The Republic Vrs Sumaya & 2 Others [2023] GHADC 497 (4 March 2023)

IN THE DISTRICT COURT 2, TAMALE HELD ON TUESDAY 14TH MARCH, 2023 BEFORE HIS WORSHIP D. ANNAN ESQ. SUIT NO. B7/22/22 THE REPUBLIC V 1. ADAM SUMAYA 2. YUSSIF MAHAMUD 3. ABDUL RAHIM SALIFU JUDGMENT INTRODUCTION 1. On 9th June, 2022 A1 (18yrs) and A2 (15yrs) were arraigned before this court on the charges of conspiracy to steal and stealing, contrary to sections 23(1) and 124(1) of Act 29. The particulars of the offences stated that A1 and A2 did agree to act together with a common purpose to commit crime, to wit, ‘stealing’ and stealing five (5) cattle valued at GHS15,000.00 belonging to one Wahab Abdullah. On the same charge sheet, A3 (30yrs) was charged with dishonestly receiving the five (5) cattle, contrary to section 146 of Act 29. - 1 - 2. A1 and A2 pleaded guilty and were convicted on their own plea and punished. However, A3 pleaded not guilty. This judgment regards the charge against A3. FACTS OF THE CASE 3. The facts as given by the prosecution are that on 26th May, 2022 the complainant, Wahab Abdullah, sent his seven (7) cattle to the bush near his house for grazing but later realized that five (5) cannot be traced. On 2nd June, 2022 complainant then received information that two Fulani men had been arrested at Gbanyamli, a suburb of Tamale for stealing two (2) sheep and five (5) cattle and had sold same to A3. On receipt of this information, complainant lodged a complaint at the police station and the police went to Gbanyamli and arrested A1 and A2. During interrogation, A1 and A2 admitted to the offence and led the police to the house of A3 at Zelendo, a village under the Karaga District, as the one who bought complainant’s cattle at GHS15,000.00. A3 was arrested and during interrogation, he admitted to having bought the stolen sheep from A1 and A2 for his butchery work but denied that of the cattle. They were later arraigned before this court. DEFINITION OF THE OFFENCE 4. Section 146 of Act 29 provides that, “A person who dishonestly receives any property which he knows to have been obtained or appropriated by any offence punishable under this Chapter shall be liable to the same punishment as if he had committed that offence.” - 2 - 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. 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). Significantly, 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. This doubt must be real and not fanciful, see the cases of Miller v Minister Of Pensions [1947] 2 ALL ER 372 at 374, COP v Isaac Antwi [1961] GLR 408 and Gligah & Atiso v The Republic [2010] SCGLR 870. METHODOLOGY 6. With A3 pleading not guilty to the charge of dishonestly receiving, it is settled law that the prosecution must prove the whole of its case against A3, beyond reasonable doubt. 7. Prosecution filed an amended facts sheet, without leave of the court. As earlier mentioned, A1 and A2 pleaded guilty and were convicted and punished, based on the charges and facts given. Hence, 5th July, 2022 this court struck out the amended facts filed on 1st July, 2022 since same was without leave and may prejudice the case. 8. The prosecution in support of its case filed four (4) witness statements but called three (3) witnesses: Yussif Mahamud (A2/PW1), Wahab Abdullah (Complainant/PW2) and D/Cpl. Hassan Samiratu (PW3). Prosecution also tendered in evidence the following exhibits: - 3 - i. Exhibit A – Investigation cautioned statement of A1 dated 7/06/22 ii. Exhibit B - Investigation cautioned statement of A2 dated 7/06/22 iii. Exhibit C - Investigation cautioned statement of A3 dated 7/06/22 iv. Exhibit D – Charge Statement of A1 dated 3/06/22 v. Exhibit E - Charge Statement of A2 dated 3/06/22 vi. Exhibit F - Charge Statement of A3 dated 8/06/22 vii. Exhibits G, G1 and G2 – MTN call records for A1, A2 and A3, respectively. The Prosecution’s Case 9. The evidence of PW1/A2 is that whenever he and A1 steal animals, they sell it to A3. In this instance, he admitted to stealing complainant’s