Republic vrs Owusu (D4/03/2024) [2025] GHACC 110 (30 June 2025)

IN THE CIRCUIT COURT ‘1’ HELD IN ACCRA ON MONDAY THE 30TH DAY OF JUNE 2025 BEFORE HER HONOUR CHRISTINA EYIAH-DONKOR CANN (MRS.) CIRCUIT COURT JUDGE CASE NO: D4/03/2024 THE REPUBLIC VRS KWAME OWUSU JUDGMENT FACTS The accused person was charged and arraigned before this court on the 4th September, 2023 on seven (7) counts of stealing contrary to section 124 (1) of the Criminal Offences Act, 1960 (Act 29). The case for the prosecution is as follows: “Complainant in this case Teye Joseph Tettey the Assistant Transport Officer of Construction Ambassador Company. On the 7th May, 2023 Frank Asare a witness in this case assisted by Chief Inspector George Inkoom of Jubilee House arrested and brought to the Manet Police Station Accused Kwame Owusu and reported that on same day at about 12:45 a.m. the accused stole unspecified quantities of metal pipes scaffolds belonging to the company. A report was made and Accused person was detained to assist in investigation. During investigation it was established that the Accused had stolen 500 quantities of 6 meters metal pipes scaffolds valued GH¢190,000, 240 quantities of 3 meters metal pipes scaffolds valued at GH¢52,800 and 20 sets of brand new metal pipes scaffolds valued at GH¢30,000.00 all to the total valued of GH¢272,800.00. Investigation caution statement was obtained from him and he admitted the offence in his statement and told police that he sold same to one Alhassan a scrap dealer. All 1 efforts made by the police to apprehend Alhassan proved futile. After investigations, he was charged and put before this honourable court. ” THE CHARGES The seven (7) counts of the offence of stealing preferred against the accused person and on the basis of which he stands trial together with their particulars in this instant case are as follows: “COUNT ONE STATEMENT OF OFFENCE STEALING: CONTRARY TO SECTION 124(1) OF THE CRIMINAL OFFENCES ACT, 1960 (ACT 29) PARTICULARS OF OFFENCE KWAME OWUSU: DRIVER: AGED 30 YEARS: For that you on 19th day of December, 2022 at Spintex, Accra in the Greater Accra Circuit and within the jurisdiction of this court, did steal 152 quantities of metal pipes scaffolds valued at GH¢54,560.00 the property of Construction Ambassador Company Limited. COUNT TWO STATEMENT OF OFFENCE STEALING: CONTRARY TO SECTION 124(1) OF THE CRIMINAL OFFENCES ACT, 1960 (ACT 29) PARTICULARS OF OFFENCE KWAME OWUSU: DRIVER: AGED 30 YEARS: For that you on 12th day of February, 2023 at Spintex, Accra in the Greater Accra Circuit and within the jurisdiction of this court, did steal 152 quantities of metal pipes scaffolds valued at GH¢54,560.00 the property of Construction Ambassador Company Limited. COUNT THREE STATEMENT OF OFFENCE STEALING: CONTRARY TO SECTION 124(1) OF THE CRIMINAL OFFENCES ACT, 1960 (ACT 29) 2 PARTICULARS OF OFFENCE KWAME OWUSU: DRIVER: AGED 30 YEARS: For that you on the 15th day of March, 2023 at Spintex, Accra in the Greater Accra Circuit and within the jurisdiction of this court did steal 110 quantities of metal scaffolds valued at GH¢45,000.00 the property of Construction Ambassador Company Limited. COUNT FOUR STATEMENT OF OFFENCE STEALING: CONTRARY TO SECTION 124(1) OF THE CRIMINAL OFFENCES ACT, 1960 (ACT 29) PARTICULARS OF OFFENCE KWAME OWUSU: DRIVER: AGED 30 YEARS: For that you on 23rd day of March, 2023 at Spintex, Accra in the Greater Accra Circuit and within the jurisdiction of this court did steal 154 quantities of metal pipes scaffold valued GH¢54,560.00 the property of Construction Ambassador Company Limited. COUNT FIVE STATEMENT OF OFFENCE STEALING: CONTRARY TO SECTION 124(1) OF THE CRIMINAL OFFENCES ACT, 1960 (ACT 29) PARTICULARS OF OFFENCE KWAME OWUSU: DRIVER: AGED 30 YEARS: For that you on 27th day of April, 2023 at Spintex, Accra in the Greater Accra Circuit and within the jurisdiction of this court did steal 74 quantities of metal pipe scaffold valued GH¢27,000.00 the property of Construction Ambassador Company Limited. COUNT SIX STATEMENT OF OFFENCE STEALING: CONTRARY TO SECTION 124(1) OF THE CRIMINAL OFFENCES ACT, 1960 (ACT 29) PARTICULARS OF OFFENCE 3 KWAME OWUSU: DRIVER: AGED 30 YEARS: For that you on 2nd day of May, 2023 at Spintex, Accra in the Greater Accra Circuit and within the jurisdiction of this court did steal 70 quantities of metal pipes scaffold valued at GH¢20,000.00 the property of Construction Ambassador Company Limited. COUNT SEVEN STATEMENT OF OFFENCE STEALING: CONTRARY TO SECTION 124(1) OF THE CRIMINAL OFFENCES ACT, 1960 (ACT 29) PARTICULARS OF OFFENCE KWAME OWUSU: DRIVER: AGED 30 YEARS: For that you on 6th day of May, 2023 at Spintex, Accra and within the jurisdiction of this court did steal 50 quantities of metal pipes scaffold valued GH¢17,000.00 the property of Construction Ambassador Company Limited.” THE PLEA The self-represented accused person pleaded not guilty to the seven (7) counts of the offence of stealing after they have been read and explained to him in Twi, the language of his choice. The accused person having pleaded not guilty to the seven (7) counts of the offence of stealing puts the facts of the prosecution in issue and thereafter the prosecution assumed the burden to prove the guilt of the accused person. THE BURDEN ON THE PROSECUTION AND THE DEFENCE In our criminal jurisprudence, it has always been the duty and obligation of the prosecution, from the outset of the trial, to prove and substantiate the charge preferred against the accused person to the satisfaction of the Court unless in a few exceptions. Under the Evidence Act, 1975 (NRCD 323), the burden of proof is divided into two parts, that is the burden of persuasion or the legal burden and the evidential burden or the burden to produce evidence. 