DOMAKYAAREH (MRS), J. A.

1. This appeal is against the judgment of the High Court, Sunyani dated 21^st June 2016. The facts of the case are straight forward and follow the pattern of certain shortcomings in the Cocoa Industry. The appellant was charged with two offences, namely, Falsification of Accounts contrary to S. 140(1)

(a) of the Criminal Offences Act, 1960 (Act 29) and Stealing contrary to S. 124(1) of the same Act.

2. The facts presented to the High Court are that, the appellant was the District Manager of Olam Ghana Ltd at Sankore and that during the 2012/2013 Cocoa Season, he was given an amount of GH⊄1,810,480.00 by the Company to purchase 8,540 bags of cocoa beans. On January 24, 2013, the appellant per his Warehouse Ledger Book, reported to the Zonal Head that he had bought 8,393 bags of cocoa beans out of which he had sent 7,293 bags to Tema Port leaving a balance of 736 bags in his Warehouse and that the remaining bags would be ready within two weeks. [My own calculation shows that 7,293 out of 8,393 leaves a balance of 1,100 and not 736 as stated in the facts]. Upon a routine check at his Warehouse by the Zonal Head, not a single bag was found in the Warehouse. The appellant was confronted with this state of affairs and he explained that his Clerks were yet to provide the outstanding bags. His Depot Keeper was also confronted as to why the figures in the Ledger Book read they had 736 bags in the Warehouse when there was actually nothing in the Warehouse. The Depot Keeper stated that it was the appellant who asked him to put those figures in the Books. When an audit was conducted, it was revealed that there was a shortage of 736 bags of cocoa beans equivalent to Gh⊄145,432.00. The appellant was given the opportunity to make the 736 bags available by the end of May 2013 but he failed to do so and he also failed to refund the equivalent amount of the money involved. A report was therefore made to the Police and the appellant was arrested and after investigations, subsequently charged with the offences as stated supra. The appellant pleaded “not guilty” to the Charges. He was however found guilty at the end of a full trial and sentenced to three (3) years Imprisonment with Hard Labour (IHL) on each of the two counts. The sentences were to run consecutively.

3. Dissatisfied with the Conviction and Sentence, the appellant filed a Notice of Appeal to this Court on 23^rd June, 2013 with the following stated grounds, namely:

i) That the conviction and sentence are wrong in law

ii) That the evidence on record cannot support the conviction on the offence of Stealing and Falsification of Accounts

iii) That additional grounds of appeal shall be filed upon receipt of the certified true copy of the proceedings

The appellant did not file any additional grounds of appeal.

The relief the appellant is seeking from this Court is to set aside the Conviction and or Sentence or alternatively to reduce the Sentence.

4. It is trite learning that every appeal is by way of rehearing. We shall do exactly that.

Ground (1) That the conviction and sentence are wrong in law.

The appellant’s submission is that the prosecution woefully failed to discharge its legal or statutory obligation to prove the guilt of the appellant beyond reasonable doubt as mandated by Sections 11(2) and 13(1) of the Evidence Act 1975, (NRCD 323). The said sections provide as follows: -

Section 11—Burden of Producing Evidence Defined.

“(2) In a criminal action the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt.”

Section 13—Proof of Crime.

“(1) In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.”

5. Counsel’s position that the Prosecution failed to meet this mandatory standard of proof is based on his analysis of the ingredients of the respective offences of Falsification of Accounts and Stealing and his conclusion that based on the evidence on record, all the required standards were not established.

What then are the ingredients of Falsification of Accounts? The ingredients can be found in Section 140 of Act 29/60 which defines Falsification of Accounts in these terms:

“Whoever, being a clerk or servant or public officer, and whoever, being an officer of any partnership, company, or corporation, does any of the acts hereinafter mentioned, with intent to cause or enable any person to be defrauded, or with the intention to commit or to facilitate the commission, by himself or by any other person, of any crime, that is to say -

(a) Conceals, injures, alters or falsifies any books, papers or account kept by or belonging or entrusted to his employers or to such partnership, company, or corporation; or entrusted to him, or to which he has access, as such clerk, servant, or officer, or omits to make a full and true entry in any account of anything which he is bound to enter therein; or

(b) Publishes any account, statement or prospectus relating to the affairs of such partnership, company or corporation, which he knows to be false in any material particular, shall be guilty of second degree felony”.

The essential ingredients are: -

The accused must be a clerk, servant, public officer, an officer of a Partnership, Company or Corporation;

The accused must have concealed, injured, altered or falsified books, papers or accounts relating to his work;

The accused must have known that the information is false

The intention of the accused is to defraud or to commit or facilitate the commission of a crime by himself or any other person.

