Mboyabi and Adaata v S (CR/0351/2024) [2025] GHAHC 139 (10 April 2025)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON THURSDAY THE 10TH DAY OF APRIL 2025 BEFORE HER LADYSHIP JUSTICE MARY M.E YANZUH JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SITTING AT CRIMINAL COURT THREE (3) SUIT NO: CR/0351/2024 1. JOSHUA MBOYABI APPELLANTS 2. ROMANUS ADAATA VRS. THE REPUBLIC RESPONDENT JUDGMENT The appellants A1 and A2 herein and one Adam Ziblim Baba (A3) were arraigned before the Accra Circuit Court on the 18th of May 2017 on the following offences: Count one: conspiracy to commit crime to wit stealing contrary to Sections 23(1) and 124(1) of the Criminal Offences Act 1960, Act 29. It was 1st and 2nd Appellant and the A3 who were charged under this count. 1 Count Two: The appellants and the A3 were charged with Stealing contrary to Section 124(1) of Act 29/60. The 1st Appellant was the one charged under this count. Count Three: The appellants and the A3 were charged with Stealing contrary to Section 124(1) of Act 29/60. Count Four: The appellants were charged with Stealing contrary to Section 124(1) of Act 29/60. Count five: The 1st appellant was charged with Stealing contrary to Section 124(1) of Act 29/60. Count Six: The 2nd appellant was charged with Stealing contrary to Section 124(1) of Act 29/60. Count seven: The 1st appellant was charged with forgery of official document contrary to Section 158 of Act 29/60. Count eight: The 1st appellant was charged with forgery of official document contrary to Section 158 of Act 29/60. Count nine: The 1st and 2nd appellant were charged with forgery of official document contrary to Section 158 of Act 29/60. Count Ten: The 2nd appellant was charged with forgery of official document contrary to Section 158 of Act 29/60. 2 Count Eleven: The 2nd appellant was charged with forgery of official document contrary to Section 158 of Act 29/60. Count Twelve: The 1st appellant was charged with forgery of official document contrary to Section 158 of Act 29/60. Count Thirteen: The 1st and 2nd appellant were charged with forgery of official document contrary to Section 158 of Act 29/60. The 3 accused persons all pleaded not guilty after the charges were read and explained to them in the English Language. On the next adjourned date, the A3 changed his plea to that of guilty wherein he was convicted and sentenced. The trial therefore continued for the appellants herein. On the 15th of March 2024, the court found them guilty on all the counts and convicted them accordingly and sentenced them as follows: Count 1: A1 and A2 are hereby sentenced to 6 months IHL Count 2: Stealing A1 and A2 -2 years IHL COUNT 3: A1 and A2 2 years IHL COUNT 4: A1 and A2 - 2 years IHL COUNT 5: A1- 2 years IHL COUNT 6: A2 -2 years IHL COUNT 7: - A1- 2 years IHL 3 COUNT 8: A1 -2 years IHL COUNT 9: A1 - 2 years IHL COUNT 10: A2 2 years IHL Count 11: A2- 2 years IHL Count 12: A1-2 years IHL Count 13: A1-2years IHL The sentences were to run concurrently. The trial judge made an order for restitution that “the accused persons are to refund same to the complainant (NAFTI)” It is against this judgment that the appellants filed the instant appeal on the 19th of June 2024 praying for the whole judgment of the trial Circuit Judge dated the 15th day of March 2024 convicting and sentencing the appellants to be set aside. GROUNDS OF APPEAL The grounds of appeal are: A. That the judgment cannot be supported having regard to the evidence on record. 4 B. That the trial judge failed to consider adequately the defence put forward by the appellants. C. The trial judge erred in law when she decided that the investigation caution statements by the accused persons were not obtained by inducement thereby occasioning a substantial miscarriage of justice D. That the sentence is harsh, excessive and wrong in law taking into consideration the circumstances of the case. The court gave orders for the parties to file their written submissions. The appellants filed their written submissions on the 18th of December 2024 while the Republic/Respondent filed their written submissions on the 11th March, 2025. RESOLUTION OF THE GROUNDS OF APPEAL Ground C: The trial judge erred in law when she decided that the investigation caution statements by the accused persons were not obtained by inducement thereby occasioning a substantial miscarriage of justice. According to Counsel for the appellants, the judgment does not show that the trial court made a diligent inquiry into whether the caution statements were made voluntarily without any inducement and the court’s failure to rigorously interrogate the circumstances under which the accused person’s statement were obtained constitutes a significant legal error. 