REPUBLIC VRS KAMBASI (UE/ NA /DC /B7/30 /2023) [2023] GHADC 1269 (7 December 2023)

IN THE DISTRICT COURT HELD AT NAVRONGO IN THE UPPER EAST REGION ON THURSDAY THE 7TH DAY OF DECEMBER, 2023 BEFORE HIS WORSHIP FAMOUS YAO AMANYO (DISTRICT MAGISTRATE) SUIT NO. UE/ NA /DC /B7/30 /2023 THE REPUBLIC VRS GABRIEL KAMBASI JUDGMENT [1]The Accused was arraigned before this court on 16th December,2022, charged with stealing contrary to section 124 (1) of the criminal offences Act, 1960 (Act 29). He pleaded not guilty leading to full trial of this case. [2]The facts of this case are that on 28th January, 2022 PW1’s blue tricycle with registration number M-21-UE-8679 was stolen. In the course of police investigations in another case, the number plate of the said tricycle was found in Accused’s room. [3]The case of prosecution is contained in evidence in chief of PW1, PW2 and PW3. PW1, Callistus Ayelzoya stated that he is the owner of the blue tricycle with registration number M-21-UE-8679 valued at GH¢8,200.00. According to him he took the number plate of the tricycle on 26th January, 2022 at DVLA office at Navrongo. At the time he took the plate the straighter was not at work to fix it for him so he put the number plate inside the tricycle tool box, went home at Tankuna where he parked it, duly locked and kept the ignition key inside his bag in his room. PW1 says further that on 28th January, 2022 at about 5:00 am; he woke up and detected theft of his tricycle. He opened the main gate of the house and noticed tyre marks of the tricycle and footprints on the ground. He then reported the matter to the police at Navrongo police station which case was under investigation. On 9th December, 2022 at about 10:00am he received phone call from police about the number plate of his stolen tricycle and he responded that the number plate was stolen together with the tricycle. [4]PW2, D/Inspector Dramani Mahamadu stated that he is a detective at Divisional CID, Navrongo. He knows Accused. On 9th December, 2022, he was investigating a case of which accused is a suspect. The Accused led him to Accused’s home and he conducted a thorough search in his room. He discovered a motor number plate with registration number M-21-UE-8679 in his bag. He took the number plate and questioned accused about it. Accused could not explain where he got it from. He took the number plate to DVLA office at Navrongo and had contact of PW1. He called PW1. PW1 informed PW2 that he had reported a case of stealing of his tricycle to the police and that the case was under investigation. Thereafter, he contacted PW3 and she confirmed the case reported to her by PW1. So he handed over the number plate to PW3. [5]On her part PW3, D/Corporal Dorothy Oteng stated she knows Accused. She was on duty on 28th January, 2022 when PW1 reported the matter and the case was referred to her for investigations. She visited the crime scene and took photographs. She then send messages to all stations for assistance. She informed motorbike dealers, repairers as well as informants to assist police to arrest the culprit and get the tricycle. [6]On 9th December, 2022 accused was involved in another motor case of attempted stealing and led police to his place of abode. A search was conducted and the number plate of the tricycle was seen in his bag and retrieved for evidential purposes. [7]PW3 stated further that when she questioned accused, he mentioned one Latif as his witness. Police contacted Latif in the presence of Accused and Latif told Police that the accused picked him twice but he never saw Accused take a number plate on the ground. [8]PW3 tendered the investigation caution statement of Accused, charge statement of Accused, Photographs of the crime scene, photograph of the number plate, Form C of the tricycle, Form A of the tricycle, the sticker from DVLA, the duty forms, receipts, certificates of validation from DVLA and registration of particulars as Exhibits A, B, C, C1, D, E, F, F1, F2, G, G1, H, J, J1, K and K1. [9]It is the case of Accused that he is a motor tricycle driver. He lives at Kworania. He knows PW1. He did not steal the blue motor tricycle. He picked a child at a private school. When he was going to take the child he saw the number plate around Basina and Yuse dam hanging on a thorn tree. He did not take it on that day. On another day, he went to Chiana and on his return with load of groundnuts he met police officers who stopped him and asked about his number plate. At the time, his tricycle has no number plate. He pleaded with the police and they took GH¢70.00 and allowed him to go. So it occurred to him that he could use the number plate he saw earlier, on his tricycle. [10]According to Accused on reaching the place where he saw the number plate, he noticed that the plate was lying down. He took it and sent it home. Whenever he was going out he takes the plate along so that when police stops him, he could show it to them. The tricycle does not belongs to him, so when the owner took it from him, he could not use the plate again and that it was in his room. The accused did not call any witness. [11]Section 11(2) provides for evidential burden on prosecution in criminal cases as follows: “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.’’ [12] It is the duty of prosecution, upon subjecting accused to criminal action to prove whatever crime he is alleged to have committed. 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 on any fact in issue. [13]In Commissioner of Police v Isaac Antwi [1961] GLR 408 of 412 Korsah CJ stated follows: “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”. [14]Section 11 (3) provides for Accused’s burden as follows:- ‘’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.’’ [15]The burden of accused was further highlighted in Mallam Ali Yussif v the Republic [2003-2004] SCGLR 174 where the supreme 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.’’ [16]The standard for prosecution to prove its case is proof beyond reasonable doubt. However, it does not mean that it could go beyond human capability or beyond the shadow of doubt. [17]In Kugblenu v the Republic [1969] 160 CA Ollenu JA noted “It is trite law that the onus upon the prosecution is to prove their cases beyond all reasonable doubt. This applies to all material issues 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 failed and the accused should be acquitted.’’ [18] 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 of doubt but at the same time, it should not be fanciful, it should not lead to fanciful possibilities or raise fanciful possibilities” [19]To surmount the burden on prosecution as above, all elements in the charge ought to be proved. In this case of stealing, prosecution must prove appropriation, that the appropriation was dishonest and that the accused was not the owner of the tricycle allegedly appropriated. [20]These elements were recognized in Brobbey and others v the Republic [1982-1983] GLR 6 and all the cases it had followed where Twumasi J (as he then was) held that “By the Provisions of Act 29 section, 125 the essential elements of the offence of stealing were that (i)the person charged must have appropriate 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. Consequently, a person could not be guilty of stealing unless he was proved to have appropriated the thing in the first place.’’ [21]The prosecution asserts through fact and evidence that PW1’s tricycle was stolen by accused. Prosecution’s proof was that, in the course of investigations in another case, accused room was searched. During the search, the number plate of the stolen tricycle in this case was found in the room of accused. PW1 was confirmed by DVLA Navrongo as the owner of the number plate. The registration documents of the tricycle and photograph of the number plate was tendered in evidence. [22]The accused admitted being in possession of the number plate and that it was found in his room. This is contained in his evidence in chief and cross examination. [23]In my opinion, prosecution has discharged its burden by showing that the number plate has actually been found in accused’s room. The fact of accused’s admission further lessened Prosecution’s burden. So the burden has shifted to accused to prove how he came by the number plate. [24]In Rahim Ibrahim & 3 others v the Republic unreported Appeal No A2/2/2001 dated 18th July, 2017, Barbara F. Ackah Yensu (Ms) JA (as she then was) speaking for the Court of Appeal noted “Therefore, where evidence is adduced to show that an item in the possession of an accused person was stolen, the accused person has the legal burden of proving how he came by that item”. [25]Section 15(1) of the evidence Act, 1975 NRCD 323 provides “unless and until it is shifted, the party claiming that a person is guilty of crime or wrong doing has the burden of persuasion on that issue.” [26]Below are the admissions made by accused under cross examination of accused by prosecution: Q-I put it to you that PW1’s motor tricycle was dishonestly appropriated by you. A-That is not correct. Q-I put it to you that you never indicate in Exhibit ‘A’ that you took the number plate for use on your motor tricycle. A-I told you that I picked it under a thorn tree. Q-I put it to you that PW1’s number plate was found in your room by police. A-That is correct Q-I put it to that at the time you were arrested PW1’s motor tricycle registration number M-21-UE-8679 plate was found in your room. A-That is correct. [27]A cursory reading of exhibit ‘A’ which contains the caution statement of accused and his evidence in chief to the court on 1st September, 2023 revealed material inconsistences in the two statements. [28]In his caution statement the Accused’s stated that he does not know anything about PW1’s tricycle or entering his house. In November, 2022 he was on his way to his house at Nangalikinia. He passed Yusi dam and saw the number plate hanged on a torn tree by the dam. He did not take it. He passed that road the second time and saw the plate again but did not take it. He was in his house when one sister, the wife of Kajola called him to convey her child from school for her. So on his way he saw the plate still hanging on the tree. [29]He took the child, returned and saw the number plate on the ground. He took the number plate. He sent the child to her mother. He went away with the plate and kept it in his room. [30]In his evidence in chief accused told the court that he did not steal the tricycle. He went and picked a child at a private school. On his way to the school around Basina and Yusi dam, he saw the number plate of tricycle hanging on a torn tree. He did not take it. On another day, he went to Chiana and on his return with load of groundnuts he met police who stopped and asked him about his number plate of the tricycle he was driving. He pleaded with them and the police took GH¢70.00 and allowed him to go. So it occurred to him that he could use the number plate he saw on the way on his tricycle. On reaching the place he saw the number plate lying down. He took it and sent it home. Whenever he was going out, he took the plate the plate to outwit police. The tricycle he was using does not belong to him so when the owner took it, he could not use the number plate again and that it was lying inside his room. [31]It is obvious in exhibit ‘A’, accused did not state that he met police. He did not state that he made up his mind to use the number plate. Exhibit ‘A’ shows that the child was present when accused took the number plate. Accused stated he had seen the number plate about three times before he finally took it on the fourth time when he took the child. [32]However, in his evidence in chief accused stated that he met the police when he returned from chiana with load of ground nut. He decided