REPUBLIC VRS GADO & 2 OTHERS (7/34/2023) [2023] GHADC 1147 (8 August 2023)

IN THE DISTRICT COURT HELD AT DAMBAI BEFORE HIS WORSHIP ALHASSAN DRAMANI, ESQ. ON TUESDAY, 8TH AUGUST, 2023 CASE NO: 7/34/2023 THE REPUBLIC VRS 1. DAUDA GADO 2. RAUF YARO 3. HAMANI SHAIBU BOSSY ACCUSED PERSON-PRESENT COMPLAINANT- PRESENT ASP ALHASSAN A. RAZAK FOR PROSECUTION-PRESENT JUDGEMENT The first accused persons have been charged with two counts of unlawful entry and Stealing contrary to Sections 152 and 124 (1) of the Criminal and Other Offences Act, 1960 (Act 29) respectively whilst the 2nd and 3rd accused persons are charged with two counts of dishonestly receiving contrary to section 146 of the criminal offences Act, 1960 (Act 29). They all pleaded not guilty to their respective counts after the charges had been read out and explained to them in the Twi language. FACTS OF THE CASE The facts of the case as presented by the prosecution are that the complainant is a teacher at Dambai Sikafoabantem. A1 is unemployed, A2 is a motor mechanic whilst A3 alleged he is a tiller and they all reside in Dambai. On the night of 25th January, 2023 the complainant place his iPhone 6 beside his bed and whilst he and his girlfriend who is a witness in this case were asleep, A1 sneaked into the room at about 3:00am and took the iPhone. Whilst A1 was about leaving the room, the witness suddenly woke up and saw A1. The witness quickly raised alarm but A1 took to his heels and managed to escape. The complainant also alleged that after efforts to trace A1 failed he returned to his room and realised that cash of GH¢1,000.00 and a keypad mobile phone valued at GH¢170.00 which he had placed on a speaker in the room were nowhere to be found. On 1st February, 2023 the witness Patience Dawuni visited A3’s house and saw the iPhone 6 of the complainant in possession of A3. When the witness questioned A3 he mentioned A2 as the one who brought the phone to him to decode because there was a password on it. A report was consequently made to the police leading to the arrest of A2 and A3. In his caution statement to the police A2 said that he bought the phone from A1 at a cost of GH¢300.00. A2 further stated that he was the one who gave the phone to A3 to flash for him. A1 was later arrested and in his charge statement to the police he admitted stealing the iPhone but denied any knowledge of the keypad phone and the cash of GH¢1,000.00. After investigation the accused were charged with the offences to appear before this Honourable Court. The prosecution in proving its case called three (3) witnesses including the investigator and tendered eight (8) exhibits that is the caution and charge statements of the accused persons, photograph of the iPhone 6 and the scene of crime marked exhibit A, B, C, D, E, F, G and H respectively. PW1 (complainant) confirmed the facts as presented by the prosecution and added that it was the alarm raised by the witness that woke him up from his sleep and that even though he saw someone running out of his room he could not identify him. But he together with the witness pursued the said person but were not successful so they returned to their room and it was then he realised the iPhone 6, keypad phone and a cash sum of GH¢1000.00 was missing from his room. PW2 Patience Dawuni told the court per her witness statement that the complainant is his boy*friend. According to PW2 on 25th January, 2023, at about 3:00am whilst she and complainant were asleep in complainant’s room she felt a touch on her body but she thought it was the complainant. However, when she opened her eyes she realized it wasn’t complainant but someone else so she quickly raised alarm and the person took to his heels but she together with the complainant pursued the person but were not successful. PW2 said upon their return to their room they realised that the complainant’s iPhone 6 mobile phone valued at GH¢1000.00, keypad mobile phone valued at GH¢170.00 as well as cash of GH¢1,000.00 belonging to the complainant were missing from the room. PW2 again stated that on 1st February, 2023 he visited A3’s house and saw complainant’s iPhone 6 mobile phone in A3’s possession so he informed complainant and complainant made a complaint to the police. PW3 the investigator told the Court that on 3rd February, 2023, she was the investigator on duty at the station when a case of unlawful entry and stealing was reported and referred to her with an exhibit iPhone 6 for investigation. According to PW3 she took statement from the complainant and his witness and later went to the complainant’s house for further investigations. PW3 further stated that her investigation led to the arrest of A2 and A3. According to PW3, A3 in his caution statement stated that the exhibit iPhone was brought to him by A2 to be flashed whilst A2 on his part also stated that he bought the phone from A1 at the cost of GH¢300.00. PW3 said further investigation led to the arrest of A1 and in his caution statement denied stealing the above stated phone. PW3 said A1 told her that he found the phone on the ground around Sikafoabantem and later sold it to A2. PW3 added that A1 in his charge statement however admitted that he stole the phone from the complainant whilst he was sleeping in the compound of his house but denied entering the complainant’s room. PW3 tended in evidence photograph of the exhibit phone, the crime scene as well as the investigation and charged statements of the accused persons without objection. THE CASE OF THE DEFENCE In opening his defence, A1 told the court that it is not true that he stole the phone from the complainant. According to A1 he found the phone on the ground around Sikafoabantem sometime ago and kept same with the hope that its owner will come around asking about it so that could give it out. But after a while no one