REPUBLIC VRS THOMPSON (CC 158/2023) [2024] GHACC 261 (15 May 2024)

IN THE CIRCUIT COURT HELD AT KPANDO ON WEDNESDAY THE 15TH DAY OF MAY, 2024 BEFORE HIS HONOUR FRANCIS ASONG OBUAJO, THE CIRCUIT COURT JUDGE NO. CC 158/2023 THE REPUBLIC VS 1. ASIOME FOLI THOMPSON 2. FELIX GBEVE ACCUSED PERSONS: A1 PRESENT A2 PRESENT THE PROSECUTOR D/INSPT. HENRY ODOI DOKU PRESENT. JUDGEMENT Accused persons were brought to court charged with the following offences; 1. Conspiracy to commit crime to wit unlawful entry, causing unlawful damage, and stealing contrary to section 23(1), 152, 172(1)(b) and 124(1) of Act 29/60. 2. Unlawful entry contrary to section 152 of Act 29/60. 3. Causing unlawful damage contrary to section 172(1)(b) of Act 29/60. 4. Stealing contrary to section 124(1) of Act 29/60. Accused persons both pleaded not guilty to the offences charged in open court. Page 1 of 20 The summary of the facts as presented by the prosecution in court are that; A1 is a Mason and lives at Kpando Konda while A2 is a corn miller and lives at Fesi Quarters. The complainant put up a self-contain house at Kpando Konda that is fenced with metal gate which is locked. A1 who lives a few meters away from this self-contain house realized that nobody was staying in that house at the time and informed A2 about that and so planned to steal from the building. On the 24/02/23 accused persons scaled the fenced wall into the building at night and used saw blade to cause damage to the sliding windows and metal bars fitted in the window and entered the room. Accused person then removed the electrical cables which were connected to an electric meter from their holes. Accused persons after that ransacked the rooms and took away two mattresses, a table-top fridge, a small bed frame, two travelling bags, four foldable chairs, electrical cables, a pressing iron, two pillows and a ceiling fan all valued at Gh₵24,095.00. Accused persons divided the booty into two and A2 took his share away into his room at Kpando Fesi Quarters while A1 kept his share in his room. On the 28/02/2023 the complainant went to the house and detected the incident. A witness in this case who is a neighbor to A1 hinted the complainant that he saw a ceiling fan in A1’s room that fit the description stated by the complainant. A report was made to the police who went to A1’s house to arrest him but met his absence. The police looked into A1’s room which was not locked and found some of the items that were stolen from the complainant’s building and same retrieved in the presence of witnesses including A1’s landlady. On the 1/03/2023, A1 was arrested and he confessed to the incident and led the police to A2’s house at Fesi Quarters but met his absence. The police then invited a few people around and they checked A2’s room that was not locked. One of the mattresses and four foldable chairs of the complainant were found and retrieved from A2’s room. A2 was later arrested and they were charged with these offences after investigation. As accused persons pleaded not guilty to the offences charged, the prosecution now bears the responsibly to lead credible evidence at the hearing to establish the Page 2 of 20 essential elements of each offense charged against each accused person beyond reasonable doubt as required under sections 11(2) and 13(1) of the Evidence Act 1975 (NRCD 323). In DOMENA VRS COMMISSIONER OF POLICE (1964) GLR 563 at 568, it was held that; “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 offense to establish the guilt of the accused beyond reasonable doubt and the onus never shifts. There is no onus upon an accused person except in special cases where the statute creating the offence so provides”. John Yerebi of Kpando-Angola gave evidences as PW1 that he is the caretaker of his uncle’s newly built self-contained house at Kpando-Konda with fence wall that is gated with the keys with him. On the 28/02/2023 at about 8:00am, he visited the house and detected that it has been broken into by thieves and the whole house ransacked. Items stolen from the house are those stated in the facts of this offence with the estimated value of Twenty Four Thousand and Ninety Five Ghana Cedis (24,095.00). PW1 stated further that, he reported the issue to the police who visited the crime scene. He later had information from a witness that the description of the ceiling fan fits the one that was seen in A1’s room. PW1 said with that information he and the investigator went to the house where A1 lives but met A1’s absence. The landlady of A1 and other tenants were present