Republic Vrs David Narh @ Nii Nai [2022] GHADC 277 (3 October 2022)

IN THE TDC DISTRICT COURT HELD AT TEMA ON MONDAY, THE 3RD DAY OF OCTOBER, 2022 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE, SITTING AS AN ADDITIONAL MAGISTRATE B7/24/2022 CASE NO.: THE REPUBLIC VRS DAVID NARH ALIAS NII NAI ACCUSED PERSON PRESENT COMPLAINANT PRESENT INSPECTOR EMMANUEL ASANTE FOR THE REPUBLIC PRESENT NO LEGAL REPRESENTATION FOR THE ACCUSED PERSON JUDGMENT The accused person herein was arraigned before this court on the following charges: 1. Attempt to commit crime namely stealing contrary to sections 18 (1) and 124 (1) of the Criminal and Other Offences Act 1960, Act 29. 2. Unlawful Entry contrary to section 152 of the Criminal and Other Offences Act, 1960 (Act 29) Page 1 of 10 The charges were read out and explained to the accused person in Ga and he pleaded not guilty to both counts. The facts of the case as presented by the prosecution are that complainant Augustina Sarpey is a trader and a resident of 5 Beach, Tema Fishing Harbour. Accused David Narh alias Nii Nai aged 22 is a fisherman and a resident of James Town, a suburb of Accra but usually comes to Tema Fishing Harbour for fishing. On 31st May 2022 at about 1:00am the complainant returned home after selling at the canoe beach at Tema Fishing Harbour and met the accused using his mobile phone torch light in her room searching inside her belongings. She shouted for help but accused managed to escape through a small space at the roofing of her wooden structure. Accused was given a hot chase and was arrested by neighbours of the complainant on the compound of her house holding a screw driver. He was however handed over to the police together with the screw driver. During investigation, accused admitted to the offence and told police that he was hungry and needed some money to buy food, hence his action. That he intended to use the screw driver to force open the door of the complainant but he realized that the door was not locked. After investigation, accused was charged with the offence and arraigned before this honourable court. At the trial, the Prosecution called two (2) witnesses in support of its case. Evidence of PW1 PW1, Augustina Sarpey told the court that she is a trader who sells drinks at the canoe basin at Tema Fishing Harbour and lives at Beach 5, Tema Newtown. That Page 2 of 10 she knows the accused person in this case. She continued that on 31st May 2022 at about 1:45 am she was selling drinks at the canoe basin and decided to go home. That when she entered her room she noticed that the accused person was holding a mobile phone light and searching inside her things in the room so she shouted for help but the accused person used the ceiling and ascended. That people came out and he was arrested few miles away from where her building is. That she retrieved a screw driver from him which she suspects he used to enter the room. That the people around then handed him together with the screw driver to the Fishing Harbour Police Station. That she lodged her complaint to the police and submitted her statement. Evidence of PW2 PW2 (Investigator) No. 59205 G/Const. Benjamin Narh Dogah stationed at Tema Fishing Harbour Police Station stated that on 31st May 2022, at 2:20am this case was reported by the complainant herein against the accused person and it was referred to him for investigations. That the accused person was arrested and brought to the police station by PW1 assisted by one Norbert Narbari together with a screw driver and the picture of the screw driver was tendered as exhibit ‘A’. That he obtained investigation caution statement and charge statement from the accused and he tendered them as exhibits ‘B’ and ‘C’ respectively. He continued that the accused person demonstrated to them how he used a space at the top roofing of the complainant’s wooden fence and gained access to the room of the complainant, when he went to the scene with PW1 and the accused person for investigations. PW2 repeated the facts as presented by the prosecution. Thereafter, the prosecution closed its case. Page 3 of 10 The Court examined the evidence of the prosecution witnesses to determine whether a prima facie case had been made by the prosecution to warrant the accused person to open his defence. The Court then ruled that a prima facie case had been made and the evidential burden had shifted to the accused person to raise a reasonable doubt in the case of the prosecution. In the case of The Republic v District Magistrate Grade II, Osu, Ex parte Yahaya [1984-86] 2 GLR 361 – 365 Brobbey J (as he then was) stated that: “…evidence for the prosecution merely displaces the presumption of innocence but the guilt of the accused is not put beyond reasonable doubt until the accused himself has given evidence.” In view of the above, the Court found that the accused person had a case to answer