BARBARA ACKAH-YENSU (Ms) JA

This is an appeal against the conviction of and sentence imposed on the Appellants herein by the High Court, sitting at Wa.

The Appellants were charged together with two others for various offences. Rahim Ibrahim, the 1^st Appellant was accused of stealing and unlawful entry. Salifu Shierif, the 2^nd Appellant was accused of dishonestly receiving and having in his possession, stolen property. Sadat Seidu Guonaa, 3^rd Appellant was accused of having in his possession stolen property and causing lawful damage. Aloya Amadeus, 4^th Appellant who was the 5^th Accused at the trial, was accused of having in his possession stolen property and unlawful damage.

These are the antecedents to this case. The Police had information that 2^nd Appellant had in his possession a 50-inch LG Flat screen television set which was suspected to be stolen property. Upon his arrest, 2^nd Appellant told the Police that the TV set was for 1^st Appellant and that he swapped his own 43-inch TV set with 1^st Appellant and added an amount of Gh¢300.00 for the 50-inch TV set. The Police therefore arrested 1^st Appellant who told the Police that he bought the TV set from the 6^th Accused person, Haadi (who was at large) for an amount of Gh¢1,500.00.

4^th Appellant was arrested by the Police on suspicion that he was behind the theft of a motor bike. During a search in his room, the Police found a block iPhone which was suspected to be stolen property. 4^th Appellant told the Police that the iPhone was given to him by the 6^th Accused person for him to work on it, however he was unable to assist the Police to locate the said 6^th Accused.

The Police subsequently made a radio announcement for individuals who had lost any of the found items to come and identify and collect them. The Complainant, Emmanuel Eledi identified the TV set and the iPhone as belonging to him. Emmanuel Eledi had earlier (3^1st May, 2015) made a report to the Wa District CID that his TV set, Dell laptop, iPhone, and external drive and a lady’s hand bag had been stolen from his room. The Appellants were subsequently charged with two others after investigations were conducted and arraigned before the Wa High Court.

With regards to the 2^nd Appellant, it is the Prosecution’s case that the Police obtained information that he had in his possession a black dell laptop computer which was suspected to be stolen. He was arrested but he told the Police that it was another accused person named Abdul Rahman Fatawu who brought the laptop to him but he rejected it. He promised to assist the Police to arrest the said Abdul Rahman.

Subsequently, the 3^rd Appellant sent the laptop to the Police saying that Abdul Rahman had sent the laptop to him from Tamale to be given to the Police. Abdul Rahman later turned himself in to the Police. He told the Police that he borrowed the laptop from the 3^rd Appellant to watch a movie but he travelled to Tamale with it.

All of the five (5) Accused persons entered a plea of not guilty when the charges were read to them in Court. The 3^rd Appellant however changed his plea to guilty in the course of the trial. He was therefore convicted on his own plea and the trial proceeded with the other accused persons.

At the end of the trial, the trial Judge by a Judgment dated 2^nd December, 2015 found all five (5) accused persons guilty of the offences charged and sentenced each one of them to ten (10) years 1HL. The sentences were to run concurrently for those charged with more than one offence.

The Appellants herein being aggrieved by this conviction and sentence caused their lawyers to file Notices of Appeal. Initially, the 1^st and 3^rd Appellants filed a joint Notice of Appeal against their sentence in December 2015 seeking:

“i. The sentence of ten (10) years IHL imposed by the High Court to be set aside and same replaced with a fine.

ii. The sentence of ten (10) years IHL imposed by the High Court be reduced or varied”.

The grounds of appeal stated in the said Notice of Appeal are that:

“i. The sentence imposed on the appellants are harsh and excessive.

ii. Additional grounds shall be filed upon receipt of the records of proceedings”.

Subsequently, the 1^st, 2^nd, and 4^th Appellants filed the following additional grounds of appeal:

“a. That the trial High Court erred in law by compelling the Appellants to open their defences to the charges against them even when no prima facie case had been made out against them at the close of the case for the Prosecution.

b. That grave miscarriage of justice was occasioned by the court when it convicted the Appellants on evidence which failed to establish the ingredients of the various offences they were charged with.

c. That the trial court erred in law when it went against its own finding that the Charges of Dishonestly Receiving and Being in Possession of Stolen Property both charged against 3^rd Appellant in one Charge Sheet was bad for duplicity yet convicted 3^rd Appellant on one of the charges.

d. That the court allowed prejudicial and legally inadmissible evidence to be adduced against the 3 unrepresented Accused/Appellants leading to convictions that represent a grave miscarriage of justice to them.

e. That the trial High Court failed to properly evaluate the mainly circumstantial evidence which formed the basis for the conviction of the Appellants by the trial court.

f. That the trial High Court failed to give adequate and proper consideration to the Appellants defences.

g. That the court exercised its discretion wrongly by meting out long prison terms on the young appellants without proper foundation in law”.

I will discuss the appeal of the 1^st, 2^nd and 4^th Appellants first. I have examined the grounds of appeal filed and I have come to the conclusion that there is only one ground of appeal: the judgment is unreasonable and cannot be supported having regard to the evidence. A lawyer filed written submissions on behalf of the 1^st, 2^nd, and 4^th Appellants. Another lawyer filed written submissions on behalf of the 3^rd Appellant.

