REPUBLIC VRS ALMIYAWU (UW/WA/DC/B9/12/2023) [2024] GHADC 433 (14 February 2024)

IN THE DISTRICT COURT, WA. HELD ON TUESDAY, 14TH DAY OF FEBRUARY, 2024, BEFORE HIS WORSHIP, MAXWELL M. TITRIKU, DISTRICT MAGISTRATE. COURT CASE No: UW/WA/DC/B9/12/2023 THE REPUBLIC V ALHASSAN ALMIYAWU ACCUSED PRESENT ACCUSED UNREPRESENTED PW/SGT. COMFORT AKAMBANG FOR THE REPUBLIC. JUDGMENT. The Accused person (Alhassan Almiyawu), on 29th June, 2023, was arraigned before this Honourable Court on the following charges: i. ii. Being on premises for Unlawful Purpose, Contrary to Section 155 of the Criminal and Offences Act, 1960 (Act 29), Stealing, Contrary to Section 124 (1) of Act 29/60. Accused however, pleaded “Not Guilty”, after the charges were read and explained to him. 1 FACTS. The facts of the case as presented by the Prosecution were that, the Complainant, Razack Yamusah Abdulai Issahaku is the Manager of the Wechiau Community Hippo Sanctuary, resident at Wechiau, whilst the accused person, Alhassan Almiyawu is a hunter, as well as a farmer, also residing at Wechiau. According to Prosecution, on 29th day of March, 2023, the Wechiau Community Hippo Sanctuary mounted Three (3) Security Bushnell Cameras at the site to monitor the movement of wild animals and other activities. He said, on 06/04/2023 at about 10:00am, Tungbani Issahaku Agba, Head Tour Security Guard of the Wechiau Community Hippo Sanctuary went to the site to monitor the Cameras and found all the three Cameras active and reported back to the Complainant. Prosecution further stated that, on 16/04/2023, the Tour Security Guard went for monitoring at the site and found two (2) of the Bushnell Cameras out of the three (3) Cameras missing, and he reported back to the Complainant, and on 17/04/2023, the Complainant with his Assistant Manager, Jebuni Haruna together with the Tour Security Guard visited the site for a search, but could not find same. He said, the Complainant retrieved the remaining one (1) Camera and brought same to their office for assessment, and the Complainant and his team after carefully watching the footage of the remaining Camera, found the image of the accused person on his motorbike riding through the site, dated 31/03/2023. According to Prosecution, accused was formally arrested and searched, but the Complainant’s Cameras were not found with him, and was later cautioned and after investigation, he was charged with the offence as contained in the charge sheet, and arraigned before this Honourable Court. Thereafter, Prosecution called Three (3) Witnesses: 2 PW1 In his evidence-in-chief, PW1(Razack Yamusah Abdul Issahaku), the Manager, Wechiau Community Hippo Sanctuary, resident in Wechiau stated that, he knew the accused person in this case. According to him, the Wechiau Community Hippo Sanctuary has boundary demarcation of 40 kilometers along the Black Volta, measuring 1.2- and 1.5-kilometers width, and people including the Community members are prohibited from entering the said area. He said, on 29th March, 2023, the Wechiau Community Hippo Sanctuary mounted three (3) Bushnell Camera traps on trees in the middle of the protected zone with a distance of one (1) kilometer from each other to monitor the movement of wild animals and other activities, such as cutting of trees, farming, hunting and fishing within the protected zone. PW1 further stated that, the Head of Tour Guide, Mr. Tungbani Issahaku Agba (PW2), who is in charge of monitoring the Cameras on site, reports any development concerning the gadgets to him (PW1). He said, the Head Tour Guide did his first monitoring of the Cameras on 6th April, 2023 in between the hours of 10:00am and 11:00am at the site with the Cameras intact, and on 16th April, 2023 at about 7:00pm, the said Tour Guide (PW2) reported to him (PW1) that, he (PW2) did his routine checks on the gadgets and realized that, out of the three (3) Cameras which were mounted at various points in the protected zone, two (2) of the said Cameras had been stolen. He said, he (PW1) together with the Assistant Manager, Mr. Jebuni Haruna and the Head Tour Guide (PW2), went to the site in search of the two (2) missing Cameras, but they could not be found, and on observation at the site, he realized that, the belt used to tie one of the Cameras against a tree was untied, whiles the other Camera tied with a wire also against another tree was cut off, leaving marks of a sharp object on the tree, but since it was in the drying season, they could not trace the footprint. 