Republic Vrs Atsu Denteh & Anor. [2022] GHACC 275 (15 November 2022)

IN THE CIRCUIT COURT 3 HELD AT ACCRA ON MONDAY THE 15TH DAY OF NOVEMBER 2022 BEFORE HER HONOUR SUSANA EDUFUL (MRS.), CIRCUIT COURT JUDGE COURT CASE NO. D2/102/2022 THE REPUBLIC VRS 1. ATSU DENTEH 2. SETH - AT LARGE RULING ON SUBMISSION OF NO CASE TO ANSWER The 1st Accused Person has been arraigned before this court by Prosecution and charged with two counts of; 1. Conspiracy to Rob contrary to sections 23(1), 149 of the Criminal and other Offences Act, 1960 (Act 29) Robbery contrary to section 149 of the Criminal and other Offences Act, 1960 (Act 2. 29). The 2nd Accused Person is at large at the time of trial consequently the court proceeded without them. Counsel for Accused filed a notice of alibi which prosecution investigated and file his report. According Prosecution, per the Report, there was no substance in the notice of Alibi filed. THE BRIEF FACTS The brief facts as given by prosecution are that; ‚Complainant Azih Nneameka is a scrap dealer residing in Dansoman, whiles 1st Accused Person is a labourer who resides at North Dzorwulu and 2nd Accused Persons Seth is at large. The Complainant who has his scrap business around Dzorwulu for some time now distributed his contact number on posters to some of the mechanics around the North Dworwulu enclave so that he should be called up whenever they have scrap for sale. On 23/02/2021 at about 6:00pm the Complainant received a call from an unknown number and the caller assured the complainant to meet him at a certain washing bay. But the complainant proposed they meet him at a certain washing bay, but the complainant proposed that they meet at Lucas Collage, Ayigbe Town, since he is not familiar with the said washing bay. At about 7:00pm same day, the complainant finally arrived at Lucas Collage on his Royal Motobike with registration number M-21- GR 2027 and his back pack containing an amount of 2,000.00. Immediately Complainant stopped and put off his engine, the Accused Persons suddenly surrounded him. The Accused Persons who were armed with knife and cutlass ordered the complainant to get off the motorbike and surrender all his belongings to them. One Edem who is currently standing trial at circuit court 3 Accra in connection with this same robbery become furious after his orders were disobeyed by the Complainant, collected a cutlass from the 1st accused and used it to hit the complainant at his back. The Complainant out of fear attempted to flee but he was prevented by 1st and 2nd Accused Persons. Edem Morkli who is currently standing trial at Circuit Court 3 then pulled the Complainant’s back pack containing GHC2,000.00 as well as posters with his contact numbers on them from his back and passed same to the 1st Accused. The Accused Person not satisfied with the money taken from the Complainant started struggling with complainant to snatch his motorbike as well. As a result, Edem Morkli used the cutlass to inflict a deep wound on the complainant’s left arm and the complainant started screaming on top of his voice which attracted people to the scene. 1st and 2nd Accused persons managed to escape with the complainant back pack with its contents before the arrival of the people. Edem Morkli who could not escape pretended to have arrested a thief and started pronouncing the complainant as a thief who has stolen a convertor from a car park at a nearly mechanic shop and he wanted to take the complainant to the Police Station. The crowd then decided to call Police. Edem Morkli quickly jumped on a standby motor bike and attempted to flee from the scene but luck eluded him and he was arrested by the crowd who handed him over to the Police patrol team that come around. On same day after the arrest of Edem Morkli, 1st Accused went to confide in one Prosper Mortsi, a community Police Assistant stationed at the Airport Police station that he together with Edem and the 2nd Accused now at large committed the robbery and gave him one of the posters that was taken from the Complainants back pack bearing the name and contact number of the complainant. On 6/10/2021 at about 2:30am whiles Edem Morkli was standing trial at the circuit court 3, 1st accused was arrested at his hideout at North Dworwulo. Ayigbe Town by the Police with the assistance of the Community Police Assistant. On 6/10/21, 1st Accused admitted the offence in his investigation caution statement stating that he was advised together with the 2nd accused person to hid from being apprehended by the Police and based on that he run away to his hometown at Dzodze in the Volta Region. The 1st accused was charged with the offence and arraigned before court. Efforts are underway to apprehend the 2nd Accused Person. The Accused Person pleaded not guilty to both counts. The Prosecution called 3 witnesses and tendered 6 exhibits. PW1’S EVIDENCE PW1 is Detective Sergeant Rita Petra stationed at Airport Police Station. On 23/02/2021 the investigator stated that she was on duty when A1 was