accused, and some made as many as two or three further statements, none of them mentioned his name. The claim of the second accused that he failed to, because they were promised the matter would be settled amicably in their offices, raises grave doubts. If that were so, why did he not come out with the truth when he was formally charged to appear in Court? For if anything at all by then it had become obvious that there could be no hope or

[p.68] of [1995-96] 1 GLR 60 possibility of a peaceful departmental settlement of this serious affair. By then he obviously knew his fate was sealed and he was to be put before the tribunal. In my view then, the finding that he was present at the delivery point is not supported by the evidence on the record and a conviction based on this positive finding ought not to be sustained.

One other finding that is clearly not supported by the evidence is the finding that to start with he “denied being instrumental in making the fifth accused sign the invoice.” On the contrary, right from the beginning to the end he consistently kept to the same story, namely that he refused to sign the invoice because as he put it, he “was above the stamp used on the invoice”, he “was not present when delivery was taken and the fact that he ‘had told the first accused that I would not sign his documents due to incompetence on his part.’ “

No doubt this finding weighed heavily on the tribunal’s mind who, therefore, naturally drew the inference that he was not a truthful witness and so all innocent protestations made by him ought to be rejected. In my opinion, a conviction based on this finding is also in error, and ought to be corrected.

The particulars of the offence with which the appellant was charged is that he and the other five accused stole the oil. The learned counsel for the Republic has conceded, and quite rightly in my view, that as at the close of the prosecution’s case no direct or indirect evidence had been led to show that he committed the theft. Nevertheless, he led evidence on his own behalf. The tribunal then was enjoined in law to examine the whole of the evidence led at the trial before convicting him. Thus if the evidence in sum does not prove his guilt beyond reasonable doubt he is entitled to an acquittal: see R v Ajani (1936) 3 WACA 3.

I have examined the evidence. I have found that he was not present at the delivery point, he did not take part in receiving the oil. Also that he had not at any point in time denied having asked the fifth accused to sign in his stead. So the question is upon what evidence can a conviction be based? First, we have the fact that he had on occasions prior to this incident and after his elevation signed documents. Secondly, we have the evidence of the witness he called the first defence witness testifying that “if he were the most senior man at the time of discharge he must take interest in the delivery.” Thirdly, the fact that he refused to sign based solely on the fact that the correct [p.69] of [1995-96] 1 GLR 60 stamp had not been used to designate his position as at the time.

I have asked myself whether those are sufficient to justify or support a finding that those were purposely done in furtherance of stealing the oil, an act which no doubt would end up sabotaging the economy of Ghana? In the first place, there is even no evidence that he was the most senior officer who was enjoined to supervise the delivery. The first prosecution witness is the mechanical engineer stationed at the location, and was on duty on that day. He was the officer who requested for the oil and made all the necessary payments connected thereto. He admitted, when cross-examined by counsel for the second and fifth accused that he played a major role in the receipt and delivery of the oil. We have no evidence from him that he delegated the responsibility for the discharge of the oil to the sixth appellant. On the contrary, as the record clearly shows, by his own evidence, he was present in his office at the time. The first defence witness, a witness called by the appellant, was in no position to say whether it was the appellant who was present as the most senior officer and so the one responsible for overseeing the discharge. Certainly, the evidence does not suggest he was and it would be dangerous to assert that.

It would follow then that the only evidence left would be his refusal to sign for the reasons stated. I find it difficult to infer his guilt of theft or even that the intention was to sabotage the economy from this fact alone. I would think the conviction cannot be supported by the evidence. I would allow the appeal. I would set that aside and in its place acquit and discharge him.

JUDGMENT OF BROBBEY JA.

I also agree that this appeal should be allowed. The facts and grounds of appeal of this case have already been ably recited in the judgment of the president of this panel and so I do not need to repeat them. In support of what she has read, I wish to add the following:

First, the record shows without doubt that at the end of the case for the prosecution, no case was made against the appellant. Counsel for the respondent conceded this during the hearing of the appeal here. The appellant should have been acquitted at that stage but he was not. What then followed was the case for the defence. In the course of making their defence, the fifth accused testified in a way that seemed to have incriminated the appellant.

