REPUBLIC VRS. OWUSU (D4/012/23) [2024] GHACC 378 (27 May 2024)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON MONDAY, THE 27TH DAY OF MAY, 2024 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE CASE NO.: D4/012/23 THE REPUBLIC VRS COMFORT OWUSU ACCUSED PERSON PRESENT INSPECTOR VIVIAN TAMEA GYABAAH BEING LED BY A.S.P. STEPHEN AHIALE FOR THE REPUBLIC PRESENT EMMANUEL DANNSA APPIAH, ESQ. FOR THE ACCUSED PERSON PRESENT JUDGMENT The Republic v. Comfort Owusu Page 1 of 32 THE CHARGE The accused person was arraigned before this Court charged with the offence of Stealing contrary to Section 124(1) of the Criminal Offences Act, 1960 (Act 29). THE PLEA She pleaded not guilty after the charge had been read and explained to her in Twi, being her choice of language. The accused person having pleaded not guilty to the charge, the prosecution assumed the burden to prove her guilt beyond reasonable doubt. FACTS The facts of the case as presented by the prosecution are that, the complainant Gabriel Amoah is a head of credit for Bidvest Microfinance Ltd and lives at Cantonment, whilst the accused person Comfort Owusu is a loan officer at Bidvest Micro finance and lives at La -Trade Fair. The accused person was responsible for disbursement of loan facility to the company's customers, collect cash from them and deposit same into the company's account. However, in October 2022, the company gave the accused person an amount of GH¢40,980.00 to be disbursed to the customers. The company started receiving calls to the effect that the accused person had failed to give them the loan facility. However on 9/02/2023, the company upon inspection and auditing of the accused person's portfolio discovered that a total of GH¢40,980.00 being the cash meant for the customers were missing. Consequently on 10/02/2023, the complainant reported the accused person to Tesano Police station, where a case was lodged. The accused person during investigation admitted the offence and indicated she used an amount of GH¢4,000.00 to buy items for The Republic v. Comfort Owusu Page 2 of 32 her baby. The accused person also indicated that she used some undisclosed amount of money as a discount for an exchange of coupon at filling stations but failed to lead Police to the alleged oil filling stations for interrogation. The accused person during investigation refunded an amount of GH¢3,000.00 as part payment of the complainant's money which had since been released to the complainant. After investigation the accused person was charged with the offence and arraigned before this honourable Court. To discharge their legal burden, the prosecution called five witnesses including the investigator. EVIDENCE OF PROSECUTION WITNESSES From the evidence of PW1 (Victoria Precious Barney), she is the internal auditor of Bidvest Micro Finance Limited. She stated among others that on 3rd to 10th January 2023 an audit was carried out by the audit team of the complainant company in line with periodic audit exercise and the outcome revealed that an amount of GH¢52,980.00 could not be accounted for. That this anomaly was reported to the credit department of the complainant company. That in view of this, the accused person who happens to be a loan officer was called upon to account for the imbalances detected in her books in comparison with what the audit report revealed. According to PW1, further checks revealed that an amount of GH¢52,980.00 had been collected from various customers within Accra metropolis. That it was again detected that prior to the audit report from the credit department, an amount of GH¢12,000.00 was paid into the accounts of the complainant’s company. She continued that in effect, a total of GH¢40,980.00 was found to be unaccounted for by the accused person. That the company decided to make a report to the police and she volunteered a statement to aid investigations. The Republic v. Comfort Owusu Page 3 of 32 According to PW2, Amoah Gabriel, he is head of credit of Bidvest Microfinance Limited. He basically stated that the accused person was engaged by Bidvest Microfinance Limited in September 2022 to February 2023 as a loan officer with the duty to sign up drivers for fuel loans, disburse fuel coupons to drivers, recollect fuel loan disbursed by the end of the week and pay same into the account of Bidvest Microfinance Limited, generate weekly call plans and weekly reports. He continued that few months ago, an audit and monitoring exercise was carried on the portfolio of the accused. That the outcome revealed that an amount of GH¢40,980.00 could not be accounted for by the accused person. That the accused person admitted that she had collected the said amount from customers on behalf of the complainant company but refused to lodge same in the company’s account. That in view of this the company through its officer drafted a document by way of attestation in which the accused person admitted having dishonestly appropriated the said sums of money which belongs to the company. That the said attestation was given to the police. He concluded that he volunteered a statement to the police regarding what he knows about this case. The evidence of PW3, Edward Nettey, was basically to the effect that the complainant company introduced the accused person to them being members of Tema Station drivers’ union as a loan official who will deal directly with clients on behalf of the company. That under the arrangement they had with the accused as an intermediary, they collect fuel coupons with a face value and pay on weekly basis with an ascertain interest depending on how much coupons one collects. PW3 further gave evidence about what his late friend Alex, had told him about the accused person to the effect that they should cover up for her on an amount of GH¢1,300.00 meant for the complainant’s company that she has used for her personal issues. According to PW3 in the early part of February 2023 he was summoned by his welfare officer to explain why they have not paid for coupons received The Republic v. Comfort Owusu Page 4 of 32 from the complainant’s company but he told them they had paid in full and told them what the accused person had told them during her previous visit regarding the amount she had misappropriated. In his evidence, PW4, Isaac Kofi Frimpong told the Court that they had an agreement with Bidvest Micro finance which allows them to receive the Goil fuel coupons on a weekly credit basis. That they have duly paid in time without a single default since the inception of the agreement. PW4 said among other