AMPAH vs. THE REPUBLIC [1977]DLCA1233

Date	1977-05-11
Suit No.
Citation No.	[1977]DLCA1233

AZU CRABBE C.J

AMISSAH JA

ANNAN J.A.

NANA AKUFO-ADDO FOR THE APPELLANT.

KALEO-BIO PRINCIPAL STATE ATTORNEY FOR THE REPUBLIC.

[1977]DLCA1233
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													<main id="main" class="content" style="min-height: 60rem" >AMPAH <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1977] 2 GLR 171<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
11 MAY 1977<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

NANA AKUFO-ADDO FOR THE APPELLANT.<o:p></o:p>

KALEO-BIO, PRINCIPAL STATE ATTORNEY, FOR THE
REPUBLIC.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AZU CRABBE C.J., AMISSAH AND ANNAN
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AZU CRABBE C.J.<o:p></o:p>He
delivered the judgment of the court. The appellant, Joseph Erskine Ampah, and
one Augustus Evans Kwamina Browne, were jointly charged before the Circuit
Court, Accra, on twenty counts with the offence of stealing contrary to section
124 of the Criminal Code, 1960 (Act 29). The relevant facts out of which this
appeal arises can be stated shortly. The appellant and Browne were the
executive director and accountant respectively of the Ghana Chamber of Mines.
Browne had authority, either together with the appellant or one Colonel Bean,
to sign cheques for and on behalf of the Chamber. During the period 1 July 1971
to April 1973, the appellant and Browne, to the exclusion of Colonel Bean,
exercised their right to sign cheques for and on behalf of the Chamber and were
able thereby to convert various sums of money, totalling ¢142,321.74, belonging
to the Chamber to their own use. The moduso perandi of the two men has been
vividly described in the judgment appealed against reported in [1976] 1 G.L.R.
403 at p. 406 as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
method employed by the appellants looked rather simple but ingenious. They used
two agents in the operation, namely, a Mr. E. Q. Hammond and a firm known as
Kweks Agencies. Cheques coming from outside and drawn in favour of the Chamber
were endorsed by the appellants and made payable into the accounts of either
Kweks Agencies or E. Q. Hammond. I should observe that Kweks Agencies was a
private firm registered in Ghana by the first appellant in the name of a Mr.
Alfred Martin. So that, officially and on record, the proprietor of the firm
was the said Alfred Martin; but in reality the first appellant was its owner.
E. Q. Hammond was a pensioner who was personally employed by the first
appellant as a foreman to supervise the construction of a private
dwelling-house of the first appellant. After the cheques which were intended
for the Chamber had been diverted into the respective banking accounts of the
said Kweks Agencies and E. Q. Hammond, the first appellant then got hold of
cheque books supposed to belong to Kweks Agencies and E. Q. Hammond and issued
cheques therefrom for the collection of the sums of money which they had
channelled into the said accounts. By the time the offences were discovered the
two appellants, as I have said, had managed to appropriate the said amount of
¢142,321.74.”<o:p></o:p><o:p>&nbsp;</o:p>The first
appellant referred to in the above passage is J. E. Ampah, the appellant in
this present appeal.<o:p></o:p>At the
close of the case for the prosecution, learned counsel for the defence
submitted, in the teeth of strong evidence that reeked of dishonesty, that the
accused persons had no case to answer. In a very lengthy, but nonetheless
well-reasoned ruling, the learned circuit judge concluded that the prosecution
had made out a prima facie case so that if there was no explanation coming
forth from the accused persons he would be entitled to convict them of the
charges.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant made an unsworn statement and said that he relied absolutely on his
statement, exhibit LLL, which he made to the police during the investigation
into this case. Browne, who has not appealed to this court, gave evidence on
oath. The learned circuit judge found the appellant and Browne guilty on
seventeen counts, and accordingly he convicted them and sentenced them to seven
years’ and five years’ imprisonment respectively. Against their convictions,
the two men appealed to the High Court, Accra, on various grounds, but the
appeals were dismissed. The present appeal to this court is by Joseph Erskine
Ampah alone from the decision of the High Court.<o:p></o:p><o:p>&nbsp;</o:p>This is,
therefore, a second appeal in this case, and in the recent decision of Kwesi v.
The Republic [1977] 1 G.L.R. 448 at pp. 451-452, this court laid down the
principle that should guide a second appellate court as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“On first
appeal from a conviction by a circuit judge or magistrate in a summary trial,
the appellant is entitled to have the appellate court’s own consideration and
views of the evidence as a whole and its own decision thereon. Th</main>