5 The caution statements of the appellants were admitted into evidence as exhibits T, U, V, X, Y and Z. When the police investigator PW6 sought to tender the statements, counsel for the accused persons raised an objection to its admissibility. Per counsel for the A1, at the trial the basis for the objection was that the A1 gave three statements which were cancelled in his presence and then they were made to write another one thus in the absence of the originals the A1 would be denied justice that they deserve if the prosecution is allowed to tender a document that was cancelled out without they producing the original. The trial judge took the view and rightly so that the objection of the counsel was not to the effect that the A1 did not give these statements but is alleging that he gave the statement but it was cancelled out and that this objection in the opinion of the court borders on credibility and in that case the document must be admitted first before its credibility is subjected to critical scrutiny by the counsel during cross examination. Counsel for the A2 at the trial also raised an objection to the tendering of the caution statements on the basis that no sufficient foundation had been laid for the use of a photocopy of a caution statement. The trial judge on the basis of Section 163 and 164 of the Evidence Act 1975 NRCD 323 overruled the objection and admitted the statements into evidence. The objection raised during the trial during the tendering of the documents was with regards to its credibility. The trial judge therefore rightly ruled and 6 that is because in criminal trials, it is not every objection raised to the admissibility of a statement taken from an accused person while restricted or detained that warrants the holding of mini trial to enquire into how the statement was taken and whether same was taken in accordance with the mandatory provisions of Section 120 of the Evidence Act 1975 NRCD 323. Justice S.A Brobbey in his book “Practice in the Trial Courts and Tribunals of Ghana 2nd Edition page 114 and his book “Essentials of the Ghana Law of Evidence” page 135 opined that it is not every objection to a statement made by the accused person while he was arrested or detained that warrants the conducting of a mini trial. Where the objection relates to the accuracy of the statement, the duty of the trial judge is to admit the statement and leave the weight to be attached to same for the determination of the trial judge. The trial judge was therefore not obligated per the rules and the law to conduct a mini trial during the trial at the stage when the statements were being tendered. Per the record, it was when the accused persons’ mounted the witness box that they sought to introduce the fact that they were coerced to give the statements and that they were made to admit the offences in their statements so that NAFTI will deal with the matter as per their Collective Bargaining Agreement. At the stage that those issues were raised, those statements had been admitted and formed part of the record. Those issues raised with the statements were to attack its credibility for the court to know the weight to attach to same. The trial judge therefore did not err in law as at 7 the material time when the statements were being tendered, no issues were raised as to the accused persons being induced to give the statements and also the evidence offered by the accused persons to impeach the credibility of the statements were all afterthoughts. This ground of appeal fails and same is dismissed. GROUND A: That the judgment cannot be supported having regard to the evidence on record. The first ground of appeal is that the judgment is against the weight of evidence. A.N.E. Amissah in his book titled "Criminal Procedure in Ghana” at page 290 wrote "Perhaps the commonest ground of appeal against conviction is that “the conviction cannot be supported having regard to the evidence.” It is an established fact and same held in a plethora of authorities that where a party files the omnibus ground of appeal, it is a call on the appellate court to evaluate the whole of the evidence to determine that issue. This is in consonance with the principle that an appeal is by way of re-hearing with the appellate court having all the powers of the trial court. The settled principle of law is that the appellate court is enjoined by law to scrutinize the evidence led on record and make its own assessment of the case as though it was the trial court. Where the court below comes to the right conclusion based on the evidence and the law, the appellate court does not disturb its judgment. On 8 the other hand, the judgment of the lower court attracts being upset on appeal where the judgment is unsupportable by the facts and or the evidence. See: Nkrumah v Attaa (1972) 2 GLR 13 C/A, Apaloo v R (1975) 1 GLR 156 An appeal is in effect a rehearing of the case and