6. From the above definition, there is evidence that the appellant was an employee of Olam Ghana Ltd a fact he himself never denied. Therefore, he was an officer of the Company. There is also evidence on record, which the appellant never denied that he had caused to be entered in the Ledger Book that he had 736 bags of cocoa beans in his Warehouse whereas in fact there was nothing. The appellant never denied that when PW1, William Larbi Addo the Zonal Manager came to his Warehouse for verification he had no single bag of cocoa beans there. He changed his story to say the cocoa beans were with some Purchasing Clerks who were to deliver same to the Warehouse. The evidence on record showed that there were no outstanding cocoa bags with the Purchasing Clerks. The appellant could also not debunk and neither did he deny the evidence of PW2 Victus Boamah the Warehouse Keeper, that it was he the appellant who instructed him to make the false entries in the Ledger Book. (see pages 24 -25 of ROA). The appellant made false entries in the Weekly Outstanding Reports (WOR) and instructed the Warehouse Keeper to enter the same false entries in the Ledger Book.

The evidence on record shows that the appellant knew that the information he was entering on the records or caused to be entered in the Ledger Book was false. The logical inference is that he did that with intent to facilitate the commission of a crime.

7. Appellant’s counsel went to great lengths to define what auditing is all about. He quoted from Expert Authors on the subject and the Companies Act 1963 (Act 179) and submitted that no proper auditing was done and therefore its findings could not anchor charges against the appellant. All those submissions are of no moment in the face of the admission by the appellant that the findings against him that the stark discrepancy between his Returns and the facts on the ground at the Warehouse were correct. We find therefore that the essential ingredients of the offence of Falsification of Accounts were proved beyond reasonable doubt.

8. At page 3 of the Written Submission of Counsel for the appellant, he makes the

statement that in meeting the required standard of proof in criminal cases, that is, proof beyond reasonable doubt, the Prosecution’s evidence must not raise any doubt as to the commission of the crime. This is a misapprehension of the law in that the requirement is proof beyond a reasonable doubt and not proof beyond a shadow of doubt.

In the celebrated case of MILLER V MINISTER OF PENSIONS [1947] 2 ALL ER 372 at 373, The applicant’s husband served in the army from 1915 until his death in 1944. He served in the Middle East from 1940 until 1944, when he became hoarse and found difficulty in eating. He reported sick and his disease was diagnosed as cancer of the gullet. He died within a month of reporting sick. The tribunal rejected the applicant’s claim for the higher pension granted to widows of soldiers whose death was due to war service. The question on appeal was whether they erred in point of law in so doing. The first point considered in the appeal was whether the tribunal properly directed itself as to the burden of proof. Denning J (as he then was) in dismissing the appeal, stated it is as follows at page 373.

“1. In cases falling under art 4(2) and art 4(3) of the Royal Warrant Concerning Retired Pay, Pensions, etc., 1943 … there is a compelling presumption in the man’s favour which must prevail unless the evidence proves beyond reasonable doubt that the disease was not attributable to or aggravated by war service, and for that purpose the evidence must reach the same degree of cogency as is required in a criminal case before an accused person is found guilty. That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable,” the case is proved beyond reasonable doubt, but nothing short of that will suffice.”

For the offence of Stealing, the ingredients can be found in the definition of the offence under Section 124(1) and 125 of Act 29/60. The said provisions are quoted verbatim thus:

S. 124(1) “Whoever steals shall be guilt of a second degree felony”

S. 125 “A person steals if he dishonestly appropriates a thing of which he is not the owner”.

Four essential elements can be distilled from these provisions:

i) That a thing has been appropriated

ii) That the thing was appropriated by the person charged

iii) That the person charged is not the owner of the thing he appropriated.

iv) That the appropriation was dishonest

Also see the case of BROBBEY & OTHERS V THE REPUBLIC (1982-1983) GLR 608 where these same elements were itemized.

10. Counsel for the appellant submits that since in his opinion he has demonstrated that the appellant did not falsify the Accounts of the Company, he cannot be said to have dishonestly appropriated a thing that did not belong to him and therefore he could not be charged with Stealing. We have already found that there is ample and cogent evidence on record to sustain the charge and conviction for Falsification of Accounts.

The acts of the appellant in not supplying all the cocoa beans and having to falsify the Ledger Book amount to dishonest appropriation of the cocoa beans that belonged to his employer. From the evidence on record the appellant requested for time to bring the outstanding cocoa beans or refund the equivalent in cash. His employer graciously accorded him that opportunity but he failed to do so. This can only reinforce his dishonest appropriation of his employer’s cocoa beans. We find that the ingredients of stealing were proved against the appellant beyond reasonable doubt.

