Republic Vrs Mohammed Musah [2023] GHACC 539 (1 February 2023)

IN THE CIRCUIT COURT OF JUSTICE, SITTING AT ASHAIMAN ON WEDNESDAY THE 1ST DAY OF FEBRUARY, 2023, BEFORE HIS HONOUR

SIMON GAGA CC NO. 235/22

THE REPUBLIC VRS.

MOHAMMED MUSAH ________________ ____

JUDGMENT ______________ The Accused person was charged with the following offences; 1. Conspiracy to commit crime namely; Robbery, Contrary to Sections 23 and 149 of the Criminal Offences Act of 1960, Act 29.

2. Use of offensive weapon, Contrary to Section 70 of Act 29/60.

3. Causing Harm, Contrary to Section 69 of Act 29/60.

4. Robbery, Contrary to Section 149 of Act 29/60. The Accused pleaded Not Guilty to all the four charges. The facts of the case as presented by the Prosecution are that, the Complainant in this case is Dennis Acheampong, aged 28 years, is an Agent of DSTV, Accra and lives at Kpone, whereas the Accused person, Mohammed Musah, aged 21 years, unemployed and has no permanent place of abode. On Friday, 27th May, 2022 at about 11:00pm, the Complainant who was returning from Accra alighted at the Ashaiman trotro terminal in an anticipating of boarding a vehicle to Kpone, but due to the late hour, there was no moving car. Complainant who was then stranded decided to look for a place to rest, unfortunately his wallet was stolen by an unknown person. The Accused person 1 | P a g e who was in the company of his accomplice by name Cash Money, now at large, approached the Complainant and promised to get him a place to rest. The Accused person and accomplice, Cash Money, then lured the Complainant to the Ashaiman main market area where the Accused person pulled out a pair of scissor and stabbed Complainant on the waist and forcibly took away his Iphone 11 pro max valued GH¢3,500.00. Cash Money managed to escape with the phone but the Accused person was arrested and later handed over to the Ashaiman Police.

THE CASE OF THE PROSECUTION The Prosecution called two (2) witnesses to proof his case. One Dennis Kwadwo Acheampong testified as PW1. In his evidence in chief, PW1 averred that on the 27th May, 2022 at about 11pm he was returning from Accra to Kpone after close of work. When he got to Ashaiman Main lorry station, he could not get a vehicle to Kpone due to the late hour. According to him, he sat on a bench at the lorry station and he fell asleep. When he woke up, he realized that someone has stolen his wallet. By then, the Accused person and another person, now at large, who were around told him that they could help him get his stolen wallet. They then took him to a place to rest and pass the rest of the night. PW1 averred that as soon as he fell asleep, the Accused person and his accomplice whom the Accused person later named as ‘Cash Money’ took his Iphone from him. In the process of taking the phone, PW1 woke up and struggled with them but ‘Cash Money’ ran away with the phone, PW1 said he managed to hold the Accused person and caused his arrest. In the process, the Accused person used a pair of scissors to harm him but he managed to take the Accused person to the Police station. D/PW/Sgt. Diana Oduro testified as PW2. In her evidence, she told the Court that she is a Policewoman at the Ashaiman District Police Headquarters. She averred that on 28th March, 2022 a case of

robbery was referred to her which involved the Accused person for investigations. She cautioned the Accused 2 | P a g e person and obtained Investigation Caution Statement from the Accused, which she tendered in evidence as Exhibit A, the Charge Caution Statement of the Accused person as Exhibit ‘B’. PW2 averred that it came out after her investigation that on the 27th May, 2022 at about 11pm the Accused person and one at large conspired to steal. They took advantage of the PW1 being stranded at the Ashaiman main lorry station forcibly took away PW1’s mobile phone valued GH¢3,500.00 and in the process harmed PW1 with a pair of scissors. According to PW2, after obtaining statement from the PW1, he issued him with a Police Medical form to seek for medical treatment. However, PW2 said PW1 could not return the medical form on the grounds that he could not pay for the endorsement of the medical form at the hospital. After the close of the Prosecution’s case, I evaluated the evidence before me and I came to the conclusion that the Prosecution was able to establish a prima facie case against the Accused person. The Accused person was therefore ordered to open his defence.

