REPUBLIC VRS YIN & 3ORS. (UE/BG/CT/B1/68/2022.) [2023] GHACC 1186 (18 September 2023)

IN THE CIRCUIT COURT HELD AT BOLGATANGA IN THE UPPER EAST REGION OF GHANA ON WEDNESDAY THE 18TH DAY OF SEPTEMBER, 2023 BEFORE HIS HONOUR SUMAILA MBACHE AHMADU (CIRCUIT COURT JUDGE) CASE NO. UE/BG/CT/B1/68/2022. THE REPUBLIC VERSUS 1. SAMUEL YIN 2. JOB GBANDAN 3. BOB YIN SAPAK 3. MBAYEL YIN. JUDGMENT The Accused persons are charged on three counts of Conspiracy to Commit Crime to Wit Causing Damage: Contrary to Section 23 and 172 of the Criminal Offences Act 1960 (Act 29), Causing Damage: Contrary to Section 172 of the Criminal Offences Act, 1960 (Act 29), Stealing: Contrary to Section 124(1) of the Criminal and other Offences Act 1960 (Act 29) as amended by paragraph 4 of NLCD 389/69. A4 is charged separately on count Four for Stealing: Contrary to Section 124(1) of the Criminal and Offences Act 1960 (Act 29) as amended by paragraph 4 of NLCD 398/69. The Accused persons have pleaded Not Guilty to all the counts. CASE FOR THE PROSECUTION. On 27/04/2022 at about 1530 hours, the complainant in the company of a Surveyor went to his site at Duusi to demarcate a plot of land. The complainant on arrival at the site met all the Accused persons leading a group of people agitating to attack anyone who decides to work on the land. The complainant ignored the agitation and asked the Surveyor to demarcate the land. In the process the Accused persons prevented the Surveyor from demarcating the land and A1, A2, A3 and A4 pelted stones at the complainant’s Toyota 4 Runner with Registration number GT 9696 – 16 and caused damage to the Rear Glass and the Tail Light of the Vehicle valued GH₵3,650.00 after which A4 Mbayel Yin picked an envelope containing an amount of GH₵20,000.00 from the complainant’s Car. The accused persons after attacking and driving away the complainant vent their anger on the complainant’s Vulcanizing shop and broke part of the building and further stole two pumping machines valued GH₵27,570.00. In support of the case for the Prosecution, 5 (Five) witnesses were called, PW1 (The complainant) Mathew Napo, PW2 (Akada Zong), PW3 (Eric Adjei the Surveyor), PW4 (Napo Dong) and PW5 (The Investigator No. 11511 PW/Cont. Apamor Freda) who tended in evidence Exhibits “A”, “B”, “C”, “D”, “E”, “F”, “G”, “H” and “J” series and “K” series. THE CASE FOR THE DECENCE. A1 says he was instructed by his brother who is the Regent of Duusi to take Tongo Ranaa Elders to the site and when they got to the site they met crowd of people who came there because of the presence of the police and on their arrival the crowd started agitating and he had to return to the Palace to report and that he did not cause damage to the Car of the complainant and that he did not also steal the Vulcanizing machines of the complainant. A1 called one witness in support of his case Akolgo George who said on his arrival to the site he saw one man being escorted to the vehicle of PW1 and he also saw A1 in the crowd and called him and he told him to take him back to the Palace. A2 said he was not present at the scene of crime as he was in a meeting somewhere and that he did not steal the Vulcanizing machines of the complainant. A3 says he was at the Palace of the Regent but he did not follow them to the site and that he did not cause damage to the Car of the complainant and did not also steal the Vulcanizing machines. A4 says he was also at the Palace of the Regent but he just like A3 did not follow them to the site and that he did not cause damage to the Car and did not also steal the Vulcanizing machines of the complainant. The Defence tended in evidence Exhibit “1” the hand written statement offered to the police by the complainant when the matter was fresh. BURDEN OF PROOF. Prosecution must prove its case beyond reasonable doubt under Sections 11(2) and 13(1) of the evidence Act 1975 NRCD 323. INGREDIENTS OF CONSPIRACY. Section 23(1) of Act 29, 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 previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence. Ingredients for causing damage contrary to Section 172 of Act 29. – The damage Must not only be intentional but also unlawful, a mere damage without more is insufficient. Ingredients for stealing. (i) The person charged must have appropriated the thing allegedly stolen, (ii) The appropriation must be dishonest and (iii) The person charged must not be the owner of the thing allegedly stolen. ANALYSIS AND APPLICATION OF THE LAW. From the evidence adduced before this Court from both the Prosecution and the Defence, I made the following findings:- 1. There is a dispute over a piece of land, pending before the Tongo Rana, between the complainant and A3, Samuel Zanore and one John. 2. That the presence of elders of Tongo Rana and Surveyor was in furtherance finding a resolution to the land dispute. 3. That there was crowd of people on the land in dispute at the time the complainant and elders arrived. 4. That the complainant’s Toyota 4 Runner with registration number GT. 9696 – 16 was damaged to the rear glass and the tail lights. 5. This damage was caused by the group of people on the land. 6. That the damage to the back of the Car only clearly indicates that the complainant was escaping from them when the stones were thrown. 7. That there is damage to the building structure of the complainant housing his vulcanizing machines. 