Boateng v S (CR/0145/2025) [2025] GHAHC 99 (30 May 2025)

THE SUPERIORCOURT OF JUDICATURE, INTHE HIGH COURT OF JUSTICE,CRIMINAL DIVISION 1,ACCRA, HELDON FRIDAY THE30TH DAY OFMAY, 2025BEFORE HERLADYSHIPJUSTICE RUBY ARYEETEY (MS) CASENO: CR/0145/2025 STEPHENBOATENG - APPELLANT VRS THEREPUBLIC - RESPONDENT JUDGMENT This is an appeal against the ruling of the Circuit Court, Accra, in which the trial Judge dismissed an application on a submission of no case delivered on 14th November2024. The appellant was charged with one (1) count of stealing contrary to section 124(1) of the Criminal Offences Act, 1960 (Act 29). The accused person pleaded not guilty tothe count and the prosecutioncalled two witnesses in advancing itscase. GROUNDS OF APPEAL The grounds of appeal filed by counsel for the appellant are contained in the notice ofappeal filed on13thDecember2024.They are asfollows: 1. Thatthe ruling cannot be supported havingregardto the evidence. SUITNO:CR/0145/2025-STEPHENBOATENGVSTHEREPUBLIC 1 2. That the learned trial judge erred in law when he called upon the Accused/Appellant to open his defense when a prima facie case had not been established bythe prosecution againsthim. The Appellant in thenotice ofappealstated thatadditional grounds willbe filed uponreceipt ofthe record but no additional grounds were filed. BRIEFFACTS The facts of the case are that the complainant, is a businessman and a resident of Offinso in the Ashanti Region. The accused herein after referred to as the appellant, Stephen Boateng, is the Chief Executive Officer of Rapid Security Limited and a residentofCommunity 8,Tema. Inthe year2006, the complainant negotiated to buy a house numbered 118,situate at West Legon, Accra, belonging to Emile Denkyi Mireku for USD $135,000. The complainant and the said Emile DenkyiMireku agreed for the complainant to pay in instalments till the final payment when documentations of the house will be transferred to the complainant. The complainant began to make payment as agreed upon but was unable to complete his payment prior to the death of Emile Mireku. Emile Denkyi Mireku was succeeded by Nana B. B. Ofosuhene. The complainant continued to make payments for the house to him but he was once again unable to complete thepayment prior tothe deathofNana B. B. Ofosuhene. The appellant surfaced and introduced himself to the complainant as the successor of B.B Ofosuhene. Upon meeting the complainant, the appellant informed him that he will terminate the agreement complainant had with his two predecessors and re- buy the house since full payment had not been made. Since the complainant did not have the money to pay the balance outright, he unwillingly agreed and re-sold the house for USD $100,000 to the Appellant herein. It was agreed that the Appellant could sell the house and pay the complainant’s money to him. The appellant took possessionofthehouse andsubsequently sold it to Yvonne Nana Esi Bohamin2015, SUITNO:CR/0145/2025-STEPHENBOATENGVSTHEREPUBLIC 2 for an amount of USD $210,000 but failed to refund USD $100,000 to the complainant as promised. The appellant was reported to the Police and upon his arrest refunded GHS 140,000. He was subsequently charged with the offence of stealing. GROUND1 Thatthe ruling cannot be supported havingregardto the evidence. In order for the charge of stealing to succeed and to establish a prima facie case against the appellant, prosecution must prove the elements that constitute the offence ofstealing. Stealing is defined in Section 125 of the Criminal Offences Act 1960 (Act 29) as follows: "A person steals who dishonestly appropriates a thing of which that person is not theowner". In the case of OSEI KWADWO II V THE REPUBLIC (2007-2008) SCGLR 1711 and the recently decided case of THE REPUBLIC V SEDINA TAMAKLOE ATTIONU (UNREPORTED) SUIT NO.CR 241/2019 DATED 16TH DAY OF APRIL 2024. Her Ladyship Justice Afia Serwah Asare-Botwe JA sitting as an additional High court judge stated that the three ingredients which the prosecution is required toprove for the offence of stealing are that: - the accused has appropriated a thing, the thing was dishonestly appropriated by the accused, and the accused is not the owner of the thing. In order to determine ground one of this appeal, it is important for this court to take a critical look at the ruling of the court below and determine whether it supports the SUITNO:CR/0145/2025-STEPHENBOATENGVSTHEREPUBLIC 3 evidence on record. In doing so, this court will also consider the elements constituting the offence and establish whether or not Prosecution succeeded in proving same to establish a prima facie case for which the Appellant should be called to openhis defense 1. Theaccused isnotthe owner ofthe thing: The case of LUCIEN& THE REPUBLIC(1977) statesthat the item of theft should be athingbelonging to another. At page 115 of the ROA, the trial Judge concluded that