THE CASE OF THE ACCUSED The Accused person in his evidence in chief averred that he is a Fashion Designer at Ashaiman and according to the Accused, at a shop where he works, they run shift, thus day and night. On the day of the incident, he was on night shift. He happened to pass at the Ashaiman main lorry park where a certain young man, who happened to be PW1, asked him in Twi language if he had seen someone pass by his (PW1) side. Accused said he replied that he did not understand the Twi language. Then, that person pulled him down and started beating him up but he insisted not seeing anybody around. PW1 then took him to the Police station. By then, he was holding a measuring tape. Accused said that he did not harm anybody with any weapon and also he was moving alone. He never took any mobile phone from the PW1 and he did not know anybody by the name ‘Cash Money’. Accused did not call any witness.

ISSUES 3 | P a g e The issues that emanated from the evidence of both the Prosecution and the Accused to determine the trial are as follows, 1. Whether or not the Accused can be charged for conspiracy.

2. Whether or not the Accused used any offensive weapon in committing any crime.

3. Whether or not the Accused caused any harm on the Complainant (PW1).

4. Whether or not the Accused committed any act of robbery.

ANALYSIS AND EVALUATION OF THE CHARGES It is trite that in criminal trial the Prosecution has to prove the essential ingredients of the offence with what the Accused has been charged beyond reasonable doubt. The burden of proof remains on the Prosecution it is after a prima facie case has been established that is, strong evidence sufficient to link the Accused to the commission of the offence that the Accused would be called upon to give his side of the story. SEE: GLIGAH & ANOR v. THE REPUBLIC (2010) SCGLR 870 This therefore means that the onus is on the Prosecution to prove the guilt of the Accused person. The Accused person is not to prove his innocence. The Accused should not show up his land until the need arises. To best appreciate the judgment, I am going to discuss the issues seriatim.

ISSUE ONE On issue one, the Accused is charged with conspiracy. Section 23(1) of the Criminal Offences Act defines conspiracy as follows, “where two or more persons agree to act together with a common purpose for committing or abetting a criminal offence, whether with or without a previous consent or deliberation , each of them commits a conspiracy to commit or abet the criminal offence.” For a charge of conspiracy to succeed under Section 23(1) of Act 29/60, there must be evidence that the Accused persons are two or more persons who agreed or acted together with a common purpose to commit the offence. 4 | P a g e The offence of conspiracy could not therefore be maintained against one person only since it is two or more persons who have to agree or act together with a common purpose in committing or abetting a crime with or without previous consent. However, it is possible to charge a known person together with others at large for conspiracy. SEE: 1. REPUBLIC v. MAIKANKAN & OTHERS (1972) 2GLR 502 2. DOE v. THE REPUBLIC (1999-2000) 2GLR 32 From the evidence adduced by the Prosecution, there is only one Accused person. This therefore by simple logic will tell you that the Accused person could not have acted together with another person who is not known on the charge sheet to have committed robbery. It is therefore my considered view that the Prosecution fails to prove the charge of conspiracy to wit robbery against the Accused person as in Count One.

ISSUE TWO On issue two, did the Accused person use offensive weapon: Section 70 of Act 29/60 defines the use of offensive weapon as follows; “A person who intentionally and unlawfully causes harm to any person by the use of an offensive weapon commits a first degree felony.” Any instrument which is used to inflict bodily harm constitutes offensive weapon. SEE: REPUBLIC v. AKYAMPONG (1967) GLR 695 In my view, the pair of scissors that the Accused is alleged to have used on PW1 can be termed as an offensive weapon. The PW1 in his evidence before the Court stated that when the Accused and another person took away his mobile phone, he held the Accused and the Accused used a pair of scissors and harmed him. The Accused in his evidence also stated that at the time of the arrest, he was holding a measuring tape. That he never caused any harm on the PW1. 5 | P a g e Since the onus of proving the guilt of the Accused is incumbent upon the Prosecution, the Prosecution should have exhibited the said pair of scissors in Court. It is interesting to note that throughout the trial, the Prosecution failed to produce the alleged pair of scissors that the Accused used in inflicting harm on the body of the PW1. I am of the view that the Accused did not use any offensive weapon to cause harm on PW1.

