EFFAH AND ANOTHER vs. THE REPUBLIC [1999-2000] 2 GLR 722

CASES REFERRED TO

(1) Enweonge v R [1955] 15 WACA 1.

(2) Johnson v Youden [1950] 1 KB 544; [1950] 1 All ER 300; 114 JP 136.

[p.726] of [1999-2000] 2 GLR 722

(3) National Coal Board v Gamble [1959] 1 QB 11; [1958] 3 All ER 203; 102 SJ 621.

(4) Commissioner of Police v Sarpey and Nyamekye [1961] GLR (Pt II) 756, SC.

(5) Windsor; Re (1865) 10 Cox CC 118; 12 LT 307; 29 JP 327.

(6) Republic v Halm and Ayeh-Kumi, Court of Appeal (full bench), 7 August 1969, unreported; digested in (1969) CC 115.

(7) Appiah v The Republic [1987-88] 2 GLR 377, SC.

(8) Frimpong v The Republic (Practice Note) [1973] 2 GLR 1, CA.

(9) Amoasi III v Twintoh [1987-88] 1 GLR 554, SC.

(10) Republic v National Public Tribunal; Ex parte Ajar a Shadow, Court of Appeal, 4 February 2000, unreported

APPEAL by first and second appellants to the Court of Appeal from the decision of the High Court, Koforidua dismissing their appeals against their convictions and sentences by the Circuit Court, Mpraeso in their trial for stealing and abetment of stealing, respectively. The facts are fully set out in the judgment of the court delivered by Amonoo-Monney JA.

Victor Ocansey for the first appellant.

Osafo-Osei for the second appellant.

Gyambiby, Principal State Attorney, for the Republic.

Amonoo-Monney JA. Delivered the judgment of the court at the invitation of Afreh JA. On 13 April 2000 we allowed the appeal of the second appellant, quashed his conviction for abetment of stealing and set aside the enhanced sentence imposed on him on appeal by the High Court, Koforidua. We now proceed to give reasons for allowing his appeal and also to give judgment in the appeal by the first appellant.

The first and second appellants were on 26 February 1999 convicted by the Circuit Court, Mpraeso of the offences of stealing and abetment of stealing, respectively. The first appellant was sentenced to a fine of ¢6 million or, in default, three years’ imprisonment with hard labour and the trial court ordered that “if the fine is paid, ¢4 million be refunded to the complainant as compensation.” The second appellant was sentenced to a fine of ¢1,500,000 or two years’ imprisonment with hard labour. Both

[p.727] of [1999-2000] 2 GLR 722 appellants appealed against their convictions and sentences to the High Court, Koforidua. The grounds of appeal of the first appellant were that: “(1) The conviction is wrong in law;” and (2) “The sentence is harsh and excessive.” Although the petition of appeal also stated that other grounds of appeal would be filed on receipt of the record of proceedings, there in no indication that any other ground of appeal were filed.

The appellants were represented at the trial circuit court by Mr R K A Asaase of Akoma Chambers, Nkawkaw and at the High Court, Koforidau by Mr I L Mills of Baako-Apem Chambers, Koforidua. At the High Court, counsel abandoned the appeal by the first appellant against his conviction and pursued the appeal of the first appellant against his sentence only. The appellate High Court dismissed the appeal against sentence and indeed enhanced the sentence imposed on the first appellant by the trial court, and substituted a sentence of four years and six months’ imprisonment with hard labour, without the option of a fine. In the case of the second appellant, the High Court affirmed his conviction by the circuit court and again altered his sentence to three year’ imprisonment with hard labour, also without the option of a fine. It is from these decisions of the High Court that the appellants have appealed to this court.