4 The burden of persuasion is provided for under section 10 (1) of the Evidence Act, 1975 (NRCD 323) as follows: “10 (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”. The burden of producing evidence is also provided under section 11(1) of the Evidence Act, 1975 (NRCD 323) thus: “11 (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 in the issue”. Again, in criminal proceedings, what constitutes the facts in issue depends on any relevant presumptions and the allegations involved. Since the prosecution is asserting the above facts constituting the ingredients of the offence preferred against the accused person, it is incumbent on it to establish that belief of the accused person’s guilt in the mind of this Court to the requisite degree prescribed by law. In other words, the prosecution has the burden of persuasion to establish the guilt of the accused person. When the prosecution has adduced the evidence to establish the essential ingredients of the offence preferred against the accused person which will cumulatively prove the guilt of the accused person, the court at the end of the case of the prosecution will have to decide whether the prosecution has discharged the obligation on it to establish the requisite degree of belief in the mind of the court that the accused person in fact and indeed is guilty of the offence preferred against him. Except in few instances, the measuring rod or the standard of proof for determining that the evidence adduced by the prosecution has attained the requisite degree is provided under sections 10 (2) and 22 of the Evidence Act, 1975 (NRCD 323). Sections 10 (2) and 22 of the Evidence Act, 1975 (NRCD 323) provide as follows: 5 “10 (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 establishes the existence or non-existence of a fact by the preponderance of the probabilities or by proof beyond reasonable doubt. 22. In a criminal action a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond a reasonable doubt, and thereupon, in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to the existence of the presumed fact”. If this Court decides that the prosecution has failed to prove each essential ingredient of the offence preferred against the accused person beyond reasonable doubt at the end of the prosecution’s case, the accused person will have to be acquitted for he will be deemed to have “no case to answer”. But if this Court decides that each essential ingredient has been proved beyond reasonable doubt, then the accused person will have to be called upon to put up his defence, because there will be an established presumption of guilt (a prima facie case) which he must rebut, if he does not want the presumption to stay, thus rendering him liable for a conviction. To use the language of section 11 (1) of the Evidence Act, 1975 (NRCD 323), the accused person will have on him the burden of introducing sufficient evidence to avoid a ruling against him that he is guilty of the offences charged. In other words, he has the burden of producing evidence. The apex court in the case of Asante No (1) v The Republic [2017-2020] I SCGLR 143- 144 explained the burden on the prosecution as follows: “Our law is that when a person is charged with a criminal offence it shall be the duty of the prosecution to prove his guilt beyond reasonable doubt, meaning the prosecution has the burden to lead sufficient admissible evidence such that on an assessment of the totality of the evidence adduced in court, including that led by the accused person, the court would believe beyond a reasonable doubt that the offence has been committed and that it is the accused who committed it. Apart from specific cases of strict liability offences, the general rule is that 6 throughout a criminal trial the burden of proving the guilt of the accused person remains with the prosecution. Therefore, though the accused person may testify and call witnesses to explain his side of the case where at the close of the case of the prosecution a prima facie case is made against him, he is generally not required by the law to prove anything. He is only to raise a reasonable doubt in the mind of the court as to the commission of the offence and his complicity in it except where he relies on a statutory or special defence. See: Sections 11(2) 13(1), 15(1) of the Evidence Act, 1975 (NRCD 323) and COP v Antwi [1961] GLR 408.” However, proof beyond a reasonable doubt does not mean beyond a shadow of doubt as was stated by Lord Denning in the case of Miller vs. Minister of Pensions (1974) 2 ALL ER 372 AT 373 thus: “It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.” This dictum emphasizes that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt or proof beyond every possibility. Lord Justice of the King’s Bench from 1822-1841, Charles Kendal Bushe also explained reasonable doubt thus: “…the doubt must not be light or capricious, such as timidity or passion prompts, and weakness or corruption readily adopts. It must be such a doubt as upon a calm view of all the whole evidence a rational understanding will suggest to an honest heart the conscientious hesitation of minds that are not influenced by party; preoccupied by prejudice or subdued by fear.” See also: Osei v. The Republic [2002] 24 MLRG 203, CA. Abodakpi v. The Republic [2008] 2 GMJ 33. Republic v. Uyanwune [2001-2002] SCGLR 854. Dexter Johnson v. The Republic [2011] 2 SCGLR 601. Frimpong a.k.a. Iboman v. Republic [2012] 1 SCGLR 297. Again, it must be emphasized that the proof by the prosecution can be direct or indirect. It is direct when the accused person is caught in the act