REPUBLIC VRS TUTU (50/20) [2023] GHADC 813 (4 December 2023)

CORAM: IN THE DISTRICT COURT HELD AT KODIE IN THE ASHANTI REGION ON MONDAY, THE 4TH DAY OF DECEMBER, 2023 BEFORE HER WORSHIP MRS CHRISTIANA ODARKOR BRUCE-ASHIRIFIE (ESQ.), THE DISTRICT SUIT NO. 50/20 MAGISTRATE. THE REPUBLIC VRS OSEI TUTU JUDGMENT The accused person herein and one other by name Isaac Anthony Donkor Afriyie were arraigned before this court on the 8th of October, 2019 charged with the following offences under the Criminal Offences Act, 1960 (Act 29): 1. Conspiracy to commit crime namely stealing contrary to Section 23(1) and 124(1) 2. Stealing contrary to Section 124(1) 3. Causing unlawful damage contrary to Section 172(1b) When the charge was read and explained to the accused persons, they pleaded not guilty and so the matter was set down for trial. The second accused person just before the trial of this instant suit passed away. Prosecution therefore discontinued the case against him 1 | P a g e and maintain the charges of stealing and causing unlawful damage against the accused person herein. CASE FOR THE PROSECUTION The Prosecution called five (5) witnesses in support of its case, one of whom was the investigator. SUMMARY OF THE PROSECUTION’S CASE The brief facts of the prosecution’s case are that, the Complainants herein who are three in number, in the year 2013 bought their respective Plots of land at Akrofrom from the late Akrofrom chief Nana Adu Gyamfi Ababio at the cost of GH¢6,000.00, GH¢7,000.00 and GH¢9,000.00 respectively. According to Prosecution the 1st Complainant who is PW 1 in the case moulded 2,800 cement blocks on his Plot, the 2nd Complainant moulded 2,500 cement blocks on his land and went ahead to put up an uncompleted single room on his plot. The 3rd Complainant moulded 4,000 cement blocks on his Plot. Prosecution stated that in the process the accused person herein and the deceased Anthony Afriyie summoned them before the District Court, Kodie and this made the complainants to halt their project on the Plots leaving their blocks on same According to prosecution on the 19th of February, 2019 complainants had information that the accused persons were using their cement blocks to put up stores on their land. Complainant proceeded to the site and inspected the blocks and found out that 1st Complainant and 3rd Complainant have their two hundred cement blocks used by the accused persons whilst the 2nd Complainant had all his blocks used by them. 2 | P a g e Prosecution stated that the 2nd complainant also found out that his single room put up on the plot had been damaged by the accused persons. They made the complaint at the police station and hence this action. Prosecution called PW 1 one Owusu Boakye Cephas who is one of the complainant’s herein. Per his witness statement filed on the 25th of August 2021, in the year 2014 he bought a plot of land from the late chief of Akrofoam Nana Adu Gyamfi Ababio at the cost of GH¢6,000.00. According to PW 1 he moulded 4,000.00 pieces of cement blocks on it and as he was about to start his project the accused person came claiming the land belongs to him. He stated that the case came before this court and so he stopped work on the land. It is the case of PW 1 that on the 19th of February, 2019 he had information that the accused person is using his cement blocks to build his stores on the said plot of land and when he went over he realized that the accused person had used 2000 of his cement blocks out of the 4,000. Prosecution called PW 2 by name Samuel Owusu Ansah who is one of the complainants herein. According to him in the year 2013 he also bought a plot of land from the late chief at Akrofrom. He averred that he moulded blocks on same and constructed a single room on the said land. He stated that he was later summoned before this court by the accused person who claimed ownership of the land. PW 2 like PW 1 claimed that on the 19th of February, 2019 he visited the site and found out that his 2,000 cement blocks had been stolen by the accused person. He further stated that he also found out that the single room that he put up on the land had been demolished by the accused person and so he reported the matter to the police. 3 | P a g e The third complainant even though he filed a witness statement did not appear in court to testify at the trial. PW 4 is one Yaa Fosuaa and per her witness statement filed on the 25th of August, 2021, she claimed her house is very close to the complainant’s plots. According to her the complainants have some quantity of cement blocks on their various plots of land that they were about to start their projects but the accused person summoned them before the court. She said this made them to suspend their projects. PW 4 stated that on the 18th of February, 2019 at about 10.00am she saw the accused person and some masons using the cement blocks to build on the same plots of land. She said she was afraid to confront them so she had wanted to inform one Nana