Republic Vrs Yussif [2023] GHADC 413 (22 June 2023)

IN THE DISTRICT COURT KIBI, EASTERN REGION, HELD ON MONDAY 22ND JUNE 2023 BEFORE HER WORSHIP MRS. JULIET OSEI – DUEDU SITTING AS THE MAGISTRATE SUIT NUMBER: B7/18/22 THE REPUBLIC VRS ABDUL RAZAK YUSSIF JUDGMENT The prosecution in this case alleges that accused person herein on 28th December, 2021 broke complainant’s window to his room, entered same and stole his bag with an amount of GHC 1,500.00 and a single barrel gun. Consequently, accused person was on the 15th February, 2022, arraigned the before this court on the following charge sheet; “Count One: Unlawful entry: contrary to section 152 of the Criminal Offences Act, 1960 (Act 29) Count Two: Stealing; contrary to section 124 of Criminal Offences Act, Act 29/60 Count Three: Stealing; contrary to section 124 of Criminal Offences Act, Act 29/60.” Accused person pleaded not guilty to the charges after they were read and explained to him in the Twi Language. The prosecution thus, assumed the burden of proving the charges against accused person to the standard required by law which is based on the presumption of innocence in favour of person charged with criminal offences as enshrined in article 19 (2) (c) of Constitution, 1992. The Supreme Court pronouncing on this same article in the case of Gligah and Atiso V The Republic [2010] SCGLR, 870, also stated as follows; “under article 19 (2) (c) of the 1992 constitution, everyone charged with a criminal offence was presumed innocent until the contrary was proved. In other words, whenever an accused person was arraigned before any court in any criminal trial, it was the duty of the prosecution to prove the essential ingredients of the offence charged against the accused beyond reasonable doubt.” 2 The Evidence Act 1975 (NRCD 323), further formulates this standard of proof in section 11 (2) thus; “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 reasonable doubt.” And Denning J (as he then was) in the case of Miller V Minister of Pensions [1974] 2 ALLER 372, defines proof beyond reasonable doubt thus; “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 a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.” The accused person on the other hand is required by law to raise only “reasonable doubt” as to his guilt as provided by section 11 (3) of the Evidence Act, and also stated in the case of Commissioner of Police V Antwi [1961] GLR 408, SC. It is note while that, it is the ingredients of the offences charged against the accused person as provided by the statute defining them which prosecution is required to prove to the standard above explained. And it is only when prosecution has so proved its case that this court would be bound to convict unless accused person is able to raise a reasonable doubt as to his guilt. The question then is, whether or not prosecution has been able to successfully discharge the burden it assumed under the law. What evidence has been proffered by prosecution to establish its case against accused person? The above questions will be considered in the light of the elements of the various offences preferred against accused person. For the offence of unlawful entry, according to section 152 of Act 29, the elements are that, accused unlawfully enters a building, he enters with the intention of committing a crime and that the offence is to be committed in the building. Thus, it is the unlawful entry into the building with the intention to commit an offence in the building that amount to the offence. In respect of the last two offences of stealing contrary to section 124(1) of Act 29, the definition section of the statute, section 125 to be precise, provides the 3 essential elements of stealing as; appropriation of a thing, which appropriation was dishonest, and that the thing belonged to another person. The case of Lucien V The Republic [1977] 1 GLR 351, equally discussed the essential elements of stealing as; accused not being the owner of the thing stolen, he must have appropriated the thing, and the appropriation must be dishonest. In the present case also, the prosecution must establish that accused herein, did enter complainant’s room unlawfully and dishonestly appropriated his money and short gun. Prosecution called three witnesses in all in proving its case against accused person; complainant, his brother and the investigator in this case. It is the case of complainant’s brother and first prosecution’s witness, (PW1) that, on the 28th December, 2021, at about 11 am, he was returning from the farm when he heard some unusual noise in a nearby bush. He therefore stopped for a few minutes to ascertain the cause. Accused person suddenly appeared from the bush with a black bag at his back and a single barrel gun on his shoulder. Accused asked to be directed on the shortest route to the Kwasi Krache main road, since he did not want to use the regular path but the bush way instead. He then showed accused the way he asked for and he left by same. At about 2 pm that same day, his brother and complainant in this case called and informed him about burglary into his room and stolen items. He realized that, the items described included the black bag and short gun he met accused person with. He then told him about his encounter with accused earlier on describing him as being fair in complexion and someone he could identify if seen again. They thus searched the area accused was seen but did not find him. He came to Odumase the next day and saw accused there. He confronted him on the issue but accused took offence and left the place for Suhum. PW1 was adamant in cross – examination that it was accused he met on the day of the incident and no one else. Complainant’s evidence establishes the theft of his bag with his money and the short gun. According to him, he returned from the farm with his wife on that fateful day only to find his room broken into through his window and his items afore described, stolen. He subsequently reported the matter to the Wirenkyiren Amanfrom Police. 