Faalongbasoglo v S (J3/02/2025) [2026] GHASC 48 (29 July 2026)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA - AD 2026

Coram

BAFFOE-BONNIE CJ (PRESIDING) PROF. MENSA-BONSU (MRS.) JSC KWOFIE JSC ADJEI-FRIMPONG JSC ACKAAH-BOAFO JSC

Criminal Appeal

NO. J3/02/2025 29TH JULY, 2026

ALBERT DIYUOH FAALONGBASOGLO …………. APPELLANT

VRS

THE REPUBLIC …………. RESPONDENT

Judgment

KWOFIE JSC:

This appeal was launched against the judgment of the Court of Appeal, Kumasi dated the 2 nd of November 2023 , which affirmed the conviction and sentence imposed on the appellant by the High Court, Wa. The trial High Court had convicted the appellant of the offence of stealing, contrary to section 124(1) of the Criminal and Other Offences Act, 1960 (Act 29) and sentenced him to eighteen (18) months I.H.L. The trial court also ordered the appellant to refund the sum of GHS83, 025.00 to his employers GN Bank the complaint’s therein within fourteen (14) days of the judgment.

SUMMARY OF FACTS AND TRIAL BEFORE THE HIGH COURT The appellant was arraigned before the High Court, Wa on one count of stealing contrary to section 124(1) of the Criminal and Other Offences Act 1960 (Act 29). The particulars of the charge filed by the prosecution was that between September 2017 and June 2018, the appellant who was then the manager of the Hamile Branch of GN Bank dishonestly appropriated the sum of One Hundred and Fourty -Nine Thousand, One Hundred Ghana Cedis (149,100.00) belonging to his employers GN Bank.

The facts on which the charges were laid were that the complainant, the Regional Manager of GN Bank authorised the Regional Operations Officer of the bank to inspect the activities of the appellant, who was then the Manager of the Hamile Branch of GN Bank. Upon the conduct of a cash count, it was detected that the accused had stolen an amount of GHS119, 525. 00 and a further audit revealed that the total amount stolen by the appellant was GHS149 , 100.00 . During investigation s, the appellant admitted the offence and in his investigation caution statement admitted to stealing GHS124,000.00 to cover a theft engaged in by a subordinate when he (the appellant) was a branch manager at Tumu.

However, investigations at the Tumu branch revealed that the appellant handed over the branch without any cash shortage. In the course of the investigations, the appellant refunded an amount of GHS64, 340.00.

TRIAL AT THE HIGH COURT After a full trial in the High Court, Wa , the appellant was found guilty of the offence of stealing, convicted and was sentenced to 18 months I.H.L. The court also further ordered the appellant to refund the sum of GH¢83,025.00 to his employers GN Bank. APPEAL TO THE COURT OF APPEAL Dissatisfied with his conviction and sentence, the appellant appealed to the Court of Appeal, Kumasi against the said conviction and sentence. The Court of Appeal , after evaluating the evidence on record in dismissing the appeal against the conviction and sentence stated that: “the judgment and the law established beyond a reasonable doubt that the appellant dishonestly appropriated the sum of GHS 119, 525.00 belonging to the complainant bank. He confessed to the said appropriation which the evidence established to be dishonest. The High Court judgment dated 15 th February 2022, by which the appellant was convicted for the offence of stealing is supported by the evidence on record”. The Court of Appeal thus affirmed the judgment of the trial High Court. APPEAL TO THE SUPREME COURT

