Republic vrs. Ofori (D4/019/23) [2024] GHACC 420 (20 November 2024)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON WEDNESDAY, THE 20TH DAY OF NOVEMBER, 2024 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE CASE NO.: D4/019/23 THE REPUBLIC VRS KOJO OFORI ACCUSED PERSON PRESENT A.S.P. STEPHEN AHIALE FOR THE REPUBLIC PRESENT BERNARD KWAASI ADDO-KWAFO, ESQ. FOR THE ACCUSED PERSON PRESENT JUDGMENT THE CHARGES The accused person herein was originally arraigned before this Court on the charges of Stealing contrary to section 124(1) of the Criminal Offences Act, 1960 (Act 29) and The Republic v. Kojo Ofori Page 1 of 18 Fraudulent Breach of Trust contrary to section 128 of the Criminal Offences Act, 1960 (Act 29). THE PLEA The accused person pleaded not guilty to both counts after the charges had been read and explained to him in the Twi language, being his language of choice. After the close of the case of the prosecution, Counsel for the accused person filed submission of no case on behalf of the accused person and the Court delivered a ruling on same, to the effect that a prima facie case was not been made by the prosecution to warrant the accused person to open his defence on count one; and the accused person was acquitted and discharged on count one. However, the court made a finding that the accused person has a case to answer on count two and he was called upon to enter into his defence on same, after the options available to him were explained to him. In view of the above, the trial continued in respect of the charge of Fraudulent Breach of Trust on count two against the accused person; and the instant judgment is in relation to same. FACTS The brief facts of the case as presented by the prosecution are that, Complainant Oyewumi Olawatomisin Tosin and accused person Kojo Ofori are businessmen. Somewhere in August 2022, complainant shipped a Mitsubishi Outlander vehicle valued GHS 120,000.00 from Canada to the Seaport of Ghana. He however ran out of money to clear the vehicle from the harbor. He then contacted a friend who is a witness in this case to assist him clear the vehicle. The friend led him to the accused person who is a car dealer and he offered to help. They held a meeting and concluded that after clearing the vehicle, The Republic v. Kojo Ofori Page 2 of 18 it will be sold for the accused person to take the cost he incurred after which they will share the profit. However, the complainant was supposed to be present before the car is sold so that he hands over the vehicle documents to the buyer and take his portion of the money. After clearing the vehicle, the accused person took it to his garage and sold it at the blind sight of the complainant and made use of the proceeds whilst the vehicle documents were still in the complainant’s possession. Months later, complainant got someone who wanted to buy the vehicle. He then contacted the accused person to make time for them to meet with the buyer only for him to be told that the vehicle has been bought. The complainant went to the accused person for his share of the profit as agreed initially but the accused person refused him without any convinced reason. Complainant tried all means to collect his share of the money but his efforts yielded no results. A case was reported at the Achimota Mile 7 Police Station by the complainant. The accused person was subsequently arrested and he admitted the offence in his investigation caution statement. During investigation, the accused person made part payment of GHS 21,000.00 to the complainant leaving GHS 31,000.00. After investigations, he was charged with the offence and arraigned before this honorable court. The prosecution called two witnesses in support of its case. EVIDENCE OF THE PROSECUTION WITNESSES From the evidence in chief of PW1 who is also the complainant herein, he got to know the accused person, through a friend called Francis. That somewhere in the year 2022, he imported Mitsubishi Outlander, 2014 model to Ghana but he did not have money to pay for the duty of the car, so his friend Francis introduced him to the accused person who promised to help him out. PW1 continued that they had an agreement that after selling the car, the profit would be shared between them. That they all agreed and the accused The Republic v. Kojo Ofori Page 3 of 18 person paid the duty of GHS 43,000.00 to clear the car from the port. That the accused then took the car to the workshop from the port without his knowledge. That the accused demanded for the car document which he disagreed with him, because the vehicle was already in his possession. According to PW1 they all agreed that the papers should be with him, while the car will be with the accused person at the selling point. However, should any one of them have a buyer to the car, everybody would be there so that he can present