Republic Vrs Amadi Johnson [2023] GHACC 538 (19 June 2023)

IN THE CIRCUIT COURT HELD AT ASHAIMAN ON MONDAY, THE 19TH DAY OF JUNE, 2023 BEFORE HIS HONOUR SIMON NGAGA, CIRCUIT COURT JUDGE. ======================================================== SUIT NO. CC 310/2022

THE REPUBLIC

VRS

AMADI JOHNSON ==========================================================

JUDGEMENT ========================================================= The Accused Person was arraigned before this Court for the offence of Attempted to Commit Crime:- to wit child stealing. Contrary to section 93 of the Criminal offences Act, of 29/60, Act 29. The Accused pleaded not guilty to the charge. The Facts of the case as presented by the prosecution are that: The Complainant Melody Azanu aged 35 is a trader staying at Ashaiman Taboo-line. Accused person Amadi Johnson is a Labourer and living at Katamansto, Accra. Complainant has a daughter whose name is Belinda Agbevi aged three (3) years old. On 11/08/2022 at about 14 hours, the complainant’s child was playing at the neighborhood. A witness in the case suddenly heard the child crying. When she came out, she saw the accused person who was holding the child’s hand and was moving her away, amidst the child crying. She raised alarm which attracted many people to the scene. The accused was therefore arrested severely beaten, and later handed him over to the Ashaiman police. On interrogation, the accused stated he and two others came from Tudu, Accra to Ashaiman on board a certain Taxi-cab which registration number is unknown to him to steal a child for money rituals but his accomplices escaped during his arrest. The Prosecution would in the circumstances assume the burden to prove the guilt of the accused person beyond

reasonable doubt. To prove the guilty of the accused person, prosecution called four (4) witnesses One Melody Azanu testified as PW1. She avers that she lives at Taboo line, Ashaiman and victim, Belinda Agbevi is her daughter. She said that Mary Agbovo is her neigbour and a family friend who the victim used to visit. On the 11th of August, 2022 around 1.00pm the victim left the house to visit her neighbor. Some ten minutes later she heard her shouting for help. PW1 rushed out only to see the accused holding the victim on her arm PW1 neigbour told her that the accused wanted to steal the victim. According to PW1, there were a lot of people around who took the accused to the police station. Mary Agbozo testified as PW2. She averred that PW1 and the victim are her neighbours. On the 11th August, 2022 around 1:30 pm, she went to visit her sister Daavi who operates Public toilet in the area. According to her, she and the sister were standing in the open when accused and two other people on a motor bike came to pass by where they were standing and the accused who was one of the Pillion riders came down to the toilet facility ostensibly to respond to nature’s call. The accused told her sister that he had no money on him, as a result, she refused him of usage of the toilet. In less than two minutes when the accused left the toilet facility she overheard of a child crying for help to

wit: ‚Leave me, Leave me, Mama, Mama‛ when she rushed to the place she saw the accused person holding the victims hand while the victim was shouting for help PW2 averred that she and her sister rushed on the accused and shouted for help other people came over and accused was taken to the police station. D/Inspector Samuel Antwi testified as PW3. According to him, on the 11th August, 2022 at about 4 pm he was on duty at the Police station where some people brought the accused person to the station that he had wanted to steal Belinda Agbevi the victim’s mother made a complaint to the police and the case was referred to him for investigation. According to PW3 he took an investigative cautioned statement from the accused person which he tendered in evidence as Exhibit ‘A’ and was signed by the accused in the presence of an independent witness. The accused stated in Exhibit ‘A’ that he is a Nigerian-and that he met a certain man at Accra Tudu to help the accused for Money ritual. The ‚jujuman‛ asked the accused to bring a child for the rituals. It was when he attempted to steal the victim for that purpose that he was arrested by people around who suspected him to severe beating before sending him to the police station. According to PW3, the accused refused to take the police to the said Jujuman at Accra Tudu. The victim Belinda Agbevi testified as PW4. She is about four (4) years.

So she testified in camera without taken an oath as stated by the Evidence Act, of 1975 (NRCD 323). She testified in Ewe language and same was interpreted into English language. According to pw4 she is a pupil in nursery one. On that faithful day, she was going to Daavi’s place. On her way she met the accused who held her hand and told her that she should let them go According to the victim, she started shouting when Daavi came out the accused started to run away and he was arrested by people around and they beat him up before taking him to the Police station. After evaluation the evidence before me, the prosecution was able to establish a prima facie case against the accused. So accused was called upon to open his defence.

EVIDENCE IN CHIEF OF THE ACCUSED After the close of the prosecution case, the accused opened his defence. He testified under oath and told the court that he is called Amadi Joshua and that he is a Nigerian residing in Ghana at Community four Tema. He avers that he is a driver’s mate. He never knew the PW1 until he was arrested. According to the accused, on the 4th of August, 2022 he was going to buy drugs from a drugstore. As he was going he passed by a child and the child greeted him and asked him to buy her Yoghurt. When the accused told the child that he had no money on him, she started crying. When PW1 heard of the crying of the child, she came out from the house and started shouting ‚thief‛, ‚thief‛. Instead of the PW1 to ask him what happened she accused him of trying to steal the child. People came around and started beating him and took her to the police station. The accused did not call any witness.

