The Republic Vrs Majeed [2022] GHADC 310 (17 September 2022)

CORAM: HIS WORSHIP MR. MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE), SITTING AT THE DISTRICT COURT, BOLGATANGA IN THE UPPER EAST REGION OF GHANA, ON TUESDAY, THE 27TH DAY OF SEPTEMBER, 2022. Case No. UE/BG/DC/7/33/2022 THE REPUBLIC VRS. SALIFU MAJEED TIME: 09:23AM ACCUSED PERSON ABSENT INSPECTOR REGINA ALI AGONG FOR THE REPUBLIC PRESENT RICHARD ADAZABRA ESQ. FOR THE ACCUSED PERSON PRESENT Introduction JUDGMENT 1. William Blackstone, an eighteenth century English jurist, in a statement on the hallowed principle of “Innocent until proven guilty:- rights of an accused person” upon which our criminal justice administration has been founded in article 19 (2) (c) of the Constitution 1992 stated as follows:- “Better that ten guilty persons escape than that one innocent suffer.” The above constitutes the fulcrum of our criminal justice jurisprudence. This Court shall demonstrate whether the prosecution lived up to the above principles of ensuring the innocence of the accused until he is proven guilty. In other words, this court shall demonstrate whether the prosecution has proved its case beyond Page 1 of 9 reasonable doubt. In the instant case, the accused person was brought or arraigned before this court on the 16th of August, 2021 for the offence of Dishonestly Receiving contrary to Section 146 of the Criminal and Other Offences Act, 1960 (Act 29). The accused person pleaded NOT GUILTY to the charge against him. Case for the Prosecution 2. The prosecution’s case as can be seen from the brief fact attached to the charged sheet filed on 16th August 2021 is that the Complainants in this case are a team of police officers stationed at Bolgatanga police station. The accused person, Salifu Majeed is a motorbike fitter residing as Sawaba a suburb of Bolgatanga. On 8th day of August 2021 the complainant received intelligence to the effect that the accused person had brought a red Honda motor bike to his house which he had a fixed a different registration number plate on it and was changing the speedometer, ignition key fuel tank key as well as the chain covers. Base on the intelligence, Police swiftly proceeded to the accused person’s house and arrested suspect Ayuba Amidu also a motor bike fitter who was working on the motor bike whilst the accused person was not met. Suspect Ayuba Amidu disclosed that he was merely engaged by the accused person to work on the motor bike for him and was subsequently admitted to police enquiry bail. On 14th August 2021 the accused person was arrested from his hideout. Upon interrogation, the accused person stated that the red motor bike was sold to him by one Kobina from Bongo whom he could not trace his where about without document covering it before he fixed the registration number plate on it. Investigations revealed that the registration number M-19-UE 6077 which the accused person had fixed on the Honda motor bike was issued to a Yamaha motor bike by DVLA. Case for the Defence 3. Accused person’s case is that he bought the motor bike in question from one Kobina. He says when he bought the motor he was using it. That he left the motor with his junior brother and went to Tamale, so when he came back, the motor was Page 2 of 9 not in the state in which he left it. And that when he saw that the motor was not in good condition he went out to buy a motor chain and heard that the Razak (Investigator herein) came and was looking for him. Accused says he was told that the police picked up the motor away. Accused says he followed up to take the motor but was arrested for stealing the motor bike. Accused says he was told that the owner of the motor said he was coming so he should wait for him to come. Accused says he sat down and waited for the owner but nobody came to claim ownership of the motorbike. Accused says he was put in the cell. Accused person added that prior to this incident he had an issue with the investigator herein regarding his personal motor bike. Burden of Proof 4. The proof required in a criminal case is proof beyond reasonable doubt. The Evidence Act, 1975 (NRCD 323), outlines this in subsections 11(2) and 13(1) and Section 22 as follows: 11(2) “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. 