as such, an appellate Court is at liberty to sieve through the evidence on record with a view to determining whether the decision the appellant is appealing against can be supported or not. The appellate court is therefore in as much the same position as the trial Court. I would therefore on that background proceed to analyze the entire evidence on record to determine if the evidence on record supports the conviction of the accused person by the trial Circuit Judge. I would therefore be considering the entire record of appeal as well as the written submissions of counsel for the appellant and the respondent. COUNT ONE, TWO AND THREE: CONSPIRACY TO STEAL AND STEALING CONTRARY TO SECTIONS 23(1) AND 124(1) OF THE CRIMINAL OFFENCES ACT 1960, ACT 29. The Appellants herein and A3 were charged with the offence of conspiracy to steal and stealing the sum of GH¢19,147.18 Goil Fuel coupons belonging to NAFTI. For count three, the A1 and A2 were charged with stealing the sum of 9 GH¢10,492.78 belonging to NAFTI. The Criminal Offences Act 29/60, Section 23(1) provides the definition of criminal conspiracy. It provides that: (1) Where two or more persons agree to 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. In the case of FAISAL MOHAMMED AKILU v THE REPUBLIC [2017-2016] SCGLR 444 Yaw Appau JSC stated on conspiracy under the current Ghanaian law as follows: “From the definition of conspiracy as provided under section 23(1) of Act 29/60, a person could be charged with the offence even if he did not partake in the accomplishment of the said crime, where it is found that prior to the actual committal of the crime, he agreed with another or others with a common purpose for or in committing or abetting that crime… However, where there is evidence that the person did in fact, take part in committing the crime, the particulars of the conspiracy charge would read; “he acted together with another or others with a common purpose for or in committing or abetting the crime”. This double-edged definition of conspiracy arises from the undeniable fact that it is almost always difficult if not impossible, to prove previous agreement or concert in conspiracy cases. Conspiracy could therefore be inferred from the mere act of having taken part in the crime where the crime was actually committed. Where the conspiracy charge is hinged on an alleged acting 10 together or in concert, the prosecution is tasked with the duty to prove or establish the role each of the alleged conspirators played in accomplishing the crime”. The law on stealing as per section 124 of Act 29 is that, “a person who steals commits a second degree felony.” The offence is then defined per section 125 to mean when that person “dishonestly appropriates a thing of which that person is not the owner." In given deeper meaning and explanation to this decision, it was held in the case of the REPUBLIC VRS MALLAM ALI YUSUF ISA suit No FT /MISC 2007 as follows, “For the offence of stealing to be constituted, therefore the relations, acts 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. That the person charged must not be the owner of the thing alleged to be stolen. In the case of Republic vrs Halm and Another (1969) CC 155 C.A, it was held that “On the issue of ownership… a charge of stealing is founded not on a relationship between the person charged and an identified owner but on the relationship between 11 the person charged, and the thing alleged to have been stolen. Therefore the law only required proof that the accused was not the owner of the chattel. Thus In DOMENA V. COMMISSIONER OF POLICE [1964] G.L.R. 563, S.C. AT 566 it was held that: "The first essential ingredient of stealing therefore is that the person charged with the theft of a thing is not the owner of the thing, the subject-matter of the theft. Therefore if a person charged with stealing a thing pleads not guilty to the charge, the prosecution cannot under any circumstances succeed without proving either that the subject-matter of the charge belongs to the person in whom ownership of the thing is laid in the charge, or in the alternative that the defendant is not the owner of that thing. The fact that the sums of money stated on the charge sheet for counts two and three are for NAFTI was not an issue that was contested. The evidence of the prosecution witnesses is that GOIL fuel coupons were procured for NAFTI but the Director of Finance instructed that same should be returned to GOIL as NAFTI does not use fuel coupons. The prosecution’s case is that these coupons were not returned and the A1, A2 and A3 agreed and acted together and shared the fuel coupons among themselves. The value of the fuel coupons were proved as the amount stated on the charge sheet. With regards to the sum of GH¢10,492.78, the prosecution led evidence that the said