The first appellant worked as an accounts clerk with a cigarettes distribution company of Nkawkaw, known as Tripple “R” Co Ltd, which sold cigarettes supplied by Pioneer Tobacco Co (PTC) of Takoradi. Tripple “R” was a customer of the Nkawkaw branch of the Agricultural Development Bank (ADB). PTC also had a “remittance account” with ADB, Nkawkaw into which Tripple “R” Co made payments which were then transferred to PTC in Takoradi. The first appellant was also a customer of the bank. On 9 March 1998 the first appellant had to pay into the remittance account of PTC at the ADB, Nkawkaw the sum of ¢11,700,000 in cash which had come into his possession by virtue of his employment with Tripple “R” Co and thus money that was not meant for his personal use. He therefore filled and signed the necessary ADB “cash only” pay-in slip for this amount, indicating that the cash he was to pay into bank was in the denominations of ¢5,000; ¢2,000; and ¢1,000 currency notes totalling ¢11,700,000. The slip was dated 9 March 1998 (exhibit B). The first appellant had made use of the money and so he took this pay-in slip to the bank without any cash but added his own ‘cash cheque” for the withdrawal

[p.728] of [1999-2000] 2 GLR 722 of the sum of ¢11,700,000 to enable the account of PTC to be credited in line with the pay-in slip. At the ADB branch at Nkawkaw on that day, namely 9 March 1998, the first appellant met the second appellant, an assistant officer of the bank, whom he knew already at the bank, on duty as cashier No 1. The first appellant presented his cheque and the pay-in slip to the second appellant who stamped the pay-in slip with the bank’s “Received stamp”, initialled it and returned two copies of the receipted pay-in slip to the first appellant and retained the cheque. The first appellant then left the bank, went to his office, and immediately faxed the receipted pay-in slip to PTC, Takoradi as evidence that PTC’s account had being credited with ¢11 700,000. Later that day, the second appellant realised to his discomfiture that the first appellant did not have enough money in his account for the cheque to be paid.

For a proper appreciation of the case against the first appellant and the legal issues that arise from the charge of abetment that was preferred against the second appellant, and of which he was convicted, we reproduce here in some detail the evidence the first appellant gave at the trial:

“On 9 March 1998, PTC was to come and check our accounts on the 10 March 1998. I was owing the company, This was because I had credited things to people. I received money from my debtors. I made use of the money paid to me. I did not inform the managing director that I had used the money. When checked, I issued my personal cheque to the ADB to transfer the money, ¢11,700,000, from my personal account to the PTC, Takoradi. At ADB, I met the second accused in the cage. I gave my pay-in slip to him and he stamped it. The moment he stamped it I went back to the office. At the office I went to fax the pay-in slip to Takoradi that I had paid. Later that day the second accused came to my office and told me my personal account is short of ¢11,700,000 so I should make good the difference otherwise the bank could not transfer the money to PTC. The second accused invited me to the bank and he made me destroy two copies of my pay-in slip which he stamped for me. I admitted that I did not have enough money in my account. From there PTC invited me and my managing director to Takoradi. At Takoradi, we were told our company was still owing. Having heard this, I did not tell my

[p.729] of [1999-2000] 2 GLR 722 managing director anything. Thereafter, I sold my house at Nkawkaw and I went and paid the ¢11,700,000 to the ADB for onward transmission to PTC. This was 17 April 1998. I did not act together with the second accused. I acted on my own. The company has been dissolved.”

The first appellant was charged with stealing ¢11,700,000 “on 9 March 1998.” It is however obvious from the evidence, especially the first appellant” own admission, that he did not in fact have in his possession, for and on behalf of Tripple “R” Co that sum of money on 9 March 1998 for him to steal; nor was there evidence that the company on that day had in its office or anywhere else, may be apart from the bank, that sum of money in cash which the first appellant could and did steal. The “making use” of the company’s money which was the basis of the charge of stealing against the first appellant took place before 9 March 1998, which means that at the trial before the circuit court there was some variance between the charge and the evidence. This variance was, however, not material because section 176 of the Criminal Procedure Code, 1960 (Act 30) provides that:

“176. (1) Where, at any stage of a summary trial before the close of the case for the prosecution, it appears to the Court that the charge is defective, either in substance or form, the Court may make such order for the alteration of charge either by way of amendment of the charge or by the substitution or addition of a new charge as the court thinks necessary to meet the circumstances of the case.