things that another loan officer went to their office to find out why they have not paid for previous coupons to be delivered to them and it came as a surprise to them so they showed their records to the new loan officer indicating full money paid to the accused person. That they were eventually informed about a police investigation being carried out against the accused person. PW5, the investigator herein, No. 46511 D/Cpl. Meshack Nkrumah stated in his evidence that on 16/02/2023, the complainant arrested and brought the accused person to the station and reported that the said accused person stole their working capital of GH¢40,980.00. He continued that he re-arrested the accused person and took a cautioned statement from her. He tendered same as exhibit ‘A’. According to PW5, it came to light during investigation that the complainant is into taking deposits and giving loans to customers. That investigation revealed that the accused person worked from September 2022 to February 2023 and during her period she was giving fuel coupons to distribute to 17 trotro stations and recollect loans distributed by the end of the working week and to deposit same into the company’s account. That it was revealed that most of the coupons and monies received by the accused person could not be accounted for. He continued that the company conducted audit report on the accused person’s portfolio and it revealed that a total of GH¢40,980.00 was stolen by the accused person. That the company The Republic v. Comfort Owusu Page 5 of 32 submitted the audit report to the police. He tendered same in evidence as exhibit ‘B’. PW5 further stated that the accused person claimed she was discounting the coupons to meet a high pressure from the company. However investigation revealed that her claim was false because in her caution statement, she admitted having used an amount of GH¢ 4,000.00 to buy her baby’s items. He concluded that the accused person was charged at the close of investigation. He tendered the charge statement in evidence as exhibit ‘C’. In the course of the hearing, counsel for accused person tendered the following exhibits through PW1, PW2, PW3 and PW4 under cross examination: Zone D 3rd Fuel Field Audit (6th January 2023 – 10th January 2023) dated 13th January 2023 – exhibit 1 UPSA certificate in Diploma Accounting dated 2nd June 2019 bearing the name of PW1 – exhibit 2 UPSA certificate in BSc in Accounting dated 16th August 2021 bearing the name of PW1 – exhibit 3 Audit Report dated 9th February 2023 – exhibit 4 Statement of Edward Nettey (PW3) given at the Tesano Police Station dated 15th March 2023 – exhibit 5 Statement of Isaac Kofi Frimpong (PW4) taken at the Tesano Police Station dated 20th April 2023 – exhibit 6 Thereafter, the prosecution closed its case. After the close of prosecution’s case, Counsel for the accused person filed submission of no case on behalf of the accused person and the Court delivered a ruling on same, to the effect that a prima facie case had been made by the prosecution to warrant the accused The Republic v. Comfort Owusu Page 6 of 32 person to open her defence. That the evidential burden had shifted to the accused person to raise a reasonable doubt in the case of the prosecution. In view of the above, the Court found that the accused person had a case to answer and was therefore called upon to enter into her defence, and she was informed about the options available to her as an accused person. EVIDENCE OF THE ACCUSED PERSON The accused person in her evidence told the Court that she was employed as a loan officer of Bidvest Microfinance to distribute fuel coupons to drivers on credit basis and collect monies from them at the end of the week. That she deposits monies from the respective drivers who took the fuel coupon into the Bidvest’s wallet and takes snapshot of the receipt and places same on the Bid Fuel Distribution WhatsApp platform for purposes of transparency. She tendered in evidence copies of the receipts of payment into the Bidvest Wallet and Bank transactions as exhibit 7 series. According to the accused person she never defaulted in depositing monies collected into Bidvest Microfinance Company’s Bank accounts or wallet. That sometime in the month of February 2023, Gabriel Amoah called her into his office and told her that a document had been prepared for her to sign and that the document indicates that her disbursement portfolio has debit and she told him she should not have a debit to her name and brought his attention to the fact that apart from the Dansoman-Circle Station master that was due on 20/12/2022 which she sent him a message, she has paid all monies collected on behalf of the Company. A copy of the said message was tendered in evidence as exhibit 8. The accused person continued that Gabriel Amoah then told her he had already informed management about the said document he had prepared and that he only needs her signature on the said document so he could only use same to account for the debit to her name so he convinced her to sign which is Exhibit 4 per the records of proceedings before The Republic v. Comfort Owusu Page 7 of 32 this Honourable Court. That the said meeting was held between Gabriel Amoah and herself and he prevented one of the workers by name Obed to come in. That the next day, Gabriel Amoah told her to accompany him to town and to some of the stations she distributed the fuel coupons only for him to bring her to the Tesano Police Station. That upon reaching the Tesano Police Station, Gabriel Amoah handed over his diary to her and told her to wait and that he was coming. That after some time the investigator, Meshack Nkrumah came directly to her and told her to come and that she was under arrest and she did not see Gabriel Amoah again that same day. That the investigator then informed her that Gabriel Amoah had reported to them that she had stolen an amount of money from the Company she works with, and he showed her a document and asked whether she does recognize the said document he showed her and to ascertain her signature. That she informed the investigator that the said signature there was hers and that she had earlier told Gabriel Amoah that she does not have any debit to her name and that even the writing on the document was written down for her to copy and that she has not stolen any money from the Company. That the investigator then told her he would help her out and that he has never lost any Court case and that if she does not cooperate with him, he would make sure she is jailed. That the investigator then told her to tell him the whole truth so he could help her. That it was at that point that she told him sometimes she discounts the fuel coupons so she could be seen to be growing her market base and this was due to a message Gabriel Amoah directed at her in the Bid Fuel Distribution platform on 3rd November 2022 indicating that “there is no growth in your number of drivers has your marketing engagement stalled?”