EDMUND TENKORANG vs. THE REPUBLIC [2012]DLHC7441

Date	2012-07-04
Suit No.	SUIT NO BCRA 126/2012
Citation No.	[2012]DLHC7441

HIS LORDSHIP MR. JUSTICE MOHAMMED NABON

[2012]DLHC7441
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													<main id="main" class="content" style="min-height: 60rem" >EDMUND TENKORANG<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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HIS LORDSHIP MR. JUSTICE
MOHAMMED NABON <o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>On
the 5/3/2012 the appellant was found guilty of stealing under Section 124 of
Act 29/60 and sentenced to 3 years with hard labour and order to refund an
amount of Gh¢11,002.40 to the company. <o:p></o:p>It
is against this conviction and sentence that the appellant has appealed to this
court. The stated grounds of appeal are that <o:p></o:p>1 The learned judge erred when he convicted and sentenced
the accused person when the elements' constituting the charge of stealing was
not proved by the prosecution and or beyond reasonable doubt. <o:p></o:p>2 The learned judge relied on decided authorities that
are inapplicable to the instant case to convict the accused person <o:p></o:p>3 The learned judge reliance on the testimony of PW1 and
PW4 to convict accused person was misconceived having regard to the witnesses
testimony <o:p></o:p>4 The learned judge erred in not giving adequate
consideration to the evidence of the defence and <o:p></o:p>5 The conviction cannot be supported having regard to the
evidence. <o:p></o:p>After
carefully examining the grounds of appeal raised by the appellant in the
instant case I hold the view that grounds one and five are sufficient to
dispose of the appeal and that is what I intend to consider . <o:p></o:p>I
should however note here that the A-G's office was served with notice of this
appeal but they failed to tend up. <o:p></o:p>On
ground one, accused is charged with the offence of stealing. <o:p></o:p>By
Section 125 of Act 29/60 a person steals if he dishonestly appropriates a thing
of which he is not the owner. <o:p></o:p>The
essential elements are that accused is not the owner of the thing allegedly
stolen, accused must have appropriated the thing, the appropriation must be
dishonest. <o:p></o:p>The
charge sheet alleges accused stole cash the sum of Gh¢11,002.40 between January
and May 2009 at Airport Residential Area. <o:p></o:p>The
facts attached to the charge sheets states that accused was given assorted
quantities of wine and liquor to sell and for which he failed to render account
of the sale to the company. The court below correctly summed up its finding at
page 2 of the judgment - paragraph 1, where it states that the issue or matter
the company had with accused was that they found shortages on the goods
assigned to him of Gh¢11,002.40. <o:p></o:p>In
the facts of the case as stated by the prosecutor he told the court accused led
the police to a spot in Kumasi and Obuasi during investigations when accused
told them he supplied the products to some customers who did not pay. He
pointed out some spots to the police. Enquiries around revealed that no such
person sells assorted wines and liquor there. That the person who had a
container there use to sell batik tie and dye. However in the evidence before
court PW4, the police investigator told court the accused led them to only one
woman whom he alleged is one of his customers. Our investigation reveal that
the woman owed Gh¢300 plus. At Obuasi the spot accused showed to them turned
out to be a person who sells tie and dye batik and not drinks. <o:p></o:p>If
the court below finds that it was an issue of shortages and also agrees that no
reconciliation was done how did the company arrive at GH¢11,002.40 as
shortages. <o:p></o:p>The
court below should have ordered a reconciliation to determine the exact amount
due the company. In the criminal jurisprudence of this country the charges
against an accused person have to be proved beyond reasonable doubt to obtain a
conviction. In the instant case no customer was produced by prosecution who
testified that he/she was supplied with drinks and he/she paid money to
accused. It was the accused who rather led the police to a customer to retrieve
Gh¢304.00 <o:p></o:p>The
appellant told the court he supplied drinks to customers who did not pay. <o:p></o:p>If
the judge has found that there was no reconciliation of account then his
reliance on State Vrs Hagan (1961) 2 GLR 652 was inappropriate to convict
accused. The reliance of the trail judge on the testimony of PW1 and PW4 to
convict accused was also in error. <o:p></o:p>PW1's
evidence was about shortages while PW4 talks about the appellant leading police
</main>