the prosecution proved that money of the complainant had gone to the Appellant through the sale of the property which the complainant has interest. The Appellant agreed to same and sold the property the complainant had interest but after sale has refused to give the money belonging tothe complainant tohim. Applying the law to the facts, the complainant who testified as PW1, in his own testimony stated that in 2014, the Appellant emerged as the next Abusuapanyin and produced Letters of Administration (Exhibit D) of the late Emile Mireku which had been granted to him. He further stated in his evidence that the Appellant sacked his caretaker from the house and when he confronted him he told him he will buy the house for the family if he failed to pay the remaining balance in full. He then begged the Appellant to allow him pay the remaining balance of USD 56,000 in instalment as his two predecessors did but the Appellant did not agree, so he unwillingly handed over thehouse tohim. As customary successor and head of family or Abusuapanyin of the late Emile Denkyi Mireku the Appellant having produced Letters of Administration to that effect had legal title to the property in that capacity and this was what allowed him to renegotiate the sale of the property to another person. PW1, having failed to pay SUITNO:CR/0145/2025-STEPHENBOATENGVSTHEREPUBLIC 4 for the property in full did not have ownership of same and it is for that reason he handed over the house to the Appellant. Therefore, the Appellant is in fact and in law, the owner ofthe propertyand any proceeds(the money)received fromthe sale. 2. Thatthe accused appropriated the thing: The definition of appropriation is given in section 122(2) of the Criminal Offences Act, 1960,Act 29,asfollows: "An appropriation of a thing in any other case means any moving, taking, obtaining, carrying away, or dealing with a thing, with the intent that some person may be deprived of the benefit of his ownership, or of the benefit of his right or interest in the thing, or in its value or proceedsor any partthereof." From the evidence adduced by PW1 all the payments made which amounted to USD 78,500.00 for the house he purchased were made to the Emile Denkyi Mireku and his successor B.B Ofosuhene who passed away. PW1 testified that he was unable to complete payment and renegotiated with the Appellant, though unwillingly to sell the house and refund his money to him. However, the Appellant failed torefund same. I have looked at the record of proceedings and indeed the sum of USD 78,000, equivalent to GHS 965,550.00 which the Accused per the particulars of offence is charged to have stolen was money paid to his predecessors. There is also no agreement backing PW1’s story that the Appellant was to sell the property and refund the above stated amount to him. PW1 tendered documents but the agreement did not form part of the exhibits tendered in court by PW1. The undertaking, Exhibit H was taken only when the Appellant was arrested and thereforecannot be the agreement. SUITNO:CR/0145/2025-STEPHENBOATENGVSTHEREPUBLIC 5 PW1 admitted during cross-examination at page 67 of the ROA, that before the Appellant inherited the property and after, he did not make any payments to him. He furtherconfirmed same during cross-examinationat page86ofthe ROA. Thus, there is no evidence of appropriation by the Appellant regarding the sum indicated onthe chargesheet. 3. Thatthe appropriation wasdishonest: Section 120 of the Criminal Offences Act, 1960 (Act 29) defines an appropriation of athingto be dishonest: a)Ifit is made withan intent todefraud, or b)If it is made by a person without a claim of right and with a knowledge or belief that the appropriation is without the consent of a person for whom that person is a trusteeorwho is owner ofthe thing orthat the appropriation would, if knownto the otherperson, be without the consent ofthe otherperson. From the facts, there is no clear indication that there was an intent to defraud, as the appellant had stated uponhis arrest,that he would paythe complainant. Additionally, the appellant did have a claim of right to the proceeds of the sale and cannot be said tohaveappropriated it eventothe point ofdoing so dishonestly. Based on the foregone analysis, Prosecution failed to establish the ingredients constituting the offence of stealing. Perusing the ruling ofthe trial Judge at page 115, the trial Judge failed to consider carefully the ingredients constituting the charge in relationtothe evidence adduced during the trial. GROUND2 SUITNO:CR/0145/2025-STEPHENBOATENGVSTHEREPUBLIC 6 That the learned trial judge erred in law when he called upon the Accused/Appellant to open his defence when a prima facie case had not been established bythe prosecution againsthim. Under section 173 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), an accused person shall only be required to open