Criminal Law and Procedure - Reasons for judgment - Duty of court - Trial and appellate courts not assigning reasons for rejecting evidence in favour of accused - Whether judgment can stand.

The appellant, the chief of Agona Traditional Area in Ashanti, was charged with stealing property of the traditional council. The prosecution’s case was that at a durbar held in the area, VO, a prominent citizen of the area and a relation of the appellant, made a gift of a Mercedes Benz car to the Agona stool for the use of the chief. The appellant registered and insured the car in his name. The car was damaged in an accident and the appellant sold it but did not pay the proceeds into the coffers of the traditional council. The appellant’s defence that the car was bought for him by a friend of VO was found to be inconsistent with his statement to the police. The record showed however that VO had been very generous to the appellant and had previously made two other cars available for the appellant’s use. Minutes of the traditional council meeting however established that the council had resolved that it did not own the car. The prosecution tendered a letter, exhibit F, from VO to the accused advising the accused to claim the car as a gift from him in order to gain time to set in motion the necessary acts of apology and intercession to the complainants and secure a generally amicable settlement of the dispute. The trial court convicted the appellant and the High Court upheld the conviction. On a further appeal to the Court of Appeal,

Held - The issue of ownership was central to the issue whether or not the charge against the appellant had been proved beyond reasonable doubt. There should be clear evidence in explanation that even though the car was registered in the name of the appellant he was not the owner. Also there was evidence that suggested that the car was not the property of the Agona Traditional Council, the alleged owner. Since on the issue of ownership the evidence of PW7 and the appellant differed it was incumbent on the trial court to assign reasons why it preferred the evidence of one against the other. Neither the trial court nor the High Court gave reasons for rejecting these items of evidence. The charge was therefore not proved beyond reasonable doubt and the appeal would be allowed. Comfort v Republic [1974] 2 GLR 1 approved.

Case referred to:

Comfort v Republic [1974] 2 GLR 1.

APPEAL from the judgment of the High Court upholding the conviction of the appellant for stealing.

Charles Agbanu for the appellant.

Anson (Mrs), Chief State Attorney, (with her Wood (Mrs) and Neequaye) for the respondent.

ESSIEM JA. On the 4th day of March 1993, this court allowed the appeal of the appellant and acquitted and discharged the appellant on the charge he faced. The court however reserved the reasons for its decision and I now proceed to give same.

The appellant, at all material times, was the Omanhene of Agona Traditional Area in Ashanti. The prosecution’s case against him was that one Victor Owusu, a prominent citizen of the traditional area and a relation of the appellant, had made a gift of Mercedes Benz Car No GZ 9152 to the Agona Traditional Area for the use of the Omanhene of the area. Subsequently the said car, while being used by the appellant got involved in an accident and, as the evidence at the trial showed, the appellant sold the damaged car but did not pay the income to the coffers of the traditional council.

The defence of the appellant was that the car was never the property of the traditional council but that it was a gift from one Marfo to him personally. The said Marfo happened to be a friend of Mr Victor Owusu through whom the appellant got to know the said Marfo. Although Mr Victor Owusu gave evidence as PW7 the said Marfo did not give evidence. It appears he was not in the country at the time of the trial.

The available evidence shows that the car was registered in the name of the appellant and the insurance policy on the car was also in the name of appellant although it is clear from the evidence that the money used for both the insurance and registration of the car came from PW7, Mr Victor Owusu.

I should here mention that Mr Victor Owusu is a very prominent citizen of this country, a one-time Attorney-General and Minister of Justice of Ghana; it is needless to say that he is a leading member of the Ghana Bar. From the evidence he is also a businessman. The evidence shows, and indeed it is admitted by the appellant, that Mr Victor Owusu had been very generous to the appellant for, apart from the car, the subject-matter of the charge, it is established by the evidence on record that Victor Owusu had at least made available to the appellant two other cars for his (appellant’s) use.

Reading through the evidence it is apparent that the ownership of the car was the central issue in this case. The prosecution alleged that the car was the property of the Agona Stool while the appellant in his evidence before the court denied this although in an earlier statement to the police in connection with this case the appellant stated that the car in question was bought for him by Victor Owusu, PW7. At the trial, he stated:

 “I was installed as Omanhene of Agona Asante about 22 years ago. After this my brother Victor Owusu bought me a first car. This car got spoilt so I informed him and he bought me this car in dispute registered in my name Nana Kwame Boakye.”

