S v Appiah (B7/35/2024) [2024] GHADC 748 (13 November 2024)

IN THE DISTRICT COURT HELD AT BAATSONAA ON WEDNESDAY, THE 13TH DAY OF NOVEMBER, 2024, BEFORE HER WORSHIP MABEL N. L. AHELE, DISTRICT COURT MAGISTRATE C/C NO: B7/35/2024 THE REPUBLIC VS KWAKU APPIAH ________________________________________________________________ Accused Person – Present Prosecution – Inspector Joyce Ninson for the Republic present No legal representation JUDGMENT 1. The Accused Person has been arraigned before this Court on the following charges; Count One Statement of Offence Stealing, contrary to Section 124(1) of the Criminal Offences Act 29/60 of Act 29. 2. PARTICUALARS OF OFFENCE: Kwaku Appiah, 30-years Security Guard; In the month of February, 2024 at Baatsonaa/Spintex, Accra in the Greater Accra Circuit and within the jurisdiction of this Court, you dishonestly appropriated 16 pieces of Rollable Extension Cables valued at GHC32,000.00 the property of Pharmaceutical Society of Ghana. Page 1 of 9 13-11-2024 THE REP. VS. KWAKU APPIAH – JUDGMENT 3. Count Two Statement of Offence Stealing, contrary to Section 124(1) of the Criminal Offences Act 29/60 of Act 29. PARTICUALARS OF OFFENCE: Kwaku Appiah, 30-year security guard; In the month of February, 2024 at Baatsonaa/ Spintex, Accra in the Greater Accra Circuit and within the jurisdiction of this Court, you dishonestly appropriated 42 pieces of Chairs valued GHC14,700.00 the property of Pharmaceutical Society of Ghana. FACTS OF THE CASE 4. The brief facts as presented by the Prosecution was that, the Complainant in this case, Dr. Dennis Sena Awitty is a Pharmacist and resides at Community 22 Annex, Ashaiman while the Accused, Kweku Appiah is private security guard and lives at Baatsonaa, Spintex. The Complainant is a member of the Pharmaceutical Society of Ghana and in charge of the society’s Head office located at Baatsonaa, Spintex. The Accused also works with City Corps Security Company as a security Guard. The Accused was deployed at the Pharmaceutical Society’s Office to guard and take care of all properties entrusted into his care. In the month of March 2024, the Complainant detected missing of 42 pieces of chairs belonging to the society and when the Accused was cautioned, he denied ever knowing the whereabout of the chairs though he is putting up in the same room where the chairs were kept. The authorities of the society decided to check the stocks of all articles within the premises and later detected missing of 16 pieces of their rollable extension cables in a container which the Accused had the key to the said container in his possession. A complaint was made with the Baatsonaa Divisional CID for investigation. The Accused Person was charged and detained for further investigations. The Page 2 of 9 13-11-2024 THE REP. VS. KWAKU APPIAH – JUDGMENT Accused Person admitted the offence in his caution statement in the presence of an independent witness and further told the police he sold some of the chairs and the rollable extension cables to scrap dealer but will not be up to the number quoted by the Complainant. After investigations, the Accused was charged and put before this Honourable Court. 5. Accused rights were read out to him, he pleaded not guilty to the charges hence, the trial. EVIDENTIAL BURDEN 6. It is a trite learning under Article 19(2) (c) of the 1992 Constitution that, every one charged with a criminal offence is presumed innocent until the contrary is proved. In other words, whenever an Accused Person is arraigned before any Court in any criminal trial, it is the duty of the Prosecution to prove the essential ingredients of the offence charged against the Accused Person beyond reasonable doubt. 7. Presumption of innocence serves to emphasize that the Prosecution has the obligation to prove each element of the offence beyond reasonable doubt and the Accused bears no burden of proof except provided by a statute. Section 11(2) of the Evidence Act, 1975 (NRCD 323) states that, in a criminal action the burden on the Prosecution of facts essential to the guilt requires the Prosecution to produce sufficient evidence so that the Court can find the guilt of the Accused proved beyond reasonable doubt. It is further stated under Section 13(1) of the Evidence Act, 1975 (NRCD 323) that; “In any civil or criminal action the burden of persuasion as to the commission by the party of a crime which is directly in issue requires proof beyond a reasonable