arrested and brought to the station by C/Insp. Kenneth Acheampong. PW1 corroborated the evidence of PW2 to the court. PW1 further stated that On October 6, 2021 A1 was arrested at his hide out by PW3. According to PW1 A1, on the same day of the incident went to PW3 and confided in him that they had robbed Complainant. Upon A1’s arrest he narrated is side of the story to PW1. A1 also told PW3 that he was at home when Seth come to him with the victim’s bag containing a piece from a convertor and flyers and handed them over to him. Thus, PW1 corroborated PW3’s evidence as well. PW1 took the caution statement and charge statement of Accused. PW1 was the person who issued PW2 with a medical form for endorsement after medical treatment at a hospital. PW1 later took the statement of the Complainant as well. PW2’S EVIDENCE PW2 is Azih Nnaemeka, he is a scrap dealer and resident at Dansoman in Accra. He stated that he conducts his business mostly around New Dzorwulu and its environs. He stated that due to the nature of his business he had left his contact number with most of his customers to contact him as and when they have any scraps for sale. He further stated that on 23/2/21, at around 6:00 pm an unknown caller called him with cell phone number 0594845581 to meet him at a washing bay in Dzorwulu but since he did not know there, the unknown caller directed him to a popular place called Lucas College and he agreed. According to PW1 upon reaching Lucas Collage 3 men approached him. The 3 were Edem Morkli and the Accused Persons. Edem Morkli pulled a knife at Complainant and ordered him to get off his motorbike and the 3 men got closer to Complainant. PW2 obliged under fear. Edem, then dropped the knife and took a cutlass from 1st Accused. Edem used the blunt side of the cutlass to hit PW2’s back. PW2 sensing danger jumped unto his motor bike and attempted to flee the scene. Edem slashed PW2’s left hand with the cutlass. Edem then jumped and sat behind PW2 on the motorbike and then removed PW2’s back pack containing GHC2,000.00 and gave it to A1 and A2 who are his accomplices. Edem pulled the motorbike in a bid to snatch it from PW2. As a result, both Edem and PW2 fell off the motorbike unto the ground. PW2 shouted for help. The 1st and 2nd Accused runaway with PW2’s bag containing GHC2,000.00. PW2 narrated his plight to the witnesses at the scene who called the police patrol team to the scene. Edem was arrested by the police but 1st and 2nd Accused Persons managed to escape arrest. PW3’S EVIDENCE PW3 was Mortsi Prosper. He is a Community Police Assistant stationed at the Airport Police Station. According to PW3 on February 23, 2021 at about 8pm, he was at home when A1 run to him from a bush which is opposite PW3’ house. A1 handed an object which he claimed was a convertor to him and A1 informed PW3 that he together with A2 and Edem Morkli wanted to sell the convertor to a Nigerian but resulted in a fight and the crowed came to the scene and started beating Edem and therefore called upon PW3 to go out and Assist Edem. PW3 upon reaching the scene was told Edem had been arrested by the Police and was at the Airport Police station. PW3 went to Chief Inspector Acheampong with the convertor and asked PW3 to keep the items until A1 was arrested. PW3 further stated that on the day A1 was arrested he handed over the convertor brought to him by A2 to Sergeant Rita Petra the investigator. PW3 tendered in the photograph of the convertor as well as the actual convertor and the flyer by Complainant. The Prosecution tendered the following exhibits; 1. The Investigation Caution Statement and Charge Statement of Accused (Exhibit A and B series). 2. 3. Police Medical Report Form endorsed by a Medical Officer (Exhibit C) A piece of Convertor and flyer used by Complainant in his business (Exhibit D and E) 4. Photograph of the real object that is the flyer of Complainant and a piece of a convertor (Exhibit F) 5. The Dairy of Action was tendered by Accused through PW1 (Exhibit 1 series) After the close of prosecution’s case Counsel for A1 prayed that he files submission of no case to answer. The said submission was file on October 28, 2022 is summed up below. 1. Counsel states that the investigation PW1 who opened the case said though Complainant could not or he said he could see or recognize the Accused Person as one of those who robbed him, she rather asserted that some eye-witnesses were at the scene of the incident and they saw the Accused as being one of those who attacked the Complainant and snatched his bag which allegedly contained some GHC2,000.00. She added that one Prosper Mortsi also confirmed to her that the Accused had brought some items which were purportedly in a bag as part of the items that were stolen by Edem and his gang. That those items in the bag were given to Accused by one Seth to be given to prosper Mortsi. This is very strange and disconnecting piece of evidence. 