[p.70] of [1995-96] 1 GLR 60

The law is well settled that an accomplice can be considered from three aspects, namely as a witness for the prosecution who was a participes criminis; secondly, as a witness for the defence who is a participes criminis; and thirdly, as a co-accused testifying on his behalf while at the same time incriminating a co-accused. To the extent they, the prosecution, relied on the evidence of the co-accused to prove the offence charged, that evidence was that of an accomplice and should have been treated as such by the tribunal.

The well-established practice is that the trial tribunal should have warned itself of the danger of convicting on the evidence of an accomplice. I am not saying that such evidence is not admissible. I am referring to the weight to be attached to such evidence. The evidence should have been critically evaluated and examined before it would be accepted. This is further confirmed by the Evidence Decree, 1975 (NRCD 323), s 7(5).

It is sometimes said that this rule does not apply to an accused who incriminates a co-accused in making his defence. All the same, if the trial tribunal had examined the evidence of the co-accused, I have no doubt in my mind that it would have rejected it as a basis for convicting the appellant because it was an afterthought and therefore untrue. There were four occasions when the accused persons had opportunity to rope in the sixth appellant if they genuinely believed he was one of those responsible for the loss of the oil. These were when they were first arraigned before their departmental head in the Ghana Railway Corporation yard, when they were first arrested to the police station, when they were asked to give statements on caution to the police and when they were finally charged. On none of these occasions did they allege that the appellant too was responsible for the loss. My view is that they never mentioned his name because they knew he was not a party to whatever led to the loss of the oil. When questioned in court, the answer given by the fifth accused was that they did not mention his name because they were under the impression that the matter would be settled departmentally. That could not be correct. If they laboured under any misapprehension of a settlement, surely that should have dissipated when they were charged before the police and were asked to give their caution and charged statements.

It is significant to point out that it was only when they gave their pleas in court that they made statements implicating the appellant and

[p.71] of [1995-96] 1 GLR 60 thereafter the trial tribunal ordered that the appellant should be arrested and charged. That clearly was an afterthought and should not have been accepted by the tribunal as a basis for ordering that he too should be arrested and charged. This is because Ghanaians do not behave like that and there is nothing in the second and fifth accused for anyone to believe that they would have behaved differently from other Ghanaians. Where two or more people have committed an offence, the one in trouble for the offence rather does not keep mute over the involvement of the real culprit till he is facing prosecution before he names his co-criminals. This is particularly the case with the fifth accused who said he was instructed by the appellant to sign the invoice. If that were correct, it meant that indeed it was the appellant who pushed him into the whole trouble. Why should he want to keep mute while the real culprit, according to him, was walking about a free man, and perhaps ready to enjoy his booty? Even a priest would not behave like that. If what the fifth accused said was true, he surely would have mentioned the name of the appellant as the brain behind his involvement and that he (the appellant) was the one who should be questioned, but not him. His silence over the involvement of the appellant till that belated stage is only explicable on the ground that he knew that the appellant was not a party to the crime. It is significant to observe also that the trial tribunal never stated in its judgment that its decision to believe the accused was based on its observation of the demeanour of the accused. Its decision was based on its own analysis of the facts which are equally available to this court. This court is therefore in as good a position as the trial tribunal to make its own inferences from the facts.

My second reason for allowing the appeal is this: The appellant was charged with doing an act with intent to sabotage the economy of the State. The particulars were that he stole oil belonging to the Ghana Railway Corporation. Granting that the fifth accused signed the invoice because the appellant asked him to sign, does that really constitute stealing? I do not think so. None of the accused persons and certainly none of the prosecution witnesses alleged that he took part in the discharging or delivery of the oil.

Even if the appellant signed it himself or caused the fifth accused to sign the invoice, that was no proof that he stole the oil. The evidence showed clearly that the loss of the oil was directly attributable to those who off-loaded it from the tanker and took measurements of [p.72] of [1995-96] 1 GLR 60 the oil levels before and after the discharge into the Railway container. The well settled law is that a slight participation does not make the participant a criminal: if he was present but did not take part in the delivery and discharge of the oil, his mere presence at the scene would not have made him a criminal. In Otsiba v The Republic [1978] GLR 290, CA, it was held that the mere act of standing by when an offence is committed is not sufficient to make one a confederate or an accomplice.