4 According to PW3 and the investigator in this case also, when the matter was referred to him, he visited the scene of the crime with complainant at Odumase Bereporo where the latter stays. He found complainant’s window broken indicating the passage into his room for the commission of the crime by accused person. When a team of police officers were detailed to follow complainant to Suhum for accused’s arrest, upon seeing them, accused took to his heels. He was however pursued and arrested. A search conducted in accused person’s room also yielded nothing. PW3 tendered in evidence, the investigation cautioned and charge statement of accused, and a photograph of the broken window as exhibits; A, B and C respectively. Accused person’s defence on the other hand has been a complete denial of being the perpetrator of the crime. Accused does not challenge the occurrence of the incident but rather, denies being the culprit. It is accused’s case that he resides at Suhum but somewhere in December, 2021, he came to Odumase to visit his mother. He has however forgotten the exact date of the said visit. After, visiting his mother, he proceeded to his friend, one Rashad’s house also at Odumase to visit him as well. It was while he was in the house that PW1 came there and accused him of being the perpetrator of the offence under consideration. He denied any knowledge of the offence and he called the friends he has been around with since the morning of that day and they all confirmed his presence in the house as such. They equally seemed surprised at PW1’S accusation. According to accused person again he furiously left for Suhum thereafter. The following day a Community Police by name Daniel, in the guise of giving him a vehicle to work with as a driver, lured him to a place and arrested him in respect of this very case. Accused person called his friend he visited on the day of PW1’S confrontation as his witness. According to DW1’S testimony, accused person is his brother who visited him on the day of the incident. They were there when complainant called one Mr. Ankomah and reported of his stolen items. They all assisted in looking for the culprit but to no avail. PW1 however, subsequently accused his brother for being the culprit. During cross – examination, DW1 was challenged on the veracity of his testimony since it was at variance with his statement to the police, dated, 5th January, 2022, and same was tendered in evidence through him as exhibit D for prosecution. 5 The above narrations are the summary of prosecution’s case against accused person and his defence to same. And it is obvious that, there is no dispute whatsoever that, complainant’s room was broken into and his items stolen. The only issue is whether or not it was accused who committed that dastardly act. Accused person has maintained throughout the trial that, he was not the person seen by PW1 as he was with his friends on the day and time of the incident. Accused’s assertion thus, raised the defence of alibi in his favour and also put his identity in issue. In respect of the alibi, it should be noted that, when accused raised same in the course of the trial, the court adjourned the trial and ordered accused to furnish the police with the particulars and the necessary information forthwith for their full investigation. The prosecution on the next adjourned date informed the court that, accused’s defence of alibi has failed upon their investigation and trial proceeded accordingly. I must state here that, the onus of making a good defence for alibi is on accused to be discharged by him on the preponderance of probabilities. This accused can do by establishing that he was elsewhere at the time and place the offence is alleged to have been committed by him; Razak & Yamoah V The Republic [2012] 2 SCGLR, 750, referred. It is notable that though accused in his evidence before this court said he had forgotten the exact date he went to visit his mother and friend at Odumase, the town where the offences took place, he categorically stated in his statement to the police, exhibit A, precisely, that it was Tuesday, 28th December, 2021. In fact, accused even gave the time of the visit in the said statement as 8: am, and stayed with the friend beyond 2: pm. As a matter of fact, if accused’s assertions are true then, there is no way he could have committed the offences in question. However, accused’s defence is so saddled with inconsistencies that, it renders same difficult to believe. First of all, after accused’s stated time of the visit as 8: am in exhibit A, this is what he said in cross – examination; Q. Who did you inform about PW1’S confrontation of you being the culprit in this whole enterprise? A. Abdul Rashad, Abdul Wahab, Sulemana, Awudu, Maamunatu and Alhassan. Q. After informing them, what did they say? 6 A. They asked him when he met me and he said about 9 am. And they said I had been with them since 7 am that I came, and I had not left their sight so it must be someone else that he saw but not me. Is accused now saying that he went to his friend earlier than 8 am and before visiting his mother? I definitely do not think so since in both exhibit A and his evidence – in – chief, accused said he first visited his mother. Of crucial importance again, is the disparity between accused’s evidence and that of his witness he claims to have visited on the day of the incident. Whereas accused in exhibit A stated the day and time of the visit as Tuesday, 28th December, DW1 in exhibit D stated same as, Wednesday, 29th December, 2021, the exact day and date PW1 testified that he confronted accused in his friend’s house. DW1 indicated in his statement as follows; “I am unemployed, living at Odumase. On 29th December, 2021, I was at home around 7 am Abdul Razak Yussif @ Balla visited me and stayed with me for a while. Around 2 pm we were in my room when my wife came to call Balla that someone was after him. He came out and met one Thomas with a group of