at the time and they looked into A1’s room and found all the items stated in A1’s room except four (4) chairs, travelling bags and one of the mattresses. These items were collected to the police station. A1 was later arrested from his hideout at Tsakpe on the 01/03/2023. A1 mentioned one Bone as his accomplice and led the police to Fesi Quarters where he lives and four (4) foldable chairs and one mattress were retrieved from the said Bones’ room in his absence. Under cross examination PW1 maintained that most of the Page 3 of 20 stolen items were found in A1’s room. A2 did not cross examine PW1 when he was ask to do so. Francis Tsali an electrician of Kpando-Konda gave evidence as PW2 that, A1 is his next door co-tenant in the same house. He said on the 25/03/2023 at about 10:00am, accused came for his plier to do something. Shortly after that, A1 heard ceiling fan operating in A1’s room. So PW2 went to accused’s room and asked him whether he bought a fan and A1 said yes. PW2 asked A1 what brand of fan he bought and he said Cropton. On 28/02/2023, PW2 heard PW1’s sister saying thieves broke into PW1’s house and stole his items. So they all followed PW1’s sister to the brother’s house. The sister of PW1 said to them in that house that the ceiling fans were two but one had been stolen. He noticed the brand name of the fan is the same as A1 told him that he fixed in his room. Prior to that day, he heard A1’s aunty complained of accused bringing some items to the house. PW2 further stated that when they returned from the crime scene, he secretly told PW1’s sister how accused had installed a new ceiling fan of the same brand as the one at the crime scene so they should come and check. So they came with the police to check A1’s room and found all the items they were looking for in A1’s room as his room was not locked at that time. PW2 concluded that A1 is not his friend but a next door neighbor who sometimes request for his tools which he usually gives to him. During cross examination form A1, PW2 denied knowledge and his involvement in this case and said he was not the one who sent all the stolen items to A1’s room as A1 was alleging. Explaining that accused framed him up in this case for being the informant. That explains why after accused caused his arrest by the police he was released after investigation. A2 did not cross examine PW2 when asked to do so. The evidence of the investigator PW3, Const. Addobea Augustina Afari of the C.I.D of Kpando police was that this case was referred to her on 28/2/23. She took PW2’s statement and then visited the crime scene at Kpando Konda, a fenced self-contained building. PW3 said she observed that a thief or thieves scaled over the fence wall into the Page 4 of 20 premises and used saw blade to cut the metal bar fitted in the window and broke the sliding window glasses and entered the hall through the window. She also detected that 25 sockets in the building were all damaged and all the electrical cables pulled out and taken away while the house was ransacked. PW3 added that she visited A1’s place with PW1 and invited the land lady of A1 and other tenants and looked into A1’s room which was not locked at the time. Complainant identified almost all his missing items including the ceiling fan in the room. And she took custody of them for evidential purposes. On the 1/3/23, A1 was arrested at his hide-out at Tsakpe behind SHELL filling station and he confessed to stealing the items and mentioned one Bone of Kpando Fesi as his accomplice and said some of the items were with him in his room. It was A1 who led police to Fesi Quarters and pointed out a room as that of Bone but Bone was not at home. PW3 explained that a few people who were around were invited into the room which was not locked at the time and four (4) foldable chairs, a brand new double bed mattress were identified by PW1 as his stolen items which was confirmed by A1. PW3 took custody of the items for evidential reasons. On the 11/4/23, A2 was arrested and cautioned and later charged with the various offences. Caution and charged statements of A1 admitted into evidence as Exhibit ‘A’ and ‘A1’ respectively and caution and charged statements of A2 admitted into evidence as Exhibit B and B1 respectively for their probative value. Ten (10) photographs of the various items stolen from PW1’s premises admitted into evidence as Exhibit ‘C’, ‘C1’ to ‘C9’ series. During cross examination from A1, PW3 maintained that it was A1 who mentioned A2’s name as his accomplice and led the police to A2’s room at Fesi