Republic Vrs Damptey [2023] GHACC 422 (13 April 2023)

IN THE CIRCUIT COURT HELD AT TEPA ON THURSDAY THE 13TH DAY OF APRIL 2023 BEFORE HER LADYSHIP GWENDOLYN MILLICENT OWUSU, A JUSTICE OF THE HIGH COURT SITTING AS AN ADDITIONAL CIRCUIT JUDGE 44/2020 THE REPUBLIC VRS DAMPTEY KWADWO PROSECUTION: CHIEF INSPECTOR CHARLES AGOVI ACCUSED PERSON SELF REPRESENTING JUDGMENT The accused was arraigned before the court on a charge of stealing contrary to section 124 (1) of the Criminal Offences Act, 1960 (Act 29). The particulars of the offence as presented by the prosecution are that, Damptey Kwadwo, a farmer aged 45 years on November 21, 2019 at Odurokrom near Ankaase in the Ashanti Circuit and within the jurisdiction of this court did steal six (6) goats valued at two thousand four hundred Ghana Cedis (GHC 2400.00), the property of Samed Fuseini. The accused pleaded not guilty to the charge. The brief facts of prosecution’s case are that, complainant Samed Fuseini is a trader and a resident of Tafo in Kumasi. Accused Damptey Kwadwo is a farmer and lives at Ankaase near Manfo. The complainant used to have six goats valued at two thousand four hundred Ghana cedis (GH₵ 2,400.00) which were under the care of his cocoa farm caretaker one Shaibu Chipsah at Odurokrom near Ankaase. On 21/11/2019 at about 1500 hours, the caretaker of the complainant’s farm Shaibu Chipsah returned from Tepa Government Hospital to Odurokrom and detected that all six goats were missing and later traced up and found that the animals were in the custody of the accused person at Ankaase. The caretaker then demanded for the animals from the accused but he refused to hand them over and indicated to him that the animals had caused damage to his crops in the farm hence he caught and detained same. Accused then charged the caretaker to pay cash the sum of four hundred Ghana cedis (GHC 400.00) to him, being cost of the damage caused by the goats, otherwise he will never release the animals to him but the caretaker could not afford that amount and he informed the complainant accordingly. On 6/12/2019 the complainant and his caretaker decided to pay the amount to the accused person and take the animals back but the animals were nowhere to be found. A report was made to the police and accused was arrested. In accused person’s investigation caution statement before an independent witness, he confessed that he seized and impounded the complainant’s animals which were astray and had caused damage to his crops in the farm and therefore kept the animals in Ankaase community pound and tasked the complainant to pay four hundred Ghana cedis (GH₵ 400.00) to him before he will release the animals but he did not pay the amount and later all the animals died. After investigation, the accused person was charged with the offence as indicated on the charge sheet and arraigned before this honourable court. According to Section 124(1), “A person who steals commits a second degree felony” Section 125 states “A person steals, who dishonestly appropriates a thing of which that person is not the owner” Per Section 120(1) of Act 29, an appropriation of a thing is dishonest: (a) if it is made with the intent to defraud, or (b) if it is made by a person without claim of right, and with a knowledge or belief that the appropriation is without the consent of a person for whom that person is a trustee or who is owner of the thing, or that the appropriation would, if known to the other person, be without the consent of the other person. According to Section 122(2) of Act 29, an appropriation of a thing in any other case means any moving, taking, obtaining, carrying away or dealing with a thing, with the intent that a person may be deprived of the benefit of the ownership, of that thing or of the benefit of the right or interest in the thing, or in its value or proceeds, or part of that thing. Prosecution, in order to succeed, will have to prove that 1. There has been an appropriation, 2. The appropriation is dishonest, 3. The accused person, not being the owner of the item has stolen it. Prosecution is enjoined by law to prove all the ingredients of the offence and prove it beyond reasonable doubt. This burden remains on the prosecution throughout the trial. All that an accused person will have to do is to cast a reasonable doubt. In Regina v. Ojojo [1959] GLR 207, the Court of Appeal stated at page 213: "No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England, and no attempt to whittle it down can be entertained". It is well settled law 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 in the minds of the jury. If the accused can raise only such a reasonable doubt he must be acquitted. The prosecution called four (4) witnesses. The complainant (PW1), known as Samed Fuseini is a trader residing at Old Tafo, a suburb of Kumasi. He has a cocoa farm situated at