REPUBLIC VS MOSES SEFA DARKO (D4/78/2017) [2022] GHACC 288 (12 December 2022)

IN THE CIRCUIT COURT OF GHANA, HELD IN ACCRA ON MONDAY, THE 12TH DAY OF DECEMBER, 2022 BEFORE HER HONOUR ROSEMARY BAAH TOSU (MRS) CIRCUIT COURT JUDGE COURT CASE: NO. D4/78/2017 REPUBLIC VS MOSES SEFA DARKO Accused – Present Chief Inspector Amoah Richard for Prosecution- Present …………………………………………………………………………………… …………………………………………………………………………………… JUDGMENT ‚….. A court is not entitled to reject a defence simply because it does not believe it. The court must consider short of believing the defence whether it might be reasonably true’ R vs. Ansere (1958) WALR 385 Accused is charged with one Count of Stealing contrary to section 124 (1) of the Criminal Offences Act, 1960, (Act 29). He pleaded not guilty to the charge. THE FACTS AND PROSECUTION’S CASE According to Prosecution, Complainant is businessman who deals in the sale of cigarettes, whilst Accused is a trader. Accused in the year 2015, approached complainant, one Douglas Kena and pleaded to be given some quantities of cigarette to sell. Accused was later supplied with some cartons of cigarette worth GHS46,000 to sell and pay back. However, Accused has not been able to pay back the money or return the goods, rather he went into hiding. Prosecution called three witnesses, Stephen Kwame Oduro (PW1), Detective Inspector Samuel Amoah (PW2) and Douglas Kena (PW3). PW1 is a sales supervisor at Yodk Sky Ghana Limited and testified that the company supplies PW3 with cigarettes on credit basis which he repays after a week. PW3 later informed PW1 that Accused had approached him that he also wanted to be given some cigarettes to sell on credit, on the same terms as PW3. Based on this arrangement Accused was supplied with goods however he has been unable to render proper accounts to PW3. PW2 testified that a case of stealing was referred to him for investigation. Accused was arrested and admitted to having been supplied with a quantity of cigarettes for sale but has been unable to account for all the proceeds. Apparently, Accused informed Police he had supplied some clients, who had been unable to pay, that was the reason for his default. PW2 tendered in evidence exhibits A, Caution Statement of Accused, and exhibit B, Charge Statement of Accused. PW3, testified that he has been a distributor for Yodk Sky Ghana Limited for about 7 years, on terms which have already been narrated supra. He was approached by Accused who was interested in selling some of the products. He was then granted permission by the Company to go ahead with Accused. PW3 further testified that he supplied Accused with quantity of cigarettes, with the understanding that Accused will repay after a week, however he has failed to do so and neither has he returned the goods. Upon confronting Accused, he admitted having used the proceeds to buy a Pick-up vehicle for his business. THE DEFENCE Accused testified in his own defence and did not call any witness. Accused testified that he worked with PW3 for two and half years. According to Accused, PW3 supplies him with cigarettes on credit and after selling them he pays on a latter date. Accused testified that as a marketing officer, he needed to be mobile in order to transport the products to and from his customers. He therefore decided to Pick Up truck at a cost of GHS12,000 to aid the business. Accused says that he used some of PW3’s money together with his profit to make this purchase, however, within a year the vehicle was broken down and he had to spend a lot of money on repairs. Accused gave further evidence that about three of his clients who he made supplies to failed to pay him and he has also been unable to trace their whereabouts. Accused says that as a result of these mishaps, things became difficult and he could not keep up with the payments. Accused further testified that he told his boss, PW3 about the shortages and he was helping him by supplying him more products which he paid for periodically. Accused insists that he did not steal any cigarettes that he was supplied on credit basis however as a result of some difficulties he could not repay all the products he was supplied with. THE CHARGES Section 124(1) of Act 29 (1960) states ‘A person who steals commits a second degree felony’, Section 125 of Act 29/60 also defines stealing as follows ‘A person steals who dishonestly appropriates a thing of which that person is not the owner’. Further, Section 122(2) of Act 29/60 defines what is meant by the word appropriation. It says ‘Appropriation of a thing in any other case means any moving, taking, obtaining, carrying away or dealing with a thing, with the intent that a person may be deprived of the benefit of the ownership of that thing or of the benefit of the right or interest in the thing, or in its value or proceeds or part of that thing.’ The Prosecution must therefore prove that there was an appropriation of a thing, that the appropriation was dishonest and that the thing belonged to another person. There cannot be appropriation unless there is evidence that 1. The Accused not being the owner, took or moved or obtained the thing or did some act in respect of the thing 2. The act whether it consisted of moving, taking etc was intended to deprive some person of the benefit of his right to it. The act and intent together constitute appropriation 3. The intent need not be to deprive the person permanently of his benefit or ownership it is enough if it is to deprive him temporarily. THE EVIDENCE The burden on the prosecution remains the same as provided for in Section 13(1) of the Evidence Act, NRCD 323 states ‘in any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt’. Contrary to this burden imposed on Prosecution, there is no such burden on the accused than to raise a reasonable doubt as to his guilt. If an Accused can raise a reasonable doubt, then he must be acquitted The yardstick by which an Accused person’s explanation is tested to determine whether he is entitled to an acquittal or not is Reasonable probability. If on the whole the explanation given by the Accused is such that even if it is not true, it is reasonably probable, then the balance of probabilities will tilt in Accused favour and he must be acquitted. If a Court then finds that the Accused person’s explanation is reasonably probable, then the fact is that the Prosecution has not been able to prove his guilt beyond a reasonable doubt. This statement of the law has been reproduced differently in the celebrated case of Lutterodt vs. COP (1963) GLR 429 SC The case sets out the three stages that a court must go through when considering the defence of an accused person ‘Where the determination of a case depends upon facts and the Court forms an opinion that a prima facie case has been made the Court should proceed to examine the case of the defence in 3 stages. i. ii. Firstly, it should consider whether the explanation of the defendant is acceptable, if it is that provides complete answer and the Court should then acquit the defendant If the Court should find itself unable to accept or if it should consider the explanation to be not true, it should proceed to consider whether the explanation is nonetheless reasonably probable; if it should find it to be, the court should acquit the defendant, and iii. Finally, quite apart from 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. the 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’ The Defendant’s explanation is straight forward, that he was diligently paying for the goods he was supplied by the complainants until a few mishaps made it difficult and he defaulted in making payments. The Prosecution witnesses have admitted under cross-examination that this is not the first time they have had business with Accused. Accused has in the past made payments for goods he was supplied with. I also take note of the evidence led by Accused at paragraph 10 of his witness statement as follows 9. I lost those monies and the cost of further repairs on the vehicles also made things difficult for me to repay the supplies made to me. 10. I told my boss about my shortage and he was helping me by supplying me more of the cigarettes and I was paying periodically to my boss. This evidence was not challenged by Prosecution under cross-examination. Having considered the explanation given by Accused in his defence and also having considered the nature of the facts which ground the charge of Stealing before the Court, I find that the explanation given by the Accused is acceptable and provides a complete answer to the charge against him. This means consequently that Prosecution has been unable to prove the charge beyond a reasonable doubt. Accused is hereby acquitted of the charge of stealing levelled against him. CIRCUIT COURT JUDGE (SGD) H/H ROSEMARY BAAH TOSU (MRS) 5