IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
CHINEAKA NKEM - (Plaintiff)
THE REPUBLIC - (Defendant)
DATE: 7TH DECEMBER, 2015
CASE NO: D15/77/15
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
MRS. LIZZY PEARL ADDISON FOR APPELLANT
NO REPRESENTATION FOR THE REPUBLIC
This Appellant, who was charged with three others at large, was arraigned before the Circuit Court, Kumasi on four charges, namely: Conspiracy to commit crime to wit defrauding by false pretences; Defrauding by false pretences; possessing forged notes and possessing counterfeit notes. The statement and particulars of offence read as follows:
STATEMENT OF OFFENCE
CONSPIRACY TO COMMIT CRIME TO WIT DEFRAUDING BY FALSE PRETENCES CONTRARY TO SECTION 23(1) AND 131 OF ACT 29/60
PARTICUALRS OF OFFENCE
CHIYENAKA NKEM, TRADER, AGED 29 YRS., 2. RASTA AT LARGE, 3. SWANZY AT LARGE AND ONE OTHER AT LARGE, On the 12th day of April, 2011 at Alabar, Kumasi in the Ashanti Region and within the Jurisdiction of this court did agree together with a common purpose to commit crime to wit "fraud"
STATEMENT OF OFFENCE
DEFRAUDING BY FALSE PRETENCES CONTRARY TO SECTION 131 OF ACT 29/60.
PARTICULARS OF OFFENCE
1. CHIYENAKA NKEM, TRADER, AGED 29 YRS., 2. RASTA AT LARGE, 3. SWANZY AT LARGE AND ONE OTHER AT LARGE, On the 12th day of April, 2011 at Alabar, Kumasi in the Ashanti Region and within the Jurisdiction of this court, did obtain the consent of one Alhassan Mohammed to part with cash the sum of 1600 dollars by means of false pretence to wit by falsely pretending that if the said amount was given to you, you could change GHS 2,500.00 for him and upon such false representation you succeeded in obtaining the said amount from the said Alhassan Mohammed which statement you knew at the time of making it to be false.
STATEMENT OF OFFENCE
POSSESSING FORGED NOTES CONTRARY TO SECTION 18 OF COURT ACT 242.
PARTICULARS OF OFFENCE.
1. CHIYENAKA NKEM, TRADER, AGED 29 YRS., 2. RASTA AT LARGE, 3. SWANZY AT LARGE AND ONE OTHER AT LARGE, On the 12th day of April, 2011 at Alabar, Kumasi in the Ashanti Region and within the Jurisdiction of this court, did have in your possession bundles of forged Ghana Cedi Notes.
STATEMENT OF OFFENCE
POSSESSING COUNTERFEIT NOTES CONTRARY TO SECTION 10(2) OF ACT 242
PARTICULARS OF OFFENCE
1. CHIYENAKA NKEM, TRADER, AGED 29 YRS., 2. RASTA AT LARGE, 3. SWANZY AT LARGE AND ONE OTHER AT LARGE, On the 12th day of April, 2011 at Alabar, Kumasi in the Ashanti Region and within the Jurisdiction of this court, did have in your possession counterfeit notes of the denomination of two GHS5.00
CASE FOR THE PROSECUTION
The case for the prosecution was presented by the victim of the offences who was the complainant and three other witnesses inclusive of the Investigator. Their evidence can be found at pages 3 to 16 of the record of proceedings. The evidence of the first prosecution witness (PW1), Alhassan Mohammed, was largely supported by the evidence of PW2 , Alhaji Yusif; and the Investigator , D/Corporal Martin Kwadwo Morgan of Manhyia police.
The evidence adduced by PW1 was to the effect that on 12/4/11, his father-in-law told him that a customer of his needed some dollars and thus requested PW1 to assist him. The said father-in-law gave PW1's telephone number to the said customer. At about 11am, the said customer called to confirm the request for dollars. Then , at about 7pm, the customer called PW1 to inform him that he was ready and that PW1 should meet him with the dollars.
PW1 and the customer met at Manhyia. Immediately PW1 gave the money to the customer, he also gave PW1 some money which happened to be counterfeit and papers, and sped off in a car. The following day, the customer sent the dollars to a place to change into cedis but luck eluded him!. He sent US$ 450 to the person who had given the money to PW1 the previous day, who identified the notes because of his stamp. When PW1 was alerted, he dialed the telephone number of the customer who had taken the money from him and the appellant person's phone rang. PW1 was able to identify the appellant to the Manhyia Police as the person who took his dollars.