or has confessed to 7 the commission of the offence. Thus, where the accused person was not seen committing the offence, his guilt can still be proved by inference from surrounding circumstances that indeed he committed the said offence. See: Logan vs Lavericke [2007-2008] SCGLR 76 Headnote 4. Dexter Johnson vs The Republic [2011] 2 SCGLR 601 AT 605. State vs Anani Fiadzo (1961) GLR 416 SC. Kamil vs The Republic (2010) 30 GMJ 1 CA. Tamakloe vs The Republic (2000) SCGLR 1 SC. It is very important to note that one fundamental legal principle pertaining to criminal trials in our jurisdiction as contained in paragraph (c) of clause (2) of article 19 of the Constitution is that: “19 (2) A person charged with a criminal offence shall- (c) be presumed to be innocent until he is proven or has pleaded guilty.” The Supreme Court also held on the presumption of innocence in the case of Okeke vs The Republic [2012] 2 SCGLR 1105 at 1122 per Akuffo JSC as follows: “…the citizen too is entitled to protection against the state and our law is that a person accused of a crime is presumed innocent until his guilt is proved beyond reasonable doubt as distinct from fanciful doubt.’’ An accused person therefore in a criminal trial or action, is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt, he is entitled to a verdict of not guilty. Bosso vs The Republic (2009) SCGLR 470 ANALYSIS OF THE OFFENCE OF DEFRAUDING BY FALSE PRETENCE Under section 124 (1) of the Criminal Offences Act, 1960 (Act 29): “124 (1). A person who steals commits a second degree felony.” 8 Section 125 of the Criminal Offences Act, 1960 (Act 29) defines stealing as follows: “125. A person steals who dishonestly appropriates a thing of which that person is not the owner.” Section 122 (2) of the Criminal Offences Act, 1960 (Act 29) defines appropriation of a thing as follows: “122 (2). An appropriation of a thing in any other case means any moving, taking, obtaining, carrying away, or dealing with a thing with the intent that that person may be deprived of the benefit or the ownership, of that thing or of the benefit of the right or interest in the thing, or in its value or proceeds, or part of that thing.” Section 120 (1) of the Criminal Offences Act, 1960 (Act 29) provides thus: “120 (1). An appropriation of a thing is dishonest (a) if it is made with the intent to defraud or (b) if it is made by a person without claim of right, and with a knowledge or belief that the appropriation is made without the consent of a person for whom that person is a trustee or who is the owner of the thing or that the appropriation would, if known to the other person, be without the consent of the other person.” This therefore provides three disjunctive criteria for determining dishonest appropriation. The first criterion is that of an appropriation made with intent to defraud. The second is an appropriation made without a claim of right and with a knowledge or belief that it is without the consent of the owner of the thing or of the beneficiary for whom the appropriation is a trustee. The third criterion is where the appropriation if known to the owner or the beneficiary of the trust would be without his consent. See: The Republic vs. Nana Osei Kwadwo II (Supra). In order to succeed, the prosecution would have to establish beyond reasonable doubt: 9 1. That the accused person charged is not the owner of the metal pipe scaffolds stolen. 2. That the accused person must have appropriated the metal pipe scaffolds stolen. 3. That the appropriation of the metal pipe scaffolds must have been dishonest. See: Criminal Law in Ghana, P. K. Twumasi, page 20 paragraphs 2. Ampah v. The Republic (1977) 2 GLR 175 CA. Republic v. W.M.Q. Halm and Ayerh Kumi (Criminal Appeal) No. 118/67 and 113/67, 7th August (1969) CC, 155 CA. Republic v. Nana Osei Kwadwo 11 (2008) 1 GMJ 42, SC. In the case of Ampah v The Republic (1976) 1 GLR 403 at page 412 it was held that: “If these three 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.” ANALYSIS OF THE EVIDENCE TO PROVE THE ELEMENTS OF THE CHARGE OF STEALING The prosecution called three (3) witnesses in support of its case. The case for the prosecution was presented mainly by the complainant, Teye Joseph Tettey as the first prosecution witness (PW1) and supported largely by Isaac Gambeidu as the second prosecution witness (PW2) and Detective Inspector Kwaku Gyenin, the investigator in this case as the third prosecution witness (PW3). The prosecution also tendered in evidence the caution and charged statements of the accused person as Exhibits “A” and “B” respectively. The accused person testified under oath but did not call any witness. PW1 testified that he is the Assistant Transport Officer for the Construction Ambassador Company Limited. He knows the accused person. On the 7th day of May, 2023 at about 12:00 noon, he had a call from one security man of the company by name 10 Wisdom that the accused person who is a driver in the company has been stealing scaffolds and pipes the property of the company and he has been arrested. It is further the evidence of PW1 that he told the security man to furnish him with the number of times the accused person had made away with the metal pipe scaffolds from his occurrence book and the security man was able to produce the dates and times that the accused person had conveyed the scaffolds from the company all in the name of sending them to the Local Government Construction site but failed to do so. It is further the evidence of PW1 that he quickly took stock of the metal pipe scaffolds and he detected that, the accused person has stolen 500 of the 6 meters metal pipe scaffolds, 240 quantities of 3 meter