ISSUE THREE The Accused is charged with causing harm on the PW1. Section 69 of Act 29/60 defines causing harm as follows; “A person who intentionally and unlawfully causes harm to any other person commits a second degree felony.” The import of Section 69 is that whoever causes harm intentionally and without any justification or extenuating circumstances shall be guilty of the offence. From the evidence adduced by the PW1, the Accused used a pair of scissors and inflicted harm on him. PW2, who is also the Police Investigator, corroborated the evidence of the PW1. He went further to add that when PW1 reported the incident to the Police he issued a Police Medical form to PW1 to attend hospital. According to PW2, PW1 failed to return the endorsed Police form to the Police because PW1 had no money to pay for it. It should be noted that the essence of the issuance of the Police Medical form is for the doctor to confirm as to whether the person he is attending to indeed got injured. It is therefore my considered opinion that the only means by which the Court will accept the evidence of the Prosecution is for the Prosecution to provide medical report on the injury. It is trite law that if the Prosecution fails to produce a material evidence, which is the medical report, it enures to the benefit of the Accused person. 6 | P a g e SEE: KWAKU FRIMPONG @ IBOMAN v. THE REPUBLIC (2012) 2SCGLR 279 Since Prosecution failed to provide any medical report to indicate that indeed PW1 got injured, the charge of causing harm cannot be put at the doorstep of the Accused person.

ISSUE FOUR On issue four, the Accused is charged with Robbery. Section 149 of Act 29/60 states as follows; “A person who commits robbery commits a first degree felony.” However, Section 150 of Act 29/60 defines robbery as follows; “A person who steals a thing commits robbery, a) If, in and for the purpose of stealing the thing, that person uses force or causes harm to any other person, or b) If that person uses threat or criminal assault or harm to any other person with intent to prevent or overcome the resistance of the other person to the stealing of the thing.” To secure a conviction of a person charged with robbery, the Prosecution must prove beyond reasonable doubt that; (a) (b) (c) The Accused person has stolen something from the victim of the robbery of which he is not the owner. For the purpose of stealing, the Accused person used force or caused harm to any person. That this fear of violence must either be of personal violence to the person robbed or to any member of his household or family in a restrictive sense. (d) The thing stolen must be in the presence of the person threatened. SEE: KWAKU FRIMPONG @ IBOMAN v. THE REPUBLIC (SUPRA) 7 | P a g e PW1 in his evidence averred that the Accused person together with his friend called ‚Cash Money‛ who is on the run forcibly took his mobile phone from him valued GH¢3,500.00 which ‚Cash Money‛ ran away with. The Accused in

his evidence before the Court, denied moving with one ‚Cash Money‛ and that he never took any mobile phone from PW1. Prosecution could not lead any evidence for the recovery of the phone and more so, for the arrest of the said ‚Cash Money‛. Since Prosecution failed to prove the charges of using offensive weapons and causing harm, which are major ingredients of robbery, the charge of robbery against the Accused is not maintainable. At this point, if the mobile phone was found on the Accused, he could only have been sentenced for stealing, which is not the case under this circumstance. CONCLUSION; In conclusion, therefore, the Prosecution failed to prove the charges of Conspiracy, Using Offensive Weapons, Causing Harm and Robbery beyond reasonable doubt against the Accused person. The Accused person is therefore accordingly acquitted and discharged. (SGD) (H/H) SIMON GAGA (CIRCUIT COURT JUDGE) CC: PROSECUTOR – C/INSP. SAMUEL APERWEH. ACCUSED PERSON. 8 | P a g e OAAQ/. 9 | P a g e