AARON KWESI KAITOO vs THE REPUBLIC
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2018
AARON KWESI KAITOO -(Appellant)
THE REPUBLIC - (Respondent)

DATE:  26 TH APRIL, 2018
SUIT NO:  H2/25/2017
JUDGES:  MARIAMA OWUSU J.A. (PRESIDING), DENNIS ADJEI J. A., GERTRUDE TORKORNOO J. A.
LAWYERS:  COUNSEL FOR THE APPELLANT: - ROBERT D. ALLOTEY
COUNSEL FOR THE REPUBLIC/RESPONDENT: - AMELEY AGYEMANG (SSA)
JUDGMENT

TORKORNOO, J. A:

 Sections 173 and 174 (1) of the Criminal and other Offences (Procedure) Act 1960, Act 30, provide that

173. Acquittal of accused when no case to answer

where 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 the accused to make a defence, the court shall, as to that particular charge, acquit the accused.’

 

Section 174 the defence

(1) At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused sufficiently to require the accused to make a defence, the court shall call on the accused to make the defence and shall remind the accused of the charge and inform the accused of the right of the accused to give evidence personally on oath or to make a statement.

 

Section 1 (1) of the Anti-Money Laundering Act, 2008 Act 749 also provides:

A person commits the offence of money laundering if that person knows or ought to have known that the property is or forms part of the proceeds of unlawful activity and the person:

converts, conceals, disguises or transfers the property;

conceals or disguises the unlawful origin of the property; or Acquires, uses or takes possession of the property

 

The Appellant in this suit was the General Manager for Finance and Administration of the complainant company – Mechanical Lloyd Ltd. He was charged with 58 counts of stealing contrary to Section 124 (1) of the Criminal Offences Act 1969 Act 29 from acts he was alleged to have done during the execution of his duties as General Manager. He was also charged with 4 counts of money laundering contrary to section 1(1) of the Anti-Money Laundering Act, 2008 Act 749. The charges in counts 59 to 62 stated that he knowingly converted the proceeds of unlawful activity into properties including Smayak Hotel with its furnishings, situated at Gomoa Ankamu, Smayak Mining and Construction Limited with all its furnishings, situated at plot 801 Tantra Hill, Achimota; House no 114 Ayigbe Town New Weija, and various tracks of land at New Bortianor and Manhean Ga District. He was alleged to have committed the acts of stealing between 13th February 2007 and 30th September 2011 and the acts of money laundering between the years 2005 and 2012.

 

After the taking of evidence in support of these 62 counts of criminal offences, the court did not acquit the Appellant under Section 173 for insufficiency of evidence.

 

Counsels addressed the court on whether the Appellant should be called on to open his defence. After extensive arguments, the trial judge ruled that a case had been sufficiently made out against the Appellant and so he should open his defence. The Appellant disagreed, hence this appeal on the following grounds:

 

Grounds of appeal

The trial judge erred in law when she invited the Accused/Appellant to open his defence when no case was established by the prosecution against him.

The trial judge erred by failing to address the charges in accordance with each count.

The trial judge erred by failing to ascertain whether the essential ingredients of the offences had been established against the accused person or not in each charge.

The trial judge erred and misapplied the decision in the case of Atsu Charan Kole vrs The Republic (Unreported suit No. H2/5/2008 5th June, 2008 CA) to the present case.

The trial judge erred by misapplying the decision in the case of Tsatsu Tsikata vrs The Republic [2004] SCGLR 1068 SC.

The trial judge erred by introducing evidence not led by the Prosecution.

The trial judge erred by admitting and relying on Exhibit C and D.

 

In his submissions on appeal, the Appellant has urged that on an evaluation of each count of offence, the prosecution was required to prove regarding the offence of stealing, that:

He appropriated the sum stated in every charge

He dishonestly appropriated that sum stated in the charge

 

That the dishonestly appropriated sums alleged in each particular charge belong to Mechanical Lloyd.

Appellant counsel insists that the prosecution failed to prove the essential elements of stealing the sums alleged under every count of stealing and on every count of money laundering, the prosecution failed to prove essential elements of the alleged offence of money laundering. He detailed out each charge and urged that regarding the offence of stealing, it was the duty of the prosecution to prove the three essential ingredients of stealing set out above.

 

It was his position that when each of the charges is examined in the light of the evidence presented by the prosecution, they had failed to prove the charge. Thus the court was duty bound to do that detailed evaluation and discharge the Appellant on every charge.

 

The duty of this court is to determine the sustainability of the appeal on the various grounds set out. While ground (a) complains that no case was established by the prosecution against the Appellant, the ruling of the learned trial judge provided reasons for her holding that a prima facie case had been made out with regard to the charges of stealing which called for the Appellant to articulate a defence. Her first reason was that while Appellant counsel focused his review of the evidence on that given by PW5, Eric Nipa who gave evidence on the forensic audit conducted by Price Water House Coopers in support of the alleged stealing, there were 8 witnesses who testified on behalf of the prosecution. Their testimonies had not been challenged or discredited.

 

Further, the evidence of PW5 included several documents that had been tendered unchallenged with regard to validity. And these documents included copious numbers of pay in slips showing that the accused had issued and paid his personal cheques into the company’s accounts in respect of the alleged dishonest appropriation the Appellant is standing trial for. Her conclusion was that the accused’s failure to deny these cheques or challenge the fact of their issue compels an explanation. He ought to testify to explain the circumstances under which he issued and deposited cheques in favour of the complainant company and how they came to match, or top up or were split into transactions as the prosecution had put across in their case.

 

The court also drew attention to exhibits C and D tendered in support of the prosecution’s case. Exhibit C is an admission of liability for $300,000 dishonestly appropriated by the Appellant from the complainant’s money that he was appointed to administer. Her conclusion is that the weight to be given to this document would have to be determined from further evidence to be adduced by the accused. Again, she found prima facie evidence of dishonest appropriation of the complainant’s money by the Appellant from questions his counsel put to witnesses, in particular PW1that the state of the company’s accounts was partly due to the complicity of management in the suppressing of income by the Appellant in order to reduce the company’s tax liability. The position of the trial high court is that the countering of this evidence will have to be dealt with by evidence in defence.

 

She considered arguments offered by Appellant counsel on issues relating to accounting standards, and the application of the audi alterem partem rule when it comes to opportunity given to Appellant to respond to the charges. She also mentioned Appellant counsel’s arguments on contradictions and variations in the sums given by witnesses. Her view was that these matters relate to the overall weight to be given to the evidence of the prosecution witnesses but cannot point to evidence that is so manifestly unreliable that no reasonable tribunal can convict thereon. She did not find the contradictions material enough to shipwreck the prosecution’s case to the extent that it can be said that no prima facie case had been established, particularly in the light of such volumes of documentary evidence as submitted in the prosecution’s case.

