The Republic Vrs Sosu & 2 Others [2023] GHACC 162 (5 June 2023)

IN THE CIRCUIT COURT OF JUSTICE HELD AT DENU ON MONDAY THE 5TH DAY OF JUNE, 2023 BEFORE HIS HONOUR JOSEPH OFOSU BEHOME ESQUIRE- THE CIRCUIT COURT JUDGE COURT CASE NO. VR/CT/DE/CC.216/2023 THE R E P U B L I C VRS. 1. RICHARD SOSU 2. VIHO KOSSI 3. ASADZI ROSE 1ST ACCUSED PERSON - PRESENT 2ND AND 3RD ACCUSED PERSONS - DEALT WITH INSPECTOR ALBERT KOMBOR FOR PROSECUTION PRESENT The first two accused persons were arraigned before this Court charged with conspiracy to commit crime to wit: stealing contrary to section 23 (1) and 124 (1) of the criminal and the other offences procedure Act 1960 (Act 29) for count one (1) and for count two (2) stealing contrary to section 124 (1) of the criminal and other offences Procedure Act 1960 (Act 29). The third Accused person was charged with Dishonestly Receiving: contrary to section 146 of the criminal and other offences Procedure Act 1960 (Act 29). The first Accused person pleaded not guilty after the charges have been read out and explained to them whilst the second and third accused pleaded guilty simpliciter and they were convicted and sentenced accordingly. In the case of Republic Vrs. Adu-Boahen & Another (1993-94) 2 GLR 324-342, per Kpegah JSC, the Supreme Court held that: “A plea of not guilty is a general denial of the charge by an accused which makes it imperative that the prosecution proves its case against an accused person………When a plea of not guilty, is voluntarily entered by an accused or is entered for him by the trial Court, the prosecution assumes the burden to prove, by admissible and credible evidence, every ingredient of the offence beyond reasonable doubt”. THE FACTS OF THE CASE Complainant Constancia Ami Deyegbe is bread baker living at second low-Cost Aflao, whilst A1 Richard Sosu and A2 Kossi Viho are Labourers and a Togolese National living at Avedzi and second Low-Cost respectively. A3 Rose Asadzi is a bread baker living at First Low-Cost, all suburb of Aflao. A1 and A2 are working as labourers for complainant. A1, had worked with A3 at her bakery store and so they know each other. During January 2022, complainant detected missing of her 50 bags of 50kg size flour value GH₵700.00 per bag and 10 bags of 50kg size sugar value GH₵600.00 per bag all amounting to GH₵41,000.00 from her store room, Since January. On 02/12/2022 about 1:30pm, complainant had a phone call from one Akpene a witness in the case that A1 and A2 were seen with a bag of 50kg size of flour at Aflao Rainbow by the unit committee members in the area who asked them to return same but they refused. On 07/12/2022, the unit committee members came and informed complainant about what they saw and both interrogated A1 and A2 and they admitted the offence, and stated that they have only stolen eight (8) bags of 50kg size of flour and sold three (3) bags at the cost of GH₵450.00, GH₵500.00 and GH₵600.00 respectively to A3. But they refused to disclose the whereabout of the rest of the flour. Complainant and the unit committee members brought A1 and A2 to the police station and made official complaint against them and they were re-arrested and detained. A1 and A2 were cautioned and both admitted having conspired and stolen only eight (8) bags of 50kg size of flour. A3 was later arrested and cautioned. In A3’s investigation caution statement, she also admitted the offence but stated that she bought only three (3) bags of 50kg of flour at the cost of GH₵450.00, GH₵500.00 and GH₵600.00 respectively from A1 and A2. After investigations A1, A2 and A3 were charged with the offences as stated in the charge sheet and arraigned before this Honourable Court. Prosecution called two witnesses in support of its case. PW1, Constancia Deyegbe, in evidence told the Court that she is a business woman living at second Low-Cost, a suburb of Aflao. She avers A1 and A2 are her labourers and she also got to know A3 through this case. PW1, contends in January, 2022 she detected the missing of her 50 bags of 50kg size of flour valued at GH₵ 35,000.00 and 50kg size of sugar valued at GH₵6,000.00 all summing up to GH₵35,000.00 and 10 bags of 50kg size of sugar estimated at GH₵6,000.00 all amounting to GH₵41,000.00 from her store room. According to PW1, on 02/12/2022 around 01:30am she had a call from some unit committee members that they have seen A1 and A2 with a bag of 50kg size of flour at Rainbow and highly suspected them. She avers when A1 and A2 were questioned both admitted stealing same from her store room and they were asked to return it. PW1, says on 07/12/2022, the unit committee members came and informed her about what they saw and according to PW1, when A1 and A2 were interrogated, both admitted the offence and stated they have stolen only eight (8) bags of 50kg size of flour and sold three (3) bags at the cost of GH₵450.00, GH₵500.00 and GH₵600.00 respectively to A3 –PW1, says the unit committee members herein assisted her to then lodge a case against A1 and A2 and that at the Police Station A1 and A2 mentioned A3’s