2. One could not see the relevance of the alleged act by the suspected Accused Person. The items that were brought happened to be a flier and car converter. Before this very court which tried on Edem Morkli in respect of these same charges of conspiracy to rob and robbery were facts that were exclusively based on the fact that a bag containing GHC2,000.00 had been stolen and a struggle ensure over at attempt by the said robbers to also rob the Complainant of his motor-bike. Now we have a completely different set of facts that revolved around robbing the victim of a converter and flier. In fact, in the earlier trial of Edem, he was asked the question as to what he actually deals in and said… ‚Used Engines, Alternators, Condemned Air-Conditioners, Car Air-Conditioners‛ So this is hugely contradictory to this good quality converter. Counsel consequently stated that the above raises doubt on whether or not the said robbery of the victim really took place. THE STANDARD OF PROOF AND BURDEN OF PROOF The settled position of the law as espoused in several authorities decided by the Ghanaian Courts is that at the close of prosecution’s case, a prima facie case ought to have been established. Mali V. The State [1965] GLR 710; The State V. Sowah [1961] 2 GLR 745; Moshie V. The Republic [1977] 1 GLR 258; Apaloo V. The Republic [1975] 1 GLR 156; Ali Kassena V. The State [1962] 1 GLR 144 And recent cases such as Tsatsu Tsikata V. The Republic [2003-2005] 2GLR 294. In The case of Michael Asamoah & Anor V. The Republic Suit No. J3/4/17 Dated 26th July, 2017, Where the Supreme Court speaking per Adinyira JSC stated the law thus: ‚Furthermore, the standard of proof borne by the prosecution at this stage cannot be proof beyond a reasonable doubt, as held in the case of Tsatsu Tsikata v. The Republic [2003-2004] SCGLR 1068‛ From the law stated above, it is clear that even without the prompting of the Accused Persons, this Court is obliged by law to consider, at the close of Prosecution’s case, whether sufficient evidence has been offered to prove every essential element in the offence charged. To determine whether or not a case has sufficiently been made by the prosecution to justify this Court to invite the Accused Persons to open their defence, it is necessary to set out the scope of burden that is cast on the prosecution to discharge at this stage. That is to say, whether the Prosecution has been able to establish a prima facie case against the accused persons in respect of each of the offences charged. Referencing from the ruling of the High Court in the case of THE REPUBLIC v. EUGENE BAFFOE-BONNIE & 4ORS Suit No. CR/904/2017 dated 23rd May, 2019, what will necessitate a discharge and an acquittal of the accused persons, at this stage is when the following are present; 1. That there has not been sufficient evidence to prove the essential elements in the offence charged. 2. That the evidence adduced by the prosecution had been so discredited as a result of cross examination that no reasonable tribunal could rely on that evidence. 3. That the evidence offered by the prosecution is so manifestly unreliable that no reasonable tribunal could safely convict upon it. 4. That the evidence is evenly balanced, that is to say, the evidence is susceptible to two likely explanations- one consistent with guilt, the other consistent with innocence. Section 173 of ACT 30, states that, if at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the accused sufficiently to require him to make a defense, the court shall, as to that particular charge acquit him. This Court is obliged by law to consider, at the close of Prosecution’s case, whether sufficient evidence has been offered to prove every essential element in the offence charged. In this case, the duty of the Prosecution is to establish a prima facie case against the Accused Person. In the case of Yeboah and Another v The Republic [1999-2000] 1 GLR 149 where the Court of Appeal speaking per GBADEGBE J stated that ‚…a prima facie case was made against the appellants which required the trial circuit tribunal to call upon them to enter into their defense. The authorities are quite well settled that where at the end of the case for the prosecution, an ingredient of the offence charged was not proved or where the evidence of the prosecution was discredited as a result of cross- examination, thus rendering it unsafe to be acted upon, then the court need not call upon the accused to open their defense.