REPUBLIC VRS AGYEMANG & 2 OTHERSS (BR/DR/DC/H7/19/2022) [2024] GHADC 237 (14 February 2024)

IN THE DISTRICT COURT, DROBO BONO REGION CASE NO: BR/DR/DC/H7/19/2022 THE REPUBLIC VRS 1. AGYEMANG BISMARK 2. KWASI FRANK 3. EVANS YEBOAH JUDGMENT DELIVERED BY H/W LINDA E. NYAHE ESQ. (MAGISTRATE) DATED: 14/02/2024 Page 0 of 10 IN THE DISTRICT COURT HELD AT DROBO ON THURSDAY, 14TH DAY OF FEBRUARY, 2024. BEFORE HER WORSHIP LINDA ENYONAM NYAHE (ESQ). MAGISTRATE CASE NO: BR/DR/DC/H7/19/2022 THE REPUBLIC VRS 1. AGYEMANG BISMARK 2. KWASI FRANK 3. EVANS YEBOAH JUDGEMENT =========================================================== 1ST ACCUSED PERSON- DEALT WITH ACCUSED PERSONS (A2 & A3) –PRESENT (BY THEMSELVES) COMPLAINANT - PRESENT G/SGT SEIDU ABDUL RAZAK FOR PROSECUTION -PRESENT The Accused persons A1, A2 and A3 were jointly charged and were arraigned before this Court for the following offences; 1. Conspiracy to Commit crime to wit stealing; contrary to sections 23(1) and 124(1) of Act 29/60 2. Causing unlawful damage contrary to section 172 of Act 29/60 3. Unlawful entry contrary to section 152 of Act 29/60 4. Stealing contrary to section 124 (1) of Act 29/60 Page 1 of 10 3rd Accused person (A3) however was only charged with the offence of conspiracy to commit crime together with A1 and A2. At the commencement of the case, the A1 pled guilty simpliciter to all four (4) counts and was convicted and sentenced. The Accused persons (A2 and A3) however pleaded not guilty to the various charges after the charges had been read out and explained to them in the Twi language. The matter was set down for trial and the burden was therefore placed on the prosecution to prove the guilt of the accused persons (A2 and A3) beyond reasonable doubt as per sections 11 (2) and 13 (1) of the Evidence Act, 1975 [NRCD 323] and also as was held in the case of Asare Vrs The Republic [1978] GLR 193-199, where Anin J. A. (as he then was) reading the court of Appeal decision stated: “As a general rule, 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 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 CASE OF PROSECUTION The facts of the case as presented by the prosecution were that Complainant is Nyuubaar Vitus, Age 56 years Headteacher of Roman Catholic Primary School, Adiokor No.2 while accused persons Agyemang Bismark A1 23 years, unemployed, Kwasi Frank A2, 22 years, unemployed and Evans Yeboah A3, also 23 years a labourer. Accused persons A2 and A3 are natives of Adiokor town. On the 17/01/2022, complainant Nyuubaar Vitus received a distress call from a colleague teacher that thieves have broken into the head teacher’s office and made away with various items namely; two system units, two keyboards, one monitor, one mouse and computer cables all valued (GH₵2,000.00). Complainant quickly rushed to the scene to ascertain the truth of the Page 2 of 10 matter himself and there he detected that thieves have caused damage to padlocks through which they gained access into the head teacher’s office and stole the items. A window leading to a storeroom of the school was also damaged. Complainant quickly informed the opinion leaders of the town including the Assemblyman about the incident and subsequently official report was made to police Adamsu Station that after the successful operation by accused persons A1 and A2 booty was shared and same taken to their respective houses Adiokor No. 2 and Zezera accordingly. Some hours later information was circulated in the Adiokor No.2 Township about the incident and the accused persons sensing danger, A2 then called A3 and with his assistance part of his goods were quickly conveyed and transported to A1 at Zezera township for onwards sales to any potential buyer. On 31-01-2022, intelligence gathered by the Assemblyman of the town and his people led to the arrest of accused person Agyemang Bismark A1 from his hideout where a search was conducted in his room and all the stolen items retrieved and same handed over to police Adamsu with accused person. During interrogation, accused person A1 and A2 admitted the offence but A3 denied. After investigations accused persons were charged with the offences stated in the charge sheet and put before this Honourable court. In proving its case, prosecution called three (3) witnesses including the investigator. PW1; Nyuubaar Vitus, the headteacher of Adiokor No. 2 Roman Catholic Primary testified that on the 17th day of January, 2022, he received a distress call from a co- worker, that thieves have broken into his office and made away with some items belonging to the school. That he quickly rushed to the school and detected that the padlocks which have been used to lock his office has been damaged and his office has been ransacked with part of the iron rod fixed to the window frame destroyed. He further stated that the thieves made away with two monitors, two