The Republic Vrs Asante [2022] GHADC 110 (21 December 2022)

IN THE DISTRICT COURT HELD AT SEFWI JUABOSO ON WEDNESDAY THE 21ST DAY OF DECEMBER, 2022 BEFORE HIS WORSHIP SAMUEL ENTEE JNR. CC No. 60/23 THE REPUBLIC VRS. VINCENT ASANTE Accused Person: Present Detective Chief Inspector Solomon Boatri for Rep: Present. JUDGEMENT The accused is charged with two counts of being on premises for unlawful purposes contrary to Section 155(1) and attempt to commit stealing contrary to Sections 18(2) and 124(1) of the criminal Offences Act,1960 (Act 29). The particulars of the offences are that the accused on 22nd September,2022 at Dadieso entered the yard of Afarinick Kumad Plantation Company for an unlawful purpose and attempted to steal some quantities of petrol from a tricycle. The facts of the case are that the complaint, Joseph Abio is a security officer at Afarinick Kumad Plantation Company Limited, Dadieso and the accused a former worker of the company but now a lotto agent resides at Blackman, Dadieso. That for some time now, there have been rampant theft of petrol within the premises of the company. Then on 22nd September,2022 at about 12:30 am, a witness in the case who is also a security officer on duty at his duty post close to where the company’s tricycles “Aboboyaa” were parked spotted accused holding a green gallon heading towards 1 | P a g e the tricycles’ parking lot. Accused then tried siphoning petrol from one of the tricycles and the witness quietly went and arrested him, and with the help of other security officers, Accused was sent to the Dadieso police station. A formal complaint was lodge and he was detained for investigation, and during investigation, he admitted the offences and he was charged and put before the court for prosecution. The prosecution called the complaint, Joseph Abio @ Abugre (Pw1), Isaac Frimpong (Pw2), and the investigator in the case District Inspector Rover Opoku Asare (Pw3) as witnesses to support their case. Pw1 told the court that he was a security man at Afarinick Kumad Plantation Company Limited, Dadieso. That on 22nd September, 2022 at about 12:00am to 1:00am, accused entered the company premises with a gallon in his hand and went to where the company had parked tricycles and attempted to siphon petrol from one of the tricycles. So he (Pw1) quickly put his torch light on and held accused and took him to the security office, but accused outwitted him and ran away. However, the following day accused passed by the company on a motor cycle and because he was a former worker of the company, some of the security men knew him so they chased after him and arrested him and took him to the police station. In his defence, accused said he was a lotto collector. That on the day of the incident, he went to Akontombra and Bawakrom to collect lotto coupons and on his way back to Dadieso where he worked and lived, he ran short of petrol after passing through Karlo, so he parked his motorcycle near the Afarinick Company where he used to work and entered the company to ask some security men who were his friends for some petrol. That whiles on the company premises, a security man (Pw1) called him and the moment he got near the security man, he held his (accused’s) shirt by the chest and asked him what he was doing there at that time of the night, and he (accused) replied that he had ran out of petrol and was there to ask them for some petrol. But Pw1 did 2 | P a g e not believe him and beat him up though another security man said he knew him. So in the course of the beating, he extricated himself from Pw1’s grip and ran home. He concluded that he did not enter the company premises to steal but to beg them for fuel as he had a lot of friends in the company. The issues for determination are: 1. Whether or not accused is guilty of the offence of attempt to commit stealing. 2. Whether or not accused is guilty of the offence of being on premises for unlawful purposes. On the first issue, Sections 18(2) and 124(1) of Act 29 under which accused is charged with attempt to commit stealing provide respectively “A person who attempts to commit a criminal offence is liable to be convicted and punished as if the criminal offence has been completed” and “A person who steals commits a second degree felony. Now during cross-examination of Pw1 by accused, the following ensued: Question: Did you ask me about what I was looking for when you saw me on the company premises? Answer: I asked you after I held you as to what you were there for and you told me that you wanted to siphon petrol. Question: I did not tell you that I was there to siphon petrol and you never asked me any question. The moment you held me you pulled me to where the security office was. I put it to you. Answer: You said you were there to siphon petrol and I dragged you to where the articulator truck drivers were relaxing. 3 | P a g e Question: When you took me to the articulator drivers, did they not tell you to exercise patience as they knew me as a former worker of the company. Answer: No, they did not tell me anything. Question: When you asked me not to ran I stood there and when you grabbed me, you asked me whether I was there to steal petrol and I told you that I was not there to steal but rather to ask for some petrol since I had run shot of petrol. Answer: It is not true. From the cross-examination, the accused initially denied that when Pw1 grabbed him Pw1 asked him any question. But accused later conceded that when Pw1 grabbed him, he asked him what he came there to do. This was a clear contradiction by accused. Pw1 said accused told him that he was there to siphon petrol when he asked accused why he was there. It is the view of the court that since accused denied that Pw1 asked him a question which he answered that he was