The Republic Vrs Mohammed [2022] GHADC 261 (13 December 2022)

IN THE DISTRICT COURT 2, TAMALE HELD ON TUESDAY 13TH DECEMBER, 2022 BEFORE HIS WORSHIP D. ANNAN ESQ. SUIT NO. B10/3/22 THE REPUBLIC V ISSAH MOHAMMED JUDGMENT INTRODUCTION 1. On 26th July, 2022 the accused was arraigned before this court for the below offence: STATEMENT OF OFFENCE Stealing: contrary to section 124(1) of the Criminal Offences Act, 1960 (Act 29). PARTICULARS OF OFFENCE Issah Mohammed, Driver, Age 35years: on the 1st day of July, 2022 at Aboabo, Tamale in the Northern Region and within the jurisdiction of this court, did steal unregistered Dash Five motorbike valued at GHS7,000.00 the property of Nafisa Lukeman. - 1 - FACTS OF THE CASE 2. The facts of the case given by the prosecution are that accused is the boyfriend of the complainant. In July 2022 at about mid-night while complainant was asleep, accused sneaked and stole complainant unregistered Dash Five motorbike valued at GHS7,000.00 which was parked at complainant’s house. A co-tenant spotted the accused pushing the motor out of the house. The next day when complainant could not find her motorbike, the co-tenant informed her that accused took it. On 14th July, 2022 complainant reported the matter to the police. Police later had information that accused was onboard an OA bus from Bolgatanga to Accra, and upon identity check at Datoyili the accused was arrested and handed over to the Regional Criminal Investigation Department, Tamale. During interrogation, accused admitted to stealing the motorbike and sent it to Yendi and gave it to one Mumuni Yussif Abdul to keep for him and took cash sum of GH600.00 from the said Mumuni as loan to travel to Accra. Further investigation was conducted in Yendi where the said Mumuni was arrested. Upon his arrest, Mumuni indicated that accused indeed brought the motorbike but was offering it for sale at GHS4,000.00. He agreed to buy it and made part-payment of GHS2,000.00 and demanded for the documents before paying the balance. However, upon his own investigations Mumuni found out that accused had stolen the motorbike from the girlfriend (complainant) and so he returned the motorbike to accused and collected his money (the part-payment). 3. Accused when arraigned before this court, pleaded not guilty to the above charge. DEFINITION OF THE OFFENCE 4. With respect to this charge, section 125 of Act 29 defines stealing to mean, “a person steals if he dishonestly appropriates a thing of which he is not the owner.” Act 29 also - 2 - provides that whoever steals shall be guilty of a second degree felony, see s. 124(1) of Act 29. BURDEN OF PROOF 5. By a plea of not guilty, the accused puts himself in charge of the court, meaning that his guilt has to be proved beyond reasonable doubt. It is settled law that a person is presumed innocent until the contrary proved, see article 19(2)(c) of the 1992 Constitution. The mandatory requirement that the guilt of the person charged ought to be established beyond reasonable doubt and the burden of persuasion on the party claiming that the person was guilty, has been provided for in ss. 11(2), 13(1), 15 and 22 of Evidence Act, 1975 (NRCD 323). In Gligah Atiso v The Republic [2010] SCGLR 870 at 879, the Supreme Court, per Dotse JSC re-emphasized this point thus: “…whenever an accused person is arraigned before any court in any criminal trial, it is the duty of the prosecution to prove the essential ingredients of the offence charged against the accused beyond reasonable doubt. The burden is, therefore, on the prosecution and it is only after a prima facie case has been established by the prosecution that the accused person is called upon to give his side of the story.” 6. Thus, whereas the prosecution carries that burden to prove the guilt of the accused beyond reasonable doubt, there is no such burden on accused to prove his innocence. At best he can only raise a doubt in the case of the prosecution. But the doubt must be real and not fanciful, see the cases of Miller v Minister Of Pensions [1947] 2 ALL ER 372 at 374 and COP v Isaac Antwi [1961] GLR 408. METHODOLOGY - 3 - 7. In the instant case, accused pleaded not guilty to the charge. As noted above, the prosecution must prove the whole of its case including the identity and knowledge of offence against the accused, beyond reasonable doubt. 