Quarters and the items recovered without any form of coercion. A2 did not cross examine PW3 when asked to do so. Page 5 of 20 DEFENCE OF THE ACCUSED PERSONS A1, Asiwome Foli Thompson elected and opened his defense under oath that he did not steal the items with A2 and did not cause damage to anybody’s property. A1 stated further that all the missing items of PW1 that were found in his room belongs to him as he has receipts to cover them. And that it was PW2 who brought all the items to him for safekeeping. A1 added that he did not know PW1’s house where the items were stolen as he was not taken there to ascertain same. A1 said he sent the items found with A2 to him as collateral and took money from A2 to take care of his wife and so did not sell those items to him as he told A2 he will work hard so he can pay back and collect the items back. Under cross examination from A2, A1 stated that he and A2 were never engaged in stealing and did not steal anything. Adding that he sent those items to A2 in his house as collateral for financial assistance. A1 in another answer to A2’s question stated that A2 has never been to A1’s house. During cross examination from the prosecutor A1 admitted he gave his caution statement Exhibit A to the police on his own volition and led the police to A2’s house at Fesi where the rest of the stolen items were recovered. In another question, A1 answered that he has not provided any receipts to prove the ownership of the items recovered from his room as in Exhibit ‘C’ series. Explaining that he used his motorcycle (motor king) to transport Exhibit ‘C’ series to A2 at Fesi. A2 elected and gave evidence under oath in his defense that he is a corm miller at Fesi Quarters who also engages in illegal small scale mining and got to know A1 through this case. A2 stated that on the 14/2/23 A1 who is his friend came to him to say his wife was sick and so needed financial help for blood transfusion at the hospital. He then gave A1 GH¢300.00 as they were all young men in town who have wife. On the 3rd day A1 came back to him for more money saying his wife’s condition has not improved. A1 told him he has some chairs and mattresses to deposit for more money so A1 will work hard as a mason and Page 6 of 20 pay back. A2 explained that he did not ask A1 of prove of owning those items before he collected them. A1 did not cross examine A2 when asked to do so. During cross examination from the prosecution A2 admitted he met A1 on the 14/2/23 at Kpando Abladzome where he gave him GH¢300.00. A2 stated he gave a total of GH¢950.00 to A1 and not the GH¢800.00 as stated in his caution statement Exhibit B. In another question, A2 explains that A1 brought these items to him at Fesi Quarters for the rest of the money four days’ time after their meeting on the 14/2/23. Exhibit ‘A’, caution statement of A1 taken on the 2/3/23 has it that it was one Francis, his cotenant who on the 24/2/23 at 10:00 pm who on his way home gave the stolen items to him from a nearby house to be taken home for him which he did and parked all the stolen items into A1”s room. A1 added that Francis told him to get a customer and sell the items out and that he was interested in the electric wires (cables). Later, when Francis got to know that accused sent one mattress and chairs to his friend at Fesi, he was mad and then reported accused to PW1 that he stole the items. A1 stated the items stolen as two mattresses, three pillows, bed spreads, a table top fridge, TV Set, ironing board, iron, tape, four foldable chairs a ceiling fan and wires (cables). Accused denied breaking into the said house to steal the items. Exhibit ‘B’, A2’s caution statement taken on the 12/4/23 stated in Twi and translated into English has it that he is a galamsey boy and knows A1’s wife from Kpando-Torkor and that A1 is not his friend. That he met A1 at Abladzome on the 14/2/23 who said his wife was sick. On the 17/2/23 A1 met him at the base and he said his wife was admitted at the hospital and needed GH¢300.00 and he gave it to him. Four days later A1 brought four (4) chairs and a high density mattress to him in the house and requested for GH¢500.00 for his wife’s medical needs and he obliged. He travelled out and on his return, he was told A1 came to look for him and broke into his room and stole his flat screen TV Set of 32 inches. He travelled out again and on his return he was told the police came to look for him. Page 7 of 20 THE LAW AND ANALYSIS Section 23(1) of Act 29/60 of the criminal offence Act States: “Where two or more persons agree