 

Regarding the charges on money laundering, she drew attention to life style evidence offered by the prosecution of the accused living above his means which had been challenged in cross examination with counter questions on the Appellant having other sources of income. This position had to be explained in direct testimony especially because a prima facie case of stealing from his employers had been established.

 

We agree with the learned trial judge regarding her evaluation of the above as constituting sufficient and prima facie reason to enable the calling on the Appellant to open his defence. We do so in the light of the records before us, and the legal principles regarding the operation of Section 173 and 174 (1) of Act 29.

 

What is this making out of a case sufficiently to enable a call on the accused to open their defence provided for under Section 173 and 174 (1) of Act 29? Does it require the prosecution to establish its case beyond reasonable doubt or the standard is lower? This is a matter that has exercised the attention of the courts considerably over the years, whether in the context of summary or jury trials.

 

In Tsatsu Tsikata v The Republic 2003 – 2004 SCGLR 1068, the Supreme Court stated clear directions on the issue. In the majority decision read by Prof Modibo Ocran JSC the court from page 1092 said regarding the demand to arrive at a threshold of finding the guilt of the accused proved beyond reasonable doubt that it would ‘take this opportunity to consider it at some length and to restate the law as we understand it’.

 

It did so, considering academic texts and various significant cases which dealt with the duty of the court at the end of the prosecution’s case both in summary and jury trials. These include cases that have been cited by counsels in the submissions before us such as Apaloo & Others v The Republic 1975 1 GLR 156 where the then Chief Justice Azu Crabbe had earlier ‘restated the tests for making a submission of no case’ in these words on page 175

this court now considers it necessary to re-state the tests for making a submission of no case. The circumstances in which a submission of no case may successfully be made are: (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…’

 

The Supreme Court in the Tsikata case asserted on pages 1095 to 1096 that ‘if the submission of no case is made just at the close of the prosecution’s case and cross-examination of its witnesses, how could one seriously speak of proof beyond reasonable doubt when the defence has not had a full chance of punching holes in the prosecution’s case to possibly raise reasonable doubt in the minds of the trier of facts, by calling its own witnesses and presenting the counsel’s address? It seems as if we have to look for a lower standard of proof at this preliminary stage in the criminal proceedings’.

 

Its restatement of the law found on page 1097 to 1098 was that:

In the Ghanaian context of a trial without a jury, such as the case presently before us, what all of this exposition amounts to is that the trial judge, as the determiner of the law and the trier of facts, will have to apply different levels of proof depending on whether he or she is pronouncing on a motion for submission of no case, or a substantive verdict of guilty. It does appear to us that on a submission of no case, the judge’s function is essentially to determine whether there is a genuine case for trial. The inquiry has to focus on the threshold question whether the evidence presents a sufficient disagreement to require submission for a full trial, or whether it is so one-sided that one party must prevail as a matter of law. Put another way, the inquiry is whether there are any genuine factual issues that can properly be resolved only by a finder of fact because they may reasonably be resolved in favour of either party. We therefore hold that where reasonable minds could differ as to the import of the evidence presented in a motion for submission of no case, that motion should not be upheld. If on the other hand, there can be but one and only one reasonable conclusion favouring the moving party, even assuming the truth of all that he prosecution has to say, the judge must grant the motion. Where the submission is rejected and the case goes to trial, it is then that the judge or jury as appropriate, being the trier of facts, is called upon to determine whether or not the guilt of the accused has been proved beyond reasonable doubt(emphasis ours).

 

The direction from the Supreme Court from this summation is that the time the prosecution concludes the presentation of the evidence of the State, is not the time to analyze the various ingredients of the offence and determine whether evidence has been tendered to prove them beyond reasonable doubt. The threshold for guilt, being proof beyond reasonable doubt, must be the subject of the court’s evaluation only at the end of the suit and at the time for writing a judgment.

 

The duty of the court at the end of the prosecution’s case is to determine and act on the import of the evidence, not its positive weight. The relevant question is - is the evidence preferred by the prosecution insufficient to ground the finding of the offence? Or is it of such quality that the court finds the essential elements of the offence as presented? The court has to be satisfied that the evidence presented is of such a quality that inter alia, the essential elements of the alleged offence are not missing from the evidence. This does not however call for a pronunciation on whether the prosecution has proved its case beyond reasonable doubt. If the essential elements of appropriation, dishonest intention to appropriate and ownership in another (in this case) were missing, then the accused must as a matter of fact, prevail in submitting that no case has been made out against him. In this appellate judgment, we like the High Court, find evidence of these elements present in all the strands of evidence evaluated by the learned trial judge.

 

The Appellant counsel presents that the court ought to have examined each count, evaluated whether a case has been sufficiently made out with regard to each count, and acquitted the Appellant with regard to each count that had not been sufficiently made out. It was his case that had this been done, the court would have to discharge the Appellant on all the counts because none of the essential elements in any of the counts had been established.

 

We have already indicated that we are satisfied that the prosecution has made out a case sufficient for the court not to be compelled to discharge the Appellant on any of the charges before the court.

 

From the evidence submitted to the court, the Appellant is alleged to have committed the various offences of stealing in three modes. Prosecution witnesses Terence Darko (PW1), Frederic Adongo Mahama (PW2), Kalysta Darko O’Kel (PW3), and Eric Nana Nipah (PW5) gave substantial testimony regarding the various models of stealing money that Appellant is alleged to have indulged in.

 

All the $1.3million alleged to have been identified as stolen were taken in a manner that mirrored 42 sets of payments received by the complainant company from its supplier Ford Motors. The mirroring was done through matching, splitting and topping up payments credited to customers. These sums from Ford Motors were payments for services rendered by the complainant such as providing warranty services to vehicles supplied by Ford Motors. According to the witnesses, when Ford Motors made any of those payments, the Appellant was alleged to credit other customers with a sum equaling that Ford payment through one or more of the accounting streams of the company. So while a Ford payment appeared in the bank statement, the company’s accounting record streams showed payment from one or more customers.

 

With the Ford credit then placed against the customer’s records, equal payments actually received from that customer and others for their indebtedness to the complainant company were spirited out of the company by the Appellant. These customers would have been correctly credited with real payments through the accounting streams of the company’s books, though the physical benefit of their credits would have been withheld from the complainant and diverted to the Appellant, and the book location of their credit presented in the same quantum and on the same dates as the Ford payment made through the bank. So because of the mirroring, instead of there existing separate payments by Ford and those customers, the company ended up with the benefit of only the Ford payments, and a deficit from credit given to customers whose money did not enter the actual financies of the company.

