REPUBLIC VRS AYELEWINI (UE/ZB/DC/B7/08/2024) [2024] GHADC 517 (14 February 2024)

IN THE DISTRICT COURT, ZEBILLA HELD ON 14TH MARCH, 2024 BEFORE HIS HONOUR JEPHTHAH APPAU SITTING AS AN ADDITIONAL MAGISTRATE. SUIT NO.: UE/ZB/DC/B7/08/2024 THE REPUBLIC VRS. 1. AYELEWINI SAMPSON 2. ASIBIGA ENOCK JUDGMENT FACTS: On 11th November, 2023 at Kukori near Zebilla, the complainant together with his friends went to a popular drinking bar by name “Middle Belt”. That whiles at the bar, there ensued misunderstanding between two groups. That the complainant in an attempt to intervene allegedly handed his iphone 7 plus mobile phone valued Ghc1,750.00, infinix Hot 8 mobile phone valued Ghc 1,400 and Techno 7 pro valued Ghc 1,500.00 all to the tune of Ghc4,650.00 to A1 for safe keeping. That after the complainant had succeeded in separating the fight; he went to A1 for his phone but A1 said he also gave it to A2 for safe keeping so he should be allowed to go for it from A2 but he bolted. That the complainant together with other witnesses followed A1 and arrested him. That, A1 then led them to the A2’s house and he was also arrested and they were handed to the police for investigations and subsequently charged before this court for the following offences per the charge sheets. 1. Stealing: contrary to section 124(1) of Act 29 as amended by N.L.C.D. 398 Paragraph 4 against A1 only. 2. Dishonestly Receiving: contrary to section 147 of Act 29 against A2 only. 1 | P a g e That on 15th of November, 2023, the accused persons were arraigned before this court and their plea were taken. They pleaded not guilty to their respective charges against them. On 17th January, 2024, disclosures were made and hearing subsequently started on the same day. It must be noted that, the C.I.D (number 47561, Detective Corporal Francis Agyeman) who investigated the case did not file any statement in support of their case. See records dated 17th January, 2024. Prosecution therefore called only one witness (PW1). On the side of the accused persons, it was only A2 who called one Ndebilla Desmond (DW1) to corroborate his case. EVIDENCE OF A1: A1 in his defence admitted taken the missing items from the complaint but sharply stated that at the time he took it he was drunk and therefore handed them over to A2 who according to him took the phones away. That a number of calls were placed but the phones were off and as a result, he led the complainant and other people to A2’s house and entered his room which got A2 angered and threatened to stab A1 with Scissors. EVIDENCE OF A2: According to him, he together with one Ndebilla Desmond (DW1) went to the “Middle Belt Spot” at Kukore near Zebilla around 8pm and left around 10pm to 11pm with a certain teacher who offered them a lift on his motor bike home. That after sometime whilst sleeping, he heard noise in his compound and his mother came to wake him up. That upon coming out, he saw A1, the complainant, one Isaac and his mother. That immediately he opened his door, they passed by him and entered his room. The mother then told him the mission of them there and he denied any knowledge of the phone. 2 | P a g e That he explained himself and even mentioned DW1 as the person he went to the bar with and took them to DW1’s house. That still not satisfied with his denials, he was taken together with A1 to the bar and followed to the Community Watchdog Committee and later handed over to the police. ISSUE(S) FOR DETERMINATION: Whether the prosecution has been able to prove his against the accused persons as per the charges against them. THE LAW: Sections 10, 11 and 13 of the Evidence decree, 1975 (NRCD. 323) states as follows: s. 10(1) For the purpose 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 minds of the tribunal of fact or the court. s. 11(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. s. 13(1) In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt. Authorities above put the burden of proof of the accused guilt squarely at the door of the prosecution and the failure of which the accused acquit and discharge. In fact all the accused has to do is to create a little iota of doubt in the prosecution’s case. 3 | P a g e Stealing: Section 124(1) of Act 29 “ A person who steals commits a second degree felony.” s. 125 define stealing as “A person steals who dishonestly appropriates a thing of which that person is not the owner.” s. 122(2) defines appropriation as “….. any moving, taking, obtaining, carrying away, or dealing with a thing, with the intent that a person may be deprived of the benefit of ownership, or of the benefit of the right or interest in the thing, or in its value or proceeds, or part of that thing.” See The Rep. vrs Halm & Anor. (1969)CC155 Thus for prosecution to be successful in the charge of stealing, he/she has to proof the following elements against the accused: 1) Dishonesty on the part of the accused; 2) The accused appropriated a thing; and 3) The property (thing) belongs to another person. See Ampah v. The Rep. (1977)2 GLR 171, CA, Brobbey and Others vrs The Republic (1982- 1983)GLR608 Dishonestly Receiving: The offence of “Dishonestly Receiving” is captured under section 147(1) of Act 29 as follows: “A person commits the criminal offence of dishonestly receiving any property which that person knows to have been obtained or appropriated by a criminal offence, if that person receives, buys, or assist in the disposal of the property otherwise than with a purpose of restore it to the owner.” Thus, for the offence of dishonestly receiving, the prosecution must establish the following elements against the accused: 1) There is a dishonest appropriation of a thing; 4 | P a g e 2) The accused had knowledge of the dishonest appropriation; 3) The accused receives, buys, or assist in the disposal of the property; and 4) With the intention not to restore it to the owner. APPLICATION: Starting from count one for the charge of stealing: contrary to section 124(1) of Act 29 as amended by N.L.C.D. 398 Paragraph 4 against A, the prosecution has the onus duty to prove beyond reasonable doubt the guilt of the accused by proving the elements stated supra in sections 124 (1) and125 when the accused has proved not guilty. However, even though A1 pleaded not guilty to