The Republic Vrs Isaac & Another [2022] GHADC 77 (31 October 2022)

IN THE DISTRICT COURT HELD AT WAMFIE ON MONDAY THE 31ST DAY OF OCTOBER, 2022. BEFORE HER WORSHIP DZIFA AZUMAH ESQ. DISTRICT MAGISTRATE CC NO. /05/2022 THE REPUBLIC VRS 1. YABOAH YAW ISAAC 2. OPPONG KWAME ELVIS JUDGMENT The Accused persons were charged on two counts of offences. The statement of offence for count one was conspiracy contrary to section 23 of the criminal offences Act of Ghana, Act 29/60. The second count was stealing contrary to section 124(1) of the criminal offences Act of Ghana, Act 29/60. Both Accused persons pleaded guilty with explanation for both counts of offences. When the explanation was heard, it presupposed they were both pleading not guilty to the charges proffered on them. If the plea is not guilty, then it implies there was an issue for the court to determine the guilty or otherwise of the accused persons. The case of the prosecution was that the complainant Nana Kofi Owusu is a businessman. First Accused Yeboah Yaw Isaac is a tricycle rider, whilst the second accused Oppong Kwame Elvis is a contractor. All the parties in this case are residents of Wamanafo. The complainant alleged had 1,500 six inches pieces of building blocks parked at his site at Wamanafo. During the month of December, 2020, complainant detected that thieves or thief stole his 1,450 pieces of blocks values GH¢6,000.00, complainant started his own enquires and a witness in this case told him that he saw A1 loading complainants blocks into a tricycle. The witness confronted A1 over the blocks and A1 told the witness that it was A2 who contracted him to transport the said blocks for him. On 14th April 2021, complainant reported the incident to the police. Accused persons were later arrested. During investigation, A1 confirmed to police that it was A2 who sent him to transport the said blocks to his construction site for him, and that he had transported 100 pieces of blocks from the complainant’s site to A2’s place. A2 also admitted having planned with A1 to transport 100 pieces of blocks for him. However the stolen blocks were not retrieved, so after investigations, the accused persons were charged with the offence and brought before the court. The duty of the Court on a plea of not guilty has been laid down by spans of criminal jurisprudence. It is not to assume the guilty of the accused, but to take the evidence and consider whether the prosecution has successfully proved all the elements of the charge it has preferred against the accused persons. The general burden of proof, in a criminal case lies on the prosecution to establish the guilty of the accused. This principle has been arrayed in our statue, in section 11(2), 13(1) and (2) of the Evidence Act, 1975, NRCD 323. Section 11(2) NRCD 323 provides that, “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 a reasonable doubt.” Section 13(1) NRCD 323 states that, “in a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt”. In the case of THE STATE V ALI KASSENA (1962) 1 GLR 144, in discussing the evidentiary burden on the prosecution in criminal cases, the court said that, “it is of course true that by our law a higher standard of proof is required in criminal cases than in civil cases. But this is subject to the qualification that there is no absolute standard in either case. In criminal cases, the charge must be proved beyond a reasonable doubt, but there may be degrees of proof within that standard” we will now look at the ingredient, of the offence charged. INGREDIENTS OF THE OFFENCE OF CONSPIRACY AND STEALING Section 23 of Act 29 defines conspiracy as: (1) Where two or more persons agree or act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence. Section 125 Act 29 defines stealing in these terms: “ A person steals who dishonestly appropriates a thing which that person is not the owner.” By this definition, the constituent elements required to be proved by the prosecution in the offence of stealing are: (i) (ii) The appropriation must be dishonest. The person charged must have appropriated the thing allegedly stolen; (iii) The person charged must not be the owner of the thing allegedly stolen. In the case of Ampah V The Republic (1977) 2 GLR 171, CA, it was held that: “(2) ……to establish the offence of stealing as defined by section 125 of Act 29, the prosecution was required to prove the following three elements – (i) Dishonesty (ii) Appropriation, and (iii) Property belonging to another person ….” At page 175, the court proceeded to state as follows: “this court agrees with the observation of Abban J in Ampah V The Republic (1976) 1 GLR 403 at 412 that “if these three essential elements are proved to the satisfaction of the court, the court will be bound to convict unless the accused is able to put forward some defense or explanation which ‘can cast a reasonable doubt’ on the case for the prosecution.” ANALYSIS OF LAW AND EVIDENCE The prosecution set out to prove these charges and offered the following pieces of evidence through three (3) witnesses. The first prosecution witness (PW1) is the complainant. His sworn account was that he is a businessman who lives at Wamanafo and he has 1,500 blocks consisting of 5 and 6 inches blocks. That during the month of December, 2020, he detected that a thief or thieves have stolen 1,450 pieces of blocks valued at