Republic Vrs F & J Divine Glory School & Anor. [2022] GHADC 194 (5 November 2022)

IN THE DISTRICT SSNIT COURT C, FORMER COMMERCIAL COURT BUILDING - ACCRA HELD ON SATURDAY THE 5TH DAY OF NOVEMBER 2022. BEFORE HER HONOUR MRS. MATILDA RIBEIRO, SITTING AS AN ADDITIONAL MAGISTRATE CASE NO. SNT/260/2017 THE REPUBLIC Versus. 1. F & J DIVINE GLORY SCHOOL ACCUSED PERSONS 2. JOSEPH A. ASHILEY ——————————————————————————————————- JUDGMENT Accused Persons: Second accused person present and represents first accused. Prosecution: Reginald Adu Poku Esq. Counsel for accused persons: Isaac Akwantey Esq. Accused persons were charged with the offence of Failing to submit Social Security contribution reports in respect of selected workers contrary to section 83(1)(d) and (f) of the National Pensions Act, 2008 (Act 766) as amended by section 7 of the National Pensions (Amendment) Act, 2014 (Act 883). The brief facts of the case as attached to the Charge Sheet is that the first accused is an establishment registered under the laws of Ghana. The second accused is the proprietor of the first accused. As demanded by the Basic Social Security Scheme, under the National Pensions Act of 2008, Act 766, the establishment is duly registered with employer registration number 20110049. The establishment is an educational institution. Inspections conducted by officers of the Trust for the period January 2016 to July 2017 revealed that the accused persons failed to Page 1 of 13 submit relevant contribution reports in respect of selected workers at the establishment to the Trust which constitutes an offence under section 83(1)(d) and (f) of the National Pensions Act of 2008, Act 766 as amended by section 7 of the National Pensions (Amendment) Act, 2017 (Act 833). Efforts to get the accused to submit the said contribution reports to the Social Security and National Insurance Trust (hereinafter referred to as SSNIT) were to no avail. Criminal summons was consequently served on the accused persons to appear before this honourable court to answer the charge preferred. 2nd Accused person also representing 1st accused person in his capacity as the proprietor of 1st accused, pleaded not guilty to the charge and the prosecution generally assumed the burden of proof but with an exception in this case as we will soon find out. Summary of Prosecution’s Case: Prosecution called two witnesses; Kesewah Honyenuga (PWI) a Compliance Officer at SSNIT and Solomon Kwaku Tamakloe (PW2) who worked for accused within the period under review. The prosecution witnesses relied on their witness statements filed before the court on the 27th day of February 2021 as their evidence in chief. The summary of prosecution’s case as presented through its witnesses PW1 and PW2 is as follows. According to the evidence of PWI, on or about the 5th day of December 2016, she came across F&J Divine Glory School while going through the list of establishments which had been assigned to her to work on. She said she observed that the last time contribution reports were submitted on behalf of workers in the school was in November 2013 and it was for only three (3) workers. She said she wondered why a school will have only three 3 workers, so she printed the said contribution report (Exhibit A) and proceeded to investigate the matter by visiting the school. At the school, she interacted with one Jedidiah Quarcoo and Solomon Tamakloe (PW2) who were introduced to her by the security man as Secretary and Headmaster respectively. According to PWI, her investigations revealed that the accused had about 17 workers signing in the attendance book some of which had not been registered with SSNIT and the accused had also failed to submit contribution reports on his workers for the period of investigation being January 2016 to July 2017. Thereafter, she proceeded to do an establishment information update and Page 2 of 13 the update form (Exhibit C) was signed by Mr. Solomon Tamakloe (PW2). She said she called second accused to discuss her findings with him, but he did not cooperate with her. PW2’s evidence was to the effect that he worked for the accused from 13th September, 2016 to 15th June, 2017 but accused failed to give him an appointment letter despite several demands on him to do so. According to him, he worked as a head teacher and a teacher. In his capacity as the headteacher, he registered Basic Education Certificate Examination (BECE) candidates for June 2017 and he exhibited “exhibits D”( West African Examination Council WAEC (BECE) for school Candidates Fees Slip) and Exhibit “E”( WAEC Statement of Entries for June 2017 ) which had his name, signature and email address endorsed on them. He stated further that accused paid him monthly salary from September 2016 to February 2017 only on “table top” but failed to pay his SSNIT contributions for the period he worked for him. He said he lodged a formal complaint with SSNIT in May 2017 when he realized that the accused persons were not paying his SSNIT contributions. He tendered in evidence, Exhibit ‘F’ being his Social Security statement as at 24th May 2017 and Exhibit ‘G series’ being statements of his SSNIT contributions from 2015 to 2019 both of which showed no contributions from accused establishment for the period he worked for it. He also gave evidence of his interactions with an officer