OSAE vs. THE REPUBLIC [1979]DLHC1095

Date	1979-07-13
Suit No.
Citation No.	[1979]DLHC1095

TAYLOR J.

D. DWIRA FOR THE APPLICANTS.

AHLIJAH PRINCIPAL STATE ATTORNEY FOR THE RESPONDENT.

[1979]DLHC1095
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													<main id="main" class="content" style="min-height: 60rem" >OSAE <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC<o:p></o:p>[HIGH COURT, TAMALE] <o:p></o:p>[1978] GLR 446<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:
13 JULY 1979<o:p></o:p>

</div><o:p>&nbsp;</o:p>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">

D. DWIRA FOR THE APPLICANTS.<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 1.0pt 0in">

TAYLOR J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.<o:p></o:p>The
appellant in this case appeals against his conviction on four counts charging
him with the offence of stealing various sums of money, the property of his
employers, the Pioneer Tobacco Company, Tamale branch.<o:p></o:p><o:p>&nbsp;</o:p>The facts
of the case led in evidence by the prosecution are that at the relevant times
the appellant was a salesman of the said Pioneer Tobacco Company, Tamale
branch. As a salesman he was assigned a van and was the sole custodian of one
of two keys which opens and closes the padlock to the van. It was said by the
prosecution that the other key was for security reasons in the custody of the
Standard Bank, Tamale. On May 1977 the appellant collected 262 milles of
cigarettes valued ¢11,595.50 for sale on the Salaga route. He was driven on the
van by a driver employed by the Pioneer Tobacco Company, Tamale. After the
sales they returned from trek and rendered accounts to the company. The
quantity of cigarettes which he returned as unsold was 45.7 milles valued
¢1,854.30. This means that he must have sold 216.3 milles valued ¢9,741.20 and
should therefore pay to the company the said amount. Instead when the amount
which the accused brought was counted it was ¢9,481.35 representing short
payment by ¢259.85. This sum is the subject-matter of the stealing charge in
count one. On 7 June 1977 the appellant went on trek again and this time he
took cigarettes valued at ¢24,610.50. Having regard to the value of cigarettes
returned unsold, namely, ¢2,393.25 the amount the appellant paid over to his
employers showed a shortage of ¢1,088.13. This amount is the subject-matter of
the stealing charge in the second count. In the third count, the accused went
on the Yendi route on 1 August 1977 with cigarettes worth ¢31,363. He returned
on 4 August 1977 with unsold cigarettes worth ¢5,289.87 but the amount he paid
in showed a deficit of ¢2,883.39. On 8 August 1977 he took out cigarettes worth
¢26,712.75. Having regard to what he returned unsold, he ought to have paid in
¢20,580.90, he, however, paid in ¢20,212.90 giving rise to a short payment of
¢378. This is the subject-matter of the charge in the fourth count.<o:p></o:p><o:p>&nbsp;</o:p>The
evidence led by the prosecution touching the quantity of cigarettes supplied to
the appellant for sale, the quantity he returned to the company unsold as well
as the amount of money which he paid in was admitted and was not challenged in
any way whatsoever by the appellant. The case for the prosecution is that since
the appellant must have sold the cigarettes not returned and has failed to
account for the proceeds of sale, he must have misappropriated the sums and was
therefore guilty of stealing.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant gave evidence and raised a number of defences. In the first place, he
admitted the shortages as I have already pointed out and added that he did not
know precisely how the shortages came about. He surmised that the shortages
might be attributed to his customers some of whom he said were not honest. He
indicated that on 1 August 1977 when his van was being loaded the manager sent
him to the office to bring his cash box and stock books. He said it took him
some time to come back because he could not trace the items in time. He said
when he came back he found that his truck had been fully loaded and a box of
tusker left behind. On this occasion when he returned from trek to render accounts
he found that he had incurred a really very heavy shortage amounting to ¢2,883.
This is obviously related to the charge on the third count. He also gave
evidence that one of the drivers of the other vans lost his key and that the
manager told him that he would change his padlock and give him the padlock of
the missing key. The manager denied this and said he changed the padlock
entirely. There is no admissible positive evidence on record that the
appellant’s padlock was, in fact, changed. What is important in regard to the
question of the keys (as the evidence of the prosecution showed) is that the
appellant had one and the Standard Bank kept a duplicate. Finally the appellant
led evidence by a night watchman that on one of the occasions when he went on the
Yendi route and while the van was parked overnight at the Ghana National
Trading Corporation yard, the said night watchman heard someone attempting to
insert a key in the padlock. When he shouted he discovered that it was the
appellant’s driver who was thus interfering with the padlock.<o:p></o:p><o:p>&nbsp;</o:p></sp</main>