pipes scaffolds and 20 set of brand new metal pipes scaffolds. According to PW1, the value of the 500 quantities of 6mm scaffolds is GH¢190,000.00, the 240 3 mm scaffolds is GH¢50,800.00 and the 20 brand new metal pipe scaffolds is GH¢30,000.00 all to the total sum of GH¢270,800.00. PW1 continued that the accused person was sent to the police station and a case of stealing was reported against him and the accused person admitted stealing the metal scaffolds and claimed that he sold them to a scrap dealer but failed to lead police to arrest that person. PW2 stated that on the 5th May 2023, the company had a meeting to the effect that the accused person claims his money, an amount of GH¢500.00 is missing, and also some metal pipes kept as scraps had been stolen. According to PW2, on the 7th May, 2023, he was sleeping in his truck, at around 12:35 a.m., when he saw the accused person conveying some metal pipe scaffolds into his Kia cargo truck but he did not approach him. It is further the evidence of PW2 that at about 8:00 a.m., the following day, he met Jonathan, the transport officer and he told him about what he saw and the accused person led the transport officer and other staff including himself to Manet Junction and they retrieved some of the metal pipe scaffolds from a scrap dealer and it was counted but it was not up to the quantity. It is the case of PW3 that on the 7th May, 2023, he was on duty as the available detective when a case of stealing involving the accused person and reported by the complainant was referred to him for investigation. According to PW3, the accused person was 11 arrested by one Frank Asare, a driver for the Ambassador and the Chief Inspector George Inkoom of Jubilee House station and a case of stealing was reported against him. He obtained statement from PW1. The accused person was re-arrested at the station and a caution statement was obtained from him in which he admitted stealing the metal scaffolds and mentioned the name of one Alhassan a scrap dealer at Manet Junction. The accused person led a team of police including himself to Manet Junction to one scrap dealer by name Alhassan as the one he sold the metal scaffolds to, but they met his absence. Investigations conducted at the Local Government Construction site where the accused claimed he sent the metal scaffolds also revealed that no metal scaffolds were received at the site. Upon the instructions of his District Commander, he charged the accused person with the offence of stealing contrary to section 124 (1) of the Criminal Offences Act, 1960 (Act 29) and he obtained a charged statement from him. In this case, after the court had ruled that, a prima facie case has been made against the accused person, he exercised his option to open his defence. Indeed, the accused person had the burden of producing evidence, sufficient enough in the light of the totality of the evidence to raise a reasonable doubt as to whether he was the one who stole the metal pipe scaffolds although, he is not required to prove his innocence. See: sections 10 (1), 11 (2) and 3 of the Evidence Act, NRCD 323 See also: Ali Yusif (No.2) v The Republic [2003-2004] SCGLR 174 holding (2) The accused person in his defence denied the seven (7) counts of the offence of stealing preferred against him. The accused person in his evidence stated that he used to work at Construction Ambassador Company Limited as a driver and he knows the prosecution witnesses. He was given total of about 200 scaffolds by the Construction Ambassador Company Limited on different dates as captured on the charge sheet to deliver to the Local Government Construction site at Madina. According to the accused person, anytime PW1 calls him, he goes for the scaffolds and delivers them to 12 the Local Government construction site, Madina. He brings the scaffolds back to the warehouse at Spintex where he sleeps after working with them. It is further the evidence of the accused person that when day broke, one Frank Asare a driver came to ask him whether he had taken some of the scaffolds because there was a shortage and he told him that the Manager (PW1) instructed him to take the scaffolds to Madina and Frank Asare told him that their Director had requested for some of the scaffolds and he asked him if he could take him to Madina to go for them. He told him that he cannot go for the scaffolds at Madina because their Manager had sent him to Tema and that he will accompany him to Madina to pick the scaffolds upon his return. One of their workers by name Jonathan came and told him that the Director needed the scaffolds urgently and so he should accompany them to Madina and show them where he sent them so that they could pick them up. He told Jonathan that he sent some of the scaffolds to someone at Manet junction which is yet to be used and so he could go for those ones for them to add it to the ones at the warehouse and give them to their Director. Jonathan then decided to look for some of the boys to join them so that they go to Manet junction for the scaffolds. They called some of the boys to join them and together, they went to Manet and brought the scaffolds there and added them to the ones at the warehouse. After adding the scaffolds they brought from Manet junction to the one at the warehouse, Frank told them that they needed more scaffolds. So they decided to go and bring the one at the Local Government site, Madina to top up. When they went to the Local Government site at Madina, the scaffolds were not there. He went to see the Manager of the Local Government site, Madina to inform him that their Director had asked him to come for the scaffolds that he delivered and the Manager