Republic Vrs Gakpo and Others [2023] GHADC 517 (22 June 2023)

IN THE DISTRICT COURT, DZODZE HELD ON THURSDAY THE 22ND OF JUNE, 2023 BEFORE HIS WORSHIP NELSON DELASI AWUKU DISTRICT MAGISTRATE. Case No. B1/16/22 THE REPUBLIC VRS AGBENYEGA GAKPO & 7 OTHERS JUDGMENT PARTIES COMPLAINANT PRESENT ACCUSED PERSONS PRESENT REPRESENTATION CHIEF INSPECTOR HAMID MOHAMMED FOR PROSECUTION PRESENT BACKGROUND The accused persons were arraigned before this Court on 11th February, 2022 on charges of Conspiracy to commit crime to wit stealing and Stealing contrary to Sections 23(1) and 124 of the Criminal Offences Act, 1960 (Act 29). BRIEF FACTS The facts as read by Prosecution stated that the complainant and the accused persons are all residents of Huive, a suburb of Ehi. 1 | P a g e The Prosecution stated that on on the 3rd of October, 2021 at about 3:00pm, the complainant and his brothers visited his farm at Huive to sell his cassava to a buyer called Emmanuel but whiles there, the accused persons came to the farm, attacked and chased them away. The Prosecution stated that on the 5th of October, 2021 at about 8:00am the complainant while on his farm with his brothers harvesting okro were attacked by the accused persons with sticks and cutlasses and chased away. The prosecution stated that the accused persons destroyed the complainant’s harvested okro and the plastic containers into which the harvest had been put, all together amounting to thousands of Ghana cedis. The prosecution stated that on the 16th of January, 2022 at about 7:30am the complainant went to his farm and detected that about 80% of the maize cultivated by him on the two- acre land had been harvested. The prosecution stated that, the complainant who suspected the accused persons reported the incident to the police and they were arrested. The prosecution stated that the accused persons denied the offence in their cautioned statements but were charged with the offences and arraigned before the court for prosecution after investigations. PLEA OF ACCUSED PERSONS All accused persons pleaded not guilty to the offences when the charges and particulars were read and interpreted to them in Ewe and were admitted to bail. 2 | P a g e Witness statements of witnesses of prosecution together with charge statements and investigation caution statements of the accused persons were filed by the prosecution and served on the accused persons for trial. THE CASE OF PROSECUTION The prosecution called the complainant as his first witness, Kuma Zigli as PW2 and the police investigator Detective Sergeant Kingsley Aboagye Darkwa as PW3. In his evidence to the Court, the complainant, first prosecution witness stated that, he has a maize farm of about 2 acres situated on a land which is currently under litigation between himself and others. PW1 stated that on the 16th of January, 2022 at about 7:30am he visited his farm and discovered that about 80% of the maize he cultivated had been harvested by some persons. PW1 stated further that he highly suspected the accused persons because they once attacked and destroyed their okro farm which case was before the court. In his evidence in support, PW2 confirmed that on the said date, he accompanied the complainant to his farm and upon reaching the farm, they observed that some persons have harvested the maize they were going to harvest. PW2 stated that he advised the complainant to report the incident to the police and he did. 3 | P a g e PW3 gave evidence as the investigator and tendered in evidence the investigation cautioned and charge statements of the accused persons. The documents were adopted and marked Exhibits A, A1, A2, A3, A4, A5, A6, A7, B, B1, B2, B3, B4, B5, B6 and B7. DEFENCE OF FIRST ACCUSED A1 stated that he is a driver by profession and that on the 16th of January, 2022 he went to work and never stepped in the complainant’s farm. A1 stated that he knows nothing about the alleged incident. DEFENCE OF THE SECOND ACCUSED The second accused stated that, the complainant and his father Yaotse Gakpo are involved in a litigation over a piece of land for which reason he is not in talking terms with the complainant. A2 stated that on the 16th of January, 2022 he was in the house throughout since it was a Sunday, so cannot be held responsible for the offence. A2 stated that since the earlier case of causing unlawful damage was made against them, he had never set his foot in the complainant’s farm. DEFENCE OF THIRD ACCUSED A3 stated that on the day the offence is alleged to have been committed, he was in the house throughout the day and did not go to the farm. A3 stated that he does not reside at the same place with the other accused persons so the claim by the complainant that he conspired and went together with them to commit the offence is false. 