REPUBLIC VRS KWOGYGA (UE/NA/DC/B7/30/2023.) [2023] GHADC 1273 (6 October 2023)

IN THE DISTRICT COURT HELD AT NAVRONGO IN THE UPPER EAST REGION ON FRIDAY 6TH DAY OF OCTOBER, 2023, BEFORE HIS WORSHIP FAMOUS YAO AMANYO (DISTRICT MAGISTRATE) COURT SUIT NO UE/NA/DC/B7/30/2023. THE REPUBLIC VERSUS. KWOGYGA EMMANUEL JUDGMENT [1]On the 14th July, 2022 the accused was brought before this court on a charge of stealing, country to section 124(1) of the Criminal Offences Act, 1960(Act 29). Accused pleaded not guilty and full trial of this matter was ordered. [2]The facts of this case are that the PW1 and accused were friends residing of Punyoro Navrongo and Pungu Manchoro Navrongo respectively. On 26th June 2022 at about 7:30am Accused deceived PW1 that he was going to buy meat with PW1’s motorbike. PW1 gave the accused GH₵5.00 to buy some of the meat for him. Accused went with the motorbike and never returned with the meat and the motorbike. The following day PW1 searched for and met accused only for accused to tell him that the motorbike got missing. [3]Prosecution presented its case through two witnesses. PW1 stated that on 26th June, 2022 at about 7:30 pm he and accused went to a drinking spot called striker located at Pungu Navrongo to have refreshment. The accused person asked him for his motorbike with Registration number M-20-US 3138 to enable him buy meat at Navrongo which request he obliged. After accused had left, he sat at the said spot and waited for Accused to comeback till 10:00 pm but he did not return. He went to Navrongo in search of the Accused and saw him with one of his friends riding the motorbike on top speed. He signaled them to stop but they could not do so. [4]On 27th June, 2022 at about 7: 20 am he traced the Accused and got him at his friend’s house sitting, with the motorbike ignition key in his hand. Accused told PW1 that they did not see the motorbike when he asked him about the whereabouts of the motorbike. He and accused searched for the motorbike but could not find it. According to PW1 the motorbike costs GH₵4,100.00 [5]PW2 stated that he investigated the case and took caution statement from accused. He tendered the caution dstatement, charge statement and documents covering the said motorbike as exhibits A, B and C. [6]The defence of Accused is contained in the statement he made when he chose to remain in the dock and his caution statement. Accused stated in the dock that the cost of the motorbike is GH¢4,500.00 but PW1 said the motorbike costs GH¢10,000.00. [7]In his caution statement, Accused stated that he and PW1 on 26th June, 2022 at about 7: 15 pm went to a drinking spot called striker at Pungu. He collected PW1’s motorbike to go to Navrongo and buy meat. He went to his friend Bright. He and Bright went to Kajolo drinking spot and took some drinks. He and Bright again went to Bright’s Master and collected money. They pick Albert in addition and Bright was riding the motorbike. They moved from one drinking spot to another drinking. They went back to Kajolo spot and Bright collected the key of the motorbike from accused and pick someone to somewhere, returned and gave accused the key. Accused took the motorbike and went to his house but his wife refused to allow him to enter the room, because he was drank. So he returned to Bright’s house with the motorbike and parked it inside the compound, went and slept. The following day he woke up but did not see the motorbike. It was stolen by a thief or thieves. He was still in Bright’s house when PW1 came and asked of the motorbike. He was totally drank. He was told that he knocked someone down on his way to the house. Accused and PW1 searched for the motorbike but could not find it. [8]Section 11 (2) and 11(3) of the Evidence Act, 1975 (NRCD 323) provide for the evidential burden on prosecution and accused respectively. By section 11 (2) supra, it is the duty of prosecution to produce sufficient evidence to prove its case beyond reasonable doubt. Under section 11 (3) accused also has a burden to produce sufficient evidence to raise reasonable doubt as to guilt. It is trite as it was grounded in several judicial decisions that it is the duty of prosecution to prove its case. And that there is no duty on accused to prove anything. If there is any duty at all it is only to raise doubt as to his guilt. [9]In commissioner of Police v Isaac Antwi [1961] GLR 408 at 412 Korsah CJ stated that “the law is well settled that there is no burden on the accused. If there is any burden at all on the accused, it is not to prove anything, but to raise a reasonable doubt”. [10]In Mallam Ali Yusif v The Republic [2003-2004] SCGLR 174 the Supreme Court noted that “ the burden of producing evidence and the burden of persuasion are components of the burden of proof. Thus, although an accused person is not required to prove his innocence, during the course of his trial, he may run a risk of non-production of evidence and /or non-production to the required degree of belief, particularly when he is called upon to mount a defence” [11]It is required that prosecution proves its case beyond