CRIMINAL LAW

LAW 106
CENTRAL UNIVERSITY
 OFFENCES AGAINST PROPERTY RIGHTS

INTRODUCTION
 Offences against property rights may be categorized in two main
groups –

There are the acquisitive offences – in the sense of the acquisition

of items – these offences involve dishonesty

Then there are offences involving damage or destruction of

items
 OFFENCES INVOLVING DISHONESTY
-STEALING
Stealing
 Stealing is a second degree felony – sec 124(1)
 A person who is convicted for stealing on more than two occasions is
disqualified from election to Parliament or to a District Assembly for a period
not exceeding five years • sec 124(2)&(3)
 By definition, a person steals if he dishonestly appropriates a thing of which
he is not the owner - sec 125
 The actus reus is the appropriation of a thing and the mens rea is the
dishonesty with which the thing was appropriated
 The actus reus (appropriation) connote the concept of asportation (a lawyer’s
word, which means the taking or moving of an item), while the mens rea
(dishonesty) speak of the concept of animus furandi (the intention to steal)
 STEALING
 To establish these elements, the prosecution must prove three
requirements, namely:
1. that the accused is not the owner of the thing allegedly stolen
2. that the accused appropriated the thing alleged to have been
stolen, and
3. that the appropriation was dishonest- sec 120 - Lucien
Lack of ownership – that the accused is not the owner of the thing
allegedly stolen
 There is no requirement that the prosecution should prove who actually
owns the thing allegedly stolen - sec123(3)
 All that is needed is for the prosecution to show that the accused is not
the owner of the thing allegedly stolen.
 STEALING
 Therefore, a charge of stealing is not founded on the relationship between the accused
and the actual owner of the thing, but rather on the relationship between the accused
and the thing.
 So, the fact that the owner is not known does not make a difference – the accused will
still be culpable if it is shown that he took something that does not belong to him.

ii. Appropriation – that the accused appropriated the thing alleged to have been
stolen
 This is the element of asportation
 By section 122(2), an appropriation of a thing means any
 - moving
 - taking
 - obtaining
 - carrying away or
 - dealing with a thing
 STEALING
 Thus, the law does not require the actual carrying away of an item
or the carrying away of an item up to any distance before a person may
be said to have appropriated the item
 Merely removing the item or dealing with it in a manner intended to
deprive the owner of it, without necessarily carrying it away to some
distance is sufficient to fix the accused with liability
 This is so as long as the taking, moving, obtaining, carrying away, or
dealing with the thing was with the intention of depriving the owner of
 the benefit of his ownership, or
 the benefit of his right or interest in the thing, or
 in its value or proceeds, or
 any part thereof - sec 122(2), Refer also to the case of Aning
 STEALING
 The decision in Aning is based on the principle in Walsh

 In Walsh, the prisoner was tried on an indictment for stealing a bag. The
bag was placed in the front boot of a coach. The prisoner, who was sitting on the box,
lifted the bag.
 A person who stood beside the wheel on the pavement took hold of the bag, and
while the two were trying to draw it out of the boot with a common intent to steal it
they were interrupted by the guard, and they dropped the bag.
 It was held that even though the bag was not entirely removed from the boot, since
the raising it from the bottom had completely removed each part of it from the space
that specific part occupied there was complete asportation, and the conviction was
right.
 And as the illustration goes – if a person disguises a horse with the intention of
stealing it, the act of disguise amounts to appropriation
 STEALING
 However, it should be noted that if a person moves, takes, obtains,
carries away, or deals with a thing but without intending to deprive the
owner of the benefit of ownership, or the benefit of the right, or interest in
the thing, etc. there is no appropriation in law
 So in Antwi, while the first appellant was in general charge of a
government office, the office became understaffed. Therefore, he
arranged that the second appellant and the third accused, who were
employed under him as clerical assistants, should do the outstanding
typing in their leisure time. In order to pay for this extra work, the first
accused added to the list of employees a fictitious temporary typist
named E. K. Adu and caused this name to be included in the month's
payment voucher, which was duly passed.
 STEALING
 When the money due to "E. K. Adu" arrived, the second appellant signed
for it and the first appellant paid to the second appellant and the third
accused their entitlement, and returned the rest to the government chest.
 It was held that on the facts, the second appellant and the third
accused did work for the government, were paid with money belonging to
the government and the government accepted the benefit of the work
they did. There was therefore no appropriation within the meaning of Act
29, s. 122 (2) as there was no intent to deprive anyone of his
ownership.
 STEALING
 It is enough if the intention is to deprive some person (not
necessarily the actual owner) temporarily, however fleeting the
period, of his benefit or right or interest in the thing appropriated
- - sec 122(3)