. She tendered in evidence a copy of the said message as exhibit 9. That the investigator then asked her how much she thought she had discounted so she makes provisions to pay. She then told him that to the best of her knowledge she had discounted between GH¢8,000.00 to GH¢10,000.00. The investigator then advised that to The Republic v. Comfort Owusu Page 8 of 32 be on the safer side, she should try as much as possible to pay GH₵ GH¢10,000.00 to the Company. The investigator then enquired from her if she had money to pay or had anyone to help her pay, she then told him that she had a sister and her baby’s father to help her. The investigator then requested for her sister’s number which she gave out which he informed her of what had happened and where she was. That the investigator then took her baby’s father’s number to inform him of same as he did with her sister. That her sister quickly came to the Police Station in the company of her colleague and promised to pay GH¢3,000.00 on Monday, 13th February 2023. That during her caution statement after the investigator had given her the Statement form to write her name and other related information about her, he then proceeded to write his statement of investigating a case of stealing and he made her sign and he also signed. She further says that the next statement was dictated by the investigator for her to write. That the investigation caution statement was not made in the presence of Theophilus Mensah nor Bright Amoako and that because she had told the investigator she was discounting the fuel coupon and not being faced with any police case before in her life and relying on the assistance of the investigator as he had promised, he advised she indicates she used some of the money for her personal things so it could make sense rather than using all GH¢10,000.00 for purposes of discount. According to the accused person, the said investigation statement and that of the charge statement were not voluntarily made and the investigator sincerely knows about that. That the investigator sincerely knows that it was after he had advised for the investigation statement to be written in a manner that he could assist; then he called someone who was not present at the time the statement was being written to come and write something on the statement and he then signed. That her sister honoured her promise by paying the said GH¢3,000.00 at the Police Station on the agreed date, Monday 13th February 2023. That the investigator helped out by talking to her baby’s father who was present at the The Republic v. Comfort Owusu Page 9 of 32 Court hearing after she met her bail condition and the investigator and her baby’s father, one other Police female officer and herself went to Tesano where her baby’s father took GH¢7,000.00 from his mobile wallet and same was given to the investigator. That the discounted fuel coupon of GH¢10,000.00 has been refunded and that she has not stolen any money from Bidvest Microfinance. That the investigator and Gabriel Amoah have not been honest with her and that if indeed she knew the matter would have travelled this far to the point of coming to Court, she would have taken precaution and stated her position in her own independent mind and not by means of promises. She concluded that it got to a point where she enquired from the investigator why he did what he did to her, and he told her there was serious pressure from authorities and Bidvest Microfinance to take the matter to Court. The accused person did not call witness, and closed her defence thereafter. LEGAL ISSUE The legal issue to be determined by this Court is whether or not the accused person did dishonestly appropriate cash the sum of GH¢40,980.00, the property of Bidvest Micro Finance. BURDEN AND STANDARD OF PROOF A fundamental principle of our criminal justice system is that a person accused of a crime is presumed innocent until he has pleaded guilty or proven guilty. It is trite learning that in criminal cases, the prosecution bears the burden to prove the guilt of the accused person beyond reasonable doubt. See sections 11(2), 13(1) and 15 of the Evidence Act, 1975, (NRCD 323). The Republic v. Comfort Owusu Page 10 of 32 In the case of Gligah & Attiso v. The Republic [2010] SCGLR 870, the Supreme Court held as follows; “Under article 19 (2) (c) of the 1992 constitution, everyone charged with a criminal offence was presumed innocent until the contrary is proved. In other words, whenever an accused person was arraigned before any Court in any criminal trial, it was the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond reasonable doubt. The burden of proof was therefore on the prosecution and it was only after a prima facie case had been established by the prosecution that the accused person would be called upon to give his side of the story.” The burden on the accused person, when called upon to enter her defence, is to raise a reasonable doubt in the case of the prosecution. The standard of proof for the defence is proof on a balance of probabilities. In the case of Osae v. The Republic [1980] GLR 446, the Court held that: “although it was settled law that where the law cast the onus of proof on the accused, the burden on him was lighter than on the prosecutor, and the standard of proof required was the balance of probability, if at any time of the trial, the accused voluntarily assumed the onus of proving his defence or some facts as happened in this case, the standard he had to discharge was on a balance of probabilities.” ANALYSIS The accused person has been charged with stealing under section 124 (1) of Act 29 which provides that: “A person who steals commits a second degree felony.” Section 125 of Act 29 defines Stealing as follows: The Republic v. Comfort Owusu Page 11 of 32 “A person steals if he dishonestly appropriates a thing of which he is not the owner”. In the case of Brobbey & Others v The Republic [1982-83] GLR 608-616, Twumasi J. stated as follows: “Three essential elements of the offence of stealing become obvious and they are: 1. That the person charged must have appropriated the thing allegedly stolen. 