3 According to him, he (PW1) together with PW2 and the Assistant Manager, Mr. Jebuni Haruna proceeded to Talawona to inform the leaders of the Community about the theft of the two (2) Cameras, for them to be on the look out and also inform them accordingly. He said, the remaining Camera was replayed and the accused person was captured on a motorbike riding in the prohibited zone, and suspected him to be the person who might have stolen the two (2) Cameras valued GH¢7,975.24. He said, before this incident, accused person and one other were served, Notice, dated 19th December, 2022, to desist from their hunting activities in the protected zone, and after the theft of the gadgets, the matter was reported to the Chief of Wechiau for the accused person to return the Cameras, if he (accused) was in possession of them, since he (accused) was captured in the video recording in the remaining Camera, but accused denied knowledge of it. PW1 finally stated that, he as the Manager of the Sanctuary, reported the matter to the Wechiau Police and gave statement to that effect to the Police, and later he (PW1) together with the Head Tour Guide (PW2), and the Assistant Manager, Jebuni Haruna led Police Investigator to the crime scene, where they removed the remaining Camera and keep same in the office of the Sanctuary. End of Evidence. Cross-Examination of PW1 by Accused Person: Q: You stated that, I stole your Cameras? A: It is so, we fixed three (3) Cameras and two (2) were stolen and you were captured in the remaining one, and the area where you were captured is a restricted area, which no one is allowed to go. Q: You stated that, the only Camera that captured me at the restricted area, did the Camera captured me stealing the Cameras as well? 4 A: The Camera which captured you, was far away from the two that were stolen. The one which captured you was placed at the restricted area. Q: Did you see me taking those Cameras? A: Indeed, the Camera did not capture you taking those other two Cameras, but you were captured at the restricted area, hence you are the sole person responsible. Q: I put it to you that, I was going to visit my kraal and I passed the Restricted area and the Camera captured me? A: I have never seen you with any Cattle, and the area the Camera captured you is a restricted area, and no one is allowed to enter same, not alone with a motorbike. PW2 In his evidence-in-chief, PW2 (Tungbani Issahaku Agba), resident at Wechiau, and Head Tour Guide at the Wechiau Hippo Sanctuary, and that, he knew the Complainant, as the Manager at the Wechiau Hippo Sanctuary. He said, he also knew the accused person long before this case as a hunter, whom he (PW2) and his Manager, Jebuni Haruna (PW1) ever met with gun in the Protected Zone of the Sanctuary, where they reminded accused by a notice served on him not to carry out any activity in the zone. According to PW2, on 29th March, 2023, he led a team from Accra to the protected zone of the Sanctuary where three (3) Bushnell Cameras were mounted on trees in the middle of the protected zone, with one (1) kilometer from each of the Camera to monitor the movement of wild animals and other activities, such as cutting of trees, farming, hunting and fishing within the Sanctuary. He said, he inspects the said gadgets every ten (10) days which he reports to the Manager of the Sanctuary, and on 6th April, 2023, at about 5 10:00am, he inspected the said three (3) gadgets and found all intact and reported same back to the Manager. PW2 further stated that, on 16th April, 2023, between the hours 2-3pm, he (PW2) again inspected the said gadgets as his routine checks, and to his surprise, two (2) of the said Cameras were stolen with marks of a sharp object left on one of the trees, where one of the Camera was mounted. He said, he then reported the incident to the Complainant, who then reported the incident to the Wechiau Police, where he (PW2) gave his statement, thereafter, he (PW2) together with the Complainant and the Assistant Manager, Jebuni Haruna led the Police Investigator to the crime scene. End of Evidence. Cross-Examination of PW2 by Accused: Q: It is true that, you were the one who went and inspected the Cameras that belong to you, and you indicated I was the one responsible for the stealing of those Cameras? A: It is true, I always go and inspect those Cameras, and later two (2) were missing. Q: Did you tell the Complainant that, two (2) Cameras were missing? A: Yes, the Camera which captured you, we saw you in it. Q: As you have known me long ago, have you ever heard I have stolen before? A: No, but the work you are doing which is hunting, through that, you entered our restricted area and we warned you, but you failed to heed to that, and so through that, we suspected you. Q: I put it to you that, you have never seen me with a gun in your restricted area? A: Not true, I always see you. 6 Q: I put it to you that, you have never seen me in the restricted area? A: Not true, the day you met Haruna, the Assistant Manager, was the day we all saw you. PW3 In his evidence-in-chief, PW3 (No. 44418, D/ Sgt. Patrick Asante), an Investigator in this case, stationed at the District Criminal Investigation Department, Wechiau, stated that, he knew the Prosecution witnesses together with the accused person in this case. According to him, on 29/03/2023, he was in his office as an available investigator on duty when the Complainant, Razack Yamusah Abdulai Issahaku (PW1) came and lodged a complaint that, he visited Wechiau Community Hippo Sanctuary and found two (2) out of the three Bushnell Cameras missing. He said, he obtained statement from PW1, as a witness in this case, who later identified the accused