Augustine about the incident in his house but met his absence. PW 5 is one Kwame Adjei. In his witness statement he also claimed to be an eye witness to the accused collecting the complainants blocks. He like PW 4 claimed he had wanted to report the incident to one Nana Augustine but met his absence. Prosecution’s last witness PW 5 is the investigator herein. According to him on the 19th of February, 2019 he was on duty when a case of stealing involving the accused person herein was referred to him for investigation. PW 5 averred that parties herein led the police to the scene of crime where the complainants packed their various cement blocks before they were stolen by the accused. He added that on inspection he realized that some of the remaining blocks were packed at the scene. According to PW 5 he observed that the accused person was constructing his wall just about some few inched from where the complainants had packed their blocks which 4 | P a g e according to him shows clearly that some of the blocks were taken by the accused before he got space to construct his wall. PW 5 testified that investigation proved that the land on which PW 1 and PW 2 moulded their blocks is in dispute between accused person and the complainants which is before the court. According to him the accused person who should have waited for the outcome of the court case took advantage to steal the blocks of the complainants and used same for his construction work on the land. PW 5 tendered into evidence the following exhibits. Exhibit “A” investigation caution statement of the accused person. Exhibit “A1 to A5” which are photos of the scene and the left over blocks on the land. Prosecution thereafter closed its case and the accused person was invited by the court to enter his defence. CASE FOR THE ACCUSED PERSON The accused person in his witness statement filed on the 12th of August, 2022 stated that his Head of family ordered him to go and inspect a fence wall that he was erecting around a family land at Akofiboye near Akrofrom. According to him the said head of family ordered two drivers namely Charles Gyamfi Boahen and Obeng Vandy to convey cement blocks from Monwire Junction and Bremang junction respectively on to a site that he was embarking on a project. The accused person stated that his head of family had already moulded some cement blocks on the site that he was erecting a fence wall. He added that since the cement blocks he had on his site were not enough for the work, so he ordered the drivers to convey the blocks he had bought from the aforementioned places. 5 | P a g e It is the case of the accused person that he was present when the drivers brought the blocks which were 3,500 in number. He maintained that he never took any blocks belonging to the complainants or any other person. The accused called one Charles Gyamfi Boahen to testify in support of his case. According to DW 1’s witness statement filed on the 12th of August, 2022 he stated that sometime ago he and another driver were engaged by one Isaac Anthony Donkor Afriyie to convey cement blocks from Monwire Junction and Bremang Junction respectively for him. DW 1 stated that he was to convey the cement blocks to a place called Akofiboye near Akrofrom. He added that his employer asked him to pack and add the cement blocks he conveyed to the few blocks already packed on the land. He further stated that the accused person supervised the arrival, counting and package of blocks. The accused person thereafter closed his case. ISSUE The issue that is to be determined at the end of the trial is whether or not there is sufficient evidence led by the Prosecution against the Accused person to warrant his conviction by this Court. THE APPLICABLE LAW AND EVALUATION OF EVIDENCE In our Criminal jurisprudence, it is the Prosecution that carries the burden to prove the guilt of the accused person beyond reasonable doubt. Section 11(1) of the Evidence Act, 1975 (NRCD 323), defines the burden of producing evidence to mean an obligation on a party to introduce sufficient evidence to avoid a ruling on the issue against the party. 6 | P a g e The standard of proving the guilt of an accused person by the Prosecution is provided under Section 11 (2) and (3) of the Evidence Act, 1975 (NRCD 323), i.e. proof beyond reasonable doubt. This principle was explained in the case of Asare v The Republic [1978] GLR 193 by Anin J. A. (as he then was) as follows: “There was no burden on the accused to establish his innocence, rather it was the prosecution that was required to prove the guilt of the accused beyond all reasonable doubt.” The learned jurist further stated that: “The accused is presumed innocent until his guilt is established beyond reasonable doubt; that the burden is rather on the prosecution to prove the charge against him beyond reasonable doubt... The judge or magistrate must on a consideration of the whole evidence, be satisfied of the guilt of the accused before he may convict”. All that the Accused person will have to do is to create reasonable doubt in the prosecution’s case after the Prosecution had successfully discharged the burden placed on it by law. In the case of Yeboah v The Republic (1972) GLR 281 the Court held that:- “The guilt of the Accused must be proved to that degree of certainty required by law. Accused person is not under any obligation to prove his innocence”. The effect of the above therefore is that the prosecution bears the burden to prove the guilt of the Accused and the Accused person also has to cast or raise doubt in the prosecution’s case. I will deal with the charges separately. 