Counsel for the 1^st, 2^nd and 4^th Appellants argued in his written submissions that the evidence adduced by the Prosecution and which formed the basis of their conviction did not meet the requisite degree of proof in criminal matters. Based on this submission, he argued that the judgment was against the weight of evidence.

Counsel argued that the trial Judge erred by not considering the explanations given by the accused persons. He contended that it was erroneous for the trial Judge to have convicted the 4^th Appellant just because he was unable to lead the Police to arrest the 6^th Accused person. He contended further that there was ample evidence on record to prove that the 4^th Appellant gave information to the Police concerning the whereabouts of the 6^th Accused person.

It is trite learning that under Article 19(2) (c) of the 1992 Constitution, every one charged with a criminal offence is presumed innocent until the contrary is proved. In other words, whenever an accused person was 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 any reasonable doubt. The burden of proof is therefore on the prosecution and it is only after a prima facie case has been established by the prosecution that the accused person will be called upon to give his side of the story. See Gligah & Atiso vrs. The Republic [2010] SCGLR 870.

While the burden of persuasion remains on the prosecution throughout the trial, the evidential burden shifts as and when it becomes appropriate. This position is stated in Section 15 of the Evidence Act, 1972 (NRCD 323) thus: “unless and until it is shifted, the party claiming that a person is guilty of crime or wrong doing has the burden of persuasion on that issue”.

There are however exceptions to this rule; where the persuasive burden would be on an accused person to prove his innocence rather than on the prosecution. One such exception can be found in Section 148(1) of the Criminal and Other Offences Act, 1960 (Act 29). It provides that “where a person is charged with dishonest receiving and is proved to have had in his possession or under his control, anything which is reasonably suspected of having stolen or unlawfully obtained and he does not give an account to the satisfaction of the court as to how he came by it, the property may be presumed to have been stolen or unlawfully obtained and the accused may be presumed guilty of dishonest receiving in the absence of evidence to the contrary”.

Therefore, where evidence is adduced to show that an item found in the possession of an accused person was stolen, the accused person has the legal burden of proving how he came by that item.

The question that arises therefore is whether based on the evidence on record, the Prosecution herein was able to prove the guilt of the Accused Persons beyond reasonable doubt.

With regards to the 1^st Appellant, he was charged with Unlawful Entry contrary to Section 152 of Act 29. It was the case of the Prosecution that the 1^st Appellant was the one who stole the TV set from the house of the Complainant and sold it to the 4^th Appellant. The 1^st Appellant however told the Police that he purchased the TV set from the 6^th Accused.

The offence of Unlawful entry is defined in S.153 of Act 29 as when “A person unlawfully enters a building if he enters otherwise than in his own right or by the consent of some other person able to give such consent for the purposes for which he entered”.

The offence of stealing is also defined in Section 125 of Act 29 as “A person steals if he dishonestly appropriates a thing of which he is not the owner”.

It is important to note that there is no evidence on record that the 1^st Appellant was caught red handed in the act of stealing. Indeed, the evidence of both the Complainant (PW1) and her daughter (PW2) who claimed to be the owners of the stolen items, did not in any way suggest that they saw anything or had any hint of the commission of the crimes against them even though they were in the room when the incident occurred.

PW1’s evidence was that he did not know the accused persons; he saw them for the first time in Court in connection with the case. P.W.1 recounted how their items were stolen and his evidence was corroborated by P.W.2. P.W.3, a Police CID Officer stationed at Wa testified that P.W.1 lodged a complaint with the Police about his stolen items as indicated on the charge sheet. According to PW3, the Police had intelligence that the 2^nd Appellant was in possession of a stolen flat screen TV in his room. Together with P.W.4 another Police CID Officer, they were detailed to monitor 2^nd Appellant and managed to arrest him and retrieve the television set.

In my opinion, even though there was no direct evidence to prove that either P.W.1 or P.W.2 saw 1^st Appellant entering their house to steal, the overwhelming evidence is that some of P.W.1’s stolen items were found with the 1^st Appellant. The evidential burden therefore shifted onto the 1^st Appellant to explain how he came to possess the television set belonging to PW1. Fortunately, the 1^st Appellant did not claim ownership of the television set; he told the Court that he bought it from the 6^th Accused. He therefore assumed the duty of proving his claim and source of purchase, and this he woefully failed to do. The reasonable, inference to be drawn therefore was that he had unlawfully entered PW1’s house on the said day and stolen the TV set.

It is trite learning that some forms of evidence which could be termed circumstantial are accepted by the courts. There are circumstantial evidence that could indirectly link the accused to the crime. Circumstantial evidence is quite usual as it is rare to prove an offence by evidence of eye-witnesses; thus inferences from the facts proved might prove the guilt of the accused. A presumption from circumstantial evidence should however be drawn against the accused only when the presumption would follow irresistably from the circumstances provided in evidence; and in order to justify the inference of guilt, the inculpatory facts, meaning facts implying guilt, must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt (see Dexter Johnson vrs The Republic [2011] 2 SCGLR 601; Logan & Laverick vrs The Republic [2007-2008] SCGLR 76).