See exhibit K. There is thus an admission by the appellant that the car was bought by Victor Owusu and not anyone else.

The evidence of the appellant that the car was bought for him by a friend of Victor Owusu is plainly untrue or at least inconsistent with his statement to the police.

One significant observation to make is that in his statement the appellant maintained that the car was bought for him by PW7. He never mentioned that it was bought for the traditional council. There is however clear evidence on record that PW7 made a presentation of the car at a durbar. At that durbar the evidence of the prosecution witnesses suggests that the car was presented not to the appellant personally but to the Agona state for the use of the occupant of the stool of Agona.

If this is the case then one is at a loss to appreciate why it was registered by PW7 in the personal name of the appellant especially as there is evidence that one car, AF 9475, was both insured and registered in the name of Agona Ashanti Traditional Council.

There is evidence in exhibit 1 which supports the contention of the appellant that the car, the subject-matter of the charge, was a gift to the appellant personally and not to his stool.

When the issue of the ownership of the car cropped up a delegation was sent by the Agona Traditional Council to ascertain from Victor Owusu who the owner of the car was. The report of the delegation is contained in exhibit 1. In their report to the traditional council, they reported through the leader of the delegation that:

“We arrived in Accra on Wednesday 20th July 1987 at about 3.30 p.m. and met Mr Victor Owusu. After usual exchange of greetings we told him of our mission. Mr Victor Owusu made it known that he has also received a copy of such letter and said he was surprised to read that the car he presented to his brother was for the stool. He said the car was his personal gift to his brother Yiadom Boakye and not to the Amoampong Stool.”

One of the members of the traditional council present was Nana Pim Owusu-Ansah, PW5. In exhibit 2 it was the same witness who moved for the acceptance of the minutes in exhibit 1. Thus the evidence of PW5 at the trial on 16/6/88 is inconsistent with the main contents of the meeting of the Agona Traditional Council at which as I have shown the witness was present and took active part in the proceedings.

There is also the evidence contained in exhibit F which indicates that it was PW7 who advised the appellant to claim that the car was a gift to him from PW7. Part of exhibit F which was addressed to the appellant by PW7 was as follows:

 “I however suggested to them that you could raise a defence of a gift of the car from your brother as a means of gaining time to set in motion the necessary acts of apology and intercession to the complainants and secure a generally amicable settlement of the dispute...”

PW7 certainly knows the implications of this; I shall not comment further except to say that it does a lot of damage to his credibility.

The prosecution’s case is based almost entirely on the evidence of this witness as to the ownership of the car. Was it for the traditional council or the accused personally? Since on this issue the evidence of the appellant and that of PW7 differed it was incumbent on the trial court to assign reasons why he preferred the evidence of one of them to the other. Unfortunately this was not done and the High Court to which the appellant appealed also did not deal with the issue. Both courts accepted the evidence of PW7 and did not subject it to any serious examination. The issue of ownership was central to establishing whether or not the charge against appellant had been proved beyond reasonable doubt.

Section 125 of Act 29 defines stealing in the following words:

 “A person steals if he dishonestly appropriates a thing of which he is not the owner.”

In this case the appellant claimed that the property was his and there is evidence that the car indeed was registered in his name. There should be evidence that even though it was registered in his name the appellant was not the owner. There is evidence on record which suggests that the car was not the property of the Agona Traditional Council. Why did the court below reject that evidence? The answer cannot be ascertained from the judgments of either the trial court or the appellate High Court.

 In Comfort v Republic [1974] 2 GLR 1 holding (2) it was held as follows:

 “The trial magistrate failed in discharging the judicial process because he made no findings of fact, neither did he record the reasons for his decision. The version of the defence being corroborated the case was evenly balanced and the trial magistrate was by Act 30 s 177(1) bound to give reasons for accepting the prosecution’s versions.”

Although this is a High Court judgment I agree with that holding. At page 5 of the report we read:

“As the case for both sides was as it were balanced, the trial magistrate was duty bound to have given reasons for accepting the prosecution’s case.”

