REPUBLIC VRS MOHAMMED (7/38/2023) [2023] GHADC 1144 (9 August 2023)

IN THE DISTRICT COURT HELD AT DAMBAI BEFORE HIS WORSHIP ALHASSAN DRAMANI, ESQ. ON TUESDAY, 9TH AUGUST 2023 CASE NO: 7/38/2023 REPUBLIC VRS ABDULAI MOHAMMED ACCUSED PERSON -PRESENT COMPLAINANT PRESENT ASP ALHASSAN A. RAZAK FOR PROSECUTION- PRESENT JUDGEMENT The accused person is charged with two counts of Unlawful entry and Stealing contrary to Sections 152 and 124 (1) respectively of the Criminal and Other Offences Act, 1960 (Act 29). He pleaded not guilty after the charges had been read out and explained to him. FACTS OF THE CASE The facts of the case as presented by the prosecution are that the complainant is a trader and lives at Dambai lakeside whilst accused Abdulai Mohammed is a butcher and lives at Dambai Canaan. Complainant’s wife has a tailoring shop at Dambai fish market where the complainant kept his 16 inches mattress. On Tuesday, 11th April, 2023 about 10:00pm, accused went to the shop of the complainant’s wife and noticed that the door was not properly locked. The accused went into the shop and made away with the mattress, but whilst he was leaving, he was spotted by a witness in this case but the accused warned the witness not to tell anyone else he will deal with him. That the accused was also seen by another witness who at the time did not know the mattress belonged to the complainant. The next day when the complainant detected the theft, he had information that it was the accused who stole the mattress but when he confronted the accused, the accused denied the allegation so the complainant reported the case to the police. The accused was arrested and a search conducted in his room but the mattress was not found. The accused was charged after investigations and arraigned before this court. The prosecution in proving its case called four (4) witnesses including the investigator and tendered four (4) exhibits. PW1 (complainant) confirmed the facts as presented by the prosecution. It is PW2’s evidence that his house is opposite the complainant’s wife’s shop. According to PW2 on that fateful night whilst in his house he heard noise at the shop so he came out and saw the accused standing in front of the shop with a mattress and when the accused saw him he warned him not to tell anyone else “I will see what he will do to me”. PW2 said the following morning he heard the complainant lamenting over the theft of the mattress so he informed the complainant that it was the accused who stole the mattress. PW3 told the court that she lives at Nkonya but sometimes visits Dambai. PW3 stated that on the night of 11th April, 2023 she was at the drinking spot of the complainant when she saw the accused carrying a mattress and passing by. That at the time, she did not know that it was a stole item. According to PW2 the next day whilst she was preparing to return to Nkonya she heard the complainant talking about the theft so she quickly remembered what she witnessed the previous night, so brought same to the attention of complainant. PW3 said she believe this was not the first time the accused stole from the complainant. PW4 (investigator) told the court that after the case was reported and referred to her for investigation the accused person personally reported himself to the police and was arrested and cautioned. According to PW4, during investigations, a search was conducted in the accused person’s room but nothing incriminatory was found. PW3 subsequently tendered in evidence two photographs of the crime scene, the cautioned and charge statements of the accused person without any objection and same marked exhibits “A” “B” “C” and “D” respectively. Thereafter, the prosecution closed its case. THE CASE OF THE DEFENCE In opening his defence, the accused person vehemently denied entering the complainant’s shop or stealing a mattress from the said shop. According to the accused he was not at the crime scene on the night of 11th April, 2023 and never also met or spoke with any of the prosecution witnesses. Accused stated that apart from being a butcher he is also an informant to the Regional Police Command. The accused said on the 12th April, 2023 whilst in his room in the morning with his wife, he heard a knock on his door and when his wife checked it was the complainant in the company of two others and they told his wife that they want to see him so he came out. According to accused, the complainant informed him that his form mattress was stolen from his shop the previous night by unknown person and as an informant to the police he needs the assistance of the accused to identify the thieves. Accused stated that he advised the complainant to lodge a complaint with the police since he is a civilian and could not do much. The accused said the complainant told him that he believe he the accused could assist him just like the way he is been assisting the police with information. According to the accused the complainant then gave him GH¢50.00 to buy fuel into his motor bike to help him go round and gather intelligence on the incident. Accused stated that the money was given to him by the complainant in the presence of his wife. Accused said few days later he heard rumors that he was being suspected of the crime so he went to the Police Station to lodge a complaint against the complainant for the false allegation but was advised by the police officers on duty to ignore the rumors so he went home. Accused further stated that he later heard the complainant had gone to the Police Station to lodge a complaint against him so he followed up to the police station and was arrested by the police. The accused called his wife, Ayisha Tamimu