S v Hammond (D4/37/19) [2024] GHACC 402 (1 October 2024)

IN THE CIRCUIT COURT OF GHANA HELD AT CIRCUIT COURT ‘2’, ACCRA ON TUESDAY, 1ST OCTOBER, 2024 BEFORE HIS HONOUR ISAAC ADDO, THE CIRCUIT COURT JUDGE CASE NO: D4/37/19 THE REPUBLIC VRS HAMMOND LOVE ACCUSEDPERSONPRESENT ASPSETHFRIMPONGFOR THE REPUBLIC PRESENT ISAACAIDOO,ESQ., COUNSEL FORTHE ACCUSED PERSONABSENT JUDGEMENT The Accused person has been standing trial before this court since 18th October, 2018 forthe sole offence ofStealing contraryto section 124(1) ofthe Criminal Offences Act, 1960 (Act 29). The Accused person pleaded Not Guilty to the charge after same had beenreadout and explained tohim. THEFACTS OF THE CASE The complainant is a businessman and resident in the United States of America, whilst the Accused person is a pastor and lives in Accra. During the year 2016, the complainant shipped Toyota Highlander 2013 model with chassis number 5TDBK3EH3DS181410 into the country and tasked the accused to clear it. The accused used his own money and cleared the vehicle. After clearing the vehicle, the complainant told the accused person to sell the vehicle at §50,000 and deduct the duty he paid. The complainant later informed the accused person not to sell the vehicle and that he will arrive in Ghana in April and pay his money. In April, 2017, the complainant arrived inthe countryand contacted the accused forhis vehicle. The accused could not produce the vehicle to the complainant upon several demands. 1 On the 25th May, 2017, the complainant reported the case to the police and the accused person was arrested. During interrogation, the accused told police that he secured a loan of GH¢40,000.00 with 20% interest to clear the vehicle. That the loan was accruing more interest so he sold the vehicle without the consent of the complainant at GH¢80,000.00 and gave ¢70,000.00 to the loan company. The accused person could not lead police to the said loan company to ascertain the truth or otherwise. He also did not show the person who bought the vehicle. After investigations, he was charged and arraigned beforethis court. THEEVIDENCE OF PROSECUTION The prosecution called four (4) witnesses to testify in support of its case. PW1 (Samuel Amankwah) told the court that he spoke to one Rose, a clearing agent, who informed him that it would cost GH¢ 27,000.00 to clear the car. Accused on the other hand informed him that the clearing fee was GH¢47,000. PW1 further stated that he did not have the money ready so the Accused person added an amount of GH¢38,500.00 to top up an amount of GH¢8,500.00 which was paid to Accused through PW1’s sister, Margaret. According to PW1, he returned to Ghana in April 2017 and requested for the vehicle, however, Accused refused to produce the vehicle until PW1 paid him an amount of GH¢50,000.00. Upon insisting, Accused asked him to meet one Kofi Kafefe who he claimed to have borrowed money from, but the said Kofi denied the story. Accused subsequently refused to produce the car and upon his arrest,he informed thePolice thathe had sold thecar. PW2 (Antwi Boasiako) testified that on the 1st of December, 2016, PW1 informed himthat he had shipped thevehicle and directed him togoto Sunyanitoretrieve the documentation on the vehicle and give it to one Rose, an agent at Tema. In January, 2017, PW2 told the court that he received a call from the Accused person that PW1’s sister was in his house and he Accused person had discussed the vehicle with PW1. PW2 further stated that he informed Accused person that he was organizing some 2 money to clear the car but Accused person told him not to worry because he was in Accra and would raise money to clear the car from the Port. PW2 says he paid an amount of GH¢8000.00 through PW1’s sister, Margaret Amankwah’s account to the Accused person to top up the money for clearing the vehicle. Accused acknowledged receipt of this amount. Sometime in March, 2017, the Accused person informed PW2 that he had cleared the vehicle and PW1 had directed him to sell the vehicle for GH¢140,000.00. Accused then informed PW2 that he had spent GH¢46,000.00 to clear the car and he had to take a loan with interest. PW2 says he was angrywith this revelation and asked Accused person toinform PW1 ofthe issue. Upon the arrival of PW1 in April, 2017, the parties met with Accused, however, despite PW1 informing Accused that he was prepared to pay for the expenses on the car, Accused refused to send themtowhere the