ANALYSIS OF THE OFFENCE The accused person was charged for attempted to steal a child contrary to section 93 of the criminal and other offences Act, 1960 (Act 29). To best appreciate the offence under which the accused person is charged, I refer you to section 18 of Act 29/60 which defines attempt to commit criminal offence as follows: 1. A person who attempts to commit a criminal offence shall not be acquitted on the ground that the criminal offence could not be committed according to the intent Subsection(2) also states as follows ‚ A person who attempts to commit a criminal offence commits a criminal offence and except as otherwise expressly, provided in this Act, is liable to be convicted and pursued as if the criminal offence has been completed‛ Section 93 of Act 29/60 creates the offence of child-stealing as follows. ‚ A person who steals a person under fourteen years of age, whether with or without consent, commits a second degree felony‛ Section 94 of the Act further explains child stealing as follows: (1) A person steals another person if the first mentioned person unlawful takes or detains the other person, with intent to deprive the other person, person of the possession or control to which any person is entitled or with intent to steal anything on or about the body of or with intent to cause harm, to , that other person. (2) The purpose of subsection (1) is not

necessary to prove that the person stolen had been taken from the possession, care or charge of a person if it is shown that some person other than the accused person was entitled to the control or possession of the person stolen. The elements of child-stealing are that an accused person intended to deprive the control care, custody or possession of a child below 14 years for the any person having control care, custody or possession other than the accused person or the accused person has the intention of stealing anything or the child or about the body of the child with intent to care cause harm on the child. Indeed if any of the four (4) elements is proved to the satisfaction of the court beyond reasonable doubt the court will be bound to convict the accused person unless the accused is able to put forward some defence which can cast a reasonable doubt on the case of the prosecution. 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 charge that the accused would be called upon to give his side of the story. See GILGAH AND ANOTHER VRS THE REPUBLIC (2010) SCGLR 870 This therefore means that the onus is on the prosecution to prove the guilt of the accused. The accused is not to prove his innocence. The accused should not even show up his hand

until the need arises. SEE: ATSU VRS THE REPUBLIC (1968) GLR 176 CA In the case before me, the contention of the prosecution is that the accused attempted to steal the four year old girl. PW1 in her evidence informed the Court that her four years daughter left the house to visit their neighbor who is PW2. Just before she left, she heard her crying, and only to get out to see the accused holding her hand in an attempt to take the girl away. The victim was shouting ‚leave me, leave me mama‛ PW1 went out from the house and shouted at the accused which led other people to come to the scene to arrest the accused. This position of the PW1 was confirmed by PW2 and PW4. In their respective evidence in chief before the court. Interestingly, the question that the accused asked the PW1 during cross examination is this. Q I suggest to you that on that day, I went to the place to buy medicine to treat my hernia. A That is not true. This question was the same question the accused asked PW2 and she also denied the claim of the accused person. PW3 who is the Police investigator tendered Exhibit ‘A’ which is the investigation cautioned statement Per this evidence, the accused contacted a jujuman at Tudu-Accra for money rituals. This jujuman told the accused to bring a child for that purpose which made the accused to come to Ashaiman to steal the PW4. When the accused was arrested he never took

the police to the alleged jujuman. It is very interesting to note that the accused failed to cross-examine the PW3 on these serous incriminating pieces of evidence. During the cross examination of the accused, this is what ensured. Q You told the court that you live in Community four (4) Tema. Is that correct. A Yes, Q In your caution statement to the Police, you provided your address as Kantamanto, Accra. A That was where I stayed when I came to Accra. Q How long have you lived in Ghana before you were arrested. A I came to Ghana in May 2020. Q In exhibit ‘A’ you mentioned 10th July, 2022 when you arrived in Ghana. A That was a mistake. I told the investigator that I came to Ghana on 10th JULY, 2022. Q By what means did you get to the crime scene. A I went there on foot. Q I put it to you that you were with two others who are on the run. A That is not so. Q In your evidence, you said you were a drivers mate A Yes. Q Tell the court the make up of the car and its registration number. A I do not know the brand of the car and also I don’t know the registration number of the car. Q In exhibit ‚A‛ you told the police that you are a labourer, A I never said that to the Police. I told the police that I was a drivers mate. Q What is the name of the drug you were going to buy to treat the hernia. A I don’t know the name Flowing from the above cross-examination of the accused, it is very

clear that his evidence is different from his answers under cross-examination. Since the inconsistences are not minor and also cut across his answers under cross examination the accused can not benefit under the principle in the case of EFFISAH VRS ANSAH (2005/06) SCGLR Also, the accused failed to cross-examine the PW3, the police investigator when he tendered in exhibit ‚A‛ which is the deed of the accused, that the accused contacted a jujuman at Tudu, Accra who asked him to look for a child for ritual purposes, is fatal to the defence of the accused. SEE: DANIELLI CONSTRUCTION LIMITED VRS MABEY AND JOHNSON LIMITED (2007/08) 1 SCGLR 60 @ 65 Also, the evidence of the victim is to the effect that the accused held her and asked her to go with him which her shouts drew the attention of PW1 and PW2 is also revealing PW4, the victim who gave her age as four (4) years, gave unsworn evidence. The Court relied on section 59 of the evidence Act, (NRCD 323) OF 1975 AND THE Oaths Act, (NRCD 6) of 1979 and admitted PW4 evidence. The offence under which the accused is charged is attempt to child-stealing. The accused couldn’t raise any doubt in the prosecution case that he did not attempt to steal the child It is therefore my position that the prosecution has been able to prove the offence of attempt to steal a child contrary TO SECTIONS 18 AND 93 OF Act 29/60 beyond reasonable doubt. The accused is therefore convicted on the charge. MITIGATION: The accused prays the court to deal/liniently with him SENTENCING: In Sentencing the accused I have taken into considerations that he is a first offender and also he is 21 years old. I do not want the accused to spend all his productive years in jail. He is therefore sentenced to five years imprisonment. (SGD) H/H SIMON GAGA

CIRCUIT COURT JUDGE PROSECUTION: C/INSPECTOR SAMUEL APEWERH 8