of Local Government site, Madina told him that one of their company cars had come for the said scaffolds to Kumasi. He called PW1 to inform him that the Manager of the Local Government site, Madina claims that one of their company cars had taken the scaffolds to Kumasi. PW1 asked him about the whereabouts of the scaffolds and he told him that he cannot do anything about them since they had been taken to Kumasi. PW1 called their Director and told him that the 13 scaffolds that he delivered to Madina cannot be traced. Their Director instructed him to leave Madina and come back to their warehouse to take the scaffolds he brought from Manet junction together with the ones at the warehouse to Tema. The next day, he sent some goods, which was not scaffolds to Accra and whilst he was there, he was called and asked whether it is true that he sent some scaffolds to the Local Government site, Madina and he answered in the affirmative. PW1 asked whether he took some of the scaffolds that he delivered to Madina and PW1 told him that those who sent the scaffolds to Kumasi have called to report of a shortage and he told him that he sent the scaffolds to the Local Government site, Madina so why are they saying that there is a shortage and PW1 told him that if he has taken some of the scaffolds, he should make sure that he returns them. He told PW1 that the scaffolds that he sent, it was the Manager of the Local Government site, Madina who received them and PW1 insisted that if he had taken some of the scaffolds to sell them, he should make sure that he returns them. Afterwards, he left and came back to sit in their company car. He was at the warehouse when he was arrested. From the totality of the evidence on record, it is obvious that the owner accused person charged is not the owner of the metal pipe scaffolds stolen. Per the evidence on record the metal pipes scaffolds belong to Construction Ambassador Company Limited. I will at this juncture point out some contradictions between the accused person’s evidence-in-chief, caution and charge statements (Exhibits “A” and “B)” and answers given under cross-examination. Firstly, the accused person denied the seven counts of the offence of stealing in his evidence-in-chief and answers given under cross-examination. In fact, he sought to create the impression in his evidence in chief, that he was given a total of about 200 metal pipe scaffolds by the Construction Ambassador Company Limited on different dates as captured on the charge sheet to deliver to the Local Government Construction site at Madina and that when they went to the Local Government site at Madina for 14 the scaffolds, the scaffolds were not there only to be told by the Manager of the Local Government site, Madina that one of their company cars had come for the said scaffolds to Kumasi. Secondly, the accused person further sought to create the impression that the name of the scrap dealer was Emmanuel and not Alhassan as Alhassan is the name of the Manager who accompanied him to deliver scaffolds at Manet Junction. Thirdly, the accused person further denied selling any metal pipe scaffolds to any scrap dealer adding that what he sold to the scrap dealer were pieces of iron rods that he collected at the various sites that they go and erect scaffolds at. Interestingly, the accused person in his caution and charge statements (Exhibits “A” and “B”) which were obtained on the 8th and 9th May, 2023 respectively when the matter was still fresh in his mind, admitted stealing the quantities of metal pipe scaffolds as stated by the security man and the company and selling them to one Alhassan a scrap dealer at Manet Junction. The following dialogued ensued between the prosecutor and the accused person: “Q. How long have you worked with the Construction Ambassador Company Limited? A. For about three (3) years. Q. So, at what point did you get to know the scrap dealer called Alhassan? A. Alhassan is not a crap dealer. He is the Manager that accompanied me to convey the scaffolds to Manet junction. Q. What is the name of the scrap dealer that you admitted selling the scaffolds to at the Manet junction in your caution statement? A. The name of the scrap dealer is Emmanuel. Q. Can you tell the court the number of scaffolds that you sold to the scrap dealer? A. I did not sell any scaffolds to the scrap dealer but pieces of iron rods that I collect at the various sites that we go and erect the scaffolds.” Excerpts from Exhibit “A” are as follows: 15 “… I am a driver At Construction Ambassador and I reside at Spintex around DBS Company. I have been with the company for almost two years now. The company at times delay the monthly salary making it very difficult to feed my girlfriend so I stole some metals some time ago and I sold same to a scrap dealer for an amount of GH¢1000.00. I never counted the metals of the scaffolds. I again stole some metals of scaffolds from the company the second time and he again gave me another GH¢1,000.00 but again I did not count the quantities I sold to the scrap dealer. On the 6th day of May, 2023 at about 8:00 p.m., I made away with 20 metal of scaffolds and sold same to the scrap dealer and he gave me GH¢500.00. On the 07/05/2023 at about 7:00 a.m. my boss Jonathan Ackah realized that the quantities of the scaffold metals within the yard had reduced so he asked to go and bring them in order not for anyone to suspect the act. I then called the scrap dealer and I told him of what has happened and he permitted me to go for the metals and I brought them to the company which same has been kept in the yard of the company…” Excerpts from Exhibit “B”, the accused person charged statement are also