Republic Vrs Mensah and Another (B7/47/2021) [2023] GHACC 960 (15 November 2023)

IN THE CIRCUIT COURT DUNKWA-ON-OFFIN; SITTING ON 15TH NOVEMBER 2023 CORAM: HIS HONOUR YAW POKU ACHAMPONG CASE NO.: B7/47/2021 THE REPUBLIC VS 1. ERNEST MENSAH @ NANA YAW SPEEDO 2. KWABENA ONOME @ ASUBONTENG 1ST ACCUSED PERSON ABSENT 2ND ACCUSED PERSON PRESENT SERGEANT PRINCE ADU AMOAKO PRESENT, HOLDING THE BRIEF OF DETECTIVE CHIEF INSPECTOR PETER SADAARI FOR PROSECUTION JUDGMENT Accused persons were arraigned before this court charged as follows, as on the charge sheet mutatis mutandis: COUNT ONE STATEMENT OF OFFENCE CONSPIRACY TO COMMIT STEALING; CONTRARY TO SECTION 23(1) AND 124(1) OF THE CRIMINAL OFFENCES ACT, 1960(ACT 29) PARTICULARS OF OFFENCE 1. ERNEST MENSAH @ NANA YAW SPEEDO; AGED 28 YEARS: GALAMSEYER 2. KWABENA ONOME @ ASUBONTENG; AGED 24 YEARS, GALAMSEYER: For that you on the 20th day of July, 2021 at about 1:00am, at Denkyira Domenase in the Central Circuit and within the jurisdiction of this court, did agree to act together with common purpose to commit crime, namely: stealing. COUNT TWO STATEMENT OF OFFENCE CAUSING UNLAWFUL DAMAGE; CONTRARY TO SECTION 172(1)(b) OF THE CRIMINAL OFFENCES ACT, 1960(ACT 29) PARTICULARS OF OFFENCE 1. ERNEST MENSAH @ NANA YAW SPEEDO; AGED 28 YEARS: GALAMSEYER 2. KWABENA ONOME @ ASUBONTENG; AGED 24 YEARS, GALAMSEYER: For that you on the 20th day of July, 2021 at about 1:00am, at Denkyira Domenase in the Central Circuit and within the jurisdiction of this court, did intentionally and unlawfully cause damage to the wire net, 2 MTN SIM cards valued GH¢120.00 the properties of one Samuel Quacoe. COUNT THREE STATEMENT OF OFFENCE UNLAWFUL ENTRY, CONTRARY TO SECTION 152 OF THE CRIMINAL OFFENCES ACT, 1960(ACT 29) 1. ERNEST MENSAH @ NANA YAW SPEEDO; AGED 28 YEARS: GALAMSEYER 2. KWABENA ONOME @ ASUBONTENG; AGED 24 YEARS, GALAMSEYER: For that you on the 20th day of July, 2021 at about 1:00am, at Denkyira Domenase in the Central Circuit and within the jurisdiction of this court, did intentionally and unlawfully enter the room of one Samuel Quacoe with intent to commit crime to wit stealing. COUNT FOUR STATEMENT OF OFFENCE STEALING; CONTRARY TO SECTION 124(1) OF ACT 29 AS AMENDED PARTICULARS OF OFFENCE 1. ERNEST MENSAH @ NANA YAW SPEEDO; AGED 28 YEARS: GALAMSEYER 2. KWABENA ONOME @ ASUBONTENG; AGED 24 YEARS, GALAMSEYER: For that you on the 20th day of July, 2021 at about 1:00am, at Denkyira Domenase in the Central Circuit and within the jurisdiction of this court, did steal an itel P33 mobile phone valued GH¢400.00, Nokia keypad mobile phone valued GH¢120.00 and cash the sum of GH¢7,700, the properties of one Samuel Quacoe. Section 124(1) of Act 29 states: Whoever steals shall be guilty of a second degree felony. Section 23(1) of Act 29 states: Where two or more persons agree to act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime, as the case may be. Section 152 of Act 29 states Whoever unlawfully enters any building with the intention of committing crime therein shall be guilty of second degree felony. The set of facts the prosecution relied on to charge Accused persons are as follows: 1. Complainant is a resident of Denkyira Domenase and he is a mobile money merchant and also a gold buying agent. Accused persons are “galamseyers” resident at Denkyira Domenase and Abora respectively. 2. On 20th July 2021 at about 3:30am, Complainant woke up and detected that the wire mesh of his window had been cut and his nokia keypad mobile phone valued 120, itel A33 Android mobile phone valued GH¢400.00, two Tanita Digital Scales valued 1640 and cash the sum of GH¢7700.00 all to a total GH¢9860.00 were missing. 3. Complainant made a complaint to the Police; upon a tip-off the residence of the accused persons was visited; A1 upon seeing the police took to his heels but was arrested. A search was immediately conducted on A1 and a nokia keypad mobile phone and cash the sum GH¢420.00 were found on him. Upon interrogation of A1, he disclosed that he conspired with A2 to commit the crime. 4. A1 led the police the room in which he and A2 resided and a search was conducted in that room and the following items were found: one itel P33 mobile phone, two tanita digital scales, a bag, nine different mobile phones, one locally manufactured pistol, one face mask, a spanner, two machetes, one screw driver, two knives, two pairs of scissors and a pair of pliers. 5. Complainant identified the nokia keypad mobile phone, the itel mobile phone, the digital scales and the bag as his. 6. On the same day as A1 was arrested, some irate youth of Domenase arrested A2 and handed him over to the police. 7. In their respective investigation cautioned statements each Accused person admitted the offences. Prosecution called one witness – the investigator herein. He was referred to as PW1 when he testified. The following is among the content of the witness statement of PW1 that metamorphosed into his evidence-in-chief: “... 