from SSNIT (PW1) when she visited the school whilst he was working there. He said that not long after the SSNIT investigation and the summons on accused persons, A2’s attitude towards him changed. He said whilst teaching on the 15th day of June 2017, he was called to the office and informed by one Madam Diana that she has been instructed by the accused to pay him off, he was handed an envelope containing GHC300.00 and asked to leave. Prosecution closed its case on the 2nd day of April 2022. At the close of prosecution’s case, counsel for accused filed a written submission of no case on the 4th day of May 2022 and same was dismissed in a written ruling of the Court dated 14th May, 2022. Based on section 174(1) of the Criminal and Other Offences Procedure Act 1960 (Act 30) which states that “At the close of evidence in support of the charge if it appears to the court that a case is made out against the accused sufficiently to require the accused to make the Page 3 of 13 defence, the Court shall call on the accused to make the defence and shall remind the accused of the charge and inform the accused of the right of accused to give evidence personally on oath or to make a statement”, Accused persons were then called upon to open their defence but they have since failed to do so. Accused dissatisfied with the ruling of the court on his submission of no case, filed an interlocutory appeal before the High Court with leave of this Court. Accused and his counsel have stood their grounds not to open their defence until the outcome of the interlocutory appeal before the High Court. It is trite in our legal jurisprudence that an appeal per se does not operate as an automatic stay of proceedings. Accused persons and their counsel stopped appearing before this Court until a bench warrant was issued for the arrest of 2nd accused. Indeed, counsel for accused persons stopped appearing before this Court from the 9th day of July 2022 when leave was granted them to file the interlocutory appeal, till October 2022. It is also trite law that an accused person cannot be compelled to give evidence (see Article 19(10) of 1992 Constitution) but considering the peculiar circumstances of this case, that is, the burden placed on accused persons by section 83(1)(f) of Act 766 and the aftermath of the court’s ruling on the submission of no case on the 14th day of May 2022, the Court in the interest of justice, allowed accused persons a few more adjournments/opportunities to open their defence. The Court explained and directed accused persons on the procedure (because he informed the Court that his lawyer said they had no business appearing before this Court again until their interlocutory appeal had been determined) but they still refused to open their defence. The Court in its ruling on the 20th day of August 2022 relied on the Supreme Court’s decision in Mallam Ali Yussif Issa (No. 2) v. The Republic [2003-2004] 1 SCGLR 174@185, and dismissed an application by accused persons for stay of proceedings pending interlocutory appeal as same was found to be without merit. The Court granted the accused persons yet another opportunity to open their defence on the 3rd day of September 2022 else it will proceed to determine the matter in accordance with law but they once again refused to do so. The Court was therefore left with no other option than to proceed with the matter and determine it in accordance with law there being no express order of this Court or any other Court preventing this Court from doing so. Page 4 of 13 Section 83(1)(d) of the National Pensions Act, 2008 (Act 766) as amended by Act 833 and section 83(1)(f) of Act 766 under which accused persons were charged provide as follows: “A person who; (d) fails to pay contributions or penalty imposed by the Trust in respect of unpaid contributions or fails without reasonable excuse to submit or refuses to submit contribution payment with a contribution report or accompany contribution to the Trust within the prescribed period in the form and manner prescribed” (f)without reasonable excuse, proof of which shall be on that person, fails to comply with a provision of this Act or Regulations made under this Act, is liable on summary conviction” (emphasis supplied). It is trite learning that in criminal trials it is the responsibility of the prosecution to prove the guilt of an accused who has not pleaded guilty by adducing sufficient evidence in support of the charge or case and the standard of proof is beyond reasonable doubt. Sections 11(2) and 15(1) of the Evidence Act (NRCD 323) emphasize the fact that the burden of adducing evidence and the burden of persuasion of the offence charged is on the prosecution at the beginning of the trial. Section 11(2) of NRCD 323 provides that “in a criminal action, the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt requires the prosecution to provide sufficient evidence so that on all the evidence, a reasonable mind could find the existence of the fact beyond reasonable doubt”. Section 15(1) also states that “unless and until it is shifted, the party claiming that a person is guilty of crime or wrongdoing has the burden of persuasion on that issue”. This also implies that the burden of persuasion which is on the prosecution from the beginning of the trial can shift and when it shifts to the