 

In this model of stealing, the prosecution witnesses testified that after this false crediting exercise, cars were imported for certain companies such as a customer called Mawuns Agency. On arrival, these cars, though recorded as having been paid for by the Mawuns credits, were transferred to Smayak, a company owned by the Appellant. They testified that for the credits to be given to these companies though their actual payments had been taken from the company, journal vouchers were inappropriately prepared, passed and signed by the Appellant himself. This is how both the stealing and money laundering were done in some of these cases.

 

The prosecution witnesses testified that the Appellant’s ability to do so arose from the fact that he had access to cash paid by customers of Mechanical Lloyd who were paying for their vehicles or spare parts in installments. He gained access to this cash through the customers first depositing cheques with him for their purchases. They would later exchange these cheques for cash.

 

He also had access to the accounts of Mechanical Lloyd with regard to payments made for or paid there into by Ford Motors, which allowed him to time when to create the credits for those customers, and when to create the false journal vouchers. Then he also had access to cash payments submitted to the cashier Dorcas Ansong PW4 because of the practice of asking the cashier to bring him cash payments instead of paying same into the company’s accounts with the bank. He also designed the various accounting streams of the company and manipulated them with records that reflected the credits to other customers when Ford made the payments that he took moneys against, while he diverted their credits.

 

Within the context of this multi layered access, the various witnesses testified regarding the essential elements of the alleged offences. First, that the sums stated on each charge belonged to the complainant company, that it was appropriated by Appellant, and that the appropriation was done with dishonest intention to take money that was not his. PW5 went further to relate the documentary evidence on the various transactions to how the prosecution alleges the sum in each charge was taken.

 

To provide evidence on mens rea, they testified that in order to credit the affected customers with sums that mirrored the Ford payments, the Appellant in certain cases prepared the journal vouchers himself, approved, and signed them to pass them into the books of Mechanical Lloyd. In the “top up” and “split” instances, he went to the bank directly and paid in moneys with quantum that would support the recording of credits against those customers whose book accounts had been given the benefit of the Ford payments. By policy, Appellant was responsible for approving vouchers and not preparing and signing same. Again, the Appellant should have been very far removed from going to the bank to make payments, and from receiving cash takings from the cashier.

 

Now these testimonies prima facie present sufficient prima facie evidence of mens rea regarding ill dealings with the sums of money affected by these vouchers and bank payments. They do not leave any ambiguities as to guilt or innocence if the Appellant is unable to shift the weight of evidence.

 

There can be no explanation that points to innocence for a Manager of Finance and Administration who is required to ensure the adherence to financial controls breaking them by preparing, approving and signing vouchers. To the extent that PW5 took time to point to the specific charges and relate them to the transactions described, the prosecution’s evidence is sufficiently related to the case before the court.

 

It is for the above reasons that we do not agree with ground A of the appeal which complained that the trial judge erred in law when she invited the Accused/Appellant to open his defence when no case was established by the prosecution against him.

 

As for ground B which complained that the trial judge erred by failing to address the charges in accordance with each count, we also do not agree with Appellant.

 

The trial judge was required in law to determine if the case brought against the Appellant lacked the essential elements of stealing on any charge in order to uphold a submission that no case had been made against the Appellant, and she properly evaluated the import of the evidence.

 

In the multitude of transactions and documentary proof, the testimonies on the charges are so obviously inter-related that it is clearly premature for the court to piecemeal determine which sum was proved with which range of oral and documentary evidence beyond reasonable doubt, and which sum lacked full evidence such that it was not proved beyond reasonable doubt. We are satisfied that with the evidence that point to a model of activities used to appropriate the company’s money identified in each count, activities that differ from the normal mode of accounting for all credits received by the company such as the preparation of journal voucher by a manager of finance and administration, signing and passing same, and evidence that all 42 Ford payments in issue were mirrored with credits to other customers, while theirs were diverted through the accounting streams of the company designed by the Appellant himself, the evidence in support of the charges pass the sufficiency test in Sections 173 and 174 (1) of Act 30.

 

To uphold a finding of a legal duty to set out each count and present an evaluation in full concerning that charge will be to invite courts to present accused persons with the courts detailed decision regarding the case that the court considers as having been sufficiently made out, when Sections 173 and 174 (1) gives no such direction to a court. What Section 173 directs is that where it appears that a case has not been sufficiently made out on any particular charge, it shall acquit the accused on that charge. This includes the situation where there is no sufficiency in evidence of any of the essential elements of the offence complained of - (in this case appropriation of the sums in issue, dishonesty in the mode of appropriation, and the ownership of the money appropriated). The emphasis is on the negative review of any particular charge, not a full review of every particular charge. Thus where the court does not consider that the prosecution has not made out a case sufficiently on any particular charge, it is not under a duty under Section 174 (1) to disclose its full review of the sufficiency of evidence on that charge. Such an exercise will constitute a compromise on the integrity of the final judgment of the court.

 

Ground C of the appeal is also dismissed because we do not agree that the trial judge erred by failing to piece meal determine whether the essential ingredients of the offences had been established against the accused person or not in each charge.

 

Ground D complains that the trial judge erred and misapplied the decision in the case of Atsu Charan Kole vrs The Republic (Unreported suit No. H2/5/2008 5th June, 2008 CA) to the present case. My humble evaluation is that the ratio of Atsu Charan Cole as cited in the arguments is echoed in our decision on grounds B and C in this appeal. A trial court is not called on to set out its findings on the case presented by the prosecution at the time the accused is called on to open their defence. So whether or not there is a distinction in the facts of the Atsu Charan Kole case and the current case, the ratio of the Kole case did not compel a different twist for the decision she arrived at.

 

It is also important to note that whether or not a lower court misapplies the ratio of a case in the general evaluation of a suit, it is the rightness or wrongness of the court’s final decision that should ground the decision of the appellate court, and not the misapplication of the ratio of a case simpliciter. In the instant case, we uphold the structure of evaluation in the court’s ruling, which did not deal piecemeal with all 62 counts to determine whether the Appellant should be discharged on any particular count. What the court did was provide cogent reasons for why she thought that a case had been sufficiently made out for the Appellant to answer.

 

In Ground E, the Appellant complains again that the trial judge erred by misapplying the decision in the case of Tsatsu Tsikata vrs The Republic [2004] SCGLR 1068 SC. We believe that our position on this ground of appeal is sufficiently covered in the above evaluations. Ground E is dismissed.

