REPUBLIC VRS. ARMOO & ANOTHER (B7/77/24) [2024] GHADC 113 (29 February 2024)

IN THE DISTRICT COURT HELD AT NKROFUL ON THURSDAY 29TH DAY OF FEBRUARY 2024, BEFORE HER WORSHIP AWO AMISSAH FRENCH ESQ. AS MAGISTRATE. SUIT NO: B7/77/24 THE REPUBLIC VRS. 1. GEORGE ARMOO 2. GODFRED ETTI- AT LARGE A1 PRESENT A2 AT LARGE DETECTIVE CHIEF INSPECTOR FREDERICK OPOKU FOR PROSECUTION NO LEGAL REPRESENTATION FOR ACCUSED PERSON J U D G E M E N T A1 and A2 were charged with one count of conspiracy to steal and five counts of stealing under sections 23(1) and 124(1) of the Criminal Offences Act, 1960 (Act 29) respectively. The brief facts that gave rise to the charges as initially presented to the Court were that complainant is a driver while A1 is a carpenter and a resident of Aiyinasi. On the 28th day of November 2023, complainant and his brothers kept their mobile phones and refined gold valued at GHC 11,500.00 in their bag at an illegal mining site at Teleku-Bokazo. A1 and A2 who is at large conspired and stole the said items, after which A1 bolted to Elubo but was arrested with the assistance of Elubo Police. A1 upon his arrest stated in his investigation caution statement that it was A2 who brought the idea to steal the items which they successfully executed. A1 further indicated that A2 subsequently sold the 1 refined gold material at Tarkwa for GHC 10,000 and handed GHC 4,000 out of the proceeds of the sale to him, being A1. On the 23rd day of January, 2024 when A1 was arraigned before the Court, A1 pleaded not guilty to the first count of conspiracy to steal and not guilty to four counts of stealing, but pleaded guilty to count six which is also a charge of stealing with respect to the refined gold material. The Court thus proceeded to try A1 on counts One to Five but deferred sentencing for Count Six until trial is concluded in respect of the other charges for which A1 pleaded not guilty. Section 11 (2) of the Evidence Act, 1973 (NRCD 323) states that 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. Subsection 3 of the same provision says that 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. I will now deal with count one where the accused persons are charged with Conspiracy under section 23(1) of the Criminal Offences Act, (1960) which reads; “(i) Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence.” 2 In the case of, The REPUBLIC v. MAIKANKAN AND OTHERS [1972] 2 GLR 502-514 the court, per ABOAGYE J. as he then was held: “For a charge of conspiracy to succeed under section 23 (1) of the Criminal Code, 1960 (Act 29), there must be evidence that the accused persons agreed or acted together with a common purpose to commit the offence.” In order to ground a conviction the prosecution would have to lead evidence to prove beyond reasonable doubt that the accused persons acted together with a common purpose for or in committing or abetting the criminal offense. A1 in his investigation caution statement admitted that A2 conceived the idea to steal the items which they both executed. Furthermore, during cross-examination of A1 by prosecution on the 23rd day of February, 2024, the following ensued: Q: I’m putting it to you that there was no scatter alert, nobody chased you but you and your friend fled after stealing the items. A: That is not true. Q: Are you aware that this is a Court of records and do you remember telling this Court on your 1st day of appearance that you people stole the gold and you had GHC 4,000.00 out of the GHC 10,000 proceeds. A: Yes. There leaves no point to belabour in concluding that A1 is indeed guilty of conspiring with A2 to steal the said items. 3 I thus find A1 guilty of the offence of conspiracy to steal contrary to section 23 (1) of the Criminal Offences Act, 1960 (Act 29). With respect to the five Counts of stealing, section 124(1) of Act 29 states as follows; “A person who steals commits a second-degree felony.” Also Section 125 of Act 29 defines stealing thus; “A person steals who dishonestly appropriates a thing of which that person is not the owner.” As held in MENSAH AND OTHERS v. THE REPUBLIC [1978] GLR 404-427, in order to ground a conviction on this charge, the Prosecution must establish beyond reasonable doubt that; a. The person charged must not be the owner of the thing allegedly stolen, b. The person so charged must have appropriated the thing, c. The appropriation must have been dishonest. From the evidence before this court, it is obvious that A1 and A2 were not the owners of neither the gold bearing material nor the various phones. What remains unanswered is whether A1 together with A2 stole the various mobile phones as per counts two to count five. A1 in his investigation caution statement indicated that A1 and A2 while at Agona Nkwanta were attacked by a group of young men who collected the said phones from them. PW1 , the investigator, testified in his evidence-in-chief that Complainant and his 4 brothers kept their bag containing the various items as stated in the charge sheet which were subsequently stolen by A1 and A2. PW2 further corroborated with A1 that some young men attacked A1 and A2 at Agona Nkwanta and collected the mobile phones from them. It is therefore established beyond a reasonable doubt that the A1 and A2 indeed stole the mobile phones and do not own the items stolen. The next element for Prosecution to prove beyond a reasonable doubt is whether or not A1 appropriated the gold bearing material and the mobile phones allegedly stolen. Section 122(6) of Act 29 defines appropriation thus; “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.” The evidence on the record overwhelmingly points to the fact that A1 and A2 indeed appropriated the gold bearing material and the mobile phones. The last element to be proved by Prosecution in order to ground a conviction is that the appropriation must have been dishonest. Indeed the gold bearing material and the mobile phones were clearly not the property of A1 or A2; and were thus dishonestly appropriated. On all the evidence adduced before the Court, I therefore find and hold that A1 is guilty for the first count of conspiracy to steal, and for the four counts of stealing of the tecno pop 3, Huawei, tecno spak 10c, and infinix smart x mobile phones. 5 In passing sentence, the court took into consideration the fact that the Accused person is not known to the law and is a young man. The court also took into consideration his conduct during the whole trial and the need to deter like offenders as stealing within the jurisdiction and cross territorial crimes within the Nzema enclave is on the ascendency. The Accused person is sentenced on count 1 to serve a term of 3 months IHL with no option of a fine; on count 2 to serve a term of 5 months IHL with no option of a fine; on count 3 to serve a term of 5 months IHL with no option of a fine; on count 4 to serve a term of 5months IHL with no option of a fine; on count 5 to serve a term of 5 months IHL with no option of a fine and on count 6 to serve a term of 15 months IHL with no option of a fine. Sentences are to run concurrently. I note that accused person has since the 10th day of January, 2024 been remanded into police custody and thus has some days to his credit. SGD H/W: AWO AMISSAH FRENCH DISTRICT MAGISTRATE, NKROFUL 29TH FEBRUARY, 2024 6