IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON THURSDAY, 9TH

DAY OF MARCH 2023 BEFORE HIS HONOUR KWABENA KODUA OBIRI-

D4/340/15

THE REPUBLIC

VRS

BERLINDA OWOO

PHILIP OWOO

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JUDGEMENT

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The accused persons, A1 was arraigned before the Court on one count:

Stealing: Contrary to section 124 (1) of Act 29/60 and A2 was charged with dishonestly

receiving: Contrary to section 146 of Act 29/60

The law provides under sections 173 and 174 of the Criminal and Other Offences

Procedure Act, Act 30 as follows:

173. Acquittal of accused when no case to answer

At the close of the evidence in support of the charge, it appears to the Court that a case is not

made out against the accused sufficiently to require the accused to make a defence, the Court shall,

as to that particular charge, acquit the accused.

174. The defence

(1) At the close of the evidence in support of the charge, if it appears to the Court that a case is

made out against the accused sufficiently to require the accused to make a defence, the Court shall

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call on the accused to make the defence and shall remind the accused of the charge and inform the

accused of the right of the accused to give evidence personally on oath or to make a statement.

(2) The Court shall then hear the accused if the accused desires to be heard and the evidence the

accused may adduce in defence.

By these provisions, at the end of the case of the prosecution, the court came to the

conclusion that a case has been made against the accused persons and they were called

upon to open their defence.

The facts of the case per the prosecution are that complainant Svetlana Quargraine is a

businesswoman and resides at Nungua whilst 1st accused Belinda Owoo and 2nd accused

Philip Owoo are trader and businessman respectively. The first accused is the daughter

of the second accused. The complainant bought a three bedroom house from one Alhaji

Bandoh at Nungua Greda Estates for an amount of $87,000. The complainant’s husband

Frank Baidoo residing at U.S.A. gave an amount $30,000 to be given to Alhaji Bandoh as

payment of the house. The complainant kept the money in her wardrobe waiting to be

given to Alhaji Bandoh. On the 4th of July 2015 Alhaji Bando went to the complainant to

collect his money only for the complainant to realize that $15800 out of the money had

been stolen. Complainant became suspicious and called 1st accused person who has been

washing for her and when she was confronted, she confessed having stolen the money.

The complainant together with Alhaji Bandoh went to 1st accused house and cash the sum

of GHC 5000 and $3800 were retrieved from her. Thereafter the complainant reported the

matter to police. During investigation the first accused indicated that she has deposited

some of the money at the Fidelity Bank Dansoman Branch and Prudential Bank Kaneshie

Branch respectively. The accused person then led police to the two respective banks and

withdrew cash the sum of GHC 2400 and GHC 1000. During further interrogation the 1 st

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accused disclosed that after changing the dollars into Ghana Cedis, she gave some of the

money to her relatives and GHC 6000 to her father the 2nd accused who used his part to

buy taxi which is under repairs. The 2nd accused was arrested, however the other relatives

upon hearing that the 1st accused has been arrested by the police managed to escape to

unknown destinations. In the course of investigation GHC 11,300.00 and $3800 has been

retrieved from the 1st accused person. After investigations both accused persons were

charged with the offences and arraigned before this honourable court, whilst efforts are

being made to arrest the absconded suspects.

Accused A1 and A2 appearing before the court pleaded not guilty to the charge proffered

against them. It is trite law that in a criminal case, when an accused pleads not guilty to

an offence, pursuant to S.11 (2) of the Evidence Act, 1975 (NRCD 323), the burden of proof

is on the prosecution; and the standard of proof has to be beyond reasonable doubt as

stated in Section 13(1) of the Evidence Act, 1975 (NRCD 323) and affirmed in the case

DARKO v THE REPUBLIC [1968] GLR 203. There is no burden on the accused. See:

COP v Isaac Antwi (1961) GLR 408 @ 412, Nkansah v The Republic (1980) GLR 184.

The Law is that Section 124 of the Criminal Offences Act 1960, Act 29 creates the offence

of stealing and states: A person who steals commits an offence.

Section 125 defines the offence thus: “A person steals who dishonestly appropriates a

thing of which that person is not the owner”. To prove the offence of stealing it is required

of the prosecution to prove these ingredients of the offence, namely:

a. The accused is not the owner of the thing.

b. The accused appropriated it.

c. The appropriation is dishonest.