 

Ground F urges that the trial judge erred by introducing evidence not presented by the Prosecution. This is found on page 439 of Volume 2 of the Records of Appeal where the court says that ‘it is alleged that those cheques issued by the accused in favour of Mechanical Lloyd were dishonored’. We cannot agree with the grounding of an appeal on this. And this is the reason why. The reason for the court finding an eerie silence on these cheques issued by the accused was not the alleged dishonoring of the cheques but the very fact of the issue of the cheques. The court said: ‘The failure to cross-examine on the fact of those cheques having been issued by the accused in the face of allegations of malfeasance against him, by means of evenly matching, topping up and splitting payments is quite an eerie silence which ought to be gone into. The accused ought to testify in order to explain the circumstances under which he issued and deposited cheques in favour of the complainant company and how they came to match, or top up or were split into transactions as the prosecution has put across in their case up to his stage’.

 

Clearly the alleged ‘dishonoring’ earlier alluded to, did not feed into her consideration of the role of the cheques in adding to the sufficiency of evidence which calls for the Appellant to open his defence. Her considerations were fixed on the fact of their issue in the first place. The ground of appeal is therefore dismissed as having no merit.

 

We will finally look at ground G which complains that the trial judge erred by admitting and relying on Exhibit C and D.

 

A mini trial was conducted around the admissibility of Exhibits C and D. 6 witnesses were called. The complaint of the Appellant at that time was that the confession statement and the statement of the currencies held in his safe on the day of his interdiction were procured through intimidation and not voluntarily from him. At the end of the trial, the court dismissed the objections and admitted the two documents.

 

Appellant counsel’s submission against the exhibits now is that the witnesses to the Appellant’s confession statement were not independent witnesses. He points to Yaw Assah Sam as a director of the complainant company and a member of the fact finding committee that had established that there was malfeasance in the manner the Appellant had handled the complainant’s accounts including dishonest appropriation of its accounts. This would make him a person with interest in the outcome of the investigations and therefore unqualified as asserted in the case of Ekow Russel v Republic 2016 102 GMJ 160.

 

He also points to Richard Don Ahafe as working for the external auditor of the Respondent and part of the forensic team that eventually investigated the Respondent’s records and determined the allegations against the Appellant. I have had the opportunity of reading the opinion of my brother Adjei JA on the fundamental reason why ground G is not sustainable. We are agreed on the point he makes. The time to appeal the decision of the court on exhibits C and D given on 4th November 2014 had totally run out by the time this appeal was filed. An appeal is a creature of statute and the court’s jurisdiction is invoked by compliance with the statute that allows appeals. Ground G must necessarily be dismissed.

 

The appeal is dismissed.

 

(sgd)

Gertrude Torkornoo (Mrs.)

(Justice of Appeal)

 

 

MARIAMA OWUSU J.A

 

On 23rd day of May, 2017, the High Court, Financial & Economic Crime Division ‘2’, Accra, ruled that, the prosecution had made a prima facie case against the accused and called upon him to open his defence.

 

Dissatisfied with the ruling of the court, the accused filed notice of appeal.

 

The grounds of appeal are:

a. The trial Judge erred by holding that a prima facie case has been made against the accused person;

b. The trial Judge erred by failing to address the charges in accordance with each count;

c. The trial Judge erred by failing to ascertain whether the essential ingredients of the offences have been established against the accused person in each charge;

d. The trial Judge erred and misapplied the decision in the case of Atsu Charan Kole Vs. The Republic (unreported, Suit No. H2/5/2008 dated June, 2008 CA) to the present case;

e. The trial Judge erred by misapplying the decision in the case of Tsatsu Tsikata Vs. The Republic [2004] SCGLR 1068 SC.

f. The trial Judge erred by introducing evidence not led by the prosecution;

g. The trial Judge erred by admitting and relying on Exhibit ‘C’ and ‘D’.

 

Before dealing with the arguments advanced in support and against this appeal. I will give a brief fact of the case.

 

The accused/Appellant (hereinafter referred to as Appellant) was charged with fifty-eight (58) counts of stealing contrary to Section 124 (1) of the Criminal Offence Act, 1960 (Act 29) and four (4) counts of Money Laundering contrary to Section (1) of the Anti-Money Laundering Act, 2008 (Act 747). He pleaded Not guilty to all the offences charged.

 

The facts of the case as presented by the prosecution are that, the Appellant was appointed Assistant Accountant in 1990 and rose to his last position in 2009 as the General Manager, Finance and Administration of Mechanical Lloyd Company Limited, which deals in automobiles. It imports vehicles from manufacturers like Ford Motors, BMW and Agricultural Tractors from Messey Ferguson and sell to customers. It also imports spare parts of the vehicles for the maintenance of these vehicles. By far, Ford Motors is the largest supplier of vehicles and parts to Mechanical Lloyds Co. Ltd. constituting about 70% of the latter’s operations and or turn over.

 

The Appellant as General Manager, Finance and Administration is responsible for the development and implementation of all financial, accounting procedures and guidelines including accounts, receivables, accounts payable, stock and inventory.

 

In addition, he was responsible for liaising and corresponding with the Accounts Department and the banks of Mechanical Lloyd. All the financial transactions that happened within the company are reported to him.

 

Sometime in October, 2012, an internal audit of the company’s account was carried out and it was discovered that the Appellant had misappropriated money belonging to the company, that is, Mechanical Lloyd. The Board of Directors therefore set up a fact-finding Committee of Enquiry to look further into the activities of the Appellant.

 

The Appellant was invited to appear before the said Committee to answer some questions. His answers to the queries were unsatisfactory. The Committee recommended his interdiction while investigations continued. The Appellant was accompanied to his office to enable him pack his personal belongings and an amount of eleven thousand, five hundred and twenty-four Ghana cedis (Gh¢11,524.00), seventy-seven thousand, four hundred and ten dollars ($77,410.00), one thousand, one hundred and fifty-five pounds (£1,155.00), sixteen thousand CFA (CFA16,000.00) and two hundred and fifteen Euros (£215.00) was found in the safe in his office.

 

Thereafter, according to the prosecution, the Appellant confessed to the Managing Director of the company of having taking an amount of three hundred thousand dollars ($300,000.00) which he was prepared to refund to the company. The Managing Director then asked the Appellant to put what he has told him into writing which the latter did in the presence of two witnesses.

