REPUBLIC VRS MUSAH USMAN & ANOR. (D4/18/2022) [2023] GHACC 1102 (13 July 2023)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON THURSDAY, 13TH DAY OF JULY 2023 BEFORE HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. D4/18/2022 THE REPUBLIC VRS MUSAH USMAN IBRAHIM ABDUL RAHMAN ================================================================= JUDGEMENT =================================================================== The accused persons, A1 and A2 were charged and arraigned before the Court on five counts of various offences. A1 was charged with the offence of: Count 1: Conspiracy to commit crime to wit: stealing contrary to section 23 (1) & 124 (1) (b) of the criminal offences Act 19/60, (ACT 29). Count 2: Stealing contrary to section 124 (1) of the Criminal Offences Act, 1960. (ACT 29) Count 4: Conspiracy to commit crime to wit: causing unlawful damage contrary to section 23 (1) & 172 (1) (b) of the Criminal Offences Act 1960, (ACT 29) and Count 5: Causing Unlawful Damage contrary to section 172 of Criminal Offences Act, 1960, (ACT 29) A2 was charged with. Count 3: Dishonestly receiving contrary to section 146 of Criminal Offences Act 1960, (Act 29) Count 4: Conspiracy to commit crime to wit: causing unlawful damage contrary to section 23 (1) & 172 (1) (b) of the Criminal Offences Act 1960, (ACT 29) and Count 5: Causing Unlawful Damage contrary to section 172 of Criminal Offences Act, 1960, (ACT 29) The law provides under sections 173 and 174 of the Criminal and Other Offences Procedure Act, Act 30 as follows: 173. Acquittal of accused when no case to answer At the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require the accused to make a defence, the Court shall, as to that particular charge, acquit the accused. 174. The defence (1) At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused sufficiently to require the accused to make a defence, the Court shall call on the accused to make the defence and shall remind the accused of the charge and inform the accused of the right of the accused to give evidence personally on oath or to make a statement. (2) The Court shall then hear the accused if the accused desires to be heard and the evidence the accused may adduce in defence. By these provisions, at the end of the case of the prosecution, the court came to the conclusion that a case has been made against the accused persons and they were called upon to open their defence. The facts of the case per the prosecution are that complainant Barnabas Cudjoe is the Internal Auditor of Yadco Ghana Limited and resident of Awudome Estate. A1 is a vulcanizer and A2 a scrap dealer all resident of Kanda and Sabon Zongo, Abossey Okai respectively. On or about the 17th day of August 2021, A1 and one Alhaji Timbila alias Zaaki now at large, hatched up a plan to sell some of industrial equipment belonging to Yadco Company around Papaye area along the Accra Tema Motorway without the consent of management of the company, in order to share the proceeds. In furtherance of the said plan, A1 in the company of A2 on 20th August 2021 sneaked into a part of the premises of the company, where the company had two (2) giant galvanized silos erected. Having entered the yard, A1 who had no relationship with the said company claimed ownership of the two silos and in collaboration with the said Alhaji M. A. Timbila alias Zaaki now at large, A1 sold the silos as scrap metals to A2 at a paltry sum of Thirty Thousand Ghana Cedis (GHC 30,000). A2 agreed to the sale and paid the said amount to A1. A1 and the said Alhaji M. A. Timbila alias Zaaki shared proceeds from the sale. Thereafter, A1 and A2 used industrial gas welding / cutting machine gun and cylinder bottles filled with industrial gas and cut down the two silos, thereby causing same extensive damage. The falling Silos landed on four concrete pillars on site, resulting to damage to same. A2 then undertook to cut the damaged silos into pieces in order to cut the damaged Silos into pieces in order to cart same away as scrap. However, the loud noise from the fall of the Silos attracted people to the scene and a report was made to the police who responded and arrested A2 and subsequently A1. However, the said Alhaji M. A. Timbila alias Zaaki is at large. After investigation, the two accused persons were charged with the offences and arraigned before this honourable Court whilst efforts are being made to apprehend the said Alhaji M. A. Timbilla alias Zaaki now at large. Accused A1 and A2 appearing before the court pleaded not guilty to the charge proffered against them. Therefore, it is the duty of the prosecution to 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 reasonable doubt”. In the case of Asare v The Republic (1978) GLR 193, where the Court of Appeal stated the principle as follows; “As a general rule, there was no burden on the accused to establish his innocence, it was the prosecution that was required to prove the guilt of the accused beyond reasonable doubt”. See also Oteng v The State (1966) GLR 355 It is trite law that in a criminal case, when an accused pleads not guilty to an offence, pursuant to S.11 (2) of the Evidence Act, 1975 (NRCD 323), the burden of proof is on the prosecution; and the standard of proof has to be beyond reasonable doubt as stated in Section 13(1) of the Evidence Act, 1975 (NRCD 