keyboards, system unit accessories all valued GH₵3,110. On 31st day of January, 2022, the chief and his elders called to inform him that the perpetrators of the crime have been arrested and have been handed over to the police. Page 3 of 10 PW2, the Assembly man of Adiokor No. 2 also testified that on 17th January, 2022 he had information from the committee members of Adikor No. 2 town to the effect that thieves have broken into Roman Catholic Primary School within the said town and made away with some items belonging to the school. He visited the scene and found out that two windows leading to the school library and the headmaster’s office were also damaged and the office ransacked. The window leading to the store room has been damaged and two desktop monitors, two keyboard computers, mouse and cables were stolen from the store room. Official report was made to police, Adamsu for investigation. They conducted their personal investigation and it came to light that accused persons Agyemang Bismark, Kwasi Frank and Yeboah Evans were culprits to the crime. That convict Agyemang Bismark was confronted in the presence of witness and he confessed having committed the crime with his accomplice accused Kwasi Frank and one monitor and a keyboard were retrieved from him. Accused persons were arrested and handed over to the police. The police investigator, PW3 was the last to testify. He told the Court that on the 17th day of January, 2022 a case of Unlawful Entry and Causing Unlawful damage and Stealing was reported at the station and the case referred to him for investigations. He collected statements from PW1 as well as PW2. He further said he visited the scene of crime at Roman Catholic Primary School, Adiokor No. 2 That parts of the wire mesh used to cover the window leading to the library and headmaster’s office had been damaged and padlocks used to lock the headmaster’s office also has been damaged. The headmaster’s office has been ransacked and part of the window frame to the store room has been damaged and one iron rod fixed same removed. Photographs were taken for evidential purposes. On 31st day of January, 2022, the witness assisted by some elders of the town arrested and brought the accused persons together with some of the stolen items. Police further retrieved one Dell Desktop computer, one Lenovo Keyboard and computer cables from the accused persons. That investigation cautioned statements Page 4 of 10 were collected from the accused persons A1 and A2. That after his investigation, he received instructions from his station officer to charge the accused persons. The prosecution tendered into evidence the following without any objection; a. Investigation cautioned statement of A2 marked Exhibit A b. Charged cautioned statement of A2 marked Exhibit B c. Investigation cautioned statement of A3 marked Exhibit C d. Charge cautioned statement of A3 marked Exhibit D e. Investigation cautioned Statement of A1 marked Exhibit E f. Charge cautioned statement of A1 marked Exhibit F g. Photograph of damaged window marked Exhibit G h. Photograph of items (computer accessories) retrieved by police marked Exhibit H. With this, prosecution brought its case to a close. After close of prosecution’s case, the court examined the prosecution’s case and found that there was a case for accused persons (A2 and A3) to answer. They were therefore called upon to open their defence. DEFENCE OF 2ND ACCUSED PERSON According to A2, the incident happened when he was in a town called Adukrom in La Cote D’Ivoire. He denied his involvement in the crime. He told the Court that whiles at Adukrom some elders approached him and told him some school items have gotten missing and someone has mentioned his name in connection with the missing school computers and its accessories. He was told by the people to follow them to explain his side of the story. He followed them without hesitation to Adiorkor No, 2 where he was escorted to the police station. At the police station, he met the A1 who confessed openly that he was with A2 when they broke into the school office and stole the items. A2’s defence is that he knows nothing about the incident and that A1 was instigated by some opinion leaders in the town to frame him up. DEFENCE OF 3RD ACCUSED PERSON Page 5 of 10 A3 testified that he is a farm labourer. He said on the day of the incident, they were pursued by a mob wielding clubs who yelled at them to speak the truth if not they will harm them but still insisted he knew nothing about the incident and that he maintained his innocence and did not admit any guilt. The legal issues that falls for determination at the end of the entire trial are: 1. Whether or not the 2nd and 3rd accused persons together with A1 conspired to steal. 2. Whether or not the 2nd Accused person caused unlawful damage to two padlocks and one (1) window all valued GH¢1,110.00 the property of Adiokor No. 2 Roman catholic school? 