REPUBLIC VRS WILLIAM OWURA NII ODAMETEY (D4/47/2023) [2023] GHACC 1063 (4 May 2023)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON THURSDAY, 4TH DAY OF MAY 2023 BEFORE HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. D4/47/2023 THE REPUBLIC VRS WILLIAM OWURA NII ODAMETEY RULING The accused person was arraigned before this court on one count of: Stealing contrary to section 124 of the criminal offences Act, 1960 (Act 29). The particulars of the offence were, “William Owura Nii Odametey, Businessman; for that you sometime in June, 2021, at Labone, Accra and within the jurisdiction of this court, did steal the cash the sum of One Thousand United States Dollars ($1,000) the property of one Joana Cobbannah Hammond. Article 19(2(c)) provides that: “A person charged with a criminal offence shall (c) be presumed innocent until he is proved or has pleaded guilty”. See GLIGAH & ATISO v THE REP [2010] SCGLR 870. The law provides for submission of no case at the end of the case for the prosecution under sections 173 of the Criminal and Other Offences Procedure Act, Act 30 as follows: 173. Acquittal of accused when no case to answer At the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require the accused to make a defence, the Court shall, as to that particular charge, acquit the accused. By this provision, at the close of the case for the prosecution, it is the responsibility of the court to make that determination as per the provision. The principle is that, at the close of the case of the prosecution, the Court must determine whether a prima facie case, has been made against the accused. If that does not happen, then it will necessitate the court to acquit and discharge an accused. The accused will be acquitted, to the effect that no case has been made against the accused when: a. There had not been sufficient evidence to prove the essential element in a crime. b. The evidence adduced by the prosecution had been so discredited as a result of cross-examination that no reasonable tribunal could rely on the evidence. c. When the evidence was so unreliable that no reasonable tribunal could safely convict upon it. d. The evidence was evenly balanced, that is to say, that the evidence was susceptible to two likely explanations-one consistent with guilt, the other consistent with innocence. Where any of these exists, the court should acquit but where they are absent, then a prima facie case has been made. At the close of the case for the prosecution, the evidence led, should be capable of displacing the presumption of innocence of the accused. It is only when this is done, that the court is justified to call on the accused to open his defence. The right of an accused to submit that there is no case for him/her to answer has been respected all these years and has become a time-honored practice in our Courts. See Tsatsu Tsikata v The Republic (2003-2005) 2 GLR 294, Ali Kassena v The State (1962) 1 GLR 144, Moshie v The Republic (1977) 1 GLR 258 and Apaloo v The Republic (1975) 1 GLR 156. See also Dadie v The Republic (2008) GMJ 167 CA; The Republic v Gyamfi (2007) 13 MLRG 192 CA. BRIEF FACTS OF THE CASE Per the facts of the case attached to the charge sheet, the Complainant is Joana Cobinnah Hammond, a retired secretary and lives at Dansoman whilst accused William Owura Nii Odametey is a businessman who also lives at Dansoman. In the late 2020, the complainant entrusted the sale of her house in Labone at the cost of five hundred thousand United States Dollars ($550,000 USD) to the accused person who is the Chief Executive Officer (CEO) of Property Guru Ltd. African Legal Associates expressed interest in the house and in June, 2021 made advance payment of one hundred and fifty thousand United States Dollars ($150,000) to the accused person. However, the accused person on receipt of the said money deposited only $50,000 USD in Cedi equivalent into the complainant’s account. The complainant later had information the total amount paid by the buyer (African Legal Associates) and confronted him as to why he only deposited $50,000 into her account instead of $150,000 USD. The accused person could not give any tangible reason to the complainant and rather promised to refund $100,000 USD in two installments . On 15/12/21 the complainant reported the case to police. During investigation several invitations were extended to the accused through his wife, brother and his counsel to report and assist in investigations but failed. Subsequently, accused summons was served on the accused through her mother by name Mrs. Gladys Odamitey to appear before court on 17/06/2022, but he failed, and a bench warrant was issued for his arrest. On 30/10/2022 he was arrested from his hideout and