IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2017
JOSEPH AKPABLI - (Appellant)
THE REPUBLIC - (Respondent)
DATE: 30TH NOVEMBER, 2017
CRIMINAL APPEAL NO: H2/03/2017
JUDGES: E. K. AYEBI (PRESIDING) JA, GERTRUDE TORKORNOO (MRS.) JA, ANGELINA M. DOMAKYAAREH (MRS.) JA
STEPHEN ALEWABA FOR APPELLANT
ATTORNEY FOR REPUBLIC
1. This is an appeal against the judgment of the High Court, Sunyani which convicted the appellant on two counts of falsification of accounts contrary to section 140(1)(a) of the Criminal and Other Offences Act, 1960 (Act 29) and stealing contrary to section 124(1), also of the Criminal and Offences Act, 1960 (Act 29).
2. The facts of the case are simple and straight forward. The appellant is an employee of Olam Ghana Ltd. as the Tepa District Manager. During the 2012/13 Cocoa Season, the Company gave the appellant an amount of GH¢2,518,772 to buy 11,881 bags of dried cocoa beans for the Company. The Zonal Manager of the appellant is PW1.
3. The appellant like others is required to send to him weekly reports on his operations. At the close of the season, the appellant declared in his Warehouse Ledger Book that he had purchased 11,520 bags of dried cocoa beans out of which he had sent 10,680 bags to Tema Port leaving a balance of 840 bags in stock (in the warehouse). PW1 followed up on the report to appellant’s warehouse but there was no bag of dried coca beans in stock.
4. When confronted, the appellant told PW1 that the remaining bags of cocoa were with the purchasing clerks and were yet to be delivered. PW1 gave appellant two weeks to ensure that the bags of cocoa with the purchasing clerks were delivered to the warehouse but he failed to do so. PW1 made a report to the Branch Co-ordinator who called in the Auditor to go and verify the complaint of PW1.
5. When the Auditor went to the station at Tepa, only one bag of dried cocoa beans was found in the warehouse. The appellant gave the Auditor an undertaking that the remaining 839 bags will be brought into the warehouse, but nothing came. So PW1 made a report to the police, appellant was arrested and charged after investigations with the offences. After the arrest of the appellant, only 23 bags of cocoa beans were brought in.
6. At the trial, appellant pleaded not guilty to the two counts charged against him. But after full trial, the High Court found him guilty and convicted him. He sentenced the appellant to 3 years imprisonment with hard labour on each count and ordered the sentences ordered to ran consecutively. Aggrieved by the judgment, appellant appealed against both conviction and sentence. The grounds of appeal are that:
(a) The conviction and sentence are wrong in law.
(b) The evidence on record cannot support the conviction of the offence of stealing and falsification of accounts.
Appellant did not file any further grounds of appeal as indicated.
7. While the counsel for the appellant filed a 27 page written submission, the attorney for the respondent filed only four pages. I noted that eight pages of the appellant’s submission (from pages 7 to 15) were devoted to an attack on the qualification and the work of the Auditor of Olam Ghana Ltd., PW2. The attack is not based on any violation of the audit practice in Olam Ghana Ltd. but on auditing in general as defined in the book Auditing an Integral Approach by Alvin A. Arens and James K. Loebecke and the Companies Code, 1963 (Act 179)
8. The submission questioned the qualification of PW2 as auditor, the lack of quantifiable information and established criteria and failure to issue a report to the directors of Olam Ghana Ltd. to act on. I do not think there is any need to spend time discussing the submission because the submission failed to take into account the facts of the case as well as the evidence of both the prosecution and the appellant.
9. It is sufficient to say that as regards the qualification of PW2 as an auditor, he was not challenged. But PW2 gave evidence that he is a staff of Olam Ghana Ltd. as an Auditor and Compliance Manager for Olam Ghana Ltd. and MBTN (Mali, Burkina, Togo and Niger). This evidence was not challenged neither was his qualification doubted in any way. He also told the court that he requested for and appellant gave him all relevant documents in his office. And these form the basis of his audit. According to him, the Warehouse Ledger Book, Exhibit ‘A’ series which is their primary source of information was available to him. And at the end of the exercise, he issued the Cocoa Audit Template which he signed and the appellant also signed.