2. That the appropriation must have been dishonest. 3. That the person charged must not be the owner of the thing allegedly stolen.” Also, in the case of Ampah v. The Republic [1977] 2 GLR 171, Azu Crabbe C.J reiterated the elements of stealing as follows: “….to establish the offence the prosecution are required to prove only the three elements of: (i) dishonesty; (ii) appropriation; and (iii) property belonging to another person…” It is therefore clear from the definition that a person cannot be guilty of stealing unless he or she is proved to have appropriated a thing in the first place. In addition, the appropriation must have been dishonest that is, the person charged should have had the intention to be dishonest and act in bad faith. The evidence of PW3 is marred with hearsay and therefore carries no weight save that the Court recognizes that he was a customer of the complainant company. PW4 did not avail himself to be fully cross examined on his evidence in chief. Moreover under cross examination, PW4 gave inconsistent answers that made him appear as a witness not worthy of belief. Consequently his evidence before this Court is equally unworthy of belief as he contradicted himself in his answers under cross examination. The Court therefore attaches no probative value to the evidence adduced by PW4 in this case. The Republic v. Comfort Owusu Page 12 of 32 From the evidence of PW1, PW2 and PW5, it is the case of the prosecution that the accused person dishonestly appropriated an amount of GH¢40,980.00 which belongs to Bidvest Microfinance Limited. That this was revealed through an audit exercise conducted by PW1. According to PW5, Exhibit ‘B’ is the audit report. From the evidence of PW1 (Victoria Precious Barney), she is the internal auditor of Bidvest Micro Finance Limited. That an audit carried out by her indicated that a total of GH¢40,980.00 was found to be unaccounted for by the accused person. Exhibit ‘B’ which is same exhibit ‘4’ is a report from audit work conducted on clients within Zone D of Bid Fuel. Exhibit 1 is Zone D Bid Fuel Audit which talks about a general audit exercise that was carried out in all the zones from 3rd January 2023 to 10th January 2023 by the audit team and signed by Victoria Precious Barney, PW1 herein as the Team Lead. Under cross examination of PW1 by counsel for accused person, it came to light that PW1 is not a chartered accountant and therefore not a licensed auditor to have carried out the said audit as the law provides under the section 138 (1) of the Companies Act, 2019 (Act 992) as well as the relevant provisions in the Chartered Accountant Act, 1963 (Act 170). Below is the relevant parts of the cross examination of PW1 by counsel for accused person: “Q: You stated that you are the internal auditor for Bidvest Microfinance Limited, not so? A: Yes. Q: As an internal auditor, are you aware that you need to be qualified and licensed in accordance with the Chartered Accountant Act of 1963 (Act 170)? A: I am not aware that I am supposed to be licensed because I work according to Bank of Ghana Internal policies. The Republic v. Comfort Owusu Page 13 of 32 Q: Are you also aware that the Bank of Ghana that you claim you work under their policy also has an Act? A: Yes I am aware. Q: Are you a chartered accountant? A: No I am not. Q: I put it to you that section 138(1) of the Companies Act of 2019 (Act 992) indicates that a person can only be appointed as auditor when same is qualified and licensed in accordance with Act 170 but not that of Bank of Ghana Act as you claim. A: When it comes to banking and as an internal auditor, the Board employs the auditor and sends the appointment to Bank of Ghana for confirmation and upon approval, the internal auditor does her work. The internal auditor needs no specific qualification to be an internal auditor but rather it is an external auditor that needs that. Q: So are you telling this Court that even though there is a specific Act governing the appointment of auditors be it internal or external, your Board only nominates a person with no specific qualification as an internal auditor? A: That is not so with the explanation that we are also being guided as a company by the Bank of Ghana Act. Q: I put it to you that in your earlier submission you submitted that an internal auditor needs no specific qualification. A: As a member of the Institute of Internal Auditors that is what I know that we need no specific qualification.” There is no evidence on record to indicate that the Bank of Ghana had approved PW1 to work as an internal auditor at the time she conducted the said audit even though she does not meet the requirement under the Companies Act as stated supra. The evidence before this Court stands that PW1 not being a Chartered Accountant and being an unlicensed The Republic v. Comfort Owusu Page 14 of 32 auditor did not have capacity to prepare the said audit report from which exhibit ‘B’ originated. Thus the foundation of exhibit ‘B’ upon which the prosecution is alleging that the accused person has dishonestly appropriated GH¢40,980.00 has legal issues as to its preparation and same has inconsistencies as well which also came to light during the cross examination of PW1. It is obvious from the brief facts of the case that, the complaint was based on the audit report prepared by PW1. The said audit report lacked some basic legal requirements in its preparation as explained supra. Accordingly the Court is unable to attach any high probative value to same. However PW5 also tendered exhibits ‘A’ and ‘C’ which are the caution and charge statements of the accused person herein. Exhibits ‘A’ and ‘C’ contain confession statements that were given by the accused person during the investigation of the case after she was arrested by the police. The elements of stealing as discussed above in this judgment ought to be found from the evidence on record for the Court to consider the explanation of the accused person before arriving at the conclusion that the accused person is guilty of the offence of stealing or otherwise. This Court earlier in the proceedings of this case, delivered a ruling where it found that the accused person has a case to answer because the elements of the offence of stealing were established in the evidence adduced by PW5 particularly exhibits ‘A’ and ‘C’. The contents of exhibits ‘A’ is very similar to that of exhibit ‘C’ if not same. For the avoidance of doubt I reproduce the relevant part of exhibit ‘A’ being the investigation caution statement of the accused person dated 10th