3. Whether or not the 2nd accused person dishonestly appropriated computer accessories which belonged to Adiokor No. 2 Roman Catholic School The cardinal rule in all criminal proceedings is that the burden of establishing the guilt of the accused person is on the prosecution; and the standard of proof required by the prosecution should be proof beyond reasonable doubt as provided in the Evidence Act, 1975 (NRCD 323), per section 11 (2) and 13 (2), and also as was stated in the case of Donkor Vrs. The State [1964] GLR 598. Both accused persons evidence on oath is different from that on caution. Although Accused persons A2 and A3 denied their involvement in the crime and further alleged they have been framed, they had however admitted their participation in the commission of the offences leveled against them in their respective statements given to the police. A1 who has already been dealt with confessed in his statement that A2 was his accomplice and gave a vivid account of A2’s involvement with reference to Exhibits A, B C and D. Page 6 of 10 Besides that, there have been admissions during cross-examination by the accused persons. I hereby seek to reproduce the relevant portions of the evidence, that is cross- examination of A3 by prosecution as follows; Q. You stated in Exhibit C that, I quote from line 9 ‘on reaching Zezera we met Agyemang Bismark alias medical and suspect Ferka Frank handed over a desktop to him’? A. That is so Q. A2 handed over the said stolen computer desktop when he was sensing danger of being arrested? A. Yes my lady. Interestingly, in the course of trial, A2 sought to challenge the confession statements which were already in evidence to the extent that he never admitted the various offences he had been charged meaning the statement that was written down was different from what he had told the police. A mini trial was conducted and the independent witness who was present at the time their statements were being taken was called to testify. According to her, after the accused persons’ statements were given voluntarily they were later read out to them and explained to them in Twi. That she witnessed all of these after which accused persons approved them and signed. She denied accused persons allegation. Accused persons (A2 and A3) then turned around to say that they made that confession in their statements under duress. The Court found these as untrue and an attempt by the accused persons to escape the arms of the law. Their inconsistencies impinged on their credibility therefore creating doubts in their defence. In the case of Kuo Den alias Sobti V. The Republic [1989-90] GLR 303. The Supreme Court in a charge of murder explained at page 213 that where there are material Page 7 of 10 inconsistencies in the defence put up by he accused person, there was sufficient justification for the jury to reject the defence. Also in the case of Akowuah V Commissioner of Police [1963] 2 GLR 390, it was held that where a previous statement to the police was at variance with the evidence in Court, such evidence should be negligible but whether any credence should be given to such evidence should be left to the discretion of the Court. The above inconsistencies in the testimony of the accused persons (A2 and A3) are too material and thus totally discredited them and therefore unreliable. I have carefully evaluated all the confession statements tendered by prosecution and the entire evidence on record. I find that Accused persons attack on the confession earlier on made is an afterthought intended to escape the consequences of their action and by so doing they have not been able to establish that it was not their own statements or that the statements were made under duress. Section 23 (1) of Act 29 provides: “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 a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence.” On the basis of the confessions made by accused persons, the Court is satisfied that A2 together with A1 and A3 agreed to dishonestly appropriate the properties of the school. A2 further together with A1 unlawfully entered the school premises, caused damage to the head masters office door and window and stole the said items. Accused persons (A2 and A3) are therefore convicted on all the offences charged them respectively. Before punishing the accused, I shall be guided by section 296 of Act 30. Page 8 of 10 BY COURT: - Consequently, upon the total evidence adduced before me, I shall sentence accused persons herein having been found guilty of the offences to the following terms: A2- 200 Penalty Units on all four (4) counts or in default 24 months I.H.L. The sentence shall run concurrently. A3: 150 Penalty Units on count (1) or in default 12 months I.H.L. ……………SGD…………….. H/W LINDA E. NYAHE (ESQ) (MAGISTRATE) Page 9 of 10