Still dissatisfied with the decision of the Court of Appeal, Kumasi, the appellant has now launched this appeal to the highest Court of the land with a final throw of the dice by a Notice of Appeal dated 17th January 2024 on the following grounds of appeal: I. That the conviction and sentence should be set aside on grounds that it cannot be supported by the evidence on record. II. That the Court of Appeal erred in law in upholding the decision of the trial court that the appellant was guilty of the offence of stealing a sum of money different from the sum of money stated in the charge sheet. III. The Court of Appeal erred in fact by finding that the appellant failed to challenge the finding of the cash counts at the trial court despite evidence on record to the contrary. IV. The Court of Appeal erred in fact by failing to hold that the appellant herein alleged confessions were given under duress. V. The Court of Appeal erred in law by failing to hold that the trial court’s determination that the appellant herein’s alleged confessions were not given under duress without a mini-trial being conducted, was wrongful despite the appellant raising same at the trial. ARGUMENTS OF COUNSEL FOR THE APPELLANT Counsel for the appellant submitted that the Court of Appeal erred when it upheld the decision of the trial court that the appellant was guilty of stealing the sum of GHS119 , 525.00 which amount was different from the sum of GH149 , 100.00 which the appellant was alleged to have stolen and which was stated in the charge sheet. He submitted that it is absurd for the Court of Appeal to hold that the appellant cannot be held accountable for the sum of GHS149,100.00 as originally stated on the charge sheet but proceeded to uphold the judgment of the trial court that the appellant dishonestly appropriated the sum of GHS119,525.00

Counsel further submitted that the Court of Appeal erred in affirming the trial Court’s decision that the appellant’s confession were made voluntarily without conducting a mini-trial to examine this issue even though the appellant raised issues and concern s about duress during the trial. Finally, counsel for the appellant submitted that the prosecution failed in relation to the cash counts to produce the tracing dates and specific activities leading to the shortages. He submitted that there is no evidence directly showing that the appellant appropriated any money belonging to the bank and the report of the cash counts was not credible and so the appellant should not have been liable for the alleged shortage. SUBMISSIONS OF COUNSEL FOR THE RESPONDENT Responding to the arguments of the appellant, counsel for the respondent submitted that essentially the principle is that an appeal is a rehearing and an appellate court has a duty to examine afresh the material proffered by the prosecution in proof of the charges against the appellant. Counsel also referred to section 406 (1) of the Criminal and Other Offences Procedure Act 1960 (Act 30) and submitted that no error, irregularity or misdirection in any charge shall lead to reversal or alteration in appeal or review unless such error, omi ssion, irregularity or misdirection has in fact occasioned a substantial miscarriage of justice. He submitted that in this instant case, no errors as regards the evidence or irregularities were made to warrant a reversal or overturning of the appellant’s conviction and sentence. Counsel referred to the cash count certificates for cash counted on 9/5/2018 as Exhibits A and B, the Hamile Branch Supervisory Report, Exhibit C, Query for Non Compliance and the response to the query as Exhibits D and E the letter of undertaking and Repayment Schedule prepared by the appellant Exhibit G and submitted that the appellant did not

challenge the testimony of the PW1 the Regional Operations Manager of the Complainant bank. He added that the appellant admitted responsibility for the stolen money and submitted a schedule for the repayment of the stolen amount. Counsel added that when the appellant accepted responsibility for the suppressed funds in the repayment schedule Exhibit G, he admitted dishonestly appropriating money belonging to GN Bank the complaint bank and his employers.

Analysis of the Evidence

The appellant was charged with a single count of stealing contrary to Section 124(1) of the Criminal and other Offences Act 190 (Act 29) Being a Criminal charge Section 11(2) of the Evidence Act 1975 (NRCD 323) which requires proof beyond reasonable doubt comes into play. The section provides: “11(2) In a Criminal action, the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence, a reasonable mind could find the existence of the fact beyond a reasonable doubt” It is trite that proof beyond reasonable doubt does not mean proof beyond every conceivable doubt but was explained in the case of Republic vs. Yeboah (1974) 1 GLR 268 as follows: “it is indeed pertinent to remind ourselves of the dict um of Denning J (as he then was) on the stan dard of proof in criminal cases: in Miller vs. Minister of Pensions (1947) 2 ALL ER 372@373 he said : “Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong

against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable” the case is proved beyond reasonable doubt. But nothing short of that will suffice” Also it is important to note the rehearing principle echoed by Francis JSC in the case of Appiah vs. The Republic (1987-88) 2 GLR 377 where in his Lordship stated thus at page

