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MALLAM ALI YUSUF ISSAH v. THE REPUBLIC [2/4/2003] CA NO. 4/2001.

IN THE SUPERIOR COURT OF JUDICATURE

THE SUPREME COURT

ACCRA

____________________

CORAM: WIREDU, C.J (PRESIDING)

ACQUAH, J.S.C.

AKUFFO, J.S.C.

AFREH, J.S.C.

DR. TWUM, J.S.C.

CRIMINAL APPEAL NO. 4/2001

2ND APRIL, 2003

MALLAM ALI YUSUF ISSAH         :      APPELLANT

VRS.

THE REPUBLIC                                 :     RESPONDENT

 

_________________________________________________________________________________________

JUDGMENT

AKUFFO, J.S.C.

The Appellant is the former Minister of Youth and Sports. On 20th July 2001, the High Court convicted him on two counts of stealing and fraudulently causing the financial loss of $46,000.00 to the State contrary to sections 124(1) and 179A(3)(a), respectively, of the Criminal Code, 1960 (Act 29). The High Court sentenced him to serve 4 years in jail on each count plus a fine of ¢10,000,000.00 or, in default, 12 months in jail on count two. Additionally, the Appellant was ordered to refund the amount of $46,000.00 or, in default, serve an additional jail term of 2 years. All the sentences were to run concurrently. The Appellant appealed to the Court of Appeal against both the conviction and the sentences. On October 23rd 2001, the Court of Appeal gave judgment upholding the conviction and, therefore, dismissed the appeal. However, the court varied the sentences by quashing the 2 years' jail sentence imposed in default of making the refund ordered by the High Court.

The Appellant by his appeal herein challenges the Court of Appeal's confirmation of the conviction and the remaining sentences. The Notice of Appeal sets out 9 grounds of appeal, which may be summed up as follows:—

1. The confirmation of the conviction of the Appellant on the two counts cannot be supported by the evidence.

2. The Court of Appeal erred when it failed to evaluate the evidence in accordance with the law regarding circumstantial evidence (grounds 2 and 3).

3. The Court of Appeal erred when it failed to determine whether, with regard to the evidence of the prosecution before the High Court, the requisite standard of proof had been satisfied.

4. The Court of Appeal erred when it held that the Appellant had failed to prove that he had been framed.

5. The Court of Appeal erred when it confirmed that the Appellant's former bodyguard was not a vital witness and therefore the failure by the prosecution to call him was not fatal to the prosecution of the Appellant.

6. The Court of Appeal erred when it ignored the Learned Trial Judge's statement, which raised the Appellant's burden of proof to one beyond reasonable doubt.

7. The sentence to refund the missing amount having been declared to be enforceable by civil action, the remaining sentences of 4 years on each count are too harsh.

8. The manner in which the trial of the Appellant was conducted by the High Court deprived the Appellant of and/or infringed his fundamental human right to a fair trial under Article 19 of the Constitution.

At the hearing of this appeal, we drew the attention of counsel for the Appellant to the interlocutory appeal in which he had raised the issue as to the constitutionality of the charge brought against the Appellant in count two. Counsel's reply was that, once an appeal is by way of a rehearing, the Court of Appeal's decision on the constitutionality of the charge, together with its decision on all other issues, are all before us. He, therefore, invited us to consider all of the record before us.

Section 31 (1) of the Courts Act, 1993 (Act 459) provides as follows:—

"Subject to subsection (2) of this section, an appellate court on hearing any appeal before it in a criminal case shall allow the appeal if it considers that the verdict or conviction or acquittal ought to be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment in question ought to be set aside on the ground of a wrong decision of any question of law or fact or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal."

Subsection (2), to which subsection (1) is made subject, requires the appellate court to dismiss an appeal if it considers that there has, actually, been no substantial miscarriage of justice or that the point made by the appeal consists of a technicality or procedural error or a defect in the charge or indictment but that there is evidence to support the alleged offence in the statement of offence. From the grounds of appeal, the Appellant is saying that his conviction cannot be supported having regard to the evidence and that, in any event, the sentence is too harsh. He is also saying that he has been denied his constitutional right to a fair trial.

Regarding the evidence, we have reviewed the entire record of proceedings and have no doubt that the Appellant's conviction, as well as the confirmation thereof by the Court of Appeal and the respective reasons, given by the learned Justices of Appeal for their conclusions, are amply supported by the evidence adduced by the prosecution. Furthermore, this is an appeal from concurrent decisions of the courts below, i.e. the High Court and the Court of Appeal. That being so, it was the duty of the Appellant to demonstrate to this court that the conclusions of the trial court and the Court of Appeal were not based on the evidence on record or that, on the totality of the evidence, the charges against him had not been proven beyond reasonable doubt. This, the Appellant, in our view, has failed to do.

Before moving on to the question of whether the proceedings in the High Court in any way infringed upon the Appellant's right to a fair trial, there is the need to consider whether, regardless of the foregoing, the trial judge assigned to the Appellant a higher burden of proof than that required by the law. To deal with this question, there is the need to take a close look at the provisions of the Evidence Decree, 1975 (NRCD 323), relating to the burden of proof on an accused person in a criminal trial. These provisions start off in section 10 with a definition of the burden of persuasion as follows:—

"(1)  For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.