8. I find as fact that the Accused persons were part of the crowd on the site. 9. I find that in the circumstance under which the complainant and other witnesses escaped from the scene it would be difficult to see persons in the crowd who pelted the stone at the Car. ON COUNT ONE: The complainant in his statement to the police when the matter was fresh in his mind said on arriving on his scene he saw Bob-Yin Sapak (A3), Samuel Zanore, Job Gbandan (A2) and Mbayel Yin (A4) leading a group of people numbering 200 agitating to attack anyone who decides to work on the land. All that prosecution must do to sustain the conspiracy charge is to establish that the Accused persons and others who were on the site agreed to commit the offence of causing damage and that they carried out their agreement. In R Vs. Mulcahy (1868) L. R. 3H. 306 HL Willes J. said in page 317 thus; “A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means” See also State Vs. Otchere (1963) 2 GLR 463 per korsal CJ. Again, in Azametsi & ors. Vs. The Republic (1974) 1 GLR 228 CA. The 1st Appellant was the head of a fishing group that decided to offer human sacrifice to the sea- god for a bumper catch. A member of the group was subsequently killed in the house of the 1st appellant. The killing was witnessed by the 1st appellant and his wife. Subsequently, the 1st appellant made arrangements for the disposal of the body. In an appeal against the 1st appellant’s conviction for conspiracy to commit murder, the Court held that there was enough evidence of a common purpose and therefore he was guilty of the offence of conspiracy. From the evidence adduced by the prosecution in the instant case the complainant’s vulcanizes shop was damaged on 27/04/2022. The Accused persons have been identified as acting together who actually damaged the building. PW4 states in paragraphs 5 of his evidence in chief as follows: “Whiles there, I also saw Accused Job Gbandan with a club hammer and Samuel Yin, Bob Sapak and Mbayel Yin also with pick axes breaking down the complainant’s Vulcanizing shop. ON COUNT TWO. The Accused persons having been present on the site leading the crowd to attack the complainant and the other witnesses even when they were leaving the site and causing damage to the rear glass and the tail lights is clearly intentional and unlawful. It is immaterial who among the crowd threw the stones; that eventually caused the damage. The investigation cautioned statement of A1 marked as Exhibit “A” revealed a lot of the intentions of the Accused persons and the Regent John whom A1 represented on the site towards attempted resolution of the land dispute by the Tongo Rana. Which is to mobile the community to prevent any development by the complainant; which has materialized on the said day. Because, the presence of the police alone is no basis for the mobilization of the members of the community. If that were the case, then the attack would been have directed at the police personnel; that were on the ground and not the complainant and the elders from the Tongo Rana’s Palace. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is laible for that Act in the same manner as if it were done by him alone as stated in the case AZAMATSI Supra, there is enough evidence of a common purpose and all identified persons are liable. DW1 Akolgo George was clear about the location of A1 in paragraph 5 of his evidence in chief. “When I got to the place, I saw policemen escorting one man into a vehicle and I saw A1 too in the crowd”. The crowd that pelted the stones at the back of the Car. ON COUNT THREE. There is evidence that the Accused persons caused damage to the structure, as testified to by PW4 but the same PW4 says he did not see them carry away the machines and that no further evidence to prove that the Accused persons carried away the machines but of cause, the destruction of the structure could have facilitated the stealing of the machines by other persons, however the accused persons are not charged for abetting. ON COUNT FOUR. From my observation of the holes created on the rear glass of the Car and the Height of a 4 Runner and the height of A4 and the circumstance under which the complainant escaped from the scene I find a near impossibility for A4 to have taken an envelope containing money from the boot of the Car without having a cut on his arm. Because the large hole is high up the glass. In conclusion, I am of the view that, the Accused persons having acted together in the damage to the structure housing the vulcanizer shop, the prosecution have established beyond reasonable doubt that the Accused persons acted together to cause damage to the complainant’s property, I also find that on the common purpose principle the Accused persons caused damage to the Car of the complainant. I hereby find them guilty on count one and two. On the other hand I don’t find count three and four proved I hereby acquit and discharge on count three and four. In sentencing the Accused persons I have taken into account that the Accused persons are first time offenders and that they have dependents Wives and Children and A3 is of advance of 66 years A1 56 years but have also taken into consideration the action of possible coursing crimes under the guise of mob actions and set the Accused persons as example to deter others from doing same and also the value of the items charge which are above GH₵ 10,000.00 pushing the offences to second degree felloes. I hereby sentence the Accused persons A1 to pay a fine of 550 penalty units in default 3 years in Prison Custody on count one and two to run concurrently. A2 is sentence to pay a fine of 600 penalty units in default 4 years in Prison Custody, on count one and two to run concurrently. A3 is sentence to pay a fine of 500 penalty units in default 2 years in Prison Custody on count one and two to run concurrently and A4 to pay a fine of 600 penalty units in default 4 years in Prison Custody, on count one and two to run concurrently. I further order a compensation of GH₵50,000.00 in favour of the complainant. HIS HONOUR SUMAILA MBACHE AHMADU (CIRCUIT COURT JUDGE). 8