person, Alhassan Almiyawu as the one who stole the Cameras. He said, he got accused arrested and obtained investigation caution statement from him in the presence of an independent witness, and was thereafter granted bail. PW3 further stated that, PW1 later brought to him, a photograph (Exhibit “C”) dated 31/03/2023 depicting the image of the accused person, and when same was shown to accused he (accused) admitted to be the one in the photograph. He said, he conducted a search on accused person, but the Cameras were not found with Accused, and later PW1 led him to the crime scene, where he took photographs (Exhibits “C1”) of same, together with other documents such as cost of missing Cameras (Exhibit “D”), Letter from Hippo Sanctuary to Accused (Exhibit “E”) and photograph in which Accused was captured (Exhibit “F”), which he (PW3) intended to tender. He said, he then cautioned accused, and obtained cautioned statement (Exhibit “A”) from him. He said, he was later 7 instructed by his Superior to charge the accused, where he obtained charged statement (Exhibit “B”) from him, End of Evidence. Cross-Examination of PW3 by Accused Person: Q: You came to search my room when you came did you see the missing Cameras there? A: I did not find the Cameras in your room. Q: You stated that, a Camera captured me passing through the Sanctuary, I am I the only person the Camera captured? A: No, you are not the only person, but the others are at large, but we are pursuing them. DEFENCE In his defence, the Accused Person (Alhassan Almiyawu), a farmer, resident at Wechiau, told the Court that, he knew the Prosecution witnesses in this case. According to him, he has not stolen any Camera, and that, the Police stated he (accused) unlawfully went to the Sanctuary, but the one who owns the land is the Wechiau Chief. He said, his Cattle went there to drink water and he sought permission from the Chief of Wechiau, Naa Imoro Goma, before going to the Sanctuary, and when he (accused) got to the Sanctuary with his Cattle to drink, he had information from the Chief that, there were a lot of Fulani Herdsmen who went there with their Cattle to drink, so he (accused) should withdraw his Cattle out of the Sanctuary so that, they fish-out the Fulani Herdsmen before he (accused) would move into the Sanctuary with his Cattle to drink. Accused further stated that, when he received the information to withdraw his animals from the Sanctuary, he informed his Fulani Herdsman and when they were coming out of the Sanctuary, they met one Issahaku, the Guard, who seized his Fulani Herdsman’s 8 cutlass and he (accused) went and reported to his father, who intend reported the conduct of the Guard to the Wechiau Chief, who directed the said Issahaku to release the cutlass to his (accused) Herdsman but Issahaku (the Guard) refused, and upon several request, Issahaku finally released the cutlass to his Herdsman. According to Accused, he only went to the Sanctuary to inform his Fulani Herdsman to come home with the Cattle based on the directives of the Chief of Wechiau. End of Evidence. Cross-Examination of Accused Person by Prosecution: Q: You are telling this Court that, the Chief of Wechiau permitted you to send your animals to the Sanctuary after you were served with the warning letter? A: That is not what am trying to tell the Court. Q: I finally put it to you that, even though you were warned in the letter not to go there, you still continue to go to the Sanctuary and you were captured by the Camera, and you also know about the missing Cameras? A: I am under oath, so I will not tell lies, but the truth is that, I have not stolen any Camera. Thereafter, the legal issue that emerged for determination by this Honourable Court was: • WHETHER OR NOT ACCUSED IS GUILTY OF THE OFFENCE CHARGED. THE CRIMINAL OFFENCES ACT, 1960 (ACT 29), S. 155 (1) and (2), respectively provides as follows: 9 S. 155 (1): “A person who is found in or about a market, wharf, jetty, or landing place, or in or about a vessel, verandah, outhouse, building, premises, passage, gateway, yard, garden, or an enclosed piece of land, for an unlawful purpose, commits a misdemeanour.” S: 155 (2): “For the purpose of subsection (1), the expression “enclosed piece of land” includes: a. Land in respect of which a concession within the meaning of the Concession Act, 1962 (Act 124) is in force, b. Land which is held by a person by virtue of a grant made in pursuance of the Administration of Lands Act, 1962 (Act 123), c. Land in respect of which a licence granted under section 2 of the Minerals Act, 1965 (Act 126 is in force, and d. Land which is vested in the President by or by virtue of an enactment, or which is Stool Land within the meaning of the Administration of Lands Act, 1962 (Act 123).” ANALYSIS OF THE EVIDENCE After the trial, the following fact findings and observations were made by this Honourable Court: i. It was evident that, the establishment of the Wechiau Community Hippo Sanctuary as a Community-based ecotourism fall within the context of “enclosed piece of land” in accordance with Section 155 of Criminal Offences