February 2023, which was tendered in evidence by PW5 in support of the case of the prosecution against the accused person, as follows: The Republic v. Comfort Owusu Page 15 of 32 “I Comfort Owusu works with Bidvest Microfinance as a credit officer. During my first week of service and in quest to achieve my target set by company, due to pressure from management, I was discounting the coupons because a colleague I came to meet said that was what he was doing. So eg. if a station takes a certain amount I sometimes increase it to make the figures look good and to let management know I am working in order to avoid bashing from them. Also there were stations who stopped taking the coupons but because I didn’t want my numbers to come down I push the disbursement and discount the coupons and the discounting is by 10% which management is not aware of and the total amount being disbursed to stations is also calculated by an interest of 10%. So in all the monies will reduce and there will be loopholes. I continued discounting coupons which I know was not right but I was paying into the company’s account. Our last disbursement, we did not disburse but we did collections. And because I have discounted both coupons and cards, I used the last disbursement thus discounted the coupons and cards and used it to pay for previous owings. ... The Ablekuma Central station master I was giving him 100 cedis week on week whenever I go for my collections from him. ... Money that I have used personally is 4000 cedis.” In her charge statement which is exhibit ‘C’ taken on 28th February 2023, the accused person gave a similar statement. From the investigation caution and charge statements of the accused person which were duly tendered in evidence without any objection from counsel for accused person, the accused person admitted that the money she used personally is GH¢4,000.00 among other things she used the money for, without the knowledge of the complainant company but she was supposed to pay the said monies into the complainant company’s account. The Republic v. Comfort Owusu Page 16 of 32 These statements were taken from the accused person in compliance with all the relevant provisions of section 120 of the Evidence Act, 1975 (NRCD 323) applicable to the taking of confession statements and which was designed to protect accused persons. Akamba JSC in the case of Ekow Russel v. The Republic [2016] 102 GMJ 124 SC, stated as follows: “... A confession is an acknowledgment in express words, by the accused in a criminal charge, of the truth of the main fact charged or of some essential part of it. By its nature, such statement if voluntarily given by an accused person himself, offers the most reliable piece of evidence upon which to convict the accused. It is for this reason that safeguards have been put in place to ensure that what is given as a confession is voluntary and of the accused person’s own free will without fear, intimidation, coercion, promises or favours ...” (Emphasis mine) Twumasi J in stating the position of the law as to whether confession statements can be taken as part of prosecution’s case in establishing whether a prima facie case had been made stated in the case of Amukyi v. The Republic [1982-83] GLR 1010-1016 as follows: “The Court would like to sound a note of warning to trial lower Courts that in considering whether a prima facie case had been made by the prosecution in a criminal trial, they should confine themselves to the analysis of the evidence of the prosecution witnesses with regard to their credibility. Thus a police statement made by an accused person, unless it was a confession statement admitted in evidence, was not to be taken as part of the prosecution's case …” (Emphasis mine). Exhibits ‘A’ and ‘C’ are confession statements to the extent that the accused person admitted that she used some of the money she collected and meant to be paid to the complainant company’s account as her transport, discounted the coupons by 10%, gave The Republic v. Comfort Owusu Page 17 of 32 GH¢100.00 week on week to the Ablekuma Central station master and also took GH¢4,000.00 for her personal use without the complainant company’s knowledge. In relation to the ownership of the said money, section 123 of Act 29 makes provision on things in respect of which stealing, etc., can be committed. It provides as follows: “(1) Any of the crimes of stealing, fraudulent breach of trust, robbery, extortion, or defrauding by false pretence can be committed in respect of anything, whether living or dead, and whether fixed to the soil or to any building or fixture, or not so fixed, and whether the thing be a mineral or water, or gas, or electricity, or of any other nature, and whether the value thereof be intrinsic or for the purpose of evidence, or be of value only for a particular purpose to a particular person, and whether the value thereof do or do not amount to the value of the lowest denomination of coin; and any document shall be deemed to be of some value, whether it be complete or incomplete, and whether or not it satisfied, exhausted, or cancelled. (2) In any proceedings in respect of any of the crimes mentioned in subsection (1) it shall not be necessary to prove ownership or value.” (Emphasis mine) From the above, it is not necessary for the prosecution to prove who actually owns the thing allegedly stolen or its value. All that is needed is for the prosecution to prove that the accused person is not the owner of the thing allegedly stolen and also prove that indeed the accused person appropriated something notwithstanding the value, of which she is not the owner. In the case of Republic v. Halm and Aye-Kumi Court of Appeal (full bench), 7 August 1969, unreported; digested in (1969) C.C. 155, the Court held on the issue of proof of The Republic v. Comfort Owusu Page 18 of 32 ownership that, a charge of stealing is not founded on the relationship between the person charged of stealing and an identified owner but on the relationship between a person charged and the item alleged to have been stolen. Therefore the law only requires proof that the accused was not the owner of the item stolen. So, the fact that the owner is not known does not make a difference – the accused will still be culpable. From the evidence on record, the accused person admitted to appropriating some money which does not belong to her and she was supposed to pay into the complainant company’s account after collecting same from the complainant company’s customers. The accused person through her confession statements