 

Suspecting that, that might be the tip of the iceberg, Mechanical Lloyd Co. Ltd. subsequently engaged the services of Price Waterhouse Coopers Ghana Ltd. to conduct a forensic audit into the finances of the company. The forensic investigations revealed that, the Appellant had misappropriated a total of one million and eight hundred thousand US dollars ($1,800,000.00) from the company.

 

It was discovered that, between 2005 to 2012, the Appellant diverted payments made by customers on cash basis. This represented about forty-two (42) transactions in all.

 

The Appellant’s modules operandi were three-fold:

1. Evenly matched

2. Top-ups

3. Splits

 

With the evenly matched, what the Appellant did was that he used Chase Bank remittances from Ford Motors Company in US which remits Mechanical Lloyd funds either by way of cheque or on swift transfer basis, swapped them with customer payments made to Mechanical Lloyd. For example, if in a particular month, Ford Motor Company, US, remitted Mechanical Lloyd, let say, to the tune of ten thousand dollars ($10,000.00) using G. J. B. Morgan Chase Bank cheque, customers who owed Mechanical Lloyd and had made payments, the Appellant will match those cash/cheque payments to the tune of let say, ten thousand dollars ($10,000.00) and divert the cash/cheque payments. But he will record in the books of Mechanical Lloyd that ten thousand dollars ($10,000.00) that originated from Ford Motors US, as if the monies were paid by these customers.

 

In the case of top-ups, what the Appellant did was that, where receipts from customers were over and above the remittances from Ford Motors, by way of Chase Bank cheques, he will use his personal cheque to top-up the Chase Bank cheque received and the two would add up to the cash amount that he has received from customers and diverted and he would record in the books of Mechanical Lloyd and the accounts of the customers in a manner to show that these customers whose funds were diverted paid by Chase Bank cheque and his own personal cheque.

 

With the splits, it is the case of prosecution that, the funds were received and split up and recording is done in a way as to divert the funds which were meant for Mechanical Lloyd Company Ltd. the money when split into two partly account for the Chase Bank cheque from the Ford Motors in the books. Then, the other part is used to match a customer’s receipt payment. The Appellant used this mode for about seven (7) instances or transactions and the customers ranges from companies to individuals.

 

In all, there were over thirty companies and individuals whose accounts were manipulated in one of the three modes.

 

At the trial, the prosecution called eight witnesses to prove its case.

At the close of the prosecution’s case, counsel for the Appellant submitted that, the prosecution has not made a case sufficient enough to call upon the Appellant to answer.

 

The trial Judge in her ruling called upon the Appellant to open his defence. In her view, the prosecution has made a prima facie case with regard to the charge of stealing on counts 1 through to 58. On the charge of money laundering, she said:

“On counts 59 to 62, regarding money laundering, I have in my discussion above indicated that once there is a prima facie evidence of stealing, an offence which yields proceeds, there would be prima facie evidence of money laundering. Since the prosecution is only required to have established a prima facie case, I need not go into great detail, but I have considered the case put up by Mr. Allotey that the prosecution have failed to prove ownership by the accused or that they are proceeds of crime.

In the light of the discussion of the offence of money laundering contained herein as well as the burden of proof in particular circumstances having examined the documents covering the assets which have duly been tendered in evidence before this court, I hold that a prima facie case has been established against the accused.

The accused is therefore required to open his defence on 4th July, 2017 through to 13th July, 2017 at 10:30 am to 2:30 pm each day including Fridays.”

 

It is this decision that is in contention before this court.

 

In arguing the appeal, counsel for the Appellant after going through the evidence of the prosecution witnesses submitted that with regards to the charge of stealing which forms the basis of counts one to fifty-eight (1-58), the prosecution is required to lead sufficient evidence to establish at this stage of the trial that:

1. The Appellant appropriated a thing

2. The Appellant appropriated the thing dishonestly

3. The thing dishonestly appropriated belonged to Mechanical Lloyd

 

Counsel continued that the evidence before this court is not sufficient as required by law to establish a prima facie case against the Appellant. This is because Exhibit ‘AK’ did not identify which one of the three methods the Appellant used to allegedly steal monies so far as counts 10, 36, 43 – 58 are concerned.

 

In addition, PW5 was not able to show the documentary evidence before the court indicating that the Appellant received payments from customers of Mechanical Lloyd. Instead, the witness relied on the testimonies of other witnesses as documentary evidence. Thirdly, the witness contradicted himself throughout his evidence. He therefore invited us to set aside the order by the trial court that the Appellant open his defence and urged us to acquit and discharge him on counts 10, 36, 43 – 58.

 

On counts 1 – 40, counsel for the Appellants after going through the respective charge sheets and the particulars of offence submitted that, there is no evidence on record to show that the Appellant received or appropriated the respective sum of monies forming the basis of each charge. He invited us to acquit and discharge the Appellant on those counts.

 

With regards to counts 41 and 42, counsel for the Appellant’s submissions are that:

1. The prosecution only stated the name of the customer involved in both counts Mawums in Exhibit AK but could not provide any further evidence of the cash allegedly received by Appellant as PW5 speculated that Mawums made payments by cash and not by cheques.

2. The prosecution has not been able to prove how cheques from Mawums were stolen or diverted by the Appellant.

3. PW3, Kalyster Darko O’Keill contradicted the evidence of PW5 by saying that the transfer from Ford was wrongly treated as having been received by Mawums instead of Ford.

4. PW2 also contradicted the evidence of PW3 on the treatment of the US$38,916.74 i.e. that was credited to Mawums, thus reducing its indebtedness to Mechanical Lloyd.

 

Consequently, no cash payments were received from the customers by the accused person. He concluded on these grounds that the prosecution must prove all the essential elements of the offence charged under counts 41 and 42 against the Appellant. Since the prosecution failed to prove these essential ingredients the Appellant must be acquitted and discharged. He therefore invited us to set aside the order of the trial Judge calling on the Appellant to open his defence.

 

With regards to the offence of money laundering, counsel for the Appellant submitted that from the proceedings, no offence of stealing has been established against the Appellant and therefore the offences of money laundering cannot be found against the Appellant for the following reasons:

1. The prosecution has to establish that the Appellant is the owner of the properties and also acquired them through monies stolen from Mechanical Lloyd.

2. Exhibit ‘CL’ tendered is dated 15th January, 1999 long before the period of the alleged stealing.

3. Exhibit ‘CM’ the valuation report on Smayak Hotel does not indicate when the Hotel was acquired.

 

These submissions go for counts 59 – 62.

 

Counsel for the Appellant therefore invited us to set aside the ruling of the trial court and acquit and discharge the Appellant as the prosecution was not able to prove that the properties that formed the basis of these charges belong to the Appellant.