3. On 21/07/2021 a case of stealing was referred to me by my station officer for investigation. 4. I got a tip off that A1 and A2 are[sic] the perpetrators of the crime. 5. Myself, together with L/Cpl. Samuel Ankamah of Domenase Police Station accompanied by the complainant … went to the residence of accused persons who reside[sic] in the same room on enquiries. 6. Whilst complainant was leading us to the house of A1 Ernest Mensah @ Nana Yaw Speedo on seeing us took to his heels. 7. Myself and complainant gave him a hot chase and finally arrested him. 8. I conducted a search on A1 ...immediately and found one blue Nokia keypad phone and cash the sum of GH¢420.00 on him. 9. The Complainant identified the blue Nokia keypad phone as his. 10. During interrogation A1 told me in the presence of the complainant that he conspired with A2 ...to break into the complainant’s house through the window and stole the blue Nokia keypad phone, the itel P33, two Tanita digital Gold weighing scales and a brown bag. 11. A1 led me and the complainant to the room he and A2 sleeps[sic] and a search was conducted in his presence. 12. One itel P33, two Tanita digital Gold weighing scales and a brown bag belonging to complainant were found in the room. 13. Upon a further search we retrieved nine different mobile phones, one pink face mask, one 41mm spanner, two machetes, one screw driver; two knives, two pair[sic] of scissors and a plier[sic] from the room. 14. Whilst at the station, the youth of Domenase arrested and brought to the station A2 and handed him over to us. 15. I further interrogated A1 and A2 separately and they admitted haven[sic] conspired to steal from the complainant and did act together to steal Itel P33 mobile phone, Nokia keypad phone, two digital weighing scales and cash the sum of GH¢1,200.00 because they were hungry. … 17. Upon a tip off that A1 and A2 operate with a locally manufactured pistol, I asked them about the locally manufactured pistol and they denied having it in their possession so I and D/Inspr. Samuel Fofie took A1 and A2 back to their room and searched there thoroughly and the locally manufactured pistol was found hidden on one of the stuffing chairs in the room. … 19. A1 then told us that he found the pistol on the ground about a month before the incident and has[sic] since been keeping it. 20. On the same day complainant led me to his room and showed me the damaged window mesh where accused persons gained ingress through… 21. I personally obtained investigation caution statement from A1 and A2 separately… 22. I recorded them electronically onto my phone whilst taking their investigation cautioned statements in the presence of the independent witness for evidential purpose. ...” The statements taken from Accused persons for the purposes of investigations are as follow:- That of A1 reads: “On 20th July, 2021 at about 12:00am I and my friend Asubonteng planned to go round the Domenase town in search for chop money. We went to a house at Domenase Zongo and used knife to cut the wire mesh and Asubonteng entered the room by stepping on kitchen stool we took from the house. He then started bringing out the Nokia keypad phone, Itel touch phone and two Digital scales all in a bag and I collected it through the window. The bag was also containing money. Asubonteng then jumped outside and we went back home. When we got home we divided the money into two equal parts and when I wanted my share I got GH¢6,00.00. There was some I cedi denomination among the cash and we later shared it and I got GH¢15.00. Asubonteng then removed the chips from the phones and I told him to put the SIM cards in the bag. I put my own SIM card into the Nokia mobile phone and started using it. The two of us went and threw the bag containing the complainant’s sim card away. We then went back to sleep. The following morning on 21/07/2021 whilst in the house I dressed and went out to buy malt and whilst I was drinking it I heard people shouting Police, Police so I started running away and the policeman chased me and arrested me. After I was arrested the boys around wanted to remove the things in my pocket but the policemen prevented them and he searched my pockets and found the Nokia Keypad phone we took from the complainant’s room and a wallet containing money. The police then took me to my room and conducted a search in my room and found the phones and Digital scales, machettes[sic], face mask, brown pull over belonging to Asubonteng, plier, 41 mm spanner all in the room. I was later sent to the police station. All these[sic] while Asubonteng had gone to Abora and whilst at the Police Station Asubonteng was also arrested and brought to the station.” That of A2 reads: “For about two weeks now whenever I come to Domenase and I am unable to go to Abora I sleep in my friend Koby @ Omolo’s room at Domenase Zongo. About three weeks ago Nana Yaw @ Speedo was also staying in the same room with us. On Tuesday we did not get food to eat the whole day from 6:00am to 6:00pm so me