(4) Variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for such variance if it is proved that the proceedings were in fact instituted within the time, if any, limited by law for the institution thereof.”

The second appellant was charged with “aiding and abetting on 9 March 1998” the first appellant “to commit crime, to wit: Stealing”; but from the evidence as indicated above, the crime of stealing was not committed on that day and certainly not at the bank when the first appellant, on that day, transacted business at the counter with the second appellant who was then in the cashier No 1 cage. The second appellant has appealed to this court on the

[p.730] of [1999-2000] 2 GLR 722 grounds that:

“(i) The conviction is wrong in law having regard to the evidence adduced before the court; (ii) the judge did not adequately consider the case of the appellant and (iii) the sentence is harsh and excessive.”

In arguing the appeal, learned counsel for the second appellant submitted that there must be on the part of the second appellant, “guilty knowledge” manifested in some act to aid the offender, in this case the first appellant; and that the second appellant did not know of the circumstances under which the ¢11,700,000 was embezzled by the first appellant and that he did not help him in the act which led to the embezzlement of the money. After an initial attempt to support the conviction of the second appellant for abetment of stealing, learned counsel for the Republic soon conceded that since the money, ie the ¢11,700,000 had already been appropriated by the first appellant, no doubt before he went to the bank, the second appellant could not even be charged with abetment of stealing, and we must add, let alone convicted of the offence. Counsel, however, submitted that the second appellant was guilty of abetment of forgery, for though he knew that the first appellant did not give him cash, he nevertheless received the cash pay-n slip and stamped it.

The offence of abetment of crime cannot be committed when the substantive crime which is alleged to be abetted has already been committed. This is as well a legal prescription as a dictate of common sense. Section 20 of Act 29 states that:

20. (1) Every person who, directly or indirectly, instigates, commands, counsels, procures, solicits, or in any manner purposely aids, facilitates, encourages, or promotes, whether by his act or presence or otherwise, and every person who does any act for the purpose of aiding, facilitating, encouraging, or promoting the commission of a crime by any other person, whether known or unknown, certain or uncertain, is guilty of abetting that crime, and of abetting the other person in respect of that crime.”

In his judgment dismissing the appeal of the second appellant against his conviction, the learned High Court said:

“I have critically looked at the conviction of the second appellant and I have no reason whatsoever to disturb the

[p.731] of [1999-2000] 2 GLR 722 conviction handed down by the court below. In this case, the principal offence was committed and the prosecution were able to establish a positive act of assistance voluntarily done by the appellant. It was the appellant who stamped the pay-in slip to indicate that ¢11,700,000 had been paid to the bank in certain cash denominations when in truth and in fact not even pesewa had been paid to the bankAgain, it was the appellant who advised the principal felon to destroy the duplicate and the triplicate copies of the pay-in slip and it was the appellant who failed to keep any record of the tran-saction in the bank. I think the trial judge was right in convicting the appellant and in this he has my support.”

The so-called “positive act of assistance voluntarily done by the second appellant” was certainly not to “assist” the first appellant to commit any crime. From the evidence; the second appellant did not even know at the time he received the pay-in-slip and the cheque from the first appellant that a crime had already been committed in respect of the ¢11,700,000.

The act of an abettor must precede, or be contemporaneous with, the crime abetted and the abettor must know some essential facts constituting the crime. In the Nigerian case of Enweonge v R [1955] 15 WACA 1, Coussey JA, delivering the judgment of the court, said at 3 .

“The third appellant was convicted of murder under section 7(c) of the Criminal Code which provides that where an offence is committed every person who aids another person in committing the offence is deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it. . . We are of the opinion that to bring a person within this section there must be clear evidence that either prior to, or at the time of, the commission of the act the appellant did something to facilitate the commission of the offence.”