 

Based on the foregoing, counsel for the Appellant invited us to uphold ground (a) of the appeal as the trial Judge erred by holding that a prima facie case has been made against the accused person and call upon him to open his defence.

 

With regards to grounds (b) and (c) the arguments advanced in support of these grounds are that, the prosecution failed to prove the essential ingredients as contained in each of the offence levelled against the Appellant. In addition, the trial Judge should have address the charges one by one in her ruling but not to have lumped them together.

 

Grounds (d) and (e) speak for themselves.

 

The argument canvassed in support of these grounds are that the decisions in the case of Atsu Charan Kole Vs. The Republic (unreported) Suit No. H2/5/2008 dated 5th June, 2008 CA and the case of Tsatsu Tsikata Vrs. The Republic [2004] SCGLR 1068 were misapplied by the trial Judge.

 

Ground ‘g’ is in relation to the admission of Exhibit ‘C’ and ‘D’. Counsel for the Appellant submitted that the two witnesses who witnessed those Exhibits are not independent witnesses within the meaning of Section 120 of the Evidence Act, (NRCD 323). Counsel cited the cases of Ekow Russel Vrs. The Republic [2016] 102 GMJ, 163 -164 and Kwaku Frimpong @ Iboman Vrs. The Republic [2012] SCGLR 297 to buttress his point. He argued that VD3 happened to be a worker of Price Waterhouse Coopers, the investigative body employed by PW1 to investigate certain allegations made by PW1 against the Appellant.

 

Similarly, VD2, Yaw Ansah Sam is also a former worker of PW1 and a present board member of PW1 Company. Therefore, these witnesses cannot be said to be independent in the face of the Appellant’s assertion that he was coerced into writing Exhibit ‘C’ and ‘D’. He argued that these Exhibits were wrongly admitted in evidence and relied upon in arriving at the decision that the Appellant should open his defence as a case has been made against him.

 

The last ground of appeal argued by counsel for the Appellant is ground ‘f’. By this ground, counsel for the Appellant submitted that, the trial Judge introduced evidence not led by the prosecution into its ruling i.e. that:

“it is alleged that those cheques issue by the accused in favour of Mechanical Lloyd were dishonoured.”

 

According to counsel, nowhere in the evidence led can the quotation supra be found and the reliance on it to dismiss the Appellant’s submission of no case to answer is wrong. He therefore invited us to dismiss the appeal on this ground.

 

The relevant provision in relation to a submission of no case to answer is Section 173 of the Criminal and Other Offences (Procedure) Act [1960] Act 30.

 

It provides:

“Where 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 the accused to make a defence, the court shall, as to that particular charge, acquit the accused.”

 

Section 174 of Act 30 also provides:

“At the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused sufficiently to require the accused to make a defence, the court shall call on the accused to make the defence and shall remind the accused of the charge and inform the accused of the right of the accused to give evidence personally on oath or to make a statement.”

 

Our Supreme Court in the case of Tsatsu Tsikata Vs. The Republic [2003-2004] SCGLR 1068, 1074, holding (5) on a submission of no case has this to say:

“On a submission of no case the Judge’s function was essentially to determine whether there was a genuine case for trial, i.e. whether there were any genuine factual issues that could properly be resolved only by a finder of fact because they might reasonably be resolved in favour of either party. The inquiry had to focus on the threshold question whether the evidence presented a sufficient disagreement to require submission for a full trial, or whether it was so one-sided that one party must prevail as a matter of law.

Therefore, where reasonable minds could differ as to the import of the evidence presented in a motion for submission of no case, that motion should not be upheld. If on the other hand, there could be but one and only one reasonable conclusion favouring the moving party, even assuming the truth of all that the prosecution had to say, the Judge must grant the motion. Where the submission was rejected and the case went to trial, it was then that the Judge or Jury as appropriate, being the trier of facts would be called upon to determine whether or not the guilt of the accused had been proved beyond reasonable doubt.”

 

From the case cited supra, at the stage of submission of no case, what was required of the trial Judge is for her to determine whether a prima facie case has been made against the accused for which the latter should be called upon to open his defence.

 

Relating the above quotation to the case under consideration, the prosecution led evidence to show that between 2005 and 2012, the Appellant was the General Manager, Finance and Administration of Mechanical Lloyd Company Limited.

 

As General Manager, Finance and Administration, he was responsible for the development and implementation of all financial accounting procedures and guidelines including accounts receivables accounts payable, stock and inventory.

 

In addition, he was responsible for liaising and corresponding with the Accounts Department and the banks of Mechanical Lloyd. All the financial transactions that happened within the company are reported to him. This evidence led by the prosecution through PW1 was not cross-examined.

 

The prosecution also led evidence on how certain transfers/remittances from Ford Motors in the form of cheques or swift transfer were recorded in the books of Mechanical Lloyd to make it look like they were payments made by customers of Mechanical Lloyd. The prosecution gave instances like Mawums, etc. The evidence of PW5, the officer from Price Waterhouse Coopers, the External Auditors of the Mechanical Lloyd who conducted forensic investigations into the accounts of Mechanical Lloyd is clear on this.

 

PW3 Dorcas Ansong, a cashier of Mechanical Lloyd also testified that her duty was to receive payments from customers of the company and issue receipts accordingly. But sometimes the Appellant who happened to be her boss at the time, instructed her to issue receipts to customers on pieces of paper the latter brought to her with the names and amounts indicated on those papers. This she complied even though she had not seen any physical cash or cheque. Sometimes too, at the close of the day the Appellant would ask her to bring all monies and cheques received that day to his office instead of sending them to the accounts office as required by company policy.

 

PW3 tendered some of the pieces of papers the Appellant sent to her with the instructions that she should issue receipts in favour of the customers whose names appear on the pieces of papers in evidence.

 

Clearly from these three witnesses, their evidence calls for an answer/explanation from the Appellant considering the fact that he was responsible for all financial management in the company.

 

In the case of Gligah & Atiso Vs. The Republic [2010] SCGLR 870, holding (3), their Lordships held that:

“The Supreme Court was unable to agree with the submissions by counsel for the accused persons relating to the issue of credibility of the prosecution witnesses because, quite apart from the fact that the case of the prosecution, especially the first prosecution witness, the complainant and victim of the alleged rape, was one of oath against oath, there were pieces of evidence which if put together made a very strong case against the accused persons. It was like a series of small threads and which when put together, made a very strong rope.” (our emphasis)

 

Relating the above case to the case under consideration, the evidence of PW1 on the Appellants duties as General Manager, Finance and Administration and his responsibilities, the evidence of PW3 and PW5 and the Exhibits tendered clearly established that a prima facie case has been established against the Appellant which needs explanation or answer. Calling over 50 customers to testify is not necessary as a single witness’s evidence can find conviction if he/she is credible. The documentary evidence (which has been described as the best evidence) tendered by the prosecution would suffice. There is no merit in grounds (a), (b) and (c) and they are accordingly dismissed.

