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JUDGMENT

MRS. J. BAMFORD-ADDO, J.S.C.:

The Appellant was charged on a seven count charge contrary to Sections 9(1) K 16 and 9(2)(a) of the Public Tribunals Law 1984 (PNDCL 78) and tried at the National Public Tribunal. He was convicted and on Appeal to the Court of Appeal the convictions on six of the counts were quashed but that on count 2 was affirmed.

The charge in count 2 reads as follows:

"Statement of Offence

Dishonest Acquisition of Property contrary to Sections 9(1)K and 16 of the Public Tribunals Law 1984 (PNDCL 78).

Particulars of Offence

Kofi Oppong @ Kofi Nkrumah @ Kofi Apau former procurement Manager of the Cocoa Marketing Board (COCOBOD), Head Office on or about the 30th March 1985 at Cumberland Hotel, Marble, Arch, London in the United Kingdom while holding a public office as Procurement Manager of the Cocoa Marketing Board under the colour of the said office obtained an amount of $10,000 (Ten Thousand US Dollars) from George Pappoe a Local Representative of some foreign companies prospecting for Procurement Contracts from the COCOBOD, which amount you obtained as your commission on the contracts which COCOBOD would award to the said George Pappoe's principals; which amount you thereby dishonestly acquired."

The brief facts of the case are that the Appellant was at the relevant time the Procurement Manager of the Cocobod. He was said to have demanded certain sums of money form George Pappoe an agent of a certain foreign based company with which the Cocobod has a business relationship, in order to secure contracts for the said George Pappoe's overseas principals. He was convicted at the trial court of all the 7 counts on which he was tried by a Judgment of the National Public Tribunal Accra dated 16th December 1992. He was sentenced to 15 months I.H.L. on each count to run concurrent and ordered to refund to the State the amount involved in foreign currency or cedis at the prevailing official exchange rate. The foreign Exchange involved was to be refunded to the state was $10,000 and £27, 124.53 or in default 10 years I.H.L.

The Appellant appealed to the Court of Appeal. That court heard the case and on the 19th February 1998 allowed the appeal against convictions on counts 1, 3, 4, 5, 6, 7 while the appeal against count 2 was dismissed and the Court of Appeal also affirmed the trial tribunals order that Appellant should refund $10,000 to the State. The Appellant again appealed this conviction on count 2 to this Court on a seven point grounds of Appeal to be referred to later. Counsel for Appellant made a general submission that the charge against the Appellant was not proved beyond all reasonable doubt since the evidence of the prosecution witness George Pappoe P.W.1 against Appellant was discredited as a result of cross-examinations and was so manifestly unreliable that no reasonable Tribunal could safely convict upon it. Also that where the defence creates a reasonable doubt as to the guilt of the accused a conviction cannot stand and there must be an acquittal. Counsel for Appellant in the light of these foregoing propositions of law, argue together ground (a) and (b). They are that:

(a)  the judgment is unreasonable or cannot be supported having regard to the evidence and

(b) the Court of Appeal erred in law because it made certain findings of fact which cannot be supported by the evidence led at the trial.

In support of these grounds he complained against the finding made by the Court of Appeal that

(i)    the principals of George Pappoe won a tender from Cocoa Board.

(ii)  That the tickets for the trip of accused and George Pappoe was provided by the Principals who won the contract.

The evidence of PW1 in proof of count 2 was given by George Pappoe who said he was in his house in March 1985 when Appellant went to him and told him that now that he had won the contract for the supply of fuel products, and he appellant had also been able to increase the quantities on some items. He (appellant) had been able to get the Tender Board to make another allocation for the first contract to be repeated. As a result the Appellant demanded $10,000 from PW1, from any commission that PW1 would earn from his principals. According to PW1 he told Appellant that his principals would not entertain such approach since he as agent got his commission when goods were fully supplied and letters of credit honoured in favour of the principal. He said that Appellant did not accept this explanation and prevailed on him, claiming that he had committed himself to some "big guns" at Cocobod who were interested in the contract. PW1 said that the pressure on him from the Appellant was such that he had to agree to buy tickets for himself and the Appellant to go to Holland where he had money ready there to be given to Appellant. He continued that after discussion arrangement was made with his principals in Holland who bought tickets for them i.e. Appellant and himself PW 1 and they left Ghana for Holland on KLM flight on 29th March 1985. When they arrived in Holland his Principal met them at the Airport in Amsterdam and gave him US $13000. He said he left Amsterdam with Appellant to London on the same day and they lodged at Cumberland Hotel Marble Arch where he gave $10,000 of the money he received in Amsterdam to Appellant.