the car documents to the buyer and everybody will take his portion of the money. That the accused person said he used GHS 15,000.00 to repair the car which makes his total money GHS 58,000.00 and he PW1 did not object to that. PW1 further stated in his evidence that they all agreed to sell the car at GHS 120,000.00. That they were not getting a buyer for the car and after some weeks, the accused person called him that there was a buyer who was offering GHS 110,000.00 which he told him the price was too low and the accused person made a statement that if he will not accept the price, he should bring him his money and come for his car. That since he did not have the money, he agreed with him, but told him there was no profit on the car and he replied that he does not care about the profit and that all that he needs is his money. According to the PW1, on 18th December 2022, he had information that the accused person had sold the car and he did not believe that because he still had the car documents with him but he later found out that indeed the accused person had sold the car without the documents. That he reported the case to the police and the accused person promised at the police station that he was going to bring his money, which was GHS 52,000.00, in a week’s time and he agreed. At the end of the one week, he went to the police station and waited the whole day, but the accused person never showed up. That he went there again the following day, only for the investigator to tell him that the accused person called him on the phone and said the money he was expecting came in as a cheque and would be The Republic v. Kojo Ofori Page 4 of 18 cleared in a week’s time. He agreed again and left the police station. That there was back and forth at the police station where the accused person eventually paid a total of GHS 21,000.00 to the police at Mile 7. PW2, who is the investigator herein testified that he is No. 46302 Detective Corporal Elijah Bayor Maabuora stationed at Achimota Mile 7 District CID. That he knows the complainant Oyewumi Olawatomisin Tosin and the accused person Kojo Ofori through this case. He continued that on 23rd January 2023, he was on duty as the investigator when complainant came and lodged a complaint of stealing and fraudulent breach of trust against the accused person; and he commenced investigations immediately. That the complainant led Police to Mile 7 where the accused person was arrested at his garage and brought to the Police Station. That investigation caution statement was obtained from the accused person and PW2 tendered same in evidence as exhibit ‘A’. According to PW2 during investigations, it came to light that the accused person is into sale of cars and has his garage at Mile 7. It was revealed that complainant is also into car business. Further investigation established that in the month of August 2022, complainant shipped in a Mitsubishi Outlander vehicle but was in financial difficulties. Complainant then contacted Kutani Francis, a close friend of his to help him with money to clear the vehicle from the ports to avoid demurrages. Kutani Francis could not help financially and then led complainant to the accused person at Mile 7 where the parties met and transacted a deal. It was further disclosed that the accused person offered to help the complainant clear the vehicle with his own money on condition that the vehicle will be in accused person’s garage till it is sold whilst the vehicle’s documents will continue to be in the possession of the complainant till the vehicle is sold. Also, both complainant and accused person shall be present and sell the vehicle together. The Republic v. Kojo Ofori Page 5 of 18 That, it again came to light that complainant shall hand over the vehicle documents to the final buyer personally at the point of sale. Investigation also proved that after both parties sell the vehicle, the accused person will take out his money spent on the clearance and they both share the remaining profit. Investigation revealed that the vehicle was supposed to be sold at GHS 120,000.00. That it was shown that accused person spent GHS 43,000.00 in clearing the vehicle and GHS 15,000.00 on repairs. It was also shown that, complainant was supposed to get GHS 52,000.00 as his portion of the money after sale of the vehicle. Investigation, however, revealed that accused person sold the vehicle alone at an unknown price without the complainant’s knowledge whilst the vehicle’s documents are still with the complainant. That the accused person was exposed when complainant got a buyer and arranged for them to meet with the buyer for negotiation process. Complainant then went to the accused person on many occasions to collect his portion of the money but the accused person refused to give to him. That the complainant having been frustrated by the