vehicle was. PW3 (Joseph Nana Ofori) testified that in the latter part of 2016, PW1, who is his cousin, shipped a Toyota Highlander SUV to Accused person to clear for him from the Harbour in Ghana. According to him, he understood the arrangement to be that, the Accused person was to use his personal funds to clear the vehicle and sell the vehicle after three months if PW1 failed to come to Ghana. PW3 says that PW1 came to Ghana within the three-month period, and PW1 called the Accused person in his presence for the parties to meet so that he, PW1 can pay off the expenses and the Accused person would release the car to them. Accused however, informed them that the vehicle was with a car dealer and he would only release the vehicle after an amount of GH¢50,000.00 was released to him. On the 24th April, 2017, PW1 managed to get GH¢50,000.00 for the Accused person but the Accused person insisted that he had to work out some interest on this amount and this led to disagreements and anger among the parties. Finally, they rescheduled the meeting. However, despite several calls and searches, they could not find the Accused person until the Police arrested him. 3 PW4 (Detective Sergeant Joseph Owusu) investigated the case. He relied on his Witness Statement and tendered in evidence, the following exhibits: i. Letter to RegistrarGeneral’sDepartment; ii.Response fromRegistrarGeneral; iii. LettertoLoyedMicroFinance; iv.Agreement Letter; v.LettertoGhana RevenueAuthority; vi. Response fromGhana Revenue Authority; vii. Bill ofLading details; viii. Power ofAttorneyfromComplainant toPW2(Antwi Boasiako); ix.Details ofstampduty paid onPower ofAttorney; x.Statement ofPW4; xi. Statement ofPW1; xi. Statement ofPW2; xii. OrdinaryStatement ofPW3; xiii. Cautioned Statement ofAccused person, and xiv. ChargeStatement ofAccused person. At the close of the case of the prosecution, this Court differently constituted determined that a prima facie case had been made out against the Accused. Consequently, the court invited the Accused person to enter into his defence. I adoptedthe partly-heard proceedings andthe trial continued. THEDEFENCE OFTHE ACCUSEDPERSON In opening his defence, the Accused person testified himself and called one witness to testify in support of his case. The Accused person told the court that the complainant’s sister by name Margaret Amankwa also known as Margaret Akoto came to live with him in Ghana. According to the Accused person, he told Margaret after a prayer session that he saw that she would have a problem with her brother, 4 Samuel Amankwa over money. The Accused person further told the court that the said Margaret told him that she sold her brother’s car and there was an issue as the money realised from the sale could not be accounted for. Margaret Amankwa gave the complainant’s contact to him to enable him talk to him. The complainant told him the car sold by Margaret Amankwa was the one he was going to use its proceeds to clear a Toyota Highlander he had shipped to Ghana. He told the complainant he had money to clear the Toyota Highlander for him at the Harbour but he told him he had spoken to Antwi Boasiako who said he had money to clear the car. Later the complainant called him and told him that Antwi Boasiako could not clear the car as the loan he Antwi was going to use to clear the car did not materialize. So, he told the complainant that the money he had to clear the car had been utilized and that to help clear the car unless he goes for loan. This fact was explained to Margaret Amankwah and Antwi Boasiako. The complainant spoke with Mr. Bismark Obeng, the loan man and Bismark Obeng explained all the antecedents about the loan to him. Bismark Obeng went with him and gave the money to the clearing agent whose contact was given to him by the complainant with the admonition of how much she needed to clear the car from the Harbour. Antwi Boasiako brought him the bill of laden when the Toyota Highlander had gone into demurrage. After payment was made to the clearing agent, she could not clear the car. Upon enquiry she mentioned that there was a problem with the car as the car was a stolen car and she required more money to clear it. It is the case of the Accused person that because he had committed himself by going for a loan from Bismark Obeng and to ensure that the loan was repaid, he got Bismark to add some funds, i.e., GH¢25,000.00 to the earlier GH¢25,000.00. According to the Accused