In my view, the trial Judge did not err when he relied on the circumstantial evidence as adduced at the trial in coming to the conclusion that the Prosecution had proved the guilt of the 1^st Appellant beyond reasonable doubt.

On a review of the entire record of proceedings, the 1^st Appellant’s conviction was amply supported by the evidence adduced by the Prosecution. The 1^st Appellant had a duty, which he failed to do; to demonstrate that the conclusions of the trial Court was not based on the evidence on record, or that, on the totality of the evidence, the charges against him had not been proven beyond reasonable doubt. The dismissal by the trial Court of the accused’s plea was therefore reasonable. I will therefore conclude that the findings of the trial Court that the 1^st Appellant was guilty on both counts, namely unlawful entry and stealing and therefore convicting him on both charges, were supported by the evidence on record and thus were by no means perverse.

The 1^st Appellant also appealed against the sentence of 10 years 1HL inflicted on him.

The principles upon which this Court acts on an appeal against sentence are well-settled. It does not interfere with sentence on the mere ground that if members of the court had been trying the appellant they might have passed a somewhat different sentence. The Court will interfere with a sentence only when it is of the opinion either that the sentence is manifestly excessive, having regard to all the circumstances of the case, or that the sentence is wrong in principle. Where it was argued that the Appellant was a first offender of previous good character and that the sentence was excessive having regard to the value of the goods stolen; See Apaloo and Others vrs The Republic [1975] 1 GLR 156.

Once the guilt of an accused person has been established in a criminal trial, using the accepted standard and/or burden of proof, the issue of punishment must be considered using different criteria. That is because, in imposing sentence on a convicted person, the courts normally take into consideration factors such as whether the sentence is of a deterrent, reformative or retributive nature. Sometimes the criminal and previous antecedents of the accused are taken into consideration. (see Gligah & Atiso vrs. The Republic [2010] SCGLR 870.

The law is that in determining the appropriate sentence to impose, the Court must take into consideration the seriousness of the offence, how the citizens consider that type of offence, the manner in which the crime was committed and whether the crime is on the ascendency in the area. The court is also bound to consider the mitigating and aggregating circumstances of the offence. In the case of Kamil vrs The Republic [2011] 1 SCGLR 300, the Supreme Court provided guidelines for both trial and appellate courts on matters that should be taken into consideration before an appropriate sentence could be imposed.

I have considered the facts of the instant case and the term of imprisonment imposed on the 1^st Appellant and I am of the opinion that it was not proportionate to the crimes having taken into consideration the circumstances surrounding them. I will accordingly reduce the term to four (4) years.

The 2^nd Appellant was charged with dishonestly receiving contrary to Section 146 of Act 29, and having possession of stolen property contrary to Section 148 of Act 29. Section 146 of Act 29 reads as follows:

“Whoever dishonestly receives any property which he knows to have been obtained or appropriated by any offence punishable under this Chapter shall be liable to the same punishment as if he had committed that offence”.

The specific offence under the Chapter 1 of Act 29 in the instant case is stealing. Therefore, if a person steals goods and another person knowing that the goods were stolen dishonestly receives same, he is guilty of dishonestly receiving and is liable to be punished for stealing.

Section 147 (1) defines dishonest receiving as follows:

“A person is guilty of dishonestly receiving any property which he knows to have been obtained or appropriated by any crime, if he receives, buys or in any manner assists in the disposal of such property otherwise than with a purpose to restore it to the owner”.

Section 148 (1) Act 29 also provides as follows:

“Where a person is charged with dishonest receiving and is proved to have had in his possession or under his control, anything which is reasonably suspected of having been stolen or unlawfully obtained and he does not give an account, to the satisfaction of the Court, as to how he came by it the property may be presumed to have been stolen or unlawfully obtained and the accused may be presumed guilty of dishonest receiving in the absence to the contrary”.

It appears to me that the Prosecutors, and also the trial Judge, with all due respect, confused the provisions under Sections 146 and 148 (1) respectively of Act 29. Even though a person can be properly convicted under the provisions of Section 148 (1) it is Section 146 and not 148 (1) that creates the offence of dishonestly receiving. The introductory words under the provisions of Section 148 (1) “Where a person is charged with dishonest receiving and is proved”, simply refers to cases where a person is charged with dishonest receiving under Section 146. Prosecutors should therefore not prefer charges under Section 148 (1) when they have no evidence as to the ownership of the property in question or how the accused came by it. I find therefore that the charges under 148 (1) is a nullity.

When a person is charged with dishonest receiving the prosecution must prove the following essential ingredients, namely (1) that the accused received property which he knew to have been obtained or appropriated by crime, and (2) that the receipt of the property was dishonest. These two essential elements constitute the actus reus and the mens rea of the offence of dishonest receiving.