4 | P a g e DEFENCE OF FOURTH ACCUSED The accused denied committing the offence and stated that on the day of the alleged incident, he was in the house weaving and never heard about the incident. He admitted that there is a land dispute between the complainant and them, but stated that he was surprised the complainant mentioned his name as a suspect because they are not in good terms and there is no way he will go and harvest his maize. DEFENCE OF FIFTH ACCUSED A5 stated that he did not step in the farm of the accused on the day of the alleged incident. He stated further that because of the court case pending between them and the complainant, he has ever since never stepped in the complainant’s farm. He stated that the allegations being made against them are fabricated. DEFENCE OF SIXTH ACCUSED A6 stated that on the 16th of January, 2022 from about 7:00am till evening, he was at Akpormor-Dzagovikope for a funeral of the complainant’s in-law which the complainant also attended. A6 stated that, it is not true he stole any maize from the complainant’s farm and that the last time he went to that farm occasioned the incident that resulted in the case between them in the court. He stated that he did not see the other accused persons at all on the day of the alleged incident. 5 | P a g e DEFENCE OF SEVENTH ACCUSED The accused stated that on the day of the incident he left the house at about 6:00am to the bush for hunting and returned at about 9:00pm. He stated that he had not been to the complainant’s farm for a very long time and that the last time he was there was when they went to drive away a surveyor the complainant had brought to the land. He stated further that he did not steal any maize as is being alleged by the complainant. DEFENCE OF EIGHTH ACCUSED A8 stated that on the day of the alleged incident he was in his house at Huive throughout the day and did not go to the farm. He stated that it is not true he conspired and acted together with the other accused persons to still from the complainant’s farm and that he has not been to the complainant’s farm in a very long time. THE LAW Burden of Proof In the case of Abdulai Fuseini v the Republic, reported in [2020] Crim LR, page 331, the Supreme Court reiterated the basic principle underpinning criminal prosecution in our courts as follows; “Proof beyond reasonable doubt is actually proof of the essential ingredients of the offence charged and not mathematical proof”. See also Frimpong alias Iboman v. The Republic [2012] 1 SCGLR 297. 6 | P a g e Section 11(2) of the Evidence Act, 1975 (NRCD 323) provides as follows; “In a criminal action, the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt required the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of a fact beyond reasonable doubt”. The accused persons in this case are charged with the offences of conspiracy to commit crime namely stealing contrary to sections 23 and 124 and Stealing contrary to section 124 of the Criminal Offences Act, 1960 (Act 29). Conspiracy Section 23(1) of the Criminal Offences Act, 1960 (Act 29) in defining the offence of conspiracy states that; “where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet the criminal offence”. In the case of The Republic v Ernest Thompson & Others [2021] DLSC 10174 at page 10174 the court stated that; “under the definition of the offence of conspiracy, a conviction could be secured upon proof of the following ingredients; i. ii. Prior agreement for the commission of a substantive crime; Acting together in the commission of the crime in circumstances which show that there was a common purpose; iii. Previous concert even if there was evidence that there was previous meeting to carry out the criminal conduct” 7 | P a g e See also the cases of Francis Yirenkyi v The Republic (2016) 99 GMJ 1 SC and Agyapong v The Republic [2015] 84 GMJ, 142, CA. Same elements were stated in the case of Republic v Baffoe Bonnie & Others (Suit No. CR/904/2017) (Unreported) dated 12th May 2020, where the elements of conspiracy were outlined by the court as follows; “For prosecution to be deemed to have established a prima fascie case, the evidence led without more should prove that: a. there were at least two or more persons b. there was an agreement to act together c. the sole purpose for the agreement to act together was for a criminal enterprise”. The effect of the principles in the above authorities is that, persons accused of conspiracy must not only be established to have agreed to act but there must be an agreement to act together for a common purpose to commit crime. It is also significant to note that, under the new formulation of the law on conspiracy as defined by the Supreme Court, a person could no longer be guilty of conspiracy in the absence of the evidence of any prior agreement. See KINGSLEY AMANKWA (a.k.a SPIDER) vs. THE REPUBLIC [2021] DLSC 10793 @ page 28 per Dotse JSC. Stealing A person steals who dishonestly appropriates a thing of which that person is not the owner. See section 125 of the Criminal Offences Act, 1960 (Act 29). 