as follows: “I reside at Spintex close to D.B.S Company limited. It is true that I have sold a lot of scaffold metals to Alhassan the scrap dealer who has his business center at Manet Junction. It will be very difficult to say the amount he gave me from December, 2022, January 2023 to April, 2023. I only remember the last three payment which was GH¢1,000.00 for the first transaction, another GH¢1,000.00 for the second transaction and GH¢500.00 for the third transaction. All the three transaction happened in the month of May, 2023. I also agree to the number of times in every month I stole the scaffold metals as stated by the security man and the company. I sold all the scaffold metals to Alhassan and no one else. There was no one involved. I committed the crime alone. Hence my statement.” It is obvious from the above dialogue that the accused person has contradicted his sworn evidence as against his unsworn statements in Exhibits “A” and “B” and the law is that, where a case boils down to facts and credibility of witnesses, if the court takes the view that one side or the other is the truth then the accounts are mutually 16 exclusive of each other. Once the court decides to believe with one side of the story it means the other side is a fabrication. See: Ansah-Sasraku v. The State (1966) GLR 294 at 298 SC. In the case of Kuo Den alias Sobti vrs The Republic (1989-90) GLR 203 at 213 it was held by the Supreme Court that material inconsistencies in defence put up by the accused person have been held to provide sufficient justification for the defence to be rejected. The law is also that a witness whose evidence on oath was contradictory of a previous statement made but him, whether sworn or unsworn was not worthy of credit unless he gave a reasonable explanation. See: section 76 of the Evidence Act, 1975 (NRCD 323). Yaro vrs The Republic [1979] GLR 10 where it was stated by the court thus: “A previous statement which was in distinct conflict with the 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 his prior inconsistent statement. A witness could not avoid the effect of a prior inconsistent statement by the simple expedient of denial.” See: Bour v The Republic [1965] GLR 1 SC. Gyabaah vrs The Republic [1984-86] 2 GLR 461 CA. State vrs Otchere (supra). In the case of Poku vrs The State [1966] GLR 262, the Supreme Court stated that: “The principle in the must cited case R v Harris [1927] 20 Cr. App. R, 144, is strict but not absolute. In this country it would expose the administration of criminal justice to ridicule if the testimony of the witness on oath were rejected outright because he is alleged to have made a previous unsworn statement which is in conflict with his evidence without carefully considering his account of the circumstances under which any such statement was made.” 17 The court stated further that: “Since the witness in this case was not cross examined by the prosecution to explain why the two statements differed, his sworn statement should not have been ignored, but should have been accepted.” It is instructive to note that the accused person was cross-examined on the contradictions between his evidence-in-chief, answer given under cross-examination and caution and charged statements (Exhibits “A” and “B) yet, he could not give this court any satisfactory explanation. In one breath, he never counted the number of metal pipe scaffolds that he stole from the company. On another hand, he agrees to the number of times in every month that he stole the metal pipe scaffolds as stated by the security man and the company. In one vein, the name of the scrap dealer he sold the metal pipe scaffolds to is Alhassan. In another vein, the name of the scrap dealer that he sold the metal pipe scaffolds to is Emmanuel. On one hand, what he sold to the scrap dealer were pieces of iron rods. On another hand, he sold the metal pipe scaffolds to the scrap dealer. On one leg, the Manager of the Local Government site at Madina informed him that one of their cars came for the metal pipe scaffolds to Kumasi. On another leg, he sold the metal pipe scaffolds to Alhassan. The accused person’s assertions that it were just pieces of iron rods that he sold to the scrap dealer and that the Manager of the Local Government site at Madina informed him that one of their cars came for the metal pipe scaffolds he delivered to the site to Kumasi are all afterthoughts calculated to throw dust into the eyes of this court and to avoid the wrath of justice upon him and same is rejected by this court. If indeed, what he sold to the scrap dealer were pieces of iron rods and the Manager of the Local Government site at Madina informed him that one of their cars came for the metal pipe scaffolds he delivered to the site to Kumasi, same would have been stated in his caution and charged statements when the matter was still fresh in his mind. 18 The accused person further sought to create the impression that the Manager of the Local Government site at Madina informed him that one of their cars came for the metal pipe scaffolds he delivered to the site to Kumasi. This court was therefore expecting him to call the said Manager of the Local Government site, Madina as a witness since PW3 stated that investigations conducted at the Local Government site, Madina revealed that no metal pipe scaffolds were delivered there. The Manager of the Local Government site, Madina was a material witness but he failed to call him and he did not give this court any reason for failing to do so. The Supreme Court in the case of Gligah v The Republic [2010] SCGLR 870, at holding 5 stated that: “the Supreme Court would affirm as good law, the principles of