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 This is how the principle was captured by Abban, J as he then was in the case,

Ampah and Another v The Republic (1976) 1 GLR 403 @ 412, Section 125 of Act

29 defines stealing as follows: “A person steals if he dishonestly appropriates a

thing of which he is not the owner.” So that the basic ingredients which ought to

be proved in a charge of stealing by the prosecution are, firstly, that the accused

was not the owner of the subject-matter of the charge; secondly, that he

appropriated the subject-matter of the charge and, thirdly, that the appropriation

was dishonest. If these three essential elements are proved to the satisfaction of the

court, the court will be bound to convict unless the accused is able to put forward

some defence or explanation which “can cast a reasonable doubt” on the case for

the prosecution. See also Ampah v The Republic (1977) 2 GLR 171, CA, Lucien v

The Republic (1977) 1GLR @ 351.

Section 146 creates the offence of — Dishonestly receiving Property obtained or

Appropriated by Offence.

And the provision states “Whoever dishonestly receives any property which he knows

to have been obtained or appropriated by any offence punishable under this Chapter

shall be liable to the same punishment as if he had committed that offence”. In the case

of the prosecution, which is before the court, A2 has been charged with dishonestly

receiving money which has been obtained through stealing by A1.

The prosecution, during the trial, proved their case through their witnesses that is PW1,

Adjeley Adjei, PW2, Ansah Addo Mohammed and the investigator, Det./Cpl Theophilus

Quaye, gave evidence in support of the charge. The prosecution also tendered various

documents before the court in support of the charge.

The prosecution tendered in evidence, exhibit A, Investigation Caution Statement of A1

dated 05/07/2015, Exhibit A1, Investigation Caution Statement of A2 dated 08/07/2015, B,

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Charged Statement of A1 dated 08/07/2015 and B1 Charge Statement of A2 dated

29/07/2015. Exhibit 1 was tendered by the defence through A1 and it was a Letter from

Fidelity Bank.

PW1 gave evidence as to how the complainant had $30,000 to be given to one Alhaji

Bandoh as payment for purchase of a house from her landlord, Alhaji Bandoh and she

should be a witness. PW1 gave evidence how she then went to the complainant house for

that purpose and Alhaji Bandoh also came with Addo Ansah (PW2) to collect the money.

PW1 testified that it was there that the complainant noticed that $15800 of the money was

missing and she suspected the accused A1 since she was the only person who entered the

room and so she called A1 on the phone. PW1 said the complainant turned on the loud

speaker of the phone and that was done so that all of them can hear and when A1 was

asked about the money A1 confessed having stolen same and afterwards the complainant

and others proceeded to A1’s house and retrieved from A1 an amount of money which

was $3800 and GHC 5,000 and together with the accused were brought to the Osu Police

Station.

PW2 was called by the prosecution before the court and he testified that Alhaji Bandoh

asked him to accompany him to the complainant’s house at Greda Estate to collect his

$30,000 from her on 04/07/2015. PW2 said the complainant upon their presence went to

her room to bring the money and it was there that she noticed $15800 had been stolen

and she highly suspected A1 who was the only one who enters her room. PW2 said the

complainant called A1 who confesses having stolen the money and they together with

the complainant proceeded to the house of A1. PW2 said they retrieved from A1 $3800

and GHC 5000 and said A1 stated that she went to Tudu to change some of the money

into cedis and had also given part of the money to some of her family members including

A2. PW2 in conclusion said they took A1 together with the money to Osu Police Station

and lodged a complaint.

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PW3 was the investigator who testified before the court. PW3 testified how the

complainant and A1 were paraded before the District Crime Officer in the course of

interrogation and A1 admitted having stolen an unspecified amount of money from the

wardrobe of the complainant and how she changed the money at Tudu and used the

money. PW3 gave evidence how A1 distributed the money to various individuals, Edwin

Owoo, Emelia Owoo among others and including giving GHC 6000 to A2 which he used

to purchase a taxicab. PW3 gave evidence how then A2 was arrested and investigation

caution statement was taking from him and same was filed before the court. PW3 gave

further evidence how A1 led police to Fidelity Bank Dansoman Branch and Prudential

Bank Kaneshie Branch where cash the sum of GHC 2400 and GHC1000 were retrieved

from the accounts of A1. PW3 then tendered exhibits A,A1,B and B1 before the court

without any objection by counsel for the accused persons. The witnesses of the

prosecution were cross examined by the Counsel for the accused persons.

