REPUBLIC VRS MOHAMMED (D4/129/2023) [2023] GHACC 706 (13 December 2023)

IN THE CIRCUIT COURT OF GHANA HELD AT CIRCUIT COURT ‘2’, ACCRA ON WEDNESDAY, 13TH DECEMBER, 2023 BEFORE HIS HONOUR ISAAC ADDO, THE CIRCUIT COURT JUDGE CASE NO: D4/129/2023 THE REPUBLIC VRS ABU MOHAMMED ACCUSED PERSON PRESENT CHIEF INSPECTOR JONAS LAWER FOR THE REPUBLIC PRESENT NII MARTEI KORLEY, ESQ. HOLDING THE BRIEF OF SAANI RASHEED, ESQ. FOR THE ACCUSED PERSON PRESENT JUDGEMENT On the 6th June, 2023, the Accused person herein was first arraigned before this Court charged with the offence of Stealing contrary to section 124(1) of the Criminal Offences Act, 1960 (Act 29). The Accused person pleaded Not Guilty to the charge after same had been read out and explained to him. The Accused person accordingly submitted himself to full trial. THE BRIEF FACTS OF THE CASE The complainant Samuel Sintim Yabbey is a Ghanaian working as a Post Man in the UK. The Accused person was a house boy residing at Baatsona. In the year 2019, the complainant came to Ghana to send his parents to the UK for medical attention and entrusted their house in the care of the Accused person. However, in early 2021, the complainant and his parents ordered the Accused person to vacate from their house due to information they were receiving regarding theft of their properties by the Accused person. Along the line, the complainant lost his father. On the 25th November, 2022, the complainant and his mother returned to Ghana only to detect that his late father’s pump action short gun, one heavy duty industrial welding machine, one anvil, hand drill, a pair of car ramp, a grinding machine, washing machine, standing drill machine and a giant satellite antenna all totaling GH¢87,000.00. The Accused person was arrested and he told police that he sold the other items to scrap dealers but denied knowledge of the pump action short gun. During investigation, police retrieved a Toyota Yaris registered in the name of the Accused person suspected to have been bought with proceeds from the crime. The Accused person informed police that he acquired the car through work and pay but further investigations at the DVLA showed that the car was registered on the 23rd August, 2022 and ownership was transferred by one Regina Atiah to the Accused person on the same date. The Accused person failed to lead police to the said Regina Atiah. The car was impounded and after investigations, the Accused person was charged. During the trial, the prosecution called three (3) witnesses to testify in support of its case. The testimony of PW1, the complainant (Samuel Sintim Yabbey) confirmed the facts as presented by the prosecution. PW2 (Ago Mensah) told the court that on or about two occasions, he saw the Accused person brought tricycles to the house to load items out of the house and that those items were not refuse. That in 2022, the complainant returned from overseas and complained of his missing items. So, he informed him that he saw the Accused person move some items out of the house with tricycles. PW3, Detective Inspector Richmond Toku investigated the case. PW3 relied on his Witness Statement as his Evidence-In-Chief. In addition, he tendered in evidence the Cautioned and Charge Statements of the Accused person without objection by the defence counsel. At the close of the case of the prosecution, the defence counsel filed a Written Submission of No Case to Answer on behalf of the Accused person and submitted that the prosecution has failed to make a sufficient case to require the Accused person to open his defence because the evidence of the prosecution witnesses are so manifestly unreliable and demonstrably full of deceit and inconsistencies that a reasonable tribunal cannot rely on it as a basis for conviction. This Court overruled the written submission of no case to answer and invited the Accused person to enter into his defence. THE CASE OF THE DEFENCE The Accused person filed a 27-paragraph Witness Statement on the 6th November, 2023 and relied on same as his Evidence-In-Chief. The Accused person did not call any witness. For the avoidance of doubt, I reproduce same below: 1. My name is Abu Mohammed, I am an Uber driver and I reside at Baatsonaa on the Spintex Road, Accra. 2. I moved into the Complainant’s parents’ house at Nungua, Accra in the year 2013 from my former place of abode in Kumasi. 3. The Complainant’s parents took me into their home because I had been of great assistance to the Complainant’s maternal grandmother while I was still in secondary school in Kumasi so they invited me to Accra to show their appreciation for my assistance. 4. Upon my arrival in the Complainant’s parents’ house I was responsible for the general maintenance of the house including cooking, cleaning, ironing and washing. 5. I was never paid a salary for my services but was rather treated like a member of the family and was often sent by the Complainant’s mother to run all her personal errands. 6. I remained a trusted member of the household and was trusted to carry out random tasks at my own discretion for a period of 7 years until I was driven out of the house on the 30th of October, 2020. 7. On the 29th October, 2020, I, on the instructions of the Complainant’s mother, went to show Kwame Aboagye (the house keeper), Richmond Toku (the investigator) and a police woman to the Complainant’s mother’s land at Adenta. At the time I did not know that Mr. Toku and the woman were police officers. 