 It also suffices if the appropriation is merely for a particular use,

if the accused intended so to use or deal with the thing that it
will probably be destroyed, become useless, greatly injured,
depreciated, to restore it to the owner only by way of sale or
exchange, or for reward, or in substitution for some other thing
to which he is otherwise entitled, or if it is pledged or pawned –
section 122(3).
 STEALING
 Thus, temporary use or temporary appropriation is enough to fix one with
liability as long as it is accompanied with the intention to deprive the
owner of his ownership, interest, benefit, value, proceeds, or part of the
thing

 For instance, a cashier at a bank who makes use of the bank’s money
with the intention of replacing it later, may be guilty of stealing.

 Illustration: If A. borrows a horse without the consent of its owner,

intending to keep it until it is worn out before returning it, A. is guilty of
stealing the horse
 STEALING

 It is immaterial whether the act by which a thing is taken,

obtained, or dealt with amounts to trespass or conversion or
otherwise, or it is not otherwise unlawful except for the
dishonesty surrounding the appropriation – sec 122(4).

 The non-requirement of trespass or conversion is very important

in this highly computerized age where an appropriation may be
made without physically handling the thing, as for example
through electronic mail, facsimile and wire transfers, without any
physical trespass or conversion.
 STEALING
Dishonesty – the appropriation must be dishonest
 By sec 120, dishonest appropriation arises in one of three
ways, namely:
i. where the appropriation is made with an intent to defraud;
or
ii. where the appropriation is made without a claim of right,
and with the knowledge or belief that the appropriation is
without the consent of some person who is the owner of the
thing; or
iii. where the appropriation, if known by the actual owner,
would be without his consent
 STEALING
i. appropriation done with intent to defraud
 The existence or otherwise of an intent to defraud depends on the
circumstances of each case
 In terms of section 16, an intent to defraud is an intent to cause, by
means of the asportation, any gain capable of being measured in money,
or the possibility of any such gain, to any person at the expense or the
loss of any other person
 The illustration goes that: A., a commercial traveler, is directed to collect
money for his employer. If he is at liberty to spend or dispose of the
particular moneys which he collects, and is only bound to account for the
balance in his hands at particular times or when called upon, he does not
commit stealing merely by spending any or all of the moneys collected by
him, unless there is an intent to defraud.
 STEALING
ii. appropriation without claim of right
 An appropriation without a claim of right is dishonest
 Sec 15 defines claim of right as “a claim of right made in good
faith”
 This obscure and perhaps unhelpful definition calls for some
analysis in criminal jurisprudence
 For a discussion on what constitutes a claim of right, see
Mensa-Bonsu, “The Defence of Mistake of Fact and Claim
of Right: Matters Arising from Republic v. Kwadjo II” (1996-99)
20 UGLJ 125
 See also Kwadjo II
 STEALING
 A person has a claim of right if he is honestly asserting what he believes
to be a lawful claim, even though his claim may be unfounded in law or in
fact
 That is to say, a man who takes possession of property, which he really
believes to be his own, does not take it dishonestly, however unfounded
his claim may be.
 In other words, the defence is founded where the accused honestly, but
mistakenly believes that he is entitled to the item in question.
 So, as the illustration goes, A., during a lawsuit with B., as to the right to
certain goods, uses or sells some of the goods. Here A. is not guilty of
stealing, because, although A. believes that B. would object, yet A. acts
under a claim of right
 STEALING
 Good faith or bona fides is the essence of the defence