Section 7(c) of the Nigerian Criminal Code referred to in the judgment must be in terms similar to the provisions of section 20(2) of our Act 29 and the principle stated in the judgment as quoted is applicable to Ghana. In Johnson v Youden [1950] 1 KB 544 at 546, Lord Goddard CJ said: “Before a person can be convicted of aiding and abetting the commissions of an offence he

[p.732] of [1999-2000] 2 GLR 722 must at least know the essential matters which constitute that offence.” Again, in National Coal Board v Gamble [1959] 1 QB 11 at 20, Devlin J (as he then was) also noted that:

“. . . aiding and abetting is a crime that requires proof of mens rea, that is to say, of intention to aid as well as knowledge of the circumstances, and that proof of the intent involves proof of a positive act of assistance voluntarily done.”

Also in the case of Commissioner of Police v Sarpey and Nyamekye [1961] GLR (Pt 11) 756 at 758, SC, Sarkodee-Addo JSC (as he then was), delivering the judgment of the Supreme Court, said: “In order to convict a person of aiding and abetting it is incumbent on the prosecution to prove that the accused did any one of the acts mentioned in subsection(1) of section 20 [of Act 29]. Under subsection (2) a person who abets a crime shall be guilty if the crime is actually committed (a) in pursuance of abetment, that is to say, before the commission and in the presence or absence of the abettor and (b) during the continuance of the abetment, that is to say, the abetment must be contemporaneous in place, time and circumstance with the commission of the offence. In our view, an act constituting an abetment in law must precede or it must be done at the very time when the offence is committee.”

The second appellant in this case did no such thing.

As stated earlier in this judgment, learned counsel for the Republic submitted that the second appellant was guilty of abetment of forgery because though he knew that the first appellant did not give him cash, he nevertheless received the cash pay-in slip and stamped it and, secondly, there was no record in the books of the bank about the transaction relating to the ¢11,700,000. It must be noted that the second appellant did not just receive a bare cash pay-in slip indicating cash denominations totalling ¢11,700,000. Attached to the pay-in slip was the first appellant’s personal cash cheque for ¢11,700,000 which meant the amount was to be withdrawn to support the pay-in slip and it is most probable that the denominations of the amount when withdrawn would not be the same as the denominations stated on the pay-in slip. The procedure adopted by the first appellant appears unwise and irregular, but he explained at the trial that that

[p.733] of [1999-2000] 2 GLR 722 had been the practice with the Tripple “R” Co. His conduct was however not criminal. Even though the first appellant in his evidence at the trial court said he made use of the company’s ¢11,700,000 and even though he knew that he had not enough money at the bank for the cash cheque he issued to be paid by the bank, yet the pay-in slip dated 9 March 1998 which he filled and signed (exhibit B) was not a forged document within the meaning of section 164 of Act 29 and consequently there cannot be any “abetment” of forgery. In Re Windsor (1865) 10 Cox CC118 at 123, Blackburn J said:

“Forgery is the false making of an instrument purporting to be that which it is not; it is not the making of an instrument which purports to, be what it really is, but which contains false statements. Telling a lie does not become a forgery, because it is reduced into writing.”

This still reflects the Ghana situation subject, however, to the requisite intents stated in our criminal code. It has been explained that: “The simplest and the most effective phrase by which to express this rule is to state that for the purposes of the law of forgery, the writing must tell a lie about itself.” It is obvious that if the cash cheque of the first appellant had been paid, then there would have been entries in the books of the bank about the receipt by the bank of the sum of ¢11,700,000 to be credited to the “remittance account” of PTC, Takoradi. The evidence shows that because the first appellant could not readily provide the sum of ¢11,700,000 to back the pay-in slip, the pay-in slip had to be destroyed for clearly it was worthless. No criminal interpretation can therefore be placed on its destruction as it appeared to have been the practically prudent course to take else ADB Nkawkaw would have demanded that the second appellant account for money he did not receive and therefore could not have misappropriated. Exhibit B that was tendered at the trial seems to be a photocopy of either the duplicate or triplicate copy of the pay-in-slip dated 9 March 1998 that the first appellant took from the bank to his office. Although according to the evidence he was made to destroy these copies, he must have kept a photocopy in the office.