and Nana Yaw @ Speedo plan[sic] that we take a walk or look for work to do sometimes we go to where they buy Gold to sweep the sand and later look for Gold in the sand and sell for money. We went round the town but we could not get any money so on our way back home we saw the window of the complainant and we used scissors to remove the nails from the wire net and burned it. We then entered the room through the window. We took two Digital scales, one Nokia Keypad phone and one Itel touch mobile phone, a bag containing cash the sum of GH¢1,200.00 and jumped out of the room. We went home and shared the money. I got GH¢630.00. Later we removed the SIM cards from the phones and broke it into pieces. After that Speedo went and throw the bag away. The following morning at about 6:00am I went to Abora to take my bath. Whilst at home about four boys from Domenase came and told me that Speedo has[sic] been arrested at Railways station so they need me there. I followed them and when we got to Domenase police station they sent me there and the police arrested me and retained me.” After Prosecution had closed their case, the court held that the accused persons had a case to answer. Section 173 of the Criminal and Other Offences(Procedure)Act, 1960(Act 30) states: If at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require him to make a defence, the Court shall, as to that particular charge, acquit him. The court explained section 174(1) of Act 30 and section 63 of NRCD 323 as well as Article 19(10) of the Constitution, 1992 to Accused. Section 174(1) of Act 30 states: At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused sufficiently to require him to make a defence, the Court shall call upon him to enter into his defence and shall remind him of the charge and inform him that, if he so desires, he may give evidence himself on oath or may make a statement. The Court shall then hear the accused if he desires to be heard and any evidence he may adduce in his defence. Section 63 of NRCD 323 states: (1) An accused in a criminal action may make a statement in his own defence without first taking an oath or affirmation that he will testify truthfully and without being subject to the examination of all parties to the action. (2) Such a statement by an accused is admissible to the same extent as if it had been made under oath or affirmation and subject to examination in accordance with sections 61 and 62. (3) The fact that the evidence was given without oath or affirmation, or that there was no possibility of examination, may be considered in ascertaining the weight and credibility of the statement, and may be the subject of comment by the court, the prosecution or the defence. Article 19(10) of the Constitution, 1992 states: No person who is tried for a criminal offence shall be compelled to give evidence. 2nd Accused who was present in court when the court called upon the accused persons to enter into their defence, chose to testify on oath (in the witness box). According to 2nd Accused(A2), he got to know 1st Accused(A1) when he(A2) was sent to the police station in respect of this case. On 20th July 2021, he was at home at Denkyira Abora; he was never at Denkyira Domensae on 20th July 2021 at about 01:00am. Between 08:30am and 09:00am on 20th July 2021, he was about to step out after he had woken up when one Agya Nantie, one Anaabi and two others(whose names he did not have in his encephalon), came to tell him that Domenase Police needed him at the Police Station. So A2 went to the police station. At the police station, the police told A2 that A1 who was already in police cells then had mentioned to the police that he went to steal some items with A2. The police then detained A2. The following, inter alia, is the cross-examination Prosecution did of A2: “… Q. I put it to you that on 20th October 2021, you slept in the room of the said Omolo at Denkyira Dominase, together with A1. A. It is not true. ... Q. You agree with me that on 20th July 2021 as at 06:00pm, you and A1 had not eaten and you were going round looking for job to get some money to buy food. A. It is not true. Q. And in the course of looking for the job, you and A1 sighted the window of the complainant opened. A. I did not see anyone’s window opened. Q. And you ie A2 went into the house of the complainant and picked a kitchen stool. A. It is not true. Q. And you placed the stool by the window and damaged the wire mesh and entered into the room of the complainant. A. It is not true. I do not even know where that building is. Q. And that when you entered into the room of the complainant, A1 stood outside. A. It is not true. Q. You stole from the room of the complainant… A. It is not true. Q. You agree with me that on 20th July 2021, you and A1 shared monies. A. It is not true. I do not know A1; so how can I share money with A1. Q. I put it to you that A1 is your best friend and that on 20th July 2021, you and A1 shared an amount of GH¢7700.00. A. It is not true. When