323) and affirmed in the case DARKO v THE REPUBLIC [1968] GLR 203. There is no burden on the accused. See: COP v Isaac Antwi (1961) GLR 408 @ 412, Nkansah v The Republic (1980) GLR 184. The law under conspiracy is provided for by section 23 of the CRIMINAL OFFENCES ACT, 1960 (ACT 29) which reads: Section 23: Conspiracy (1) Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence. The Supreme Court in the case of Francis Yirenkyi v The Rep. (2017-2020) 1 SCGLR page 457 the Court per Dotse JSC as he then was said, “The effect of conspiracy as defined by the Court of Appeal, is that the persons must not only agree or act but must agree to act together for common purposes”. The Court went further to state, “…. Under the new formulation, a person could no longer be guilty of conspiracy in the absence of any prior agreement, whereas under the old formulation a person could be guilty of conspiracy in the absence of any prior agreement”. With respect to stealing, 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. Section 146 creates the offence of — Dishonestly receiving Property obtained or Appropriated by Offence. And the provision states “Whoever dishonestly receives any property which he knows to have been obtained or appropriated by any offence punishable under this Chapter shall be liable to the same punishment as if he had committed that offence”. In the case of the prosecution, which is before the court, A2 has been charged with dishonestly receiving two galvanized Silos value at three hundred thousand cedis (GHC 300,000) which has been obtained through stealing by A1. Section 172—Causing Unlawful Damage. (1) Whoever intentionally and unlawfully causes damage to any property by any means whatsoever— (a) to a value not exceeding ¢1 million, or to no pecuniary value, shall be guilty of a misdemeanour; (b) to a value exceeding ¢1 million, shall be guilty of second- degree felony. And (3) provides, For the purposes of this section, “property” means movable or immovable property. The prosecution, during the trial, proved their case through their witnesses that is PW1, Barnabas Cudjoe, who is an Internal Auditor of the complainant company and testified for the company, PW2, was the investigator. The prosecution also tendered various documents, exhibit A-G before the court in support of the charge without any objection from the defence. These documents include charge sheet and various investigation caution statements. Prosecution also tendered the Land Certificate and the lease document of the land. Prosecution also tendered various photographs showing the land and the damaged silos, silos hanger, the base and among others. The prosecution also tendered pictures of the oxygen cylinders together with the cables that were used by A2. Prosecution witnesses gave evidence by relying on their witness statements filed and the exhibits as labelled by the court. PW1 gave evidence as to how the accused persons unlawfully entered the yard of the company on the Spintex road and forcibly and unlawfully brought down two of the silos of the company which created noise within the vicinity. PW1 testified that the Baatsona Police proceeded to the yard and arrested the two accused persons and others at large. PW1 again testified that the act of the accused persons caused extensive damage to the silos belonging to the company affecting the shapes of the silos. PW1 Said A1 told A2 that he is the owner of the yard and the two silos and sold it to A2 at a cost of GHC 30,000. PW1 further testified that after the sale, A2 engaged the services of some labourers who assisted him and A1 to use industrial gas to cut down the two silos from their respective stands. PW1 concluded his testimony that the silos are the property of Yadco Ghana Limited and the estimated cost of the silos was GHC 300,000 and the act caused extensive damage to the silos and A2 intended to cut them into pieces as scrap and to make it easy to convey from the yard and to sell it as scrap. PW1 tendered into evidence most importantly the land documents which were in the name of the complainant company, an estimate of about 3 acres of land, that the complainant uses, as its yard for their operations. PW1 was cross examined after his evidence in chief, and these were some of the responses: Q8. I suggest to you that A1 before the police said he was instructed by one Alhaji Timbila to sell the Silos to A2 A. Yes Q13. The security person would have told you that A1 informed him that the land in issue belonged to the chiefs. A. The security officer didn’t know the accused persons until I came with the police. Q14. The security person allowed A1 and A2 access because he believed what A1 told him, the security man. A. They did not go through the main entrance, they went through back through the bush and he was not aware that they were there until the fall of the Silos and the noise, and this is because it is a vast land. Q15. I am suggesting to you that A1 and A2 together with others came through the gate. A. It is not true. This was the cross examination of the Counsel for A1 and from the cross examination, the evidence of PW1 was generally not challenged. Counsel for A2 also cross examined the witness and this was what transpired. Q32. Did you know it is not the first time A1 together with Timbila and the landowners which are the