13(1) In any 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. Section 22: In a criminal action a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond a reasonable doubt and thereupon in the case of a rebuttable presumption the accused need only raise a reasonable doubt as to the existence of the presumed fact”. Page 3 of 9 5. The Supreme Court in a unanimous decision in the case of Abdulai Fuseini v The Republic, reported in [2020] Criminal LR, page 331 reiterated and affirmed the basic philosophical principles underpinning criminal prosecution in our courts as follows:- “In criminal trials, the burden of proof against an accused person is on the prosecution. The standard of proof is proof beyond reasonable doubt. Proof beyond reasonable doubt actually means “proof of the essential ingredients of the offence charged and not mathematical proof.” Emphasis supplied 6. In the case of Miller Vrs Minister of Pensions [1947] 2 ALL ER 372 at 373 Lord Denning J (as he then was) explained proof beyond reasonable doubt as follows: “It need not reach certainty but it must carry a high degree of probability, proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice … If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence „of course it is possible but not in the least probable‟, the case is proved beyond reasonable doubt but nothing short of that will suffice.” Emphasis supplied 7. In the case of Dexter Eddie Johnson Vrs the Republic [2011] SCGLR 601 Dotse JSC discussed the principle of proof beyond reasonable doubt in some detail and cited the case of Woolmington Vrs DPP [1934] AC 462 where Lord Sankey made the following statement: “Throughout the web of the English Criminal Law, the golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner‟s guilt – if at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner – the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.” See the case of: Commissioner of Police Vrs Page 4 of 9 Isaac Antwi [1961] GLR 408 where the Woolmington principle was applied. 8. In the case of Lutterodt vrs C. O. P. [1963] 2GLR 429 holding 3 sets out 3 stages that a court must use to examine the case of the defence in criminal cases, as follows: If the explanation of the defence is acceptable, then the accused should be (3) “In all criminal cases where the determination of a case depends upon facts and the court forms the opinion that a prima facie case has been made, the court should proceed to examine the case for the defence in three stages: a) acquitted, b) should be acquitted. c) If quite apart from the defence‟s explanation, the court is satisfied on a consideration of the whole evidence that the accused is guilty it must convict.” This is often referred to as the three tier test. If the explanation is not acceptable but is reasonably probable, the accused 9. See also the following cases on the burden of proof in criminal cases: Frimpong @Iboman v The Republic [2012] 1 SCGLR 297, Gligah & Anr v The Republic [2010] SCGLR 870, Tetteh v The Republic [2001-2002] SCGLR 854, Francis Yirenkyi v Republic [2017-2020] 1 SCGLR 433 at 457 and 464466, just to mention a few. Ingredients of the Offence of dishonestly receiving and Analysis 10. In an attempt to prove a case beyond reasonable doubt every prosecutor is required to prove the ingredients of the offence the Accused is charged with. On the charge of Dishonesty Receiving –sections 146, 147 (1) and 148 (1) of Act 29 provides as follows: “Section 146-Dishonestly receiving property A person who dishonestly receives property which that person knows has been obtained or appropriated by a criminal offence punishable under this Chapter, commits a criminal offence and is liable to the same punishment as if that person had committed that criminal offence. Page 5 of 9 Section 147(1)-Dishonestly receiving (1) A person commits the criminal offence of dishonestly receiving property which that person knows to have been obtained or appropriated by a criminal offence, if that person receives, buys, or assists in the disposal of the property otherwise than with a purpose to restore it to the owner. Section 148 (1)-Possession of stolen property (1) Where a person charged with dishonestly receiving is proved to have had in possession or under control, anything which is reasonably suspected of having been stolen or unlawfully obtained, and that person does not give an account, to the satisfaction of the Court, as to the possession or control, the Court may presume that the thing has been stolen or unlawfully obtained, and that person may be convicted of dishonestly receiving in the absence of evidence to the contrary.” See also the following authorities on the offence of dishonestly receiving: Hammah Mohammed Vs. The Republic [2020]DLCA10036, The book entitled “Contemporary Criminal Law in Ghana, 3rd edition by Dennis Dominic Adjei (JA) Pages 360-364 and The book titled “Criminal Law in Ghana” (Ghana Publishing Corporation) 1985 by P. K. Twumasi (of blessed memory) at pages 352-358. 