and was therefore called upon to enter into his defence. OPENING OF DEFENCE In his defence the accused person testified in court that he lives at James Town, Accra and is a fisherman. He continued that on 31st May 2022 he and the owner of the canoe by name Bra Neequaye who he works for, returned from fishing expedition at around 12 am and going home. That on their way home Bra Neequaye asked him to wait for him to enable him attend nature’s call. That whilst waiting on a road in front of a kiosk the complainant appeared and enquired from him why he was standing there. That he told the complainant that he was waiting for someone but she said it was not true and that since he was holding a screw driver, he was there to steal from her because she has always been a victim of stealing. That he denied the accusation and told her that when they go to sea they use the screw driver to maintain or service generator or the Page 4 of 10 outboard motor. That after his explanation the complainant started shouting ‘thief’ ‘thief’ which a mob came to assist and sent him to the police station. According to the accused person when his statement taken in Ga language at the police station was read and interpreted to him he denied the contents of the said statement as having been said by him and told the interpreter he will tell his true story to the court. He concluded that he never entered the room of the complainant to steal and he is innocent of the charges levelled against him. The accused person did not call witness, and closed his defence thereafter. The legal issue to be determined by this court is whether or not the accused person committed the offences he is charged with. After the trial, the court had to examine the cogency of the evidence to determine whether or not the evidence adduced by the prosecution could ground a conviction against the accused person on the above offences. The fundamental rule in all criminal proceedings is that the burden of establishing the guilt of the accused person is on the prosecution and the standard of proof required by the prosecution should be proof beyond reasonable doubt as provided in the Evidence Act, 1975 (NRCD 323), per sections 11(2) and 13(1). In the case of Republic v. Adu-Boahen & Another [1993-94] 2 GLR 324-342, per Kpegah JSC, the Supreme Court held that: ‚A plea of not guilty is a general denial of the charge by an accused which makes it imperative that the prosecution proves its case against an accused person... Page 5 of 10 When a plea of not guilty is voluntarily entered by an accused or is entered for him by the trial court, the prosecution assumes the burden to prove, by admissible and credible evidence, every ingredient of the offence beyond reasonable doubt‛. Before examining the evidence given at the trial it is important to set out the provisions of Act 29 under which the accused person has been charged. Section 18(1) of Act 29 on attempt to commit criminal offence provides that: “A person who attempts to commit a criminal offence shall not be acquitted on the ground that the criminal offence could not be committed according to the intent (a) by reason of the imperfection or other condition of the means, or (b) by reason of the circumstances under which they are used, or (c) by reason of the circumstances affecting the person against whom, or the thing in respect of which the criminal offence is intended to be committed, or (d) by reason of the absence of that person or thing.” Subsection 2 provides as follows: “A person who attempts to commit a criminal offence commits a criminal offence, and except as otherwise provided in this Act, is liable to be convicted and punished as if the criminal offence has been completed”. The accused person has been charged with attempt to commit crime namely Stealing, under stealing 124 (1) of Act 29 and section 125 of Act 29 defines Stealing as follows: Page 6 of 10 ‚A person steals if he dishonestly appropriates a thing of which he is not the owner‛. In the case of Brobbey & Others v The Republic [1982-83] GLR 608-616, Twumasi J. stated as follows: ‚Three essential elements of the offence of stealing become obvious and they are: 1. That the person charged must have appropriated the thing allegedly stolen. 2. That the appropriation must have been dishonest. 3. That the person charged must not be the owner of the thing allegedly stolen.