REPUBLIC VRS WUMBE & ANOTHER (7/45/2023) [2023] GHADC 1149 (18 August 2023)

IN THE DISTRICT COURT HELD AT DAMBAI BEFORE HIS WORSHIP ALHASSAN DRAMANI ESQ ON FRIDAY, 18TH AUGUST, 2023 CASE NO: 7/45/2023 THE REPUBLIC VRS 1. JONATHAN WUMBE 2. KOFI PORBE 1ST ACCUSED PERSON-PRESENT COMPLAINANT- PRESENT ASP ALHASSAN A. RAZAK FOR PROSECUTION- PRESENT JUDGEMENT The accused persons were arraigned before this Court on the 23rd June, 2023. A1 was charged with two counts of unlawful entry contrary to Section 152 of the Criminal Offences Act, 1960 (Act 29) and stealing contrary to Section 124(1) of the Criminal and Other Offences Act, 1960 (Act 29). A2 on his part was charged with one count of dishonestly receiving contrary to Section 146 of the Criminal Offences Act, 1960 (Act 29). A1 pleaded not guilty after the charge had been read out and explained to him for which reason the prosecution assumed the burden of proof and must prove the charge against the accused person beyond reasonable doubt. A2 on the other hand pleaded guilty simpliciter to his charge and was accordingly convicted on his own plea and sentenced on his first appearance. This judgment is therefore in respect of A1 only. FACTS OF THE CASE The complainant is a seamstress apprentice and lives at Dambai Old Town whilst A1 is unemployed and also resides at Dambai Old Town. A2 is a farmer and lives at Kente near Tutukpene. Complainant and A1 are neighbours. On 15th May, 2023 at about 3:00am the complainant woke up and realised that her infinix smart 5 mobile phone and her brother’s spark 4 Techno phone were stolen from her room. The complainant started making her own enquiries about the missing phones and fortunately on 17th June, 2023, whilst in the neighborhood she saw A1 giving a phone which looks like hers to A2. The complainant quickly confronted A1 and identified the phone as hers. But A1 disagreed with her and took the phone away. The complainant reported the case to the police leading to the arrest of the accused. In his caution statement to the police the accused admitted having confrontation with the complainant over a phone but denied that the phone belonged to the complainant. A1 mentioned A2 as the owner of the phone. A2 was subsequently arrested and in his caution statement stated that he bought the infinix spark 5 mobile phone from A1 at the cost of GH¢450.00. The said phone was subsequently retrieved from A1. THE CASE OF THE PROSECUTION In proof of the offences against the 1st accused person, the prosecution called two witnesses including the investigator. The relevant portion of PW1’s evidence is that on 15th May, 2023 at about 3:00am she woke up from her sleep and noticed that her door was opened and her infinix smart 5 mobile phone as well as his brother’s Techno spark 4 mobile phones which she had put on charge the previous night were missing from the room. According to PW1 her house is adjacent to A1’s house so on 17th June, 2023 whilst in the bath room taking her bath, she saw A1 handing over a phone that resembles her missing phone to A2. PW1 said she rushed out and confronted the accused persons but A1’s brothers came around threatening to attack her so she left and later reported the case to the police. PW2, the police investigator narrated how she conducted her investigation and tendered in evidence the investigation caution statement, charge statement and photographs of the crime scene and the infinix smart 5 mobile phone without objection. Thereafter, the prosecution brought its case to close. THE CASE OF THE DEFENCE In his evidence the accused vehemently denied the complainant’s claim. According to the accused person, he bought the infinix smart 5 mobile phone from a certain man whose name he does not know. Accused said he met the said man at the Dambai market offering the phone for sale at GH¢300.00 and he bought same. The accused did not call any witness and hence brought his case to close after his evidence The issues for determination in this case in the view of this court are: Whether the accused unlawfully entered the complainant’s room; whether the accused stole the complainant’s infinix smart 5 mobile phone valued GH¢2,200.00 The above issues will be considered together. APPLICABLE LAW Section 152 of the criminal offences Act, 1960 (Act 29) provides as follows: A person who unlawfully enters a building with the intention of committing a criminal offence in the building commits a second degree felony. Section 124(1) of Act 29 provides that a person who steals commits a second degree felony. Section 125 of Act 29 defines stealing and it provides that: a person steals who dishonestly appropriates a thing of which that person is not the owner. The essential elements of the offence of stealing are: (1) The person charged must have appropriated the thin allegedly stolen. (2) The appropriation must be dishonest (3) And the person charged must not be the owner of thing stolen. See Brobbey and others Vrs. The Republic [1982-83] 1 GLR 608 The crux of the complainant’s evidence is that she was asleep when someone entered her room and picked her phone together with her brother’s phone. But through her vigilance she spotted the accused handing over one of the stolen phones to A2 and she confronted the accused person leading to his arrest. This suggest that the complainant did not see the one who entered her room to steal the phones. When the complainant came under cross examination by the accused on 17/07/2023 the following among others ensued between them. Q. I put it