Zalia as DW1. DW1 largely corroborated the case of accused. According to DW1 on the night of 11th April, 2023 the accused return from work at about 7:00pm with complaint of stomach pains so after taking his bath the accused did not go out till the next morning. DW1 said she was present when the complainant told the accused about the theft of his mattress and also sought for the assistance of the accused to trace either the mattress or the thief. DW1 stated that she also witnessed the complainant handing over GH¢50.00 to the accused and telling him to buy fuel into his motor bike with it. The defence thereafter closed its case. Giving the facts and the evidence adduced, the main legal issue which the Court has to determine is: Whether the accused person unlawfully entered the shop of the complainant’s wife on 11th April, 2023 at about 10:00pm; and whether the accused stole the complainant’s mattress. To resolve this issue, the relevance of sections 11(2) and 13 (1) of the Evidence Act, 1975 [NRCD 323] cannot be ignored. “11. Burden of producing evidence defined. (2) In a criminal action the burden of producing evidence, when it is on the prosecution as to a matter of 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 a reasonable doubt.” “13. Proof of crime. In any civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt”. It is fundamental in a criminal prosecution that the prosecution must prove its case: a person however clear the evidence seems to be, is innocent until proved guilty [See C. O. P v. Isaac Antwi [1961] GLR 408; Woolmington v. DPP [1935] AC 462. “The prosecution has to prove its case beyond reasonable doubt, and the judge must not convict unless he is convinced that all the elements of the offence were present. In other words, the phrase ‘beyond reasonable doubt’ is the conventional way of expressing the idea that the judge must feel sure of the accused’s guilt.” I shall now take a brief look at the statutory provisions under which the accused person is charged. Section 152 of 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 the Criminal Offences Act, 1960, (Act 29) provides: “Whoever steals shall be guilty of a second degree felony”. On definition of stealing, section 125 of the Act 29 states: “A person steals if he dishonestly appropriates a thing of which he is not the owner”. Twumasi J, expounded the definition in Brobbey & Others v. The Republic [1982-83] GLR 608-616 where he named three elements that must prevail to found a charge of stealing. According to the Learned Justice, the three essential elements are that: “(1) the person charged must have appropriated the thing allegedly stolen. (2) the appropriation must have been dishonest. (3) the person charged must not be the owner of the thing allegedly stolen.” EVALUATION OF EVIDENCE The accused person throughout the trial denied stealing the complainant’s mattress. Similarly, in his cautioned and charge statements, he denied the offence and wrote as follows: “………… On 13th 04/2023 at about 5:00am I was in my house when the complainant and another friend came to me in the house and the complainant informed me that his mattress was stolen by unknown person and that if I hear someone have a mattress selling I should let him know. I wanted to become annoyed but had to control myself. I advised him to go and report to the police.” DW1 also stated that she was with the accused person throughout the night of the incident and the accused never went out let alone to steal the complainant’s mattress. PW1 and PW2 in their evidence said they saw the accused with a mattress on that fateful night. In the case of Dogbe v. The Republic [1975] 1 GLR 118-126 @ 121, it was held that: “In criminal trials the identity of the accused as the person who committed the crime may be proved either by direct testimony or by circumstantial evidence of other relevant facts from which it may be inferred by the court. In Cross on Evidence (2nd ed.) at p. 43 this is what is stated: ‘When there is no doubt that an act has been done, and the question is whether it was the act of a particular person, all relevant evidence is normally admissible in order to prove or disprove that fact’.” From the evidence adduced during the trial, the prosecution sought to prove the identity of the accused person by direct testimony since PW1’s evidence that he saw the accused with a mattress was corroborated by PW2. Also, in the case of Ameshinu v. The Republic [2010] 34 MLRG 207 @ 215, the Court of Appeal per Apaloo J. A held that: “Where the identity is in issue, there can be no better proof of the identity than the evidence of a witness who swears to have seen the accused person committing the offence charged.” Reference is also made to Regina v. Christie [1914] AC 545 per Viscount Haldane, L. C. It is trite that in every criminal trial it is not only necessary for prosecution to prove the commission of the crime, but also to lead evidence to identify the accused, as the one who committed it. A judge is to guide himself by considering factors such as the period of time over which the witness saw or observed the accused, the conditions in which the observation took place, whether or not the area or vicinity was lit to make observation possible, the distance between the witness and the accused or whether or not the description by the prosecution witness agreed with that of the accused. See the case of Razak and Yamoah V The Republic (2010) 2 SCGLR 750. In the instant case PW1 said his house is close the shop from which the mattress was stolen, and that he heard some unusual noise outside and when he came out he saw the accused with a mattress by the said