people who asked Balla about a missing gun and some money…I don’t know anything concerning the missing items but what I know is that, on Wednesday, Balla was with me when the people came and questioned him.” Thus, the visit and the questioning were done on Wednesday 29th December 2021, the day after the incident on 28th December, 2021, just as PW1 testified. So, whereas DW1’S statement fails to corroborate that of accused to lend credit to his defence of alibi, it clearly supports the evidence of PW1. And for this reason, I prefer PW1’S testimony to that of accused. Furthermore, DW1’S evidence before this court, seriously contradicts his statement to the police, exhibit D. As clearly shown above, DW1 in exhibit D dated, 04/01/22, exactly a week after the incident when the facts were so fresh in his mind minced no words in stating that accused was with him not the day of the incident but the next day. He also did not talk about Mr. Ankomah being informed of the theft by complainant in the statement. In exhibit D he was emphatic that he knew nothing about the incident on 28/12/21, meaning he was not part of the search party on that day as he wants this court to believe per his evidence – in – 7 chief. It was these inconsistencies that made prosecution to tender DW1’S statement through him to offer him the opportunity to refresh his memory since the incident happened a while ago, but all to no avail. Even in the midst of evidence to the hilt via his own statement that accused was not with him on the day of the event, DW1 amidst staggering and delaying in answering questions on the issue, still maintained that accused was with him on the 28/12/21. All these only establish DW1 as an uncredible witness, and his evidence, a nugatory or negligible. State V Otchere [1963] 2 GLR 463, applied. In respect of the identity of accused person, it is noteworthy that, whenever an accused person pleads not guilty to a crime, he puts everything about the crime in issue including his identity. The prosecution in a criminal trial is thus, required to prove the identity of the accused else the accused shall not be convicted. The duty is therefore cast on the prosecution to prove that it was the accused who committed the offence before the court. Hence, where the accused consistently denies his involvement in the crime as in the instant case, proof of his identity becomes imperative. The Court of Appeal in the case of Adu Boahene V The Republic [1972] GLR 70 @ 72 – 73, discussed the various modes used to prove or disprove the identity of an accused person thus; “In every criminal trial it not only necessary for the prosecution to prove the commission of the crime, but also to lead evidence to identify the accused as the person who committed the offence. In the latest edition of Phipson on Evidence (10th ed.), p 170 para 1381, it is stated: When a party’s identity with an ascertained person is in issue, it may be proved or disproved not only by direct testimony, or opinion evidence, but presumptively of personal characteristics: e.g. age, height, size, hair complexion, voice, handwriting, manner, dress, distinctive marks, faculties, or peculiarities including blood group, as well as of residence occupation family relationship, education, travel, religion, knowledge of particular people, places, or facts and other details of personal history,” In the instant case also, direct evidence been led by PW1 to establish accused person’s identity including his complexion used to describe him to complainant on that fateful day. It is PW1’S unchallenged evidence that, he informed PW2 that, he could identify accused wherever he sees him. And truly to his word too, he was able to do so the very next day, with this evidence duly corroborated by DW1, 8 accused’s own witness. In actual fact, accused himself admitted to the unmistaken identity of his person by PW1 in cross – examination as follows; Q. You just told this court that you know Thomas Huulitey, PW1 in this ace is that not so? A. Yes, I did. Q. It also means that, he equally knows you, is that not so? A. Yes, he knows me at Odumase. Q. So it means wherever he sees you he will be able to identify you, is that correct? A. Yes, when he sees me, he will be able to identify me. Q. Then I put it to you that Thomas saw you at Bereporo, that was why he was able to identify you to complainant as such. A. That is not true. A clear confirmation of the correctness of PW1’S identification of accused as the perpetrator of the crimes concerned. There being no evidence on record for the court to impugn PW1’S credibility therefore, this court believes his story that, the person he saw with complainant’s bag and short gun was none other than accused person. That is why accused upon seeing him with the police took to his heels to avoid his arrest. For all the foregoing reasons, this court is convinced that prosecution has been able to establish its case against accused person. The court therefore finds accused person guilty as charged. He is accordingly convicted of the offences of unlawful entry and stealing preferred against him. In sentencing accused person however; this court hereby takes into consideration, his youthful age, being 26 years old and a father of a two-year- old child. The court further considers the fact that accused person is a first offender and has already spent 30 days in police custody for jumping bail. Accused person in the light of all the above factors is hereby sentenced to a fine of forty (40) penalty units, in default, three (3) months I. H. L. on counts 1 and 2, and 40 penalty units in default four (4) in addition to a bond to be of good behaviour for eighteen (18) months, in the sum of GHC 5, 9 000.00, in default, 6 months I. H. L., on count 3. Sentences should run concurrently. Accused should compensate complainant with the sum of, GHC 5,000.00, for a refund of the money stolen by him and a replacement of the short gun. SGD H/W MRS JULIET OSEI – DUEDU ESQ DISTRICT MAGISTRATE 22/06/2022