person, the loan he contracted from Bismark Obeng was appreciating by way of interest, so he told the complainant and after sold the Toyota Highlander. That he has a balance of GH¢15,000.00 to be given to the complainant after all the expenses and he was ready to cede that money to the complainant. That Accused person was given custody of the bill of laden and ultimately, the car by the complainant as he 5 did not steal the Toyota Highlander. That he did all with the knowledge, blessing and consent ofthe complainant. DW1 (Bismark Obeng) told the court that he spoke with the complainant whom he did not know on phone before going with the accused person to pay for the car at the Tema Harbour. That the complainant pleaded with him to clear the car. The clearing agent by name Rose made him tounderstand that the car was astolen car so more money was needed to clear it from the Harbour. So, he gave money for the clearing of the car to the clearing agent. He was with the accused person throughout the clearing of the car. He took a friend’s letter head and typed on it for the accused person as he told him that the police needed evidence of the money he gave for the clearing of the car as he gave out as helping a friend not strictly formal loan though he calculated some interest on the money. According to DW1, he is aware the complainant asked that the car be sold as that is what usually happened after clearing, the car is sold and he takes his money and refund the rest to the owner of thecar. ISSUEFOR DETERMINATION At the end of the trial, the legal issue that emerged for determination is whether or not the Accused person dishonestly appropriated the complainant’s Toyota Highlander vehicle. BURDENOF PROOF The requirement of the law per Article 19 (2) (c) of the 1992 Constitution is that a person charged with a criminal offence is presumed innocent until he is proved guiltyorhe pleads guilty.The article reads: (2)“A personcharged with acriminal offence shall – (c)be presumedto be innocentuntilhe is proved or has pleaded guilty” 6 The burden of proof in a criminal action therefore totally rests on the prosecution. The mandatory requirement that the guilt of the person charged ought to be established beyond reasonable doubt and the burden of persuasion on the party claiming that a person was guilty, has been provided for in sections 13 and 15 of the Evidence Act, 1975 (NRCD 323). Significantly, whereas the prosecution carries that burden to prove the guilt of the accused beyond reasonable doubt, there is no such burden on him to prove his innocence. At best he can only raise a doubt in the case ofthe prosecution. But the doubt must be realand not fanciful. In the case of Republic v. Adu-Boahen & Another [1993-94] 2 GLR 324-342, per Kpegah JSC, theSupreme Court held that: “A plea of not guilty is a general denial of the charge by an accused which makes it imperative that the prosecution proves its case against an accused person ……….. When a plea of not guilty is voluntarily entered by an accused or is entered for him by the trial court, the prosecution assumes the burden to prove, by admissible and credible evidence, every ingredientof the offence beyond reasonable doubt”. THELAW ANDEVALUATIONOF EVIDENCE Stealing isdefined atSection 125ofAct 29asfollows: “Aperson steals whodishonestly appropriates athing of which that person isnot the owner”. The definition of stealing therefore requires the prosecution to prove the essential elements of the offence. In the case of The State vs. W. M. Q. Halm and Aryeh Kumi Crim. App Nos. 118/67 and 113/67, 7 August, 1969; (1969) CC155, the Court per Akufo Addo, C.J., Ollennu, Apaloo, Amissah JJ.A and Archer J stated the three essential ingredientswhich proveacharge ofStealing under ourcriminal lawas: “(i)That the person charged mustnot be the owner of the thing allegedly stolen; 7 (ii)That he musthave appropriated the thing; (iii)That the appropriation musthave beendishonest.”Seealso Lucienvrs The Republic[1977]1GLR 351-359at holding 2. The defence has not denied the fact that the complainant owned the Toyota Highlander vehicle, as same is also captured in the facts of the case and the Accused person’sCautioned Statement tothe police. It is clear from the definition of Stealing that, a person cannot be guilty of Stealing unless he isproved to haveappropriated athing in the firstplace. Section 122 (2) of the Criminal and Other Offences Act, 1960 (Act 29) defines