accused person, made a case at the Police Station where he was arrested. PW2 concluded that during investigation, accused person admitted the offences and made part payment of cash the sum of GHS 21,000.00 and same released to the complainant on his request, however the accused person refused to lead Police to the customer who bought the vehicle. Based on the evidence gathered against the accused person, he was charged. PW2 tendered the charge statement of the accused person in evidence as exhibit ‘B’. Prosecution thereafter closed its case. The Republic v. Kojo Ofori Page 6 of 18 As stated earlier in this judgment, after the close of prosecution’s case, the Court delivered a ruling that a prima facie case had been made out against the accused person on count two; and the accused person decided to give evidence on oath. EVIDENCE OF THE ACCUSED PERSON In opening his defence, the accused person herein testified that his name is Kojo Ofori, he stays at Mile 7, Accra and is a businessman. That he knows the complainant Oyewumi Oluwatomisin who is a businessman. He continued that somewhere in the year 2022 the complainant contacted him to enter a business venture with him. The nature of the business was that he had imported a vehicle Mitsubishi Outlander, 2014 model and did not have money to clear the car from the port. That he should pay the import duty of the car and after the car is sold, they will share the profit on the business venture. According to the accused person, he inquired to know the amount involved in clearing the car and the complainant informed him it will cost GHS 43,000.00. That he expressed interest in the business and informed the complainant that he did not have the money readily available, but he intended to take a loan for the purpose. That he also informed him that the loan will attract a high interest and because of the urgent need for the money in order to avoid paying demurrage, he will still take it and repay the money in about a month or two months. That after having concluded the agreement, the complainant informed him he needed him to ensure that the car is cleared from the port and sold. That after clearing the car from the port unknown to him and contrary to the business agreement, the car was a salvaged car and could not be sold until repair works were done. That he borrowed an extra GHS 15,000.00 to repair and put the car in a condition fit for the market. The accused person continued that they agreed to sell the car at GHS 120,000.00 but for weeks they could not get a buyer for the car at that price; and knowing that interest was The Republic v. Kojo Ofori Page 7 of 18 accumulating on the loan and the car not being sold at the price, he proposed that the car be sold at the best possible price for which the complainant agreed. That he got a buyer for the vehicle at GHS 100,000.00 and considering the interest on the loan he agreed to sell the car and informed the complaint about his decision. According to the accused person, he gave the buyer the car and the buyer paid GHS 60,000.00 as the first instalment which he used to repay the loan and interest. That the remaining payments was to be made within two weeks and that will be for the complainant to recover his cost in importing the car. That the buyer could not however honor his promise to pay the remainder on time. That since the pendency of the suit, the buyer has made payments which have been paid to the complainant. The accused person further testified that a total of GHS 38,000.00 has been paid so far to the complainant remaining GHS 4,000.00 to be paid. That the remainder will be paid by July 2024. That he has not breached the trust but rather their inability to communicate well may have resulted in this action. The accused person did not call witness, and his defence was closed thereafter. LEGAL ISSUE The legal issue to be determined by this Court is whether or not the accused person herein did dishonestly appropriate cash the sum of GHS 52,000.00, the ownership of which was vested in him as a trustee on behalf of one Oyewumi Olawatomisin Tosin. BURDEN AND STANDARD OF PROOF The general principle of law in every criminal case as provided under section 11(2) of the Evidence Act, 1975 (NRCD 323) is that: The Republic v. Kojo Ofori Page 8 of 18 “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 produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond reasonable doubt” In the case of Asare v The Republic [1978] GLR 193 – 199, per Anin J. A. reading the Court of Appeal decision is that: “There was no burden on the accused to establish his innocence, rather it was the prosecution that was required to prove the guilt of the accused beyond all reasonable doubt.” The learned judge continued to state that: “The accused is presumed innocent until his guilt is established beyond reasonable doubt; that