REPUBLIC VRS. OSEI AND OTHERS (GR/KB/CCT/ B1/10/2022) [2024] GHACC 363 (30 April 2024)

IN THE CIRCUIT COURT HELD AT KWABENYA ON TUESDAY THE 30TH DAY OF APRIL, 2024 BEFORE HER HONOUR MAWUSI BEDJRAH, CIRCUIT JUDGE SUIT NO.GR/KB/CCT/ B1/10/2022 THE REPUBLIC VRS OSEI KWADWO & 2 OTHERS ACCUSED PERSONS (A1 & A2) PRESENT ACCUSED PERSON (A3) AT LARGE CHIEF INSPECTOR MABEL ATSU FOR PROSECUTION PRESENT COUNSEL FOR A2, FRANCIS K. ADJEI PRESENT JUDGMENT Accused persons have been charged with offences as follows; i. Count One-A1 and A3-Conspiracy to commit crime to wit stealing, contrary to sections 23 (1) and 124 (1) of the Criminal and Other Offences Act, 1960 (Act 29) ii. Count Two-A1-Fraudulent breach of trust, contrary to section 128 of Act 29 iii. Count Three-A1and A3-Stealing, contrary to section 124 (1) of Act 29 iv. Count Four-A2-Dishonestly Receiving, contrary to section 146 of Act 29. A1 and A2 pleaded not guilty to the charges levelled against them. A3 is at large. INGREDIENTS OF THE OFFENCES Per section 23 of Act 29, where two or more persons agree to act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them commits conspiracy to commit or abet the criminal offence. Fraudulent breach of trust is a second degree felony under section 128 of Act 29 and under section 129; 1 “a person is guilty of fraudulent breach of trust if he dishonestly appropriates a thing the ownership of which is invested in him as a trustee for or on behalf of any other person”. For the accused person (A1) to be convicted of this offence, prosecution must prove that: i. Accused person was handed over property in a capacity as trustee ii. He was not the owner of the property, iii. There was appropriation and iv. The appropriation was dishonest For the charge of stealing to succeed against A1, the prosecution must prove the following ingredients of the offence; (a) That the accused was not the owner of the thing alleged to have been stolen (b) That there was appropriation (c) That the appropriation was dishonest (See BROBBEY AND OTHERS V THE REPUBLIC [1982-83] GLR 608) Further, for the charge of dishonestly receiving to succeed against A2, prosecution must prove that: a. A2 received property which he knew to have been obtained or appropriated by a criminal offence b. and the act of receipt by A2 of the property was dishonest See the cases of NYINA v COMMISSIONER OF POLICE [1964] GLR 452 and REPUBLIC V BAYFORD (1973) 2 GLR 321. BURDEN OF PROOF The prosecution has the burden to prove the guilt of the accused persons beyond reasonable doubt. See sections 11(2) and 13 (1) of NRCD 323. This is the foremost duty on prosecution to lead evidence to satisfy the court of the guilt of the accused and the standard that the evidence should reach should be higher than the one expected in a civil trial of proof on the balance of probabilities. Accused person is however under no burden at all to prove that he is innocent. Per section 11(3) of NRCD 323, he is only required to raise reasonable doubt regarding his guilt. The burden and standard of proof is summed up in the Supreme Court case of C.O.P V ANTWI [1961] 1 GLR 408 as follows; 2 “The fundamental principles underlying the rule of law are that the burden of proof remains throughout on the prosecution and the evidential burden shifts to the accused only if at the end of the case for the prosecution an explanation of circumstances peculiarly within the knowledge of the accused is called for. The accused is not required to prove anything; if he can merely raise a reasonable doubt as to his guilt, he must be acquitted.” FACTS The facts of the case as given by prosecution are as follows; Complainant, Victor Attah is a retired forester resident at Agbogba in Accra. A1 Osei Kwadwo is a driver and operates a car rental service at Abokobi as well. A2 Stephen Ziedor is a businessman and lives at Atebubu. A3, Jerry John Jonah, now at large, is unemployed. A1 had earlier on discussed with complainant about the booming nature of the business and asked him to give it a try. On 31st October, 2019, A1 lured complainant into releasing his four (4) wheeled drive Toyota High Lander Car with registration No. GR 1421-19 valued at GH¢120,000.00 for the business. Per the agreement, A1 was to return the car to complainant on 3rd November 2019. However, on the due date, A1 failed to do so and claimed to have hired the said car to A3, but could not trace him or the car. Although complainant became suspicious of A1, he joined him to lodge a complaint with the police and was asked to prove his innocence about the missing car. Interestingly, A1 gave the name of A3 whom he claimed hired the car as Jerry John Jonah, and a user of Vodafone contact number 0503-709434. Checks at the Vodafone Head Office in Accra, gave the name of the user number as Galley Kwame, and an NHIS card No. 581445339 used in registering the sim card, bears the name Darkwah