“An appeal is essentially a rehearing, consequently it has been our duty to examine afresh the material proffered by the prosecution in proof of the charges against the appellant and, in relation to the applicable law, to test the legal viability of the appellant’s conviction. We have also considered critically the possibility of the appellant being the innocent victim of a criminal conspiracy” All the 5 ground s of appeal filed and argued by counsel for the appellant can be sub summed under 2 main grounds that is i) That the appellant was found guilty and convicted of stealing the sum of GH₵119,525.00 which amount was different from the higher sum of GH₵149,100.00 which the appellant was charged with and was stated in the charge sheet and ii) That the Court of Appeal was wrong in affirming the decision of the trial court that the appellant confessed to stealing the sum of GH₵119,522.00 It is worth pointing out that the case of the prosecution essentially was that the appellant stole an amount of GH ₵149,100.00 from the Hamile Branch of the GN Bank where the appellant was in charge as the Branch Manager at the time of the loss of the amount. The prosecution proved that the said amount had been stolen when cash counts were conducted at the branch by the Regional Operations Manager of the bank Philip Zingsong PW1.

The evidence shows that the cash count is the process where an operations Manager of the Bank conducts a cash count with the officer in charge of a branch of the bank, check the physical cash at the bank and cross-check with the cash on hand in the system (vault) to ensure that they tally. The cash count process from the evidence on record is the accepted procedure in the bank used to determine if there has been a shortfall or shortage in the cash at the bank. The evidence shows that separate cash counts were conducted at the Hamile branch by the PW1 and the appellant. The first cash count which was conducted on 9 th May 2018 showed a shortfall of GH ₵124,003.93 and a cash count certificate Exhibit A was signed by both the appellant and the PW1. A second cash count was conducted on the 20 th of June 2018 at the same branch by the PW1 and the appellant and the differen ce or shortage of cash was now GH ₵119,525.00. A third cash count was conducted by the PW1 and one Ambazu Ferdinand at the branch on 6th July 2018 and the shortage had risen to GH₵149,100.00. This third cash count on 6th July 2018 was conducted in the absence of the appellant because he had been reported to the police and Ambazu Ferdinand had been asked to take over the Hamile branch of the bank as Branch Manager. When the appellant was queried by his Superior Officer for the shortage of the sum GH₵119,525.00 which he could not account for , he replied in a response that the difference was as a result of suppression by his former CSO Mr. Yusif Bawa Tundemah who absconded with the amount. He promised “to fix the difference in the next one month as I have already instituted a police investigation regarding his whereabouts”. The record shows that after the cash count of 5th July 2018 conducted in the absence of the appellant which showed a shortage of GH ₵149,100.00, the appellant refunded in total

GH₵64340.00; it was the GH₵149,100.00 which formed the basis of the charge of stealing GH₵149,100.00 in the charge sheet. At the end of the trial, the appellant was found guilty of stealing the sum of GH¢119,525.00 and convicted and sentenced to 18 months I.H.L. Counsel for the appellant in his Statement of case has stressed strenuously that it was wrong for the appellant to have been convicted of a lesser amount of GH¢119,525.00 when he had been charged with stealing a higher amount of GH¢149,100.00 as stated in the charge sheet. He submitted that it was wrong for the Court of Appeal to have affirmed the judgment of the trial court that the appellant wrongfully appropriated GH¢119,525. In its judgment the Court of Appeal explained in detail why it accepted the prosecution’s case that the appellant wrongfully appropriated the lesser amount of GH¢119,525.00. The Court stated as follows: “Based on the two cash count exercises PW1 fired a query to the appellant on the missing GH¢119,525.00. The query was admitted as Exhibit D. In response to the query the appellant authored exhibit E. He explained that the shortfall was a suppression by his former CSO, Bawa Yusif who had absconded with that money but had promised to repay it. Appellant claimed to have referred the matter to the police for investigation. He promised to refund the amount within a month. The respondent accordingly accepted liability for the shortfall of GH¢119,525.00, to the respondent, that sum of money was dishonestly appropriated by the appellant. Appellant’s version was that the sum was suppressed by another staff member Bawa Yusif. If appellant is to be believed then he could not be personally blamed for the loss of the money, since his subordinate allegedly took it. He would have only accepted ultimate responsibility as the manager of the Hamile branch, responsible for losses that occurred there. The evidence on record however supports the case of the respondent, rather than the appellant. In Exhibit H, which is a c autioned