shop. PW2 on her part told the court that she lives in Nkonya but visits Dambai sometimes. That on that fateful night she was in a drinking spot when she saw the accused carrying the mattress. Again, from the record the incident happened late night at about 10:00 pm. The incident hence happened when darkness had completely fallen making observation and identification quite challenging. Furthermore, even though PW1 said his house is close to the scene of crime, the exact or even the estimated distance to the crime scene was not disclosed. There is also no evidence on record showing how lit the area was. It is similarly doubtful how PW2 who does not live in Dambai would correctly and adequately identify someone at such late hour of the night under the above stated condition. The evidence on record is that during investigation the accused person’s place of abode was thoroughly searched but nothing incriminating was found in his room. Having been guided and considered these factors, I am not convinced that prosecution has been able to lead cogent evidence to identify the accused as the one who stole the mattress. The accused person as part of his evidence stated that he is an informant to the Regional Police Command and it was based on this trust that the complainant came to his house to seek for his assistance to trace the thieves. According to him the complainant even gave him an amount of GH¢50.00 to buy fuel into his motor bike to help him move around to gather intelligence with regards to the case. This piece of evidence was corroborated by DW1. However, when complainant came under cross examination by the accused on 19th June, 2023 the following transpired: Q. Do you remember that you came to my house one morning with some two others and informed me that your mattress was missing so you needed my assistance. A. Yes, I came to tell you that someone told me that he saw you carrying the mattress so if it was indeed true that you took my mattress you should return it to me. Q. I put it to you that you gave me GH¢50.00 to buy fuel into my motor bike to go round in search of the person who stole the mattress. A. That is not true. Q. I further put it to you that I advised you to report the case to the police first. A. That is true, but it because your name was mentioned that was why I came to ask you. From the above, even though complainant for the first time admitted going to engage the accused in his house over the mattress, has flatly denied giving money to the accused person to help him look for the person who stole the mattress and that he only came to him upon suspicion that he was the one who stole the mattress. Instructively, the accused person’s claim that he is an informant to the police was not challenged or disputed by prosecution. In fact, prosecution rather confirmed this assertion including the fact that the accused was given some money by the complainant. Below was what transpired on 26/06/2023 when the accused came under cross examination by prosecution. Q. You told the court that you collected GH¢50.00 from the complainant, not so. A. The complainant himself willingly gave me the money to buy fuel into my motor bike to help him go round to search for the one who stole the mattress. Q. So, you indeed collected the money. A. Yes, I accepted the money in the presents of my wife. As a police informant I have to go round to gather some information about the case. Q. I put it to you that you took the money with the agreement that you were going to ensure the return of the mattress to the complainant. A. I accepted the money with the agreement that I will help him with information as an informant. Q. I put it to you that you are using your proximity to the police as an informant to perpetuate crime in town. A. I disagree with you, I don’t have any record of crime that is why the police trust me. I have assisted the police with timely and accurate information in the arrest of kidnapers and armed robbers even in recent times. It therefore beats my imagination that anyone will accuse me of stealing. Aside being an informant I am also a butcher and a responsible family man. Indeed, the above encounter further suggest that the accused was merely a suspect in the crime which suspicion has not been clearly proven. Further, from the above conflicting encounter in prosecution’s case there is doubt in the case of prosecution with regards to the guilt of the accused. In the case of Dexter Johnson v. The Republic [2011] SCGLR 601, Dotse JSC had this to say about the standard of proof in criminal matters and I quote: “Our system of criminal justice is predicated on the principle of the prosecution, proving the facts in issue against an accused person beyond all reasonable doubt. This has been held in several cases to mean that, whenever any doubts exist in the mind of the court which has the potential to result in a substantial miscarriage of justice, those doubts must be resolved in favour of the accused person”. The learned judge continued and I quote: “I believe this principle must have informed William Blackstone’s often quoted statement that ‘Better than ten guilty persons escape than one innocent suffer’ which was quoted and relied upon by me in the unanimous decision of this court in the case of Republic vrs Acquaye alias Abor Yamoah II, ex-parte Essel and Others [2009] SCGLR 749 @ 750”. In line with the above and considering the authorities listed above, I find that the prosecution has not been able to prove its case beyond reasonable doubt, and so the accused person herein, Abdulai Mohammed is hereby acquitted and discharged. SGD H/W ALHASSAN DRAMANI DISTRICT MAGISTRATE 9TH AUGUST, 2023.