It is for these reasons stated above that we allowed the appeal of the second appellant, quashed his conviction, set aside the enhanced sentence imposed on him on appeal by the High Court, Koforidua and ordered the refund to him of the fine of ¢1,500,000

[p.734] of [1999-2000] 2 GLR 722 which he paid following his conviction by the trial circuit court. We similarly could not convict him of abetment of forgery.

The first appellant was charged with stealing “cash, the sum of ¢11,7000 the property of one Bernard Kwabena Ntiamoah, former managing director of Tripple “R” Co, Nkawkaw.” The evidence showed that the Mr Ntiamoah, who was the first plaintiff witness at the trial, was not the owner of the money that was stolen. The money belonged to Tripple “R” Co Ltd of Nkwkaw. Indeed, in its judgment, the trial circuit court stated:

“The issues before the court are whether or not the first accused stole money belonging to Tripple “R” Co which should have been credited to the Pioneer Tobacco Co, and whether or not he was aided by the second accused, a cashier of the ADB in doing so.”

This slight error cannot affect the decision in the case because section 125 of Act 29 provides that “A person steals if he dishonestly appropriates a thing of which he is not the owner.” This provision was explained by the full bench of the Court of Appeal in the case of Republic v Halm and Ayeh-Kumi Court of Appeal, 7 August 1969, unreported; digested in [1969] CC 155, as stated in the headnote, holding (1) thus:

“(1) The preliminary relationship for consideration in a charge of stealing is not so much a relationship between the person charged and some other, identified as owner, as a relationship between the person charged and the thing alleged stolen… For the offence of stealing to be constituted, therefore, the relations, act and intention to be proved in connection with ‘the thing’ are: (i) that the person charged must not be the owner of it; (ii) that he must have appropriated it; and (iii) that the appropriation must have been dishonest.”

As, has been indicated earlier in this judgment, at the High Court, Koforidua learned counsel for the first appellant abandoned the appeal of the first appellant against his conviction with these words: “We have looked at the case of the first appellant and we are satisfied that his conviction is right. I am therefore abandoning the appeal against his conviction. I am however, appealing against the sentence.” This was on 15 July 1999. Then the High Court delivered judgment on 28 July 1999; then on 5 August 1999, this same counsel, Mr I L Mills, files a “Notice of Appeal” to this

[p.735] of [1999-2000] 2 GLR 722 court on one form in respect of the first and second appellants, alleging in respect of both appellants that: “ (1) the conviction is wrong in law having regard to the a evidence adduced before the court”, and “(2) the judge did not adequately consider the case of the appellants.” In this court Mr Victor Ocansey, learned counsel for the first appellant, submitted that though the appeal against conviction of the first appellant was abandoned at the High Court, the first appellant was nevertheless still interested in pursuing the appeal against his conviction because of the terms of the notice of appeal filed on 5 August 1999 and also the portion of the judgment of the court below where the learned High Court judge said: “The first duty of an appellate court is to find out whether the conviction and sentence imposed on the appellant are right in law irrespective of whether the appellant called for their review or not;” and he added that “I have examined the conviction handed down by the court below and I am satisfied that it should not in any way be disturbed.” This may be another way of the judge saying that counsel did the right thing by abandoning the appeal against conviction.

Counsel also referred to the case of Appiah v The Republic [1987-88] 2 GLR 377 at 381, SC where Francois JSC, delivering the judgment of the majority of the Supreme Court, said:

“An appeal is essentially a rehearing, consequently it has been our duty to examine afresh the material proffered by the prosecution in proof of the charges against the appellant and, in relation to the applicable law, to test the legal viability of the appellant’s conviction.”

