Republic Vrs . Addy [2024] GHACC 206 (14 February 2024)

IN THE CIRCUIT COURT ‘’7’’ 28TH FEBRUARY ROAD ACCRA, SITTING ON WEDNESDAY THE 14TH DAY OF FEBRUARY 2024 , BEFORE HER HONOUR ELLEN OFEI-AYEH(MRS.) CIRCUIT COURT JUDGE. CASE NUMBER: D2/155/2022 REPUBLIC V 1. DAVID ADDY 2. EMMANUEL OHENE ANNOR- (DISCHARGED) REPRESENTATION: DSP YAKUBU FOR THE REPUBLIC ANDREW EDWIN ARTHUR ESQ. FOR THE ACCUSED PERSON RULING ON SUBMISSION OF NO CASE TO ANSWER The accused person herein was charged with the 2nd accused person(discharged) on two counts of offences namely Conspiracy to commit a crime namely; Stealing and Stealing contrary to sections 23(1) and 124 (1) of the Criminal offences Act, Act 29, respectively. On count one the particulars of the offence are; REPUBLIC V DAVID ADDY & ANOR 1 1. David Addy, aged 44 years, Businessman 2. Emmanuel Ohene Annor 44 years, Pastor: on 16/02/2022 in Accra in the Greater Accra region and within the jurisdiction of this court, you did agree to act together with a common purpose to commit a crime to wit stealing. A2 was discharged on their first appearance because the facts did not support the charge of conspiracy. It is trite learning that there must be at least two persons in a charge of conspiracy to hold. The Republic took no steps whatsoever, to amend the facts or the charge sheet when flowing from the evidence led, they knew that evidence would be led to connect the discharged 2nd accused person. On 6/11/2023 the defence counsel filed a written submission of no case to answer pursuant to section 173 of Act 30. Section 173 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) provides; ‘If at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require him to make a defence, the Court shall, as to that particular charge, acquit him’. In the case of The State v. Ali Kassena [1962] 1 G.L.R. 144, S.C. their Lordships gave the situations under which a submission of no case may be made and stated as follows: REPUBLIC V DAVID ADDY & ANOR 2 “ (a) when there has been no evidence to prove an essential element in the crime charged; and (b) when the evidence adduced by the prosecution has been so discredited as a result of cross- examination or is so manifestly unreliable that no reasonable tribunal could safely convict upon it …” In the case of Tsatsu Tsikata v The Republic, 2003-2004 SCGLR 1068, these grounds were explained as; 1. That the prosecution has failed to provide evidence to prove an essential element of the offence 2. That the witnesses called by the prosecution are so discredited by the prosecution through cross- examination, 3. That the evidence adduced by the prosecution is so manifestly unreliable that no court of law could safely convict on it. 4. The evidence on record is susceptible to two likely explanations, one consistent with guilt and the other consistent with innocence. Section 23(1) of the Criminal Offences Act, Act 29 (1960) (as amended); “(i) 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 previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence.” To ground a conviction, the prosecution would have to lead evidence to prove beyond reasonable doubt that the accused persons had an agreement to act together with another, with a common purpose to the complainant of his property. REPUBLIC V DAVID ADDY & ANOR 3 In the decision in The REPUBLIC v. MAIKANKAN AND OTHERS [1972] 2 GLR 502-514 the court, per ABOAGYE J. as he then was, held that; “For a charge of conspiracy to succeed under section 23 (1) of the Criminal Code, 1960 (Act 29), there must be evidence that the accused person with another person agreed or acted together with a common purpose to commit the offence.” In consequence, and having considered the particulars of offence under the charge, in the absence of a co-accused person on the charge of conspiracy, I discharge the accused person on count one. On count two, Section 125 of Act 29, (1960) defines stealing as; “A person steals who dishonestly appropriates a thing of which that person is not the owner”. Section 122(6) of Act 29/60 defines appropriation as; “Appropriation of a thing in any other case means any moving, taking, obtaining, carrying away, or dealing with a thing, with the intent that a person may be deprived of the benefit of the ownership of that thing or of the benefit of the right or interest in the thing, or in its value or proceeds or part of that thing.” In order to succeed, the prosecution would have to lead evidence that; “(i) That the person charged must not be the owner of the thing allegedly stolen; (ii) That he must have appropriated the thing; (iii) That the appropriation must have been dishonest.” In discharging the burden of proof on the prosecution, the prosecution called only one witness, Kenneth Abudu, who