Proof that the accused person received something which has been stolen or obtained by any crime is not sufficient. There must be further proof that the accused person knew that the thing had been stolen or obtained by crime. Since proof of guilty knowledge on the part of the accused person is essential to the constitution of the offence. It is the duty of the court to satisfy itself that the accused knew that the property has been obtained or appropriated by crime. It has been held by the Court of Criminal Appeal in England in the case of R. vrs Johnson [1911] 6 Cr. App R. 218 that knowledge that the property has been stolen must exist at the time of receipt of it by the accused.

It was the case of the Prosecution herein that the Police and information that the 2^nd Appellant had in his possession a 50-inch LG Flat screen TV set which was suspected to be stolen property. The trial Judge appears to have relied on exhibit 2 which is the caution statement of the 2^nd Appellant to arrive at his guilt. In the said statement, the 2^nd Appellant is alleged to have admitted that he knew that they 1^st Appellant was a dealer in stolen goods. The 2^nd Appellant however denied this when he was cross-examined by the Prosecution (page 32 of the Record of Appeal). He also denied that he gave the Police statement voluntarily. The Prosecution therefore had to prove the guilt of the 2^nd Appellant.

The 2^nd Appellants evidence was that 1^st Appellant operated a games centre where people went to play games. He saw a 51-inch flat screen TV at the centre on one visit and upon enquiry, was informed by the 1^st appellant that the TV set was for sale. He stated further that he swapped his own 43-inch TV set with the 1^st Appellant and added an amount of Gh¢300,000 for the 50-inch TV set. He also said that because the 1^st Appellant was not able to give him a receipt immediately he did not pay him the full agreed amount of Gh¢350. They agreed that he would add the balance of Gh¢50, when he got the receipt.

As aforesaid, it is a cardinal principle of our criminal jurisprudence that the burden of establishing the guilt of the accused is on the prosecution. The failure of the prosecution to discharge that obligation should lead to the acquittal of the accused. See Donkor vrs. The State [1964] GLR 598 SC. In Kugblenu vrs. The Republic [1969] CC 160 CA per Ollenu JA stated the law as follows:

“It is trite law that the onus upon the prosecution is to prove their case beyond all reasonable doubt. This applies to all material issues and matters which form the pivot of the case of the prosecution or the pillar or foundation of the case upon which the case rests. If the prosecution leads evidence which creates uncertainty, they have failed and the accused should be acquitted”.

Again, in Oteng vrs The State [1966] GLR 302, the apex court stated the position as follows:

“The citizen is entitled to protection against the state and that our law is that a person accused of a crime is presumed to be innocent until his guilt is proved beyond reasonable doubt as distinct from fanciful doubt”.

And in Adwoa Manso vrs. The Republic [2009] MLRG 154 CA, it was opined that the doubt which is expected to be beyond reasonable doubt needs to reach therefore of certainty, it does not need to proof beyond the shadow of doubt but at the same time, it should not be fanciful; it should not lead to fanciful possibilities or raise fanciful possibilities.

In my opinion, the Prosecution was not able to prove beyond reasonable doubt that the 2^nd Appellant knew that the TV set he bought from the 1^st Appellant was stolen. To prove as a conviction, the Prosecution ought to have established that the 2^nd Appellant knew that the TV set was stolen or obtained through the commission of any crime.

The 4^th Appellant was also charged with two offences; having possession of stolen property contrary to Section 148 of Act 29 and causing unlawful damage contrary to Section 172 of Act 129. The definition in Section 148 of Act 29 has already been stated in this Judgment. Unlawful damage has been defined as “Damage” includes not only damage to the matter of a thing but also any interruption of the use thereof, or any interference therewith, by which the thing becomes permanently or temporarily useless, or by which expense is rendered necessary in order to render the thing fit for the purposes for which it was used or maintained.

The case of the Prosecution was that while conducting investigations into a case of alleged theft of a motor bike, they found a black iPhone in the room of the 4^th Appellant and this phone was later identified by the complainant to be his stolen phone. The 4^th Appellant, by way of explanation, said that the phone was brought to him by the 6^th Accused for him to delete the numbers on it and in the process the phone got damaged.

It appears that the learned trial Judge held that the 4^th Appellant’s story was not believable because he was unable to lead the Police to arrest the 6^th Accused person. It is interesting to note that the 1^st and 4^th Appellants both named the 6^th Accused person but nothing on the record shows that 4^th Appellant ought to have known that the phone he was receiving was stolen. He admitted not being a phone repairer but he also said that the 6^th Accused person brought the phone to him because he (4^th Appellant) used a similar phone.

Regarding the damage caused to the iPhone, the 4^th Appellant explained that it was the 6^th Accused who forcibly opened and caused damage to it after he (4^th Appellant) had told him that the phone had ceased to work. The 4^th Appellant was not cross-examined on this.

I am of the view that the Prosecution failed to discharge the burden placed on it to prove beyond reasonable doubt that the 4^th Appellant was guilty of having in his possession stolen property. The evidence available does not support this assertion. The 4^th Appellant was able to raise a reasonable doubt to dislodge the claim that he knew or ought to have known that the phone he took from the 6^th Accused was stolen.