Even though appellant admitted he travelled with PW1 to London through Amsterdam on the said date, and that the tickets were procured by PW 1, he denied receiving the US $10,000 from him in London. He explained that he went to London with PW1 to settle a family matter in London. The question which agitated the court was this that if so then why did he have to pass through Amsterdam with PW 1 first.

The trial Tribunal found this explanation of Appellant not reasonably probable and rejected it, saying after, after considering the evidence on record that:

"All these admitted pieces of evidence lend credence to PW1's allegation of the payment of ....... US $10,000 to the accused as he swore in evidence."

Also the Court of Appeal further held:

"... having regard to the fact that the position the accused placed himself in by accepting ticket from PW1's principals to travel with PW1 to London and back, any reasonable Tribunal of fact would believe that the trip was undertaken to enable PW1 pay the US $10,000 to the accused/Appellant following the award of tender to PW1's principals".

What the trial Tribunal and the Court of Appeal in the said statements did was to draw necessary inference from the evidence given by PW1 and the other circumstantial pieces of evidence in support of charge:

Can it be said that these findings are not supported by the evidence on record at the trial? There was in my view evidence from which both the trial Tribunal and the Court of Appeal were entitled to make the inferences they made from both direct as well as circumstantial evidence supporting PW1's evidence.

The complaints in (a) and (b) of the grounds of Appeal that findings of fact made by the Court of Appeal are not supported by the evidence is unfounded. Both the trial Tribunal and the Court of Appeal were right in the inferences they drew from the evidence available to form the view that Appellant contrary to his denial received $10,000 from PW1 which inferences they were perfectly entitled make. It is trite learning that where there is no direct evidence of a fact, the correct inferences from other evidence could be made in proof of that fact see (S.18 of NRCD 323). Ground (a) and (b) are dismissed.

Ground C of the grounds of Appeal is that:

"The dismissal of the appeal against Count 2 was wrong in law because the prosecution failed to call material witness and consequently failed to establish a prima facie case against the Appellant."

In support of this Ground for Appellant Counsel argued that PW 1 testified that the sum of US $10,000 was given to him by Jan Borsboom at Amsterdam airport and that he later gave it to Appellant in a London Hotel. According to Counsel since Appellant denied receiving this amount it was imperative for the Prosecution to have called Jan Borsboom as he was a material witness.

The principle of law is that where a material witness was available whose evidence could settle a matter one way or the other he should be called otherwise the prosecution would fail to prove a case beyond reasonable doubt. See Regina v. Ansera (1958) W.A.L.R p.385 at 388.

Jan Borsboom on the facts is not a material witness whose evidence would have settled the case one way or the other. For this reason failure to call him was not fatal to the prosecution's case and the prosecution cannot be said to have failed to prove its case beyond reasonable doubt. He was not present when PW 1 handed over the money to Appellant in London as the evidence shows. He was in fact in Amsterdam and did not witness any handing over of US $10,000 to Appellant so as to make him a material witness.

The issue of the payment of the US$10,000 really amounts to oath against oath i.e. oath of PW1 against Appellant. In such a case there should be other evidence from which a reasonable inference could be made supporting one side. This is because reasons must be given by the court why one side is preferable to the other.

In the case of Lutterodt v. Commissioner of Police (1963) 2 GLR 427 the Supreme Court in holding 3 stated as follows:

"where a decision of a trial court turns upon the oath of prosecution witness against that of a defence witness, it is, incumbent on the trial court to examine the evidence of the said witnesses carefully along with other. If the court prefers the evidence of the prosecution then it must give reasons for the preference, but if it is unable to give any reasons for the preference then that means that there is a reasonable doubt as to which of the versions of the story is true, in which case, the benefit of the doubt must be given to the defence."

This the trial Tribunal did when in considering the evidence it stated concerning the issue of the travel and payment of the US $10,000

"It is the case for the prosecution that on this occasion the accused used a Ghanaian passport in which his name was recorded as "Ben K. Oppong" and his designation given as "Buyer". This passport according to prosecution differs from Passport No.703710 which also belongs to the Accused in which he is designated as "Procurement Manager" According to Prosecution the Accused deceived his employers that he was going to France while he travelled to London with P.W.1 to receive payment of the $10,000 dollars ....... In respect of the first two counts the Accused in his defence of the case for prosecution denies the allegations of PW1"

The Tribunal than went on to discuss all other evidence and circumstances relating to the travelling together of P.W. 1 and Appellant and concluded that:

"All these admitted pieces of evidence lend credence to P.W.1's allegation of payment of ..... and $10,000 to the accused as he swore in his evidence."