chief of Tse Addo sent A2 to the yard to sell the scrap to him together with other scrap dealers. A. I do not have an idea and also, we do not have scrap at the factory. We have silos and machinery. Q33. Look at Exhibit G, G1 and G4 are rusted and scrap. A. They are not rusted is the pictures they are showing that. They were mounted on a platform and were standing. If they were rusted, they would have fallen long ago. Q34. I am suggesting to you that they were rusted and standing dangerously, a threat to human life and could fall any time and needed to be evacuated as scrap. A. That is not true but is the owner who has the power to repair or replace and not an outsider. Again, generally the evidence of PW1 was not challenged in substance by Counsel for A2, but to them, the silos were rusted, and the landowners, purportedly the Chiefs were the people who sent A1 to the yard to sell the silos to A2 as scrap. Prosecution called PW2 who testified before the court and corroborated the evidence of PW1. PW2 said the Police patrol team arrested and brought to the station the accused persons and others and reported that at 1 pm same day they received distress call that the accused persons unlawfully entered the yard on the Tema Motorway dishonestly appropriating two silos concrete mixer, the property of Yadco Ghana Limited. PW2 said investigation disclosed that A1 and one Alhaji M. A. Timbilla @ Zaaki agreed, acted together and represented to A2 as the owners of premises with two silos on the land the property of Yadco Ghana Limited. PW2 testified that A2 in eager to convey the silos from the yard engaged others, and mentioned their names and tendered their statement to the police, to cut down the stand holding the two silos. PW2 stated further that the accused persons and their accomplices used industrial gas welding cutting machine gun and cylinder bottles filled with industrial gas to cut down the two silos and caused extensive damage to same. PW2 testified that the accused persons had moved the two silos from their original position to another location within the yard with the plan of cutting them into pieces to be conveyed as scraps. PW2 concluded his evidence that investigations confirmed that the first accused person and his accomplice at large dishonestly appropriated the two giant galvanised silos and sold same to A2 as scrap. A1 and A2 in their bid to convey the silos from the yard cut down the supports of the silos which fell on the concrete pillars causing extensive damage to the silos. The prosecution closed their case after the evidence of the investigator and after which the court concluded that a case has been made against the accused persons and they were called upon to open their defence. The accused persons open their defence with A1 giving evidence and calling one witness. A2 also gave evidence but did not call a witness. A1 testified that he was sent by one Chief by name Alhaji Zaaki who told him that he has scraps to sell so he called A2 who deals in scraps and took him to the Chief. A1 said Alhaji Zaaki asked him to take A2 to the land and eventually someone took him to the land as he did not know the place and he saw the scraps on the land. A1 said he informed A2 who asked about the price and Alhaji Zaaki asked for GHC 30,000 and he was asked by the Alhaji Zaaki to bring the money to his office, and he was promised, he will be given something, but till date he has not been given anything. A1 said after he accompanied A2 to go to the land and cut the scraps. A1 said he left the place, and he was later called by A2 that he has been taken to Baatsona Police Station. He also went to the police station with some two chiefs, but Alhaji Zack did not accompany him to the police station, and he was asked to write his statement. The defence of A1 is that he does not know anything about the case as he was sent by Alhaji Zaaki, and he has no idea about the case. A1 further testified that he was asked to go and bring the money he gave to Alhaji Zaaki, so he collected it from him and brought it to the police. A1 said he was put into cells for three days before he was brought to court and granted bail by the court. A1 further said that he does not know the where about of Alhaji Zaaki. Prosecution cross examined A1, and these were his responses before the court. Q3. When Alhaji Zaaki met you, did he show you any document indicating that the land or the silos belongs to him. A. That very day it was not shown to me but when we were sent to the police station, they showed the document to the police Q4. But you acted on the first instance whereas the documents were not shown to you, is that correct. A. That is so Q5. Now make it clear to the honourable court how did you find, the silos on the site of the complainant. A. I saw it as metals on the site Q6. Can you describe how they were placed on the site? A. I saw it as standing metals Q7. I am putting it to you that the silos you saw standing were not scraps. A. I cannot tell whether it was scraps or not scraps A1 was also cross examined by the Counsel for A2 and after which he was discharged. A1 called a witness in the person of Francis Nii Adjei Akporh Obedeka (DW1). DW1 evidence was that Teshie Nuumo Mmashie family engaged someone through the Ga Dangme land administration and that is how he got to know A1. DW1 