to act together with a common purpose for or in committing a criminal offense, whether with or without any previous consent or deliberation each of them commits a conspiracy to commit or abet the criminal offence” It was held in REGINA VRS ZONYRA AND ORS [1959] GLR 26-34, that, it was wrong to ground a charge of conspiracy only upon the fact that two or more persons were engaged together in committing on offense, there must be evidence that they concerted together. This decided case shows that there is the need that the prosecution has to prove a previous agreement between the parties who engaged in the commission of a criminal act in order to secure their conviction. AGYAPONG VRS THE REPUBLIC [2015] 84 GMJ, 142 C.A. referred. From the new formulation of the law on conspiracy the essential elements to be established by the prosecution beyond reasonable doubt are: (i) (ii) That two or were persons had on agreement (directly or inferred) That the agreement was to engage in unlawful act together. (iii) That the purpose (intent) of acting together was to commit a crime. The evidence of the prosecution is that A1 and A2 met twice prior to the date of the incident on or before 25/2/23. A1 and A2 met on the 14/2/23 at Abladzome and on the 17/2/23 at the base per Exhibit ‘B’. The prosecution could not show to the court at the hearing that the intention of their meeting on these two occasions prior to the incident on or about 25/2/23 was to commit a crime. Accused persons spoke with one voice that A1 went for financial help from A2 on the two occasions in order for A1 to cater for the sick Page 8 of 20 wife. It is my finding therefore that prosecution could not discharge their duty to prove all the essential elements of the offence of conspiracy brought against the accused persons as required by law. Accused persons could not be found guilty on this offence. Accused persons are hereby acquitted and discharged. Section 152 of Act 29/60 provides that: “A person who unlawfully enters a building with the intention of committing criminal offence in the building commits a second degree felony” Section 153 of Act 29/60 explains unlawful entry as: “A person unlawfully enters a building if that person enters otherwise than in the exercise of a lawful right, or by the consent of any other person able to give the consent for the purposes for which that person enters” It was held in KANJARGA VRS THE STATE [1965] GLR 479-483 that, to constitute the offence, the entry must be made with a purpose or intent to commit a crime. It follows that in addition to proving entry, for prosecution to succeed, there must be proof that, the intent to commit a crime in the premises existed at the time of entry and it was the purpose for making the entry. From the foregoing, the essential elements to be proven by the prosecution are: (i) (ii) That accused person(s) entered the said building. That accused person(s) entered the building unlawfully. (iii) That accused had intended to commit a crime in the building. The evidence of PW1 was that on the 28/2/23 when he visited his said house he detected that a thief or thieves broke into the house and took away the stated items from the house. On her part PW3 said when she visited the crime scene she observed that a thief or thieves scaled over the fence wall unto the premises and used saw blade to cut the Page 9 of 20 metal bar fitted in the window, broke the sliding window glasses and entered the house through the window into the hall before ransacking the house. And that accused upon his arrest admitted stealing the items from the said house; it is worth noting that A1 did not cross examine PW1, and PW3 in particular that he broke into PW1’s premises that made him gained access to the alleged stolen items. A1 therefore could not discredit the evidence of PW1 and PW3 at the hearing that he, A1 unlawfully entered into the premises of PW1. It was held in the case of QUAGRAINE VRS ADAMS [1981] GLR 59 9-612 that; where a party makes an averment and his opponent fails to cross examine on it the opponent will be deemed to have acknowledged ‘sub-selentio’ that averment by his failure to cross examine. By the principle upheld in this case A1 rather than |A2 by his failure to cross examine PW3 in particular over the evidence that he admitted breaking into the premises of PW1 lends credence to A1 so doing before gaining access to the alleged stolen items. There is no direct evidence at the hearing that accused persons were seen entering or coming out of that house with the stolon items. There