doubt.” Page 3 of 9 13-11-2024 THE REP. VS. KWAKU APPIAH – JUDGMENT 8. In the case of GLIGAH & ATISO v. THE REPUBLIC [2010] SCGLR 870, it was held that “whenever an Accused Person is arraigned before any Court in a criminal trial, it is the duty of the Prosecution to prove essential ingredients of the offence charged against the Accused Person beyond any reasonable doubt”. See RAHIM IBRAHIM & 3 ORS. V THE REPUBLIC, CRIMINAL APPEAL NO. H2/2/201, DATED 18TH JULY,2017. Thus, before the Prosecution can secure conviction of an Accused Person on any criminal charge, the Prosecution is obliged under the law to establish the guilt of the Accused beyond reasonable doubt by proving all the essential ingredients of stealing. 9. WHAT ARE THE ESSENTIAL INGREDIENTS OF THE OFFENCE OF STEALING Section 124 (1) of the Criminal Offences Act, 1960 (Act 29) provides that; “a person who steals commit a second degree felony.” Section 125 of the Criminal Offences Act defines stealing as “a person who dishonestly appropriates a thing of which that person is not the owner”. 10. Section 122 of the Act also explains the concept of dishonest appropriation. The relevant sub-sections are; (2) 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. (3) An intent to deprive can be constituted by an intent to appropriate the thing temporarily or for a particular use, if the intent is so to use or deal with the thing that it probably will be destroyed, or become useless or greatly injured or depreciated, or to restore it to the owner only by way of sale or exchange, or for Page 4 of 9 13-11-2024 THE REP. VS. KWAKU APPIAH – JUDGMENT reward, or in substitution for some other thing to which he is otherwise entitled, or if it is pledged or pawned. 11. Therefore, for Prosecution to be deemed to have established its case, the evidence led should prove that; i. the Accused Person is not the owner of the chairs and the rollable cables, ii. the Accused Person appropriated the chairs and the rollable ca- bles, and iii. the Accused Person did so dishonestly Thus, the test is, did the Accused appropriate the chairs and the rollable cables Commented [Richmond 1]: appropriate of which he is not the owner? And if so, did he dishonestly appropriate them? In other words, the Prosecution is obliged per the principle to prove that the Accused appropriated the chairs and the rollable cables belonging to the Pharmaceutical Society; the Complainant, and the Accused Person made use of the chairs and the rollable cables without the Complainant’s consent, then the Accused will be guilty of stealing. 12. Prosecution in proving its case called four (4) witnesses, namely the Complainant (PW1), Dr. Denis Sena-Awitty, a Pharmacist and a member of the Pharmaceutical Society of Ghana, Mr. Eric Forson (PW2), an Accountant with the Pharmaceutical Society of Ghana, EX WO1 Attie Yao (PW3), an ex-military officer with City Corps Security Systems and the Investigator, D/CPL. Bismark Agyei (PW4). I will briefly summarize the evidence of the Prosecution witnesses. Prosecution tendered in the following Exhibits in support of its case; Exhibit 'A’ - Caution Statement and Exhibit ‘B’ - Charge Statement 13. It was the evidence of PW1 that the Pharmaceutical Society of Ghana detected that some 42 chairs which were packed in one of their storerooms were missing. Page 5 of 9 13-11-2024 THE REP. VS. KWAKU APPIAH – JUDGMENT PW1 further testified that he and a worker of the Society decided to take stock of all the items at the premises when it was detected that 16 pieces of rollable extension cables were also missing from the container in which the cables were kept. According to him, the keys to the container were entrusted under the Accused Person’s control. 14. PW2 testified that since the engagement of the Accused, some items entrusted in his care were missing of which the company reported same to the Police. 15. PW3 who works with City Corps Security Systems as a trainer and internal investigator testified that, a report was received from Pharmaceutical Society of Ghana on some missing items at its premises where their security guards have been deployed, precisely in the room where the Accused was putting up. According to him, the case was reported to the Police for investigation and in the course of the investigation the Accused admitted to the offence. 