The Republic Vrs Yakubu [2022] GHADC 95 (31 October 2022)

SITTING IN THE DISTRICT COURT AT WENCHI IN THE BONO REGION ON MONDAY THE 31ST DAY OF OCTOBER, 2022. BEFORE HIS WORSHIP ISSAH ABDUL-WAHAB ESQ (MAGISTRATE) CC NO: B1/24/22 THE REPUBLIC VS JIBIRIDU YAKUBU JUDGMENT The accused person herein was arraigned before this court charged with the offence of Attempt to Commit Offence to wit: Stealing Contrary to Sections 18 and 124 (1) of the Criminal Offences Act, 1960 (Act 29). The accused pleaded Not Guilty to the charge after same was read and explained to him in court. The court after having considered the plea of the accused, then set the following issues down for trial; 1. Whether or not the accused person herein took any steps towards the appropriation of the said motor bike; 2. Whether or not the said steps taken by the accused constituted an attempt at appropriating the said motor bike; 3. Whether or not the actions of the accused were unlawful. The facts of the case as presented by the prosecution are that the complainant is one Charles Gyamaanie a 30years old man and a farmer and resident at Kwadum near Abotareye. That the accused herein is also a farmer and lives at Abotareye near Wenchi. That on the 29th day of October, 2021 in the evening, the complainant attended a funeral at Kwadum and parked his Apsonic Motor Bike with registration M-21-Bw1307, valued Gh₵4,600.00 in a house and went to the funeral grounds. That at about 1:30am on 30th day of October, 2021, the landlord of the house where the complainant parked the motor bike was lying on his bed with the door opened, when he saw the accused come into the house after peeping to see if the landlord was asleep. That the landlord became suspicious and decided to watch what the accused wanted to do. That the accused, unaware that he was been monitored went to the complainant’s motor bike, disconnected the ignition wires and pulled out the cover of the main lock. The witness then approached the accused and asked what he was doing as he was not the one who parked the motor bike. That the accused could not give any tangible answer to the witness and so he was arrested. The complainant was informed of the incident and he came to the scene and assisted in taking the accused to the police station where a complaint was lodged. After police investigations the accused was charged with the offence and put before this court. The prosecution overall evidence adduced in proof of the charge consisted of the testimonies of their five (5) witnesses including the police investigator of the case. The first prosecution witness told the court he is Honourable David Tuozu and that he is a teacher and lives at Kwadum near Abotareye. That he knows the accused person and the complainant (PW2). That on the 29th day of October, 2021, the complainant (PW2) and one other person called Samuel Nankpi (PW3) parked their motor bikes in his (PW1) house and left for funeral that was in the same town. PW1 said whiles he laid in his room, the accused entered the house. The witness (PW1) said he watched the accused closely. That the accused went to the complainant’s motor bike and disconnected some of the wires and was tampering with other parts. PW1 said he went to the accused and asked why he wanted to take the motor bike. That the accused said a certain woman bought drinks from him and did not pay. PW1 said he then asked the accused to wait for him to call the owners of the motor bikes but accused tried to leave. There he saw the accused was trying to steal the motor, PW1 said he called PW2 and they arrested the accused. The second prosecution witness (PW2) also told the court he is Charles Gyamanie and that he lives at Tain Ano near Abotareye and is a farmer. That on the 29th of October, 2021 he attended a funeeral at Akwadum for the wake keeping on his motor bike with Registration Number M-21-Bw1307. That he parked the said motor bike in the house of PW1 and went to the funeral grounds. Then in the early hours of 30th October, 2021, PW1 called to inform him (PW2) that the accused was arrested for attempting to steal his (PW2) motor bike. PW2 said he rushed to the scene and upon inspection he found that the lock cover removed and the wires connecting the ignition were disconnected. That two (2) motor bike keys were found with the accused. PW2 said they then took the accused to the house of the Unit Committee Chairman of the town. There they were advised to take the accused to the accused to the police station. PW3 was one Samuel Nankpi who said he is a farmer and lives at the same place with PW2. That on the 29th of October, 2021, he went with PW2 to Kwadum for a funeral on the motor bike of PW2. There they parked the motor bike in the house of PW1. Later PW1 called them to come as someone was trying to steal PW2’s motor bike. That they rushed to the scene and found that the accused disconnected some wires of the motor bike and tried to break the neck too of the bike. That the accused has two (2) motor bike keys with him. The accused was then arrested and handed over to the police. The prosecution’s fourth witness (p.w.4) was Kunda Godfred who told the court he is a farmer and lives at Kwadum near Abotareye. That he knows the accused and other prosecution witnesses. That on the 30th day of October, 2021 whiles he was asleep he was woken up and told the accused tried to steal a motor bike. He together