REPUBLIC VRS AYAMBA (B7/35/24) [2024] GHADC 100 (6 February 2024)

IN THE DISTRICT COURT 2, TAMALE HELD ON TUESDAY 6TH FEBRUARY, 2024 BEFORE HIS WORSHIP D. ANNAN ESQ. SUIT NO. B7/35/24 THE REPUBLIC V AYAMBA NAPARI JUDGMENT 1. In this case, accused is charged as follows: STATEMENT OF OFFENCE Stealing, contrary to section 124(1) of the Criminal Offences Act, 1960 (Act 29). PARTICULARS OF OFFENCE AYAMBA NAPARI, Mason, Age 21years: For that you on the 24th day of August, 2023 at Sagnarigu a suburb of Tamale in the Northern Magisterial District and within the jurisdiction of this Court, did steal Haojue Dash 5 motorbike valued at GHS16,500.00 the property of Alhassan Somed. FACTS OF THE CASE 2. The facts of the case as tersely given by the prosecution are that on 24th August, 2023 at about 7:30pm the complainant, Alhassan Somed, went for prayers at a mosque near his house at Sagnarigu Kukuo and parked his unregistered Dash 5 motorbike with chassis number LC6XCH5DOM1003752 in front of the said mosque. After prayers, complainant came out and detected that his motorbike was stolen. On 28th August, 2023 complainant then filed a complaint at the Sagnarigu Police Command. The police - 1 - had information to the effect that the Walewale Police Command had intercepted an unregistered Haojue Dash 5 in the possession of the accused and suspected same to be stolen. On 29th August, 2023 the complainant together with an officer from the Sagnarigu Police Command went to Walewale Police Station where the accused and the said motorbike were brought for investigation. During the investigation, it was revealed that the accused who is a labourer/mason at a hospital under construction at Kpene left the site to buy food in Tamale township. On his way, accused spotted the said motorbike parked and he pushed it to town, cut a new key and rode to Walewale. Upon reaching Walewale, the police who were on their normal snap check duty stopped the accused. Upon interrogation, they detected that the said motorbike was stolen. The accused was arrested and the motorbike detained. The accused was later charged with stealing having established that the said motorbike belonged to the complainant. 3. Accused when arraigned before this court on the above charge pleaded not guilty. DEFINITION OF THE OFFENCE 4. Section 125 of Act 29 defines stealing to mean, “a person steals if he dishonestly appropriates a thing of which he is not the owner.” Act 29 also provides that a person who steals commits a second degree felony, see s. 124(1). BURDEN OF PROOF 5. By a plea of not guilty, the accused puts himself in charge of the court, meaning that his guilt has to be proved beyond reasonable doubt. It is settled law that a person is presumed innocent until the contrary proved, see article 19(2)(c) of the 1992 Constitution. The mandatory requirement that the guilt of the person charged ought to be established beyond reasonable doubt and the burden of persuasion on the party - 2 - claiming that the person was guilty, has been provided for in ss. 11(2), 13(1), 15 and 22 of Evidence Act, 1975 (NRCD 323). In Gligah & Atiso v The Republic [2010] SCGLR 870, the Supreme Court, per Dotse JSC re-emphasized this point thus: “…whenever an accused person is arraigned before any court in any criminal trial, it is the duty of the prosecution to prove the essential ingredients of the offence charged against the accused beyond reasonable doubt. The burden is, therefore, on the prosecution and it is only after a prima facie case has been established by the prosecution that the accused person is called upon to give his side of the story.” 6. Thus, whereas the prosecution carries that burden to prove the guilt of the accused beyond reasonable doubt, there is no such burden on accused to prove his innocence. At best he can only raise a doubt in the case of the prosecution. But the doubt must be real and not fanciful, see the cases of Miller v Minister Of Pensions [1947] 2 ALL ER 372 at 374, COP v Isaac Antwi [1961] GLR 408 and Owusu-Ansah v The State [1964] GLR 558. METHODOLOGY 7. In the instant case, accused pleaded not guilty to the charge herein. Upon such a plea, the prosecution must prove the whole of its case including the identity and knowledge of offence against the accused, see Owusu-Ansah v The State (supra). 