Odurokrom, near Ankaase, where he also rears goats under the care of one Shaibu Chipsah who is the caretaker of his cocoa farm. He testified that a child of his caretaker fell ill and was hospitalized at Tepa Government Hospital for five (5) days. After the child was discharged from the hospital, the caretaker brought the child home and found that six (6) of his goats, two (2) of which were he-goats, were in the custody of the accused person at Ankaase. He said according to the accused, the goats had grazed on his plantain stems, cocoyam, and cassava, and demanded that the caretaker pays GHC 400.00 to compensate for his farm crops before he will return the goats. On December 6, 2019, he went with his caretaker to look for the accused to pay what he had demanded, to get his goats back but was informed that the accused had travelled. They went to check where the goats were allegedly kept but found the place empty. During cross-examination, accused sought to establish that the animals had died but same was refuted by PW1. PW2 mounted the witness and corroborated the testimony of PW1. He however told the court that he had tied up all six (6) goats in a bush within their compound before leaving for the hospital. He said he received a call from his friend Emmanuel that the accused had caught all the goats with the reason that the said goats had caused damage to his crops in his farm. At about 1500 hours same day, PW2 went to Ankaase and found the six (6) goats confined in the pen of one Kokro. He contacted the said Kokro and the accused to have the animals released to him but the accused demanded that he pays GHC 400.00 to him the accused, and pay GHC 50.00 to the Unit Committee. According to PW2, he pleaded with the accused that he pays GHC 250.00 at that time, and pay the GHC 200.00 later but the accused refused. He therefore informed his landlord. Some days later when he had raised the GHC 450.00, he could neither find the accused nor the goats. He found one of the goats dead but could not find the remaining five, and was told that the accused had travelled. During cross-examination, PW2 stated that the animals had been tied to bushes where there had been no cultivation of any crops, and accused went to untie them and took them to Ankaase for the first time. The court was further informed that PW2 went to plead with one uncle Adu to plead with accused because when he returned from Tepa, the animals he had caught were theirs but he did not have money at the time due to his daughter’s illness: Q. Do you recall that when I first caught the animals, I told your wife to inform you that if they come to destroy my crops again, I will not be forgiving? A. No, there was no such message. When I returned he had taken the animals to Ankaase. The animals had been tied to bushes where there had been no cultivation of any crops, and he went to untie them and took them to Ankaase for the first time. Q. Do you recall that the second time I caught them, I went to the information centre to announce for the owner of the animals to come forward, and you pleaded with uncle Adu to plead with me for forgiveness. A. Yes I went to plead with uncle Adu to plead with you because when I returned from Tepa, the animals he had caught were mine but I did not have money at the time due to my daughter’s illness, and I was waiting for my cocoa beans to dry to sell to raise money to pay what the accused was demanding. Q. Do you recall that when I stopped the announcement, at the information centre, you approached Kwadwo Karikari (the chief farmer) through Yaw Kusaase to plead with me. A. It is true, Yaw Kusaase is our purchasing clerk so we approached him to help us financially and he was able to give GH₵200 which we pleaded with the accused to take, and later we bring the rest. Q. Do you recall that when Yaw Kusaase came and I asked for GH₵400, no money was offered to me? He never made mention whether he will pay GH₵ 10, or GH₵200. A. That is not true. The accused had told Yaw Kusaase that if he accepts any money less even a penny, the gods of his ancestors should kill him. Q. Do you recall that afterwards you went to Amidu to plead with me and I said no, I cannot forgive the extent to which the animals have destroyed my crops? A. Yes my landlord wanted his animals and had asked me to find the money from wherever to collect the animals but when the accused refused and mentioned the gods of his ancestors, Amidu and Gordon came to inform me that they cannot go to accused again with any plea so I should look for money to go and take the animals. Q. Do you recall that when they came to plead I had told them that I have sent the matter to the chief so henceforth any resolution has to be dealt with at that level A. It is not true. The chief was not around at the time. The chief was at Juabeng. It was only Kokro who was there. Prosecution’s