accused, his burden is different and lesser as provided under section 11(3) that “In a criminal action the burden of producing evidence when it is on the accused as to any fact, the converse of which is essential to guilt requires the accused to produce sufficient Page 5 of 13 evidence so that on all the evidence , a reasonable mind could have a reasonable doubt as to guilt”. So, when the burden of adducing evidence and persuasion shifts to the accused person, his duty is only to raise a reasonable doubt. It is worthy of note however that this general rule on the burden of proof in criminal trials may not apply in all cases. There are some exceptions to this general rule, where an accused person may be required to lead evidence to literally ‘prove’ his defence and this could be either by case law or statute. Despite the presumption of innocence of an accused person as provided under Article 19(2)(c) of the 1992 Constitution, Article 19(16)(a) of the 1992 Constitution makes it possible for an accused person to bear the burden of proving particular facts where an enactment provides for same. Article 19(16)(a ) states that “Nothing in, or done under the authority of, any law shall be held to be inconsistent with or in contravention of, the following provisions, (a) paragraph (c) of clause (2) of this article, to the extent that the law in question imposes upon a person charged with a criminal offence, the burden of proving particular facts;”(emphasis supplied). The law under which the accused was charged, section 83(1)(d) and (f) of Act 766 as amended happens to fall within the category of exceptions to the general rule on the burden of proof. According to the learned author and former Justice of the Supreme Court of Ghana, S. A Brobbey JSC in his book Essentials of the Ghana Law of Evidence 2014 at page 58 these exceptions could be in the form of exemptions, exceptions, provisos, excuses, justifications or qualifications and may be expressed or couched in words like “ proof of which shall lie on the accused”, “unless otherwise proved by the accused”, “unless otherwise justified by the accused” etc. (emphasis supplied). He went on to state further that “Where the statute contains these exemptions etc, the onus of proof is taken from the prosecution and placed on the defence, before it may possibly shift back to the prosecution. This means that after the prosecution has introduced the charge and adduced the supporting facts or evidence from prosecution Page 6 of 13 witnesses which amounts to the establishment of a prima facie case, the accused has the evidential burden to adduce enough evidence in support of his defence to justify the defence being considered by the jury or trier of facts before the prosecution assumes the legal burden of disproving the defence of the accused” (emphasis supplied). For example, section 206 of Criminal Offences Act (Act 29) states that “a person who, without lawful authority the proof of which lies on that person, has in a public place an offensive weapon commits a misdemeanour (emphasis supplied)” See sections 165, and 162(b), of Act 29 for more legislative exceptions to the general rule on the burden of proof in criminal cases. The law under which the accused was charged, i.e. section 83(1)(d) and (f) of Act 766 as amended by Act 833 also happens to fall within the category of exceptions to the general rule on the burden of proof. At this point it is necessary to examine the offence creating provision of statute under which accused persons were charged. As indicated earlier, accused persons were charged under section 83(1)(d) of the National Pensions Act, 2008 (Act 766) as amended by Act 833 and section 83(1)(f) of Act 766 which provide as follows: “A person who; (d) fails to pay contributions or penalty imposed by the Trust in respect of unpaid contributions or fails without reasonable excuse to submit or refuses to submit contribution payment with a contribution report or accompany contribution to the Trust within the prescribed period in the form and manner prescribed” (f)without reasonable excuse, proof of which shall be on that person, fails to comply with a provision of this Act or Regulations made under this Act, is liable on summary conviction” (emphasis supplied). The elements of the offence to be established by the prosecution are that; a. The accused failed or refused to submit contribution report for its workers for the period January 2016 to July 2017 in the form and manner prescribed and b. That the failure or refusal to submit the contribution reports was without reasonable excuse. Page 7 of 13 The accused persons therefore have to establish either that; a. They have submitted the contribution reports for the period in question or b. That they had a reasonable excuse for their failure or refusal to submit the required contribution reports. Section 83(1)(f) of Act 766 which is a specific legislation when it comes to pensions and social security contributions places the burden of proof of a reasonable excuse for a failure to submit contribution reports if any on the accused persons. Prosecution’s duty is to adduce enough evidence to establish the elements of the offence which is that the accused persons failed without reasonable excuse, to submit to SSNIT, social security contribution reports on their workers for the period