GH¢6,000.00 from where he had packed it. He said he started his own enquiries and PW2 told him that he saw 1st accused person convey his block with tricycle. That PW2 further told him that when he quizzed 1st accused person as who sent him to carry the blocks, the 1st accused told him that 2nd accused person sent him to carry the blocks for him. He said, with this information, he confronted 2nd accused person over his stolen blocks and he admitted to him (PW1) that he sought permission from Pastor Kwadwo Ansu before he instructed 1st Accused to convey the blocks. He stated that with this information, he reported the matter or the incident to the police on 14/04/2021. The second prosecution witness (PW2), a witness in this case said this case said he is a mason and lives at Wamanafo and that he knows the parties involved in this case. He said PW1 has building blocks packed in front of his family house. That during the year 2020, whilst at the family house, he saw 1st accused person brought a tricycle and loaded PW1’s blocks. He said he approached him and quizzed him over why he was carrying PW1’s blocks. He said the first (1st) accused told him he was sent by 2nd accused person to convey PW1’s block for him. Upon this information, PW2 said he informed PW1 that he PW2 saw 1st accused carrying his blocks away. He gave this evidence on oath. The third prosecution witness (PW3), the investigator synopsize all the testimony led by PW1 and PW2 he said he visited the scene of crime with the parties and saw that there were some blocks packed at the scene where PW1 alleged accused persons stole some of his blocks. At the scene, he said, 2nd accused person told police that it was only 100 pieces of blocks that his accomplice 1st accused person took out of PW1 ‘s blocks. PW3 said he took the investigation caution statements from 1st and 2nd accused persons respectively and the charge caution statement from the Accused persons which were tendered in and marked as Exhibit A, A1 B1 and B2 respectively which was admitted by the court. PW3 said he received instruction from his District Commander to charge suspects A1 and A2 with the offence of conspiracy and stealing and put them before the court. The Accused persons declined to open their defense, but rather relied on their statement given to the police which had been tendered in as exhibits in the witness statement, the, first Accused, Yeboah Yaw Isaac stated that he lives at Wamanafo and he is a rider/driver and knows the second accused person. That in December 2020, whilst working under the second accused person, the second Accused person negotiated with one Pastor Kwadwo Ansu to convey a certain blocks to his (2nd Accused) person’s site or sell to any other person who may need some blocks. That the said block was packed in front of the co-operative Distiller’s office and the said blocks were 5 “inches. That being a worker under the 2nd accused person, 2nd Accused person instructed him to convey those blocks to his (2nd accused) person’s construction site at Wamanafo. That base on the instructions of the 2nd Accused person, he agreed to load the blocks. That one day, he loaded 100 pieces of five (5”) inches block into his tricycle motor king to deliver same to a client. That in the process of loading the blocks, one Amponsah Emmanuel informed him that there was an issue or litigation over the blocks so he (1st Accused) should stop the work. That after loading the 100, five (‘5’) inches blocks based on the information from the said Amponsah Emmanuel, he stopped loading the blocks. That it is never true that he stole or conveyed 1,450 six inches blocks. The second Accused also in his witness statement which he had appended his signature, stated that his name was oppong Kwame Elvis and he lived at Wamanafo. He stated that he was a blocks, sand and General contractor. And that in December 2020, one Pastor Kwadwo Ansu negotiated with him to convey and sale certain ‘5’ inches blocks. That the said ‘5’ blocks were packed at the forecourt of the Co-operative Distiller’s Office. That the negotiation was that the owner of that blocks had wrongly used his (Pastor Kwadwo Ansu’s) blocks at his building site at Wamanafo. Pastor Kwadwo Ansu negotiated with him that instead of conveying the blocks to his (Pastor Kwadwo Ansu’s) building site, the distance will create some inconvenience for him, so A2 should find a buyer for him, so that he (Pastor Kwadwo Ansu) will use the proceeds to mould another blocks on his building site. That all the negotiations were carried out in the presence of the 1st accused person. 