law regarding the need for a party to call a material witness in support of its case.” This sound principle of law was re-echoed by the Supreme Court in the case of Frimpong Alias Iboman v The Republic (supra). In the case of Sarpong v. The Republic [1981] GLR 790, it was also held that where a material witness on an issue is not called to give evidence, the party who bears the burden losses on that issue. Having failed to call Manager of the Local Government site, Madina to corroborate his assertion that one of the company’s vehicles from Kumasi took the metal pipe scaffolds from the Local Government site to Kumasi makes his defence incomplete and also injures his defence. Granted without admitting that one of the company’s vehicles from Kumasi took the metal pipe scaffolds from the Local Government site to Kumasi, the accused person failed to lead a shred of evidence to support his wild allegation in this trial. Under the Evidence Act, 1975 (Act 323) section 80 (2), the court is entitled to consider statements or conducts consistent or inconsistent with the testimony of witnesses at the trial to prove the credibility of witnesses. See: In State v Otchere [1963]2 GLR 463. 19 Bour v The State [1965] GLR 1. Egbetorwokpor v The Republic [1975] 1 GLR 585, CA. In the case of Kyiafi v Wono [1967] GLR 463 at 467 C.A the court per Ollennu J.A. said that: "It must be observed that the questions of impressiveness or convincingness are products of credibility and veracity; a court becomes convinced or unconvinced, impressed or unimpressed with oral evidence according to the opinion it forms of the veracity of witnesses." A court has to test its impression as to the veracity or truthfulness of oral testimony of a witness against the whole of the evidence of that witness and other evidence on record. See: Ackom v Republic [1975] GLR 419. This court also formed an impression of the behaviour of the accused person in the witness box. From the way the accused person reacted to questions and how he answered questions showed that he was not a witness of truth. He pretended not to hear and understand questions for the purpose of gaining time to consider the effect of his answers. Forgetting facts which he knew will implicate him or would be open to contradictions, minutely remembering others which he knew cannot be disputed and replying evasively. The accused person was very economical with the truth he is therefore not a credible witness. It would be madness to rely on his evidence. The accused person’s evidence is therefore not credit worthy to be relied on and therefore he is not a credible witness of belief. The accused person’s defence is not satisfactory and not reasonable probable. From the totality of the evidence led by the prosecution witnesses and the accused person together with the exhibits, the applicable laws as enunciated above and the analysis, this court finds as a fact the following: 20 i. That the accused person was a driver at Construction Ambassador Company Limited in charge of delivering various goods including metal pipe scaffolds to the company’s customers. ii. That the accused person on the 19th December, 2022, 12th February, 2023, 15th March, 2023, 23rd March, 2023, 27th April, 2023, 2nd May, 2023 and the 6th May, 2023 stole 152 quantities of metal pipe scaffolds, 152 quantities of metal pipe scaffolds, 110 quantities of metal scaffolds, 154 quantities of metal pipe scaffolds, 74 quantities of metal pipe scaffolds, 70 quantities of metal pipe scaffolds and 50 quantities of metal pipe scaffolds respectively, the property of Construction Ambassador Company Limited. iii. That the accused person sold the 152 quantities of metal pipe scaffolds, 152 quantities of metal pipe scaffolds, 110 quantities of metal scaffolds, 154 quantities of metal pipe scaffolds, 74 quantities of metal pipe scaffolds, 70 quantities of metal pipe scaffolds and 50 quantities of metal pipe scaffolds respectively, the property of Construction Ambassador Company Limited to one Alhassan, a scrap dealer without the consent of Construction Ambassador Company Limited. It has already been established that the 152 quantities of metal pipe scaffolds, 152 quantities of metal pipe scaffolds, 110 quantities of metal scaffolds, 154 quantities of metal pipe scaffolds, 74 quantities of metal pipe scaffolds, 70 quantities of metal pipe scaffolds and 50 quantities of metal pipe scaffolds respectively, belong to Construction Ambassador Company Limited. They were given to the accused person on different dates to deliver them to Local Government Construction site at Madina. The accused person could not account for the metal pipe scaffolds when he was asked to do so. The accused person appropriated the metal pipe scaffolds without the consent of Construction Ambassador Company Limited. This appropriation was dishonest looking at the conduct of the accused person as discussed above. The accused person had no claim of right over the metal pipe scaffolds. 