said the family has large track of land and the land is covered by various judgments. DW1 said the land falls under civil appeal no. 49/80 which was delivered in 1982. The said Judgment was tendered as exhibit 1. DW1 said further that the family engaged one Alhaji Timbila alias Zaaki to clear various parcels of land including the one with the silos and he invited the first accused to help him, so the first accused person was on the land at the express consent of the family. DW1 was cross examined by the prosecution and the Counsel for A2. During cross examination by Counsel for A2, Counsel for A2 talked about 2016 judgment which was subsequently advertised which the witness DW1 admitted was a publication and same was admitted as exhibit 2. Counsel then asked the witness the question: Q4. And you lawfully instructed Zaaki to take steps to clear the scraps and disposed of it. A. That is true, My Lord. DW1 was discharged and A2 open his defence before the Court. A2 open his defence by saying that he was there one day, and someone came to him that he has scraps to be sold and he was told the scraps were at Spintex and he went with A1 to see the scraps and not with the one who told him about the scraps. A1 said he was told the scraps belong to some Chiefs. A1 said A2 showed him the papers and was told that the land belongs to some Chiefs who wanted to grade the area. A2 identified exhibit 1 as the documents which were shown to him. A2 said he brought the document home and got someone to read who told him the document was in connection with scraps. A2 said he went to the site on Friday to cut the scraps with A1 who told him that if someone ask them, who asked them to cut the scraps they should mention his name. A2 said he never had any contact with any Chiefs but A1. A2 said whiles they were in the process of cutting down the scraps, the police came and questioned them, and he told the police that it was A1 who sold the scraps to him. A2 said he was arrested and taken to the Baatsona police station. A2 said A1 came to the police station with DW1, who said he was secretary to those who asked A1 to sell the scraps, that is some Chiefs at Tseaddo. A2 said the secretary brought some documents and showed to the police. A2 said he bought the scrap at GHC 30,000 and to him the materials were scrap and if he purchases it at that price, that was good for him. A2 said the place is a vast land and he pass through a certain company before he got to the site. A2 concluded that the materials are scraps, and he went to the site with his machine to go and cut the scraps. During cross examination these were the responses of A2. Q3: How many silos did you meet at the site, and you brought them down with the implement shown in exhibit G. A: It was three in number, but I only cut two out of the three Q4: You will agree with me that immediately you paid the said GH¢30,000.00 to A1 you took over the silos correct. A: Yes, my lord I paid the money Q5: It was based on that, that A1 stood there until 11 o’ clock that you started cutting down the silos to the ground. A: Yes, my lord because I paid the money to him that is why I was allowed to cut the silos/scraps Q6: I am putting it to you that the two silos that you cut down are not the property of A1 and therefore you bought a stolen item. A: I did not buy a stolen item because he told me that it was some chiefs who asked him to sell the silos. After the cross examination, was the end of the case for the defence. The accused persons in total were charged with 5 offences, (A1 was charged in total 4 offences and A2 in total 3 offences) and were arraigned before the court for prosecution. At the end of the case of the prosecution the accused persons were ordered to open their defence. The accused persons A1 and A2 spoke for themselves and A1 called a witness. In totality, the case of the prosecution and the evidence of the defence is before the court, and the court will have to make a determination whether prosecution has led evidence to prove the ingredients of the offences against the accused persons as required of the law beyond reasonable doubt. The prosecution led evidence with respect to the accused persons being found and arrested on the land of the complainant company which is the site of the company. The prosecution tendered an exhibit, F, which is documentation covering the land and giving the acres of the land which is in the name of the company. The prosecution led evidence of the silos which were found on the land which the evidence indicates that the land belongs to the complainant as well as the silos. These exhibits were all tendered into evidence without any objection by the defence. Actually, the defence does not deny this evidence of the prosecution with respect to the ownership of the silos just that the case of the defence is that they were scraps. Prosecution tendered pictures of the silos and the general view of the site of the incidence. From the records, the incidence occurred in August 2021 and the pictures were taking per the exhibits recording, by the investigator, on 2nd of October 2021 and this is about two months after the incidence. Therefore, from the exhibits, the area, which was in contact with the ground, looks a bite rusty as the silos must have been left unattended to after the incident. The other parts of the