during investigation, he admitted the offence in his cautions statement and made part payment of 10,000 USD to the police. After investigation the accused was charged with the offence before the court. PRINCIPLES OF LAW The accused person appearing before the court pleaded not guilty to all the charges and in such circumstance, the prosecution must prove the guilt of the accused as mandated by section 11 of the Evidence Act, 1975, NRCD 323 which states: "In a criminal action, the burden of producing evidence when it is on the prosecution as to a fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on the totality of the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt". In the case of Domena v Commissioner of Police (1964) GLR 563 @ 568 it was put this way: “Our law is that by bringing a person before the court on a criminal charge, the prosecution takes upon themselves the onus of proving all the elements which constitute the offence to establish the guilt of the defendant beyond reasonable doubt, and that onus never shifts. There is no onus upon an accused person, except in special cases where the statute creating the offence so provides; stealing is not covered by such a statute. (See; Woolminghton v DPP (1935) AC 462; Bater v Bater (1951) All ER 458. See also Oteng v The State (1966) GLR 355 It is also trite law that in a criminal case, when an accused pleads not guilty to an offence, pursuant to S.11 (2) of the Evidence Act, 1975 (NRCD 323), the burden of proof is on the prosecution; and the standard of proof has to be beyond reasonable doubt as stated in Section 13(1) of the Evidence Act, 1975 (NRCD 323) and affirmed in the case DARKO v THE REPUBLIC [1968] GLR 203. There is no burden on the accused. See: COP v Isaac Antwi (1961) GLR 408 @ 412, Nkansah v The Republic (1980) GLR 184. In Elis Tamakloe v The Republic CM No. J7A/1/2010, 20th January 2011. Justice Atuguba relying on the decision in Donkor v Republic 1974 2 GLR 254-258 stated thus: where a statute creates an offence, it is the duty of the prosecution to prove each and every element of the offence which is sine qua non to securing conviction. Unless the statute places a particular burden on the accused, the fundamental and cardinal principle as to the criminal burden of proof on the prosecution should not be shifted even slightly”. The Law is that Section 124 of the Criminal Offences Act 1960, Act 29 creates the offence of stealing and states: A person who steals commits an offence. Section 125 defines the offence thus: “A person steals who dishonestly appropriates a thing of which that person is not the owner”. To prove the offence of stealing it is required of the prosecution to prove these ingredients of the offence, namely: a. The accused is not the owner of the thing. b. The accused appropriated it. c. The appropriation is dishonest. This is how the principle was captured by Abban, J as he then was in the case, Ampah and Another v The Republic (1976) 1 GLR 403 @ 412, Section 125 of Act 29 defines stealing as follows: “A person steals if he dishonestly appropriates a thing of which he is not the owner.” So that the basic ingredients which ought to be proved in a charge of stealing by the prosecution are, firstly, that the accused was not the owner of the subject-matter of the charge; secondly, that he appropriated the subject-matter of the charge and, thirdly, that the appropriation was dishonest. If these three essential elements are proved to the satisfaction of the court, the court will be bound to convict unless the accused is able to put forward some defence or explanation which “can cast a reasonable doubt” on the case for the prosecution. See also Ampah v The Republic (1977) 2 GLR 171, CA, Lucien v The Republic (1977) 1GLR @ 351. Once the accused pleaded not guilty, the prosecution had the responsibility to prove these ingredients against the accused. THE CASE OF THE PROSECUTION The prosecution during the hearing called their first witness who is the complainant as PW1 who appeared before the court to testify. PW1 gave evidence as the owner of the property which is a house located at H/No. 189 A, Soule Loop at Labone/Accra. The evidence of the complainant is that she entrusted the said house to accused to sell for her. The case of the complainant is that the accused received USD 150,000 on her behalf but paid USD 50,000 equivalent in Cedis to her and he has refused to pay the remaining USD 100,000 to her with respect to the property. PW1 said after the arrest of the accused, he paid USD 10,000 with the outstanding of USD 90,000. The prosecution tendered various exhibits through PW1 which included: A - Receipt of an amount of USD 135,000 A1 – Receipt of an amount USD 15,000 This indicates that