reasonable doubt. In Kugblenu v The Republic [1969] CC 160 CA Ollenu JA noted “it is trite law that the onus upon the prosecution is to prove their case beyond all reasonable doubt. This applies to all material issued and matters which form the pivot of the case of the prosecution or the pillar or foundation of the case upon which the case rests. If the prosecution leads evidence which creates uncertainty, they have tailed and the accused should be acquitted. [12]But in Adwoa Manso v The Republic [2009] MLRG 154 CA it was noted that the doubt which is expected to be beyond reasonable doubt needs to reach therefore of certainty it does not need to proof beyond the shadow at doubt but at the same time, it should not be fanciful, it should not lead to fanciful possibilities or raise fanciful possibilities. [13]To be able to meet the burden all the elements creating the charge of stealing ought to be proved. The prosecution must prove appropriation, that the appropriation was dishonest and that the accused was not the owner of the thing appropriated. [14]In Brobbey and Others v The Republic [1982-1983] GLR 6 Twumasi J (as he then was) held that “By the provision of Act 29 section 125, the essential elements of the offence of stealing were that (i) (ii) (iii) the person charged must have appropriated the thing allegedly stolen, the appropriation must be dishonest and the person charged must not be the owner of the thing allegedly stolen Consequently, a person could not be guilty of stealing unless he was proved to have appropriated the thing in the first place” [15]It is a fact in this case that the accused represented to PW1 that he was going to buy meat and needed to use his motorbike. PW1 gave accused GH5.00 to buy the meat for him as well. Accused left and never returned with the meat and the motorbike. PW1 saw accused and signaled him to stop but accused sped off. With this pieces of evidence it is observed that accrued deployed deceit in obtaining consent of PW1 to ride his motorbike away. PW1 later demanded for his motorbike by stopping accused but he sped off. In my opinion these two behaviours of accused point to irresistible conclusion that accused has appropriated the motorbike and the said appropriation was dishonest. This is so because, firstly even though he obtained consent of PW1 before he took the motorbike he did so by deceit. It is trite that consent obtained by deceit is void. [16]In section 14 (b) of the Criminal Offences Act, 1960 (Act 29), it is provided that “consent is void if it is obtained by means of deceit or duress”. [17]Again in Republic v Gomez [1992] 3 WLR 1067, HL it was held that “consent obtained by deception was not valid consent therefore his conviction was proper.” [18]Secondly PW1 made demand for his motorbike by signaling accused to stop but he failed or refused to do so. To my mind this clearly shows accused intents to defraud PW1 of his motorbike. He ought to have stopped and listenend to what PW1 had to say. Section 120(1) (a) provides “an appropriation is dishonest if it is made with an intent to defraud”. Cross examination of PW1 by accused has revealed the extent of accused’s dishonesty as follows: Q. I put it to you that I did not steal your motorbike, you handed over the key to me? A. You asked for the motorbike key to go and buy meat. That was why I gave the key to you. Q. Are you not the one who gave me the money meant for the meat? A. I added GH₵5.00 to the money you had to buy the meat. Q. Since we are together for a very long time have you ever heard that I have stolen something. A. No. Q. Have we not been going together before the motorbike got missing? A. We have been going together and drinking but the motorbike did not get missing. You collected the key and said you were going to buy meat. I waited for you, you did not return. I traced you and saw you sped with the motorbike passed and you refused to stop when I signaled you to do so. [19]The accused made statement in the dock which cannot exonerate him. However, in his caution statement which was tendered by prosecution, he defended this case that he was drank and as a result of his intoxication he lost the motorbike. [20]According to accused he took the motorbike and went to his friend. They were moving from one drinking spot to another drinking and finally he became drunk. In my opinion, I find that at the time accused deceived PW1 that he was going to buy meat and took the motorbike, he was not drank. He was in his right senses capable of differentiating what was good and bad. Assuming without admitting that accused was drank, why did he not demonstrate how drank he was by calling his friends and wife as witnesses to raise the doubt required of him. He stood in the dock and made statement which raised not defence as far as this case is concerned. He chose to avoid cross examination by standing in the dock. [21]It seems to me that accused made up his mind of dealing with PW1 the manner he did at the time he took the motorbike and not after his alleged intoxication. [22]Section 28(1) (2) of the Criminal Offences Act, 1960 (Act 29) provides