‛ COUNT ONE (1) 1. The charge of conspiracy to rob Conspiracy per Section 23(1) under the Criminal Offences Act 1960, (act 29) provides that ‘’If two or more persons agree or act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime, as the case may be’’. In the case of FRANCIS BOAFO @ CUDJOE V. THE REPUBLIC (2017) JELR 63751. SUIT NO: H3/9/2013, dated 4th MAY 2017; the Court of Appeal in determining whether or not the prosecution has sufficiently proved the Charge of Conspiracy to commit a crime against the Appellant to warrant the conviction, it noted inter alia, that; In short, it has to be proved that the Appellant agreed with the other Accused persons to act together to commit the robbery or that he abetted the commission of the robbery. For the count of conspiracy to succeed against the accused persons as spelt out under section 23 of Act 29 the prosecution must prove i. ii. That the Accused Persons agreed to act together to commit robbery or That the Accused Persons acted together with a common purpose to commit robbery. In the instant case, the prosecution in establishing that there was an agreement between Edem Morkli, A1 and A2 with a common purpose to commit an unlawful act of robbery, Stated, that; The 2 Accused including Edem Morkli, went to the scene of crime. According to Prosecution the Accused Person (A1) was with the two others at the scene of crime. But A1 and A2 after receiving the money in the bag left the scene of crime. Edem Morkli however attempted to run away when he became apprehensive that he was about to be exposed. He was arrested at the scene of crime. PW2 told the court that he had a call from an unknown person to buy scrap, as he PW2, is a scraps dealer. He agreed with the caller to meet him at Lucas Collage. On reaching Lucus College it was Edem, A1 and A2 who approached him attacked him. Accused Person’s version per the investigation caution statement (exhibit E) which was recorded for him in the presence of an independent witness, he states that, he went to the scene of crime to observe what was happening. There the crowding started calling him a thief and started chasing him but he A1 managed to escape, after that Seth run to him and handed over a bag containing some posters and told A1 that, he A2 and Edem thought there was money in it but that was not so. According to A1 he took the items to Prosper Mortsi PW3 as what Seth found in Complainant’s bag. A1 further stated ‚I came back home and met Bossu London who is a leader to five of us, Myself, Edem Morkli, Francis and Seth. Maxwell-Bossu London asked me to run away from Accra because they have placed and amount of GHC2,500.00 for anyone give information leading to their arrest.‛ In the case of COMMISSIONER OF POLICE v AFARI [1962] 1GLR 483 the Supreme Court defined the scope of the law of conspiracy of Ghana that: ‘In the opinion of the court, the Ghana law on conspiracy … consists not only in the criminal agreement between two minds, but also in the acting together in furtherance of a common criminal objective’ It is difficult to prove the agreement between the accused persons since the prosecution was not present during the planning and that evidence of outward manifestations of acting together by accused persons gives rise to an inference that there has been a previous agreement between them to act. From this narration, Astu Denteh (A1) does not admit that he was part of Edem and Seth when they committed the offence. What he however admits is that he facilitated or Edem and Seth with the commission of the crime, by collecting the items they took at the scene of crime and handed it to PW3. This piece of evidence suggests that A1 played the role of facilitation and shielding Seth from getting arrested when Edem had already been arrest. That being the case the court is off the opinion piece of evidence supports the ingredients to the charge of conspiracy to commit a crime. The prosecution has made a prima facie case A1 under the charge of conspiracy to commit crime. The Charge of Robbery Section 150 of Act 29, if a person causes any harm to any person or threat of criminal assault is used with the intent to overcome the resistance of the person in custody of the thing for the purposes of stealing the person commits robbery. For Prosecution to succeed it must establish stealing plus the use of force or threat of use of force or criminal assault to steal or overcome or prevent the resistance of the person in charge of the property. See the case of BEHOME v. REPUBLIC supra the intention must be to dishonestly appropriate the property of another with the accused not being the owner and must not also have a claim of right in that property. See P. K. Twumasi – Criminal Law in Ghana page 371. In the Court of Appeals case, Akwasi Annin V Republic Ayebi JA stated - ‚One is only guilty of robbery if in stealing a thing he used any force or caused any harm or used any threat of criminal assault with intent thereby to prevent or overcome the resistance of his victims, to the stealing of the thing‛ as held in Behome v. The Republic [1979] GLR 112. In the case of Abaka v. The Republic (2010) 28 MLRG 111 at page 125 the Court of Appeal stated the ingredients to be proved to secure a conviction for robbery as follows:- 1. The Accused has stolen a thing. 2. For the purpose of stealing, the accused person used force or caused harm to any person (or used the threat of harm on any person) 3. The force or the threat of harm used must be with intent to prevent or overcome the resistance of any person to the stealing of the thing 4. The identity of the accused with regard to the commission of the robbery.