sum was for the first quarter subvention of NAFTI which the A1 and A2 used in the 12 payment of the sum of the fuel coupons which they had shared amongst themselves. The appellants did not also deny that, the ownership of the said money was not vested in them. The law is that, for the purposes of proving stealing, the prosecution need not necessarily prove that ownership of the subject matter is vested in the person named on charge sheet as the owner. It is enough if the prosecution can prove that, ownership of the subject matter is not vested in the accused person. Therefore the fact that the subject matter of the theft was the sum as stated on the charge sheet and that same was for the benefit of NAFTI is a fact which this appellate court finds was proved to the required degree at the trial. THAT THE APPELLANTS MUST HAVE AGREED TO ACT TOGETHER TO APPROPRIATE THE MONIES The next hurdle was for the prosecution to prove that, the persons charged with the offence agreed to act together to appropriate the subject matter. In order words, the prosecution was required to demonstrate the said acts undertaken by appellants in their quest to appropriate the said sums of money. The evidence led by the prosecution must clearly establish the agreement and acts of appropriation by the person/persons charged. Thus, in 13 BROBBEY AND OTHERS v. THE REPUBLIC [1982-83] GLR 608-616 at page 610 it was said that: “by the provision of Act 29, s. 125, the essential elements of the offence of stealing were that; (i) the person charged must have appropriated the thing allegedly stolen, (ii) the appropriation must be dishonest, and (iii) the person charged must not be the owner of the thing allegedly stolen. Consequently a person could not be guilty of stealing unless he was proved to have appropriated the thing in the first place”. Section 122 of the Criminal Offences Act 1960 Act 29 dealing with acts, which amount to an appropriation provided in subsection (2) that: “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 proceeds or any part thereof” Writing on this section, P.K.TWUMASI IN HIS CELEBRATED BOOK, CRIMINAL LAW wrote at page 312 as follows: “to summarise, we may say that, there cannot be appropriation within the meaning of section 122(2) of the criminal code, 1960, Act 29 unless 14 1. There is evidence that, the accused not being the owner of the thing stolen took or moved or obtained the thing or did some act in respect of the thing 2. That the act whether it consisted of moving, taking, obtaining or dealing with the thing in any other manner was intended by the accused person to deprive some person of the benefit of his ownership or the benefit of his right in its value or proceeds, or any part thereof; the act and the intent together constitute the appropriation, and 3. The intent need not be to deprive any person permanently of his benefit of ownership etc. it s enough if the intent is to deprive some person temporarily of his benefit or right or interest in the thing appropriated” PW2 Emmanuel Browne the Director of Finance for NAFTI testified that NAFTI the institution uses Goil Advantage Card and not fuel coupons and as such when the A3 informed him somewhere May/June 2015 that he had processed fuel coupons to the tune of GH¢19147.18, he asked him to return same to Goil. He stated that somewhere in February 2016, the transport officer of NAFTI informed him that Goil was demanding the amount of the said fuel coupons to the tune of the amount he asked A3 to return. He stated that it was during his interaction with the A3 that the A3 mentioned that when he was asked to return the fuel coupons, he the A3 gave them to the A1 and A2. He said that the A1 was contacted and his explanation for the fuel coupons were unsatisfactory and as such a three man committee was set up to investigate the A1 and the A2. The report of the committee with the attached documents 15 were admitted into evidence as exhibit A by the PW1 Doria Danour the acting Registrar at NAFTI. Per exhibit A, it was demonstrated that A3 went for the fuel coupons. It was also revealed per Appendix B of exhibit A that A1 executed a transaction of GH¢10,492.78 which was NAFTI’s warrant for the first quarter of the year to make payment for the fuel coupons. It was also shown that A2 was the one who went for the said warrant but never brought it to the institution. PW1 also testified that the fuel coupons were never returned as directed by the Assistant Director of Finance but rather NAFTI subvention for the first quarter was used for the payment by the A1 and the A2. He added that at the police station, the A2 admitted that A3 took GHC1000 out of the fuel coupons worth GHC19147.18 and gave the rest to them and they shared it amongst themselves that is he and A1. He added further that the A3 advised them to use NAFTI’s first quarter subvention for payment when NAFTI started making enquiries into the said fuel coupons. The A1 in his caution statement exhibit W confessed and admitted to the fact that he, A2 and the A3 agreed and acted together to share the fuel coupons and then used NAFTI’s first quarter subvention to make payment for the fuel coupons and they later paid the rest of the amount which was GH¢8,000. 