January 2016 to July 2017. This duty in my considered view has been discharged by the evidence of prosecution witnesses PW1 and PW2. Prosecution has established that accused failed to submit contribution reports for the period January 2016 to July 2017. That from the records of SSNIT, as at 5th December 2016, the most recent contribution report submitted by accused persons was in November 2013 (Exhibit A). Exhibit A had the names of only three workers on it. That after the investigations and findings by the Compliance Officer (PWI), 2nd accused person was invited for a discussion on the findings but he failed to show up or cooperate. Prosecution also called PW2, Mr. Solomon Kwaku Tamakloe who worked for accused persons from 13th September 2016 to 15th June 2017 and received salary. He also happens to be one of the officers the SSNIT official (PW1) interacted with when she visited the accused establishment. Counsel for prosecution in its written address to the court, made reference to section 211 of Act 766 which defines a worker to “include a person who is employed for salary in any kind of work, manual or otherwise in or in connection with the work of an establishment, and who gets his salary directly or indirectly from the employer” in support of his argument that an attendance book of staff contains the list of workers employed in an establishment or institution. Therefore, a person’s name in an attendance book of staff is prima facia evidence that he or she reported for work and is a worker of the employee. That per section 21 and 22 of NRCD 323, where the prosecution is able to prove an assumed fact, the accused is required to lead Page 8 of 13 evidence in rebuttal which he has failed to do. He submitted further that, the only reason why PW1 called 2nd accused after the inspection at accused institution was to discuss her findings which included the list of seventeen (17) workers extracted from the attendance book (Exhibit B). I agree with Prosecution on its submission that the accused persons bear the burden of proving a reasonable excuse for their failure to comply with the provisions under Act 766. That where knowledge of a fact is peculiarly within the knowledge of the accused person, a negative averment is not required to be proved by the prosecution but on the contrary the negative averment must be proved by the accused as a matter of defence and he referred the Court to the case of Salifu & Anor v. The Republic [1974] 2GLR 291. And that once a prima facia case has been established, the accused persons have the evidential burden to raise enough evidence in support of their defence before the prosecution will have the legal burden of disproving the defence of the accused. This is the position enunciated by Brobbey JSC in his book as earlier quoted. Prosecution argued further that the evidence of PW2 corroborates the evidence of PWI and that PW2 is a material witness whose evidence is critical and rightly disposes of the issue whether or not PW2 and the other identified sixteen (16) persons are workers of the accused and whether accused persons submitted their SSNIT contributions. Prosecution cited the dictum of Dotse JSC in the case of Gligah & Atiso v. The Republic [2010] SCGLR 870 at p887 and Manukure v. Agyemang [1992-1993] GBR 888 CA where it was stated that “where the evidence of a party on an issue has been corroborated, that party’s case ought to be preferred to that which had not been corroborated even by his own witness unless there were good reasons to be clearly stated in the judgment. The trial judge therefore had good reason to prefer the corroborated case of the prosecution to the bare denial of the appellant”. Having considered the evidence adduced by the prosecution in support of the charge, the Court is convinced that the accused persons failed to submit contribution reports for its workers for the period January 2016 to June 2017. A duty imposed on them by regulation Page 9 of 13 14(2) of the Basic Social Security Regulations, 2011 (L.1.1989) and section 63(7) of Act 766 which states that, “An employer shall submit the contribution report for that month at the end of that month, whether the contribution is remitted to the Trust or not” and therefore constitutes an offence under section 83 of Act 766. This includes the contributions of PW2 who happened to have worked for accused institution during the period in question and earned salary for his services. PW2 indicated that he was paid monthly salary from September 2016 to February 2017 only. From the exhibits tendered by PW2, (Exhibit ‘F’, and Exhibit ‘G Series’) no contributions were made to SSNIT by accused persons on behalf of PW2 over the period in issue. The names on Exhibit B, the extract from the attendance book included the names of the two persons PW1 interacted with when she visited accused establishment, i.e. Jedidah Quaicoo and Solomon Tamakloe (PW2) and also two out of the three names on Exhibit “A”. That is Linda Aidoo and Mary Allotey. So, two out of the three workers whose contributions were submitted to SSNIT by accused persons as their workers in November 2013, being Linda Aidoo and Mary Allotey signed the attendance book as at June 2017. The first name on Exhibit A, Florence Ashiley is however not part of Exhibit B. So if these three names on Exhibit “A” are