made before an independent witnesses and tendered as exhibits ‘A’ and ‘C’ indicated that, she gave a discount of 10% without approval; she used part of the money collected as her transportation; she gave GH¢100.00 weekly to the station master at Ablekuma Central anytime she went to collect money from him and also admitted to taking GH¢4,000.00 for her personal use. The above confession statement by the accused person points to the fact that the accused person is not the owner of the said money she used as she admitted that management was not aware of how she dealt with the money which she knew was not right. From the evidence on record and the authorities above, I find that the prosecution was able to prove that the accused person is not the owner of the money she admitted using in exhibits ‘A’ and ‘C’. On the element of appropriation of the said GH¢40,980.00, section 122 (2) of Act 29 defines Appropriation as follows: “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 some person may be deprived of the benefit of his ownership, or of the benefit of his right or interest in the thing, or in its The Republic v. Comfort Owusu Page 19 of 32 value or proceeds, or any part thereof”. It is clear that the law does not require a carrying away of an item before a person can be convicted of the offence of stealing. The requirement is satisfied as long as it is shown that the object has been moved from its original setting. Therefore, the accused person using some of the money meant for the company without depositing it in the company’s account is sufficient to fix her liability. In the case of Anin v. The Republic [1984-86] 2 GLR 85 it was held that: “Even in those jurisdictions where a carrying away was an essential part of the offence of larceny it had been held that a bare removal from the place in which a thief found the goods though he did not make off with them was sufficient. Since the appellant removed the roofing sheets from the vehicle and deposited them in company’s area of operations animo furandi, he was guilty of stealing”. It must be shown that the accused committed the act with the intention that some person may be deprived 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. In the absence of the mental element, there can be no appropriation. There cannot be appropriation within the meaning of Act 29, s. 122 (2) where there is no intent to deprive the owner of his ownership as held in Antwi v. The Republic [1971] 2 GLR 412. However, the intention need not be to deprive any person permanently of his benefit of ownership. It is enough if the intention is to deprive some person temporarily of his benefit or right or interest in the thing appropriated. It also suffices if the appropriation is merely for a particular use – section 122(3) of Act 29. Therefore, temporary use or appropriation satisfies the requirement as long as it is accompanied by the requisite proscribed mental element. The Republic v. Comfort Owusu Page 20 of 32 Therefore, a cashier at a bank who makes use of the bank’s money in his keeping with the intention of replacing it later, may be guilty of stealing. It should be noted that it is immaterial whether the act by which a thing is taken, obtained, or dealt with amounts to trespass or conversion or not – section 122(4) of Act 29. The non-requirement of trespass or conversion is very important in this highly computerized age where stealing or theft may be perpetrated through electronic mail, facsimile and wire transfers, without any physical trespass. As stated above, temporary use or appropriation satisfies the requirement as long as it is accompanied by the requisite proscribed mental element. The accused person in her confession statements made before an independent witnesses and tendered as exhibits ‘A’ and ‘C’ indicated that, she gave a discount of 10% without approval; she used part of the loan collected as her transportation; she gave GH¢100.00 weekly to the station master at Ablekuma Central whenever she went for collections from him and admitted to taking GH¢4,000.00 for her personal use. Flowing from the above, I accordingly find from the evidence on record that the accused person using the complainant’s money she admitted to, in exhibits ‘A’ and ‘C’ without the knowledge and consent of the complainant company satisfies the element of appropriation in the offence of stealing which is as explained supra. On the issue of dishonesty in the appropriation by the accused person, where an accused person had been charged with stealing, it was necessary for the prosecution to prove dishonest appropriation and fraudulent intent on the part of the accused, otherwise the charge could not be sustained. Amoako v. Commissioner of Police [1961] G.L.R. 134, S.C. The Republic v. Comfort Owusu Page 21 of 32 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 owner of the thing, would be without his consent. (See section 120(1) of Act 29.) In the case of Ampah v. The Republic [supra] the Court held that dishonesty in section 124 of Act 29 relates to a state of mind of the person who does the act which amounts to appropriation. Whether an accused person has a particular state of mind is essentially a question of fact which has to be decided by the jury on a trial on indictment, or by the circuit judge or magistrate in summary proceedings: see R. v. Feely [1973] Q.B. 530, C.A. “The whole test of dishonesty is the mental element of belief”: R. v. Turner (No. 2) [1971] 2 All E.R. 441 at p. 443, C.A. The Court will now analyze what amounts to dishonest appropriation. i. Appropriation done with intent to defraud. Whether or not an intent to defraud will be inferred depends upon the circumstances of each case. In terms of section 16 of Act 29, 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 essential element in an intent to defraud, is an intent to deprive the other person of something of value, whether money or a chattel, and thus causing economic loss irrespective of the amount that was appropriated. The Republic v. Comfort Owusu Page 22 of 32 ii. Appropriation without claim of right As stated earlier, appropriation without a claim of right must be with the knowledge or belief that the appropriation is without the consent of some person who is the owner of the thing. A claim of right is a claim made in good faith under section 15 of Act 29. Therefore, 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. iii. Where the appropriation, if known by the owner of the thing, would be without his consent. It is important to note there is no requirement