8. Upon our return to the Complainant’s father’s house after going to inspect the land, Mr. Toku introduced himself as a police officer and brought out a sheet of paper with a number of items listed on it. The items written on the list were washing machine, hand drill machine (big and small), and welding machine. I told them that the hand drill machines were kept outside but were locked in the main house so at that time I had no access to them. 9. I told them that I had discarded the washing machine and the welding machine. 10. Mr. Toku place a video call to the complainant and her mother and said he together with myself and Kwame Aboagye went to the room in the main house where the machinery were kept. When they say that the hand drill machines were still in the room where the machinery were kept the complainant asked that my room be searched. Nothing incriminating was found when my room was searched. 11. I was then instructed to try and retrieve the washing machine and welding machine from the refuse collectors I had given them to. Upon following up with the refuse collectors they told me they had sold those items to scrap dealers so they were not retrievable. 12. I was driven out of the house on the 30th October, 2020. 13. When I was being questioned by Mr. Toku I admitted getting rid of three items, namely washing machine, welding machine and giant satellite antenna. 14. These three items were not locked in the main house like the other machinery that were actually useful but lay on the compound gathering dust because they were effectively useless. 15. I got rid of them because after the death of the complainant’s father in the UK the complainant’s mother called and informed me to clear the house because the complainant’s family were going to have a service commemorating one week of the complainant’s father’s death. The house therefore needed to be neat and spacious to accommodate the people who would be attending the event. Everything I did was to ensure that the house was presentable for the event. 16. It was after the one week commemoration that Mr. Toku and the police woman came alleging that I had stolen some items. 17. The washing machine I got rid of was an old spoilt one which was kept under a little shed on the compound. It was brought second hand from abroad and it never worked. The one which worked was kept in the main house. 18. The antenna was a big old rusty one which was connected to nothing and had laid on the bare floor in the compound for a long time and just lay around gathering dust. 19. The welding machine was a small one which had been imported by the complainant’s father which got damaged by one Daniel, a former resident of the house. The machine became useless after that and just lay around gathering dust. 20. When I was asked to clear the house for the one week commemoration I had to discard those items in order to make room for all the guests who would be attending. 21. I must add that during my stay in the house I was responsible for a number of things, including clearing old and worn out machinery and equipment from the house and I did so without necessarily having to ask permission from the complainant’s father and the complainant’s father never complained when I got rid of old items. 22. I have never I the past thrown out some old computers and television sets and the complainant’s father did not have any issues with that. 23. In getting rid of the three items I mentioned I acted in the genuine belief that I was authorised to do so since I had done similar things in the past to the knowledge of the complainant’s father. I believed genuinely that the complainant and his mother would have had no problems with my decision to discard those items and I would not have discarded them if I had known that they wanted to keep them. 24. Apart from the three items mentioned I had no access to any other machinery because they were all locked in the main house and Mr. Kwame Aboagye kept the keys. I did not have any access to them. 25. Two years later I was driven out of the house I met a man by name Ibrahim who was the caretaker of his brother’s car business. I had an agreement with the said Ibrahim to purchase a Toyota Yaris vehicle from him on work and pay basis. 26. I initially paid him a deposit of GH¢15,000.00 which is money I had saved up slowly over years from doing little jobs. I paid most of the balance of the GH¢65,000.00 from my weekly earnings operating as an uber driver. 27. At a point I had difficulty paying so I took a loan to help me keep up with payments. (Attached is a copy of the loan document) THE LAW AND EVALUATION OF EVIDENCE Stealing is defined at Section 125 of Act 29 as follows: “A person steals who dishonestly appropriates a thing of which that person is not the owner”. The definition of stealing therefore requires the prosecution to prove the essential elements of the offence. In the case of The State vs. W. M. Q. Halm and Aryeh Kumi Crim. App Nos. 118/67 and 113/67, 7 August, 1969; (1969) CC155, the Court per Akufo Addo, C. J., Ollennu, Apaloo, Amissah JJ. A and Archer J stated the three essential ingredients which prove a charge of Stealing under our criminal law as: “(i) That the person charged must not be the owner of the thing allegedly stolen; (ii) That he must have appropriated the thing; (iii) That the appropriation must have been dishonest.” See also Lucien vrs The Republic [1977] 1 GLR 351-359 at holding 2. THE PARTICULARS OF OFFENCE under which the Accused person