‛ Section 152 of Act 29 on unlawful entry provides that: “A person who unlawfully enters a building with the intention of committing a criminal offence in the building commits a second degree felony.” The elements of the offence of unlawful entry are contained in section 153 of Act 29 and it reads as follows: ‚A person unlawfully enters a building if he enters otherwise than in his own right or by the consent of some other person able to give such consent for the purposes for which he enters." From the above, it is incumbent on the prosecution to show that the accused person unlawfully entered the room of the complainant and further made the attempt to steal the complainant’s belongings. Page 7 of 10 At the end of the trial, I made the following findings of fact and observations: On count two, PW1 told the court in her evidence that she saw the accused person in her room holding a mobile phone light and searching inside her things in the room. According to PW1 this was about 1:45am on 31st May 2022 when she decided to go home after selling drinks at the canoe basin. The accused person denied this assertion by PW1 but PW1 maintained under cross examination that she saw the accused person in her room when she opened the padlock to her door and entered her room. At this stage, it is the word of PW1 against the accused person since from the evidence by the prosecution witnesses, PW1 is the only one that saw the accused person in her room. The court will therefore assess the credibility of the evidence of both the accused person and PW1 to determine whether the prosecution has been able to prove the guilt of the accused person beyond reasonable doubt after having examined the explanation of the accused person in his defence. The accused person did not deny that he was found on the premises of the complainant at that ungodly hour. What he denied is that he did not enter her room and was just standing in front of her kiosk. He did not also deny that he had a screw driver on him at the time he was arrested around 2:00 am. The reasonable question, from the conduct of the accused person at that odd hour in the night is that, what was he doing in front of the kiosk of the complainant with a screw driver, assuming he was just standing in front of the complainant’s shop? He told the court that he went to sea with his employer, Bra Neequaye and on their way back home at that odd hour, the said Bra Neequaye asked him to wait for him there whilst he attended to nature’s call. Page 8 of 10 Under cross examination the accused person told the court that he can call the said Bra Neequaye to come and testify but when the court gave him the opportunity to do so, he told the court he would not call any witness because the said Bra Neequaye is not available and had travelled to Togo. From the conduct of the accused person before the court, it can be safely concluded that he was simply being untruthful to the court and therefore I find him and his evidence before the court, not worthy of believe. The explanation of the accused person as to why he was perambulating around the said area in front of the complainant’s kiosk at that ungodly hour holding a screw driver is not tangible enough and also not reasonably probable. In the case of Commissioner of Police v. Isaac Antwi [1961] GLR 408-412, it was held that the accused person is not required to prove anything. All that is required of him is to raise a reasonable doubt as to his guilt. This is further emphasized by sections 11(3) and 13(2) of the Evidence Act, 1975. The defence of the accused person could not raise any reasonable doubt as to his guilt. He told the court in one breadth when he was cross examining PW1 that he was not going to steal but he was just taking a stroll that is why he got himself there and in another breadth in his defence, he told the court that his employer asked him to wait for him to enable him attend nature’s call. It is evident that the accused person was not being truthful to the court; consequently the accused person and his defence are not credible and therefore unreliable. Crabbe J. SC (as he then was) in the case of The State v. Sowah and Essel [1961] GLR 743-747, S. C. held that Page 9 of 10 “A judge must be satisfied of the guilt of the crimes alleged against an accused person only on consideration of the whole evidence adduced in the case; and only then can he convict”. I therefore find the accused person herein guilty of the offences of attempt to steal and unlawful entry and he is convicted accordingly. Q: A: Q: A: Any plea in mitigation before sentence is passed? I am pleading with the court to consider the sentence. I have only my brother and I don’t have anyone to support me. Is the accused person known? No, he is a first time offender. By Court: In sentencing the accused person, the court has considered the fact that the accused person is a first time offender. The Court hereby imposes the following sentence on the accused person: The accused person is sentenced to a prison term of six (6) months IHL on count one. On count two, the accused person is sentenced to a prison term of 18 months IHL. In addition the accused person shall pay a fine of Fifty (50) Penalty Units or in default serve a prison term of three (3) months IHL. Both sentences are to run concurrently. …………………………………….. H/H AKOSUA A. ADJEPONG (MRS) CIRCUIT COURT JUDGE 3RD OCTOBER 2022 Page 10 of 10