11. The second tier of ground 1 of the appeal is that the sentence was also wrong in law. Counsel submitted that by failing to comply with S. 302 of Act 30, the trial judge erred in sentencing the appellant to 3 years IHL on both counts to run consecutively. The said S. 302 of Act 30 provides in the relevant part as follows:

“With respect to cases where an act constitutes several crimes or where several acts are done in execution of one criminal purpose, the following provisions shall have effect -

a) Where a person does several acts against or in respect of one person or thing, each of which acts is a crime, but the whole of which acts are done in execution of the same design, and, in the opinion of the Court before which the person is tried, form one continuous transaction, the person may be punished for the whole of such acts as one crime, or for any one or several of such acts as one crime, and all the acts may be taken into consideration in awarding punishment, but he shall not be liable to separate punishments as for several crimes; …”

12. Counsel conceded that sentences are generally deemed by law to be consecutive unless otherwise directed by the court. This is per the directive in Section 301 of the Criminal Procedure Act, 1960 (Act 30) He however submitted that in the case of several acts, where each of which may amount to an offence, if the several acts were done in execution of one grand design as in the instant case, and the person is charged with the several acts and convicted on them, the sentence for each act must run concurrently with the others emanating from that one grand design. This is the import of S. 302(a) of Act 30/60 and exemplified in decided cases such as TETTEH ASAMEDEY @ OSAGYEFO & ANOTHER V COP (1963) 2 GLR 400 and ADJEI V THE REPUBLIC (1977) 1 GLR 156.

In the TETTEH ASAMEDEY case, the appellants posing as public officers arrested one Salifu Dagomba for the offence of assault. They demanded £G2 from him in order to drop the charge. Two days later, the appellants arrested another person, one Robert Abadzi, for possessing Indian hemp and demanded £G5 in order to drop the charge. They were arrested and charged with (i) pretending to be public officers and (ii) defrauding by false pretences on the complaint of Salifu Dagomba. They were charged with the same offences on the complaint of Robert Abadzi. They pleaded guilty to each offence in the two cases and were sentenced to six months imprisonment in respect of each offence, in the two cases, the sentences to run consecutively.

On appeal against sentence it was held per holding (2) thus: -

“(2) Where a person does several acts, each of which is an offence and the several acts were done in the execution of one grand design, the prosecution may elect either (i) to charge the person with only one offence, in which case, on conviction, the court is entitled to take into consideration the rest of the acts in passing sentence, or (ii) to charge the person with the several acts, in such case if the person is convicted the sentence for each act must run concurrently with the others emanating from the one grand design .In this case though the appellants committed several offences, they were all committed out of one design.”

In the ADJEI case, the appellant entered the premises of the complainant with intent to steal. Whilst in the process of packing the stolen articles inside the premises, the appellant was confronted by the complainant who raised an alarm. Consequently, the appellant attacked and stabbed the complainant but he was arrested with the help of some other persons. He was therefore charged with three offences: (a) unlawful entry, (b) causing harm and (c) stealing contrary to sections 152, 69 and 124 of the Criminal Code, 1960 (Act 29), respectively. He was convicted of the charges on his own plea of guilty and he was sentenced by the trial judge to various terms of imprisonment. The trial judge ordered the sentences to run consecutively.

It was held on application for review of the sentence that: -

“(1) on the facts, it was mandatory on the trial circuit judge (under the provisions of sections 302 (a) and 303 of Act 30 to order the sentences to run concurrently and not consecutively as erroneously ordered.”

The Court went on further to say that since the attention of the trial Judge was not drawn to sections 302 (a) and 303 of Act 30, his decision dismissing the appeal against the sentences and confirming in effect that the sentences should be consecutive was given per incuriam and therefore void.

Consequently, the court, acting under its inherent powers, would correct the earlier void order and in lieu thereof, order that all the sentences should run concurrently in compliance with sections 302 (a) and 303 of Act 30

13. Relying on the cases of ADOMAKO V THE REPUBLIC (1984 - 86) 2 GLR 766, and

COMMODORE @ KAYAA V THE REPUBLIC (1976) 2 GLR 471 as well as Section 302 and 303 of Act 30/60, which prescribe how a convict is to serve his sentence, Counsel for the respondent was gracious enough to concede the submissions of Counsel for the appellant relating to the appeal against sentence.