In the instant case there is evidence which shows that the traditional council which was described as “the owners” of the car involved in this case had at a meeting indicated that it had lost nothing, neither did it own the car in question. It was the duty of the trial court to have adverted its mind to these facts. Unfortunately it did not.

Thus the charges against the appellant were not proved beyond reasonable doubt, the standard of proof required in criminal trials. These were some of the reasons which led me to allow the appeal.

ADJABENG JA. I agree                            

LUTTERODT JA. I also agree                             

Appeal allowed.

Justin Amenuvor, Legal Practitioner.

Godzi and another v Laryea and others

COURT OF APPEAL

LAMPTEY, KPEGAH, ADJABENG JJA

10 DECEMBER 1992

Courts - Appellate - Findings of fact by trial court - Evidence on record supporting findings made by trial court - Whether appellate court would interfere with findings.

The appellant and the respondents were the children of NTT by his wife NM. In recognition of the assistance given him by his said children in his business NTT built the disputed house for the said children but prepared the title deeds in the name of the appellant, his eldest son by NM. After the death of NTT, the rooms in the disputed house were shared among the said children and they exercised acts of ownership over their respective rooms. Later, the appellant claimed the house as his self-acquired property and put his son in charge to collect rents from the tenants. The appellant’s son refused to account to the respondents and warned them not to enter the house. The respondents sued the appellants for a declaration that the disputed property was built by NTT for them and the appellant and for account of rents collected by the appellant’s son and distribution thereof. The respondents sought also an order of injunction to restrain the appellant’s son from collecting rents from the tenants in the house. The trial judge entered judgment for the respondents and the appellant appealed to the Court of Appeal on the ground that the trial judge erred in entering judgment for the respondents in view of the evidence adduced at the trial.

Held - The trial judge was competent to decide which of the competing stories to accept having regard to the evidence adduced and once a decision was taken by him and the facts or the evidence supported such a decision, an appellate court could not interfere or disturb any such decision or finding. The evidence on record supported the decision of the trial judge. Asibey III v Ayisi [1973] 1 GLR 102, CA, Nyame v Tarzan Transport [1973] 1 GLR 8, CA, and Boateng v Boateng [1987-88] 2 GLR 81, CA followed. Hausa v Hausa [1972] 2 GLR 469, CA distinguished.

Cases referred to:

Asibey III v Ayisi [1973] 1 GLR 102, CA.

Boateng v Boateng [1987-88] 2 GLR 81, CA.

Hausa v Hausa [1972] 2 GLR 469, CA.

Nyame v Tarzan Transport [1973] 1 GLR 8, CA.

APPEAL from the judgment of the High Court.

Hoeyi for the appellant.

Somuah Asamoah (for Nelson Cofie) for the respondents.

ADJABENG JA. The appellant, Tawiah Tsuru Afote Godzi, and the respondents are the children of Numo Tawiah Tsuru. Their mother is Madam Naa Mawuna. Numo Tawiah Tsuru, now deceased, was a fisherman of Nungua. Because of the assistance his said children gave him in his fishing venture, Numo Tawiah Tsuru decided to build a house for them. And in order to make it exclusive to them, and to ensure that his other children with another woman would not claim any interest in this house, the said Numo Tawiah Tsuru decided that the documents on the house should be made in the name of the appellant who is the eldest among these children. After the death of the said deceased father, the rooms in the house were shared among the respondents and the appellant who exercised acts of ownership over their respective rooms. Later, however, the appellant, taking advantage of the fact that the documents on the house were in his name, claimed that the house was his own self-acquired property. He put his son, who was sued as the second defendant, in charge of the house. The 2nd defendant then started to collect the rent from the tenants in the house and refused to account therefor. He also warned the respondents not to enter the house.

The respondents, therefore, took action against the appellant and his said son at the High Court, Accra. They claimed against the defendants jointly and severally:

“(a) declaration that House No 26 South Klosal, Block 3, Nungua, was built by Numo Tawiah Tsuru.

(b) declaration that the said house belongs to the plaintiffs and the 1st defendant.

(c) statements of account [of rents] collected by the defendants and distribution among the plaintiffs and 1st defendant in equal shares.

(d) An injunction restraining the 2nd defendant from collecting rents from the tenants in the house.”

The defendants resisted the claim. The defence put up, as hinted earlier, is that the house in dispute is the self-acquired property of the appellant.