was charged reads: “ABU MOHAMMED: AGED 31, DRIVER: For that you in the year 2020 at Baatsona in the Greater Accra Region and within the jurisdiction of this Court, you did dishonestly appropriate a Pump Action Shot Gun Mossberg with Serial No. P-579810 valued GH¢15,000.00, an Industrial Heavy Duty Welding Machine valued at GH¢15,000.00, Washing Machine valued at GH¢4,500.00, Standing Drill Machine valued GH¢30,000.00, Anvil valued Gh¢3,000.00, Hand Drill Machine valued GH¢9,000.00, a pair of Car Ramps valued GH¢3,000.00, Grinding Machine valued GH¢4,500.00 and Giant Satellite Antenna valued GH¢3,000.00 all totaling GH¢87,000.00, the property of complainant’s late father, Joseph Weston.” The defence has not denied the fact that the complainant’s late father owned the properties mentioned by PW1 in his Witness Statement, as same is also captured in the facts of the case. In his Evidence-In-Chief, the Accused person told the Court that he disposed off only the welding machine, washing machine and a giant antenna, and that he had no access to the other machinery. However, in his Charge Statement given to the police on the 12th May, 2023 and marked as Exhibit ‘D’, the Accused person stated that he took the welding machine, washing machine, old giant TV antenna and other machines. For the avoidance of doubt, I reproduce the statement below: “It is true that I took some of the items such as welding machine, washing machine, old giant TV antenna and other machines in the house without the complainant’s consent but I do not have knowledge about the missing of pump action shotgun in the house. I sold the said items to clear the house.” (Emphasis mine) The Cautioned and Charge Statements of the Accused person were tendered in evidence with objection by the defence. The statements were also taken in compliance with section 120 of the Evidence Act, 1975 (NRCD 323). So, from the Charge Statement, it is obvious that apart from the welding machine, washing machine and the old giant TV antenna, there were other machines in the house that the Accused person appropriated. In the course of the investigations, the police retrieved a Toyota Yaris vehicle which they suspected to have been bought from the proceeds of the crime. In his Evidence-In-Chief, the Accused person told the Court he was driven out of the house on the 30th October, 2020, and two years later, he met a man by name Ibrahim who was the caretaker of his brother’s car business. So, he had an agreement with him to purchase a Toyota Yaris vehicle from him on work and pay basis. The evidence of the investigator (PW3) that the Accused person refused to show the said Regina Atiah (whose name appears on the DVLA Report (Exhibit ‘C’)) and could not also show proof of payment for work and pay was not denied by the defence. This is contained at paragraphs 15-18 of the Witness Statement of PW3. Assuming without admitting that the Accused person was driven off the house of the complainant on the 30th October, 2020 and he met one Ibrahim two years later (i.e. 2022), went into an agreement with him for work and pay, Accused person’s name could not have appeared in the records of DVLA as the owner of the Toyota Yaris vehicle with Registration Number GN 6282-22. More so, the Accused person failed to show any proof of work and pay agreement he entered into with the said Ibrahim or his brother. The DVLA Report shows that the Accused person became the current owner of the car on the 23rd August, 2022, the same day the vehicle was registered at DVLA Office in Tema. On the same day, the vehicle was transferred to the Accused person from Regina Atiah. The Accused person tendered in evidence a Loan Agreement from QUICK CREDIT (marked as Exhibit ‘1’) showing that he took a loan of GH¢4,000.00 to enable him repay for the car. On the face of Exhibit ‘1’, the Accused person applied for the loan and it was granted on the 2nd March, 2023. The duration of the loan is for a period of 13 weeks expiring on the 1st June, 2023. So, if by the Accused person’s Evidence-In-Chief, he applied for this loan to enable him repay the balance of the GH¢65,000.00 purchase price, then the Accused person could not have been the owner of the car with ownership transferred to him absolutely on the 23rd August, 2022. All the evidence adduced at the trial points to one and only one conclusion. The Accused person bought the Toyota Yaris vehicle with the proceeds of the crime being sale of the machines belonging to the complainant’s late father. In the circumstances, I hold that the prosecution has been able to discharge its duties of proving its case beyond reasonable doubt. The Court finds the Accused person herein guilty of the offence of Stealing and he is accordingly convicted. SENTENCING: In sentencing the Accused person, the Court has taken into consideration the plea in mitigation made by his counsel. The Court also considers the fact that he is a first time offender and a young man. The vehicle bought from the proceeds of the crime has been retrieved by the police. However, to serve as deterrent to others, the Court will pass a fairly deterrent sentence on the Accused person. The Accused person is hereby sentenced to serve a prison term of Thirty-Six (36) months IHL. FINAL ORDER: The Toyota Yaris vehicle with Registration Number GN 6282-22 with its necessary documents should be released to the complainant, Samuel Sintim Yabbey. ………………..…............ ISAAC ADDO CIRCUIT COURT JUDGE 13TH DECEMBER, 2023 10