16. PW4 in his Evidence-in-Chief stated that his investigations revealed that the rollable extension cables were packed in a container at the premises of the Pharmaceutical Society of Ghana and the key of the container was given to the Accused for safe keeping. PW4 further testified that his investigation revealed that the Accused sold 10 pieces of the chairs and 3 of the rollable extension cables to a scrap dealer at a cost of GHC 10.00 and GHC 20.00 respectively. THE EVIDENCE OF THE ACCUSED 17. After the close of the Prosecution’s case, a prima facie case was made against the Accused. He was called upon to pen his defence. After his rights were read out to him and reminded of his charges, the Accused elected to testify on oath. He called no witness in his defence. He stated in his defence that he only took 10 of the chairs and four of the rollable cables. Under cross-examination, he testified taking the chairs and the rollable cables belonging to the company without its consent. Page 6 of 9 13-11-2024 THE REP. VS. KWAKU APPIAH – JUDGMENT Evaluation of Evidence 18. The Accused is a security guard and stationed at the Pharmaceutical Society of Ghana to protect the properties of the Society. It was Prosecution’s case that the items, thus 42 pieces of chairs and 16 rollable extension cables were entrusted in the care of the Accused however, those items were appropriated by the Accused without the consent of the Society. The Accused in his defence testified that he took some of the items; 10 of the chairs and four of the rollable cables. However, he testified under cross-examination that he took 10 of the chairs and three rollable cables without the consent of the company. However, Exhibit ‘B’ of the Prosecution which contained the Accused’s caution statement, he stated that he took 16 of the chairs. 19. It is settled law that a party or a witness whose evidence on oath is contradictory of a previous statement made by him, whether sworn or unsworn, is not worthy of credit and his/her evidence cannot be regarded as being of any importance in the light of his previous contradictory statement, unless he/she is able to give reasonable explanation. See GYABAAH V. THE REPUBLIC [1984-86] 2 GLR 461. 20. The number of the items he claimed he appropriated is not important because he is not worthy of credit in the light of his contradictory statements. I find that the Accused appropriated the cables and the chairs of the Pharmaceutical Society of Ghana. 21. Was the appropriation by the Accused dishonest? In the case of LUCIEN V THE REPUBLIC [1977] 1 GLR 351, it was held that an appropriation of a thing is deemed to have been dishonestly made where it was made without a claim of right and consent of the owner. There is no evidence on record showing that Pharmaceutical Society of Ghana consented to the appropriation of the plastic Page 7 of 9 13-11-2024 THE REP. VS. KWAKU APPIAH – JUDGMENT chairs and the rollable cables by the Accused. The Accused under cross- examination testified that he obtained no consent from the company. 22. It is evidently clear that the Accused appropriated the plastic chairs and the rollable cables belonging to the Pharmaceutical Society of Ghana without its consent and dealt with those items by selling them to scrap dealers denying the company the use of the items. 23. I find that the Prosecution has established the guilt of the Accused beyond reasonable doubt as required by Section 11(2) of the Evidence Act, 1975 (NRCD 323). 24. I find the Accused guilty of the offences charged. I hereby convict him on his guilt. 25. Pre-sentencing Hearing The Accused is a security guard placed at the premises of the Company to protect its properties from being stolen. Instead, the Accused has turned round to steal from the company he has been deployed to protect. He has therefore breached the trust imposed on him by the Company and therefore deserves a stiffer punishment. However, the Accused is young offender; 30 years old. He pleaded for leniency by the Court. He has also shown remorse. He assures the Court of never to repeat his crimes. The Court therefore takes the position to impose a sentence which is aimed at reforming the Accused. For the foregoing reasons, the Court hereby sentences him as follows; On Count 1, Accused is sentenced to 4 months imprisonment. On Count 2, Accused is sentenced to 7 months imprisonment. Sentences are to run concurrently. Page 8 of 9 13-11-2024 THE REP. VS. KWAKU APPIAH – JUDGMENT H/W MABEL N. L. AHELE (MAGISTRATE) 13/11/2024 Page 9 of 9 13-11-2024 THE REP. VS. KWAKU APPIAH – JUDGMENT