testified that he is the head of the internal audit of Access Bank PLC. He testified that a distress call from the REPUBLIC V DAVID ADDY & ANOR 4 owner of Three Hills Company Ltd. was made to the Access Bank, regarding an excess of 100 SMS alerts, on his account, which were unauthorised. There were other customers whose accounts were also debited and in one of such transactions, the sum of GHC, 9.5 million was credited to the account of Nova Palm. He testified that moments later, the 1st accused person who is the account holder of Nova Palm called to make enquiries about his account. He testified that before that, a restriction was placed on the account so when the customer of the account showed up at the bank, he was immediately arrested. The customer said he was expecting funds from a business partner Samuel Kilson and his partner had notified him of it so he came to withdraw it. He claimed he did not know the source of the funds and as a result, the customer; David Addy was handed over to the police. He explained and narrated the ability of a customer to copy the address bar, decode the encryption, which enabled the customer to change the source account and amount, the destination account and further the validation. He added that is a flaw which they noticed after the incident. Initial transactions debited from the accounts of affected customers were initiated by the user ID of Emmanuel Kwasi Annor who owns Multiliner Shipping. He testified that when Emmanuel Kwasi Annor came to make an enquiry on his account he REPUBLIC V DAVID ADDY & ANOR 5 was arrested and upon his arrest, he confirmed he still had in his possession the token assigned to him for internet banking, and as the token cannot be replicated and so far as that token was used to consummate all other fraudulent transactions then Emmanuel Kwasi Annor was part of the transaction because without his token the transaction could not have gone through. He testified that they attempted to move GHc30,578.894.73, but with the assistance of MTN they were able to block GHC29,737,125.95, however GHC841, 768.78 had by then been successfully transferred and withdrawn by the customers. He added that Nova Palm which received GHC 9,500,000.00 million should be part of the syndicate. He tendered into evidence Exhibit ‘A’, a counter-cheque form in the name of Nova Palm consult. But then why wasn’t the statement of account of Nova Palm tendered to prove such an amount had been successfully transferred or an attempt at transfer was made? Notably, the said Emmanuel Kwasi Annor was not called to testify, and neither was he rearrested by the police if such information was in the domain of the investigator. Neither was further evidence of investigations made by the investigator. The Managing Director of Access Bank who received the REPUBLIC V DAVID ADDY & ANOR 6 complaint from Three Hills Company Ltd. did not testify. Why are there no bank records of Three Hills Company Ltd? Why did the Manager of Three Hills Company not testify to prove that the transaction was not authorised by the company but rather it was a dishonest appropriation of their funds? Why have no bank records of Nsano Group or statements of Nsano Group been tendered by the investigator? PW1 is a staff of the bank but his testimony is simply hearsay, of what the customers told his Managing Director. The Managing Director who received the complaint did not testify. Are the elements of offence present? I have considered the responses of PW1, and the allegations by Three Hills Company fall under hearsay. I do not find the elements of dishonest appropriation by A1 are present, for him to answer the charge of stealing on both counts. The Republic has failed to make out a prima facie case against the accused person. The accused person is acquitted as required under the law. POST-SCRIPT: I must state that during the trial, the prosecution requested for the investigator to be called out of turn however the prosecution failed to use the opportunity while citing one excuse or another. After three REPUBLIC V DAVID ADDY & ANOR 7 adjournments all found on the record of proceedings, the prosecution prayed to call the original witness Bernard Ogbey, which was granted but whom they failed to produce. The case of the prosecution was closed on 16th October 2023, and adjourned for a ruling on 13th November 2023, and again adjourned to 8th December 2023 and then again to 18/12/2023 2024. These were opportunities for the prosecution to produce their witnesses by seeking the leave of the court. Following these events, I find it very unfortunate for the Republic to conduct a case involving such a sum quantum of money in a lackadaisical manner. …………sgd……….. HH Ellen Ofei-Ayeh(Mrs.) REPUBLIC V DAVID ADDY & ANOR 8