the accused indeed received the total amount of USD 150,000. B – Letter of Property Guru dated 21/06/21 acknowledging the deposits received. C – Letter from Lawyer of Accused dated 2/02/22 D – Petition by the complainant dated 13/12/2021. When PW1 was crossed examined after her evidence -in -Chief these were her responses: Q12. Did you ever receive any money from the accused regarding your property. A. He paid $50,000 equivalent in cedis to my lawyer. Q13. The outstanding money of $ 100,000 is the reason you are in court, is that correct. A. Yes Q14. Could it be that the accused is retaining the $100,000 as part of his commission. A. No, it cannot be commission. Q15. I am putting it to you that the accused wanted to be sure of his commission reason he has retained the $100,000. A. When he was caught, he released $ 10,000 immediately. PW1 ended her evidence at the close of the cross-examination and the prosecution called the second witness. The second witness was the investigator, D/Insp. Eric Owusu Yeboah as PW2. PW2 corroborated the evidence of PW1 and testified that accused received money $150,000 and accused disclosed $50,000 to the complainant and stole $100,000. PW2 said he received a petition from the complainant after which she was invited, and she produced documentary evidence to support her case which she tended during her evidence in chief before the court. PW2 also narrated the whole gamut of processes she had gone through to eventually arrest the accused. PW2 said upon the arrest of the accused, on 31/10/2022, he obtained investigation caution statement from the accused person, and he admitted that he obtained USD 150,000 on the complainant property but disclosed only USD 50,000. PW2 tendered the caution statement of the accused exhibit E to buttress his position as well as exhibit E1 charge statement of the accused. PW2 in conclusion of his evidence in chief stated that accused sold the said property for USD 550,000 and received part payment of USD 150,000 and dishonestly appropriated USD 100,000 and when the accused was arrested, he refunded only USD 10,000 through him to the complainant. PW2 was cross examined after his evidence in chief, and these were his responses: Q10. The complainant alleges the accused received $150,000 from the buyer is that correct. A. That is correct. Q11. And her complain was that USD 100,000 was outstanding is that correct. A. Yes, My Lord. Q12. So is the USD 50,000 an exhibit in this court or it is in custody of the complainant as I speak. A. The $50,000 was paid to the complainant by the accused person. The prosecution after the evidence of PW2 ended their case and at the end of the case the defence Counsel said they are of the view that prima facie has not been made against the accused for him to open his defence and hence they will file a written submission of no case against them before the court. However, from the process filed on the docket, there is no written submission. I have considered the case of the prosecution per the evidence of the witnesses called that is the complainant PW1 and the investigator PW2, the accused indeed received the said amount of USD 150,000 on behalf of the complainant (PW1), per the various exhibits tendered, and paid USD 50,000 to the complainant with the outstanding amount of USD 100,000. The prosecution tendered the caution statement of the accused as exhibit E without any objection from the defence and same was admitted into evidence as part of the case of the prosecution before the court. The accused per the investigation caution statement, that is exhibit E, the accused in the two sentences before the last sentence stated, “My buyer for the property was African Legal Associates, represented by one Mr. Brew Hammond, after the due diligence he made a commitment fee of USD 150,000 to me as commitment towards the purchase. This amount was paid to me after the purchaser had undertaken all necessary due diligence before parting with the first deposit”. The accused in his caution statement stated further that according to his business strategy he paid USD 50,000 to the complainant and invested the remaining amount which he had to stop the said investment along the line. From the proceedings before the court, the money which belongs to the complainant has not been paid yet by the accused. From the totality of the evidence before the court that is oral evidence and documentary evidence provided by the prosecution in general, I am of the humble opinion that the prosecution through their witnesses have been able to make a case against the accused person on the charge brought against him and he will be call upon to open his defence. SGD HIS HONOUR KWABENA KODUA OBIRI- YEBOAH, CIRCUIT COURT JUDGE. 9