five cattle in Gbanyamli and contacted A3 via MTN number 0544039287 to find out if A3 was interested to buy. This was on 26th May, 2022. According to him, A3 later called him on 0554473565 and informed them (A1 and A2) to send the cattle to Nanton where he (A3) would meet them. He stated that A3 met them in the bush to see the cattle and left with his motorbike. Later, A3 came with a motorking ridden by someone who took the cattle away. He added that they did not discuss the price of the cattle, but A3 gave them GHS100.00 to buy food because they complained they were hungry. While eating in town at Nanton, A3 called A1 to discuss the price, which was concluded at GHS4,000.00. Upon agreement, A3 asked A1 and A2 to meet him on the Zelendo road, where A3 gave them GHS1,400.00. A2 added that A3 promised to pay the outstanding GHS2,500.00 later. However, when A1 called A3, three days later, A3 indicated that he sold the cattle but did not make any profit. 10. The testimony of PW2, Wahab Abdullah, is that on 26th May, 2022 at about 7:00am he sent his seven (7) cattle for grazing, two (2) were tied and five (5) were left to roam. Later, he realised that the five (5) cattle were missing. He tried looking for them but - 4 - could not trace them. According to him, he received information that A1 and A2 had been arrested by the community for stealing two (2) sheep. He rushed to the scene and luckily A1 and A2 disclosed to him that they stole the five (5) cattle and sold it to A3. He then reported that matter to the police and accused persons were arrested. 11. PW3, D/Cpl. Hassan Samiratu, averred that she investigated the matter and charged the accused persons with the said offence. She also tendered in evidence the aforementioned exhibits. 12. At the end of the prosecution’s case, the court found that a prima facie case had been established against accused person (A3) and therefore called upon A3 to open his defence. Accused’s Defence 13. A3 testified to the effect that he had not taken anything of the complainant. According to him, A1 and A2 sold the two (2) sheep to him at Tampion Market. He stated that when A1 and A2 returned to their place of abode, A2 was then arrested. He indicated that it was A2 who mentioned his name regarding the sheep when A2 was sent to the chief palace. So he made to return the two sheep. He added that while at the palace A2 stated he gave some cattle to him. According to A3, he denied having received or purchased any cattle. Later, the police arrested him concerning this matter. 14. He tendered in evidence Exhibit 1, the complaint of PW2. He also called Iddrisu Mohammed (DW1) as a witness. 15. Iddrisu Mohammed (DW1) is the chief to whom the matter was referred. He stated that A2 was brought to his palace upon being arrested. He ensured that the two (2) - 5 - sheep were retrieved from A3 and returned to the owners. Regarding the cattle, he indicated that it was mentioned. According to him, while at the palace one of the owners of the sheep received a call that A1 (who was at Saatingli) had been arrested by the community and being beaten he (A1) alleged that they stole cattle and gave to A3. He added that A2 who was by then at his palace said, “it was because of the beating that he said he stole some cattle earlier, that they had not stolen any cattle.” He (DW1) then remarked that he was dealing with the sheep issue, but not the cattle issue. ANALYSIS OF FACTS AND LAW 16. To successfully convict on the charge of dishonestly receiving, the court in Gariba v The State [1963] 2 GLR 54 stated that the prosecution must prove: (1) that goods alleged to have been stolen were in fact stolen, (2) that the accused knew they were stolen, and (3) nevertheless, assisted in the disposal of the goods otherwise than with a purpose to restore them to the owners. See also the case of R v Bayford [1973] 2 GLR 421. 