10. That document is Exhibit ‘C’. The said Exhibit ‘C’ is described as Cocoa Stock Audit Report. So that is the report issued after the audit. At page 15 of the written submission, counsel submitted that due to the poor nature of the audit, the appellant or his counsel could not extensively cross-examine PW2 on the veracity or otherwise of the alleged audit conducted in relation to the figures so provided by the auditor.
11. That submission cannot be correct and is not correct. Throughout the record, neither appellant nor his counsel challenged any of the figures in Exhibit ‘A’ series and Exhibit ‘C’. This is because the figures were put out by the appellant and what PW2 did was to confirm them against the physical stock in the warehouse.
12. It is also clear from the evidence that PW2 is an internal auditor of Olam Ghana Ltd. and carried out an internal audit. But then it was an event driven audit in that the audit focused on the information the appellant put out or published in the Warehouse Ledger Book which information PW2 verified to be false. All those submissions by counsel for appellant I hold is a wasted effort and they are dismissed as irrelevant.
13. Again, apart from counsel for appellant’s submission that the sentence imposed on the appellant on the two counts is contrary to the mandatory provisions of sections 302 and 303 of Act 30, which the attorney for the Republic conceded, we do not find any merit in the submission against conviction on the two counts by the trial judge. In other words, we hold that the charges against the appellant have been proved beyond reasonable doubt.
14. As rightly stated by counsel or the appellant in his written submission, it is the duty of the prosecution to prove the case against the appellant beyond reasonable doubt. This duty is imposed on the prosecution by section 11(2) and 13(1) of the Evidence Act, 1975 (NRDC 323). The prosecution must first discharge this duty because in terms of section 15(1) of the Act, it is the prosecution which has accused the appellant of falsification of its accounts and stealing.
15. On the part of the appellant, he is presumed to be innocent until he pleads guilty himself or he is proven guilty. But if the prosecution succeeds in establishing a prima facie case against him, he must produce sufficient evidence to raise a reasonable doubt as to his guilt – see section 11(3) of the Evidence Act, 1975 (NRCD 323).
16. On count one, the appellant is charged with falsification of accounts contrary to section
140 of Act 29/60. The section states that:
“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 intent to commit or facilitate the commission, by any other person, of any crime, that is to say –
(a) Conceals, injures, alters or falsifies any book, paper 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 a second degree felony”
17. In identifying the ingredients of the offence, counsel for appellant quoted from P. K. Twumasi’s book on Criminal Law in Ghana at page 248. There, the learned author stated the ingredient as:
(i) That the person charged must be a clerk or servant of any private or public establishment or public officer in any public office or officer of any partnership, company or corporation;
(ii) That being such clerk or servant or public officer he concealed, injured or falsified a book or paper or account kept by or belonging to or entrusted to his employers, or entrusted to him or to which he has access as such clerk, servant or officer; or that he omitted to make full and true entries in any account of anything which - is bound to enter, or that being an officer of a partnership, company or corporation he published an account, statement or prospectus relating to the affairs of such partnership or company or corporation which he knew to be false in any material particular;
(iii) That he committed the act complained of with the intent to cause or enable any person to be defrauded or with intent to facilitate the commission of any crime by himself or any other person.
18. Of the three ingredients, appellant’s submission accepted only the first one as applicable to him. That is that as an employee of Olam Ghana Ltd., he is a servant of the company. He denied that the second and third ingredients have been proved by the prosecution. According to the submission, the basis of the arrest, the charge and prosecution of the appellant is the audit report, which in counsel’s view is null and void.