Yaw, born on 18/04/1932. In the course of investigations, 1st accused person mentioned one of his former clients, who lives outside the country as the person who introduced the said Jerry John Jonah to him through contact number 0548-485043. Police once more verified from the MTN Head office, Accra, to know the user of the said contact number. The office gave the name of the user as Joseph Ansah. The records at the said head office revealed that there had not been a single call on the number A1 presented and claimed the supposed former client spoke with him on it. Again, A1 tendered in a temporary driver’s licence of A3 as the hiree JOH-12071979-76332. Police checks at the DVLA’s office in Accra, revealed the licence to have been faked from its original user, Bright Dougo. A1 could not show the police the residence of A3 or any guarantor. 3 However, A1 was asked to help apprehend the supposed hiree but could not assist the police in arresting the person he claimed to have hired the car to. Investigations later discovered that, A1 and A3 went to Atebubu and sold the car to A2 at a price of GH¢60,000.00. On 7th October, 2020, investigations led to the arrest of A2 at Atebubu together with the said car with a new registration number AS 9731-20, instead of the original registration number GR 1421-19. A2 identified A1 as one of the two young men who sold the car to him at a price of GH¢90,000.00. A1 has vehemently denied knowing how the car was sold to A2. A2 and his friend led the police to DVLA, Kumasi but could not show to him the person who helped to register the car. After a thorough investigation, A1 and A2 were subsequently charged with their respective offences and put before this honourable court. THE EVIDENCE Prosecution called four witnesses in an attempt to prove its case, as follows; i. Victor Attah, the complainant as PW1 ii. Bertha Agyemang, complainant’s wife as PW2 iii. Isaac Atampia as PW3 iv. D/Sgt. Charles Zibel Bosompem-Annor, PW4, the investigator in the case. The investigator tendered the following documents; i. the investigation cautioned statement of accused (A1)-as Ex ‘A’ ii. the investigation cautioned statement of accused (A2)-as Ex ‘B’ iii. the charged cautioned statement of accused (A1) -as Ex ‘C’ iv. the charged cautioned statement of accused (A2) -as Ex ‘D’ v. A copy of the order for disclosure of information on Vodafone No. 0503709434-as Exhibit ‘E’ vi. A copy of the order for disclosure of information on MTN No. 0548485043-as Exhibit ‘F’ vii. A copy of the temporary driver’s licence presented by the accused person (A1) as the one he received from the hiree-Jerry John Jonah-as Exhibit ‘G’ viii. A copy of the temporary driver’s licence presented by the accused person (A1) as the one he received from the hiree, Jerry John Jonah-as Exhibit ‘G’ ix. A copy of a letter from the Driver and Vehicle Licensing Authority confirming the faked driver’s licence of Jerry John Jonah-as Exhibit ‘H’ 4 x. A copy of a letter from the Electoral Commission Headquarters, Accra- as Exhibit ‘J’ xi. A copy of the document covering Toyota Highlander car with registration No. GR 1421-19-as Exhibit ‘K’ xii. A copy of the document covering the same Toyota Highlander car with another registration No. AS9731- 20-as Exhibit ‘L’ xiii. A copy of a document from the Ghana Revenue Authority after verifying and inspecting the authenticity of document on a black Toyota highlander car with registration No. GR 1421-19-as Exhibit ‘M’ xiv. A copy of the customs validated entry that was used to prepare document in respect of vehicle No. AS 9731-20-as Exhibit ‘N’ xv. A copy of the detailed information from the National Health Insurance Scheme-as Exhibit ‘P’ xvi. A copy of detailed information on the Toyota High Lander as Exhibit ‘Q’ xvii. A copy of G.R.A Customs Division, Kumasi stamp as Exhibit ‘S’ xviii. A photograph of Exhibit to wit, Toyota Highlander car as Exhibit ‘T’ At the end of the case for prosecution, the court invited the accused persons to open their defence as the court found a prima facie case made against them. A1 testified by himself and did not call any witnesses. A summary of A1’s evidence is that in November, 2019, precisely 29th November, he went for the complainant’s car for rentals. Someone called for a rental car and so he drove same to the client’s house and took the hiring fee to the complainant. The car was rented for four (4) days. When it was due for return, the hiree failed to bring it. He got angry with the hiree and started following up with him to return the car. Finally, he failed to do so, which ended him up at the police station and subsequently in court. At the police station, he met A2 with another gentleman, who told the police that they knew him and that he drove the car to them at Kumasi. However, he told the investigator that he had never been to Atebubu and that he had not stepped in Kumasi for two (2) years. A2, Stephen Ziedor, also testified by himself and called one witness. According to A2, he initially did not know A1 until he expressed interest to buy a vehicle which had been advertised for sale on social media in November, 2021. When he saw the advertisement, he went and showed it to his friend, Isaac Atampia, to read 5 the advertisement to him and guide him with the process to buy it. His friend, upon seeing the picture of the car, said it was nice and so they called the number given in the advertisement. The one who responded said they were at Takoradi and would bring the car to Atebubu for him to inspect before buying same. His friend advised that his father was a senior police officer at Takoradi and so instead of the sellers bringing the car to Atebubu, he rather wanted the sellers to take the car and the documents to his father for inspection so that they could be certain when it was brought to Atebubu. He agreed to same and his friend informed him that it had been done. Following this, when they requested of the seller to bring the car to Atebubu, they informed them that they did not know the road to Atebubu but they knew Kumasi and asked them to meet them at Kumasi. A2 agreed to this as well because he has a son who is an auto-mechanic and wanted him to physically examine the car before he bought it. Thus his son, his witness in this case, went to Kumasi and came with the car to Atebubu in the company of the sellers, who were two. Upon information by his son that the condition of the car was good, they bargained and agreed on the price of (GH¢90,000.00), which he paid for in the presence of his friend. After the payment, he told them to prepare a letter of transfer but his friend Atampia told him that since the vehicle was not licensed, all that was needed was the documents on the car to be taken to the DVLA for registration in his name. In January, 2022, he and his friend got the vehicle licensed and sent to Aboabo DVLA office, where he paid an amount of GH¢27,000.00 to a friend of Atampia for the registration. Subsequently, the police came to inform him that the vehicle he bought was stolen and he was later brought to Accra with his son to give his statement to the police. The evidence of A2’s witness reiterates A2’s testimony. Counsel for A2 filed his written address on behalf of his client on 21st February, 2024, which has been considered in this judgment. EVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW Per section 23 of Act 29, where two or more persons agree to act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them commits conspiracy to commit or abet the criminal offence. Nonetheless, the two or more persons accused of the crime must agree to act together with a common purpose. Conspiracy is an intentional conduct, as stated by Marful-Sau J.A, sitting as an additional High Court Judge in the case of 6 REPUBLIC V AUGUSTINA ABU AND OTHERS, (Unreported) Criminal Case No. ACC/15/2013. Hence, prosecution must prove an agreement to act together for an unlawful purpose, as stated in AGYAPONG V THE REPUBLIC [2015] 84 GHANA MONTHLY JUDGMENTS, 142, CA. In the instant case, Jerry John Jonah (A3) is at large. Beyond this information, prosecution has not led evidence to the effect that A1 and A3 agreed to steal the vehicle in question. On this basis, A1 is acquitted of the offence of conspiracy to commit crime, to wit stealing. In respect of fraudulent breach of trust, prosecution must prove that the accused person was handed over property in a capacity as trustee, that there was appropriation and the appropriation was dishonest. In the case before this court, A1 was handed over a Toyota Highlander vehicle with registration No. GR 1421-19 valued at GH¢120,000.00 by the complainant’s wife, for the purposes of hiring. The vehicle belonged and or belongs to the complainant, Victor Attah, the first witness in the case. Per the agreement, A1 was to return the car to complainant after four days but failed to do so. Interestingly, A1, who has been in the hiring business for only seven (7) months and knows the requirements for hiring out a vehicle, failed to comply with same. This was a big risk which a novice in the business was not expected to take, unless he had an ulterior motive. For instance, he failed to require the provision of a guarantor before releasing the vehicle to the hiree. He could also not produce any completed form by the hiree, although he claimed to have obtained same. Further, he could not dispute the claim that he and another person took the vehicle to Kumasi and subsequently to Atebubu for sale to A2. This was the evidence of A2, as corroborated by his witness, who was the one who met the persons who brought the vehicle to Kumasi. Both A2 and his witness identified A1 as one of the persons who brought the vehicle for sale. Their evidence in this regard was not discredited under cross-examination. A critical ingredient in a charge of fraudulent breach of trust is the element of dishonesty. In the case of ANANG v THE REPUBLIC [1984-86] GLR 458, Taylor J (as then was) held, though on a charge of stealing, that dishonesty connotes a moral obloquy and the act must be such that it must cast a slur on the character of the accused, revealing him as a person lacking in moral integrity or a plainly dishonest person. 