for defence of intoxication. It states “(1)except as provided in this section, intoxication is not a defence to a criminal charge. (2) Intoxication is a defence to a criminal charge if by reason of the intoxication the person charged at the time of the act complained of, did not know that the act was wrong or did not know what that person was doing and (a) the state of intoxication was caused without the consent of that person by the malicious or negligent act of another person or (b) the person charged was, by reason of intoxication, insane, temporarily or otherwise at the time of the act.” [23]To my mind, accused did not meet any of the requirement of intoxication provided for under section 28(2). By moving from spot to spot for his drinking spree as Accused alleged, there is a presumption, if his assertion is anything to go by, that accused intends the natural and probable consequences of his acts and he could not use his alleged intoxication as a defence, under the circumstances of this case. To worsen his plight he failed to prove his purported intoxication. [24]In Ketsiawah v The State [1965] GLR 483 it were held that “for the defence of intoxication to succeed, it must in the first place be proved that the person pleading it was so intoxicated at the time he did the Act complained of that either he did not know that the act he was doing was wrong or he did not know what he was doing. Where the intoxication is self-induced, the person pleading it has the onus of proving that the intoxication had made him insane temporarily or otherwise at the time of the act. The standard of proof applicable to this onus was one of reasonable probability and this standard was not discharged by bare evidence of the consumption of liquor. On the evidence, the accused had not discharged this onus.” [25] Has the accused in this case discharged his burden of proving his alleged intoxication? In my humble opinion, the answer is no. When he was given opportunity to testify, he remained in the dock and made his statement short of any proof. [26]By comparing the fact and law I have no doubt that the prosecution has proved its case beyond reasonable doubt. The accused has not been able to raise doubt as to his guilt or prove his alleged defence of intoxication on the balance of probabilities, as required of him. [27]In the result I found the accused guilty of the offence of stealing and convicted him as such. [28]In sentencing accused, my focus is on the provisions of the law as a guide. Section 124(1) provides “A person who steals commits a second degree felony but the specific sentence is contained in section 296 (5) of the criminal offences (procedure) Act 1960 (Act 30). It was stated there that a person convicted of a criminal offence under any of the following sections of the criminal offences Act, 1960 (Act 29) that is to say section 124…is liable to a term of imprisonment not exceeding twenty five years. This sentence provides a range between one day to 25 years. The two years limit of District Court in sentencing is also strictly obeyed. The Ghana sentencing guidelines also serves as a guide and provides for fines of 0 to 500 penalty units. [29] Apart from provisions as above, the court is entreated to consider aggravating and mitigating factors in sentencing accused within the range provided. The said factors were also provided for under the sentencing guidelines which I have critically looked at. [30]These factors were summarized in Kwashie v The Republic [1971] 1 GLR 488, CA. as follows: “(1). the intrinsic seriousness of the offence; (2). the degree of revulsion felt by law abiding citizens of the society for the particular crime; (3). the premeditation with which the criminal plan was executed; (4). the prevalence of the crime within the particular locality where the offence took place, or in the country generally; (5) the sudden increase in the incidence of the particular crime; and (6) mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed. Thus a judge in passing sentence may consider the offence and the offender as well as the interest of society.” [31]In this case, I found that the accused is not known. The motorbike is for his own friend. He is not violent, he is in his extreme youthful age. He is an opportunist. However, accused has not shown remorse as he is not willing to return the motorbike to PW1. There is prevalence of stealing in the communities in Navrongo. In my opinion and on the balance of probabilities I have observed that the aggravating factors are few as compared to mitigating factors in this case but the sentence must deter likeminded persons whose enterprise is stealing. [32]I therefore sentenced accused to pay a fine of 300 penalty units and in default serve a prison term of one year in hard labour. Accused is ordered to purchase another motorbike for PW1. PW1 is directed to take steps to enforce recovery of his motorbike from accused if he fails to replace it. (SGD.) H/W. FAMOUS YAO AMANYO (DISTRICT MAGISTRATE) REPRENTATION 1. D/Inspector Francis Yaw Amana for Prosecution. 2. No Legal representation for Accused 10