is however abundance evidence at the trial which A1 admitted that the stated stolen items were found in their rooms. The question then is how did the items find their way into A1’s room from PW1’s house while PW1 was away without his consent? A1 had admitted at the trial that the stolen items were recovered from his room in his absence by the police and is accusing the police of stealing his money while recovering the items from his home. In LOGAN AND LAVERICK VRS THE REPUBLIC [2007-2008] 1 SCGLR 76 AT 90 per Aninakwah JSC that: “For circumstantial evidence to support a conviction, it must be inconsistent with innocence of the accused. It must lead to irresistible conclusion not only that the crime charged had been committed but it was in fact committed by the persons charged in order to arrive at a definite conclusion…” See: GLIGAH AND ATISO VRS THE REP [2010] SCGLR 870 at 884-885. Page 10 of 20 From the evidence of the prosecution at the trial, one irresistible conclusion that can be drawn from the offence charge is that accused person (A1) entered the premises of PW1 without permission or the right to do so and the main and the only intention for so doing was to engage in a criminal act of stealing in that building. Even though A1 denied entering into the said house, his denial was too weak as compared with the overwhelming evidence of the prosecution at the hearing. I hereby reject his denial of so doing. A1 has vehemently denied that A2 was his accomplice in this incident and that it was after the incident that he used same as collateral for financial assistance from A2. Even though A2 did not cross examine PW3 on this piece of evidence, the available evidence does not appear strong against A2 of his involvement in breaking into PW1’s home. I therefore found A2 not liable and acquit and discharged him. However, A1 could not benefit from the same as all the circumstantial evidence at the hearing clearly points to him that he broke into the building and had evil mind in doing so “A1 is hereby found guilty and convicted on count two as charge. Section 172 (1) (b) of Act 29/60 provides that; 172 (i) A person who intentionally and unlawfully causes damage to property (ii) To a value exceeding one million cedis commits a second degree felony. (iv) For the purposes of this section ‘property’ means movable or immovable Property. Section 173 of Act 29/60 as amended defines damage as: “For the purposes of this Act ‘Damage’ includes not only damage to the matter of a thing, but also an interruption of the use of that thing, or an interference with that thing by which the thing becomes permanently or temporarily useless, or by which expense is Page 11 of 20 rendered necessary in order to render the thing fit for the purposes for which it was used or maintained.” In the case of HOMENYA VRS THE REPUBLIC [1992] 2 GLR 305-319, it was held that accused could only be liable on the charge of unlawful damage to property under section 172(1) of Act 29/60 where prosecution was able to establish not only that accused caused damage intentionally but also that the damage was caused unlawfully. In line with the authority stated supra, the prosecution must lead evidence to establish the essential elements of the offence of causing unlawful damage to property as follows in order to succeed: (1) That damage was caused to a property by accused. (2) The said damage was intentionally caused (3) The damage was unlawful In this offence of causing unlawful damage to a property, just as the charge of unlawful entry, the prosecution could not lead any direct evidence at the hearing that it was the accused persons who did so. The evidence of PW1 and PW3 at the trial showed that those who stole the items in that house broke into same in so doing. PW3 gave evidence on how saw blade was used to cut out the metal bar fitted in the window of the house and then broke the sliding window glasses before entering into the said house. PW2 and PW3 further gave evidence to show how 25 sockets in the building were all damaged and the electrical cables removed. These pieces of evidence can also be seen per Exhibits C4, C5 and C6. The estimated value of these damages caused is obviously more than One Hundred Ghana Cedis (GH100.00) Accused persons (A1) in particular apart from just denying entering the said property (house) did not cross examine on it or did he discredit the pieces of evidence of damages Page 12 of 20 caused to these portions of the house. The only option left to resort to is to make on inference from the available evidence