the burden is rather on the prosecution to prove the charge against him beyond reasonable doubt…. The judge or magistrate must on a consideration of the whole evidence, be satisfied of the guilt of the accused before he may convict” From the above, the prosecution bears the burden to prove the guilt of the accused person beyond reasonable doubt. See also: sections 13(1) and 15 of the Evidence Act, 1975, (NRCD 323). The burden on the accused person, when called upon to enter his defence, is to raise a reasonable doubt in the case of the prosecution. The standard of proof for the defence is proof on a balance of probabilities. See the case of Osae v. The Republic [1980] GLR 446 The Republic v. Kojo Ofori Page 9 of 18 ANALYSIS Section 128 of Act 29 provides that: “A person who commits a fraudulent breach of trust commits a second degree felony.” Section 129 of Act 29, defines fraudulent breach of trust as follows: “A person commits a fraudulent breach of trust if that person dishonestly appropriates a thing the ownership of which is invested in that person as a trustee for or on behalf of any other person.” From the above definition of fraudulent breach of trust, there are three essential ingredients of the offence and these are: 1. That ownership of the thing must have been vested in the person charged as trustee for or on behalf of another person; 2. That the trustee must have appropriated the thing while it was so vested in him as trustee for another person; 3. That the appropriation must have been dishonest. The circumstances under which the ownership of the thing became vested in the person charged must be proved. The House of Lords, in Welham v. Director of Public Prosecutions [1961] A.C. 103, held, as stated in Archbold, Criminal Pleading, Evidence and Practice (36th ed.), para. 2043 at p. 753 that: “Intent to defraud’ means an intent to practise a fraud on someone and would therefore include an intent to deprive another person of a right, or to cause him to act in any way to his detriment …” From the testimony of PW1 and PW2, the complainant agreed with the accused person in the presence of one Francis, to assist him to clear his imported Mitsubishi Outlander, The Republic v. Kojo Ofori Page 10 of 18 2014 model from the port. That the accused person was to sell the said car in the presence of the complainant who has the documents of the car with him and take the money he spent on the car out of the proceeds from the sale. Thereafter the complainant would also take his money used in importing the car and they would share the profit. From the evidence on record the accused person spent a total of GHS 58,000.00 on the car. PW1 further stated in his evidence that they all agreed to sell the car at GHS 120,000.00 which the accused person denied but the prosecution did not adduce any evidence to the effect that there was an oral agreement between the complainant and the accused person in the presence of the said Francis that the said car was to be sold at GHS 120,000.00. In the circumstances of the instant case, the prosecution ought to have called the said Francis to testify in support of the allegation of PW1 however they did not. PW1 testified under cross examination that Mr. Francis is a witness before this court but unfortunately that was not the case as the prosecution did not call the said Mr. Francis as a witness in this case. According to PW1, he further agreed with the accused person to sell the car at GHS 110,000.00 but he made him aware that the price was too low and that there was no profit on the car where the accused person replied that he does not care about the profit and all that he needs is his money. There is no evidence on record to establish how much the complainant incurred as the cost of importation of the said car for him to arrive at the conclusion that if the car was sold at GHS 110,000.00 there would not be any profit for the parties to share as they had earlier agreed on. From the evidence of PW2 under cross examination, the complainant did not indicate to him how he arrived at the GHS 52,000.00 on the Charge Sheet. The Republic v. Kojo Ofori Page 11 of 18 From the evidence by the prosecution witnesses, PW1 later found out that the accused person had sold the car without the documents. That the accused person promised to give the complainant’s money, which was GHS 52,000.00 to him but he did not until the accused person eventually paid an amount of GHS 21,000.00 to him through the police. Also under cross examination, PW2 testified that investigations gathered indicated that the accused person sold the car at GHS 140,000.00 however, there is no evidence on record to support that assertion by PW2. Below is the relevant part of the cross examination of PW2 by counsel for accused person: “Q: Per your investigation did you become aware as to the cost