there to siphon petrol, but later conceded that Pw1 asked him a question which he answered that he was there to ask for petrol but not to steal it, Accused was not truthful to the court, and that his answer that he was on the company’s premises to ask for fuel was an afterthought. The contradiction by accused makes his evidence that he went to the company premises to ask for fuel not credible in the view of the court. This view of the court is fortified by the caution statement of accused to the police which Pw3 tendered in evidence as exhibit A and the accused relied on his charge caution statement Exhibit B. Accused stated in Exhibit A that, “I am a lotto agent at Suaman Dadieso. On 2nd September,2022 at about 11:00am, I went to Akontombra and Bawakrom to collect lotto papers and on my return to Dadieso I ran out of fuel at Sefwi Karlo, so I picked a gallon on the way and entered Afarinick Kumad Plantation Company Limited with the aim of withdrawing fuel for my motorcycle and in the process, I was caught by workers of the company. I was beaten seriously but I managed and escaped. 4 | P a g e Although, accused said in court that the statement that he went to withdraw or siphon fuel was not what he said but rather he went to the company to ask or beg for some petrol, the court thinks that it was an afterthought by the accused. This is because accused gave Exhibit A to the police on 23rd September,2022 and relied on it in Exhibit B on 28th September,2022. If indeed he did not enter the company premises to siphon petrol he could have said that in that Exhibit B. But when the incident was fresh in his memory he gave exhibit A and relied on it about 5 days later in exhibit B. But now that we are in December 2022, accused gave his evidence-in-chief on 15th December,2022, about 3months after the incident, that accused had suddenly remembered that he went on the company premises to beg for petrol and not to steal. So it is clear to the court that it was an afterthought. In the view of the court, accused did not go there to beg for petrol. Again, when Pw3 tendered a green gallon in evidence as Exhibit C, as the gallon accused carried to the company premises to siphon fuel, Accused denied it and said he rather went there with a small voltic bottle. To a question by the prosecution, that when Pw1 and Pw2 said they arrested him with a big gallon, he did not deny it until Pw3 tendered the gallon before he denied that he went on the company premise with the big gallon, the accused replied that he disputed it when Pw1 and Pw2 said he went there with a big gallon. But the evidence before the court indicated that accused did not deny that he was caught with a gallon when Pw1 said so, and was confirmed by Pw2. At any rate in Exhibit A, accused stated that he picked a gallon on the way and entered the company with the aim of withdrawing fuel. So accused is denial that he did not enter the company premises with a big green gallon but a small pastic voltic bottle could not be correct and just an afterthought. In addition, Pw1 said when accused tried to siphon petrol from one of the tricycles he quickly put his torch light on accused and warned him not to run away. Accused 5 | P a g e admitted in cross-examination of Pw1, that Pw1 warned him not to run away. But to a question by the prosecution that Pw1 saw him squatting and ready to siphon the petrol and raised alarm, the accused denied it. The court is of the view that accused’s denial was not credible as he was not consistent in his evidence. Because accused himself stated in exhibit A that he picked a gallon and entered the company premises to withdraw fuel, and in the process he was caught. The court therefore accepts the corroborated evidence of the prosecution that accused tried to siphon petrol from one of the tricycles of the company. Accordingly, since accused did not enter the company premises to beg for petrol, but went there with a big green gallon and tried to siphon petrol from one of the tricycles belonging to the company, I find that accused is guilty of attempt to commit stealing. On the second issue, Section 155(1) of Act 29 under which accused is charged with being on premises for unlawful purposes provides that “A person who is found in or about a market, wharf, jetty, or landing place, or in or about a vessel, verandah, outhouse, building premises, passage, gateway, yard, garden, or an enclosed piece of land, for an unlawful purpose commits a misdemeanor.” In the case of AMOAH V. THE STATE [1966] GLR73, CA, the court held that the essence of the charge was that the presence on the land must be for an unlawful purpose. Therefore, where there was evidence that the presence of the accused was for a lawful purpose, the offence was not made out. In the instant case, the evidence before the court overwhelmingly showed that accused’s presence on the company premises on 22nd September, 2022 was for an unlawful purpose. Because the court has found that, he entered the company premises with a big green gallon and attempted to steal petrol from the company tricycle. I therefore find that the accused is guilty of being on premises for unlawful purpose. 6 | P a g e The court is therefore satisfied that the prosecution has been able to prove their case against the accused beyond reasonable doubt. Accordingly, the accused is hereby convicted on the 2 counts of being on premises for unlawful purposes and attempt to commit stealing. Consequently, the accused person is hereby sentenced to pay a fine of 100-penalty unit on each count or in default 6 months IHL. The sentences are to run concurrently. It is hereby ordered that the big green gallon is confiscated to the State to be kept in the custody of the police. SGD::: SAMUEL ENTEE JNR ESQ THE MAGISTRATE 7 | P a g e