to use the number plate to outwit police. He first saw the number plate hanging on a torn tree and he took it the following day when he saw it lying on the ground. [33]Accused admitted the inconsistencies as follows:- Q. I put it to you that you never indicated anywhere in Exhibit ‘A’ that you took PW1’s motor tricycle in order to outwit police. A. That is correct but I said it when I am under oath. [34]In my opinion these identifiable inconsistencies have tainted the evidence of accused and therefore cannot be believed. To worsen matters, accused failed to call person’s he mentioned in exhibit A and in evidence in chief to substantiate his alleged genuine possession of the number plate found in his room. [35]In State V Otchere [1963]2 GLR 463 it was held that a witness whose evidence on oath is contradicting of a previous statement made by him whether sworn or unsworn, is not worthy of credit such evidence cannot therefore be regarded as being of any importance in the light of the previous contradictory statement unless the witness is able to give reasonable explanation for the contradiction. [36]In Egbetorworkpor v the Republic [1975] 1 GLR 545 it was held that “such witness must at least be suspect...” [37]In Odupong v the Republic[1992-1993] 3 GBR 1028 it was held that “the law is now settled that a person whose evidence on oath is contradictory of a previous statement made by him whether sworn or unsworn, is not worthy of credit and this evidence cannot be regarded as being of any probative value in the light of his previous contradictory statement. Unless he is able to give reasonable explanation for contradiction.” [38]Accused’s defence that he found the number plate was provided for under section 127 of the Criminal Offences Act, 1960 (Act 29). It states as follows:- “ a person who appropriates a thing which appears to have been lost by another person has not committed the criminal offence of stealing it, unless. (a)At the time of appropriating it, that person knows the owner of the thing or by whom it has been lost or (b)The character or situation of the thing, the marks on it, or any other circumstances indicate the owner of the thing or the person by whom it has been lost, or (c)The character or situation of the thing, indicate that the person who lost the thing appears likely to be able to recover it by reasonable search and enquiry, if it were not removed or concealed by any other person. [39]In Kramo Wala v the Republic [1973]1 GLR 287 and page 289-290 it was noted that “it is very clear from the provisions of section 127 that one of the three conditions laid down must be proved before a person can rightly be found guilty of stealing by finding…” [40] It was observed that all number plates are traceable to persons who own them. A reasonable man would send the number plate he found to the police or DVLA under the circumstance. In this case the Accused upon taking the number plate according to him made up his mind to use it or keep it for other criminal purposes. [41]To my mind since Accused’s intention was not directed to sending the number plate to either police or DVLA Office but has decided to use or keep it; the only conclusion is that he stole it and nothing more. He was unable to give reasonable explanation as to why the number plate was with him. Besides his explanation is contradictory. Under cross examination he stated that he knows DVLA at Navrongo and Bolgatanga. So there is no way he could keep a number plate he alleged to have found. Therefore accused’s defence of having found the number plate was eroded by the obvious presence of number on the plate which could be traced by him to PW1. [42]On the totality of evidence before me I found that: (a) PW1 lost his tricycle with registration number M-21-UE-8679. (b)The number plate of the tricycle was found in Accused’s room. (c)The accused failed to give reasonable explanation as to how he got the number plate into his room. Moreover his explanation is contradictory. (d)The prosecution has proved its case beyond reasonable doubt. (e)The accused failed to discharge his burden of raising doubt as to guilt. (f)The accused knows the whereabouts of the tricycle. (g)The accused stole the tricycle. In the result I found the accused guilty of stealing the tricycle and convicted him accordingly. [43]In sentencing accused I have taken several factors into consideration. Section 124 (1) provides “A person who steals commits second degree felony.” The sentence is contained in section 296 (5) of the criminal offences (procedure) Act 1960 (Act 30) it states, 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 range between one day and 25 years. The two years sentencing limit of the District Court is also taken into account. The Ghana sentencing guidelines also proves for fines at between 0 to 500 penalty units. [44]Apart from above, the court is entreated to consider aggravating and mitigating factors in sentencing convicted persons. The said factors were provide for under the sentencing guidelines which I critically looked at. These factors were summarized in Kwashie v the Republic [1971]1 GLR 488, CA. [45]In this case, I found that the accused is known but is always remorseful and shows signs of repentance. However, the accused has not shown his preparedness to return the tricycle to PW1. I have taken into account his plea for mercy. I am inclined to deal with him leniently because this is the first time he appeared before me. [46]I therefore sentence accused to a day imprisonment and in addition to pay a fine of 200 penalty units or imprisonment for six months IHL. [47]The Accused is ordered to return the tricycle to PW1 or pay its purchase price to him. The number plate shall be returned to PW1 as well. ……………………………………………… H/W FAMOUS YAO AMANYO (DISTRICT MAGISTRATE) REPRESENTATION 1. Inspector Francis Yao Amana for Prosecution. 2. No Representation for Accused Person.