19. But that submission is contrary to the evidence on record. In first place, the fact that the audit process and the report does not meet counsel’s standard or expectation does not render the report null and void. Every company regulates its internal affairs in accordance with its regulations. Secondly, it is clear from the evidence that appellant’s information put out in appellant’s own Warehouse Ledger Book is the basis of the charge against him. All that PW2 did was to verify the information put out in the Ledger Book with what was physically in the Warehouse. When he did not find the 839 bags of cocoa stated in the Ledger Book in the Warehouse, he asked appellant for an explanation or their whereabouts. Appellant told him where the number of bags he stated falsely were in stock were. The auditor gave him time to bring them into the warehouse but he failed to do so.
20. It is noted that PW2 was emphatic in an answer under cross-examination that the company’s interest was in the 839 bags of cocoa which were falsely stated to be in stock. According to him, appellant would not have been reported to the police if he had produced the 839 bags of cocoa but he failed to do so. How on earth in the face of this evidence should the appellant not be held liable to the information he generated himself and put out but found to be false?
21. As I stated above, the onus of proof is on the prosecution in all criminal prosecutions except otherwise stated by statute. But the appellant as the accused in the evidence he gives in denial of the charge must raise reasonable doubt that is if he decides to give any at all. The appellant in this case gave a statement to the police and also gave evidence on oath at the trial. In his cautioned statement, Exhibit ‘D’, the appellant accused PW1, his Zonal Manager of being complicit in the falsification of the books.
22. According to him, his predecessor Daniel Owusu Agyemang left behind a shortage of 600 bags which PW1 caused him to settle by transfer. He alleged that neither he, his driver, watchman nor depot keeper were paid their renumeration. So he had to pay his staff from his own coffers. He also had to expand their depot with GH¢12,000.00, the value of 600 bags of cocoa. In his evidence on oath, appellant added more expenses he made out of the money given to him to purchase the cocoa as a reason for the shortage. He even stated that the value of two kilos of cocoa was deducted from the money before it is given to you.
23. But so far as the charge of falsification goes the appellant’s explanation or evidence did not answer or rebut it. What the appellant’s evidence amounted to is to give reason or give account of how the shortage arose for which reason he could not purchase and put into stock, the expected number of bags of cocoa. The witnesses of the company especially PW1 had denied that appellant made any such expenses. I agree with them. The expenses appellant alleged he made out of the money given to him to purchase the cocoa beans are expenses which the company should have made unless the appellant’s contract of employment as District Manager stated otherwise. And being expenses appellant made on behalf of the company there should have been an official authorization and then appellant should have served the company with his bill.
24. According to PW2, the Warehouse Ledger Book is their primary source of information. It is compiled by the appellant from his station. If these expenses were official and authorized and were indeed made, what prevented the appellant from including them in the entries in the Warehouse Ledger Book. In particular, if PW1 caused appellant to transfer 600 bags of cocoa he bought with the money given him to settle Daniel Owusu Agyemang’s shortage/debt, why is it not reflected anywhere in the Ledger Book or any other document?
25. As a reminder, the crux of the charge against the appellant is that, he falsified the accounts in the Warehouse Ledger Book by stating that out of 11,520 bags he purchased, he had sent 10,680 bags to the port leaving 830 bags at the warehouse. But physical check at the time showed there was not a single bag of cocoa beans left in the warehouse. So the question is, is the statement put out by the appellant true or not or was it a genuine representation of the state of affairs of his stewardship. It was not. I find and hold that the second and third ingredients of the offence have been established and proved against the appellant.
26. It is trite knowledge that there are two components of every crime – the intention to commit the crime and the act which resulted in the commission of the crime. In stating that there were 839 bags of cocoa in the warehouse, the appellant intended to deceive or defraud his employer if believed. And the actus reus is in the publication of that false information in the ledger representing to the employer that it is true or genuine when in fact to the knowledge of the appellant, it is not. In the premises, we cannot fault the trial judge in finding the appellant guilty of the charge in count one and we affirm it.