at the hearing. Per GLIGAH AND ATISO VRS THE REP (Supra) the principles of circumstantial evidence in this case is applicable here. All the pieces of evidence pieced together leads to only one conclusion that accused person broke into this house with intention to commit a criminal offence. Those who broke into the house caused damage to the identified portions of the house that cause the property not to be put into used as required. The damage caused was intentional and same was unlawfully caused, even though A1 per the facts of this case is a mason, there was no evidence that he was contracted by PW1 to cause these damages to the property. And also every evidence points to A1 who caused these damages to the said property as there is no evidence that A1 did so with A2. It is my finding and conclusion that A1 caused damage to metal bar fitted into the windows to the house with the use of saw blade, broke the sliding window glasses to enter into the house and rooms and also caused damage to the 25 sockets in the house. A1 is hereby found guilty of the office as charged and accordingly convicted. There is no direct or circumstantial evidence that A2 was involved in this incident at the trial. I hereby found A2 not guilty and accordingly acquitted. Section 124(1) of Act 29/60 defines stealing as the dishonest appropriation of a thing of which the person is not the owner. Section 120(1) of Act 29/60 explained that; 1. An appropriation of a thing is dishonest” (a) If it is made with intend to defraud or (b) If it is made by a person without a claim of right and with a knowledge or belief that the appropriation is without the consent of a person for whom that person is trustee or who is owner of the thing or that the appropriation would, if known to the other person’ be without the consent of the other person.’ Page 13 of 20 In BROBBEY AND OTHERS VRS THE REPUBLIC (1992-83) GLR 608-616, three essential elements of stealing were identified as follows: (i) The person charged must have appropriated the thing allegedly stolen. (ii) The appropriation must have been dishonest (iii) The person charged must not be the owner of the thing allegedly stolen. The evidence of the prosecution at the trial was that all the stolen items from the said house were found in A1’s room. PW1 said he was the caretaker of the said house almost all the items in A1’s room in his absence. Upon the arrest of A1 on the 1/3/23 he admitted bringing those items into the room and mention A2 as his accomplice. A1 led them to A2’s house at Fesi Quarters and a mattress and four foldable chairs of PW1were recovered from his room. A1 could not discredit the evidence of the prosecution in any shade all throughout the trial. A1 rather admitted the items were found in his room and was rather asking PW1 to prove ownership of them with receipts. In Exhibit A, A1 stated that it was PW2 who on the 24/2/23 at 10:00 pm gave the items in question to him to be kept for PW2. PW2 denied these allegations under cross examination and explained how A1 framed him up in this case when he got to know he was the informant and was arrested but nothing incriminating was found against him in this case and so could not be charged. A1 actually admitted and listed some of the items stolen from PW1’s home and sent the mattress to A2 at Fesi. In all of these A2 did not for once cross examine any of the prosecution witnesses over the fact that he is the accomplice of A1. A2 however admitted in Exhibit B that A1 brought four (4) chairs and one high density matters to him and said he needed GH¢500.00 to cater for blood for his wife and he gave him the said money on or about 22/2/23. The defense of A1 was that he sent the mattress and chairs to A2’s house on motor King as collateral and collected money from A2 to take care of his wife so he can refund the money to him. A1 said it was PW2 who brought the stolen items to his room for keep for him. The defense of A1 at the hearing is inconsistent with what he stated in Exhibit A. In Page 14 of 20 Exhibit A, A1 said he met PW2 close to the said house removing the items from PW1’s house and he assisted PW2 sent the items to the house for him. At the hearing A1 is now saying it was PW2 who brought all the stolen item into his room to keep for PW2. To the extent of this inconsistencies, in the case of A1 shall reject his evidence. On his part A2 said A1 is his friend and on the 14/2/23, he came for GH¢300.00 financial help to take care of his wife. On the 3rd day A1 came asking for more money to take care of his wife as her condition has not improved and that A1 had some mattress and chairs to deposit for that so he will work hard and pay back to take the mattress and chairs. He did not ask A1 to know whether he was the owner of the items. It is my finding at this stage that A2 was per available evidence not implicated in the moving and taking away the stolen items from PW1’s home. Even if A2 was involved and accomplice of A1, there is no direct evidence or circumstantial to connect A2 to this offence of stealing of these items. The prosecution has therefore failed to adduce credible evidence beyond reasonable doubt that A2 was one of those who stole the items stated in the facts of this case and he is acquainted. But same could not be said about A1. It is my finding from the evidence adduced by the prosecution that A1 either by himself or assisted by an accomplice who could not be identified. Per the evidence at the trial as my finding of fact, A1 broke into PW1’s home under his care at Konda in the night of 24/2/23 and ransacked the house and took away two double bed mattresses, one ceiling fan, one table top fridge, one wooden bed, one pressing iron, two travelling bags containing personal belongings, four foldable chairs, electrical cables, one TV set (14”) and one smock. A1 admitted taking the items from the said house to his room in Exhibit A referred and started using the items as the new owner and started selling some of the items to other people including A2. PW2 who was A1’s next door neighbor from whom A1 went for a plier to fix the ceiling fan in his room gave A1 away when he got to know that PW1’s house was broken into and a particular brand of ceiling fan had been stolen. This led to the arrest of A1 hence the charge. Page 15 of 20 It is my further finding that A1 could not discredit the evidence of the prosecution over the offence charged as he admitted the items were found in his room and led the prosecution to recover those A1 gave or sold out to A2 hence his arrest. It is my candid opinion that the prosecution has established all the essential elements of this offence of stealing beyond reasonable doubt to secure the conviction of A1. I am therefore of the view that the prosecution has proven this offence against A1 as required by law. I hereby find A1 guilty and convict him of stealing the items as stated which he is not the owner but the property of PW1. Section 156 of criminal procedure Act, Act 30/60 provides that: “When a person is charged with stealing anything and it is proved that he received the thing knowing the same to have been stolen, he may be convicted of receiving although he was not charged with that offence” See: SALIFU VRS THE REPUBLIC [1974]2 GLR 291. SECTION 148(1) OF Act 29/60 provides “148(1) where a person charged with dishonestly receiving is proved to have held in his possession or under control, anything which is reasonably suspected of having been stolen or unlawfully obtained, and that person does not give on account to the satisfaction of the court as to the possession or control the court may presume that the thing has been stolen or unlawfully obtained, and that person may be convicted of dishonestly receiving in the absence of evidence to the contrary. In the case of SANTUOH VRS THE REPUBLIC [1976] 1 GLR 44 the Appellant was convicted for dishonestly receiving stolen wax prints. The court presumed guilty knowledge on the part of the appellant following from his suspicious conduct after he had taken delivery of the goods. Page 16 of 20 Now, incontrovertible evidence at the trial is that some of the stolen items are high density double bed mattress of 12 inches and four foldable chairs which were found and recovered from A2’s room. A2 admitted it was A1 who brought the items to him. It is my conclusion therefore that A2 had in his possession stolen items and so received these items. In his evidence in court A2 said he only got to know A1 through the case but went further to state that A1 is his friend who came to tell him on the 14/2/23 that his wife was sick and he gave A1 GH¢300.00 on demand. And that he never met A1 after that until A1 brought the items to him at Fesi Quarters in 3 days’ time and requested for GH¢500.00 which A2 gave out and took the items as collateral. A2 admitted meeting A1 on the 14/2/23 at Abladzome but denied meeting A1 at the base at Kpando on the 17/2/23. As part of his defense at the hearing A2 explained that when he received the items from A1 he did not ask him proof of owning those items. In A2’s caution statement (Exhibit B) however, he