I was arrested and taken to the police station, the police found only GH¢420.00 on me. Q. Do you remember that on 20th July 2021, you and A1 removed two sim cards from a nokia keypad mobile phone and A1 inserted his own sim card into that nokia phone. A. I do not know about that. I do not know the phone you are talking about. … Q. Will you be surprised to know that A1 stated in his statement to the police that he and you stole the nokia keypad phone from the complainant and you ie A2 ordered him to remove the sim cards from that phone and then he(A1) inserted his sim card in that nokia phone. A. It is not true. A1 has told me that he had not mentioned anyone’s name as being his accomplice on any crime and that A1 had also not committed any crime. Q. You and A1 put sim cards in a brown bag and hid it in a bush at Denkyira Domenase. Is that not correct. A. It is not true. I do not know A1. He is not my friend. So how can I and him go and hide sim cards at Denkyira Dominase in the bush. … Q. You remember that on 20th July 2021, you and A1 had in your possession two tanita digital scales. A. It is not true. It is in this court that the prosecution brought some scales. ...” A2 denied everything that the prosecution put to him. Abban J in Baah Ltd v. Saleh Brothers[1971] 1GLR 119 observed as follows: “It can therefore be seen that, on the whole, the plaintiffs simply put forward allegations of indebtedness in their statement of claim and repeated the same before the referee. It is well established that where a party makes an averment in his pleadings and it is denied, that averment cannot be sufficiently proved by just mounting the witness-box and reciting that averment on oath without adducing some sort of corroborative evidence. [emphasis supplied by me] When delivering his judgment in the case of Majolagbe v. Larbi [1959] G. L. R. 190, Ollennu J. (as he then was) at page 192 had this to say: "Here I may repeat what I stated in the case of Khoury and Anor. v. Richter on this question of proof. That judgment was delivered on the 8th December, 1958, and the passage in question is as follows: -'Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true'." This opinion of the law was not only approved but also stressed by the Court of Appeal in its judgment in the case of Norgah v. Quartey, Court of Appeal, 15 May 1967, unreported; digested in (1967) C. C. 115. In these circumstances, I am unable to say that the plaintiffs are entitled to the relief sought on the evidence before the referee. The evidence is not sufficient to satisfy the mind and the conscience of any reasonable referee and for that matter any reasonable judge so as to convince him to venture to act upon that conviction in favour of the plaintiffs. The referee was therefore justified in recommending that the plaintiffs' claim should be disallowed.” The prosecution failed to produce corroborative evidence to seek to buttress the evidence of PW1. Section 7(1) of the Evidence Act states: Corroboration consists of evidence from which a reasonable inference can be drawn which confirms in some material particular the evidence to be corroborated and connects the relevant person with the crime, claim or defence. The question is: is the evidence of the single witness produced by the prosecution in this case sufficient to counter the evidence of 2nd Accused? It was held in Kru v. Saoud Bros & Sons [1975] 1GLR 46, CA at page 48 per Apaloo JA that: “In so far as the issue involves the sufficiency of proof, the accepted statement of the common law is: "As a general rule, courts may act on the testimony of a single witness, even though uncorroborated; or upon duly proved documentary evidence without such testimony at all. And where the testimony is unimpeached, they should act on it and need not leave its credit to the jury."” The learned judge making reference to Ayiwa v. Badu [1963] 1 G. L. R. 86, S. C.; Republic v. Asafu- Adjaye (No. 2), Court of Appeal, 1 July 1968, unreported; digested in (1968) C. C. 106 and Commissioner of Police v. Kwashie (1953) 14 W. A. C. A. 319, further stated also at page 48 that: “...judicial decisions depend on intelligence and credit not the multiplicity of witnesses produced at the trial.” In Logos & Lumber Ltd v. Oppong [1977] 2 GLR 263, CA, it was held that a court could act on the testimony of a single witness provided that: (i)He was an honest witness; (ii) There was nothing in his background to cast doubt on his veracity; (iii)He had no motive to misrepresent facts or be biased; and (iv)His evidence was in no way tainted, i.e. he was not an accomplice. I find the evidence led the prosecution through a single witness is largely well presented and as it was not dented by any cross-examination, I find it quite credible. Section 80 of the Evidence Act states: (1) Except as otherwise provided by Act, the court or jury may, in determining the credibility of a witness, consider any matter that is relevant to prove or disprove the truthfulness