(2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establish the existence or non-existence of a fact by a preponderance of probabilities or by proof beyond a reasonable doubt."

Section 11 (1) and (3) state that:—

"(1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.

"(3) In a criminal action, the burden of producing evidence, when it is on the accused as to any fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt."

Section 13(2) also provides that:—

"Except as provided in section 15(3), in a criminal action the burden of persuasion, when it is on the accused as to any fact the converse of which is essential to guilt, requires only that the accused raise a reasonable doubt as to guilt.'

And finally, in section 14, it is provided that:—

"Except as provided by law, unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting."

Taken together, the burden of producing evidence and the burden of persuasion are the components of 'the burden of proof.' Thus, although an accused person is not required to prove his innocence, during the course of his trial, he may run a risk of non-production of evidence and/or non-persuasion to the required degree of belief, particularly when he is called upon to mount a defence.

According to counsel for the Appellant, the trial court set a higher standard than that legally required of the Appellant when, in the course of his judgment, he expressed himself as follows:—

"This court was treated to a revelation of a litany of misdeeds at the Ministry of Youth and Sports, many of which were unravelled during the short tenure of office of the accused. For example, the accused had cause to castigate the Ag. Chief Director for being incompetent on one or two occasions. . . .

"For all this, the accused said he had been framed up with the story of he having stolen the $46,000.00. I must say that most of the above were admitted by the prosecution witnesses, but it was not enough to say that the accused was framed up. The accused should have also shown how as result of the hostility to him in his office, all those persons or some of them, either by themselves or their agents, privies, workmen or assigns and confederates took the money away from him. He should also have shown how the money was taken from his suitcase by or on the plane or elsewhere. Nothing of the sort was shown by him. Beyond merely making these allegations, he provided no concrete of substance of any evidence to buttress his point. When the onus shifts unto the accused to raise reasonable doubts in the story of the prosecution, the story of the accused must indeed go beyond what is nothing but fanciful fiction and mere suppositions. This, the accused in my estimation from his otherwise long and verbose evidence, failed to do. Whilst I disbelieve his evidence, I do not believe it to be reasonably probable either. In the result I state that his evidence did not meet the case of the prosecution.”

When counsel for the Appellant raised this point before the Court of Appeal, the Court, per Gbadegbe, JA., concluded that, when read with the entirety of the judgment, it is clear that the trial judge had properly directed his mind to the relevant burden of proof, and therefore, that portion of the judgment could not have amounted to a miscarriage of justice within the contemplation of section 31 of the Courts Act. We do not believe that the Court of Appeal erred in arriving at this conclusion. Admittedly, there was no burden on the Appellant to show how the money got missing. However, we are not convinced that that expression alone, on the part of the Trial Judge, is such as to amount to his misdirecting himself on the law and thereby causing a miscarriage of justice. The Appellant had a burden of producing evidence sufficient enough, in the light of the totality of the evidence, to raise, in the judge's mind, a reasonable doubt as to his having appropriated the money. The Learned Trial Judge declared himself unpersuaded by the evidence produced by the Appellant to buttress the assertion in his defence that he had been framed, and we have not been shown any reason why we should find otherwise.

Turning now to ground 9, which raises the issue of whether or not the trial court conducted the trial of the Appellant in such a manner as to deprive him of or infringe upon his fundamental and constitutional right to a fair trial under article 19, counsel for the Appellant, under this ground, particularised the instances that, in his view, give rise to this ground as follows:—

a. "The Fast Track High Court, Accra refused to stay proceedings for the Supreme Court, Accra to determine an appeal against the dismissal of a submission of no case to answer and the constitutionality of the second charge against the Appellant... and in fact stated that only an express order of the Supreme Court Accra and not the pendency of an application before the Supreme Court Accra for a stay of proceedings is adequate to stay proceedings before it.

b. "That the Fast Track High Court, Accra refused the Appellant's applications for necessary adjournments to enable counsel for the Appellant to facilitate the preparation of Appellant's defence/case in consonance with his right under Article 19 of the Constitution....

c. "That the Appellant's right of appeal under the 1992 Constitution ... has been hampered by high fees peculiar to the Fast Track High Court system which raises an issue of jurisdiction namely whether the fast Track High Court is in substance a High Court simpliciter.

The grant or refusal of an application for an Order of Stay of Proceedings is entirely within the discretion of the court. As with all such discretions, it must be exercised judicially, not whimsically or capriciously. The mere fact of the pendency of an interlocutory appeal does not necessarily justify, or compel, the exercise of the discretion by a trial judge. The circumstances of the particular case must be taken into account and such circumstances must include some special circumstances. In this case, the learned High Court judge gave copious reasons and based himself on decided cases, for his refusal to stay the proceedings. As he noted, at page 14 of Volume 2 of the Record of Appeal:—

"In the instant case, if the trial goes on and the Supreme Court allows the appeal filed by the accused, the trial will automatically be halted and the accused will earn his freedom. If it is over by then, he would be acquitted and discharged on both counts. Also the accused will have the decision quashed by certiorari or set aside by appeal. No irretrievable harm will be caused to the accused then.