2nd Accused stated that in the cause of his business, one of his client was in need of blocks which they could not supply at the time, so 1st accused who was aware of the negotiation with Pastor Kwadwo Ansu decided to convey the negotiated bocks to the said client. That after loading 100, five (5”) inches blocks into his tricycle motor king, the 1st accused person called me on my phone that somebody had told him that there was an issue or litigation on the said blocks, so he (1st Accused) person should stop the conveyance the blocks. He (2nd Accused) said he immediately instructed 1st Accused to stop conveying the blocks, and he proceeded to Pastor Kwadwo Ansu’s place to inform him about the confrontation which he had caused 1st Accused in conveying the said blocks. He said Pastor Kwadwo Ansu then told him that he should have informed him when he was ready to convey, so that he Pastor Kwadwo Ansu would intend have informed the police before the conveyance. Nana Kofi Owusu called later to say while he was away, somebody told him (Nana Kofi Owusu) that some tricycle was loading some of his blocks. And that he Nana Kofi Owusu wanted to find out if the tricycle belonged to me. 2nd Accused stated that he told Nana Kofi Owusu that he was not available, but that it was one of his workers who had mistakenly loaded 100, five (5”) inches blocks. That the following day, the said Nana Kofi Owusu came to his office and narrated how he (Nana Kofi Owusu) had an issue with Pastor Kwadwo Ansu concerning the said blocks and he (Nana Kofi Owusu) stopped me from conveying the block until the issues between him and that of Pastor Kwadwo Ansu has been resolved which I obliged. After the prosecution had presented its case against the accused persons, the court determined that there was a case for the Accused persons to answer. The evidence of PW2 and PW3 which the court found credible was that 1st and 2nd accused persons did conspire to move some blocks from the site where PW1 had packed some blocks. The case of PW1 that he had 1,500 six inches and five inches blocks packed there and 1,450 pieces of it had been stolen by the accused persons, cannot be accurate. Because if 1,450 blocks were remove from the 1,500 blocks, then it implies there should only be 50 blocks, left. However in his witness statement said when he went to the site, he saw some blocks still there, implying a quantity of blocks were still PW3 available and not the 50 pieces. When PW1 was put to strict proof by second accused person during cross-examination, it went as this: Que: You alleged that I connived with first Accused to steal your blocks carting it away with a tricycle. I want to ask you if 1,450 blocks can be loaded onto a tricycle. Ans: I cannot answer to that. I can’t tell. Que: Do you remember that you instituted an action against Osofo Kwadwo in reference to this same block in this court? Ans: That is so. This implies that PW1 had already instituted a case against Osofo Kwadwo in relation to the same blocks and therefore cannot accuse the Accused persons of stealing those same blocks. PW1 is therefore not a credible witness in this case. Pastor Kwadwo Ansu who should have been a key witness in this case, but was however not called or invited. However in A2’s witness statement, paragraph 13, he stated “that Pastor Kwadwo Ansu informed or told me that I should have told him before the conveyance, so that he will also inform the police.” This, infer’s that 2nd Accused is telling the court that although he had discussed early with him to convey the said blocks, negotiation was not completed for him to have gone for it. Hence the need for him to have informed him (Pastor Kwadwo Ansu) before proceeding to go for the blocks. In evaluating the evidence before the court, the Accused persons throughout the trial admitted that they went for only 100 of the five (5”) blocks, and not the 1,450 blocks being alledged by the complainant. The 2nd Accused admitted in his own Investigation caution statement that they went for only 100 pieces of blocks which was conveyed (only once) through one trip. The court is cognizant of the fact that the Accused persons have put to PW1 that the total number of blocks PW1 mentioned to the police is at variance with the number that was conveyed as stated in the facts. It is ample for the prosecution to prove that the accused persons stole some 100 blocks and not what PW1 is alledging as contained in the charge. The court is heedful of the case of Obeng Alias Donkor and others V The State (1966) GLR 259 – 261 where the Supreme Court held that: Where a person was charged with stealing a certain sum it would be sufficient if the prosecution prove that he in fact stole part of that. The prosecution before closing its case decided to cross-examine the 2nd Accused Person. The Cross-Examination went as follows: Que: In paragraph 19 of your witness statement you stated that Nana Kofi reported the case in the presence of police. Ans: That is not correct, but I went for 100 blocks from the site and a police officer called me about the issue and I narrate the issue to him. But one and a half year later Nana Owusu called and I also told him that I collected 100 blocks. Que: In paragraph 21, you started that you collected 100 blocks. Can you tell the court where those blocks are? Ans: Yes I can. Inferring that the 100 blocks were still in the possession of the Accused persons, although he knew that the blocks were not his. Considering the ingredients of offence charged I am obliged to proffer charges on the Accused person thus. SENTENCING The court has taken into consideration the fact that the 1st accused persons are first time offenders and were consistent that they appropriate the 100 pieces of blocks. Consideration is also given to the fact that the 2nd accused admitted that the 100 pieces of blocks were still in his custody. The two accused persons are to return the 100 blocks to the owner or pay the equivalent to the owner. For the offences charged, they are to pay 25 penalty unit on each count or month in Jail for each count of the offence charge. H/W DZIFA AZUMAH ESQ. (MAGISTRATE) 10