showed up. A1 stated that recently his child fell sick and he needed money to take the child to the hospital so he sold the phone to A2 at the cost of GH¢300.00. A1 vehemently denied ever entering the complainant’s room. A2 told the court that he did not buy the phone from A1. According A2 A1 brought the phone to him as collateral and took a loan of GH¢300.00 with a promise to pay the money later and take his phone back. However A1 later told him that he was not sure he could get the money for him so if he wants he could use the phone for the meantime. A2 said he realised that there was a password on the phone so he asked A1 to unlock the phone for him but A1 told him to flash the phone in order to get rid of the lock, so he took the phone to A3 to effect the flash for him. A3 in his defence told the court that the iPhone 6 was brought to him by A2 to be given to another person to flash for him because there was a password on it. According to A3 he later got information that the one he was supposed to give the phone to had travel so he decided to keep the phone till the person was back from his journey. A3 said the witness Patience Dawuni visited him in his room and saw the phone in his custody and informed him that the phone belonged to the complainant. A3 said he consequently called A2 and asked him about where he got the phone from and A2 told him that he bought the phone from A1. The accused persons did not call any witness and therefore brought their case to a close after their respective evidence. After the trial, it became the duty of the court to ascertain the following: 1. Whether A1 unlawfully entered the room of the complainant. 2. Whether A1 stole the complainant’s iPhone 6 3. Whether A2 and A3 dishonestly received iPhone 6 mobile phone valued GH¢1,000.00 being property of the complainant. The cardinal rule in all criminal proceedings is that the burden of establishing the guilt of the accused person is on the prosecution; and the standard of proof required by the prosecution should be proof beyond reasonable doubt as provided in the Evidence Act, 1975 (NRCD 323), per sections 11(2) and 13(1), and also as was stated in the case of Donkor v. The State [1964] GLR 598. Considering the nature of the issues raised I find it prudent to deal with the first two issues together as one issue. 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) provides that a person who steals commit a second degree felony. Section 125 of Act 29 states as follows: “A person steals if he dishonestly appropriates a thing of which he is not the owner”. In the case of Brobbey & Others v. The Republic [1982-83] GLR pgs 608-616, Twumasi J. stated as follows: “Three essential elements of the offence of stealing become obvious and they are: (1) That the person charged must have appropriated the thing allegedly stolen. (2) That the appropriation must have been dishonest. (3) That the person charged must not be the owner of the thing allegedly stolen.” PW2 in her evidence stated that whilst asleep in the complainant room together with the complainant she felt a touch on her body. But upon opening her eyes she realised it was not the complainant but someone else, so she raised alarm. I have critically read the charge statement of A1 (Exhibit ‘D’) dated 22nd February, 2023. In my view, A1 has confessed to the offence of unlawful entry and stealing. The relevant portion of A1’s confession is as follows: “…the truth is that about a month ago I was going home one dawn when I spotted the complainant and a certain lady sleeping in their compound. I also spotted the said phone beside the complainant; they were fast asleep. The phone was not in their room but in the compound. I only picked the said iPhone and left. I did not pick any keypad phone or money. After that I sold the phone to Rauf (A2) at GH¢300.00.” This confession was made in the presence of an independent witness. I have carefully examined the confession statement and I am satisfied that it meets the legal requirements of a confession statement within the intendment of section 120(3) of the Evidence Act, 1975, (Act 323) and which requirements were recently given illumination by the Supreme Court in the Ekow Russel vrs. The Republic [2016] SCGLR. From the record, I find that A1 unlawfully entered the house of the complainant on 25th January, 2023 at about 3:00am and made away with his iPhone 6 mobile valued GH¢1,000.00 phone without the consent of the complainant. I also find that the accused sold the said iPhone 6 to A2 at the cost of GH¢300.00. I again find that the accused has confessed to the commission of the offence; see Exhibit ‘D’. The defence of the accused that he found the phone on the ground at Sikafoabantem is clearly a poor attempt at throw dust in the eyes of this Court. I find that A1 did not disclose any reasonable defence neither was he able to raise reasonable doubt in the case of the prosecution. On all the foregoing I am convinced that the prosecution has established all the ingredients of the offences on count one and two supra. Thus the prosecution has proved the guilt of A1 beyond reasonable doubt. I find A1 DAUDA GADO guilty of the offences of unlawful entry and stealing and he is accordingly convicted on same. I shall now deal with the third and final issue i.e. whether A2 and A3 dishonestly received the complainant’s iPhone 6 mobile phone. Section 146 of Act 29/60 provides that, a person who dishonestly receives property which that person knows has been obtained or appropriated by a criminal offence punishable under this chapter commits a criminal offence and is liable to the same punishment as if that person had committed that criminal offence. See Salifu & Another V The Republic (1974) 2 GLR 291. “Knowledge” refers to knowing that the goods have been stolen at the time the goods are received