with the other witnesses then took the accused to the Unit Committee Chairman. P.w.4 said he saw that the ignition wires of the motor bike were disconnected by the accused. That the accused had two (2) motor bike keys with him but he (accused) did not bring any motor bike to their cottage. The fifth and final witness of the prosecution (p.w.5) was the police investigator of the case. He told the court he is No.52625 G/L/CPL David Naah stationed at Wenchi Police District CID. That on the 30th day of October, 2021 whiles he was on duty at the station CID, that whiles there a case of attempted stealing was reported against the accused person herein and same referred to him for investigations. That he took statements from the complainant and witnesses. That a caution statement was taken from the accused and same exhibited and marked as “A”. That two (2) motor bike keys were retrieved from the accused and same tendered and marked as “B”. That he then visited the scene of the crime as part of his investigations. They took photographs of the motor bike of the complainant and same exhibited as ‘C’ and ‘C1’. After investigations he was instructed to charge the accused and he did so. The charge statement exhibited as ‘D’. After the prosecution closed their case, the court took the view that a case had been made out against the accused and he was called upon to open his defence. In his evidence-in-chief, the accused told the court he is Jibiridu Yakubu, and that he lives at Abotareye and is a farmer. That it is not true that he attempted to steal the complainant’s motor bike. That he saw someone off and was going back home when one man came out and called him. That the man said he (accused) wanted to steal the motor bike. Accused said he did not agree. He then told them he came with his brother call Alhassan. When they called Alhassan he said he knows him (accused). That the people later removed keys from his pocket. That the keys included the key to his father’s motor bike. Accused said he was later charged with the offence. Accused sole witness (D. W.1) was one Yussif Kolombo who said that he is a farmer and lives at Abotareye. That there was a funeral at the village where the accused was arrested. D.w.1 said he took his wares there to sell. That the accused accompanied him to the place. That whiles there he heard a crowd making noise and shouting. D.w.1 said he rushed to the scene and there the accused saw him (D.w.1) and mentioned his name. That the crowd told him the accused tried to steal a motor bike. D.w.1 said he asked the accused why he did not stay at where he (D. W.1) was. That accused told him (D. W.1) he saw a lady and followed the lady. That it was there people saw him (accused) and said he was going to steal the motor bike. Having carefully examined the overall evidence. it is important to observe that the prosecution told the court the complainant (PW2) on the 29th day of October, 2021 whiles at a funeral ground at Kwadum near Abotareye, he parked his motor bike with no. M-21-Bw1307 in the house of PW1. This was corroborated by the other prosecution witnesses i.e. PW1, PW2, PW3 and PW4 who all testified before this court. PW1 confirmed to court that the complainant and PW3 actually come to their said village for a wake keeping as part of the funeral that they attended that it was during this visit that the complainant (PW2) and the friend (PW3) left the said motor bike in his house. Again, the prosecution stated that whiles the complainant and the friend (PW3) were away for the wake-keeping, PW1 was at home in his room when he (PW1) saw the accused enter the house and went straight to the motor bike that the complainant (PW1) had parked. The witness said whiles he was too sure of the mission and motive of the accused, he (PW1) decided to secretly watch what the accused was up to. Clearly, whereas the accused never controverted the fact as stated that he (accused) entered the house of PW1 where the motor bike was parked, accused also failed to dislodge the said fact that he went to the motor bike of the complainant which said motor bike was parked in the house of PW1. It is again important to observe that PW1 said when he saw the accused trying to steal the said motor bike by tempering with the ignition wires he then went and confronted the accused and it was there he saw that the accused had indeed disconnected the ignition wires and opened the plastic cover in an attempt to start the engine so he could take the bike away. This was again corroborated by the other prosecution witnesses including the complainant (PW2) herein who all said after PW1 called them to come they got back to the house of PW1 and where they met PW1 and the accused with the explanation by PW1 that the accused having entered the house tried to steal the motor bike by disconnecting the ignition wires. PW2 said upon inspection he saw that the accused disconnected all the wires at the ignition in an attempt to steal the bike. This prosecution again tendered exhibits ‘C’ and ‘C1’ which are photographs of the motor bike showing the motor bike and the ignition wires that had been disconnected by the accused person. Also the prosecution told the court upon a search in the pocket of the accused, two (2) motor bike keys were found on him (accused). The accused never denied that these keys were on him and he also did not provide any reasonable explanation for the