EVANS ASIEDU AIKINS AND 2 OTHERS vs. THE REPUBLIC [2015]DLCA3138

Date	2015-06-04
Suit No.	CIVIL APPEAL NO. H2/3/2015
Citation No.	[2015]DLCA3138

MARFUL-SAU J. A (PRESIDING)

ACQUAYE

J.A.

TORKORNOO J. A.

S. K. AMOAH FOR APPELLANTS

REBECCA K. ADJALO (SSA) FOR REPUBLIC/RESPONDENT

[2015]DLCA3138
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EVANS ASIEDU AIKINS AND 2
OTHERS

&nbsp;[COURT OF APPEAL, KUMASI]

CIVIL
APPEAL NO. H2/3/2015&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;DATE: 4TH
JUNE, 2015

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COUNSEL:&nbsp;&nbsp;

S. K. AMOAH FOR APPELLANTS,

REBECCA
K. ADJALO (SSA) FOR REPUBLIC/RESPONDENT

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CORAM:

MARFUL-SAU
J. A (PRESIDING), ACQUAYE, J.A. , TORKORNOO J. A.

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&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;

JUDGEMENT

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TORKORNOO, J. A:

The
appellants were charged with conspiracy to steal and stealing contrary to
sections 23 (1) and 124 and section 124 (1) respectively of the Criminal and
Other Offences Act 1960, Act 29. The
1st appellant is a director of a company called No One Can Know Ltd,
also called Evadox Ltd. Both 1st and 2nd Appellants are
directors in Virtue Enterprises Ltd. The 2nd Appellant is the son of
the 1st Appellant. No One Can Know Ltd/Evadox Limited has accounts
with the Nsawam branch of Barclays Bank while Virtue Enterprises Ltd. has an
account with Ghana Commercial Bank in Akim Oda and Nsawam. The 3rd
appellant is a Data Capturing Officer with the Akim Oda Branch of Barclays
Bank.

Barclays
Bank granted certain facilities to No One Can Know Ltd./Evadox Ltd which
allowed cheques paid to the company to be treated as bank drafts over which the
company had immediate access and value, even before the cheques are cleared.
This facility was up to GH2,500,000.00.

On
3rd January 2008, when the bank balance of Virtue Enterprises Ltd
with GCB stood in the negative, the 2nd Appellant wrote cheques
valued at GH¢4,700,000.00, GH¢1,600,000.00, GH¢4,000,000.00 and GH¢1,400,000.00
in favour of No One Can Know Ltd/Evadox Ltd to be paid from the accounts of
Virtue Enterprises Ltd. The cheques can be seen on pages 247 to 250 of the
Record of Appeal. At that time, Evadox Ltd. had GH¢58,653.87 in its accounts. See
page 301 of the Record of Appeal. These cheques were paid into Evadox account
through the Oda branch of Barclays Bank.

The
3rd Appellant, an employee of the Barclays Bank in Oda, captured the
cheques as a bank draft which would enable Evadox to withdraw the monies before
the cheques were actually cleared. On that same 3rd January 2008,
the 1st appellant wrote two cheques valued at GH¢3,600,000.00 and
GH¢8,700,000.00 respectively to be drawn on the accounts of Evadox Ltd, gave
them to the 2nd appellant who had paid to Evadox Ltd the earlier
four cheques with the knowledge that Virtue Enterprises did not have the cash
to support the cheques. The two cheques can be seen on pages 251 and 252 of the
ROA.

2nd
Appellant went to the Koforidua branch of Barclays Bank with the cheques worth
GH¢12,300,000.00 and withdrew this cash from the accounts of Evadox Ltd. The 2nd
appellant was able to withdraw the money based on cheques issued by the 1st
appellant because the 3rd appellant had captured the Virtue
Enterprise Ltd cheques as bankers drafts on the accounts of Evadox Ltd.

To
prove the prosecutions’ case of conspiracy to steal and stealing, six witnesses
were called and they testified regarding the roles played by the Appellants in
the issue, clearance and withdrawal of the values on the cheques. At the close
of the prosecution’s case, the appellants submitted that the prosecution had
failed to prove that they had any case to answer and urged the court to dismiss
the action. The learned trial judge dismissed the submission of no case. This
is an appeal against that dismissal.

In
section 173 of Criminal and other Offences (Procedure) Act 1960, Act 30, it is
provided that

‘where at the close of the evidence in
support of the charge, it appears to the court that a case is not made out
sufficiently to require the accused to make a defence, the court shall, as to
the particular charge, acquit the accused’.

What
is this making out of a case sufficiently?

There
has been much argument about the standard of proof required in the making out
of a case sufficiently to require the accused to make a defence at the close of
evidence in a criminal trial. In Amaning, Tagor &amp; Another v. The Republic
2009 23 MLRG 78, the Court of Appeal per Appau JA defined that there was no
lesser standard of burden on the prosecution at the close of its case than that
required under Section 11(2) and Section 13 (1) of the Evidence Act 1975 NRCD
323, which is proof beyond reasonable doubt.

Section 11(2) reads: