The Republic Vrs Koka & Another [2022] GHAHC 74 (12 October 2022)

IN THE HIGH COURT OF JUSTICE HELD AT DENU ON WEDNESDAY THE 12TH DAY OF OCTOBER, 2022 BEFORE HER LADYSHIP JUSTICE NAANA BEDU-ADDO HIGH COURT JUDGE SUIT NO. E13/68/2022 THE REPUBLIC VRS. 1. MAWULI LAWOEKPOR KOKA 2. HOESE GEYEVU - ACCUSED/APPELLANT JUDGMENT Before this Court is an appeal by the 2nd Accused/Appellant herein against the Judgment of the Circuit Court, Keta, presided over by His Honour Justice Kwame Polley Esquire delivered on 30th July, 2012. By the said judgment, the 2nd Accused/Appellant herein was found guilty and convicted on all the three (3) charges preferred against him and was sentenced to six (6) years in hard labour (IHL) on each count, to run concurrently. Aggrieved with the aforesaid judgment, conviction and sentence, the 2nd Accused/Appellant caused Notice and Grounds of Appeal to be filed on his behalf of the 13th day of September, 2021. Grounds of Appeal (1) The judgment is against the weight of evidence adduced at the trial. (2) The learned trial judge failed to avert or adequately avert his following relief: - That the conviction and sentence by the Court below be set aside by the High Court and be replaced with an acquittal and discharge. The facts of the case as presented by the 2nd Accused/Appellant (Appellant) are as follows: - The Appellant is an alcoholic beverage seller and also a disk jockey or spinner who lives in Vui, Keta. On the 28th day of October 2014, an intimate friend of his, Mawuli Lawoekpor Koka, the 1st Accused, who is a taxi driver, who also lives at Vui, Keta came to the Appellant’s house and informed him that he was going to Anloga to do some repair work on his vehicle. The Appellant decided to join him since he needed to buy some alcoholic beverages at Anloga. There was a travelling bag and a fertilizer sack at the back seat but the Appellant says he did not ask the 1st Accused about the said items. On their way to Anloga, the Police on duty at the barrier, near the Palace of the Awormefia of the Anlo State, signaled the 1st Accused to stop the taxi and park. He did it. The Police after examining the car documents told him that the documents had expired. After some discussion with the Police when it became clear that the car would not be released, the Appellant told the 1st Accused that he was going to Anloga to buy the drinks for his drinking spot and left. On his return, since he did not see the 1st Accused and his taxi at the Police barrier, he went home. Whilst at home, the Assemblyman invited him to go with him to the Keta Police Station where he was arrested. He was questioned about the contents of the travelling bag and fertilizer sack which were at the back seat of the 1st Accused’s taxi. He told the Police that he did not know anything about the contents. The Police told him that the 1st Accused person had told them that the said items belonged to the Appellant. The Appellant denied it and said that they rather belonged to the 1st Accused. The Police then took them both to their respective houses where searches were conducted. At the Appellant’s place, nothing incriminating was found but a cutter was found in the 1st Accused’s room. The Appellant’s caution statement was taken based on which his charge statements were prepared. The Appellant denied in both statements that the items found in the 1st Accused’s car did not to belong him but rather said they belonged to the 1st Accused person. The Accused persons were charged with 3 counts of offence. They were charged with: - 1. Conspiracy, contrary to Section 23(1) of Act 29/60. 2. Causing unlawful damage contrary to Section 172 of Act 29/60 as amended by Act 554, Section 18. 3. Stealing, contrary to Section 124 of Act 29/60 as amended by paragraph 4 of NLCD 398/69 (Act 554). The Appellant argued the grounds of appeal as follows: - Under the first ground: - ’’The judgment is against the weight of evidence adduced at the trial’’, the Appellant submitted that the Appellate Court has a duty of reviewing the whole evidence on record and ascertaining whether the evidence and the relevant laws have been applied appropriately by the trial court in coming to conclusions in its judgment. The Appellant also needs to identify which part of the evidence was inappropriately used to prejudice his case. He relied on the cases of Oppong Vrs. NAFTI (2011) SCGLR 556; Tuakwa Vrs. Bosom (2001 – 2002), DJIN Vrs. Brako (2007 – 2008) 1SCGLR 686. On the second ground: Causing Unlawful Damage and Stealing, the Appellant argued that in a criminal trial, the prosecution has the burden of proving its case beyond all reasonable doubt. He referred to the English of Woolmington Vrs. DPP [1935] AC 462 HL; [1953] ALL E. R. 1 (House of Lords). The Appellant further argues that for the prosecution to have succeeded in proving its case against the Appellant, it ought to have established beyond all reasonable doubt that the Appellant did conspire and/or agree with the 1st Accused to cause unlawful damage to ECG Cables and to have stolen same. He relied on Section 11(2) of the Evidence Act, 1975 N. R. C. D. 323 which provides that: ’’ In a criminal action, the burden of producing evidence, when it is on the prosecution as to a fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on the totality of the evidence, a reasonable mind could find the existence of the fact beyond a reasonable doubt. For the first charge of Conspiracy contrary to Section 23(1) of Act 29, the Appellant argued that where two or more persons agree or act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence.’’ He also referred to the 9th edition of Black’s Law Dictionary which defined conspiracy as ’’ An agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective, and (in most states) action or conduct that further the agreement; a combination for an unlawful purpose.’’ The Appellant emphasized that from the above quotations the Prosecution ought to have proven its case beyond reasonable doubt that the 1st Accused/Absconder and the 2nd Accused/Appellant agreed or acted together with a common purpose for or in committing a criminal offence to wit, causing unlawful damage to EGC Cables and Stealing same. In the opinion of the Appellant the fact that he and 1st Accused were together when the Police found the said subject-matter cannot be said to have proved beyond reasonable doubt that the two of them conspired to cause unlawful damage to ECG Cables and to have stolen same. According to him, no evidence was adduced by any of the witnesses called by the Prosecution to confirm that the 1st Accused and the 2nd Accused/Appellant caused unlawful damage to ECG Cables. He finally submits that the judgment given is against the weight of evidence adduced at the trial. On the second charge of Causing Unlawful Damage, contrary to Section 172(1) (b) (Amended by Act 554, Section 18) which provides that ’’ A person who intentionally and unlawful causes damage to property. (b) to a value exceeding one million cedis, commits a crime. To be liable to a charge of causing unlawful damage it must be demonstrated by the Prosecution that it was the act of the Accused person. The Appellant agrees that for the Prosecution to successfully prove that the 2nd Accused/Appellant is guilty of the second charge of Causing Unlawful Damage they are under a legal obligation to demonstrate that the damage was intentionally and unlawfully caused. They cited the case of Asante Vrs. The Republic [1972] 2GLR 177 where it was held that ’’ It was also necessary to establish that the damage was intentionally and unlawfully caused. In the Appellant’s opinion, no evidence was adduced during the trial to establish the fact that the 2nd Accused/Appellant did cause unlawful damage to ECG Cables. This, in the Appellant’s opinion, lends credence to the fact that the judgment is against the weight of evidence adduced at the trial. On the third charge which is stealing, contrary to Section 124(1) (substituted by NLCD 398, paragraph 4), it provides that ’’A person who steals commits second degree felony’’. Section 125 defines stealing as follows: - ’’A person steals who dishonestly appropriates a thing of which that person is not the owner’’. The elements of stealing according to the case of Ampah Vrs. The Republic [1977] 2GLR 171 (CA) are: (i) dishonesty; (ii) appropriation and (iii) property belonging to another person. Appellant argues that during the trial none of the testimonies of the three prosecution witnesses was able to establish that the 2nd Accused/Appellant dishonestly appropriated any electrical cables belonging to ECG. In its response, the Respondent argued underground 1 that the arguments put up by the Appellant in furtherance of the ground that ’’the judgment is against the weight of evidence adduced at the trial’’ do not clearly demonstrate lapses in the decision appealed against. They cited the case of Seth Mensah Ablorh Vrs. Alberta Quartey where the Court of Appeal purportedly held that ’’the onus is on the Appellant who is complaining that a judgment is against the weight of evidence to clearly demonstrate the lapses in the decision appealed.’’ This ground of appeal brings into question the entirety of the conviction and an evaluation of same. The Respondent refutes the argument of the Appellant and states that the prosecution laid down the facts and thus provided evidence to prove its case beyond all reasonable doubt. They referred to the case of Mensah and Ankrah Vrs. The State [1961] GLR 64 where the Supreme Court held as follows: - ’’……. well founded in law on the principle that the judicial process is well known to be, to resolve the facts in issue and facts relevant to the issue and then apply the law to the facts found. If the question ’’what are the facts found?’’ cannot be answered with precision and particularly, the judgment ought to be held to be unsatisfactory, because the judicial process has not been applied. Respondent further argues that the Prosecution articulated its arguments coherently and proved beyond every reasonable doubt, the guilt of the accused. It is the Respondent’s case that at the proof of the Prosecution case, the onus then shifts on the accused. Reference was made to the case of Republic Vrs. Turner (1816) 5M&S 206 @ 211 where Bayley J held that ’’ if a negative averment be made by one party, which is peculiarly within the knowledge of the other, the Party within whose knowledge it lies and who asserts the affirmative is to prove it, and not he who avers the negative.’’ By this quotation, the Respondent argues that where knowledge of a fact in issue is peculiarly within the knowledge of the accused, the negative is not to be proved by the prosecution but on the contrary, the affirmative must be proved by the accused as a matter of defence. Reference: Republic Vrs. Bonsu & Ors; Ex-Parte Folson (1999 – 2000) 1 GLR 523. Respondent further argues that the Prosecution did not need to give prima facie evidence of proving the non-existence of the knowledge of the accused on the contents and ownership of the bags containing the electrical copper wires. Respondent argues that though the Appellant attacked the credibility of the Prosecution witnesses, they do not find any material conflicts or inconsistencies in their testimonies that would case any doubt on the prosecution’s case. Reference was made to Section 80 of the Evidence Act (1975) NLCD 323 which states the criteria for determining credibility of a Witness’s Statement/testimony. The Respondent further states that the testimonies of PW2 and PW3 were neither incongruous, unreasonable more incredible. And the trial judge, in the absence of the above, proceeded to give it the weight it deserved. Respondent believes that the Appellant’s submission that the conviction was not supported by evidence is misconceived and that counsel for the Appellant has failed to establish the unreasonableness of the Appellant’s conviction or whether the said conviction has occasioned a substantial miscarriage of justice. On ground 2, the Respondent argued that, from the facts of the case, the Appellant was in possession of the electrical wires when it was found in the travel and fertilizer bags he was transporting to Anloga from Keta with A1. Therefore the Appellant’s statement that he did not own the travel and fertilizer bags and as such the contents of the said bags were not his, amounts to no defence. Respondent based its argument on the case of Salifu & Anor. Vrs. The Republic [1974] 2GLR 291, where it was held that where stolen goods have been found in the possession of an accused person, the inference of guilty knowledge is warranted by his possession together with the absence of an explanation of that possession.’’ Respondent argues that the Appellant was obliged under Section 11(3) of the Evidence Act, 1975 (NRCD 323) to lead evidence so as to cast doubt on the prosecution’s case. Reference is made to the ruling of Acquah JA (as he then was) in the case of Osafo Vrs. The Republic (1993 – 94) 2 GLR which was that ‘’Although the appellant had no burden to prove his innocence, once he admitted that the drugs were found in his room but proceeded to exonerate His possession, he was obliged under the provision of Section 11(3) of the Evidence Decree, 1975 (NRCD 323) to lead such evidence as to cast doubt on the case of the prosecution. In the circumstances, it was not enough for him to allege that the drugs belonged to someone else; he had to also establish that he did not now the nature and quality of the drugs.’’ According to the Respondent, it was immaterial whether the copper wires belonged to the Appellant or A1 because the Appellant was obligated to prove possession. That once he admitted that the stolen copper wires were found in the taxi, but proceeded to exonerate his possession, he had the legal obligation to lead such evidence as to cast doubt on the case of the prosecution. They relied on Section 11(3) of NRCD 323 which provides that: ’’in a criminal action the burden of producing evidence, when it is on the accused as to any fact the converse off which is essential to guilt, requires the accused to produce sufficient evidence so that all the evidence a reasonable doubt as to guilt.’’ The Respondent refuted the Appellant’s argument that the trial judge did not give credence to the case of the Appellant and stated that it was probably as a result of the credibility of the witnesses both parties presented in Court. They therefore urge this Court as an appellate Court, not to hasten to interfere with the trial Court’s decision. They relied on the Supreme Court case of Abono Vrs. Sunkwo [1962] 1GLR 154 @ 156 where Van Lare JSC held that ’’it is not a function of a Court of Appeal to disturb a finding where credibility of witnesses had not been in question.’’ In their opinion, the trial judge considered painstakingly all the evidence before the trial court and then delivered the judgment in this matter. The Respondent concludes that the conviction and sentencing of the appellant was appropriate and the decision of the Circuit Court, Keta should be affined and the appeal dismissed. They relied on a number of authorities including Tako Salifu Vrs. The Republic (Criminal Appeal) 12/02/2014 where Atuguba JSC held that Section 406 of Act 30 provides that no judgment or order or sentence of a Court of competent jurisdiction shall be reversed or altered on appeal or review on account of any error or irregularity in the judgment, order or other proceeding unless such error or irregularity or misdirection has occasioned a substantial miscarriage of justice. The law generally is that, conviction should not be set aside where there is evidence to support it.’’ The Supreme Court also held in the case of Hadgson Vrs. Republic [2009] SCGLR 642 that an Appellate Court will set aside conviction where there was sufficient evidence on record to support it. LEGAL ANALYSIS Upon closely examining the arguments proffered by both parties a number of issues jump out for determination. They are: Whether or Not: 1. The judgment was against the weight of evidence adduced at the trial? 2. The 2nd accused/appellant was obliged to lead evidence to cast doubt on the Prosecution’s case. Whether it was enough for him to say that the bags and their contents did not belong to him, since he was only a passenger in the 1st Accused’s car? 3. The Prosecution proved its case beyond all reasonable doubt? ISSUE 1 – Judgment against weight of evidence adduced at the trial? The Accused persons in this case were charged with three offences, being: Conspiracy contrary to Section 23(1) of Act 29 of 1960 – The Criminal Offences Act; Count 2 – Causing unlawful Damage contrary to Section 172 (1) (b) of Act 29.60 as amended by Act 554, Section 18. Count 3, Stealing, contrary to section 124(1) of Act 29/60 as amended by paragraph 4 of NLCD 398 of 1969. Conspiracy is defined by section 23(1) of the Criminal and other offences Act, 1960 (Act 29) as follows ’’if two or more persons agree or act together with common purpose for or in committing or abetting a crime whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime as the case may be.’’ Conspiracy has three ingredients which must be proven for the offence to be established. These are: 1) That each of the conspirators knew and approved of the intention of the other conspirator or conspirators. 2) A previous agreement between the conspirators to commit offence. 3) Intention to execute the agreement. This is the common Law position. Under Ghanaian Law the scope of conspiracy is wider in the sense that while it is essential to prove a previous agreement, to succeed on a charge of conspiracy the prosecution may prove either that the accused persons agreed together with a common purpose for or in committing or abetting a crime or (2) that the accused persons acted together with a common purpose for or in committing or abetting a crime. In the case of Commissioner of Police Vrs. Afari and Addo [1962] 1GLR 483 S. C., the Supreme Court noted that ’’it is rare in conspiracy cases for there to be a direct evidence of the agreement which is the gist of the crime’’. This usually has to be proved by evidence of subsequent acts done in concert and so indicating a previous agreement. In the instant case, the Statement of the Accused persons did not disclose any evidence of the two accused persons acting in concert to commit any crime. They both denied ownership of the copper wires found in the taxi cab which was being driven by the 1st Accused. The only common thing between them was that they were both found in the taxi which contained the stolen items. Apart from relying on A1’s statement, the Prosecution did not lead any evidence to prove the charge of conspiracy. The testimonies of PW2 and PW3 were rejected by the Appellant by saying repeatedly that ’’what you are saying is not true’’ when he was cross-examining them. They did not tender any evidence to prove their case apart from what the 1st Accused stated in his caution statement. Prosecution did not succeed in proving that the Accused persons conspired to commit the crime of damaging and stealing the said copper wires. The second charge of causing unlawful damage is contrary to Section 172 of Act 29 (as amended by 518 of Act 554) Section 172 (1) provides that: ’’whoever intentionally and unlawfully causes damage to any properties by any means whatsoever to a value not exceeding GH₵1,000,000.00 shall be guilty of misdemeanor. It must be proved that the unlawful damage was caused by the accused intentionally and unlawfully. Not only must the prosecution prove that the 2nd Accused/Appellant actually caused damage to the RCG Cables, thy must further prove that the Appellant had no legal in causing the intentional damage. Reference is made to Asante Vrs. The Republic [1972] 2GLR 177 where it was held that it is also necessary to establish that the damage was intentionally and unlawfully caused.’’ The prosecution in the instant case was not able to prove that the 2nd Accused/Appellant actually caused any damage to the ECG Cables together with the 1st Accused. No evidence was adduced to that effect at the trial. It is quite interesting that the 2nd Accused was convicted of this charge when there was no evidence of same at the trial. The third charge is stealing, contrary to Section 124 of Act 29 (substituted by paragraph 4 of NLCD 398). Section 125 of Act 29/60 defines stealing as follows: - ’’A person steals who dishonestly appropriates a thing of which that person is not the owner’’. The elements of stealing are that the Accused person must have appropriated the thing allegedly stolen; (ii) the appropriation was dishonest, and (iii) the person charged must not own the thing allegedly stolen. Ref: Brobbey and Others Vrs. The Republic [1982 – 83] 1GLR 608. In the instant case, the stolen items were found in the taxi cab of the 1st Accused which he was driving. No evidence was adduced to prove that the 2nd Accused/Appellant was the one transporting the said stolen goods. PW2, Dominic Obeng Asumadu who is a Lance Corporal number 43635 of the Ghana Police Service, contradicted himself in his statement when he said that the Appellant had left the crime scene unceremoniously only to say subsequently that the 1st Accused had told him that the Appellant was going to buy credit. He initially said that it was the 2nd Accused/Appellant who told him upon being questioned that the said bags contained scraps which they were taking to Anloga. Yet under cross-examination (Page 31 of Record of Appeal) when the Appellant asked him. ’’Q: What was the driver’s answer to your question? A: Which question? Q: Do you remember when you asked the content or the type of goods he said it was scrap metal for his master? A: That is not correct: The driver said the two of you had been sent to deliver same to someone at Anloga and you confirmed same.’’ This is a clear contradiction and therefore it renders PW2’s Statement incredible. In the case of PW3’ D/Inspector Abel Amanie, he was not the arresting officer and was not present at the crime scene yet he testified as if he was there. PW3’s testimony seems to contradict that of the arresting officer in that the arresting officer, PW2, never stated that the scraps were allegedly given to the suspect by one Innocent to be sent to a scrap dealer at Anloga called Sunday. PW3 seems to have imported facts from A1’s Investigation Statement which he tendered after testifying in Court. This Statement was not subject to cross- examination since A1 jumped bail. A1’s Statement should have been expunged from the record since he was not available for cross-examination. Refer to the case of Atuahene Vrs. Commissioner of Police [1963] 1GLR 448-455 where it was held that where a witness gives evidence ……. but is not available for cross-examination by the defence, he trial court should either expunge his testimony from the record or insist upon his appearance in court. This clearly shows that A1’s Investigation Statement should not have been relied upon by the trial Court. Issue 2 – was the Appellant obliged to lead evidence to cast doubt on the Prosecution’s case? The case of The State Vrs. Sowah and Esseh [1961] GLR 743-747, the Supreme Court observed that ’’In a criminal case, except in the instance of insanity, and matters expressly thrown on the accused by statute, there is in general no presumption against an accused person, and an accused person is not bound to give evidence.’’ The Burden of proof in Criminal trials lies on the prosecution. In the instant suit, there was no case of insanity neither was there any statute that compelled the 2nd Accused/Appellant to lead evidence to cast doubt on the Prosecution’s case. The Prosecution did a great job at casting doubt on its own case. In the case of Commissioner for Police Vrs. Isaac Antwi [1961] GLR 408, it was 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 if at the end of the case of the prosecution an explanation of circumstances peculiarly within the knowledge of the accused is called for. The accused is not required to prove anything; if he can merely raise a reasonable doubt as to his guilt, he must be acquitted.’’ In the instant case the Accused/Appellant raised a number of doubts which were disregarded. Issue 3 – whether or not the Prosecution succeeded in proving its case beyond all reasonable doubt? The Prosecution woefully failed to do same. There were so many inconsistences in the Statement of the Prosecution witnesses that it was amazing that they secured a conviction: They relied heavily on the testimony of the 1st Accused who did not even avail himself for the trial, let alone cross-examination. That testimony should have been expunged from the records. No independent witnesses were called in. it looked like the Police were looking for a scape goat even if the evidence did not support it. In the case of The Republic Vrs. Adamu [1960] GLR 91 it was held that where the evidence of the Prosecution is so inconsistent as to ‘’contain the seeds of its own destruction, the accused cannot be convicted.’’ In the instant case there were so many inconsistencies in the Prosecution’s case. From the foregoing, this Court hereby concludes that the Prosecution failed to discharge its fundamental burden of proving its case beyond all reasonable doubt. The Appeal is hereby upheld and the conviction overturned. The Appellant herein is hereby acquitted and discharged. (SGD) ……….………………………………. JUSTICE NAANA BEDU-ADDO HIGH COURT JUDGE aca./ 17