silos however are not rusty as one can clearly see the white colour all over the silos and may not have rust when standing except may be the various joinery. The pictures again were tendered without any objection and therefore I conclude that the silos cannot be considered, with any stretch of imagination as scraps, even though some portions may be rusty. And no wonder A1 said at a point during cross examination, that he cannot tell whether metal were scraps or not. There is no way any person can objectively see these giant standing structures, on a concrete platform, in a vast land space with other structures including metal containers and conclude that they are scraps and should be cut into pieces as claimed by the defence. The prosecution through their witnesses PW1 and PW2 led evidence of how A1 and A2 agreed and A1 took A2 to the site and then negotiated the amount of GHC 30,000 which was paid to A1 and A1 claim he sent the said money to one Alhaji Timbilla alias Zaaki. This said Alhaji Timbilla alias Zaaki, from the records before the court, did not appear before the police and was also not called before the court, even though A1 claimed he went back for the money and gave it to the police after they were arrested. During the trial when A1 was asked about the said Alhaji Timbilla alias Zaaki, A1 said he does not know his were about. During the trial A1 again told A2 that whiles they are cutting the silos, if anyone ask them about the cutting of the silos, they should tell them, he, A1, asked them to cut the silos. The accused persons claim the said Alhaji Timbilla alias Zaaki was to clear the land for the purported landowners but there is no evidence of any portion of the land being cleared. It was only the silos that were sold by A1 to A2, that A2 was cutting down and did cut 2 out of the three before they were arrested by the police. The question to ask is if they were clearing the land of the silos, why was only two out of three negotiated for and not all the three silos as A2 answered to a question under cross examination. The prosecution has led evidence to show that the accused persons agreed, entered the yard of the complainant Company Yadco Ghana Limited, and A1 sold the silos which does not belong to him to A2 who received them and were cutting to convey them away when he was arrested. Prosecution also led evidence of how these silos being used by the complainant Company as concrete mixer were cut from their base and with the weight, falling on the ground, which was a concrete floor, making such huge noise and damaging the silos in the yard of the complainant company. PW1 gave the estimated value of the two silos which were damaged as GHC 300,000. These evidence from the prosecution were not challenged at all by both Counsel of the defence during cross examination. A1 was present when A2 started cutting down the silos before he left for the mosque as he testified before the court. A1 and A2 agreed to cut down these silos knowing that or must have known that cutting the silos which were that heavy if they fall will lead to the damage of these silos. And they did that and ended up damaging the two silos belonging to the complainant company. From the evidence before the court, including the case of the defence, through cross examination and their evidence before the court, the accused persons do not deny some of these pieces of evidence which the prosecution has proved against them. The defence of the accused persons in totality has been considered by the court. The evidence of A1 is that the land belongs to some Chiefs in Tseaddo, who are owners of the land, who wanted to clear the land which belongs to them. The evidence of A2 is that he did not dishonestly receive any items as he is a scrap dealer, and he was offered some scraps to purchase and when he asked, he was given document which indicates, the document, was about scraps, when he asked someone to interpret for him. Generally, the defence of the accused persons were not consistent as their case which they tried to put across during cross examination were shown to be contradictory to their own defence. There was contradiction in the evidence of A1 and A2 as to how they got to know about the said scraps. Even the individual evidence, for instance it was the case of A1, that he did not speak to the security at the site, but question was asked in cross examination to that effect. Again, the defence was that the land belongs to some Chiefs, but they called a witness who testify that the land belongs to Nuumo Mmashie Family. The evidence on record per the prosecution shows that A1 gave statement to the police which were tendered, but A1 said during the trial that he did not give any statement to the police, but the Chiefs did. A2 identified the exhibit, exhibit 1 which was tendered by DW1 as the exhibit which was shown to him which indicated that the document is about scraps, but this exhibit has nothing to do with scraps and was also not even land document but rather a judgment of the Court of Appeal. A1 in his statement to the police, exhibit A and A1 which were tendered without objection, stated that the land belongs to Alhaji Zaaki, and he wants to develop the area, grade the land and they are to remove all the structures. A1 further stated that he collected GHC 30,000 and GHC 5000 from A1 and