In the ADOMAKO case, the appellant was arraigned before the District Court charged on two counts of unlawful entry and stealing contrary to sections 154 and 124 of the Criminal Code, 1960 (Act 29), respectively. When the appellant pleaded guilty to both charges, the trial magistrate convicted him and sentenced him to twelve months' imprisonment with hard labour on count one and 24 months' imprisonment with hard labour on count two, sentences to run consecutively.

In allowing the appeal against sentence, the court held thus:

“The cumulative effect of both sections 302 (a) and 303 of the Criminal Procedure Code 1960 (Act 30), is that when acts of an accused person are done in execution of the same design and that they form one continuous transaction, then the court should make any sentences imposed on the accused to run concurrently and not consecutively. In fact section 303 of Act 30 makes it mandatory.”

In the COMMODORE case, the appellant was arraigned before the Circuit Court, Accra, on two charges of (a) conspiracy to commit robbery and (b) dishonestly receiving part of the proceeds of the robbery. The prosecution alleged that the acts supporting the two charges were acts done in execution of the same criminal design or purpose and formed one continuous transaction. The appellant was given consecutive sentences of five years in respect of the conspiracy charge and ten years for the receiving charge. On appeal against the convictions and sentences, the Court per Taylor J (as he then was) in allowing the appeal held at holding 1 thus: -

“(1) since the alleged acts supporting the two charges were acts done in the execution of the same criminal design or purpose and formed one continuous transaction, the combined effect of sections 302

(a) and 303 of Act 30 required that the sentences should run concurrently and not consecutively as erroneously ordered by the trial judge.”

14. Counsel also submitted that since the ROA shows that the appellant’s act of falsification of accounts led to the stealing of the amount involved, it was wrong for the appellant to be ordered to serve the sentences consecutively. We agree with the submissions of both Counsel on this point.

The offences of Falsification of Accounts and Stealing are all second degree felonies. S. 296(2) of Act 30/60 provides that “where a crime, not being a crime mentioned in sub-section 5, is declared by any enactment to be a second degree felony and the punishment for the crime is not specified, a person convicted thereof shall be liable to imprisonment for a term not exceeding ten years”.

Sub-section 5 mentions offences such as stealing, fraudulent breach of trust, defrauding by false pretences, fraud as to weights and measures, falsification of accounts and indicated that in such cases the sentence is not to exceed 25 years.

It can therefore be seen that because the instant case involves Falsification of Accounts and Stealing, the trial judge could have legally imposed a sentence of up to twenty-five years. However, in the exercise of his discretion which the Law allows him to use when sentencing convicts, he imposed three years IHL on each count. We do not find any reasons as stated in the cases of BALLMOOS V MENSAH [1984-1986] 1 GLR 724 CA, CRENTSIL V CRENTSIL (1962) 2 GLR 171 SC and SAPPOR

V WIGATAP LTD [2007-2008] 1 SCGLR 676 to disturb the length of the sentence save for the manner in which the sentences are to be served. The reasons why an appellate court can interfere with the exercise of the discretionary jurisdiction of a trial judge were stated therein cumulatively as where:

the court below applied wrong principles;

the court gave weight to irrelevant or unproved matters;

the court failed/omitted to take relevant matters into account;

the conclusions reached would work manifest injustice

the discretion was exercised on wrong or inadequate material

the conclusions reached are arbitrary, capricious and uninformed.

Ground 1 of the grounds of appeal is therefore partially dismissed on the conviction and partially allowed on the sentence.

15. Ground (ii)

The evidence on record cannot support the conviction on the offence of falsification of accounts and stealing

Counsel for the appellant repeated his arguments/submission that the prosecution could not prove the ingredients of the two offences beyond reasonable doubt against his client and that for failing to adhere to Section 302 of Act 30/60, the entire judgment to a larger extent was wrong in law and a nullity. In the light of the analysis and conclusions by this court on ground (i) of the grounds of appeal, this ground (ii) has become moot/otiose. There is sufficient evidence on record to ground the convictions on both counts. However, the learned trial judge erred in sentencing the appellant to consecutive sentences.

16. Accordingly, this court upholds the conviction on both charges and sets aside the sentence of three (3) years IHL to run consecutively. We substitute a sentence of three (3) years IHL on each of the two counts with the sentences to run concurrently.

Angelina M. Domakyaareh (Mrs)

(JUSTICE OF APPEAL)

E. K. Ayebi, JA           I agree                E. K. Ayebi

                                                                 (JUSTICE OF APPEAL)

G. Torkornoo (Mrs), JA          I agree                  G. Torkornoo (Mrs)

                                                                           (JUSTICE OF APPEAL)