Appropriationasfollows: “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 partthereof”. The prosecution’s task therefore is to adduce evidence beyond reasonable doubt that the Accused person herein appropriated the Toyota Highlander vehicle with the intent to deprive the complainant of the benefit of its ownership, or of the benefit of the right or interest in the vehicle. In other words, the Accused person dishonestly appropriated theToyota Highlander vehicle entrusted to him by the complainant. THE PARTICULARS OF OFFENCE under which the Accused person was charged reads: “HAMMOND LOVE: PASTOR: You during the month of May, 2017 at Accra in the Greater Accra Circuit and within the jurisdiction of this court, did steal Toyota 8 Highlander with chassis number 5TDBK3EH3DS181410 valued $50,000, the property ofSamuel Amankwa.” It is also established that it was the Accused person who cleared the vehicle from the Port through an agent and took possession of same. Section 120 (1) of Act 29 defines dishonest appropriation as: “An appropriation of a thing is dishonest if it is made with an intent to defraud or if it is made by apersonwithout claim ofright, and with a knowledgeor 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 toany such person, be without hisconsent.” Inthe case of Osei Kwadwo II vrs The Republic [2007-2008] 2 SCGLR 1148, the Supreme Court split section 120(1) of Act 29 into three kinds of dishonest appropriation in threedisjunctive elements. This iswhat theCourtstated: “This provision appears to establish three disjunctive criteria for determining dishonest appropriation. The first criterion is that of an appropriation made with an intent to defraud. The second is an appropriation made without a claim of right and with a knowledge or belief that it is without the consent of the owner of the thing or of the beneficiary for whom the appropriator is a trustee. The third criterion is where the appropriation, if known to the owner or the beneficiary of the trust, would be without hisconsent.” In the Cautioned Statement of the Accused person given to the police on the 25th May,2017and tenderedin evidence asExhibit ‘N’,he toldthe police the following: “I know the complainant very well we have been childhood friends. About three months ago I received a call from Samuel’s brother Antwi Kwabena that his brother Samuel has shipped a vehicle Toyota Highlander to the Port and that he is not getting money to clear it from the 9 Harbour. Antwi Kwabena asked me to assist him get money to clear the vehicle and I told him that I don’t have the money but Ican get some from a loan company (financial company). I also explained to him that I will be able to get or borrow GH¢40,000.00 but every GH¢10,000.00 will generate interest of GH¢2,000.00 for a month. This he agreed including one …… sister Maggi she also agreed. I went and borrowed cash the sum of GH¢40,000.00 from one brother whiles I was with the brother I also called the complainant Samuel from America and he even spoke with brother to give me the money and he also accepted the interest condition. After collecting the money, Samuel gave me his agent Rose number. I called her and went with brother to see or witness where the car was. The car was cleared. I informed Samuel and he said I should sell the car for GH¢120,000.00 (One hundred and twenty thousand cedis). Then Samuel called me again that I should not sell the car and that he will come to Ghana and sell it himself. He also promised to send the clearing money to me and pay it to the microfinance. I waited for the said money but it never came. I then decided to sell the vehicle to defray the debt. I contacted the complainant sister Maggi and his Aunty and they gave me the go ahead to sell the car. Before then the complainant was in Ghana. I even had meetings twice with him over the money but he told me that he just arrived in the country and that he was yet to organize himself. That was the reason why I did not inform him before selling the vehicle. I sold the vehicle and the buyer paid GH¢80,000.00. I took GH¢70,000.00 out of it and gave it to the financial company. I was I my house when the complainant came with the police that I had cleared and sold his vehicle, and had also made use of the money but I told them it’s not true.” (Emphasis mine) The Cautioned Statement of the Accused person was tendered in evidence without any objection from the defence counsel. The only question the defence