acknowledged by accused persons as their workers, then who are the other names on Exhibit B, the extract from the attendance register? Could it be the case that even as at November 2013 when Exhibit A was submitted to SSNIT, there were more workers in the accused institution? Also, if Linda Aidoo and Mary Allotey were still at post at the time of PW1’s visit to the institution how come their contributions were not submitted to SSNIT? Accused persons have questions to answer. The Court is further convinced from the evidence on record that PW2 worked for accused persons and earned the agreed salary though he was not given an appointment letter. This is supported by the endorsement of his name, signature, voter ID number and email address on “Exhibit C” (establishment update form,) “Exhibit D” and “Exhibit E”. Per the definition of a worker under section 211 of Act 766 (supra), it does not really matter the capacity in which he worked; be it a pupil teacher, professional teacher, headteacher, supervisor, Page 10 of 13 English teacher or cleaner. Accused persons are duty bound to submit the contribution reports once a person and for that matter, PW2 qualified to be called a worker. Section 12 of the Labour Act 2003(Act 651) also states that, “The employment of a worker by an employer for a period of six months or more or for a number of working days equivalent to six months or more within a year shall be secured by a written contract of employment.” Section 13 of Act 651 further instructs an employer “within two months after the commencement of the employment to furnish the worker with a written statement of the particulars of the main terms of the contract of employment” I therefore agree with the submission of prosecution in its written address to the Court that Accused persons cannot be seen to benefit from their failure to give PW2 an appointment letter since this is a duty placed on them by sections 9(f), 12 and 13 of the Labour Act, 2003 (Act 651). One may ask, is it reasonably possible that a school of up to JHS 3 with students registered for BECE will have only three (3) workers? Section 75 (1) of Act 651 also states that, “A temporary worker who is employed by the same employer for a continuous period of six months and more shall be treated as a permanent worker”. From the evidence, PW2 worked for more than six (6) months for the accused persons. They therefore ought to have submitted contribution reports on his behalf unless otherwise proven. 2nd Accused was contacted and given the opportunity to respond to the findings of PW1 but he failed to show cause if any for his failure to submit the required contribution reports. He has also failed and refused to give evidence in court to discharge the burden on him in proof of his defence if any. Finally, it is provided under section 17 of Act 323 that “Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof”. The Supreme Court’s decision in COP v. Antwi [1961] GLR 408 held that: “The fundamental principles underlying the rule of law are that the burden of proof remains throughout on the prosecution and the evidential burden shifts to the accused only when at the end of the case for the prosecution an explanation of circumstances peculiarly within the knowledge of the accused is called for.” Page 11 of 13 Also, section 11(1) of NRCD 323 is to the effect that “The burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party”. All that accused persons had to do was to lead evidence to show that they have submitted the contribution reports for all their workers for the period January 2016 to July 2017 in the manner and form required. Where they are unable to show that they have submitted the required reports, then they must show that they had reasonable excuse for failing or refusing to submit the said contribution reports and this they have failed and refused to do after being given several opportunities to do so. Accused persons have therefore failed to lead evidence to discharge the burden placed on them by statute under section 83(1)(f) of Act 766 as amended by Act 883 and section 17 (1) of NRCD 323. The Court therefore finds accused persons guilty of the offence of failure to submit social security contribution reports for its workers contrary to section 83(1)(d) and (f) of Act 766 as amended by Act 883 and convicts them of same. Upon conviction, the Court enquired from the accused persons whether they wish to plead for mitigation before sentencing. In response 2nd accused person stated that his counsel should have allowed him to open his defence so that we get the actual facts of the case. That his counsel’s insistence that they appeal did not help matters for the court to get the actual facts of the case and therefore prayed to be allowed to appeal to be heard in another Court. 2nd accused person showed no remorse in the course of the trial. The Court however noted that the accused persons are first time offenders. The Court therefore sentenced the accused persons to a fine of 400 penalty units each. In default, six months imprisonment. They were further ordered to submit to SSNIT, the SSNIT contribution reports for its workers from January 2016 to July 2017 within ten (10) days from today in accordance with section 84 (3) of Act 766. H/H MATILDA RIBEIRO (MRS) CIRCUIT COURT JUDGE Page 12 of 13 Page 13 of 13