to you that the phone does not belong to you. A. That is not true, the phone is mine. You stole it from my room. Q. I suggest to you that I bought the phone from the Dambai market. A. I don’t agree with you. Q. What shows that this phone belongs to you. A. The phone belongs to me. It is an infinix smart 5 phone. When I bought it, I also bought a green cover for it, it’s the same cover that is still on the phone. In fact, I drew two love emojis inside the cover and those love emojis are still on the cover even now. Q. Do you have a receipt. A. No, I have misplaced the receipt but I bought the phone in Takwa in the Western Region about two years ago. If you look at the back of the phone there is a white rubber sticker on it. This is a sticker I put on the phone it is also still intact on the phone. From the above encounter, the accused is resolute that the phone does not belong to the complainant. However, I have critically examined the phone (infinix smart 5) and the description and feature given by the complainant perfectly marches with those on the phone supra. In the accused person’s caution statement to the police (Exhibit ‘A’) dated 21/06/2023. The accused stated as follows: “….. On Saturday, 17/06/2023 I was with Kofi (A1) when the complainant approached us. A1 was holding Kofi’s phone (exhibit ‘C’) and the complainant told him to let him have a look at the phone because the phone resembles her missing phone. A2 was reluctant to give her the phone but I impressed upon A12and he released the phone to the complainant. After examining the phone she realised it was not her phone so she returned the phone to A2 and apologized to him….” However, in both his charge statement and evidence in court, the accused asserted that he bought the above stated phone (Exhibit ‘C’) from a certain man whose name he does not know at the cost of GH¢300.00. The above accounts are contradictory and conflicting with each other. Whist the accused on one account claims exhibit ‘C’ belongs to A2, on another account he claims same belongs to him. On lack of consistency in evidence, the Court of Appeal held in the case of Obeng v. Bempomaa [1992-93] GBR 1027 per holding 1 as follows: “Inconsistencies, though individually colorless, may cumulatively discredit the claim of the proponent of the evidence. The conflicts in the evidence of the plaintiff and his witnesses weakened the merit of his case and proved fatal to his claim”. In the case of Gyabaah v. The Republic [1984-86] 2 GLR 461-475, Osei-Hwere J. A (as he then was) stated thus: ‘………For the law is that a witness whose evidence on oath is contradictory of a previous statement made by him, whether sworn or unsworn, is not worthy of credit and his evidence cannot be regarded as being of any importance in the light of his previous contradictory statement unless he is able to give a reasonable explanation for the contradiction…’ Again in Bour v The State [1965] 1, GLR THE SC, it was held that “if a witness has previously said or written something contrary to what he had testified at the trial, his evidence should not be given much weight.” In the instant case the accused has not been able to offer any tangible explanation with regards to the contradiction in his evidence. On the contrary, the complainant’s account has been consistent with the evidence of the other prosecution witness. I find that the accused person’s attempt at denying the fact that he went to the complainant’s house on that fateful day is only an afterthought and same will be rejected. I rely on the case of Lutterodt v. Commissioner of Police [1963] 2 GLR 429-440, where Ollennu J. S. C, delivering the judgment of the Supreme Court stated that: “If quite apart from the defendant’s explanation, the court is satisfied on a consideration of the whole evidence that the accused is guilty, it must convict”. For the foregoing reasons and on the totality of the evidence adduced in this case, I find the accused person herein, Jonathan Wumbe guilty of the offence of unlawful entry and stealing and convict him accordingly. Q. Is the accused known A. Yes My Lord, the accused is known. The accused has a previous conviction from this Honourable Court on similar charges. On 06/01/2023 the accused appear before this court on charges of unlawful entry and stealing. He was convicted and sentenced to pay a fine which he did pay. Taken into account this fact, we humbly pray that the accused be given a deterrent sentence to serve as a lessons to other criminals within this community. Q. Accused do you have anything to say by way of mitigation before your sentence is passed. A. I am pleading with the court to be lenient with me. By Court: In sentencing the accused, the court has taken into consideration the fact that the accused has a previous conviction for similar offences. Stealing cases within this jurisdiction have also become rife and it is only prudent that the accused is given a harsh sentence to serve as deterrent to others. However, the accused has been in police custody since his arrest for almost two months now and this have been taken into consideration. For the foregoing reasons, the accused is sentenced to twenty one (21) months prison term on count one and on count two, the accused is sentence to twenty two (22) months prison term. Counts one and two are to run consecutively. Final order: The prosecution is hereby ordered to release the infinix smart 5 mobile phone to the complainant forthwith. SGD H/W ALHASSAN DRAMANI DISTRICT MAGISTRATE 18TH AUGUST, 2023.