at which the car was sold? A: No, I do not know how much it was sold neither do I know who bought it. Q: How much was due the complainant based on the transaction? A: The complainant said GHS 52,000.00. Q: Did the complainant indicate to you how he arrived at the GHS 52,000.00? A: No, my lord. Q: So, you took it on the face of it that it was GHS 52,000.00 without investigating it? A: It is never the case I investigated. Q: Then please tell the Court how he arrived at the GHS 52,000.00. The Republic v. Kojo Ofori Page 12 of 18 A: Per their agreement if you deduct the clearance fee plus the repair you will arrive at GHS 52,000.00. Q: Per your statements few minutes ago you did not know the amount the car was sold at, so what did you deduct from, to arrive at the GHS 52,000.00? A: Based on their earlier agreement of GHS 120,000.00 that is what I deducted from. Q: Per your investigation how much was the car sold? A: Currently on paper I do not know the actual amount but investigations gathered so far indicated that the accused person sold the car at GHS 140,000.00. Q: Why did you not include the GHS 140,000.00 in your statement? A: The accused person refused to lead us to the buyer; as at now we have not gotten the buyer that is why I have not concluded it in my statement. Q: So, the GHS 140,000.00 is a hearsay, it is unconfirmed, is that not so? A: Yes. Q: I put it to you that the car was sold for GHS 100,000.00. A: That is not the case. The Republic v. Kojo Ofori Page 13 of 18 Q: Did the complainant indicate to you how much the car and the shipment cost? A: Yes, but I cannot recall it off head. Q: The shipment and the purchase of the vehicle cost the complainant GHS 40,000.00 I put it to you. A: I have no idea about it. Q: You did indicate to the Court that you did not know how much the vehicle and the shipment cost but you have indicated to the Court that there was no profit, is that not so? A: Yes, however if counsel desires to know the actual import and other cost to the vehicle such can be made available to him.” From the above, the prosecution did not have any evidence before this court on how much was the cost of importation of the car to arrive at the amount of GHS 52,000.00. It was the duty of the prosecution to have made every material evidence available before the court when they were given the opportunity to adduce evidence in support of their case, if they were minded to prove their case against the accused person; and not that if counsel desires to know it can be made available to him. PW2 tendered the caution and charge statements of the accused person in evidence as exhibits ‘A’ and ‘B’ respectively. In exhibit ‘A’ dated 23rd January 2023, the accused person The Republic v. Kojo Ofori Page 14 of 18 stated among others that, about three weeks ago someone bought the vehicle at GHS 100,000.00 but made advance payment of GHS 60,000.00. That he used the money to settle a debt and he could not tell the vehicle owner. That he was expecting a balance to be given to the owner. That he spent GHS 58,000.00 on the car and told him that he has used the money to settle the person he borrowed the clearance fee from but he did not agree with his explanation and lodged a complaint against him. From the above evidence on record, the accused person admitted that he sold the car at GHS 100,000.00 and took the GHS 58,000.00 he used to clear and repair the car out of the proceeds from the sale because he borrowed same to use on the car. Given the time lapse from when the accused person sold the car to now; and the fact that he has not given the complainant the remaining GHS 42,000.00 out of the GHS 100,000.00 which he stated in exhibit ‘A’ as being the proceeds from the sale of the car, the court made a finding that the accused person has a case to answer on the charge of fraudulent breach of trust. The accused person was to explain to the court as to the payment of the remaining amount of the money by the person who bought the car at GHS 100,000.00 and why he has not given the complainant the remaining amount of the proceeds from the sale of the car after he had taken the GHS 58,000.00, he spent on the car before the sale. In his defence, the accused person testified that he got a buyer for the vehicle at GHS 100,000.00 and considering the interest on the loan he agreed to sell the car and informed the complaint about his decision. According to the accused person, he gave the buyer the car and the buyer paid GHS 60,000.00 as the first instalment which he used to repay the loan and interest. That the remaining payments was to be made within two weeks and that will be for the complainant to recover his cost in importing the car. That the buyer could not however honor his promise to pay the remainder on time. That since the The Republic v. Kojo Ofori Page 15 of 18 pendency of the suit, the