This statement, in its general connotation, merely means that, subject to any new or further evidence that may be adduced on appeal, and also subject to the “applicable law”, the decision on an appeal, whether a second appeal or even a third appeal, should turn on the evidence that was made available to the trial court or court of first instance. Learned counsel for the Republic, Mr Anthony Gyambiby, in his reply, referred to section 11(1) and (3) of the Courts Act, 1993 (Act 459) and argued that in criminal cases one cannot appeal from a decision given by the circuit court to the Court of Appeal and that the appeal by the first appellant against his conviction should have been dismissed by the appellate High Court. He further argued that it is irregular for the first appellant to appeal to this court against his conviction by the trial

[p.736] of [1999-2000] 2 GLR 722 circuit court because, after he had abandoned the appeal, no arguments were advanced in respect of his conviction for the appellate High Court to pronounce on the submissions and thus the conviction. He however stated that it was the responsibility of this court to do justice and we should therefore consider whether there was any “good cause” for quashing the conviction.

Because counsel abandoned the appeal of the first appellant against his conviction, the learned chief state attorney who appeared for the Republic naturally did not make any submissions to the appellate High Court on the conviction. When the appeal was abandoned the High Court should have dismissed the appeal of the first appellant against his conviction. If that had been expressly done and recorded by the court, it is doubtful whether the first appellant could have conjured some reasonable and legal grounds and come to court to appeal against the dismissal of his appeal. The practice and procedure in the Court of Appeal may be cited by way of analogy and also as guidance to the High Court and indeed also to the Regional Tribunal when exercising appellate criminal jurisdiction. Rule 44(1) of the Court of Appeal Rules, 1997 (CI 19) provides in respect of criminal appeals that:

“(1) An appellant may at any time after he has duly served notice of appeal or of application for extension of time within which the notice shall be given, abandon his appeal by giving notice of abandonment as specified in Form 6 in Part 11 of the Schedule to the Registrar, and upon such notice the appeal shall be deemed have been dismissed by the Court.”

The trial circuit court properly exercised criminal jurisdiction in this case by virtue of section 1(1) of the Courts (Amendment) Act, 1993 (Act 464); and section 2(b) of the Act states that:

“2. A person aggrieved by a decision or order or the Circuit Court in the exercise of its jurisdiction under this Act may (b) in a criminal matter appeal to the High Court on a question of law or fact against the acquittal, conviction or sentence other than a sentence fixed by law.”

When the appeal of the first appellant against his conviction was abandoned at the High Court, the final decision at that stage on his conviction became that of the trial circuit court. What the first appellant now seeks to do is, in effect, to appeal from a

[p.737] of [1999-2000] 2 GLR 722 decision of the circuit court given in a criminal matter under Act 464 straight to this court; and that cannot be legally done. See the case of Frimpong v The Republic (Practice Note) [1973] 2GLR 1 at 3, CA where the Court of Appeal, in its ruling delivered by Azu Crabbe, Ag CJ, said after referring to subsection (2) of section 335 of Act 30:

“Where a person is convicted and sentenced by a circuit court in a summary trial, an appeal against conviction or sentence, or against both conviction and sentence, lies in the first instance only to the High Court, and a further appeal lies from the decision of the High Court to the Court of Appeal. Where the would-be appellant appeals to the High Court only in respect of either the conviction or the sentence, he cannot thereafter appeal to the Court of Appeal in respect of the matter which was not before the High Court.”

The Court of Appeal concluded its ruling in these words:

“As we are satisfied that the proceedings in the circuit court were summary, and that the applicant did not challenge his conviction in the High Court, we think that the present application is misconceived, and it is accordingly dismissed.”

The applicant in that case had earlier appealed to the High Court against his sentence only and that appeal had been dismissed. We must say that this principle cannot apply where the issue is one of jurisdiction, for the issue of jurisdiction can be raised at any level and at any stage of the appellate structure or appeal process even though it may not have been raised, argued and ruled upon at the court below: see the case of Amoasi III v Twintoh [1987-88] 1 GLR 554 SC. Indeed, as was stated by this court in the case of Republic v National Public Tribunal; Ex parte Shadow, Court of Appeal, 4 February 2000, unreported: “Issues relating to jurisdiction are basic to the valid and legal assumption and exercise of judicial authority; and whether a preliminary objection to the assumption of jurisdiction is raised by a party to the action or not the court (or tribunal) must satisfy itself that it has legal competence, usually statutory, to deal with the matter. It may suo motu raise the question of jurisdiction and invite submissions from the parties before determining that preliminary and fundamental matter.”