name who was subsequently arrested. PW2, D/Inspector Gabriel Damadzi investigated the case. He relied on his witness statement and the attached Exhibits namely the caution and charge statements of the accused person without objection. THE CASE OF THE DEFENCE In opening his defence, the first accused person told the Court that, he is a labourer to the complainant and has worked with her for virtually six months as at the time of this theft. He avers there are many people working with complainant and that they have departments and that he is at the biscuit side and operates at the top of the building whilst others operate from the down stairs, specifically A2. A1, continues that one dawn he was coming to work when he met A2 on the way with (3) three bags of flour and when he questioned him, the latter told him he bought them from Togo with his own money. According to A1, A2 then entreated him to send them to a certain woman and gave him the said woman’s number. A1, continues that, he carried two of the bags on a motor and whilst about to carrying the 3rd one on his own following the failure of the motor to assist in that endeavour he got arrested and now traced down to the complainant. The legal issues that fall for determination are as follows: I. Whether or not the first accused person agreed to act together with the second accused person to commit the act. II. Whether or not the two accused persons herein dishonestly appropriated the complainant’s three bags of flour. Section 23 (1) of Act 29 provides: “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 a previous concert or deliberation, each of them commits a conspiracy to commit or about the criminal offence”. From the evidence on 02/12/2022, about 1:30 am, PW1 had a call from the unit committee members to the effect that they saw A1 and A2 with a bag of 50kg size of flour at Rainbow and highly suspected them. PW1 is said to have questioned A1 and A2 in the presence of those unit committee members and both admitted stealing same from PW1’s store room and they were arrested to the Police station. Section 125 of Act 29 defines “Stealing” as follows: “ A person steals if he dishonestly appropriates a thing he is not the owner”. In the case of The State Vrs. W. M. O. Halm and Ayeh Kumi Cri. App. Nos.118/67 and 113/67, 7 August, 1999; (1969) CC.155, the Court per Akufo Addo, C. J. Ollennu, Apaloo,Amissah JJ. A and Archer J. stated the three essential ingredients which proves a charge of stealing under our criminal law as: I. That the person charged must not be the owner of the thing allegedly stolen; II. That he must have appropriated the thing; III. That the appropriation must have been dishonest. The first accused person herein throughout the trial denied dishonestly, appropriating the complainant’s flour. The accused person in his caution statement to the police on 08/12/22 stated the following “ I am a labourer living at Avedzi a suburb of Aflao. I started working with complainant in the case for almost eight (8) months ago. Myself and suspect Kossi are working with complainant. It was true that myself and suspect Kossi conspired and stole complainant’s four (4) bags of her flour and sold three (3) bags out of flour (4) to suspect Rose Asadzi whilst Kossi and his brother Edinam went and sold the other bag to different person. Myself and Kossi sold the three (3) bags of the flour to suspect Rose Asadzi on different occasions at the cost of GH₵450.00, GH₵500.00 and GH₵600.00 respectively which she paid us. Whilst Kossi brother Edinam also sold the remaining bag at the cost of GH₵400.00. Truly we stole only four (4) bags of complainant’s flour. The caution statement (Exhibit series was taken in compliance with section 120 of NRCD 323 Exhibit ‘C’ was tendered in evidence without any objection by the accused person. Akamba J. S. C in Ekow Russel Vrs. The Republic (2016) 102 GMJ 124 SC stated: “……………A confession is an acknowledgement in express words, by the accused in a criminal charge, of the truth of the main fact charged or some essential part of it. By its nature, such statement if voluntarily given by an accused person himself, offers the most reliable piece of evidence upon which to convict the accused. Upon a careful evaluation of the total evidence adduced at the trial, I am fully satisfied of the guilt of the Accused person in respect of the charges of conspiracy and stealing and he is accordingly convicted Sentencing: In sentencing the accused, the Court takes into consideration, the prime age of the accused, and the fact of him being a first time offender and more so the accused appearing so remorseful, but to serve as a deterrent to others who might a accused sentenced to the following terms: Count 1: Accused is sentence to pay a fine of three hundred (300) penalty units or in default three years (3) Imprisonment with Hard Labour (IHL). Count 2: Three Hundred (300) penalty units or in default three years (3) Imprisonment with Hard Labour (IHL). The sentences are to run concurrently. H/H JOSEPH OFOSU BEHOME CIRCUIT COURT JUDGE