said keys. This clearly then left this court with the obvious conclusion that these keys were intended to be used in the stealing of the bike and that when the keys failed to start the bike of the complainant, the accused then resorted to the disconnection of the wires. This means the actions of the accused on that faithful day in the house of PW1 was premeditated. Here it must be stated that even though the accused claimed the keys were those of his father’s motor tricycle he uses, he did not provide any evidence to prove that. The prosecution witnesses, i.e. PW1, PW2, PW3 and PW.4 came in and saw the accused with the complainant’s (PW2) motor bike in the house of PW1. It was from there that they took the accused to PW4 (the Unit Committee Chairman) before accused was finally handed over to the police. These very strong and incontrovertible evidence whiles proving the charge against the accused, were however not refuted in any way by the accused herein. Finally, it is important to also observe that, the sole witness of the accused (DW1) who the accused said he went with to the said village (Kwadum) in his testimony stated he was not aware of the presence of PW1 who PW2 parked his motor bike. In fact DW1 told the court he went to the village to sell his wares and therefore took the accused along. The witness said he however did not know why and when he left his place and went to the house of PW1. From the evidence therefore, I found the following as facts; 1. It is true that on the said 29th day of October, 2021, complainant went for a funeral and therefore left his said motor bike in the house of PW1. 2. That whiles the motor bike was parked in the house of PW1, the accused went and attempted taking the said motor bike by disconnecting the ignition wires. 3. That whiles accused was removing the wires PW1 spotted him and arrested him (accused). 4. That PW1 then called the complainant and the accused was taken to the police after the matter was reported to the Unit Committee Chairman (PW4). The offence of attempt for which the accused person herein stands trial is created by section 18 of the Criminal Offences Act 1960 (Act 29). Section 18 (2) state “Every person who attempts to commit a crime shall be deemed guilty of an attempt, and shall except as in this code otherwise expressly provided, be punishable in the same manner as if the crime had been completed”. The provisions of section 18 (2) above therefore makes the offence of attempt an incoate offence. The prosecution having therefore charged the accused carried the burden of proving the charge against him (accused). That is to say, the burden of proof in the sense of the burden of establishing the guilt of the accused is on the prosecution and failure on the part of the prosecution to discharge that must lead to the acquittal of the accused. See Donkor Vs The State 1964] 2GLR, 598 SC. On the standard burden of proof as imposed on the prosecution the evidence act, 1975 (NRCD 323) section 11 (2) states as follows; “In a criminal action, the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond reasonable doubt”. These provisions of section 11 (2) have been reinforced in the case of Yeboah Vs The Republic 1972]2GLR, 289 when it was held that the guilt of the accused in the criminal trial must be proved with the degree of certainty that is required by law. In proving the said offence of attempt therefore, and as per the provisions of section 18 (1), the prosecution must show that the accused took very practical steps towards the commission of the crime as he intended regardless of the fact that the commission of the said crime could not be perfected. Here, relating the evidence as adduced to the law stated above, it has been shown that the accused herein having entered the house of PW1 where the complainant herein (PW2) parked his said motor bike, went straight to the motor bike and attempted to steal same. The accused having failed to start or move the said motor bike with the two (20 keys that he carried on himself, he (accused) then disconnected the ignition wires of the said motor bike and also removed the plastic cover to the ignition compartment with the view to start or move the motor bike. This action of the accused was a clear attempt he made to steal the bike. His action could however not be perfected because PW1 who was in his room that material moment saw the accused and therefore decided to confront him (accused). So from the evidence and the law, it is my considered conclusion that the prosecution has proved the charge against the accused. The accused Jibiridu Yakubu is therefore found guilty as charged and convicted accordingly. The reasons for the above conclusion include; 1. Accused went to the house of PW1 at Kwadum where PW2 parked his motor and went for a funeral. 2. That accused tried or attempted to steal the said motor bike when he (accused) disconnected the ignition wires. 3. That whiles the accused was in the act, PW1 saw him (accused) and caused his arrest. 4. That the accused failed to provide any evidence to contradict that of the prosecution. 5. That the prosecution proved the charge beyond reasonable doubt and as required by law. Mitigation- On mitigation, accused pleaded for leniency. Accused is sentenced to twenty-four (24) months imprisonment. The motor bike should be given back to the complainant. …………SGD………. ISSAH ABDUL-WAHAB (MAGISTRATE) 10