17. Prosecution’s case was totally hinged on the confession statements of A1 and A2 that they stole the sheep and cattle and sold same to A3. If I may remind myself, this case is about the cattle only. From the evidence, prosecution argued that A1 and A2 have been dealing with A3 regarding stolen animals. Prosecution per Exhibit G series indicated that accused persons communicated among themselves prior to their arrest. From Exhibit G series, there are call logs between A1 and A3 on 29/05/22, 1/06/22 and 2/06/22. Particularly for A2, there are call logs with A3 on 26/05/22 at 16:36, 17:23, 17:24 and 18:08. A2/PW1 added that after they took the cattle from Gbanyamli and contacted A3, A3 met them in the bush at Nanton (near Gbanyamli) to look at the cattle. Later, A3 brought a motorking ridden by someone to pick up the cattle. Prosecution contended that A3 then gave A1 and A2 GHS100.00 for food. The price - 6 - of the cattle was later concluded at GHS4,000.00 of which A3 paid GHS1,400.00. The remaining GHS2,500.00 was to be paid, but A3 informed A1 and A2 that he (A3) had sold the cattle but made no profit. 18. A3 contended that he only dealt with the A1 and A2 regarding the sheep, he did not buy any cattle. A3 stated that at the palace it was A2 who mentioned his name that the cattle were given to him. He denied having received any cattle but admitted to that of the sheep. 19. From the evidence, I find that A3 contradicted his defence when he called DW1 to the stands. According to DW1, A2 was at his palace when one of the owners of the sheep received a call that A1 (who was by then at Saatingli) had been arrested by the said community and being beaten he (A1) alleged that they (A1 and A2) stole some cattle and gave it to A3. DW1 added that A2 then said, “it was because of the beating that he said he stole some cattle earlier, that they had not stolen any cattle.” The question then is, how is it that A3 claims A2 while at the chief palace mentioned his name concerning the cattle but DW1 says A2 said otherwise? Quite interesting, A2 is in this court saying that he and A1 sold the stolen cattle to A3. By law, A3 is only to raise a doubt in the case of the prosecution for him to succeed. This doubt, however, must be real and not fanciful, see Miller v Minister Of Pensions (supra) and COP v Isaac Antwi (supra). I find that the defence put up by A3 as fanciful and inconsistent, see Gligah & Atiso v The Republic (supra). 20. On the totality of the evidence, I find that A1 and A2 stole the cattle, A3 knew that the cattle were stolen and bought same. He also disposed of the said cattle. In effect, I find that the prosecution has led sufficient evidence in proof that A3 dishonestly received - 7 - the cattle, see Gariba v The State (supra). A3 is as a result convicted on the offence of dishonestly receiving. PRE-SENTENCING HEARING 21. Having heard counsel for A3 and prosecution on mitigation, see page 155 of the Record of Proceedings. I note that the accused is a first time offender. A3 is hereby fined 350p.u. and in default shall serve a jail term of 9 months. 22. I am, however, unable to make a determination as to compensation since PW3 testified that the value of the stolen cattle was GH1,500.00 and that the GHS15,000.00 stated in the charge sheet was a typing error. A1 had been convicted and fined 250p.u. and was ordered to pay the complainant GHS6,000.00 as compensation, which has been paid. A2 was cautioned and discharged by the Juvenile Court. I, therefore, do not have a basis for assessing a compensation directing A3 to pay to the complainant herein. CONCLUSION 23. A3, Abdul Rahim Salifu, is fined 350p.u. and in default shall serve a jail them of nine (9) months. H/W D. ANNAN ESQ. [MAGISTRATE] INSP. A. R. DAWUD FOR THE REPUBLIC ISAAC BORIDOR ESQ. FOR A3 - 8 - References: 1. ss. 11(2), 13(1), 15 and 22 of Evidence Act, 1975 (NRCD 323) 2. ss. 23(1), 124(1) and 146 of the Criminal Offences Act 1960 (Act 29) 3. Miller v Minister Of Pensions [1947] 2 ALL ER 372 at 374 4. COP v Isaac Antwi [1961] GLR 408 5. Gligah & Atiso v The Republic [2010] SCGLR 870 6. Gariba v The State [1963] 2 GLR 54 7. R v Bayford [1973] 2 GLR 421 - 9 -