The prosecution after the evidence of their witnesses closed their case before the court.

Afterwards, the Accused A1 and A2 opted to open their defence by giving evidence by

rely on their witness statements filed before the Court. And both A1 and A2 were

accordingly cross examined by the prosecutor.

This was the testimony of the accused A1 under oath before the court. A1 said PW2

and Alhaji Bandoh entered my room and they took her infant child’s health card and

said they took my Husband’s money, family money in my possession. A1 said the

money was from proceeds of land transactions and the money was for my husband

to travel abroad processes, my husband business, trading stock and more. A1 further

gave list of items missing among others.

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 A2 also gave evidence and among other things testified that he denied knowing about

the money and said he filed motion of contempt against the CID Theophilus Quaye

and that the said CID later pleaded and the contempt application was not pursued.

From the evidence that is before the court, the prosecution was able to prove the various

offences that the accused A1 and A2 were charged with and for which they were brought

to court. The evidence of the prosecution provided by the witnesses called and the

various exhibits link the accused persons to the offences completely.

From the evidence, the accused A1 and A2 testified before the under oath. This evidence

which was filed and adopted as their evidence in chief was contrary to the statements

they gave to the police when they were arrested which was tendered as exhibit A,A1,B,

and B1. These were admitted into evidence without any objection. The principle of law is

to the effect that when there is such contradiction with respect to the accused person, then

it is an indication that the accused is likely to have a guilty mind.

In the case of Poku v The State (1966) GLR 262, it was stated “A previous statement made

by a witness to the police which was in distinct conflict with his evidence on oath was

admissible to discredit or contradict him”.

The same principle was applied in the case of Yaro and Another v The Republic (1979)

GLR 10, where the court stated that “A previous statement made by a witness to the

police which was in distinct conflict with his evidence on oath was always admissible to

discredit or contradict him and it would be presumed that the evidence on oath was false

unless he gave a satisfactory explanation of the prior inconsistent statement. A witness

could not avoid the effect of a prior inconsistent statement by the simple expedient of

denial”. See also State v Otchere and Others (1963) 2 GLR 463 and Rep. v Maikankan

and Others (1972) 2 GLR 502

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Considering the totality of the defence of the accused persons which they put forward

strongly when they were in the witness box, the level of contradiction in the case of the

defence and especially their previous statement goes so deep to the point that it is not

only unbelievable but also their story is not reasonable probable. See: Gligah & Atiso v

The Republic (2010) SCGLR 870, Darko v The Republic (1968) GLR 203.

And in the defence of the accused persons, they raised various issues and technicalities

as to the processes of the prosecution, conduct of the prosecution and the totality of the

proof of the case before the court giving an indication that the case has not been proved

well against them. In the case of Miller v Minister of Pensions (1947) All ER 372 @ 373,

Lord Denning indicated that it is needless for the prosecution to attempt to proof the guilt

of the accused beyond a shadow of doubt since that standard will be impossible to attain

and were the law to allow that, there will be the admission of fanciful possibilities to

deflect the course of justice.

The prosecution has been able to lead evidence to prove their case before the court and

the question whether the accused persons committed the offences levelled against them

is answered in the affirmative. The defence of the accused has been considered by the

court in totality and based on the three-tier test of examining the defence of the accused

person, the defence is found to be unacceptable, it is not reasonably probable and

considering the whole case before the court, that is the prosecution and the defence

together, the prosecution has been able to satisfy the guilt of the accused beyond

reasonable doubt. See Brempong v The Republic (1995-1996) 1GLR 321 @ 350, Lutterodt

v Commissioner of Police (1963) 2 GLR 429 @439.

The accused A1 and A2 are therefore found guilty on the count brought against them and

the accused A1 and A2 convicted accordingly.

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HIS HONOUR KWABENA KODUA OBIRI-YEBOAH,
CIRCUIT COURT JUDGE.