 Therefore, where there is a bona fide claim of right supported by

evidence, a dishonest intention would not have been established -
Brempong II

 However, a claim that is made without good faith – in other words – a

claim that is tainted with mala fides or ill or bad faith will render the
appropriation dishonest

 Thus, if there is sufficient information to correct one’s wrongly held belief,

then if he goes ahead to assert that right, the logical conclusion would be
that he acted in bad faith after having become aware of the true state of
affairs - see Arthur
 STEALING
 A claim of right in good faith is a complete defence to a charge of
stealing, since it negatives the mens rea - see Kwadjo II, which
approved Mensa-Bonsu’s observations on the issue

 Therefore, a claim of right in good faith, is a defence on its own – it does

not depend upon any other defence – neither does the defence depend
on the lawfulness of the belief

 Thus, all the accused needs to show is a demonstrably honest belief in

his claim
 STEALING
iii. where the appropriation, if known by the owner of the thing,
would be without his consent

 This point is self-explanatory – but as the illustration goes:

 A being the guest of B writes a letter on B’s paper. Here A has not
stolen, because, although A does not use the paper under a claim of
right, yet A believes that B, as a reasonable person, would not object to A
doing so.
 However, the prosecution is not required to show that the accused
should know the owner of the thing.
 It suffices if the accused has reason to know or has reason to believe
that some other person, whether certain or uncertain, is interested in the
thing or is entitled to it, as owner or by operation of law. - sec 120(2)
 STEALING
 Therefore, a person may be guilty of stealing if he dishonestly
appropriates a thing the ownership of which is in dispute or
unknown, or a thing which has been found by another person -
illustration to 120(2).

 However, a person may not be guilty of stealing if the ownership

of the thing is in doubt

 Therefore, where the defence alleges consent on the part of

one of the disputed owners, then proof of ownership
becomes material, since consent to appropriation by the owner
negatives stealing.
 STEALING
 So in Dramanu, the appellant, a secretary of the Gonja Traditional
Council was ordered by the paramount chief of the area, the Yabonwura,
to sell two stray cattle, which by custom had been brought to the chief.
 An amount of ¢200.00 was realized from the sale, and according to the
prosecution, the appellant failed to pay the sum into the
traditional council's coffers. The appellant was therefore charged with
stealing.
 In his defence he stated that after the sale he gave the ¢200.00 to the
chief, who, as the owner, gave it back to him for safe keeping. But later,
on the instructions of the chief, he used the money in paying a debt
owed by the chief’s son. Even though the prosecution alleged that the
money belonged to the traditional council, no evidence was adduced in
proof of the fact that the council had lost anything. The trial
magistrate found the appellant guilty of stealing and convicted him.
 STEALING
 In allowing appeal, it was held that even though under section 120 (2) of
Act 29, a person might be guilty of stealing a thing, the ownership of
which was in dispute or unknown, or had been found by another
person, on its true construction, the section did not mean that a
person might be guilty of stealing when the ownership was in doubt.
 And although section 125 of Act 29 made it plain that it was not
necessary for the prosecution in proving a stealing charge to establish
ownership of the stolen property, where the prosecution had
specifically stated in the charge sheet that ownership resided in some
particular person, failure to establish such ownership could be fatal to the
prosecution's case.
 STEALING
 In this case proof of ownership was fundamental, first in the sense that whereas
the prosecution alleged that the traditional council was the owner, the accused
alleged that the money belonged to the chief, secondly that although the trial
magistrate decided that it was not proved that ownership was in the council, he made
a restoration order in their favour and thirdly, it formed the basis of the defence of the
appellant for if the paramount chief was the owner as alleged, then he could not have
been guilty of stealing.