8. The prosecution in proving its case against the accused intended to call four (4) witnesses but ended up calling only one witness. The prosecution explained that the other witnesses although had filed witness statements, they have declined to come to court. In effect, the only witness No. 41549 D/Sgt. Emmanuel Asoma testified and he tendered in evidence three exhibits: i. ii. iii. Exhibits A - the investigation cautioned statement of accused Exhibit B - the charge cautioned statement Exhibit C– copy of the receipt of motorbike dated 3/01/22. The Prosecution’s Case 9. Prosecution witness, Emmanuel Asoma, indicated that this case was referred to him and he took statements from the complainant, witnesses as well as the accused. According to him, on 16th July, 2022 the complainant, Nafisa Lukeman, reported to the Regional Criminal Investigation Department, Tamale that her motorbike had been stolen and that one of the witnesses saw accused taking it. So on 17th July, 2022 the police received information that accused was onboard an OA bus traveling from Bolgatanga to Kumasi and upon an identity check at Datoyili the accused was arrested. During interrogation, accused admitted to taking the motorbike and sent it to Yendi and gave it to one Mumuni Yussif Abdul. Mumuni Yussif Addul was arrested, cautioned and released on police enquire bail. According to prosecution witness, Mumuni indicated that he bought the motorbike from accused at GHS4,000.00 but paid GHS2,000.00 and demanded for the motorbike documents. - 4 - However, accused refused to give it out. Mumuni then returned the motorbike to accused and took his money back. Prosecution witness, therefore, caused accused to be charged with stealing. He maintains that the motorbike has not been retrieved or returned to the complainant. 10. At the end of the Prosecution’s case, the Court found that a prima facie case had been established against accused and therefore called upon accused to open his defence. Accused Person’s Defence 11. Accused indicated that he did not steal the said motorbike. Rather, he had money issues so he had discussions with the complainant and complainant gave the motorbike to him to use as collateral for a loan. He gave the motorbike to Mumuni Yussif Addul aka Oveya and took GHS600.00 with anticipation to pay it back in one week and pick the motorbike. However, on 17th July, 2022 when he was on his way from Kumasi to Wulga, complainant called and he was arrested at Datoyili. Later he was arraigned before this court. ANALYSIS OF FACTS AND LAW 12. In the case, Brobbey & Ors. v The Republic [1982-83] GLR 608, the essential elements to be proved by prosecution in respect of the charge of stealing were stated as (a) the person charged must have appropriated the thing allegedly stolen, (b) the appropriation must be dishonest and (c) the person charged must not be the owner of the thing allegedly stolen. Therefore, a person could not be guilty of stealing unless he was proved to have appropriated the thing in the first place. In explaining what dishonesty in stealing is, the court in Anang v The Republic [1984-86] 1 GLR 458 stated that it ‘…connoted moral obloquy. … there had to be an act of the accused of such a nature as to cast a slur on the character revealing him as a person lacking in - 5 - integrity or as plainly dishonest person …’. In Ampah & Anor. v The Republic [1976] 1 GLR 403, the court puts it simply as, …(b) where the appropriation was made without a claim of right and without the consent of the owner…’. 13. In the instant case, prosecution contends that the motorbike was taking without the consent of the complainant. Moreso, the accused even if had used the motorbike for a soft loan of GH600.00 to be paid in one week, it was over three weeks and that accused had not paid or shown any intention of going for the motorbike. To prosecution, accused had sold the motorbike to Mumuni but Mumuni on realizing the motorbike was stolen, he has returned it to accused and taken his money. Prosecution also maintains that the motorbike has not been retrieved or returned to the complainant. 