8 | P a g e To successfully prove a case of stealing against a person in our law, three elements have to be established which include the fact that; a) the person is not the owner of the thing allegedly stolen b) that he appropriated the thing and c) that the appropriation was dishonest. See the cases of Ampah v the Republic [1977] 2 GLR and Mensah v the Republic [1978] GLR 404. ANALYSES AND EVALUATION OF EVIDENCE For the purposes of Count one in respect of the offence of conspiracy, the elements to be satisfied are set out in the decided cases above mentioned. The prosecution has a duty to adduce evidence to establish the fact that there was a prior agreement between the accused persons to act in common purpose towards committing the substantive offence or any other offence. KINGSLEY AMANKWA (a.k.a SPIDER) vs. THE REPUBLIC (supra). The above elements can only be established or inferred through available evidence adduced by prosecution and from the nature and manner in which the alleged act is established to have been executed. The accused persons having denied the allegations, the burden was on prosecution to provide the relevant evidence and witnesses to secure the conviction of the accused persons. The evidence given by the witnesses for prosecution admits that, none of them actually saw any of the accused persons taking maize from the complainant’s farm. 9 | P a g e The complainant himself stated in paragraph 6 of his evidence-in-chief that, he highly suspected the accused persons because they once attacked and destroyed their okro. One of the essential ingredients in a charge of stealing is that the accused persons must be proved to have appropriated the thing stolen. Under section 122 (2) (a) of the Criminal Offences Act, appropriation is defined as follows; “appropriation of a thing means any moving, taking, obtaining, carrying away or dealing with a thing with the intent that a person may be deprived of the benefit of the ownership or of the benefit of the right or interest in the thing or in its value or proceeds or part of that thing”. In sum, there cannot be appropriation within the meaning of section 122 of Act 29, unless; a) there is evidence that the accused not being the owner of the thing stolen, took or moved or obtained the thing or did some act in respect of the thing; b) that the act whether it consisted of moving, taking, obtaining or dealing with the thing in any other manner was intended by the accused to deprive some person of the benefit of his ownership or the benefit of his right in its value or proceeds or any part thereof. The allegation of stealing in respect of this case has not been demonstrated to be based on the fact that the accused persons were seen actually perpetuating the offence or anything was found or retrieved from them, from which their guilt could be inferred. The case against them is premised on suspicion that they could have committed the act because of the land litigation between them and the complainant and the fact that they earlier went to cause damage on the farm. 10 | P a g e Under cross examination on 12th August, 2022, the complainant responded to the question of the second accused on the proof that the accused persons stole his maize as follows; Q. What is your prove that I stole your maize? A. I was in the farm when you came to tell me that we shall see if I will harvest this maize. That is what makes me suspect you. A2 and A5 were the ones who said that. The above was the same response the complainant gave to the accused persons on the same question, when they took turns to cross examine him on the claim. Under cross examination by A2, the investigator PW3 on 23rd November, 2022 also responded to the question of proof as follows; Q. What did you see in your investigation before charging me with the offence of stealing? A. Prior to the incident you and others went to attack the complainant and the brothers on the same land when they were harvesting okro and you destroyed same. So when the case of stealing was reported and since there has been a first attack and there is also a land issue between you, the complainant pointed you to the police as the people who stole the maize. Q. Were you not advised by the District Commander that this is a land issue and not stealing? A. No. It was the Commander who in his written instructions ordered you to be charged. Q. I am putting it to you that Commander did not instruct you to charge us? 11 | P a g e A. That is not true Q. Did you recover the stolen maize from me? A. No. We noticed that maize had been harvested but we did not find them in any of your houses. Q. I am putting it to you that I don’t know anything about the stealing of the maize? A. That is not true. Police visited the scene and found out that maize had been stolen. You earlier attacked complainant on the same piece of land over which you are claiming ownership so it was assumed that you stole the maize. Under cross examination by A3, PW3 responded as follows; Q. What did you see in your investigation before you charged me with the offence of stealing? A. Nothing was found in your possession. But when the case was reported, police visited the scene and found that a quantity of maize had been stolen and the complainant pointed you as the suspect because you earlier attacked him on the same piece of land. Under cross examination by A5, PW3 responded as follows; Q. Did you see any stolen maize with me? A. No Q. What did you see before charging me for stealing? 