8. The prosecution in proving its case against the accused called one (1) witness: No. 46927 D/Cpl. Aneh Raphel Awewuvi (PW). The complainant Alhassan Somed and one police officer L/Cpl. Anokye Rexford filed witness statements, but they were not called to testify. Accordingly, the said witness statements are struck out. Prosecution tendered in evidence the following exhibits: a. Exhibit A - Investigation Cautioned Statement of Accused dated 29/8/23. - 3 - b. Exhibit B - Charge Cautioned Statement of Accused. c. Exhibit C – Picture of the said motorbike. d. Exhibit D – Picture of the said motorbike depicting the chassis number. The Prosecution’s Case 9. Prosecution witness (PW) recounted similar facts as narrated above. He added that he investigated the matter and caused the accused to be charged with stealing. 10. Accused during trial disputed the investigation caution statement as not being thumbprinted by him. However, after a mini-trail same was accordingly admitted and marked as Exhibit A. PW also tendered in evidence the other exhibits, aforementioned. 11. At the end of the Prosecution’s case, the Court found that a prima facie case had been established against accused and therefore called upon accused to open his defence. Accused Person’s Defence 12. Accused in his defence stated, “I do not know anything about this case. That is all.” ANALYSIS OF FACTS AND LAW 13. Following the decision in Owusu-Ansah v The State (supra), the prosecution was therefore required to prove the offence of stealing beyond reasonable doubt. In the case, Brobbey & Ors v The Republic [1982-83] GLR 608, the essential elements to be proved by prosecution with regards to the offence of stealing were stated as (a) the person charged must have appropriated the thing allegedly stolen, (b) the appropriation must be dishonest and (c) the person charged must not be the owner of the thing allegedly stolen. Therefore, a person could not be guilty of stealing unless - 4 - he was proved to have appropriated the thing in the first place. See the cases of Anang v The Republic [1984-86] 1 GLR 458 and Ampah & Anor. v The Republic [1976] 1 GLR 403. 14. In the instant case, prosecution contended that accused when arrested at the Walewale check point, he was unable to establish ownership of the said motorbike. In Exhibit A, this is what the accused stated, “I am a native of Bumbonayili, a suburb of Yendi and a mason. About 3 months ago, I came to Tamale to work at one hospital they are building at Kpene a suburb of Sagnarigu in the Northern Region. On 24th August, 2023 at about 7:00pm going to 8:00pm, I left site at Kpene to Tamale town to buy food. On my way, I saw the exhibit motorbike in one compound parked but there was no one around. So I went and picked it and pushed it to town and cut a new key and then sparked the motorbike and took it to Walewale. So when I got to Walewale, someone stopped me and asked me about the motorbike documents and I said I don’t have and he said unless he takes it to the police station for me to produce the documents before taking my motorbike.” 15. From the evidence, prosecution was able to identify the chassis number of the motorbike with that of the complainant’s. Accused failed to produce his documents or explained how he came by the said motorbike, if indeed it was his. He simply disputed and maintained that he had nothing to do with this case. 16. Flowing from the case, Brobbey & Ors v The Republic [supra], I hereby conclude that prosecution has been able to prove beyond reasonable doubt that accused appropriated the motorbike which clearly did not belong to him. - 5 - SENTENCING 17. Having heard Emmanuel Wadekuu Esq., Abraham N. Damtar Esq., Salisu B. Issifu Esq. and Sylvester Isang Esq. as friends of the court and the prosecution on pre- sentencing hearing, I note that the accused has been in custody/remand since 31st August, 2023. Thus, about a little over 4months. I also note that the said motorbike has been returned to the complainant. It was in good shape. That accounted for the complainant’s reluctance in coming to court. I also note that accused is a student and yet to complete his senior high school. 18. In the circumstance, the time spent by the accused in custody is commuted as his sentence. He is, therefore, discharged. H/W D. ANNAN ESQ. [MAGISTRATE] SGT. I. ATIREKPERE WITH INSP. A. R. DAWUD FOR THE REPUBLIC ACCUSED APPEARED IN PERSON Reference: 1. Article 19(2) of the 1992 Constitution 2. ss. 124(1) and 125 of the Criminal Offences Act 1960 (Act 29) 3. s. 131 of the Criminal Procedure Act (Act 30) 4. ss. 11(2), 13(1), 15, 22 and 120 of Evidence Act, 1975 (NRCD 323) 5. Miller v Minister Of Pensions [1947] 2 ALL ER 372 at 374 6. COP v Isaac Antwi [1961] GLR 408 7. Gligah & Atiso v The Republic [2010] SCGLR 870 - 6 - 8. Owusu-Ansah v The State [1964] GLR 558 9. Brobbey & Ors v The Republic [1982-83] GLR 608 10. Anang v The Republic [1984-86] 1 GLR 458 11. Ampah & Anor. v The Republic [1976] 1 GLR 403 - 7 -