that the accused should know who the owner of the thing is. It suffices if the accused has reason to know or believe that some other person, whether certain or uncertain, is interested in the thing or entitled to it whether as owner of own right or by operation of law per section 120(2) of Act 29. Therefore, a person can be guilty of stealing by appropriating things which the ownership is in dispute or unknown, or which have been found by another person. However, it has been held that although ownership need not be proved, where the defense alleges consent on the part of one of the disputed owners, then proof of ownership becomes material, since consent to appropriation by the owner negates stealing. See Dramanu v. The Republic [1973] 2 GLR. From the evidence on record, the accused person indicated in exhibits ‘A’ and ‘C’ that she discounted the fuel coupons to deceive her employers to believing that she was meeting her target which was not the case. Again the accused person admitting to using GH¢4,000.00 without the consent of her employers being the complainant company amounted to appropriation done in bad faith. The Republic v. Comfort Owusu Page 23 of 32 Consequently, I hereby find from the evidence on record that the appropriation was done by the accused person dishonestly to deceive her employers. It is important to reiterate that, under section 123 of Act 29, stealing can be committed in respect of anything whether the value thereof do or do not amount to the value of the lowest denomination of coin, and therefore in a criminal offence of stealing, it is not necessary to prove ownership or value. (Emphasis mine) From the evidence on record, the elements of the offence of stealing have been established from the investigation caution and charge statements of the accused person. Thus, the accused person is not the owner of the money she admitted using in exhibits ‘A’ and ‘C’, she appropriated the said money and the appropriation was dishonest. For the accused person to have been called upon to open her defence, it implies that a prima facie case was made out against her by the prosecution and it was the duty of the accused person to raise reasonable doubt in the case of the prosecution to enable her acquittal. In the case of Commissioner of Police v. Isaac Antwi [1961] GLR 408-412, it was held that the accused person is not required to prove anything. All that is required of him is to raise a reasonable doubt as to his guilt. This is further emphasized by sections 11(3) and 13(2) of the Evidence Act, 1975 (NRCD 323). Section 11(3) provides that: “In a criminal action, the burden of producing evidence, when it is on the accused as to a fact the converse of which is essential to guilt, requires the accused to produce sufficient The Republic v. Comfort Owusu Page 24 of 32 evidence so that on the totality of the evidence a reasonable mind could have a reasonable doubt as to guilt.” Section 13(2) provides that: “Except as provided in section 15 (c), in a criminal action, the burden of persuasion, when it is on the accused as to a fact the converse of which is essential to guilt, requires only that the accused raise a reasonable doubt as to guilt.” All that the accused person needed to do was to raise a reasonable doubt in the case of the prosecution. Unfortunately, the evidence of the accused person before this Court could not raise any reasonable doubt as to her guilt. This is because the evidence adduced by the accused person is basically to the effect that she has not stolen any money from Bidvest Microfinance and that her confession statements from which the elements of the offence of stealing were established, were not her independent statements as the investigator (PW5) dictated for her to write and that there was no independent witness at the time her statements were taken by PW5. I find the said defence of the accused person to be an afterthought and belated. This is because the accused person was legally represented when the investigator tendered the said caution and charge statements being exhibits ‘A’ and ‘C’ and there was no objection to same. If indeed the statements were dictated by the investigator for the accused person to write and therefore not her statements, the accused person and her lawyer would have raised objection to same when the investigator sought to tender them. Again, if really the statements were not made in the presence of independent witness, why did the accused person and her lawyer who fully partook in the trial not raise any objection to the statements at the point of being tendered, for a mini trial to be conducted where necessary? The Republic v. Comfort Owusu Page 25 of 32 Moreover, the investigator who tendered these confession statements was available in Court as PW5 to be cross examined but counsel for accused person in his cross examination of PW5 did not ask any question about the allegations being made by the accused person that the statements are not her statements and that there was no independent witness present when her statements were being taken. The accused person stated in her evidence before this Court that the said investigation statement and the charge statement were not voluntarily made and the investigator sincerely knows about that. In all honesty, it baffles the Court why there was no objection at the time same were being tendered when the accused person’s lawyer was duly present in Court with the accused person if truly that was the case. It is too late in the proceedings for the accused person to now make assertions in her evidence about the confession statements she made in her caution and charge statements earlier admitted in evidence without any objection whatsoever by the accused person and her lawyer who were both present in Court when same were tendered. The accused person also confirmed in her evidence before this Court that she told PW5 that sometimes she discounts the fuel coupons so she could be seen to be growing her market base and this was due to a message Gabriel Amoah directed at her in the Bid Fuel Distribution platform on 3rd November 2022 indicating that there is no growth in her number of drivers. This evidence by the accused person supports part of her statements (exhibits ‘A’ and ‘C’) given to PW5 during investigation that she was discounting the coupons which she knew was not right and also management was not aware of that. The Republic v. Comfort Owusu Page 26 of 32 During cross examination of the accused person by the prosecutor, the accused person was exposed as being not credible. This