27. is the charge of stealing proved? It is view of counsel for the appellant that since the charge of stealing arose from the charge of falsification of accounts which the prosecution was unable to prove, the charge of stealing must naturally fail. Indeed by the provision of section 140, falsification by itself appears to be an inchoate offence/act which serves as foundation for the commission of a crime. But having determined as above that the charge of falsification has been established against the appellant, the charge of stealing was rightly leveled and proved against the appellant. In the authoritative case of State vrs W. M. Q. Halm and Ayeh Crim. Appeal Nos. 118/67 and 113/67, dated 7th August 1969  C.C. 155, cited by counsel for appellant, the court distilled ingredients of stealing as that:
(i) The person charged must not be the owner of the thing allegedly stolen.
(ii) The appropriation must have been dishonest.
28. In the Warehouse Ledger Book which the appellant compiled, he stated that out of 11,520 bags of cocoa beans supplied and paid for, 839 were still in stock. But it was a completely false information. When given the opportunity to retrieve the remaining bags from the purchasing clerks he alleged had them, he could only bring in 20 bags in all and paid in a cash amount of GH¢1,872.00. The appellant published a lie that 839 bags of cocoa were in stock in the warehouse. He further told a lie that the 839 bags of cocoa were with the purchasing clerks and he could retrieve them.
29. The natural inference from the conduct of the appellant is that he dishonestly appropriated the 839 bags of cocoa beans or their money equivalent, hence the cover up by falsifying the Ledger Book. The money does not belong to the appellant but Olam Ghana Ltd. The evidence, especially that of appellant himself shows clearly that he dishonestly appropriated the money either by misapplication or outright embezzlement. His conviction on the charge of stealing by the trial judge is supported by the evidence on record. We affirm it. We find no merit in ground two of the appeal and it is dismissed.
30. The second aspect of ground one is that, the sentence passed on the appellant on the two counts is wrong in law. On conviction of the appellant on the two counts, the trial judge ordered the sentence of 3 years IHL on each count, to ran consecutively. On the particular facts of this case, the order that the sentences should be served consecutively is contrary to section 302(a) of Criminal Procedure and Juvenile Justice Act, 1960 (Act
30). The section provides that:
“With respect to cases where one act constitutes several criminal offences or where several acts done in execution of one criminal purpose, the following provisions shall have effect:
(a) Where a person does several acts against or in repsect of one person or thing, each of which is a criminal offence, but the whole of which acts are done in execution of the same design, and, in the opinion of the court before which that person is tried, form one continuous transaction, that person may be punished for the whole of the acts as one criminal offence, or for any one or several of those acts as one criminal offence and all the acts may be taken into consideration in awarding punishment, but that person is not liable to separate punishments as for several criminal offences”
And Section 303 provides that:
(1) “The court may pass on a person convicted, at one or more trials of any two or more offences, a separate sentence in respect of which section 302 imposes certain restrictions in regard to punishment, and the separate sentences, if sentences of imprisonment, shall ran concurrently and not consecutively, and if sentences of fines, shall not operate in a manner that imposes the fines cumulatively.
(2) Subsection (1) is without prejudice to section 302”.
31. On the facts of the case, the appellant falsified the accounts of the company as a cover up of the dishonest appropriation of the company’s money or bags of cocoa beans. The two acts is a continuous one in execution of one design. The trial judge should not therefore have ordered the sentences on the two counts to ran consecutively. Rather he should have ordered the sentences to ran concurrently – see Adomako vrs The Republic [1984/86] 2 GLR 766 where the court held that:
“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 ran concurrently and not consecutively. In fact section 303 of Act 30 makes it mandatory”
32. Accordingly, while we affirm the length of sentence imposed on each count, we set aside the order that sentences should ran or be served consecutively. Instead, we order that sentence of 3 years IHL on each count be served concurrently. Save this variation, the entire appeal against conviction and sentence is dismissed.