7 For a person to be convicted under this charge, there must arise a situation where the accused has been given property which does not belong to him and for which he is not a beneficiary, but for personal advantage neglects the interest of the owner. The intent to deny the owner must be actuated by a desire to defraud. A1 was to take the necessary prudent steps for hiring out the vehicle and return same to the complainant after the four day period but failed to do so. Instead, he decided to connive with one other person to dispose of the vehicle through sale, contrary to the arrangement that he had with complainant. He thus neglected the interest of the owner for his personal advantage. I find that the accused (A1) appropriated the vehicle, the ownership of which was vested in him as a trustee for and on behalf of the complainant. I also find that the appropriation was dishonest. The elements of stealing have also been established by prosecution. Accused person (A1) has not been able to raise any reasonable doubt regarding the charges proffered against him, particularly the evidence that he was one of the two persons who took the vehicle to Atebubu for sale. I, therefore, find accused (A1) guilty of the offences of fraudulent breach of trust and stealing and I accordingly convict him of both offences. A2 has been charged with dishonestly receiving, contrary to section 146 of Act 29. The particulars of offence are; “For that A2, you on the 12th day of November, 2019 at Taifa in the Greater Accra Circuit and within the jurisdiction of this court, did dishonestly receive a Toyota Highlander Car with registration No. GR 1421- 19 valued GH¢120,000.00 the property of Victor Atttah which you well knew to have been obtained or appropriated by means of crime to wit; stealing.” Meanwhile, the evidence of A2 is that the Toyota Highlander he purchased was unlicensed and had a trial DV number plate on it and that he purchased same at Atebubu. This was not discredited under cross-examination. The additional evidence of A2 is that to the best of his knowledge and on the advice of his friend Isaac Atampia, he never suspected that the vehicle, which then had the DV number, was a stolen vehicle. From the evidence, until the police got A2 arrested, he never knew that the supposed unregistered vehicle he had bought had previously been registered. He also testified that his conviction was heightened on what his friend said that his father had informed him and was what convinced him to buy the car. The evidence of A2 was not successfully challenged under cross-examination and inure to the benefit of A2, in that it raises reasonable doubts about his guilt. 8 As stated in SALIFU V THE REPUBLIC [1974] 2 GLR 291, where stolen property was found in the possession of an accused, an inference of guilt knowledge was warranted by his possession together with the absence of an explanation of that possession. If an explanation was offered that was consistent with innocence or raised some doubt, the accused was entitled to an acquittal and the fact that the accused was negligent or reckless in not realising that the property was stolen was irrelevant. The explanation offered by A2 in his defence is consistent with innocence and does not even portray him as reckless. Any reasonable person in his shoes would take the vehicle with the DV number as a genuine vehicle to be sold, having equally received documents in that regard. Also, he took some precautions, per his evidence, before making payment for the vehicle. I, therefore find that A2, when he received the vehicle, did not know that it was obtained through stealing. Thus, the act of receipt by A2 of the vehicle was not dishonest. I find A2 rather to be a victim of the crime perpetuated by A1 and his accomplice (s). In effect, I find that A2 was not involved in any way in the hiring and subsequent stealing of the vehicle with registration No. GR 1421-19, whether directly or indirectly. Accordingly, A2 is acquitted of the offence of dishonestly receiving. SENTENCE I have considered the intrinsic seriousness of the offences by the accused person (A1), the degree of revulsion felt by law-abiding citizens of the society of the crimes and the premeditation with which the criminal plans were executed. I hereby sentence the accused (A1) to forty-eight (48) months’ imprisonment for count one and thirty-six months’ (36) imprisonment for count two, both to run concurrently. Her Honour Mawusi Bedjrah Circuit Judge 9