of his testimony at the trial. (2) Matters which may be relevant to the determination of the credibility of the witness include, but are not limited to the following: (a) (b) the the demeanour substance of of the the witness; testimony; (c) the existence or non-existence of any fact testified to by the witness; (d) the capacity and opportunity of the witness to perceive, recollect or relate any matter about which he testifies; (e) the existence or non-existence of bias, interest or other motive; (f) the character of the witness as to traits of honesty or truthfulness or their opposites; (g) a statement or conduct which is consistent or inconsistent with the testimony of the witness at the trial; (h) the statement of the witness admitting untruthfulness or asserting truthfulness. See Ntiri v. Essien [2001-2002] SCGLR 451, where it was held that the trial judge has the duty to ascertain credibility of a witness. In Miller v. Minister of Pensions [1947] 2 All ER 372 @ 373, Denning J (as he then was) stated, inter alia, in analyzing proof beyond reasonable doubt, that: “… It need not reach certainty, but it must carry a high degree of probability, proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.” Section 10(1) of NRCD 323 defines “Burden of Persuasion” and it states: For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. Section 10(2) of NRCD 323 adds that: The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Section 11 of NRCD 323 defines “Burden of Producing Evidence” and states further as follows: (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (2) In a criminal action the burden of producing evidence, when it is on the prosecution as to any 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. (3) In a criminal action the burden of producing evidence, when it is on the accused as to any fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. As the prosecution had made a prima facie case against the accused persons, it was incumbent on the accused persons to produce evidence to counter the evidence produced by the prosecution or to give explanation in their defence. In Commissioner of Police v. Isaac Antwi[1961] GLR 408 SC, per Korsah CJ that: “The fundamental principles underlying the rule of law that the burden of proof remains throughout on the prosecution and that the evidential burden rests on the accused where at the end of the case of the prosecution an explanation is required of him, are illustrated by a series of cases. Burden of proof in this context is used in two senses. It may mean the burden of establishing a case or it may mean the burden of introducing evidence. In the first sense it always rests on the prosecution to prove the guilt of the accused beyond reasonable doubt; but the burden of proof of introducing evidence rests on the prosecution in the first instance but may subsequently shift to the defence, especially where the subject-matter is peculiarly within the accused's knowledge and the circumstances are such as to call for some explanation.” I find that though A2 appears consistent as regards his evidence before the court and his answers under cross-examination, juxtaposing his evidence before the court and his statement to the police, I do not find him credible as a witness. I find that he conspired with A1 to steal from Complainant herein. I find that he and A1 caused damage to the said wire net and the 2 MTN SIM cards. I find that A2 entered the room of the complainant but I do not find that A1 entered the room of complainant. I find that both accused persons did steal the said items from the complainant. I do not see any weight on the charge in count five as the evidence adduced by the prosecution on that suffers from kwashiorkor evidentially. I hereby pronounce A1 guilty on count one, count two and count four; A1 is convicted on each of those counts. I hereby pronounce A2 guilty on count one, count two, count three and count four; A2 is convicted on each of those counts. A1 is acquitted on counts three and count five. In sentencing A1, I have considered that he showed disrespect to the court by failing or refusing to appear before the court for the hearing, without a word from him to the court. I sentence A1 to five(years) imprisonment on each of counts one and four with hard labour. I sentence A1 to six(6) years imprisonment on count two with hard labour. The sentences are to run concurrently. In sentencing A2, I have considered that he played hide and seek with the police in the course of the trial and it was by divine intervention that he appeared before the court to testify in the matter after he was arrested in another case. I sentence A2 to three(3) years imprisonment on each of counts one and four with hard labour. I sentence A2 on count two to six(6) months imprisonment with hard labour. I sentence A2 to one year imprisonment on count three with hard labour. The sentences are to run concurrently. (SGD) HH YAW POKU ACHAMPONG CIRCUIT COURT JUDGE 15/11/2023 17