‛ The Prosecution must be able to prove each and every one of the above four ingredients. PW2 in his testimony stated that he was attacked at Lucus Collage where he met with A1 and two others to buy scraps from them. According to him, one of them took a knife from his pocket and threatened him to get off his motorbike. When the Complainant resisted the motorbike, Edem took a cutlass from one of two accomplices and used the blunt side of the cutlass to hit PW2’s back. Sensing danger PW2 attempted to run away to save his life, Edem realizing PW2 wanted to escape used a sharp knife he was holding to slash his left hand and quickly took his backpack containing GHC2,000 and other complimentary cards which he handed them over to A1 and A2. The indication of stealing accompanied by the use of force is established. The fundamental issue that must be resolved for prosecution to succeed in establishing a prima facie case against A1 is, to determine whether or not it was the Accused Person (A1), Edem Morkli and other now at large who committed the offence charged. Prosecution’s evidence is that it was Atsu Denteh (A1) who went to PW3 with the items which PW2 has identified as his own and the items of the robbery incident. Even though A1 was not arrested at the scene of crime the items it was he who handed over to PW3 the said items on the same day of the incidence. This piece of evidence connects A1 to what transpired at the scene of the incident and what happened at the scene was robbery. PW3 stated that A1 handed an object which he claimed was a converted to him and A1 informed he PW3 that it was he together with A2 and Edem Morkli who wanted to sell the convertor to a Nigerian but resulted in a fight and the crowed came to the scene and started beating Edem and therefore called upon PW3 to go out as Assist Edem. In other words, prosecution must prove that Accused Person was part of the persons who participated in the commission of the offence. Prosecution may do so either by direct evidence of persons who swear to have witnessed the event or by circumstantial evidence being one of the surrounding circumstances of the case that may irresistibly point to the accused as the perpetrator of the crime. See DOGBE v THE REPUBLIC [1975] 1GLR 118. PW2 in his testimony and under cross examination emphatically said that he cannot recognize the person A1 due to the manner in which the incident happen that is the attack on him. From the foregoing evidence of Prosecution, the fact that the complainant (PW1) was robbed on the day of the incident is not in doubt. What the prosecution now needs to establish is whether or not it was the Accused person who committed the crime with his accomplices. Now in establishing the identity of A1, I will make reference to the case of Dogbe v. The Republic [1975] 1 GLR 118, holding I, where the High Court, per Ata-Bedu J, stated thus: ‚In criminal trials, the identity of the accused as the person who committed the crime might be proved either by direct testimony or by circumstantial evidence of other relevant facts from which it might be inferred by the court. In the Supreme Court case, IGNATIUS HOWE V REPUBLIC, Akamba JSC in his judgment stated. ‘‘The issue of identification is a fact that must be determined by the court. Hence in a criminal trial, the prosecution is obliged to lead evidence to identify the Accused Person as the person who committed the crime for which he/she is charged. His Lordship made reference to Phipson book on Evidence 10th edition, p. 170, para 1381, and it states: Identification may take several forms. It may be proved or disproved not only by direct testimony, or opinion evidence, but presumptively by similarity or dissimilarity of personal characteristics such as age, height, size, hair, complexion, voice, handwriting, manner, occupation, family relationship, education, travel, religion, knowledge of particular people, places, or facts, and other details of personal history including identities of mental qualities, habits and disposition. According A1 it was A2 and Edem who committed the offence. The vexed question is, why did A1 not go with PW3 to the scene and to the Police station when he knew Edem had been arrested but rather flee the scene and the neighborhood for a long time just to hid himself. The court is not convince that A2 did not have anything to do with the crime committed against PW2. From the evidence on Record the court presumes that items which A1 handed to PW3 connects A1 to the offence of robbery charged. Having applied the principles to the case before me and having regard to the evidence on record, it is my opinion that the Prosecution has been able to establish a prima facie case against the 1st Accused person in respect of all the offences charged; Conspiracy to rob and robbery. Consequently, Accused Person are called upon to open his defence. PROSECUTOR ASP EVANS KESSE REPRESENTATION RAPHEAL KOFI BONNEY FOR ACCUSED PERSON H/H SUSANA EDUFUL (MRS) (CIRCUIT COURT JUDGE) 18