The evidence adduced by the 2nd and 3rd plaintiffs-respondents and their witnesses, however, supported their claim that the house was built by the late father of the appellant and themselves, that the rooms therein were shared among them after the death of their father, and that they exercised acts of ownership over their respective rooms. The trial judge was impressed by the evidence of the 2nd and 3rd plaintiffs-respondents and, especially, their third and fourth witnesses. PW3 described himself as a former tenant in the house in dispute and said that the appellant told him that the house did not belong to him alone but to him and his brothers. And that he (PW3) later paid the rent for his room to the 1st plaintiff who was the owner of that room. PW4 was the carpenter who, as admitted by the appellant, roofed the house in dispute. This witness said emphatically that he was employed and paid by the late Numo Tawiah Tsuru, the late father of the parties herein, and not by the appellant. The trial judge accordingly entered judgment in favour of the 2nd and 3rd plaintiffs and made the declarations they sought in reliefs (a) and (b) on the writ of summons.

The appellant appealed to this court on the ground that the judgment was against the weight of the evidence adduced before the trial court. Four additional grounds of appeal were filed later. At the hearing of the appeal, counsel withdrew, with leave, the appeal of the 2nd defendant-appellant. Counsel for the 1st defendant-appellant then argued the original ground of appeal, and the additional grounds 1 and 4. The additional grounds 1 and 4 state as follows:

“1. The trial judge erred in law by entering judgment for the 2nd and 3rd plaintiffs for reliefs (a) and (b) in view of the evidence adduced at the trial.

4. The trial judge’s failure to consider the evidence of the 1st defendant’s witnesses on the ground that they were tenants of the 1st defendant was an error in law which occasioned substantial miscarriage of justice to the 1st defendant.”

A study of the few submissions of some substance made by the appellant’s counsel shows clearly that counsel was only complaining about the handling by the trial judge of the facts or the evidence in the case. For example, counsel submitted that there was a conflict between the evidence of the 2nd plaintiff and that of the 3rd plaintiff, and that this conflict should have been resolved in favour of the appellant. Counsel also submitted that the appellant had proved that the property in dispute is his self-acquired property and that the trial judge should have accepted his version.

It is trite learning that it is the trial judge who is competent to decide which of the competing stories he or she would accept having regard to the evidence adduced. And once a decision is taken on this by the trial judge and the facts or the evidence supports such a decision, an appellate court cannot interfere to disturb any such decision or finding; see Asibey III v Ayisi [1973] 1 GLR 102 CA; Nyame v Tarzan Transport [1973] 1 GLR 8, CA and Boateng v Boateng [1987-88] 2 GLR 81, CA.

In the instant case, there was ample evidence before the trial court to the effect that the house in dispute was built by the late father of the appellant and the plaintiffs, and not by the appellant as he claimed in his defence. There was evidence also that it was the intention of the said late father of the parties that this house should go to his said children as their joint property, that the rooms in the said house were indeed shared among the plaintiffs and the appellant after the death of their father, and that some of them, at least, exercised rights of ownership over their respective rooms. The trial judge believed and accepted this evidence on the record. No doubt, therefore, this court cannot interfere with the decision of the court. We cannot disturb the findings made by the trial court.

In the course of his arguments, counsel for the appellant cited the case of Hausa v Hausa [1972] 2 GLR 469 at 472, and submitted that the trial court was bound by this decision of the Court of Appeal. After reading through the report in this case, I am at a loss as to its relevance to the instant case. The facts in both cases are quite different. In the Hausa case, above, the plaintiffs who were paternal brothers and sisters of the deceased challenged the purported sale of their deceased brother’s property in dispute to the second defendant by the first defendant who claimed that the property had been gifted to him by the deceased when he was alive. These facts, to me, have nothing in common with the facts in the instant case as related earlier. There are also no legal issues common to the two cases. I think, therefore, that counsel for the respondents was right when he submitted that the case of Hausa v Hausa (supra) was not applicable to the instant case.

On the whole, I think that the trial judge adequately dealt with the issues involved in this case, applied the law correctly, and came to the right conclusion. We have no right, therefore, to disturb her decision. The appeal in the circumstances ought to fail.

LAMPTEY JA. I agree.

KPEGAH JA. I also agree.

Appeal dismissed

Kizito Beyuo, Legal Practitioner.