 From the foregoing, it is clear that the absence or otherwise of the consent of the
owner of a thing, on a charge of stealing, is essential to the guilt or otherwise of the
accused

 Therefore, the consent of the owner to the taking of a thing is a complete defense to
a charge of stealing, since the owner’s consent to the taking negatives the essential
element of dishonest appropriation
 STEALING
NB: all the factors that negative consent under secs 14 & 42 apply here
 Still on the issue of consent, consent may be actual or implied
 Implied consent may be deduced from the relationship between the
parties – for instance, in law, ordinarily, marriage operates as implied
consent to the taking of property belonging to the other spouse
 In law, a wife has the implied consent of the husband to take and use his
property, just as he has the implied consent of his wife to the use of her
property
 Therefore, the general rule is that if the wife of the owner of the thing
consents to its appropriation by the accused, the accused will be
exculpated from liability unless the accused had notice that the wife did
not have the husband’s authority to consent to the appropriation - sec
126(1)
 STEALING
 The accused will be deemed to have had notice that the wife did not
have the husband’s authority, if the accused has had a sexual
connection with the owner’s wife, or if the accused is designing to
have a sexual connection with her - sec 126(2)

 However, the accused will not be guilty of stealing by reason only of the
fact that he appropriated the thing with the consent of the owner’s wife -
sec 126(2)(a)
Or –
 by reason only of the assistance rendered to him by the owner’s wife to
appropriate a clothing of the wife, or money or other item which the
owner’s wife is apparently permitted to have at her disposal or for her
own use - sec 126(2)(b)
 STEALING
 It should be noted that a co-owner of a thing can be guilty of stealing the thing,
irrespective of the fact that the thing is jointly owned by the accused and another
person or persons - section 121 see - Maywhort
So what are the things in respect of which stealing can be committed?
 The list of things that can be stolen are inexhaustible. By sec 123, anything may
be stolen –
- whether living or dead
- whether fixed to anything or not
- whether the thing be a mineral or water, or gas, or electricity, or of any other nature
- whether the value of the thing does not amount to one pesewa
- whether the value of the thing is intrinsic (i.e. is only valuable by and of itself and
not because of its association with any other thing)
- whether the value of the thing is only for the purpose of evidence
- whether the thing is of value only for a particular purpose
- whether the thing is of value only to a particular person
 STEALING
 And if the thing is a document, it is of value, whether it is complete or
incomplete; and whether it is satisfied, exhausted, or cancelled
 Therefore, on a charge of stealing, there is no requirement to establish
the value of the thing - sec 123(3)
 Therefore, even if the thing has no intrinsic value, the accused would
still be guilty
 So in Sam, the appellant was convicted for stealing a human skull from a
grave. It was held on appeal that secs 122 (2) and 123 of Act 29 were
couched in such wide terms as to make a human skull capable of being
stolen because the relatives of the deceased were "interested" in the
corpse of which the skull formed part.
 Further, since no person could remove a corpse from a grave without the
permission of the Minister under Act 301, s. 27 (7), it followed that the
local authority was interested because it was buried in their ground.
 STEALING
 It should be noted that dominion or possession is critical to the offence of stealing –
that is to say, property which is not subject to the dominion of any person such as
animals in the wild or fish in a river, lake or sea cannot be the subject-matter of
stealing, unless brought to effective possession or dominion of another or regulated
by game reserve laws.
 Therefore, by sec 127, a person is NOT guilty of stealing if he appropriates a thing
which appears to have been lost by another person, except:
- if at the time of appropriating the thing, he knows the owner of the thing or the
person by whom it has been lost, or
- if the character or situation of the thing, or the marks on it, or any other
circumstances is or such as to indicate the owner of the thing or the person by whom it
has been lost.
- so, for instance A. finds a ring in the highway. If the ring has an owner’s or makers’
name or motto engraved upon it or it is of grave value, A. will be guilty of stealing it if
he appropriates it without making reasonable enquiry, or
 STEALING
 if the character or situation of the thing, or the marks upon it, or any other
circumstances is or are such that the person who has lost the thing appears likely to be able
to recover it by reasonable search and enquiry, if it were not removed or concealed by any
other person
 In Kramo Wala, the accused was found in the possession of an accordion, the missing
property of another, whose room was allegedly broken into during the night and some of his
property stolen therefrom. When the accused was challenged, he said that he had picked up
the accordion from the ground on his way to the lavatory. He was accordingly taken to the
police station and there charged with stealing the accordion.
 In allowing his appeal against conviction, it was held that if a man found goods that had
actually been lost or were reasonably suspected by him to have been lost, and appropriated
them really believing when he took them that the owner could not be found, that was not
stealing; but if he took them with a felonious intent and reasonably believed that the owner
could be found, he committed the offence of stealing.
 In the instant case, there was no evidence on the record to show that the appellant at the
time he picked up the accordion knew or believed he could ascertain who the owner was. It
was not sufficient that if he had taken pains the owner might be found because he was not
bound to do that.
 STEALING
 In Ali, the CA found on the evidence that (a) there were no marks on the earrings to
indicate who the owner was; (b) the complainant had not reported the loss of his trinkets;
and (c) the first appellant had kept the earrings for two weeks before selling them.
 It was held that since there was no evidence that the first appellant, a blind man, who
had to rely on the second appellant to ascertain the nature and value of the earrings—
which had no identifying marks—knew who their owner was, and besides, he had
waited for two weeks when no one reported their loss before selling them, a charge of
stealing could not be sustained against him.