16 DEFENCE OF THE APPELLANTS The appellants however have challenged those pieces of evidence by the prosecution. According to the A2, “sometime in January 2015, Ministry of Communications, informed the Director of Finance, Mr. Brown that NAFTI fuel coupons were ready for collection. Mr. Brown then asked him to return them because NAFTI uses fuel advantage cards not coupons. He added that weeks later they went on their usual official duties at the Ministry of Communication to chase NAFTI's subventions, there we were approached by Mr. Adams. Treasury Officer who was the 3rd accused in this matter, who pleaded with them to help him swap the fuel coupons for fuel advantage cards for the use of NAFTI.” The reason according him is that coupons sold were not returnable and since they had been going there they might know someone who could help with the swap. He also said he and his colleagues at the office had taken out GhC 1000.00 worth of the fuel coupons and will therefore refund cash to NAFTI for replacement. The fuel advantage cards are used to load fuel or buy fuel for NAFTI vehicles. To solve the problem so that NAFTI's fleet of vehicles will get fuel to continue to operate and not get grounded they agreed and collected the coupons. He added that on getting to Goil they met a dealer who deals in fuel coupons, advantage cards etc who was there to transact business. So, they discussed the issue with him and he agreed to pay for the coupons into NAFTI fuel advantage card Account so that NAFTI can Load their vehicles. 17 He added that they informed their boss PW1 that they saw a problem which hampered the smooth operations of NAFTI and did their best to solve it and that they were advised to refund the difference so that the case will be withdrawn from the Police and handled internally per NAFTI’s collective agreement but little did they known that it was a trap The A1 also followed in the same direction in his statement to the police. Per the record, particularly exhibit Q1, the A2 during the audit sent his responses and at page 3583 of the ROA, he stated therein with regards to the fuel coupons that A3 gave them the fuel coupons to return to Goil but he and A1 swapped them with a friend from another organisation who was also then going to purchase fuel coupons. I have considered the defence of the appellants herein and I do not find a shred of truth in same. If indeed they had given the coupons to the said dealer to pay for the coupons into NAFTI’s fuel Advantage card Account, they would have ensured that same was done considering the sum of money involved. It would not have taken them almost a year after giving the coupons to him and enquiries being made before they would find out that the said dealer did not make the payment. Since this is their defence, they should have led evidence on same for the court to consider if same raised any reasonable doubt in the case of the prosecution. 18 Even though it is not the duty of an accused person to prove his innocence during a trial, where in a trial the evidence adduced against him requires him to give an explanation or where he puts up a defence, it is his duty to lead enough evidence in support of that defence in his bid to raise a reasonable doubt in the case of the prosecution. Such evidence was necessary for the defense of the accused person even though the burden to prove his guilt was on the prosecution. Per section 14 of the Evidence Act, 1975, Act 323 it is provided that, “except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting”. I am of the view that the prosecution was able to prove that the appellants agreed and acted together to appropriate the sums of money stated on the charge sheet. The appropriation was clearly dishonest as the evidence notes that same was done without the consent of the NAFTI for whom the said sums of monies were meant for. This is so because per section 120 (1) of Act 29/60 dishonest appropriation implies an appropriation “made with an intent to defraud or if it is made by a person without claim of right, and with a knowledge or belief that the appropriation is without the consent of some person for whom he is trustee or who is owner of the thing, as the case may be, or that the appropriation would, if known to any such person, be without his consent. 