My last additional reason for allowing the appeal is that this being a criminal trial, the onus of proof is obviously on the prosecution. That proof has been well settled to amount to proof beyond reasonable doubt. I have already alluded to the fact that at the end of the case for the prosecution the appellant should have been acquitted because no case was made against him. When that was not done and the accused gave evidence incriminating the appellant, the prosecution was entitled to rely on it and the tribunal too was at liberty to consider that evidence.

The fact that the prosecution is entitled to rely on that evidence does not mean that the trial tribunal should have used that as the sole basis to convict the appellant. The tribunal was duly bound to consider the case of the prosecution in its entirety. The case of the prosecution was made of the evidence led by its own witnesses as well as the incriminating evidence of the co-accused. It is from the totality of that evidence that the tribunal had to found a conviction. If this had been done, the tribunal could not have missed the fact that the third prosecution witness said that the appellant was nowhere near the scene when the oil was being discharged. He stated categorically that while the oil was being discharged, the appellant was inside a room. That was in direct conflict with the evidence of the co-accused who said the appellant was at the scene of the discharge. An objective consideration of the entire case should lead to the conclusion that the case for the prosecution failed because it could not be said that it reached the standard of proof required in such trials: It could not be found that there was proof beyond reasonable doubt by the prosecution when its own case bristled with material conflicts and contradictions.

Speaking for myself, there is a matter of paramount principle which should be clarified here. The judgments we give here will have to be followed by courts below this Court of Appeal. I believe therefore that

[p.73] of [1995-96] 1 GLR 60 we have a duty to make it clear that:

(1) If at the end of the trial, no case is made against the accused he should be acquitted and discharged.

(2) If he is not discharged, the prosecution is entitled to invite the court to rely on the evidence of the co-accused or even defence witnesses to found a conviction.

(3) If the accused is not discharged but incriminating evidence is provided by the co-accused or their witnesses, the trial court is duty bound to consider the case of the prosecution in it’s entirety before arriving at the decision whether or not there had been proof beyond reasonable doubt, that is to say that the trial court has to consider the evidence led by the prosecution witnesses as well as the incriminating evidence of the co-accused. It cannot use only the evidence of the co-accused as the sole basis for deciding whether or not there has been proof beyond reasonable doubt. In the instant case, the trial tribunal erred because it used only the evidence of the co-accused in founding conviction without considering the effect on that evidence of the contradictory evidence from the prosecution witness which was glaringly in the record.

It is for these reasons that I support the view that the appeal should be allowed.

JUDGMENT OF ESSILFIE-BONDZIE JA.

I regret to say that I do not agree with the judgment of Wood and Brobbey JJA that the appeal should be allowed. I proceed with my reasons.

This is an appeal against the conviction and sentence imposed on the appellant by the Ashanti Regional Public Tribunal sitting in Kumasi on 11 January 1990. The appellant was sentenced to nine months’ imprisonment with hard labour and a fine of ¢150,000 or in default three years imprisonment with hard labour.

The appellant (hereinafter referred to as the sixth accused) and five other employees of the Ghana Railway Corporation, Loco Shed, Ghana were charged with doing an act with intent to sabotage the economy of the State contrary to sections 9(1)(f) and 16 of the Public Tribunals Law, 1984 (PNDCL 78).

On 2 March 1989 when a Ghana Oil Co tanker, vehicle No GVB

[p.74] of [1995-96] 1 GLR 60

9893 arrived with 17,000 litres of gas oil on order at the premises of the Ghana Railway Corporation in Kumasi, the accused persons constituted a team who took delivery after which a shortage of 3,000 litres which was equivalent to 1,340 gallons in imperial measurements occurred. It was the case of the prosecution that the first accused stamped the invoice with the chief shed supervisor’s official stamp certifying that everything was correct.

The procedure, as it was found by the tribunal for the receipt of oil at the Railway Corporation, Kumasi involves the participation of a team of workers representing the various relevant departments within the corporation. The first, second and fourth accused persons admitted their participation in the discharge of the oil and the release of the Goil tanker to leave the premises of the Railway Corporation. The fourth accused represented the accounts department which paid for the oil, whilst the third accused was present to take care of the security aspect of the situation till discharge has been done to specification. After the invoice had been stamped with the chief shed supervisor’s official stamp certifying that everything was correct, it was given to the sixth accused to sign. He refused to sign on the ground that his rank was above the rubber stamp used on the invoice and requested the fifth accused to sign.