 But for section 127, anyone who found and kept a lost item under any circumstances
would have been guilty of stealing.
 From the foregoing, the defenses to a charge of stealing may be recapped as follows:
 1. consent of the owner
 2. claim of right
 3. found object
 FRAUDULENT BREACH OF TRUST
• It is also known in some jurisdiction as Criminal breach of Trust
• It is a second degree felony – sec 128
• According to Sec 129:
• A person commits a fraudulent breach of trust if that person dishonestly
appropriates a thing the ownership of which is invested in that person as a trustee
for or on behalf of any other person.

• 3 Essential elements
• Ownership of the thing appropriated must have been vested in the accused
• The accused must have appropriated the thing while it was vested in him for
the beneficiary
• The appropriation must be dishonest
• R v Odoi 1942
• Accused by means of false representation that he had been
made manager and receiver of an estate. Asked money from
deceased estate to pay for labourer.
• Held that for a charge to be sustained, the prosecution had to
prove the property was vested in the accused when he
appropriated it.
• he intended to steal the money when he received. Hence his
intent was dishonest
• Appropriation by a trustee
This means any dealing with the thing by the trustee with the intent to
deprive any beneficiary of the thing. –Sec 122(1)
• State v Atimoh Kaku (1965)
The accused, a GNTC storekeeper who took money from time to time for a
jujuman to double it.

Dishonest appropriation by a trustee

• There must be evidence of dishonesty- i.e without the consent of the
beneficiary- sec 120(1) (intent to defraud and no claim of right) read in
conjunction with sec 122(1)
 DEFRAUDING BY FALSE PRETENCE
• This is governed by sections 131 -145
• It is a second degree felony- up 25 years
• Section 132:
• A person defrauds by false pretences if, by means of a false pretence, or by
personation that person obtains the consent of another person to part with or
transfer the ownership of a thing.

• Forms of false pretence

A false pretence is a representation of the existence of a state of facts made
by a person, with the knowledge that the representation is false or without
the belief that it is true, and made with an intent to defraud: section 133
• Prosecution must prove representation by the accused of the existing state of fact is
false. R vLawani (1943), State v Ansah-Sasraku (1966)
The misrepresentation must relate to a existing state of fact, not a
future state of affairs.- R v Caasting (1961), COP v Dwamena (1957)
Intent to defraud – prosecution must prove that the accused had an
intent to defraud at the time when he made the false pretence. R v
Ofoni (1940), COP v Mutari [1960]

What is false pretence?