next witness, PW3 Akokam Malayeri is the Zongo chief, but they could not get him into court. As the case had already suffered some adjournments due to his absence, prosecution called the investigator out of turn, who testified that the matter was referred to him for investigations, and after the said investigations, he was instructed by his District Commander to charge the accused with the offence as stated on the charge sheet. He tendered both the caution statement and the charged statement of the accused as exhibits ‘A’ and ‘B’ respectively. PW3, Akokam Malayeri, a retired C.M.B. staff and Zongo chief of Ankaase testified that the accused came to him demanding the keys to the committee pound to keep some goats who came to graze on his crops which he had caught, and he directed accused to go to the Odikro of the town, one Kokro, and auntie Yaa. He did not ask who the owner of the goats was. He was informed about three (3) days later that the owner of the goats had apologized to the chief farmer, and offered GHC 200.00 to have the goats back but accused had refused and demanded GHC 400.00. About a week later, accused came to inform him that he was travelling, and warned that on his return, if the monies collected for the goats did not amount to the GHC 400.00 he has demanded, he will collect the difference from whomever released the goats. PW3 further stated that the goats were not kept under his care so he does not know of their whereabouts. This is what transpired during cross-examination: Q. Do you remember that after I sent the animals to the said Nana Yaa you directed me to contact for the keys, I came back to inform you that I have done same? A. Yes you came to inform me so Q. Do you recollect that after the animals died, you called Shaibu to come and inspect and he gifted out the dead animals A. The chief of the town came back that day around 19:00hrs, and sent the Okyeame to inform me. The morning afterwards, we went to welcome the chief who informed us that when he arrived in the evening, he had seen a dead animal in the community pen, and in the morning he had seen some children take away the dead animal, so the chief questioned Auntie Yaa who said she knew nothing about it and the chief ordered that the children should be called to bring back the dead animal. At that point we sought permission to depart from the chief’s presence. Q. Do you recollect that you asked me about some GH₵200 which I had refused to collect and I told you that it was never true because the chief farmer did not mention any money when they came to talk to me. They only pleaded that I release the animals. A. At the time that matter was being discussed, I was not present. It was you who came to inform me. Q. Is it your responsibility to care for an animal that has been caught and put in the community pen or the duty of the one who caught it to care for it? A. When an animal is caught and brought, it is the kontihene who calls me to come over so we deliberate over how to resolve it but if the kontihene does not call me, I do not go there. The accused ended his cross-examination here, and Prosecution closed their case. Under section 173 of the Criminal Procedure Act (Act 30) 1960, “If at the close of 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.” What Section 173 of the Criminal Procedure Act (Act 30) 1960 means is that, at the close of the case for the prosecution, it is within the discretion of the judge to decide that no case has been made against the accused on the offence he has been tried for. If the judge so decides, he stops the case. The judge arrives at the conclusion based upon the fact that there is no evidence that the accused has committed any offence. Section 174(1) states that “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 the accused to make a defence, the court shall call on the accused to make the defence and shall remind the accused of the charge and inform the accused of the right of the accused to give evidence personally on oath or to make a statement” When the prosecution closed their case, this Court ruled that a prima facie case has been made against the accused so he was called upon to open his defence under Section 174(1) of Criminal Procedure Act, 1960 (Act 30). Accused told the court that he will be calling three (3) witnesses but he presented no witnesses. He told the court that his witnesses were unwilling to testify when the court asked for the witness statements of the proposed witnesses during Case Management Conference (CMC) for his defence. The defence presented by the accused confirmed the facts as presented by the prosecution. Accused says he had caught the animals and handed them over to the Zongo chief, and the caretaker through others pleaded with him but he had demanded that they pay him GHC 400.00 for the crops that the goats grazed on and destroyed same. He