counsel asked the investigator (PW4) on the statement was during further cross examination on the 30thNovember,2022.See the following: 10 Q. Did Accused write his statement himself or you wrote and interpreted same to him. A.Accused authorised meto writeit for him. The contents of the Cautioned Statement of the Accused person were not denied by the defence. Also, when the Accused person opened his defence on the 15th April, 2024 and was cross examined by the prosecution, he confirmed the content of the Cautioned Statement specifically lines 14, 15 and 16 at page 2 (the first underlined and bolded sentence supra). This contradicts paragraph 15 of his Witness Statement. Seepartofwhat ensued: Q. Paragraph 15 of your Witness Statement, do you still stand by it. Read by the prosecutionand explained inTwi toAccused personby the court. A.That is so,I stand by it. Q. Take a look at Exhibit ‘N’, your Cautioned Statement dated 25th May, 2017 at page 2,lines 14,15and 16.(Read by the prosecutionand explained by the court in Twi.) A.I have seenit. Q.Do youstillstand by this statement? A.That is so,I stand by it. Paragraph15ofthe Witness Statement ofAccused personreads: “As I have committed myself by going for loan from Bismark Obeng and to ensure that the loan is repaid I got Bismark to add some funds that is GH¢25,000.00 to the earlier clearing money of GH¢25,000.00” The alleged GH¢40,000.00 that the Accused person collected from one brother per his Cautioned Statement given to the police about six years ago changed to GH¢50,000.00 six yearslaterper his Witness Statement. 11 A careful perusal of the Cautioned Statement shows that it was taken in compliance with section 120 of the Evidence Act, 1975 (NRCD 323). Justice Akamba JSC in the case ofEkow Russelv.The Republic[2016] 102GMJ124SC,stated and I quote: “………..Aconfession is an acknowledgement inexpress words, by the accused ina criminal charge, of the truth of the main fact charged or of some essential part of it. By its nature, such statement if voluntarily given by an accused person himself, offers the most reliable piece of evidence upon which to convict the accused. It is for this reason that safeguards have been put in place to ensure that what is given as a confession is voluntary and of the accused person’s own free will without fear, intimidation, coercion, promises or favours ……”(Emphasis mine) On the nature of defence the Accused person is supposed to adduce, I refer to sections 11(3) and 13(2) of the Evidence Act, 1975 (NRCD 323). Section 11(3) provides that: “In a criminal action, the burden of producing evidence, when it is on the accused as to a fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on the totality of the evidence a reasonable mind could have a reasonable doubt as to guilt.” Section13(2) provides that: “Except as provided in section 15 (c), in a criminal action, the burden of persuasion, when it is on the accused as to a fact the converse of which is essential to guilt, requires only that the accusedraise areasonable doubtas toguilt.” On the part of the defence, that is the Accused person, all that he needs to do by way of producing evidence is to raise a doubt as to his guilt. The case of Woolmington vrs Director of Public Prosecution [1935] AC 462 is the locus classicus on this principle, where theCourtofAppealofEngland per LordSankeyLC expressed theview that: 12 “……. while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and itis sufficient for himto raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence.” See the case of Commissioner of Policev.Isaac Antwi [1961] GLR 408-412. Also, in the case of The Republic vrs District Magistrate Grade II, Osu, Ex Parte Yahaya [1984-86] 2GLR 361-365, Brobbey J(ashe thenwas)stated that: ……. evidence for the prosecution merely displaces the presumption of innocence but the guilt of the accused is not put beyond reasonable doubt until the accused himself has given evidence.” On the face of Exhibit ‘D’, i.e., the said Agreement Letter on Loyed Micro-Finance Company Limited letterhead, the Chassis Number quoted is different from the Chassis Number of the vehicle, the subject matter of this case. This Exhibit ‘D’ was signed by DW1. When DW1 was cross examined by the prosecution on the 12th August, 2024, the following is part of what transpired on the explanation for difference: Q.Did you see the bill of lading before you prepared the receipt? A. Ididn’tsee it. Q.Butyou quoted the chassis number of the vehicle on the receipt? A. It was later when we went to the car that I took the chassis number and wrote on the receipt. Q.Take a look at Exhibit‘G6’and mention the chassis number? A. 5TDBK3EH3DS181410. Q.Take a look at Exhibit‘D’,your receipt. A. Ihave seenit. Q.Mention the chassis numberthere? A. 5TK3EH3DS181410. 