12 | P a g e A. It was the District Commander who instructed that I charge you after investigation. Q. Did the Commander not say when we appeared before you that you should let us go and drop the charges against us? A. No. He instructed on the docket that you should be charged. Below is the response by PW3 to A6 under cross examination on 12th January, 2023; Q. I am putting it to you that I did not steal the maize on PW1’s farm. We only went there to erect a danger flag? A. That is not true. You earlier attacked the complainant on the same land and caused damage to his okro. Below are the responses of PW3 to A8 under cross examination; Q. At the police station, did I not tell you that I do not know anything about the theft of the maize? A. Yes. But we discovered through investigation that you were part of those who stole the maize. Q. Did you see me with the maize? A. No Q. Then why did you charge me for stealing? 13 | P a g e A. It was the complainant who identified you as the suspect. Earlier circumstances also proved that you were the one. In the case of the State v Ali Kasena [1962] 1 GLR 144, the Supreme Court upheld the decision of Delvin J in the case of R v Atter to the effect that, where the evidence of a case is purely circumstantial, then the court must satisfy itself that there is some piece of evidence that is more than mere suspicion and that multitudes of suspicion put together cannot constitute proof. In the case of Mr. Senti Michael vs. Rev. Father Mon Kwame and Dr. Asomah [2020] DLSC9914 at page 15 per Amegatcher, JSC the Supreme Court held as follows; “if the court is entitled to act on suspicion of some grave impropriety, it should be satisfied that the suspicion is well founded and that it has a solid and substantial basis. A mere feeling that something might be wrong should not be enough”. The evidence given by prosecution’s witnesses shows that their case is entirely reliant upon suspicion inferred from previous occurrences or circumstances. In the evaluation and application of circumstantial evidence by the court, the three principles that apply are that; a. the evidence must relate to inferences that support the conclusion that the offence has been committed; b. the evidence must relate to inferences that it was the accused and no one else who committed the crime charged and c. the evidence must relate to inferences that guilt is the only rational hypothesis or that the inferences are incompatible or inconsistent with the innocence of the accused. 14 | P a g e In summary, for circumstantial evidence to lead to the conviction of the accused persons, it must lead to the irresistible conclusion that the crime has been committed and that the guilt of the accused is the only inference that can be drawn from the circumstances. See Duah v the Republic [1987-88] 1 GLR 343. The circumstances relied on by the prosecution is that the accused persons are involved in litigation with the complainant over the land, they previously caused damage to some produce and also went to threaten the complainant on the farm. The question is whether this leads to an irresistible conclusion that this particular crime was committed by the accused persons? Once the crime is confirmed to have been committed, there is the possibility that the accused persons may be responsible. There is also the possibility that some of the accused persons and not all of them were involved. It is also possible that the offence may have been perpetrated by entirely different persons taking advantage of the prevailing circumstances. The facts lend itself to several possibilities which is where the work of investigations come in but it appears the work of prosecution did not go beyond the words of the complainant and the suspicions drawn from the previous instance. CONCLUSION This court declines the invitation to convict the accused persons on the basis of the evidence adduced by the prosecution. 15 | P a g e The evidence does not lead to an irresistible conclusion that the accused persons are responsible for the offence and failed to satisfy the required standard of proof for conviction. Based on the above reasoning, the accused persons are acquitted and discharged on all counts. NELSON DELASI AWUKU MAGISTRATE 16 | P a g e