It is clear that the Prosecution relied as with the case of the 1^st Appellant, on circumstantial evidence regarding the 2^nd and 4^th Appellants. Circumstantial evidence was described in R. vrs Onufrejczyk [1955] 1 Q B 338 CCA as follows:

“It is often the best evidence. It is evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say it is circumstantial”

However, in State vrs. Brobbey and Nipah [1962] 2 GLR 101 at 103, the Supreme Court held as follows:

“In a case where the evidence is purely circumstantial and establishes nothing more than suspicion, the judge must draw attention to the necessity of some piece of evidence that is more than mere suspicion and which would lead to one conclusion and one conclusion only, that is the guilt of the prisoner. One cannot put a multiple of suspicions together and take proof of it. For circumstantial evidence to support a conviction, it must be inconsistent with the innocence of the accused, and must lead to the irresistible conclusion not only that the crime charged has been committed but hat it a sin fact committed by the person or persons charged and by no other person”.

See also Logan & Laverick vrs The Republic [2007-2008] SCGLR 76. So it worked for the 1^st Appellant but it does not work where the 2^nd and 4^th Appellants are concerned. Conviction based in circumstantial evidence which is not supported by facts is wrongful. I am of the opinion that the Prosecution failed to discharge the burden placed on them to prove beyond reasonable doubt that the 2^nd and 4^th Appellants were guilty. Therefore, the trial Judge erred in finding them guilty and convicting them of the charge against them. The appeal of the 2^nd and 4^th Appellants on their conviction therefore succeeds. I will accordingly acquit and discharge them.

The 3^rd Appellant was charged with having in his possession, stolen property and causing unlawful damage to the property, contrary to Sections 148 and 172 of Act 29.

After initially pleading not guilty to the charges, 3^rd Appellant pleaded with the Court and changed his plea from not guilty to guilty. The trial court accordingly convicted him on both counts and subsequently sentenced him to 10 years IHL.

As aforesaid, Counsel for the 3^rd Appellant filed a separate Notice of Appeal and written submissions on the ground that the sentence imposed on him was harsh and excessive. Counsel admits that the sentence to be imposed on a convicted person is within the discretion of the Court. He however submitted that under the circumstances of the case the sentence imposed for the offence the 3^rd Appellant was charged with was too harsh. That, although the value of the information on the laptop was unquantifiable, the value of the laptop itself was GH¢2,000.00. He also submitted that the trial Judge ought to have considered the fact that he, 3^rd Appellant, relieved the State of the cost of a full trial when he pleaded guilty. He submitted further that the 3^rd Appellant was very remorseful of his act. Furthermore, the 3^rd Appellant was a young man whose wife had just delivered a baby. He submitted that the sentence of 10 years I.H.L should be replaced with either a fine or custodial sentence.

In Dabla vrs The Republic [1980] GLR 501, the Court took into consideration the relative young ages of the accused persons and also the fact that they pleaded guilty and made no attempt to waste the time of the Court. The Court further held that the accused aided the Police to retrieve the stolen items and made reference to the fact that they were first time offenders, and therefore reduced the sentence imposed by the Court below.

The 3^rd Appellant pleaded guilty to both charges. However, the conviction under Section 148 and Act 29, as aforesaid, is a nullity. In my opinion, the charge of having possession of stolen property was not sustainable since it could not be proved beyond reasonable doubt the 3^rd Appellant knew that the laptop was stolen property. Also, he denied causing damage to the phone which is the subject matter of the offence. As much as an Appellate Court is required to be slow in disturbing the sentence imposed by a trial Court, this should be the case where the trial Judge has exercised his discretion judiciously.

The 2^nd and 4^th Appellants have been acquitted and discharged by this Court for similar charges and in similar circumstances. Consequently, I will do same for the 3^rd Appellant. I will therefore acquit and discharge the 3^rd Appellant too.

The 4^th Accused Person was convicted for the offence of having in his possession a stolen property (a dell laptop) and causing unlawful damage to the property. In his evidence, he stated that the laptop was with his paternal brother (3^rd Accused) and he asked him to give it to him to watch films. He was subsequently instructed by the 3^rd Accused/Appellant to handover the laptop to the 6^th Accused, but he could not find him to give it to him. Clearly, the Prosecution failed to prove that the 4^th Accused knew that the laptop was stolen property. He also denied causing damage to the laptop. In my opinion, the trial Judge ought not to have convicted the 4^th Accused since the charge against him as not successfully proven.

What is meant by the principle that an appeal is by way of a re-hearing is that the appellate court has the powers to either maintain the conviction and sentence, or set it aside and acquit and discharge, or increase or reduce the sentence. It is the duty of this Court to consider in its entirely, the appeal record before it, and substitute itself as the trial Court.

As aforesaid, the 4^th Accused did not appeal against this conviction and/or sentence. I have acquitted and discharged the 2^nd, 3^rd and 5^th Accused/Appellants and having satisfied myself that the 2^nd, 3^rd and 5^th Accused Persons all committed similar offences under the same circumstances, it will be fair and just to extend the benefit of the judgment to the 4^th Accused. In my opinion, it will not be fair to leave the 4^th Accused languishing in prison; I will be perpetuating substantial miscarriage of justice against him. Moreover, I have stated that the charge against the Accused Persons under Section 148 of Act 29 is a nullity. It is the duty of the appellate Court to set aside wrong decisions of law or void decision that are apparent on the Record of Appeal.