The evidence established that all the accused persons who took delivery of the oil were present after the oil had been discharged into the pontoon and was measured and found to tally with the measurement taken of the oil as it remained in the delivery tanker. And that they were in duty bound to ensure that what the Railway Corporation actually took delivery of in the pontoon corresponded with that which was taken from the delivery tanker. Now since the evidence did not disclose any intervening circumstances which could for one reason or the other be held accountable for the shortage, the only inference which could be drawn by the tribunal was that those who took delivery of the oil were directly responsible for the shortage. Under cross-examination the first accused testified as follows:

“Q On 2 March 1989 when the oil was brought, you satisfied yourself that it is the correct quantity which was brought?

A Yes.

Q And after taking delivery also you were satisfied that the contents of the two compartments of the tanker were

[p.75] of [1995-96] 1 GLR 60 emptied into your pontoon?

A Yes.

Q Don’t you agree with me that even before the waybill was signed the quantity in the pontoon should have been checked?

A I agree with you.

Q I put it to you that it was through your negligence that the corporation lost 1,700 litres of oil.

A I accept it. I admit it so.”

The sixth accused denied taking part in the delivery of the oil. When cross-examined by the prosecution he gave these answers:

“Q You asked the fifth accused to sign the invoice because the stamp used was lower than your new designation?

A This is so and also because I was not present when the oil was taken delivery of.”

Lord Lordont Quansah, the first defence witness, an area mechanical engineer of the Ghana Railway Corporation, Kumasi was called as a witness by the sixth accused. All the accused persons worked under him. His evidence showed that the sixth accused lied when he testified that the reason he asked the fifth accused to sign the invoice which certified that the Railway Corporation had received the correct consignment of oil from Goil was because the stamp used was lower than his new designation. This is borne out by the evidence of the first defence witness. Under cross-examination of the first defence witness by the prosecution he said as follows:

“Q From 1986 has the sixth accused been signing some of the invoice?

A Yes.

Q When was the last time he signed one?

A 14 March 1989.

Q On 14 March 1989 I presume he was assistant locomotive superintendent?

A Yes.

Q In what capacity did he sign the invoice?

A Under the stamp of motive power superintendent.

Q Can assistant locomotive superintendent sign in the capacity

[p.76] of [1995-96] 1 GLR 60 of chief shed supervisor?

A Since there is no stamp of assistant locomotive superintendent, it is proper to sign under the chief shed supervisor’s stamp. I personally signed under the stamp of motive superintendent when my stamp was not available.”

It will be observed that the sixth accused testified that after the three departments, stores, accounts and security, which are in charge of oil delivery had taken delivery of the oil and satisfied themselves of the genuineness of all the steps involved, the invoice is sent to the chief shed supervisor to sign for them. He claimed that from 1 November 1989 when he was promoted to the post of assistant locomotive superintendent, he has never signed any invoice. The evidence of his own witness, the first defence witness, quoted above, however exposed this claim as untrue. In the above evidence, under cross-examination the first defence witness is saying that the last time the sixth accused signed an invoice was on 14 March 1989. Since the first defence witness was a witness called by the sixth accused his evidence was binding on the latter. The irresistible inference from the conflict in the evidence of the first defence witness and the sixth accused is that the latter was not truthful to the tribunal and that his stand that he refused to sign the invoice because the stamp used was lower than his new post was an after-thought.

Another reason advanced by the sixth accused for refusing to sign the invoice on 2 March 1989 was that he was not present when the oil was taken delivery of. It is however on record that the second accused, a co-accused whose evidence was believed by the tribunal, demonstrated that the claim of absence made by the sixth accused was also false. The second accused’s evidence was that the fourth and sixth accused persons were present during the delivery of the oil. This piece of evidence was corroborated by another co-accused, the fourth accused. The fourth accused testified that he was present with the first, second and sixth accused when the oil was discharged.

It is noteworthy that the tribunal of fact accepted the evidence of the co-accused persons as true and emphasised that the sixth accused was not a witness of truth. The question to be answered is: did the tribunal err in accepting the evidence of the second and fourth accused which contradicted the evidence of the sixth accused that he was part present during the delivery of the oil?