and not subsequent to that date. Section 147 (1) of Act 29/60 provides that, a person commits the criminal offence of dishonestly receiving property which that person knows to have been obtained or appropriated by a criminal offence, if that person receives, buys, or assist in the disposal of the property otherwise than with a purpose to restore it to the owner. From the evidence there is no denying the fact that A2 & A3 indeed received the stolen iPhone. Whilst A2 indicated in his caution statement that he received the phone from A1, A3 on his part indicated that he received the phone from A2. Having already established in issue 1 & 2 supra that A1 stole the phone from complainant, the question is whether A2 and A3 at the time of receiving the above stated phone, knew that the phone was obtained or appropriated by a criminal offence? Secondly, whether A2 & A3 assisted in the disposal of the complainant’s iPhone otherwise than with a purpose of restoring same to the complainant. In his caution statement (Exhibit ‘B’) dated 20th March, 2023, A2 stated as follows: “……. It was one Wednesday, at about 7:30pm that I received a call from Kyeina (A1). I went to him and he told me that someone brought him a phone to sell and the price is GH¢700.00. I told him I don’t have such money but I can pay GH¢300.00. He took the money and handed over the phone to me. Later I detected that there was a password or lock on the phone so I called to inform him but he asked me to flash the phone so I gave same to Bossy (A3) to flash for me.” From A2’s caution statement above, it is safe to infer that A1 did not know or have the password to the phone he sold to A2 and that was why he told A2 to flash the phone in order to open it up or unlock it for his personal use. If A2 was not in connivance with A1, he should have realised that the phone was obtained through a criminal offence, since A1 who sold the phone to him did not know or have the password to the phone. But A2 did not stop there, rather he went ahead to carry out the instruction of A1 thus, by giving the phone to A3 for the purpose of flashing or unlocking. In his evidence A2 stated that A1 brought the phone to him as a collateral and obtained a loan of GH¢300.00 and that A1 later told him to use the phone for the mean time because A1 could not immediately pay back the loan and he took the phone to A3 to unlock for him. This piece of evidence by A2 is in sharp contrast and inconsistent with what he told the police in his caution statement. In his caution statement he categorically stated that he bought the phone from A1 at a cost of GH¢300.00. This inconsistency in A2’s account point to only one conclusion that he is not a credible individual. 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…’ A2 herein has not been able to give any reasonable explanation for this glaring contradictions in his earlier statement to the police and his evidence in this court. In the circumstances the court will not place no value to his account. On the record I find that A2 was not acting in good faith or for the purpose of restoring the complainant’s phone to him, rather, he was scheming to have the phone unlock and to keep it for his personal use. In the circumstances I find A2 guilty of the offence of dishonestly receiving and he is accordingly convicted on count three. I shall now deal with the part of A3 PW2 in her evidence in this court stated that she visited A3 in his house and saw the stolen iPhone in A3’s possession and when she confronted A3, he told her that it was A2 who brought the phone to him to flash. A3 in his caution statement (Exhibit ‘C’) to the police said A2 brought the iPhone to him to flash (unlock) for him because there was a password on it and he told A2 that he cannot flash the phone himself. But he knew someone who could help unlock the phone. So A2 left the phone with him to be given to that person. In A3’s caution statement he stated that when A2 brought him the phone he told him that he A2 bought the phone from A1. From the record there is no doubt that the three accused persons know each other very well before the incident. A1 stated in his caution statement that his job is rearing of cattle. His core job hence is not related to selling phones. In the respectful view of this court therefore, A3 was very much aware that the phone he was assisting A2 to flash or unlock was obtained from a criminal offence. I find therefore from the record that A3 at all material times was part of an enterprise that was maneuvering to deprive and/or to dispose of complainant’s iPhone. For the foregoing reasons A3, Hamani Shaibu a.k.a Bossy, is guilty and accordingly convicted on count four. By Court: Q. Are any of the accused persons known A. No my Lord Q. Accused person do you have anything to say by way of mitigation of your sentence. A. A1: A2: A3: By Court: In sentencing the accused persons the court has taken in to account the fact that they are all first time offenders. They have also pleaded in mitigation of their sentence. However, the court has also noted with worry the fact that stealing is a major headache within this jurisdiction. In the circumstance the accused persons deserve some degree of punishment to serve as a deterrent to others. For the foregoing reasons, the accused persons are sentenced as follows: A1 is hereby sentenced to a fine of 100 PU on count one and in default to serve six (6) months prison term. On count two A1 is sentenced to 100 PU and in default to serve eight (8) months prison term. A1’s sentence on count one and two are to run concurrently. A2 is sentenced to a fine of 60 PU and in default to serve six (6) months prison term. A3 Is sentenced to a fine of 60 PU and in default to serve eight (8) months prison term. SGD ALHASSAN DRAMANI, ESQ. DISTRICT MAGISTRATE 8TH AUGUST, 2023.