14. On the part of the accused, he claims that he did not steal the motorbike. He was to repay the loan and pick up the motorbike. He indicated that he was surprised that complainant reported that he had stolen the motorbike when she was the one who gave it out to him. He added that he even gave out his location and was arrested. From the evidence, it was through him that Mumuni (aka Oveya) was also arrested. Under cross-examination, accused stated that the motorbike presently is with the complainant and she even used it to bring food to him whiles in custody. He maintained that the allegation or charge against him is unfounded. 15. On the totality of the evidence, I find that the prosecution has not led sufficient evidence in proof beyond reasonable doubt its case against the accused. From the above, prosecution claims it was not able to call the other witnesses in proof of its case. In fact, Mumuni who claims the accused sold the motorbike to him did not sign his witness statement or attend court. Prosecution indicated it had granted him police enquiry bail, but was unable to get him to testify against the accused. I find that - 6 - unconvincing. Further, prosecution was not able to get the complainant or the co- tenant to testify. From the facts as given by the prosecution, it is the co-tenant who saw accused taking the motorbike at mid-night. His/her name is unknow to this court. Accused, however, puts the time at about 3:30pm when he rode with complainant to Aboabo and when complainant had alighted, he then took the motorbike to Yendi. Lastly, whiles prosecution maintains that the motorbike has not been retrieved or returned to the complainant, accused states that the motorbike is presently being used by the complainant and that she used it to bring food to him whiles in custody. Question, so when Mumuni was arrested and granted police enquiry bail, the police did not take steps to locate the motorbike? Assuming prosecution’s argument holds true, when Mumuni indicated that he had returned the motorbike to accused and taken his money, prosecution did not take any other step? The only thing that prosecution was to emphasize was that accused took the motorbike without complainant’s consent. Yet, it was unable to call any of the witnesses to establish this, but relied on the statement that accused took it. Well, accused maintains he took it and with consent of complainant he went for a soft loan from Mumuni. This, therefore, put doubts in prosecution’s evidence that accused took the motorbike without complainant’s consent. 16. In a criminal trial, the law is that what the accused has to do is to raise real doubt in the case of the prosecution, see Miller v Minister Of Pensions (supra) and Manu v The Republic [2012] DLSC 3118. Also in the case, John Logan v The Republic [2007] DLSC 2442 where Aninakwa JSC cited Republic v Ansere 3 WALR 385 at 387 stated as follows: - 7 - “... if the defence put up by the Appellants at the trial was more consistent with innocence than with guilt, the trial court ought to give the benefit of the doubt created by the Appellants and acquit and discharge them.” 17. In effect, I find that prosecution was unable to lead sufficient evidence in proof beyond reasonable doubt the offence of stealing against the accused. I, hereby, acquit and discharge him, forthwith. H/W D. ANNAN ESQ. [MAGISTRATE] INSP. A. R. DAWUD BEING LED BY SUPT. RICHARD BOATEY FOR THE REPUBLIC ACCUSED APPEARED IN PERSON References: 1. Article 19(2) of the 1992 Constitution 2. ss. 124(1) and 125 of the Criminal Offences Act, 1960 (Act 29) 3. ss. 11(2), 13(1), 15 and 22of Evidence Act, 1975 (NRCD 323) 4. Gligah Atiso v The Republic [2010] SCGLR 870 at 879 5. Miller v Minister Of Pensions [1947] 2 ALL ER 372 at 374 6. COP v Isaac Antwi [1961] GLR 408 7. Brobbey & Ors v The Republic [1982-83] GLR 608 8. Anang v The Republic [1984-86] 1 GLR 458 9. Ampah & Anor. v The Republic [1976] 1 GLR 403 10. Manu v The Republic [2012] DLSC 3118 - 8 - 11. John Logan v The Republic [2007] DLSC 2442 12. Republic v Ansere 3 WALR 385 at 387 - 9 -