“I do not lose sight of the fact that the Court of Appeal has ruled that the accused has a case to answer on both counts as the evidence supports them and a prima facie case has been made out against the accused.”

In the course of moving his application for Stay of Proceedings, counsel for the Appellant had, as he has done in his written submissions before us, relied on this court's decision in British Airways v. The Attorney General, [1996-97] SCGLR 547. The learned judge, however, distinguished (correctly in our view), that case from the circumstances surrounding the application before him. We consider that the trial judge had sound reasons for refusing the application and that, in refusing to exercise his discretion in the matter, he acted judicially and did not deny to the Appellant his right to fair trial, nor did he infringe upon such right.

Likewise, adjournments are within the sole discretion of the court and the mere refusal by a judge to grant the Appellant's applications for adjournments cannot, of itself, constitute a denial of the right to a fair trial, particularly where the peculiar circumstances of the court were such that it was possible to produce transcripts of the records of the previous day's proceedings within a matter of hours.

As to the third particular, this court has, by its ruling dated June 26th 2002, in CM 11/2002, Tsikata v. the Attorney General, now placed it beyond any further debate that the Fast Track Court is part of the High Court. The higher fees charged thereat are justified because of the court's technical mode of operation and cannot form the basis of a conclusion that such fees amount to a denial of the Appellant's constitutional right to a fair trial.

Finally, and with regard to the sentences, as varied by the Court of Appeal, counsel for the Appellant submitted that, taking into account the peculiar circumstances of the case, the custodial sentences be waived. These special circumstances, according counsel are that:—

1. The Appellant was in office as a Minister for only 30 days and received no remuneration for his services.

2. The Appellant admitted responsibility for the loss of the $46,000.00 and offered to refund the same by instalments.

3. The Appellant's commitment to refund the said amount was constrained by the law in view of the offences charged and his plea of "not guilty" to the charges.

4. The Appellant can only make good his offer to refund the amount if he is involved in activities that yield earnings, therefore incarceration will damage is capacity to make the refund.

It is quite clear from the record that the Appellant did, indeed, offer to make the refund in instalments, both during the investigation of the loss and in the course of the trial. However the law on the matter is quite clear. Section 35 of the Courts Act sets out the parameters and consequences where an accused or convicted person offers compensation or restitution. The section requires that such an accused person must first admit the offence and then offer compensation or make restitution and reparation for the loss, harm or damage, whereupon the court shall proceed to accept a guilty plea from the accused and convict him on his own plea. In such event, the Court may, in lieu of passing sentence on the accused, make an order for him to pay compensation or make restitution and reparation, subject to such conditions as the court may direct. This is the import of subsections (1) to (4) of the said section 35. Admittedly, modern jurisprudence frowns on custodial sentences and considers restorative justice more beneficial and economical to the society. Furthermore, the current trend in the administration of criminal justice is to encourage more recourse to civil remedies where such are available for actions that constitute both civil and criminal offences. In this case, the State, unfortunately for Appellant, opted to bring criminal charges, rather than civil claims, against him; that being so, we cannot bypass the clear provisions of Act 459, s. 35. The Appellant did indeed offer to refund the money, however he did not plead guilty to the offence charged. Consequently, we cannot waive the sentence simply because he has offered to refund the missing amount. In the circumstances, the custodial sentence is lawful, as has been admitted by counsel for the Appellant, and in order. We, therefore, see no reason to waive it.

In coming to the foregoing conclusions, we would state that, in a nutshell, we have taken into consideration all the proceedings in this case and all papers filed on behalf of the parties, including interlocutory proceedings, the grounds of appeal filed and everything laid before this court and we have determined that:—

a.  The charge based on the Criminal Code, (Act 29) as amended, i.e. section 179A (3)(a), is constitutional and has been legitimately laid under the Criminal Code. The charge and the provisions under which it was brought have in no way violated the provisions of article 19 of the Constitution. We adopt fully, the reasons and opinions of the Justices of the Court of Appeal, Brobbey, Baddoo and Amonoo-Monney, JJA, dated June 26th 2001, in CRA 22/2001 and affirm the same.

b.  On the facts and evidence brought, we are satisfied that they support the conclusions arrived at by both the trial and appellate courts of justice and we confirm them. As to both the conviction and the sentence, none of the grounds of appeal filed on behalf of the Appellant has succeeded in persuading us to hold otherwise.

The entire appeal is hereby dismissed.

E.K. WIREDU

JUSTICE OF THE SUPREME COURT

G.K ACQUAH

JUSTICE OF THE SUPREME COURT

S.A.B. AKUFFO

JUSTICE OF THE SUPREME COURT

D. K. AFREH

JUSTICE OF THE SUPREME COURT

DR. S. TWUM

JUSTICE OF THE SUPREME COURT

COUNSEL

Mr. Ambrose Derry for Appellant.

Mr. Anthony Gyambiby for Respondent.

gso*

 

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