 

This brings us to grounds (d) and (e) in relations to the misapplication of the decisions in the case of Tsatsu Tsikata Vs. The Republic and Atsu Charan Kole Vs. The Republic.

 

Our short answer to this submission is that, where a court arrived at the correct decision though for wrong reasons in the step leading to same, that cannot vitiate the judgment because it is settled law that an appellate court can affirm the decision of a lower court which is correct but is founded on wrong reasons.

 

See the case of Mensah Larkai Vs. Ayiteh Tetteh [2009] SCGLR 621, 623. See also Muriel Vangan-Williams Vs. B. K. Oppong [2015] 84 GMJ 171, 177 where the Supreme Court speaking through Adinyira JSC, has this to say:

 

“We are of the view that this case can be decided on other grounds as indeed in this court, no judgment is upset on the ground that its ratio is erroneous if there is another sound basis on which it can be supported.”

 

An appeal is against the decision of the court and not the reasons. These grounds had not been made out and they are dismissed.

 

On the wrongful admission of Exhibit C and D, i.e. the voluntariness of the confession statement. To begin with, these Exhibits were in the handwriting of the Appellant. Secondly, we disagree with counsel for the Appellant that VD2 and VD3 are interested parties and therefore they cannot witness a confession statement. Being workers at Mechanical Lloyd and Price Waterhouse Coopers Ghana Limited per se, did not make them interested parties within the meaning of Section 120 of the Evidence Act, NRCD 323.

 

Even policemen are not excluded from witnessing a confession statement if they are not the ones investigating the case. There is no merit in ground (g) and it is accordingly dismissed.

 

On the last ground that the trial Judge introduced evidence not led and based his decision on same, we disagree. PW5 testified to the effect that Appellant issued his personal cheques sometimes to top up where the remittance from Ford Motor was not enough in the books of Mechanical Lloyd.

 

From the foregoing, the trial Judge did not introduce any evidence and based her decision on same.

This ground also fails and it is accordingly dismissed.

 

From all of the foregoing, the appeal fails in its entirety and it is accordingly dismissed. The decision of the trial Judge dated the 23rd of May, 2017 calling upon the Appellant to open this defence is hereby affirmed. The Appellant is ordered to open his defence at the trial High Court, Financial and Economic and Crime Division ‘2’ on 3rd May, 2018.

(sgd)

Mariama Owusu

(Justice of Appeal)

 

 

ADJEI JA

 

Fifty-eight counts of stealing contrary to section 124(1) of the Criminal offences Act,1960 (act 29) and four counts of money laundering contrary to section 1 (1) of the Anti-Money Laundering Act, 2008 (Act 749) were preferred against the accused person before the High Court. For the purposes of this appeal, the accused shall be referred to as Appellant. The Appellant in the interlocutory appeal pleaded “not guilty’ to all the sixty-one counts. The brief facts of the case which are important at this stage is that the Appellant was the General Manager, Finance and Administration of Mechanical Lloyd Company Ltd. The Appellant joined Mechanical Lloyd Company Ltd. in 1990 as an Assistant Accountant and rose to General Manager Finance and Administration in January, 2009. The company discovered that the Appellant had misappropriated some funds belonging to the company and engaged the services of Price Water House Coopers Ghana Ltd to conduct a forensic audit investigation into the finances of the Company. The Appellant was charged before the Financial Division of the High Court, Accra.

 

The Appellant at the close of the prosecution’s case made a submission of no case called on the trial High Court to acquit him on all the counts. The trial High Court Judge dismissed the submission of no case and called upon the Appellant to open his defence. The Appellant dissatisfied with the ruling by the trial High Court delivered on 23rd May, 2017 filed an appeal against same on 7th June,2017.

 

The grounds of appeal filed by the Appellant are as follows:

“a. The trial Judge erred by holding that a prima facie case has been made against the accused person.

b. The trial Judge erred by failing to address the charges in accordance with each count.

c. The trial Judge erred by filing to ascertain whether the essential ingredients of the offences have been established against the or not accused person in each charge.

d. The trial Judge erred and misapplied the decision in the case of ASTU CHARAN KOLE VS THE REPUBLIC (unreported, suit No. H2/5/2008 5th June, 2008, CA) to the present case.

e. The trial Judge erred by misapplying the decision in the case of TSATSU TSIKATA VS THE REPUBLIC [2004] SCGLR 1068SC.

f. The trial Judge erred by introducing evidence not led by prosecution.

g. The trial Judge erred by admitting and relying on EXHBIT ‘C’ and ‘D”.

 

My Sister Torkornoo J.A in her draft decision which I had the opportunity of reading beforehand effectively discussed grounds (a)-(f) of the appeal and I will add some few words of my own and further discuss ground(g) of the appeal.

 

Submission of no case is the power given to a trial court to acquit an accused person on a charge or charges where it appears to the court after the close of prosecution’s case that a case has not been made out against the accused for the accused to open his defence. Section 174 (1) of the Criminal and Other Offences (Procedure) Act, Act 30 which is on submission of no case provides thus:

At the close of the evidence in support of the charge if it appears to the Court that a case is made out against the accused sufficiently to require the accused to make a defence, the Court shall call on the accused to make the defence and shall remind the accused of the charge and inform the accused to give evidence personally on oath or to make a statement”.

 

The trial High Court Judge held after the close of the prosecution’s case, that she was satisfied that a case has been made against the accused sufficiently to require the accused to open his defence. The grounds upon which submission of no case may be made have been discussed by the courts in the cases of Apaloo and Another v The Republic [1977] 11 GLR 287, The State v Ali Kassena [1962] 1GLR. The Supreme Court in the case of Tsatsu Tsikata v the Republic Part I [2006] 1 M.L.R.G 120, explained the grounds upon which one can make a submission of no case. A submission of no case may be made where the prosecution after close of its case fails to establish a prima facie case which is also stated differently as that the prosecution at the close of its case failed to make out a case against the accused person to make a defence. The first ground upon which prosecution shall be deemed to have failed to establish a prima facie case is where there has not been any evidence to prove an essential element in the crime charged. The second ground upon which a submission of no case may be made is where the evidence adduced by the prosecution was discredited by the accused under cross examination that a court of law shall not rely on it to convict an accused. The third ground is where the evidence adduced by the prosecution is manifestly unreliable that a Court of law cannot rely on it to convict the accused. The final ground is where the prosecution failed to discharge the standard burden of proof at the close of its case and as a result of that the evidence adduced is susceptible to two likely interpretations, one may be consistent with the guilt of the accused and the other is consistent with the innocence of the accused.