21 Of course the defence of claim of right is a complete defence and if it is evident throughout the trial, it is the duty of the trial judge to consider it even if it is not properly raised. See: Brempong 11 v. The Republic [1996-97] SCGLR 626. It is the judgment of this court that the 152 quantities of metal pipe scaffolds, 152 quantities of metal pipe scaffolds, 110 quantities of metal scaffolds, 154 quantities of metal pipe scaffolds, 74 quantities of metal pipe scaffolds, 70 quantities of metal pipe scaffolds and 50 quantities of metal pipe scaffolds respectively which was given to the accused person to deliver to Local Government Construction site, Madina were appropriated by the accused person without the consent of Construction Ambassador Company Limited and the appropriation was dishonest. The prosecution thus succeeded in leading sufficient evidence beyond reasonable to establish the essential ingredients of the seven (7) counts of stealing contrary to section 124 (1) of the Criminal Offences Act, 1960 (act 29) preferred against the accused person and this court holds same. On a thorough perusal of the evidence on record together and on a full and careful consideration of the charge, the exhibits the applicable laws, and the above analysis, this Court finds the accused person guilty of the seven (7) counts of the offence of stealing contrary to section 124 (1) of the Criminal Offences Act, 1960 (Act 29) and convicts him accordingly on each one of them. In imposing the appropriate sentence, this court considered the following aggravating factors: i. The intrinsic seriousness of the offence charged. ii. The gravity of the offence charged. iii. The degree of revulsion felt by the law-abiding citizens of this country for the crime committed. iv. The premeditation with which the criminal plan was executed. 22 v. The prevalence of the offence within the Accra Metropolitan Assembly and the country generally. vi. The sudden increase in the incidence of this crime. vii. The accused person’s lack of show of remorse for his action. This court also took into consideration in imposing the appropriate sentence, the following mitigating factors: i. The fact that the accused person has had no brush with the law. ii. The amicus curiae’s plea for leniency and mitigation. iii. The thirteen (13) days that the accused person spent in lawful custody in accordance with clause (6) of article 14 of the Constitution of Ghana, 1992. See the following cases: Frimpong @ Iboman v The Republic [2012] 1 SCGLR 297. Kamil v The Republic [2011] 1 SCGLR 300. Gligah & Atiso v The Republic [2010] SCGLR 870. Kwashie and Another v The Republic (1971)1 GLR 488 CA. Asaah Alias Asi vrs The Republic (1978) GLR 1. Be that as it may, there is no doubt that as a nation, apart from the canker of narcotics and armed robbery, stealing is also on the increase. Undoubtedly, there is the need for a concerted effort to remove and destroy these dangerous menaces from our society and the country as a whole. The deterioration or the collapse in upholding our societal values, beliefs, norms, morals and ethical standards in this country makes it imperative for all and sundry, especially the law enforcement agencies like the courts to be at the forefront of this crusade. The conduct of the accused person ought to be condemned. He stole a huge quantity of metal pipe scaffolds from the very hand that gives him his daily bread and sold them for peanuts to a scrap dealer. I do not think the accused person had any mercy on the Construction Ambassador Company Limited. It is pathetic that the Construction Ambassador Company Limited has lost such a huge quantity of metal pipe scaffolds. 23 As I have said, mercy is shown to those who deserve mercy. As Jesus Christ said in Matthew 5:7 that “blessed are the merciful for they shall obtain mercy.” Since the offence levelled against the accused person are of a very grave nature, the sentence must not only be punitive but it must also be a deterrent or exemplary in order to mark the disapproval of society and this country of such conduct. The law will take its full course in this matter today so that others who harbour such traits would be deterred. On this note, this court hereby sentences the accused person to five (5) years imprisonment with hard labour (I.H.L) on each count of the offence of stealing contrary to section 124 (1) of the Criminal Offences Act, 1960 (Act 29). The sentences of the accused person are to run concurrently. It is instructive to note that PW2 stated in his evidence-in-chief that the accused person led the transport officer and other staffs including himself to Manet Junction and some of the metal pipe scaffolds were retrieved from a scrap dealer and counted but he was not informed of the quantity retrieved. The accused person also stated in his caution statement (Exhibit “A”) that some of the metal pipe scaffolds were retrieved from the scrap dealer and returned them to the yard of the company. Strangely, the court was not given the detail of the quantity of metal pipe scaffolds retrieved in order for same to be deducted from the total number of metal pipe scaffolds stolen by the accused person as stated on the charge sheet to in order to arrive at the cost for the other metal pipe scaffolds which were not retrieved to make a restitution order for the accused person to refund same to the company. Specifics were all lost on the court and the court is not a Father Christmas. CONCLUSION The prosecution succeeded in leading sufficient evidence in proving the seven (7) counts of the offence of stealing contrary to section 124 (1) of the Criminal Offences Act, 1960 (Act 29) against the accused person. Consequently, this Court finds the 24 accused person guilty of all seven (7) counts of the offence of stealing contrary to section 124 (1) of the Criminal Offences Act, 1960 (Act 29) and convicts him accordingly on each one of them. The court hereby sentences the accused person to five (5) years imprisonment with hard labour (I.H.L) on each count of the offence of stealing contrary to section 124 (1) of the Criminal Offences Act, 1960 (Act 29). The sentences of the accused person are to run concurrently. CHIEF INSPECTOR BENSON BENNEH FOR THE REPUBLIC IS PRESENT THE ACCUSED PERSON IS SELF-REPRESENTED ACCUSED PERSON PRESENT (SGD) H/H CHRISTINA EYIAH-DONKOR CANN (MRS.) (CIRCUIT COURT JUDGE) 25