[p.77] of [1995-96] 1 GLR 60

Regarding the admissibility of the evidence of a co-accused the law was clearly stated in R v Akatia (1946) 12 WACA 98 at 99 as follows:

“It should here be noted that when the twelfth appellant Aborten Acker (eighteenth accused person) gave evidence the Court explained to the jury that evidence led by an accused person to incriminate another accused, is not admissible against the other accused which direction though most favourable to the appellants is not correct in law. A prisoner who goes into the box to give evidence may exculpate or inculpate a co-prisoner . . . He is in the same position as an ordinary witness and may be examined by the co-prisoner.”

Section 7(3) of the Evidence Decree, 1975 (NRCD 323) also provides: “Unless otherwise provided by this or any other enactment, corroboration of admitted evidence is not necessary to sustain any finding of fact or any verdict.” The above provision shows that a court can act on the uncorroborated evidence of a co-accused person, if the latter’s evidence is believed.

It appears from the findings of the tribunal that they also declined to accept the story of the sixth accused because they found him to be untruthful. As already mentioned, the evidence of his own witness, the first defence witness, condemned the sixth accused as a liar. The first defence witness refuted the claim of the sixth accused that he had not signed any document bearing the stamp of chief shed supervisor since his promotion. What are the consequences of these lies?

In Mawaz Khan v R [1967] 1 AC 454 at 463, PC the legal effect of a lie led by an accused person was stated as follows: The principle is that a lie on some material issue by a party indicates a consciousness that if he tells the truth, he will loose. As Hall J also said in Popvic v Derks [1961] VR 413 at 422 “. . . matters which otherwise might be ambiguous or colourless are rendered suspicious and corroborative by reason of the false denial.”

In respect of the evidence of the sixth accused when narrating the evidence before it, the tribunal said as follows in their judgment:

“If he were not connected with the delivery, at least the evidence shows he was around when it was being done and in the light of the evidence of the first defence witness, how can he convince us or anybody that he did not concern himself except

[p.78] of [1995-96] 1 GLR 60 to direct someone to sign the invoice? As the most senior officer at the shed at the time he was not merely in charge of the delivery but it was his duty to ensure that the proper thing had been done. For instance he should have ensured that all the complement of the delivery team was in place so that security would not be lacking. He neglected his duty in order to aid the causation of the shortage and he cannot now claim innocence.”

The tribunal concluded their judgment thus:

“For all that has been said, we conclude that the first, fourth and sixth accused persons are found guilty under section 9(1)(f) of PNDCL 78 and convicted according to law whilst the third accused is to show cause as to why he should not be convicted under section 9(2)(d) of PNDCL 78.”

It was argued by counsel for the sixth accused that at the close of the case for the prosecution, since there was no case proved against the sixth accused he should have been found not guilty and acquitted and discharged. That the tribunal erred in relying on evidence called after the case for the prosecution to convict the sixth accused.

It is significant to point out that the trial of the accused person was conducted under PNDCL 78 and not the Criminal Procedure Code, 1960 (Act 30). Now section 13 of PNDCL 78 which deals with modes of trial provides in subsection 19 that:

“(19) A Public Tribunal upon hearing all relevant evidence made available to it by the Special Public Prosecutor or the People’s Public Prosecutor as the case may be, and the accused shall convict the accused where it is satisfied that all things considered, the offence was committed by the accused.”

It is my view, having regard to the provisions of section 13 of PNDCL 78 that when an accused person is represented by counsel who is his spokesman, it is the duty of his counsel to make a submission of no case to answer. If counsel failed to do so and decides to put the accused in the witness-box and call witnesses, the trial tribunal is enjoined by law to consider the evidence as a whole to justify a conviction. In Commissioner of Police v Kwashie (1953) 14 WACA 319 at 320, in allowing an appeal and resolving a conviction the court stated as follows:

[p.79] of [1995-96] 1 GLR 60

“It is true that the prosecution’s case depended upon the evidence of one police constable, but in announcing his decision the learned District Magistrate said, ‘I believe the evidence of the prosecution. I have no doubt at all in finding the accused guilty of the offences before the Court’, and it being clear that there was evidence before the Magistrate upon which he could properly reach the conclusion he did we are of the opinion that Benson, J., erred in reversing the decision.”