is because the accused person earlier told the Court under cross examination that she worked with the complainant company for three months but later denied she said that. Meanwhile her subsequent answers under cross examination indicated that she was with the complainant company from September 2022 to February 2023 which confirms the evidence on record. For the avoidance of doubt, I reproduce the relevant parts of the cross examination of the accused person by the prosecutor as follows: “Q: How long did you work with Bidvest Microfinance? A: Three months. Q: You told the Court that you worked with Bidvest Microfinance for three months, is that correct? A: No my lady. Q: I put to you that it is on record that you told the Court that you worked with the company for three months. A: I started work from September and in February I stopped. Q: So you agree with me that from September 2022 to February 2023 is not three months? A: I do agree but we halted disbursement in December, but I was still working to February. The Republic v. Comfort Owusu Page 27 of 32 Q: So you agree with me that you did not work for the company for three months. A: I do not agree with you because in January I was not going to work, I was not given any coupons to disburse but I was on the field prospecting for drivers. Q: I am suggesting to you that per the date on exhibits ‘D’ and ‘E’, you did not work with Bidvest Microfinance for three months as you claimed. A: Nowhere in my Witness Statement or Caution Statement did I say I worked with Bidvest Microfinance for three months. Q: So it is a fact that you did not work with Bidvest Microfinance for three months, that is a fact. A: It is a fact but I never said that I worked with Bidvest Microfinance for three months. Q: You will agree with me that you have your signatures on exhibits A, B, C, D and E, not so? A: Yes but with exhibit E, I was forced to sign it in the police commander’s office at the police station. Q: So apart from exhibit E, you signed all the other exhibits willingly. A: Yes because it was the appropriate thing to do with regards to the work I was doing.” The Republic v. Comfort Owusu Page 28 of 32 The accused person totally denied that she told the Court that she worked with the complainant company for three months meanwhile she testified under oath before this Court that she worked with the complainant company for three months. This goes to tell that the accused person is not credible therefore her allegations in her evidence that the statements in exhibits ‘A’ and ‘C’ are not her voluntary statements and also that there was no independent witness is not worthy of belief. It is thus not surprising that neither the accused person nor her lawyer raised any objection to the tendering of same if indeed her assertions in her evidence about exhibits ‘A’ and ‘C’ are true. Furthermore, the accused admitted under cross examination that apart from exhibits ‘E’, she willingly signed all the other exhibits. It therefore implies that the accused person willingly signed exhibits ‘A’ and ‘C’ which contain her confession statements as to the commission of the offence of stealing. From the evidence of the accused person, I find that the accused person does not have a reasonable defence to the charge against her since her evidence could not help her raise a reasonable doubt in the case of the prosecution. In the case of Obeng alias Donkor & Others v. The State [1966] GLR 259, the Supreme Court held on page 261 that: “... where a person is charged with stealing a certain sum it is sufficient if the prosecution proves that he in fact stole part of that sum.” Having carefully considered the evidence on record and relying on the authorities above, I do find that the prosecution has been able to prove that the accused person is guilty of the offence of stealing of the amount she admitted in exhibits ‘A’ and ‘C’. The Republic v. Comfort Owusu Page 29 of 32 In relation to the amount stated on the Charge Sheet, since the Court was unable to attach any significant probative value to the exhibit ‘1’ on which exhibit ‘B’ was based being the basis of the allegation by the prosecution that the accused person has dishonestly appropriated the amount of GH¢40,980.00, it was not proven beyond reasonable doubt that the said amount was stolen by the accused person. I support my decision with the dictum of Denning J. (as he then was) in the case of Miller v. Minister of Pensions [1947] 2 All E.R. 372 where 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.” CONCLUSION For the foregoing reasons, I find that the prosecution has been able to establish beyond reasonable doubt that, indeed the accused person committed the offence of stealing. Consequently, I pronounce the accused person herein guilty of stealing and convict her accordingly. Having considered that the accused person is a woman and relying on section 313A (1) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), I do hereby order that the convicted (accused) person be tested for pregnancy before sentence is passed on her. The sentence is therefore deferred until the Court is furnished with the results of the said The Republic v. Comfort Owusu Page 30 of 32 pregnancy test. Accordingly the accused person shall be remanded in police custody for the police to ensure that the pregnancy test is conducted. The Court has been furnished with the pregnancy test results together with ultrasound report including a scan which indicates that the convict herein is 13 weeks 6 days pregnant as at 29th May 2024. Pre-Sentencing hearing Court: Any plea in mitigation before sentence is passed? Counsel for the convict: We are saying that the Court tempers justice with mercy and in line with section 313A of Act 30, we plead with this Court to consider non-custodial sentence and tempers justice with mercy. Court: Is the convict known to the police? Prosecutor: No. BY COURT In accordance with section 313A (2) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), the Court will suspend its sentence for a period that the convict would have delivered. Considering the estimated due date on both the pregnancy scan and ultrasound report form, the Court hereby suspends the sentence to 23rd December 2024. Flowing from the above, the convict is hereby put on her former bail conditions and the reporting time is varied from every week on Tuesdays at 9am to every month on Tuesdays at 9am. The Republic v. Comfort Owusu Page 31 of 32 [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) The Republic v. Comfort Owusu Page 32 of 32