The Tribunal did consider all the evidence and explained why it has to believe the story of PW1 and this finding is perfectly allowed and correct.

The ground of Appeal in Ground C is therefore without merit.

Ground D is that:

"Since the Court of Appeal rejected PW 1's evidence on Count 1 and the only evidence in support of Count 2 was led by PW 1 the Court of Appeal erred in law by affirming the conviction which was only supported by the evidence of a discredited witness."

The conviction on Count 1 was quashed by the Court of Appeal on the sole ground that the prosecution failed to call a witness who was actually present when £10,000 was paid to the wife of Appellant for his Appellant's benefit. PW 1 said he gave the £10,000 to Mrs. Beatrice Oppong. Mrs. Oppong was a material witness who could have settled the case one way or the other but she was not called. Her evidence would have settled the fact of the payment of £10,000 on behalf of Appellant, beyond reasonable doubt, and the Court of Appeal therefore quashed the conviction in Count 1 on that ground and not because PW 1 was not a credible witness or a witness who had been discredited. The situation as regards Count 1 is distinguishable from Count 2. Count 1 was dismissed for failure to call a material witness as stated above and the evidence on this Count was given by PW 1, this does not mean that Count 2 must also be equally dismissed since it was the same PW1 who provided the evidence on count 2. PW 1's evidence was not discredited and could be used to support count 2 in the circumstances of this case. What happened with count 2 was simply that both the Court of Appeal and the trial Tribunal disbelieved the defence of the accused and therefore convicted him on that count. This ground of Appeal also fails.

Ground E.

"The Court of Appeal erred in law by failing to consider the Appellant's complaint that his defence was not adequately considered by the trial tribunal."

This complaint is unfounded because the Court of Appeal considered the whole of the defence and the evidence and made inferences from the facts already established in the case and that is why 6 counts out of the seven counts preferred against Appellant were quashed. In view of this can it be correct to say that the Court of Appeal failed to consider the Appellant's complaint that the trial Tribunal had not adequately considered his defence? The answer is a clear no, because in Count 2 the Court of Appeal adequately considered the evidence of Prosecution and the defence and found Appellant's case not reasonably probable, and therefore disbelieved him. That court even considered the burden of proof on Appellant and said:

"... in our view, therefore the burden borne by the accused by virtue of the enactment under which he is charged remains one of raising a reasonable doubt as to his guilt but he is not required to prove anything beyond reasonable doubt."

The court concluded that it "was abundantly established on the record that only a partial court can pronounce him innocent." The record shows that the defence received meticulous consideration from the Court of Appeal which court came to the correct conclusion on count 2. This ground also fails.

Ground F

"The Court of Appeal erred in law by upholding conviction on Count 2 on the basis of circumstantial evidence when the same did not point to one and only conclusion that the Appellant was guilty of the offence laid against him"

In support of that ground Appellant's Counsel submitted that the Court of Appeal inferred the guilt of Appellant on Count 2 from the fact the Appellant and PW 1 travelled together to London and returned to Ghana together. According to counsel their travel together could be explained in more ways than one so that it was wrong for the Court of Appeal to rely on their inference that they travelled together so that Appellant could collect the money and consequently for that court to affirm the conviction against him on Count 2.

In criminal cases proof of guilt can be by direct positive evidence or from inferences made from such evidence and/or by circumstantial evidence, where direct eye-witness is not available. In Dua v. The Republic (1987-88) 1 GLR p.343 Abban  J.A. as he then was held:

"circumstantial evidence was evidence of surrounding circumstances, which by undesigned coincidence was capable of proving a proposition with the accuracy of mathematics. In criminal cases it was sometimes not possible to prove the crime charged by direct or positive evidence of persons present at the time the crime was committed. So where the testimony of eye-witness was not available the jury was entitled and indeed permitted to infer from those facts which the prosecution had proved other facts necessary either to complete the element of guilt or establish innocence ......."

In such circumstances however the inference must be logical and reasonable. S.18 of Evidence Decree 1975 (NRCD 323) says:

"S. 18(2) An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action."