PW2 was the person who gave the $ 1600.00 to PW1 to be given to his customer. Later, the appellant gave the money to a small boy to change at his place of business. PW2 was able to identify the notes because of his stamp on the same. He demanded to know who gave the money to him. The small boy led PW1 and PW2 to the appellant where they identified him as the person who collected the US $ 1600 from PW1.
The next witness was described at page 12 of the record as PW4. Looking at the record of proceedings, there is no PW3. It is obvious that this is a typographical error. Hence, the police investigator will be considered as PW3. His investigations corroborated the evidence given by PW1 and PW2. And, upon the arrest of the appellant, he obtained a cautioned statement from him (exhibit A). He also obtained a statement from the appellant when he was formally charged (exhibit C). He maintained his stance throughout cross-examination by the appellant that he had in fact collected the dollars from PW1. It turned out during cross-examination that the appellant had had a previous dealing with PW1. According to the appellant, PW1 changed his CFA into cedis before the instant transaction. This is an indication that PW1 knew the identity of the Appellant.
CASE FOR THE DEFENCE
The case of the 1st accused person (now appellant), was that in April, 2011, he travelled to Nigeria to buy goods and when he got to the Aflao border, he needed money to pay custom duty. He sought financial assistance from his brother by name Uche who lives in Kumasi. He went to the race course to meet his said brother who gave him US$ 450 instead of the US$ 300 he had asked for. In the course of converting the money into cedis, the accused said he was apprehended and ordered to identify the person who had given the dollars to him. However, when he led his accusers to the race course, he was told Uche had left. In cross-examination, the accused admitted that he comes from the same village as A2, but denied committing the offences with A2 and the others at large. As regards the evidence on his telephone line, the accused said it was rather Uche who used his phone to place a call and he did not know what transpired . He also denied that the US$ 450 was his share of the booty.
GROUNDS OF APPEAL
1. That the Sentence is excessively onerous.
That the trial judge failed to give reasons for convicting the appellant in the judgment.
I will consider the additional ground of appeal first. This is because the relief sought is the setting aside of the conviction and sentence dated 08/08/2011. Depending on how the additional ground is determined, it may be unnecessary to go into the ground (1)
SUBMISSIONS BY COUNSEL FOR THE APPELLANT
For the appellant, counsel submitted that the prosecution failed to investigate the story narrated to them by the appellant so as to ascertain the truth or otherwise. In her view, the defence put up by the accused person was not considered by the prosecution. In her view, the accused person's story that he "returned from Nigeria..." qualifies in law as "alibi", which the prosecution is mandated to prove beyond reasonable doubt. And, the failure by the prosecution to do so has resulted in injustice to the appellant. Counsel relied on cases such as Manu v The Republic; John Logan v The Republic (2007/2008) SCGLR - where Aninakwa JSC cited Republic v Ansere 3 WALR 385 at 387 thus:
... if the defense put up by the Appellants at the trial was more consistent with innocence than with guilt, the trial court ought to give the benefit of the doubt created by the Appellants and acquit and discharge them.
Counsel again submitted that the burden of proof on the prosecution in criminal cases was not discharged by the prosecution in the instant case i.e. proof beyond reasonable doubt. She relied on sections 15(1), 11(1), (2) and (3) of the Evidence Act, 1975 NRCD 323. Arguing further, counsel indicated that an accused person is not obliged to prove his innocence. All that he is required to do is to raise a reasonable doubt as to his guilt, should he be called upon to open his defence. COP v Isaac Antwi ( 1961) 1 GLR 408; Lutterodt v COP ( 1963) 2 GLR 429 ; and Forson v The Republic ( 1976) 1 GLR 138 were cited and relied on.
Concluding, counsel urged the court to set aside the conviction and sentence on the ground that the trial judge failed to establish that the prosecution had discharged its burden to the requisite degree and that no case had been made against the appellant from the record. She also invited the court to consider the trial judge's failure to give reasons for the judgment. Tetteh v The Republic (2002)
SCGLR 1219; Afotey v The Republic ( 1984-86) 1 GLR 475; Mainoo v The Republic ( 1984-86) 2 GLR 727 HC; Tsatsu Tsikata v The Republic ( 2003-2004) SCGLR 1068 were cited and relied on by counsel.