It may consist of words or of personation (sec 134) – R v Story (1805)
Victim must be induced
Representation must be made to the accused, third party will not suffice
R v Senchere
Distinction between stealing and defrauding by False Pretences
• Section 136
• In stealing the owner or person never gives consent of parting with the
property whiles in fraud by false pretence there is apparent consent to
taking of the property. However, the apparent consent is vitiated by
fraud or deceit of the accused.

• Illustrations
2. A, intending to defraud B of a horse without paying for it induces B to
sell and deliver it to A without the present payment, by a false pretence
that A has the money for the payment at A’s bank. Here A commits the
criminal offence of obtaining by false pretence but not of stealing
 FALSIFICATION OF ACCOUNTS
• Common in clerical and administrative work.
• It is a second degree felony – sec 140
(1) A clerk, a servant or a public officer, or an officer of a partnership, company or
corporation commits a second degree felony who does any of the acts mentioned
in paragraph (a) or (b), with intent to cause or enable a person to be defrauded,
or with intent to commit or to facilitate the commission, personally or by any other
person, of a criminal offence;
(a) conceals injures, alters or falsifies a book, or an account kept by or belonging
or entrusted to the employers or to the partnership, company or corporation; or
corporation; or entrusted to the officer, or to which the officer has access, as an
officer or omits to make a full and true entry in an account of anything which the
officer is bound to enter in the account; or
(b) publishes an account, a statement or prospectus, relating to the affairs of the
partnership, company or corporation, which the officer knows to be false in a
material particular.
• Who can be guilty of falsification of accounts?
All clerks or servants in any public service or officers in
partnership, company or corporation
Any person acting in capacity of a clerk or servant in any private or
public establishment or public office or officer in any partnership or
company or corporation. Qualification does not matter.

• N.B: “officer” means a clerk, a servant, a public officer or an

officer of a partnership, company or corporation. Sec 140(2)
Elements of falsification of accounts
• Actus reus: an act of concealment, injuring or destruction or falsification of
accounts or omission to make full and true entry an act of publishing a
false account or statement or prospectus.

• Mens rea: an intent to cause or enable any person to be defrauded or to

facilitate the commission of a crime any other person.

• There must be a document involved, i.e a document of account, for

instance waybill, invoice receipt, bill of lading etc.
 DISHONESTLY RECEIVING
• Governed by section 146 to 148
• Section 146
A person who dishonestly receives property which that person knows has been obtained or
appropriated by a criminal offence punishable under this Chapter, commits a criminal offence
and is liable to the same punishment as if that person had committed that criminal offence.

The ingredients of dishonestly receiving is provided under sec 147

• (1) A person will be guilty of dishonestly receiving property which that person knows to have
been obtained or appropriated by a criminal offence, if that person receives, buys, or assists
in the disposal of the property otherwise than with a purpose to restore it to the owner.
• (2) It is immaterial whether the criminal offence by which the property was obtained or
appropriated was or was not committed within the jurisdiction of the Court. i.e stolen property
shipped to Ghana from around the world will be caught by this.
• (3) Where the property was obtained or appropriated beyond the jurisdiction of the Court by
an act the doing of which within the jurisdiction would be a criminal offence punishable under
Act 29, the act is, equivalent to a criminal offence punishable.
• Section 148. Possession of stolen property
• (1) Where a person charged with dishonestly receiving is proved to have
had in possession or under control, anything which is reasonably
suspected of having been stolen or unlawfully obtained, and that person
does not give an account, to the satisfaction of the Court, as to the
possession or control, the Court may presume that the thing has been
stolen or unlawfully obtained, and that person may be convicted of
dishonestly receiving in the absence of evidence to the contrary.
• (2) The possession or control of a carrier, an agent, or a servant is, for the
purposes of subsection (1), possession or control of the person who
employed the carrier, agent or servant, and that person is liable
accordingly.