Here there was direct evidence of the travel to London through Amsterdam. The purpose of the travel PW 1 said, was to collect US $10,000 for Appellant, but appellant said it was for him to go to London to settle a family dispute. Other evidence was given to the effect that Appellant used another passport of his in the name of Ben K. Oppong and his designation given as Buyer for that travel and he told lies to his employers that he was travelling to France while he went to London.

The Court considered the stories of both accused and PW.1 and the circumstances surrounding the travel and held that PW 1 was a consistent and reliable witness. In my view also if Appellant was going to settle a family dispute in London which was what he claimed, one wonders why he travelled with PW.1 first to Amsterdam where the money was collected from Jan Borsboom before continuing to London. The Court of Appeal did consider other matters and circumstances before reaching the only reasonable and logical inference and conclusion that both travelled to Amsterdam to collect money from Jan Borsboom, and that PW 1 gave US $10,000 to the Appellant when they got to London. I am of the view the courts' inference was correct and supported by the evidence. The appeal on this ground fails.

Ground G

The dismissal of the appeal against Count 2 cannot be supported because the Court of Appeal    failed to examine, evaluate and/or consider the appellants complaint that by holding at p. 175 paragraph 2 of the judgment of the trial Tribunal that:

"prosecution's case is so formidable that we are marveled by accused's failure to make any effort to produce evidence which was and is within his means and capacity to adduce to substantiate his version" at the time when it had not considered the case of the Appellant the trial Tribunal convicted the Appellant ahead of due consideration of his case and this occasioned a substantial miscarriage of justice."

On close analysis of the said statement in the judgment of the trial Tribunal it becomes evident that even though counts 1 and 2 were discussed together by the court the statement complained of referred to only Count 1.

In Count 1 the evidence of the prosecution from PW 1 was that Appellant obtained £10,000 from him through his appellant's wife, Beatrice Oppong who collected the money in London in the presence of one Mary. Immediately after the comment complained of, the Trial Tribunal went on to discuss the evidence concerning the proof of Count 1 thus

"In this regard it is surprising that Defence which bears the burden of proof did not see the need to call the wife of accused to testify in response to PW 1's believable claim that on the occasion that he bought the ticket for her trip to London, he paid £10,000 to her in the presence of one Mary at her residence in London."

The Tribunal continued

"It is on record that during the investigation she refused to accept opportunity offered her to present her version on the matter. If the prosecution where duty had been lightened in this instance saw the need to call the wife of PW 1 to support her husband in his claim, we do not understand why the defence discarded the evidence of Mrs. Oppong ......" "In this case, the accused who bears the burden of proof and whose wife enjoyed the benevolence of PW 1 on the occasion, was better placed than prosecution to call Mrs. Oppong to testify. Surprisingly, defence did not even explain why he did not call Mrs. Oppong."

From these pieces of comments there is no doubt that the statement complained of was referable to Count 1 only, in respect of which the Appellant failed to call his wife to testify on his behalf. It is this failure to call Mrs. Oppong by the prosecution which the Court of Appeal relied on to uphold the appeal on that count and to quash that conviction. However there was enough evidence to support the conviction on Count 2 and that is why the Court of Appeal rightly dismissed the appeal on that Count. In the result no substantial miscarriage of justice can be said to have occurred, by the comment of the trial Tribunal complained of. Also Section 31(2) of the Courts Act 1993 (Act 459) provides thus:

"The court shall dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred ..... but that there is evidence to support the offence alleged in the Statement of Offence in the charge or indictment"

Considering this provision the Court of Appeal was right in dismissing the appeal in Count 2. The complaint in Ground "G" affects, if anything at all, only Count 1 of which the Appellant was acquitted any way by the Court of Appeal. This ground of appeal fails.

In my opinion there is enough evidence to support the conviction on Count 2, the Court of Appeal was justified in affirming that conviction.

I would dismiss this Appeal as unmeritorious and affirm Appellant's conviction and sentence. The Appellant having already served his sentence of imprisonment is ordered only to refund $10,000 US Dollars or its equivalent in cedis at the prevailing Bank rate to the State.

AMPIAH. J.S.C.:

I agree.

KPEGAH, J.S.C.:

I agree

ATUGUBA, J.S.C.:

I agree

SAPONG, J.S.C:

I also agree.

COUNSEL

Mr. Peasah Boadu for Applicant.

Mr. Seth Gyambiby, P.S.A. for the Respondent.