11. From the above authorities we can glean the ingredients of the offence of dishonestly receiving as follows: (a) That the accused received property which he knew to have been obtained or appropriated by crime and (b) That the receipt of the property was dishonest. In other words, for the prosecution to succeed in a charge of dishonestly receiving there must be clear and abundant evidence that: i. The item or thing in question was stolen or misappropriated. ii. The item was in the possession or control of the accused. iii. The Accused could not give a reasonable explanation of how he came by the item. Page 6 of 9 12. In the instant case, Prosecution called two witnesses, thus, 54606 G/Const. Kontor Isaac-PW1 and No. 46158 D/CPL. Razak Nagveni-PW2. They testified to the effect that on 8th day of August 2021 the complainants received intelligence to the effect that the accused person had brought a red Honda motor bike to his house which he had a fixed a different registration number plate on it and was changing the speedometer, ignition key fuel tank key as well as the chain covers. Base on the intelligence, Police swiftly proceeded to the accused person’s house and arrested suspect Ayuba Amidu also a motor bike fitter who was working on the motor bike whilst the accused person was not met. Suspect Ayuba Amidu disclosed that he was merely engaged by the accused person to work on the motor bike for him. On 14th August 2021 the accused person was arrested from his hideout. 13. The Accused person testified himself and called two witnesses DW1-Sulemana Salman and Aniah Victor DW2. Accused person says that he bought the red Honda motor bike from one Kobina without documents. He says the registration number plate belong to a Yamaha scooter which he bought. He says he removed the number plate from the scooter and fixed it on the Honda. Accused says when was arrested by the police he was told that the owner of the motor was coming so he should wait for him to come. Accused says he waited for the owner but nobody came to claim ownership of the motorbike. 14. From the evidence on record, the prosecution is of the view that since the accused person is not having documents covering the motor bike and the fact that he mentioned different prices at which he bought the motor bike the Accused is guilty of Dishonestly Receiving. Thus accused told police he bought the motor for GHC1,700 in his caution statement on 14th the August 2021 but in cross examination by the Prosecutor on 22nd July 2022 he claimed he bought the motor for GHC3,500. Even though the court agrees to some extent with the prosecution Page 7 of 9 on these views, the evidence of PW2 on 8th day of June, 2022 raises some doubts in the mind of the court as to whether the motorbike was stolen and accused knew of it before receiving or purchasing it. Thus PW2, the investigator herein on 8th day of June, 2022 under cross examination by the lawyer for the accused person, testified as follows: Q. The accused person told that he bought the motor bike without documents and after buying it he fixed a different registration number plate on the motor bike? A. That is what the accused person told me. Q. So in fact the motor bike belongs to the accused person standing there? A. Considering the circumstance of the motor bike it was obtained by means of crime. Q. As a competent Investigator did you investigate your suspicion of owners? A. Yes my lord and I was actually convinced that the motor bike was stolen. Q. Tell the court who stole the motor bike? A. We do not know the thief but we only found it with the accused person. Q. The accused person told you the name of the person he obtained the motor from, is that not so? A Yes my lord, but the accused person told me that he could not trace the person… 15. From the above evidence, it is clear that up to date no one came forward to neither claim ownership of the motor bike apart from the Accused person nor complain of a missing motorbike. Some questions to ask are whether or not the prosecution has established that the motor bike was stolen or/and whether or not the accused person knew the motor bike was stolen before receiving or purchasing it? Certainly not! And till these questions are answered in the affirmative, the prosecution has failed to satisfy the court that the motor bike was stolen and accused knew that the motor bike was stolen before he received or purchased it. Page 8 of 9 Conclusion 16. Having examined the whole evidence of the prosecution and Defence on record, the court is of the considered opinion that the prosecution has failed to discharge its burden of proof beyond reasonable doubt with regards to the charge against the accused person. Thus, the ingredients of the offence of Dishonestly Receiving were not proved beyond reasonable doubt. Accordingly, the accused person is hereby acquitted and discharged. The Motor bike tendered in evidence and which is in the custody of the court should be given to the Accused Person. …………………………… H/W MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE) Page 9 of 9