said A1 is not his friend and that he only knows A1’s wife at Kpando –Torkor. A2 stated further that he met A1 on the 14/2/23 at Abladzome and on the 17/2/23 he met A1 at the base where he gave GH¢300.00 to him on request for the wife’s treatment. And for (4) days after the 17/2/23 that A1 brought the items to him at Fesi in demand of GH¢500.00 and he obliged A1 for the medical treatment of his wife. A2 explained that after that he travelled out and on his return he was told A1 came to look for him for more money and as he was not there A1 broke into his room and stole A2’s 32 inches TV Set. And later travelled out again and on his return that he was arrested. There are a number of contradictions in the evidence of A2 at the hearing and what he stated in Exhibit B thus: (i) A2 said A1 is not his friend and that he only knows his wife at Torkor but in his defense said A1 is his friend. Page 17 of 20 (ii) In Exhibit B, A2 stated he met A1 on the 14/2/23 at Abladzome and on the 17/2/23 he met A1 at the base and gave him GH¢300.00 on demand and in four days later that A1 brought the items to him at Fesi for the GH¢500.00. However in his evidence in court A2 said he met A1 once on the 14/2/23 where he gave out the GH¢300.00 and in three days time that A1 brought the items to him at Fesi as collateral for the GH¢500.00 and travelled soon after that. Now A2 said he did not ask A1 of proof that the items belonged to him before he received them and then travelled out. In his defense during his cross examination of A1 in court on the 7/11/23 however, the following took place: Q: Do you recall when you brought the items to my house, I told you that I do not stay here as I engage in galamsay so I do not want to do anything and have trouble with the police. A: That is true that you asked me that. The above exchange between A1 and A2 at the hearing over the stolen items is indicative to me that A2 was suspicious of the items being a stolen one. That was why A2 did not probe further from A1 how he came by them. It is my finding that both accused persons are not credible witnesses and embark on a lot of cover up for each other in this case. At one breath A2 said A1 is not his friend at another A2 said A1 is his friend. A2 said he gave a total of GH¢950.00 to A1 in all at the hearing but in Exhibit B. A2 gave a total GH¢800.00 to A1. In exhibit B A2 stated how A1 broke into his room at Fesi and stole his 32 flat screen Tv set to go and sell of which he did not report same to the police leaving the mattress and four chairs he sent to A2. From the foregoing the credibility of A2 is on the line. It is therefore my presumption from the question A2 posed to A1 during cross examination that he will not like to receive those items from A1 and have trouble with the police later on and travelled out soon after that points to A2 knowing or suspecting Page 18 of 20 that those received items were either stolen ones or unlawfully obtained by A1. In SANTUOH VRS THE REP (Supra) where the appellant was convicted of dishonestly receiving stolen wax prints, the court presumed guilty knowledge on the part of the appellant following from his suspicious conduct after he had taken delivery of the goods. On the strength of the analysis so far made with the laws and decided case referred to it is my conclusion that A2 received stolen properties and or unlawfully obtain items and is accordingly found guilty and convicted. Per section 146 of act 29/60 a person found liable in this offence will be liable to the same punishment as if that person had committed that criminal offence. BY COURT:-Do accused persons have anything to say by way of mitigation before sentence is passed? A1 prays for the mercy of the court A2 prays for forgiveness of the court BY COURT:- Are the accused persons known? Prosecution told the court accused persons have no such records that he is aware of. The prosecutor explained that apart from the electrical cables and the two bags, all other stolen items have been received and in good condition. BY COURT:- In sentencing A1 the court has taken into account the plea on mitigation, the fact that most of the stolen items were recovered also A1 though granted bail had been on remand for 1 year 2 months now. A1 is sentenced to 12 months on court two and three. On count four A1 is sentence to three years in prison with hard labour. All sentences shall run concurrently. Page 19 of 20 A2 is sentence to 12 months in person for receiving stolen property. FRANCIS ASONG OBUAJO CIRCUIT COURT JUDGE 15/5/2024 Page 20 of 20