SEY vs. THE REPUBLIC [1996]DLCA618

Date	1996-02-14
Suit No.
Citation No.	[1996]DLCA618

WOOD JA

BROBBEY JA

ESSILFIE-BONDZIE JA

CAPTAIN (RTD) EFAH DARTEY FOR THE APPELLANT.

ANTHONY GYAMBIBY SENIOR STATE ATTORNEY FOR THE RESPONDENT.

[1996]DLCA618
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">SEY<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">THE REPUBLIC<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1995-96] 1 GLR 60<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 14
FEBRUARY 1996<o:p></o:p>

</div>COUNSEL:<o:p></o:p>CAPTAIN (RTD) EFAH DARTEY FOR THE APPELLANT.<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">

ANTHONY GYAMBIBY, SENIOR STATE
ATTORNEY, FOR THE RESPONDENT. <o:p></o:p>

WOOD, BROBBEY AND
ESSILFIE-BONDZIE JJA<o:p></o:p>

</div>JUDGMENT OF WOOD JA.<o:p></o:p>A quantity of gas oil which was supplied to the Ghana Railway
Corporation, Kumasi on 2 March 1989, was found to be short by 1,340 imperial
gallons. Six persons, who were all employees of the corporation were, in
connection with this matter, arraigned before the Ashanti Regional Public
Tribunal on a charge of “doing an act with intent to sabotage the economy of
Ghana” contrary to section 9(1)(f) of the Public Tribunals Law, 1984 (PNDCL
78). The act complained of.<o:p></o:p>After the trial, five of them were found guilty and convicted. The
sixth accused, the appellant in these proceedings, being aggrieved by his
conviction and sentence, has appealed to this court on five grounds. One of
them, though improperly formulated, is a most common ground of appeal. It is
ground (a) of the original grounds of appeal and reads as follows: “(a) That
the conviction is against the weight of evidence.”<o:p></o:p>The more acceptable formulation in criminal appeals is “The
conviction cannot be supported having regard to the evidence.” Be that as it
may, the substance of this ground (a) is contained in an additional ground (1),
namely: “The conviction was an error in law because looking at the ingredients
of the offence charged and the particulars thereof, nowhere in the record is
there established evidence to support a conviction.”<o:p></o:p>The argument with respect to the additional grounds (1) and (2)
simply is that the prosecution failed woefully to prove beyond reasonable doubt
that the appellant was one of those who stole the oil. It was contended that of
all the seven witnesses called by the prosecution, none testified that the
appellant was present at the measuring and discharge of the oil. Furthermore,
it was argued, the statement of the appellant was not a confessional one either,
so that as at the close of the prosecution’s case no prima facie case has been
made out against him. Counsel’s contention therefore is that since the fifth
accused whom he asked to sign the invoice covering the oil did not also
implicate him in the offence, he ought to have been acquitted and discharged.<o:p></o:p>Again the argument in support of grounds (3) and (4) is that the
inferences and conclusions that were drawn from the evidence led were all in
error. It was urged that the trial tribunal made a wrong finding of fact, one
not supported by the evidence, when it held that the appellant to start with
denied being instrumental in the signing of the invoice. The contention here is
that it was this wrong finding that made the tribunal conclude he was
inconsistent and so guilty.<o:p></o:p>Counsel for the Republic conceded the following: That at the close
of the prosecution’s case there was no evidence—direct or indirect—connecting
the appellant to the offence. His contention however is that as the other
accused persons opened their defences, evidence they led implicated the
appellant and destroyed the claim made by him that he was not present when the
oil was discharged. Pleading that we do not disturb the conviction, he urged
that the tribunal found he was an untruthful witness and consequently they were
justified in drawing those inferences and conclusions.<o:p></o:p>The most important question of fact the tribunal had to determine
was whether or not the appellant was present when the oil was being discharged.
The tribunal did not treat this question as a light matter. It seems to me it
was the central plank upon which his conviction and indeed the conviction of
the others were based. The importance they attached to its finding can be
gleaned from these opening paragraphs of their judgment:<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 way the facts appear on the record, there is no hypothesis
upon which the shortage can be explained except to say that those who took
delivery of the oil are directly responsible for it. The circumstances lead
irresistibly to that conclusion and it would be a travesty of justice if it
were held otherwise.”<o:p></o:p>I am here not castigating them for attaching so much importance to
this question. On the contrary I would indorse their view, that given the facts
of this case, the particulars of offence, that is to say the act compl</main>