buyer has made payments which have been paid to the complainant. That he has not breached the trust but rather their inability to communicate well may have resulted in this action. Under cross examination the accused person further testified that the car papers are no more with the complainant and he has paid all the money to him. When the court enquired from the accused person about when the complainant gave him the car documents, he testified under cross examination that it was a day before he opened his defence which was 24th July 2024. From the evidence on record, there is no sufficient evidence that the accused person dishonestly appropriated part of the proceeds of the sale of the vehicle meant for the complainant which was entrusted to him because there is no satisfactory evidence on record that the purchaser gave the entire purchase price to the accused person and he kept the complainant’s part of the said money and used same for his benefit without the consent of the complainant thereby depriving the complainant his benefit thereof. Had there been such sufficient evidence on record to prove the above, then the accused person could have been said to have fraudulently breached the trust the complainant put in him. In that case, it would have been immaterial that the accused person would repay or has repaid the said money to the complainant. However, this was not established from the entire evidence on record. The prosecution could not establish a fiduciary relationship between the accused person and the complainant. It was more of a business relationship where the complainant did not even trust the accused person to release the documents of the vehicle to him, until just before the accused person opened his defence. The Republic v. Kojo Ofori Page 16 of 18 From the entire evidence on record, the prosecution could not prove that the accused person sold the car at GHS 110,000.00 or even more than that for them to arrive at the conclusion that the accused person was to give GHS 52,000.00 to the complainant. Also, the prosecution could not prove that the complainant spent GHS 52,000.00 in importing the car. Moreover, the complainant answered in the negative when he was asked under cross examination if he at any point gave a cash of GHS 52,000.00 to the accused person. In the case of Commissioner of Police v. Isaac Antwi [1961] GLR 408-412, it was held that the accused person is not required to prove anything. All that is required of him is to raise a reasonable doubt as to his guilt. This is further emphasized by sections 11(3) and 13(2) of the Evidence Act, 1975 (NRCD 323). From the testimony of the complainant (PW1) under cross examination, as at the time he was being cross examined he still had the car documents with him. Given that the complainant gave the car documents to the accused person on 24th July 2024 and considering the accused person’s defence throughout the trial that he needed the complainant to give him the car documents to be given to the buyer of the said car, to enable him make full payment of the car; and in the absence of evidence by the prosecution that the buyer made full payment of the purchase price when the car was sold by the accused person, I find on the balance of probabilities that the defence of the accused person is reasonably probable. In the case of Amartey v. The State [1964] GLR 256-262 @ 260, Ollennu JSC stated the following principle: The Republic v. Kojo Ofori Page 17 of 18 “To do justice, the court is under a duty to consider firstly, the version of the prosecution applying it to all the tests and principles governing the credibility and veracity of a witness; and it is only when it is satisfied that the particular prosecution witness is worthy of belief that it should move on to the second stage, i.e. the credibility of the defendant’s story; and if having so tested the defence story it should disbelieve it, move on to the third stage, i.e. whether short of believing it, the defence story is reasonably probable.” From the foregoing, the evidence of the accused person has been able to raise a reasonable doubt as to his guilt as the accused person gave the complainant’s money to him when the complainant released the car documents to him. Moreover, no reasonable purchaser would pay the full purchase price of an item when he has not been given or even shown the documents of the item he is purchasing. I have examined the entire evidence in this case and have also relied on the authorities listed above. It is therefore my considered opinion that putting all the analysis above together, I find the explanation offered by the accused person to be reasonably probable. Accordingly, the accused person herein, Kojo Ofori is hereby acquitted and discharged. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) The Republic v. Kojo Ofori Page 18 of 18