Let me commend counsel for the Appellant for writing a well reasoned submission. That is not to say that i agree entirely with her arguments. I accept her submissions on the requisite degree of proof in criminal cases being proof beyond every reasonable doubt. See sections 11(2); 13(1) and 15(a) of NRCD 323 where the law enjoins the prosecution to prove the guilt of an accused person beyond every reasonable doubt. Also, in Gligah & Atiso v The Republic (2010) SCGLR 870 at 879, the Supreme Court, per Dotse JSC re-emphasized this point thus:
... whenever an accused person is arraigned before any court in any criminal trial, it is the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond any reasonable doubt. The burden is therefore on the prosecution and it is only after a prima facie case has been established by the prosecution that the accused person is called upon to give his side of the story
At page 27 of the record of proceedings in the instant case, this is what the trial judge said after narrating the evidence adduced by the prosecution witnesses:
In his defence the accused told the court the 450 dollars was given to him by a fellow Nigerian in the presence of another Nigerian. However, he failed to call the said persons to corroborate his evidence. I think those two Nigerians should have been called by the accused to corroborate his evidence since to me they are material witnesses but he failed to do so. See the case of Adam v Republic ( 1992) GLR 119.
I therefore find his story too true to believe. Hence, i prefer the prosecution's case to his and find him guilty on counts 1 and 2 since that was what the prosecution was able to prove.
He is sentenced to 10 years I.H. L. on both counts. Sentence to run concurrently.
From the above, it is obvious that the trial judge applied the wrong standard of proof. He weighed the evidence on record and by the preponderance of the probabilities, he gave preference to version of the prosecution, as if it were a civil suit. In my view, the trial judge failed to appreciate that there was no evidential burden on the accused to prove his guilt and that all what was required of him was to raise a reasonable doubt as to his guilt. The course taken by the Trial Judge amounted to an improper evaluation of the evidence as well as the application of wrong rules of evidence. The question is, if he had applied the required standard of proof, would he have called upon the accused to open his defence? Those errors on the part of the trial judge rendered the outcome of the trial defective.
FAILURE TO GIVE REASONS FOR THE JUDGMENT
As counsel for the appellant has clearly demonstrated above, a judge is bound to make findings of fact and give reasons to support the same, if a case proceeds to full trial. In AFOTEY V THE REPUBLIC, HC, referred to, supra, Sowah CJ allowing the appeal stated (headnote):
at the close of the evidence, the magistrate gave her verdict as follows: "Judgment: Prosecution has proved its case beyond all reasonable doubts against the accused. The accused is convicted and sentenced to a fine of ¢500 or six months' imprisonment ...” In the circumstances of the case the learned magistrate ought to have given a more careful and judicious appraisal of the evidence than she appeared to have done. It is not being advocated that she should have written a literary essay or opinion in arriving at her judgment, which is not her duty; but she could have made findings of fact (very briefly) with brief reasons in support of her verdict. The magistrate court is a court of summary jurisdiction. The magistrate should adjudicate as such, but when cases are heavily contested (as in the instant case), she must be seen to have exercised her powers and discretion judiciously. The terseness of her judgment is admired, only that, it fell little short of what is expected of her
Further, in MAINOO V THE REPUBLIC (supra) the court held (holding 1) thus:
the law prescribed a mandatory procedure for the due progress of a trial from its inception to its conclusion. A verdict at the end of a trial should be arrived at upon a consideration of the facts and arguments for and against. The magistrate as an arbiter should weigh the pros and cons and make his findings upon which would rest his conclusions and reasons. If there were no findings, an appellate court would be disabled from determining whether the magistrate's conclusions were justified, except in the rare cases where overwhelming evidence pointed only one way. Where no findings were made the courts had regarded the trial a nullity. Since the magistrate made no findings of fact and also did not state any reasons for his judgment, his decision was clearly defective.
What then is the legal effect of what the trial judge did in the instant case? I will find answers in
Mainoo v The Republic (supra) where the court expressed this view (holding 2):
Where the trial was unsatisfactory an appellate court could either allow the appeal simpliciter or order a retrial. The discernible principle from the authorities which dictated the course to resort to, was the discovery of overwhelming evidence upon which a proper inference might be drawn on guilt or liability. If the evidence existed then the appellate court could evaluate it. In the instant case no primary facts were established and since it was not the duty of the appellate court to make primary findings and to proceed thereupon to resolve essential issues a retrial would be ordered. (emphasis added).