a defence where the evidence adduced by the prosecution is such that, if believed, it could reasonably support a conviction. In STATE V. ALI KASSENA [1962] 1 GLR 144 AND TSATSU TSIKATA V. THE REPUBLIC [2003–2004] SCGLR 1068, the courts have consistently held that it is a grave misdirection to shift the burden of proof onto the accused by compelling him to enter a defence where the prosecution has not met its burden. A submission of no case would be upheld by the court where the evidence adduced by the prosecution is incapable of substantiating a conviction. This would be dependent oneither ofthe following: a)The prosecution has not led any evidence to prove an essential element or ingredient ofthe charge,or b) The evidence adduced by the prosecution is so contradictory or has been so discredited as a result of cross-examination or so manifestly unreliable that no reasonable courtcould safely convictionit. As I have already discussed in this appeal, the evidence adduced by prosecution witnesses at the trial per the record of appeal failed to establish the essential elements of the offence of stealing, most notable is the absence of proof that the item in question belonged to the complainant (PW1) or that the accused dishonestly appropriated same. SUITNO:CR/0145/2025-STEPHENBOATENGVSTHEREPUBLIC 7 Secondly PW1, showed receipts of payments made to the deceased Emile Denkyi Mireku for the sale of the property, the subject matter of this case. The receipts however indicated that he paid these monies on behalf of one Yaa Ayiwa Owusu Sarpong. When this was put to him during cross-examination, he admitted same and answered that the money used for payment was his, however this contradicts theexhibits he tendered insupport ofhis case. Again, during cross-examination, the amounts PW1 testified he had paid and the balance remaining did not match the cost of the property he had mentioned. PW2, was also unable to tell the court the price of the property per his Exhibit F during cross-examination. These contradictions and inconsistencies were so pronounced during the cross- examination of both witnesses and were again raised by Counsel for the Appellant in his submission of no case. The trial Judge however, disagreed with him and concluded that the ingredients established by prosecution is capable of substantiating orfounding aconviction. Granted that these inconsistencies and contradictions are not true, the fact still remains that, prosecution failed to establish the ingredients constituting the charge of stealing. Having carefully considered the facts of the case, the grounds of appeal, the applicable law, and the Respondent’s submissions, it is my considered opinion that the appeal succeeds and ought to be allowed. It is respectfully submitted that the trial court erred in dismissing the submission of no case to answer, and that the Appellant oughtnotto havebeencalled upontoopenhis defence. The evidence, particularly the complainant’s own testimony (see Record of Appeal, pages 35–37), clearly establishes that the agreement between the complainant and the Appellant was a contractual arrangement to refund monies previously paid to his predecessors. This arrangement was not involuntary nor procured by fraud. At SUITNO:CR/0145/2025-STEPHENBOATENGVSTHEREPUBLIC 8 best, the evidence supports the existence of a civil debt or a breach of contract, not a criminaloffence. FAILURETOESTABLISH A PRIMA FACIECASE Section 173 of Act 30 mandates the court to acquit an accused person where, at the close of the prosecution’s case, no sufficient evidence has been adduced to require the accused to make a defence. As affirmed in TSATSU TSIKATA V. THE REPUBLIC (2003-2004) SCGLR 1068 AND MICHAEL ASAMOAH & ANOR V. THE REPUBLIC (Unreported, Suit No J3/4/17), the standard at this stage is not proof beyondreasonable doubt, but whetheraprima facie case hasbeen made out. In this instance no evidence was led to prove that the Appellant had dishonestly appropriated funds belonging to the complainant. The evidence shows negotiation, agreement, and contractualterms—not stealing ordeception. The Appellant’s actions may give rise to civil liability, but they do not meet the thresholdfor criminalculpability. Accordingly, no prima facie case was established, and the learned trial judge erred incalling upon the Appellant toopenhis defence. In light of the foregoing, and particularly in view of the Respondent’s candid and well-reasoned concession, I will allow the appeal and set aside the ruling of the trial court dated 14th November 2024 and enter a verdict of acquittal and discharge in favouroftheAppellant pursuant tosection173ofAct 30. (SGD.) RUBY ARYEETEY(MS) (JUSTICEOF THE HIGH COURT) SUITNO:CR/0145/2025-STEPHENBOATENGVSTHEREPUBLIC 9 COUNSEL EBENEZER ISAAC TEYE NUBOUR (forthe Appellant) NANA AMAADINKRAH(Forthe Republic) SUITNO:CR/0145/2025-STEPHENBOATENGVSTHEREPUBLIC 10