the charge, all his evidence during trial points to one direction, thus guilty to the charge. First “A1” did not challenge the prime witness of the prosecution on his evidence. In fact when the question was put by the court whether he have a question for the witness (PW1) he answered in the negative. Q. No question for the witness. By Court, end of cross-examination of PW1 by A1 He also in his evidence on 17/01/2024, did confirmed that the complainant (PW1) gave him his phones to keep for him and that the said phones has since not returned to the witness but quickly put up a defence that he was drunk and did not know where she was at the time. He had this to say at paragraph 2 and 3 of his evidence. “2. It is true that the complainant gave me his phones. At the time that the phones were given to me there was a fight going on and people were even shooting guns. I was also drunk at the time. 3. Because I was drunk, I did not even know where I was at the time. The only person I can recognize is A2 who I handed over the phones to. But at the end of 5 | P a g e the fight, we were looking for the phones and placed a call but it wasn’t answered.” Now, it is clear and without any difficulty to conclude that: i. There is an appropriation on of the phones with intent to deprive the owner of its use; The phones were given to the given to the accused (A1) for safe keeping and has since to returned same to the owner depriving him of the use. ii. That the appropriation is in fact dishonest; and Dishonesty in the definition of stealing supra connoted moral obloquy. And that to sustain a conviction for stealing there had to be an act of the accused of such a nature as to cast a slur on the character revealing him as a person lacking in integrity or as a plainly dishonest person – to use the language of the Criminal Code, 1960 (Act 29) s. 125. See Anang vrs. The Republic (1984-86)1GLR 458. iii. The property (Phones) appropriated does not belongs to the accused Obviously, the phones in issue do not belong to the accused (A1). I am therefore convinced that the prosecution has been able to prove the guilt of A1 for the offence of stealing contrary to section 124(1) of the Criminal and Other Offences Act, 1960 (Act 29) and therefore convict him for the offence of stealing against him. Count Two: To convict the accused (A2) of Dishonestly Receiving: contrary to section 147(1) of Act 29, it must be shown that; (i) the goods alleged to have been stolen were in fact stolen, (ii) that the accused knows they were in fact stolen and nevertheless, (iii) assist in the 6 | P a g e disposal of the goods otherwise than with a purpose to restore them to the owner. See Gariba vrs The State (1963) 2 GLR 54. From the records of evidence, aside been merely alleged by A1 that he handed the phones to A2, prosecution to the best of my appreciation has failed to prove beyond reasonable doubt the guilt of A2 in respect of count two. A1 in his evidence strongly insisted that he gave the phones to A2 and that he was at the time drunk: “2. It is true that the complainant gave me his phones. At the time that the phones were given to me, there was a fight ongoing and people were even shooting guns. I was also drunk at the time. 3. Because I was drunk, I did not even know where I was at the time. The only person I can recognize is A2 whom I handed over the phones to. But at the end of the fight, we were looking for the phones and placed a call but it wasn’t answered.” The question to ask is if A1 was indeed drunk and could not remember anything else including where he was how could he then remember given the phones to A2? Again, in evidence, A1 said they went to A2s house with the complainants and other people and randomly searched A2s room without finding the lost phones. When the question was put during his (A1) cross-examination by A2, A1 said there were many people around when he gave the phones to A2, but he or the prosecution failed to call any of these many people allegedly present to corroborate his allegation of given the phones to A2. Q. where did you gave me the phones? A. It was along the road side. Q. who and who were there? 7 | P a g e A. There were so many people around. It has to be further noted that, A2 in his defence vehemently denied the allegation of receiving the stolen phones from A1 and his witness (DW1) corroborated his defence in equal terms. See the evidence of DW1 at paragraphs 4 to 13. “4. somewhere around November, 2023around 8pm to 10pm, I and A2 went to a spot at Kukore. 5. at the spot there were many people around so we sat on a round table. 6. we were about 10 people on the table 7. we sat till around 10pm before we left to our houses 8. so later in the night whiles sleeping a car came to my house and they knocked on my door. 9. so I came out and saw the accused persons and the complainant together with the complainant’s brother 10. so when I came out, they asked whether it is true that I went with A2 to the bar that night and I said yes. 11. The complainant told me that he gave his phone to A1 and A1is saying that he has also given the phone to A2 12. He then asked me whether I know anything about it, but I said no. the only phone I saw A2 with was his own phone. 13. At this point, the complainant took the accused persons to his uncle at the bar.” This evidence of A2s witness was not cross-examined nor challenged by the prosecution or A1 during hearing. Thus, safe proven that the phones were in fact stolen by A1, this court finds it extremely difficult that the prosecution has proven beyond reasonable doubt that A2 was aware of 8 | P a g e the stolen phones and assisted in the disposal of same otherwise than with the purpose to restore them to the owner. I therefore find A2 not guilty on count two (2) and acquit and discharge him accordingly. Sentencing: Taking into consideration all factors (aggravating/mitigation), A1 is hereby sentence as follows: 1) To return all the stolen phones (iphone 7 valued at Ghc1,750.00, infinix Hot 8 phone valued at Ghc1,400.00, a Techno 7pro phone valued at Ghc1,500.00) or its monetary value equivalent of Ghc4,650.00 and to One (1) month prison custody or 2) In default, Six (6) months prison custody. -SGD- H/H JEPHTHAH APPAU DISTRICT COURT, ZEBILLA 9 | P a g e