Appeal is by way of rehearing. An appellate court has the power to review the entire record and to decide whether the conclusion reached is supported by the evidence. In BREMPONG II v AMOFAH & ORS ( 2001/2002) SCGLR 177, it was held (holding 1) that :
the Supreme Court, as an appellate court, has power to review the evidence as a whole and find whether the conclusion reached by the lower tribunal , is supported by the evidence.
Again, in MANTE V BOTWE (1989/90) 1 GLR 479, CA the position taken was that where trial judge made no finding on a material issue, the appellate High Court judge was permitted to recall that issue and make his own findings of fact from the evidence on record.
It flows from the above that the failure to give reasons for a judgment per se will not always render the judgment a nullity. However, in the instant appeal, the trial judge erred in applying the standard of proof by the preponderance of probabilities to a criminal case before making up his mind. He failed to make a finding that the prosecution had at least established a prima facie case against the accused before calling upon him to open his defence.
Again, he failed to consider whether the defence put up by the accused was reasonably probable, even though he might not believe him. See Mahamadu Lagos v COP (1961) GLR 181, SC, where the conviction of an accused by a court which dismissed the defence on the ground that it did not believe it, without considering whether or not the defence could reasonably be true, was quashed on appeal. So, in this case, the error goes beyond failing to give reasons for the judgment. Obviously, if the trial judge in the instant case had given reasons, the same would have been based on the erroneous evaluation of the evidence and his conclusion would have been very questionable. Once again, i conclude that the judgment of the court is defective on this score and the same ought to be set aside.
I wish to draw the attention of Counsel for the Appellant to Tetteh v The Republic (2002) SCGLR 1219 which she cited in support of her submission that a judgment without reasons is to be set aside as defective. First, Counsel got the citation wrong. It ought to be (2001/2002) SCGLR 854. Second, the Supreme Court reviewed that decision in Republic v Tetteh ( 2003/2004) SCGLR 140. Acquah CJ in the review application set aside the earlier decision as given per incuriam. The reason being that the Supreme Court itself failed to take into account , before quashing the conviction, the provision of the Armed Forces Regulations ( CI 12), art 112.42(2) to the effect that the court-martial shall make findings of "guilty" or "not guilty" without the addition of further words". At page 141A of the report, His Lordship stated:
The judgment of this court dated 11 April 2002 reported as Tetteh v The Republic (2001-2002) SCGLR is accordingly set aside. And that of the Court of Appeal dated 24 May 1999, endorsing the dismissal of the appellant from the Ghana Armed Forces , is upheld.
Since the earlier decision of the Supreme Court was duly set aside on the review application, it can no longer be relied on as an authority on this subject.
RECORD OF CONVICTION
Even though this ground was not raised by Counsel for the Appellant, i notice from page 27 of the record of proceedings that the judge failed to convict the accused before sentencing him. The legal position is that in all cases, there must be a record of conviction before sentence is passed. In Chidia v The Republic (Practice Note) (1978) GLR 81, it was affirmed that a conviction should always precede sentencing. See also COP v Sarpey and Nyamekye (1961) GLR (PtII) 756, SC where it was held that a conviction or a finding of guilty is a vital part of a trial and in its absence a sentence cannot be lawfully recorded or carried out.
As noted at page 27 of the record of proceedings, there was no record of CONVICTION before sentence was passed. In the absence of a conviction, a sentence cannot be imposed. It is visibly clear that Counsel for the Appellant did not even realize that the court did not convict the accused before proceeding to sentence him. If she had paid close attention to the proceedings, she would probably have formulated her additional ground of appeal properly.
That notwithstanding, the Appellant has been in prison since 08/08/2011, that is approximately four years and four months. It will be unjust to order a retrial under the circumstance. For the reasons stated in this judgment, i will allow the appeal and set aside the Judgment of the Circuit Court, Kumasi in The Republic v Chineaka Nkem dated 08/08/2011. The Appellant is accordingly acquitted and discharged.
I must say that the Learned Assistant State Attorney for the Republic had not filed her written submissions as at the time i was writing this judgment. I therefore proceeded to write my judgment without having the benefit of her input.