later travelled to seek treatment for his sick child. On his return, he visited the community pen but the goats were not in the pen. He enquired from the Zongo chief and was told that the goats had died. He pleaded that he had not stolen the goats. During cross- examination, prosecution sought to establish that he had not left the goats in anybody’s care, and that is why nobody informed him of the health of the goats during his absence. His response was that he had discharged his obligations towards the committee and thus he was no longer responsible for the care taking of the goats. The accused says he caught the goats because they grazed on his crops and destroyed same. He refused to hand over the goats to the caretaker when he was requested to, insisting that an amount of GHC 400.00 be paid to him before he will give them back. When the amount was ready to be paid, he could not be found and the goats were also not found. The cardinal question is, did he have the right to catch the goats and refuse to hand them over as he did? This country is governed by laws for good order, and addressing the grievances of the citizenry. No individual has the right to arrogate unto himself the power to compel others to yield to their demands. In the accused person’s own words during cross-examination, he had stated thus: “The committee “okyeame” is the one delegated to care for the animals. Whenever the issues pertaining to the animals are deliberated on, there is an amount that the complainant has to pay to the committee and when that amount is paid, you have discharged your obligation. The committee takes care of the rest.” If this court were to even assume that the said committee is cloaked with capacity to handle issues in such a manner, per the record, there is nothing to show that the accused, being the complainant before the committee, discharged any obligations worth consideration. Accused had asked PW2 to pay GHC 50.00 to the committee. There is nothing on record that the accused had paid any amount to the committee which could be construed as him having discharged his obligations, which may in turn place any obligations on the committee. From the record, this court also finds that, the accused did not even give the said committee the opportunity to do any deliberations on the matter. He requested for the keys to the pen, and supposedly sent the goats there. He made his demands, swearing by his ancestral gods that he will never take anything less than what he demands, threatening to take anyone who did contrary to what he demands to task, and left town. Clearly, the accused went on a frolic of his own, taking the law into his hands to do as he pleases, all in the guise of seeking redress. If the accused person truly desired, there is a proper way of seeking justice without falling foul of the law. There are various ways of seeking redress in a proper manner, if the accused was so minded. Going by section 122(2) of Act 29, this court is of the view that there has been an appropriation; the said appropriation is dishonest; and the accused person, not being the owner of the item has stolen it. According to section 123(1) of Act 29, the criminal offence of stealing can be committed in respect of a thing, whether living or dead, whether the value of the thing be intrinsic or for purpose of evidence, or is of value only for a particular purpose or to a particular person, and whether the value of the thing does or does not amount to the value of the lowest denomination of a coin. In conclusion, this court holds that, on the totality of the facts, the evidence on record, and the law as laid down, I do not find the defence of the accused reasonably probable, prosecution having discharge their burden. Accordingly, the court finds the accused guilty, and he is hereby convicted. SENTENCE This court takes into consideration the fact that the accused person has a child who is unwell, and he has great difficulty getting someone to care for the child whenever he has to go somewhere. The court will also consider the peculiar circumstances of this case and dispense with a custodial sentence since the law has not made a custodial sentence mandatory for this offence, and a custodial sentence will be detrimental to the well-being of the sick child of the accused. The court further considering all aggravating and mitigating factors in this case hereby sentences the accused to a fine of one hundred (100) penalty units, and in default, the accused will serve a jail term of twelve (12) months. This court further orders the accused to return all the six (6) goats to the complainant, or pay the requisite value for procuring same at the going market rate at the time of payment. The accused has a right of appeal, which right must be exercised within three (3) months from date. SGD OWUSU JUDGE) H/H GWENDOLYN MILLICENT (CIRCUIT