[p.738] of [1999-2000] 2 GLR 722

Be that as it may, it is better to err on the side of caution and so, ex abundanti cautela, we shall consider the question of the conviction of the first appellant in the light of the evidence and the submissions made to us. Counsel for appellant submitted that the conviction of the first appellant was wrong because “mens rea”, that is “dishonest appropriation” was not proved beyond reasonable doubt and that the appellant in dealing with the money of the company had no “fraudulent intents.” Counsel for the Republic, for his part, contended that the offence of stealing was proved beyond reasonable doubt and that there was dishonest appropriation by the first appellant of his employer’s money and that the appropriation was made without a claim of right. Part of the evidence that the first appellant gave in his “defence” has already been quoted in this judgment. In his cautioned statement which he made on 21 May 1998 and which vas tendered in evidence at the trial as exhibit C without objection, the first appellant said: “In the course of my duties I embezzled an amount of ¢11,700,00 which were (sic) paid to me by some customers who owed the company. When I realised that the national sales manager of PTC and the regional sales manager, Eastern Region were coming on inspection, and because I wanted to cover up, I issued a cheque of ¢11.7 million and went to the bank to pay in. All along I did not tell the complainant that I had embezzled that amount and also did not speak the truth when I was confronted with the issue that I did not pay any money to the bank on 9 March 1998.”

In his concluding address to the trial court filed on 18 February 1999, learned counsel for the first appellant, Mr R K A Asaase, said “it is our humble submission further, my Lord, that, the first accused having absolutely admitted the offence wholeheartedly, then it is the natural sequence that the second accused be therefore acquitted and discharged.” He nonetheless boldly and strangely went ahead in the very next paragraph to say that the case was one of “general deficiency, which was immediately realised and ameliorated, hence no stealing at all”, and he concluded by stating unconvincingly, certainly in the case of the first appellant, and if it had been an oral submission one would have added, with his tongue in his cheek, that “from the foregoing I pray the court to have all (sic) accused persons acquitted and discharged.”

[p.739] of [1999-2000] 2 GLR 722

We are of the opinion that the appeal of the first appellant against is conviction is without merit. In fact his appeal should even have been dismissed summarily under section 328 of Act 30. We accordingly affirm the conviction of the first appellant and dismiss his appeal against his conviction.

The order awarding compensation of ¢4,000,000 out of the fine of ¢6, million imposed on the first appellant was rightly set aside by the High Court as the order was illegal. By article 160 of the Constitution, 1992: “The fees, fines and other moneys paid to the Courts shall form part of the Consolidated Fund.” No court can therefore by any order appropriate any fine or any portion of it for any purpose. The total amount of ¢11,700,000 was refunded and so no order can be made under section 147(B) of Act 30.

The trial court did not say there was the need to pass a deterrent sentence; and it took cognisance of the fact that the amount stolen had been fully recovered, though it also noted that by the conduct of the accused persons “the entire company. . . has broken down.” The court below, among other considerations, imposed the enhanced sentences “having regard to the seriousness of the offence and its negative ramifications on families, the economy and society at large.” The economy referred to here is no doubt the economy of Ghana, and the “society at large” must be the entire Ghanaian society. We think there was no evidence of these “negative ramifications” stated, nor could there be any legitimate inference about them from the evidence made available to the trial court. The sentence of three years Imprisonment with hard labour imposed on the first appellant by the trial court in default of paying the fine of ¢6,000,000 is unlawful as it offends against section 297(3) of Act 30.

We set aside the sentence of four years six months’ imprisonment with hard labour imposed on the first appellant by the court below and substitute a sentence of two years imprisonment with hard labour plus a fine of ¢3 million or in default, twelve months’ imprisonment with hard labour. The sentence of imprisonment is to take effect from 26 February 1999, the date that the first appellant was convicted by the trial court. The appeal against sentence is allowed to the extent indicated.

Appeal by first appellant allowed in part.

Appeal by second appellant allowed.

SA