In the circumstances, I will acquit and discharge the 4^th Accused too.

In summation, the appeal by the 1^st Accused/Appellant succeeds in part; his sentence is reduced from 10 years 1HL to 4 years 1HL. The 2^nd, 3^rd, 4^th and 5^th Accused Persons are all acquitted and discharged.

SGD

BARBARA ACKAH-YENSU

(JUSTICE OF APPEAL)

ADJEI, JA:

I had the opportunity to read the draft judgement of my respected sister Ackah-Yensu JA and I agree with it. I have, however, decided to add some few words in respect of the conviction and the term of imprisonment imposed on the appellants. I will not restate the facts of the case as they have been well stated by my respected sister.

The first Accused sold the 50 inch L.G flat screen television to the second accused which was one of the properties stolen from the house of the complainant. The second accused exchanged his 43 Samsung flat screen television with the 50 inch L.G. flat screen television and was to add cash payment of three hundred and fifty Ghana Cedis. The second accused gave his 43 inch flat screen television to the first accused person and made a cash payment of three hundred Ghana Cedis and promised to pay the remaining fifty Ghana Cedis upon production of the receipt of the television. The first accused person subsequently sold the 43 inch Samsung television he partially bartered with the second accused person. The prosecution proved beyond reasonable doubt in accordance with sections 11 and 13 of the Evidence Act, 1975 (N.R.C.D. 323). Section 13(1) provides that the burden of persuasion as to the commission of a crime by a party which is directly in issue in criminal matters requires prove beyond a reasonable doubt. Where the prosecution has proved the case beyond reasonable doubt the burden of persuasion will be on the accused person to raise a reasonable doubt as to guilt of the offence.

The 50 inch television was owned by the complaint and the first accused stole and sold it to the second accused person. The main ingredients of stealing are that the accused person has dishonestly appropriated the 50 inch LG flat screen television. The first accused person was not the owner of the property. The first accused person took the said television from the Emmanuel Eledi, the complainant without his consent. I am satisfied from the evidence adduced at the trial that the first accused person sold the television to the second accused without a claim of right and without the consent of Emmanuel Eledi, the complainant. In the case of Lucien vrs. 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. The prosecution proved beyond reasonable doubt that the first accused person appropriated the television belonging Emmanuel Eledi without a claim of right and his consent. The first accused person who was required to raise a doubt to the fact that he was not the one entered into the house of Emmanuel Eledi and stole the television failed to raise a reasonable doubt as to the non-existence of the evidence adduced by the prosecution. In effect, the first accused was required by sections 11(1) and 17 of the Evidence Act to introduce sufficient evidence to satisfy the Court that he did not steal the television and his failure to discharge the statutory burden imposed on him justifies his conviction. The mere fact that the first accused said that he bought it from the sixth accused who was at large did not constitute sufficient evidence to avoid a ruling on that issue against him.

The law is that an appeal against a judgement delivered in a criminal matter shall not succeed merely on technicalities, procedural errors and defects in charge sheet where there is evidence to support the offence preferred against the against the accused. Criminal appeal succeeds in cases where the accused proves or the appellate court finds that the decision rendered in the matter is wrong or the findings of fact made is wrong or not supported by the evidence on record or there was a misapplication of law and have occasioned miscarriage of justice to the accused. An appeal against a decision rendered in criminal appeal succeeds only where it is proved or found that there was a miscarriage of justice against the accused. Section 31 of the Courts Act sums up the grounds upon criminal appeal may succeed thus:

“(1) Subject to subsection (2) , an appellate court on hearing an appeal in a criminal case shall allow the appeal if the court considers

(a) that the verdict or conviction or acquittal ought to be set aside on ground that it is unreasonable or cannot be supported having regard to the evidence, or

(b) the judgement in question ought to be set aside as a wrong decision on a question of law or fact, or

(c) that there was a miscarriage of justice and in any or her case shall dismiss the appeal."

I am satisfied that from the evidence on record, the first accused did not suffer substantial miscarriage of justice to clothe this Court with jurisdiction to disturb his conviction.

The trial High Court Judge rightly convicted the first accused person for stealing on count two and I hereby affirm the conviction in count two. The television was stolen from the house of the complainant and the reasonable inference made in accordance with law is that the first accused entered the house of the complainant and stole the television. I further affirm the conviction of the accused person in count one. I cannot therefore disturb the conviction of the accused with respect to unlawful entry contrary to section 152 of Act 29 and stealing contrary to section 124 of Act 29 in counts one and two respectively . All the ingredients of the offences of unlawful entry and stealing were proved by the prosecution beyond a reasonable doubt against the first accused and none of the grounds of appeal against his conviction will avail him.

The second accused was convicted for dishonestly receiving contrary to section 146 of Act 29. The second accused denied the fact that he knew the television to be a proceed from crime at the time he bought it. The trial High Court Judge convicted the second accused for two reasons namely; that he bought the television without a receipt from the first accused and, furthermore, he knew the first accused did not engage in television sets. The offence of dishonestly receiving was created by section 146 of Act 29. It provides thus:

"A person who dishonestly receives property which the person knows has been obtained or appropriated by a criminal offence punishable under this Chapter commits a criminal offence and is liable to the same punishment as if that person had committed that criminal offence.”