statement dated 5th July 2018, the appellant admitted the aforementioned shortfall at the Hamile Branch where he was the Manager. He stated: “it is not true that I stole this amount but rather it was my Customer Service Officer (CSO) Mr. Bawa Yusif at Tumu Branch in 2017 under my supervision when I was the Tumu Branch Manager. When I detected it he told me that he was going to pay it, I did not report to the Regional Manager since he promised to refund the money. He was later transferred to Gwolly branch and he vacated post and bolted away but still management w as not aware of the money. I was transferred to Hamile Branch which I took responsibility for since I did not report earlier to the police or the authorities. However on the 3 rd June, 2018, I reported it to the Tumu police for investigation” Further the Court of Appeal stated: “The appellant by the above statement agreed that the shortfall of GH¢199,525.00 occurred at the Hamile Branch. The evidence established that the Tumu and Hamile branches have separate accounts which are not mixed to each other. The appellant never felt the need to explain as to how the Tumu and Hamile accounts beca me interconnected to the extent that a loss at Tumu reflected in Hmile and vice versa ……. The dishonesty of the appellant was evident in his refusal to give credible account of the missing money and resorts to the peddling of falsehoods as a cover - up. We concluded that the appellant, without the knowledge of his employer, took that amount from the Hamile branch for a purpose known only to himself” It is difficult to appreciate counsel for the appellant’s contention that the prosecution did not prove that the appellant appropriated the sum of GH¢ 119, 525.00 in the face of evidence on record and the analyses by the Court of Appeal.

Indeed the figure of GH¢149.000.00 which the appellant was charged with was admitted by the appellant in his Letter of Undertaking Exhibit G dated 9th July 2018 and he accepted responsibility for the total amount of GH¢ 149,100 that had been suppressed under his watch at the Hamile branch of the bank. The Court of Appeal rightly in our view took the view that the figure of GH¢149,100.00 was arrived at during a cash count conducted in the absence of the appellant contrary to the bank’s own operational procedures on 6th July 2018. The Court of Appeal stated clearly as follows: “The cash count of 6 th July, 2018 violated appellant’s fundamental right to notice and hearing. Any cash count that took place behind the ba ck of the appellant amounted to a violation of the bank’s own procedure and is not credible. The amount of cash stated in the cash count certificate of 6 th July 2018, could not be proven beyond reasonable doubt, as having been dishonestly appropriated by the appellant. A Court of law cannot endorse the condemnation of a man behind his back, when he had not been given an opportunity to be heard, which he squandered. We determined that the result of the cash count of 6th July 2018 was not credible for which reason he cannot be held accountable for it. The acceptance by the appellant of the sum of GH¢ 149,100 or GH¢124.000 in the further investigation caution statement (Exhibit J) the charge statement (Exhibit K ) or the undertaking he authored (Exhibit G) are not binding on account of the wanton breach of the cash count protocols of the bank. Our review of the evidence, the judgment and the law establishes beyond a reasonable doubt that the appellant dishonestly appropriated the sum of GH¢119,525.00 belonging to the complainant bank. He confessed to the said appropriation which the evidence established to be dishonest. The High Court judgment dated 15 th February, 2022 by which the appellant was convicted for the offence of stealing is supported by the evidence on record”