 

Counts one to fifty-eight are on stealing and on each count the law requires the prosecution to prove all the three elements of stealing. Stealing has been defined in section 125 of the Criminal Offences Act, 1960 (Act 29)) defines stealing as follows:

“a person who steals dishonestly appropriates a thing of which that person is not the owner”.

 

Therefore, for the prosecution to succeed in establishing a prima facie case for the offence of stealing against the accused, the prosecution shall prove that the accused person was not the owner of the money he is alleged to have stolen, the accused appropriated the money without the consent of its owner that is the complainant herein and the appropriation by the accused was dishonest. The decisions in the cases of Osei Kwadwo II v the Republic [2007- 2008] SCGLR 1711 and Ali and Others v the republic [1992] 1 GLR 570 have authoritatively stated that the three ingredients which the prosecution is required to prove for the offence of stealing are that the accused has appropriated a thing, the thing was dishonestly appropriated by the accused, and the accused is not the owner of the thing which he dishonestly appropriated. I have examined counts one- fifty eight together with the evidence adduced on record and I am satisfied that the prosecution successfully proved all the three elements in each count and the trial High Court Judge was right in coming to the conclusion that the prosecution has established a prima facie case for the offence of stealing contained in counts one to fifty-eight.

 

With respect to the four counts of money laundering, the accused was charged with money laundering contrary to section 1(1) of the Anti-Money Laundering Act, 2008 (Act 749). Section 1(1) of the Anti-Money Laundering Act, Act 749 which the accused has been charged provides thus:

“A person commits the offence of money laundering if that person knows or ought to have known that the property is or forms part of the proceeds of unlawful activity and the person

a. Converts, conceals, disguises or transfers he property;

b. Conceals or disguises the unlawful origin of the property; or

c. Acquires, uses or takes possession of the property”.

 

I have carefully examined the evidence adduced by the prosecution in respect of Counts fifty-nine to count sixty-one and I am satisfied that the prosecution has established a prima facie case, that is prosecution has proved that the accused knowingly converted the proceeds of money he dishonestly appropriated into the properties including Smayak Hotel with its fittings at (Gomoa Ankamu) Apam junction , Plot No. 801, Tantra Hill, Achimota-Accra, House No. 114, Ayigbe Town, New Weija, near Accra and tracks of land at New Bortianor and Manhean in Ga District. I am also satisfied that all the ingredients of the offence of money laundering contrary to section 1(i) of the Anti-Money Laundering Act 2008(Act 749) have been proved by the prosecution and I therefore dismiss grounds (a) (b) and (c) of the grounds of appeal as being unmeritorious.

 

The Anti-Money Laundering (Amendment) Act 2014 (Act 874) was passed to expand the scope of unlawful activity as defined under Act 749. The accused person was charged under the principal enactment, Act 749 as he was said to have committed the four counts of money laundering between 2005 and 2012 when the amendment to the principal enactment, Act 874 had not been passed. The Anti-Money Laundering (Amendment) Act, 2014 (Act 874) is a substantive enactment with prospective effect and does not apply to offences committed under Act 749 before Act 784 came into force in 2014. Article 107 of the Constitution which is on retrospective legislation provides thus:

“Parliament shall have power to pass any law”.

b. which operates retrospectively to impose any limitation on or to adversary affect the rights and liberties of any person or to impose a burden, obligation or liability on any person except in case of a law enacted under articles 178 to 182 of this Constitution”.

 

The expansion to the definition of unlawful activity by Act 874 to Act 749 to include other activities such as “financing of the proliferation of weapons of mass destruction” or “other transnational organized crime” do not apply to the case of the accused.

 

Clause (5) of article 19 of the Constitution provides that a person shall not be charged with an offence where at the time that person committed the act it did not constitute an offence. By the combined effect of clause (b) of article 107 and clause (5) of Article 19 of the Constitution, Act 874 does not apply to the charges preferred against the accused.

 

I am also of the considered opinion that the trial High Court Judge did not   misapply the case of Atsu            Charan Kole v The Republic (unreported) and Tsatsu Tsikata v The Republic [2007] SCGLR 1068 SC and the Principles governing the determination of whether or not the prosecution was able to establish a prima facie case was decided in accordance with law. I further dismiss grounds (d) and (e) of the appeal.

 

I am also satisfied that the trial High Court Judge did not introduce evidence not led by the prosecution in determining whether or not the prosecution has established a prima facie case. I further dismiss ground (f) of the appeal.

 

I now dismiss ground (g) of the appeal which was that the trial Judge erred by admitting and relying on exhibits ‘C’ and ‘D’. On 27th October, 2014, the Appellant herein raised an objection to exhibits ‘C’ and ‘D’ that they were not voluntarily obtained and their admission shall offend Section 120 of the

 

Evidence Act, NRCD 323. The trial High Court on 4th November, 2014 dismissed the objection by counsel for the Appellant and held that exhibits ‘C’ and ‘D’ were voluntarily made and admitted them into evidence. The Appellant did not appeal against the ruling delivered on 4th November, 2014 and sought to raise it on 7th June, 2017 when he filed the notice of appeal which has culminated in this appeal. Section 11(6) of the Courts Act, Act 459 which regulates appeal in criminal cases from the High Court to the Court of Appeal provides thus:

“Where a party desires to appeal to the Court of Appeal in a criminal case, that party shall give notice of an application for leave to appeal within one month of the decision appealed against”.

 

It took the Appellant over two years to file an Appeal against the ruling delivered by the High Court in the mini trial on 4th November, 2014. The Appellant cannot incorporate an appeal which he should have filed against the ruling delivered in the mini trial and has become hopelessly barred. The law is that an appeal is a creature of law and a person who seeks to appeal shall file the notice of appeal within the time prescribed by law else he would be forever barred. In the case of Karletse Panin v Nuro [1979] GLR 194 it was held that an appeal is a creature of statute and a person who appeals against a judgment shall satisfy all the conditions imposed by law else person may lose that right and will forever be barred. The ground (g) of the appeal also fails.

 

I dismiss the appeal in its entirety as being unmeritorious.

 

(sgd)

Dennis D. Adjei

(Justice of Appeal)