From the definition of the offence, it is apparent that the trial High Court Judge took a narrow definition of the offence which is contrary to the offence of dishonestly receiving I know under section 146 of Act 29 under which the accused was charged. The prosecution in proving a charge of dishonestly receiving is required to prove that the accused knew that the television was obtained or appropriated by criminal offence; the accused person received or bought or assisted in the disposal of the television other with the purpose of restoring it to the complainant. In the case in point, the television was found in possession of the second accused and was under his control and would be presumed to know that it was a proceed from a crime. Section 148 of Act 29 makes the presumption a rebuttable one and the accused is required to prove that he did not know that the television was obtained from proceeds of crime. The second accused adduced evidence that he bought the television in exchange of his coloured television and monetary consideration of three hundred and fifty Ghana Cedis. The prosecution did not adduce any evidence to prove that the value of the second accused television and the three hundred and fifty Ghana Cedis were not proportionate to the price of the complainant's television. In determining whether the accused person at the time of buying the television knew that the first accused had dishonestly appropriated the television, the courts take into consideration the circumstances under which the property was sold by the first accused and bought by the second accused and the price at which it was bought. Where the price at which the property was bought was disproportionately to the value of the television, the second accused will be presumed to know that the property was a stolen property. In the case of Lee v Taylor & Gill (1912) 77 J.P. 66, it was held that in proving the offence of dishonestly receiving the prosecution shall prove intent or knowledge or malice that the accused person knew that the property in question was acquired through proceeds of crime. The test which is used to determine whether the accused knew that the property was obtained from proceeds of crime is one of subjective test. The trial High Court Judge found that the second accused bought the television without a receipt and the unchallenged evidence on record was that the second accused withheld an amount of fifty thousand Ghana Cedis of the purchase price until receipt was produced by the first accused. This is a clear manifestation that the second accused did not know that the first accused stole the television from its owner and his conviction was unreasonable having regard to the evidence on record. The ground (b) of the additional grounds of appeal filed on 4th January, 2017 against the judgement of the trial High Court succeeds as I am of the considered opinion that the evidence adduced by the prosecution against the second accused failed to prove the ingredients of dishonestly receiving and the appeal against his conviction shall be allowed on grounds that it has occasioned substantial miscarriage of justice.

Another finding by the trial High Court Judge was that at the time the second accused bought the television he knew that the first accused was not a dealer in television set. I disagree with the above findings by the trial High Court Judge. I am of the considered opinion that any person who has a television can sell or gift it without necessarily being a dealer in televisions. The trial High Court Judge also failed to appreciate that most adult have television sets and they can dispose of same in a manner they desire provided it is not contrary to law. The findings by the trial High Court Judge concerning whether the first accused deals in television for the second accused to buy a television set from him would have been valid if the first accused had styled himself as a dealer in television or was selling a number of television set which only dealers in television sets would be required to sell. I am satisfied that the prosecution failed to prove that looking at the circumstances under which the second accused person bought the property he knew or ought to have known that it was a stolen property. I therefore set aside the conviction and sentence imposed on the second accused as his conviction was not made in accordance with law.

I now address the conviction of the fifth accused person. The first, second and third appellants in their additional grounds (b) of the notice of appeal filed on 4th January, 2017 provided that the trial High Court Judge wrongly convicted the appellants on evidence which failed to establish the ingredients of the various offences. The police conducted a search in the room of the fifth accused and found a dismantled I-phone and he told the police that it was the sixth accused who gave it to him to flash to remove all the data stored on it and in the course of flashing the stored information the phone ceased to work. The fifth accused in his evidence offered explanation to the charges of having stolen property in his custody contrary to section 148 of Act 29 and causing unlawful damage contrary to section 172 of Act 29. The legal effect of a charge brought under section 148 of Act 29 will be discussed in the course of this appeal. He explained that he had a similar phone and when the sixth accused could not operate his he brought it to him to flash out the information he had stored on it. In the course of flashing the stored information power went off and the phone ceased to work. The following questions and answers cropped up during the cross examination of the fifth accused person who was self-represented at the trial court:

"Question: So he does not sell phones?

Answer:  Yes, she does not. She does not repair phones.

Question: So you want to say that a stranger comes to you to repair his phone for him and you accept to do it.

Question: When A6 came to me he said he had information that I have a similar phone so I should know how it operates."