another person respectively, and he gave in total GHC 35,000 to Alhaji Zaaki who asked him to sell it. During his evidence in chief before the court he said he gave GHC 30,000 to the said Alhaji Zaaki and that was the amount he took from him and returned to the police. From the evidence, even though A1 speaks of the land belonging to Alhaji Timbilla @ Zaaki and the Chiefs of Tseaddo he calls a witness DW1 who now testify before the court that the land belongs to Nuumo Mashie family and tenders exhibit 1 which is a judgment of the Court of Appeal on compensation, with respect to a land that has been acquired for TV Station at Adjancote, and not title or ownership to land. In the judgment the court of appeal declared that the said Nuumo Mashie family are entitled to the compensation in respect of the land acquired for the TV Station. A2 also in his statement to the police, exhibit C, stated that on the 19 August 2021 one Paa Red told him that one Chief Musah (A1) has some metals for sale and Paa Red led him to the place the metals were located and identified two cylindrical metals to them. A2 said he paid GHC 30,000 to Musah who claimed that the metal belongs to him, and he said Musah was with them at the site to ensure they start the cutting before he left. Interestingly, A2 spoke to the police in English but in court he spoke in twi and said he did not go to school. A2 in his evidence before the court, never mentioned this Paa Red, whom he actually provided his number to the police. A2 in his evidence before the court rather said he was accompanied to the site by A1 and A1 now told him that the scraps belong to some Chiefs. These inconsistencies and differences run through the total defence of the accused persons before the court. From the evidence, the accused A1 and A2 testified before the court under oath. Their evidence in chief were contrary to the statements they gave to the police when they were arrested. These were admitted into evidence without any objection. The principle of law is to the effect that when there is such contradiction with respect to the accused persons, then it is an indication that the accused persons are likely to have a guilty mind. In the case of Poku v The State (1966) GLR 262, it was stated “A previous statement made by a witness to the police which was in distinct conflict with his evidence on oath was admissible to discredit or contradict him”. The same principle was applied in the case of Yaro and Another v The Republic (1979) GLR 10, where the court stated that “A previous statement made by a witness to the police which was in distinct conflict with his evidence on oath was always admissible to discredit or contradict him and it would be presumed that the evidence on oath was false unless he gave a satisfactory explanation of the prior inconsistent statement. A witness could not avoid the effect of a prior inconsistent statement by the simple expedient of denial”. See also State v Otchere and Others (1963) 2 GLR 463 and Rep. v Maikankan and Others (1972) 2 GLR 502 Considering the totality of the defence of the accused persons which they put forward strongly when they were in the witness box, the level of contradiction in the case of the defence and especially their previous statement, goes so deep to the point that, it is not only unbelievable but also their story is not reasonably probable. See: Gligah & Atiso v The Republic (2010) SCGLR 870, Darko v The Republic (1968) GLR 203. The prosecution has been able to lead evidence to prove their case before the court and the question whether the accused persons committed the offences levelled against them is answered in the affirmative. The defence of the accused has been considered by the court in totality and based on the three-tier test of examining the defence of the accused person, the defence is found to be unacceptable, it is not reasonably probable and considering the whole case before the court, that is the prosecution and the defence together, the prosecution has been able to satisfy the guilt of the accused beyond reasonable doubt. See Brempong v The Republic (1995-1996) 1GLR 321 @ 350, Lutterodt v Commissioner of Police (1963) 2 GLR 429 @439. And in the defence of the accused persons, and the written submission by Counsel for A2, they raised various issues and technicalities as to the processes of the prosecution, conduct of the prosecution and the totality of the proof of the case before the court giving an indication that the case has not been proved well against them. For this I will refer Counsel to the authority he referred to in his written submission, page 6, the case of Miller v Minister of Pensions (1947) All ER 372 @ 373, Lord Denning indicated that it is needless for the prosecution to attempt to proof the guilt of the accused beyond a shadow of doubt since that standard will be impossible to attain and were the law to allow that, there will be the admission of fanciful possibilities to deflect the course of justice and the law will fail to protect the community. The accused A1 and A2 are therefore found guilty (A1 found guilty on Count 1, 2, 4 and 5) and (A2 found guilty on Count 3, 4 and 5) that is on the counts brought against them and the accused A1 and A2 convicted accordingly on the counts. SGD HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. 20