19 In the case of AMPAH AND ANOTHER VRS THE REPUBLIC (1976) 1 GLR 403, the appellants were convicted of stealing. On appeal, their appeal was dismissed because there was enough evidence of dishonesty, appropriation and property belonging to another. The court indicated that there are two kinds of dishonest appropriation: an appropriation made without a claim of right, and an appropriation without the consent of the owner. The court further held that proof of either one would be sufficient evidence of dishonest appropriation. NAFTI clearly did not consent to the taking of the sums of monies. I therefore find that the prosecution was able to prove the guilt of the appellants on counts one, two and three that is the offence of conspiracy to steal and stealing. COUNT FOUR: STEALING. It is only 1st and 2nd appellant who have been charged with the offence. I have already given the law on stealing and also noted the ingredients the prosecution would have to prove to succeed. Per the prosecution, the A1 and A2 stole the sum of GH¢48,982.99 belonging to NAFTI. The case of the prosecution proffered by the prosecution witnesses is that the A1 set up three companies which are J.M Global Solution, MBase Agency and Perfect Events and Production Services and managed to set up them up on the GIFMIS platform as companies which provides services to NAFTI and managed to 20 transfer in total the sum of GHC48,982.99 to the aforestated companies. Exhibits E, G and F were letters with attachments from the Registrar General’s Department which indicates that all three business had the A1 as the sole proprietor. According to the evidence led by the prosecution, the A1 forged the signatures of the Rector, Director of Finance PW2, the senior Accounting Assistant and the procurement Officer. Let me hasten to add that the appellants were charged with the offences of forgery of documents and same is a charge which this appellate court will determine in the course of this judgement. PW2 testified and relied on Exhibit D which indicated payments made to those businesses. In exhibit C which was tendered into evidence, particularly at pages 14, 16, 22, 27, 30, 37, 39 of the said exhibit C, indicated that these monies were received into the company accounts of the A1. In the caution statement of the A1, he admitted that he set up those documents and initiated the documents from its initiation to the time of its payment into the company’s account and these monies were used for payment of his school fees and prayed to be given the opportunity to refund same. In the case of Ayobi v Republic (1992-93) GLR 769 CA it was held that once a confession was direct, positive and satisfactory proved it sufficed to warrant a conviction without corroborative evidence. Also in the case of Billa Moshie v the Republic (1977) GLR 418 CA in the head notes, it was held that that a conviction could quite properly be based entirely on the 21 evidence of a confession by a prisoner and such evidence was sufficient as long as the trial judge inquired most carefully into the circumstances in which the alleged confession was made and was satisfied of its genuineness. This court therefore find that the prosecution proved the guilt of the appellants herein to the requisite degree. With regards to counts five, six, seven, eight and nine, I have considered the evidence of the prosecution witnesses, the exhibits admitted into evidence and the confession statements of the accused persons, and this court finds that the prosecution proved its case to the right degree. The conviction on those counts were in accordance with law and this appellate court is not minded to disturb same. This court also finds that the trial judge properly considered the defense raised by the appellants herein when called upon to enter into their defense. The grounds of appeal on same therefore fails and same is dismissed. That the sentence is harsh, excessive and wrong in law taking into consideration the circumstances of the case. The sentences meted out to the appellants were within the statutory limits. This appellate court however considers the fact that the appellants are first time offenders and also refunded part of the monies appropriated which in itself is a mitigating factor. 22 I have also considered the entire circumstances of the case particularly the evidence led during the trial. Going by the above, the sentence of six months IHL on count 1 for A1 and A2 is hereby affirmed. The sentence of 2 years IHL on counts 2-13 IHL is hereby set aside and substituted with a sentence of one (1) year three (3) months. The sentences will run concurrently. The sentence is to take effect from the 15th of March 2024 when the Appellants were sentenced. PARTIES: APPELLANTS PRESENT COUNSEL: PROFESSOR KWAME GYAN WITH DIDYMUS OFORI ASARE FOR THE APPELLANTS PRESENT FREDERICK ADU-GYAMFI (SA) FOR THE REPUBLIC/RESPONDENT PRESENT MARY M.E YANZUH J. HIGH COURT JUDGE 23