The court further said at 320:

“The Magistrate had the advantage, denied to the appellate Judge, of seeing and hearing the witnesses, and there is no rule of law or practice which should make a Court hesitate in convicting upon the evidence of one witness, in a case where there is no suggestion that the witness is an accomplice, if the Court is satisfied with the evidence given.”

In the light of the matters mentioned above, I hold that the tribunal was right to consider the totality of the evidence adduced before it in order to arrive at a verdict.

Learned counsel for the sixth accused also argued that although the sixth accused was charged under sections 9(1)(f) and 16 of PNDCL 78, the charge did not explain the offence. He went on to say that the essence of the charge is that of stealing of gas oil. And since the prosecution failed to prove stealing against him, the sixth accused’s conviction cannot be sustained.

It must be pointed out that the sixth accused was charged solely with an offence under section 9(1)(f) of PNDCL 78 which is doing any act with intent to sabotage the economy of Ghana. A look at the particulars of offence indicates that there was a mention of stealing. But, nowhere in the record of proceedings is there a suggestion or an indication that the sixth accused was tried for stealing gas oil. Significantly, at the commencement of the trial the particulars of the charge, namely “Doing an act with intent to sabotage the economy of Ghana” contrary to section 9(1)(f) of PNDCL 78 was read and explained to the accused persons including the sixth accused. They all pleaded not guilty. This means that the trial proceeded with the understanding and acceptance that the accused persons, including the

[p.80] of [1995-96] 1 GLR 60 sixth accused, were being tried solely on an offence under section 9(1)(f) of PNDCL 78. The sixth accused was represented by counsel at the trial and if his counsel felt he had been prejudiced in any way or suffered some injustice he would have complained to the tribunal. It is therefore my view that the mention of stealing in the particulars of offence without more was an error which has been cured by the subsequent proceedings.

The tribunal assessed the evidence as a whole and concluded as follows: “For all that has been said we conclude that the first, fourth and sixth accused persons are found guilty under section 9(1)(f) of PNDCL 78 and convicted according to law. . .”

It is my considered view and I so hold that there was evidence available to the tribunal to convict the sixth accused of the offence of “Doing an act with intent to sabotage the economy of Ghana” contrary to section 9(1)(f) of PNDCL 78. According to Black’s Law Dictionary (6th ed), p 1335, sabotage refers to wilful interference with employer’s normal operations. It is noted that the shortage of oil involved in this case is 1,340 gallons. As oil is a vital material for the railway system, the importation of which takes a very large proportion of our national budget, the manner in which the accused persons including the sixth accused caused the shortage manifested a sabotage of the economy.

I want to reiterate that there was evidence available to the tribunal to ground the conviction of the sixth accused of an offence under section 9(1)(f) of PNDCL 78 and this court cannot disturb it. In Atiemo v Commissioner of police [1963] 1 GLR 11 7 at 128-129, SC Adumua-Bossman JSC delivering the judgment of the Supreme Court said:

“The instant case however is one tried by the learned circuit judge alone as ‘the tribunal of fact’ and having regard to the principle so often repeated by the former West African Court of Appeal and the Ghana Court of Appeal that if there be evidence before the court constituted by a magistrate or judge sitting alone which he has accepted to found a conviction, it is not the place of the appeal court to interfere with that conviction . . . Of the many cases in which that principle has been expressed, we would mention only Attoh Kojo Okine v. Commissioner of police [C.A., Cyclostyled Judgments, July-December, 1959, unreported] in which van Lare J.A. said:

[p.81] of [1995-96] 1 GLR 60

We desire to state at the outset that it is not for this court to re-try a criminal case in which a conviction has been based upon evidence which the trial court was entitled to accept. The first ground of appeal can only succeed if it is clear on the record that there is no substantial evidence in support of the conviction. If there was evidence before the trial court to support the conviction, such ground fails.’”

In this case, as already found, there is sufficient evidence on record to support the conviction. The tribunal was the forum which had the opportunity to see and hear the witnesses and whose duty it was to decide which witnesses should and should not be believed. This court cannot reverse their finding of fact. It is my finding that the judgment and the conviction of the sixth accused by the tribunal was proper.

The appeal is accordingly dismissed.

DECISION.

Appeal allowed.

D R K S