7 | P a g e COUNT ONE (1) -STEALING On the first count the accused person herein has been charged with stealing contrary to section 124 (1) of Act 29 which is defined under section 125 as follows “A person steals if he dishonestly appropriates a thing of which he is not the owner”. This definition was further expressed by the Court of Appeal in the case of Ampah v The Republic (1977) 2 GLR 171 – 179, CA, holding 2 that: “A statute, creating and defining an offence, determined the ingredients of the offence which were to be proved. To establish the offence of stealing as defined by section 125 of Act 29, the prosecution was required to prove the following three elements: (i) dishonesty, (ii) appropriation, and (iii) property belonging to another person.” It follows, from the above-quoted references that to establish the offence of stealing, the following elements must be proved in order to succeed: (i) (ii) that the person charged must not be the owner of it; that he must have appropriated it; and (iii) that the appropriation must have been dishonest. Prosecution must satisfy all the ingredients to establish the guilt of the accused person not some. From the evidence before this court PW 3 and PW 4 claimed that they physically saw the accused person herein collecting the cement blocks belonging to the complainants herein and he used same to build his stores. This is what PW 3 said under cross examination Q; You have stated that you saw the accused person and certain masons using cement blocks to build on the same plot? 8 | P a g e A: Yes, I still stand by it Q: How many blocks did you see them taking, if you saw them A: I did not count, I only saw them using the blocks Continuing Q: Can you tell the court the number of days, weeks and months it took for the accused person and the masons used to collect the blocks A: I cannot tell but they were coming every time about a week. The evidence as proffered above by PW 3 is not different from what PW 4 also stated under cross examination. From the above, PW 3 and PW 4 claimed they saw the accused person collecting the complainants blocks from their land and using same. They could not tell how many blocks the accused person took if they saw him. They further claimed it took about a week for the accused person to collect the complainant blocks. Why they did not take a picture of him taking the block and using same for his building baffles this court. Per the evidence before this court there are no marks on the complainants blocks for them to identify and be sure that it was their blocks the accused person had used in his building. Per the evidence the accused person’s head of family also had some block at the place. On the evidence before this court prosecution has failed to adduce sufficient evidence to warrant the conviction of the accused person herein. I find the accused persons not guilty of stealing and I hereby acquit and discharge him of stealing under count one. COUNT TWO (2)- CAUSING UNLAWFUL DAMAGE 9 | P a g e Section 172(1b) of Act 29 states that: “A person who intentionally and unlawfully causes damage to property to a value not exceeding one million cedis or without pecuniary value commits a misdemeanour” In the case of Yeboah & Anor v The Republic (1999 – 2000) 1 GLR 149, the Court of Appeal in dismissing an appeal stated inter alia that: “on a charge of causing unlawful damage under section 172 of the Criminal Code, 1960 (Act 29), the ingredients to be proved by the prosecution were intention and unlawful damage.” In this instant case, Prosecution regrettably did not lead any evidence at all to establish that the accused person herein intentionally caused damage to the 2nd Complainant single room on his Plot. The accused person is therefore not guilty of causing unlawful damage and I hereby acquit and discharge him of same. On the evidence before this court, the prosecution failed to discharged the burden placed on it in proving the guilt of the Accused person beyond reasonable doubt and in light of this, I find the accused person not guilty of both counts of offences and I hereby acquit and discharge him of all the charges. ............................................. CHRISTIANA BRUCE-ASHIRIFIE(ESQ.,) (DISTRICT MAGISTRATE) 10 | P a g e Accused Person Prosecution Defence Counsel : Present : C/Inspector J. N Tabus : Clement Marfoh, Esq. 11 | P a g e