13 Q. You agree with me that the two chassis numbers you just stated from Exhibit G6 and Exhibit‘D’ are notthe same? A. That is so. When we went to see the car, the first chassis number I mentioned in Exhibit G6 after clearing the car,the chassisnumberhad changed. The above explanation is coming fromDW1, and the court finds it difficult to believe and accept same. How can one take the chassis number of a particular vehicle and find outthatthe chassis number ofthat same vehicle had changed? In his defence, the Accused person told the Court that he informed the complainant before selling the vehicle. This is what is stated at paragraph 16 of his Witness Statement: “That loan I contracted from Bismark Obeng was appreciating by way of interest, I told the complainantand after sold the Toyota Highlander.” This is contrary to his Cautioned Statement given to the police (supra). In his Cautioned Statement, he told the police that he sold the car without the consent of the complainant. The subject-matter of the appropriation in this case is the Toyota Highlander vehicle. It is quite clear that, if a claim of right defence fails, then there was a dishonest appropriation of the vehicle, since the Accused person sold the vehicle without the consent of the complainant. It is important to emphasise that the Accused person was not the owner of the vehicle, though he facilitated its clearance fromthe Portthroughanagent. It is therefore my humble view that, the evidence of the Accused person from the Witness Box is an afterthought. The statement was given voluntarily. There is nothing whatsoever to indicate that the statement was a forced confession. It is assumed that he told the truth when the matter was still fresh in his mind. He had 14 no opportunity to manipulate things. He confessed to the selling of the vehicle withoutthe consent ofthe complainant. In the case of Bilah Moshie vrs The Republic [1977] 2 GLR 418, the Court of Appeal stated at holding (2) that a conviction could quite properly be based entirely on the evidence of a confession by a prisoner and such evidence was sufficient as long as the trial judge enquired most carefully into the circumstances in which the alleged confessionwasmade and wassatisfied ofitsgenuineness. Also, in the case of Ayobi vrs The Republic [1992-93] Part 2 GBR 679, the Court of Appeal apparently re-affirmed this legal position by holding that once a confession was direct, positive and satisfactorily proved, it sufficed to warrant conviction withoutcorroborative evidence. The Cautioned Statement of the Accused person was direct, positive and satisfactorily proved. TheAccused person sold the vehicle without the consent of the complainant. It stands to reason that there was dishonest appropriation of the vehicle on the part of the Accused person. The explanation by the Accused person carriesno weight. Infact, it is misconceived and anafterthought. The Accused person had no claim of right to the vehicle. If anything at all, the Accused person is entitled to the expenses incurred in clearing the vehicle from the Port. All the pieces of evidence adduced at the trial point to the one and only one conclusion, and it is that, the Accused person sold the Toyota Highlander vehicle without the consent of the complainant. It can therefore be said that the Accused person dishonestly appropriated the vehicle. Consequently, the Court finds the Accused person herein guilty of the offence of Stealing, and he is accordingly convicted. SENTENCING: 15 I have considered the fact that the convict is a first-time offender. By the evidence on record, the convict is a pastor. To hold such a position, generally, a high standard of integrity especially in matters of trust and accounting is expected of him. This, the convict breached. More so, the vehicle, the subject matter of this case has not been retrieved since 2018. The court will therefore pass a fairly deterrent sentence on him. The convict is hereby sentenced to serve a prison term of Forty-Eight (48) months In Hard Labour. (SGD) .………………………………. HISHONOURISAACADDO CIRCUIT COURT JUDGE 1ST OCTOBER, 2024 16