The prosecution failed to cross examine the fifth accused on this vital information and the trial High Court Judge should have considered the explanation and come to the conclusion that it constitutes a valid defence to a charge of dishonestly receiving of property. It is trite law that an appeal is by way of rehearing and I have reheard the defence put up by the fifth accused and I am satisfied that it raised sufficient doubt to the fact that the fifth accused did not know that the I-phone was a stolen property. Concerning the damage caused to the I-Phone, the fifth accused explained that it was the sixth accused who forcibly opened and caused damage to it after the fifth accused had told him that the phone had ceased to work. The fifth accused was not cross examined on the issue that it was the sixth accused who forcibly opened and caused damage to the I-phone and not the fifth accused. Paragraph (c) clause (2) of article 19 of the Constitution provides that an accused person charged before a court is presumed to be innocent until his guilt is proved or pleaded guilty. The evidence adduced on record does not suggest that the accused was guilty of causing damage to property and to some extent dishonestly receiving but the trial judge did not consider the sufficient evidence adduced by him and his witness to avoid the ruling on the non-existence of the fact that he knew the property to be a stolen one against him. The trial High Court Judge should have resolved the issue of damage caused to the I -phone in favour of fifth accused as his explanation was reasonable to raise doubt to the non-existence of the charge preferred against him but failed to do and rather ruled against him. I set aside the fifth accused's conviction on both counts of offence of having in his possession a stolen property and causing unlawful damage to property and acquit and discharge him on both counts.

The fourth accused was convicted for the offence of having stolen property in his possession and causing unlawful damage to property. In his evidence he stated that the laptop was in the custody of the third accused who is his paternal brother and he asked him to give it to him to watch films which he acceded to it. He was subsequently instructed by the third accused to handover the property to the sixth accused but did not see him. I find as a fact that the trial High Court Judge failed to consider his evidence which proves that he did not know that the property was a stolen property. He further denied causing damage to the laptop which was the subject matter of his offence. From the evidence on record, the trial High Court Judge should have acquitted the fourth accused but convicted him. The fourth accused did not appeal against his conviction and sentence. As a court of law, even though the fourth accused did not appeal against conviction but was apparent that he ought to have been acquitted and discharged by the trial High Court but was convicted, I am duty bound to ensure that a party whose case is before me does not suffer substantial miscarriage of justice and having come to that conclusion I am under legal duty to acquit and discharge the fourth accused. An appellate court is duty bound to set aside wrong decision of law or void decision irrespective of how it comes to its notice and in what form or shape.

The trial High Court Judge in the exercise of his discretionary powers in imposing appropriate sentence, took into consideration prejudicial matters when he held that the fourth accused was under investigation in a criminal matter before the police. It was an extraneous matter which a judge is precluded from commenting on it as it is not one of the matters which are taken into consideration by a court in imposing appropriate sentence. An accused person is presumed to be innocent until his guilt is proved or pleaded guilty but the judge was influenced by a case under investigation against him and used it as an aggravating factor to punish the fourth accused.

The sentences imposed on the accused persons were disproportionate to the nature of the offences committed by them. The trial High Court Judge convicted the second, third, fourth and fifth accused persons for the offence of having in possession of stolen property and were convicted and sentenced to ten years each. Possession of stolen property under which the above mentioned accused persons were convicted and sentenced to ten years each was wrong in law as it is not an offence on its own and the section does not prescribe any punishment. Section 148 of Act 29 provides thus:

“(1) Where a person charged with dishonestly receiving is proved to have had in possession or under control, anything which is reasonably suspected to have been stolen or unlawful obtained, and that person does not give an account, to the satisfaction of the Court, as to the possession or control, the court may presume that the thing has been stolen or unlawfully obtained, and that person may be convicted of dishonestly receiving in the absence of evidence to the contrary.

(2) The possession or control of a carrier, an subsection (1), possession or control of the person who employed the carrier, agent or servant, and that person is liable accordingly."

Section 148 of Act 29 is not an offence creating provision and does not also prescribe the nature of the offence, that is, a felony or misdemeanor and the sentence that may be imposed on a person who acts contrary to it. Section 148 becomes relevant where a person is charged with dishonestly receiving of property under section 146 of Act 29 and it is proved that the person has in his possession or under control anything which is reasonably suspected to have been stolen or unlawfully obtained, the accused person would be presumed that the property was stolen or unlawfully obtained and may be convicted for the offence of dishonestly receiving unless he gives a satisfactory account to establish that he did not know it to be a stolen property or was unlawfully obtained.

The conviction under section 148 is a nullity as it is not an offence under which a person may be tried and convicted. The third accused also pleaded guilty to count five and was sentenced to ten years. Count five is having in possession of a stolen property contrary to section 148 of Act 29. The trial High Court judge convicted the accused persons apart from the first accused for having in possession of stolen property and the convictions are hereby declared void including the third accused who pleaded guilty to the charge. The second, third, fourth and fifth accused persons who were convicted under section 148 of Act 29 are hereby acquitted and discharged whether the person appealed against it or not. A superior court is duty bound to set aside any void orders made by a lower court in the proceedings before it in the exercise of its appellate jurisdiction and it is immaterial whether an appeal was lodged against it or not.

The second, third, fourth and fifth accused persons are hereby acquitted and discharged on all the counts preferred against them and which they were convicted. The sentence of ten years imposed against the accused person in respect of grounds one and two. I hereby set aside and I substitute four years with effect from 2^nd December, 2015 when he was convicted by the trial High Court.

SGD

DENNIS D. ADJEI

(JUSTICE OF APPEAL)

SGD

Lovelace-Johnson, (JA)   I also agree                 AVRIL LOVELACE-JOHNSON

                                                                        (JUSTICE OF APPEAL)