Act, 1960 (Act 29), which unauthorized persons cannot just enter without being permitted. ii. It was also evident that, accused person had always been found in the protected zone, (i.e. the Sanctuary) either hunting or sending his Cattle to graze or drink in the Sanctuary, and based on this, accused was issued with a Notice 10 (Exhibit “E”), dated 19th December, 2022, warning accused person from entering and conducting any activity in the Sanctuary, but he failed, as stated in paragraph 4 of the evidence-in-chief of PW2 as follows: Paragraph 4: “I know the accused person to be a hunter whom my Assistant Manager, Jebuni Haruna and myself had ever met the accused person with gun in the protected zone of the Sanctuary, where we reminded him of the Notice served on him not to carry out any activity in the zone.” ............. AND, in cross-Examination, Accused answered the following questions among others from Prosecution: Prosecution : You said, you asked permission from the Chief of Wechiau before you sent your animals there to drink and graze? Accused : Yes, I sent the animals there to graze. Prosecution : You have been served with a letter not to go to the Sanctuary, and the Chief of Wechiau gave you permission to go with your animals? Accused : The letter was not given to me, warning me in respect to going there with my animals, but it was in respect of not going to the Sanctuary to hunt. Prosecution : Was the letter warning you not to go to the Sanctuary given to you before you went to the Chief or after the letter was served on you that you went to the Chief to ask permission? Accused : The letter was given to me before I went to the Chief for permission. 11 ........... These were clear admission made by Accused that, a warning letter (Exhibit “E”), dated 19th December, 2022, was served on him stopping him from going to the enclosed piece of land. ...........In the instant case, even though the Chief whom he (accused) alleged permitted him to enter the Sanctuary, has no authority to do so, accused could not call him as his witness to prove his case. iii. It was also evident that, due to the unlawful activities of unauthorized people who normally enter the Sanctuary, the Authorities of the Wechiau Hippo Sanctuary mounted three (3) Bushnell Cameras on 29th March, 2023 to monitor movement of wild animals and unauthorized activities in the Sanctuary, as stated in paragraph 5 of the evidence-in-chief of PW2 as follows: Paragraph 5: “On 29th March, 2023, I led a team from Accra to the protected zone of the Sanctuary, where three (3) Bushnell Cameras were mounted in the Sanctuary. The three (3) Cameras were mounted on trees in the middle of the protected zone with one (1) kilometer from each other to monitor the movement of wild animals and other activities such as cutting of trees, farming, hunting and fishing within the area.” ............. However, the Head Tour Guide (PW2), further stated in paragraph 8 of his evidence-in-chief as follows: Paragraph 8: “On 16th April, 2023 in between 2-3pm, I again inspected the said gadgets as my routine checks and to my surprise, two (2) of the said Cameras were stolen with marks of a sharp object left on one of the trees where a Camera was mounted.” Interestingly, despite the warning, accused continued to enter the protected zone without authority, and he (accused) who was on a Motorbike in the Sanctuary, was captured by one of the three cameras on 31st March, 2023, (Exhibit “F”), as stated in the following cross-Examination of PW3 by Accused: Accused : I put it to you that, my Cattle went to the Sanctuary to 12 drink water and it was because of that, I went to the Sanctuary, but I don’t know anything about the missing Cameras? PW3 : Not true, you know the whereabouts of the missing Cameras, since you were served with Notice, dated 19/12/2022, and the Camera captured you on 31/03/2023. .......... This clearly showed that, accused went to the Sanctuary and his presence in the restricted area was evidenced or captured by the remaining Camera in a photograph (Exhibit “F”) dated 31/03/2023, within the period the two Cameras got missing. In the High Court case of: DOGBE v THE REPUBLIC [1975] 1 GLR 118, it was held per Atta-Bedu, J(as he then was) as follows: “In criminal trials, the identity of the accused as the person who committed the crime might be proved either by direct testimony or circumstantial evidence of other relevant facts from which it might be inferred by the court.” In his statement to the Police, accused stated as follows: “...........On 31/03/2023 at about 11:24am, I was within Wechiau. I did not go to Wechiau Hippo Sanctuary on 31/03/2023. I see myself in the picture shown to me but on the date and time stated on the picture do not match with my movement. I go to Mosque of Fridays and the 31/03/2023 fell on Friday. I did not steal their Cameras. I do not game in their reserve area. I have gun and it has been registered.................” .......... Moreover, Accused admitted that he was the one captured by the Camera, as he answered the following questions among others from the Prosecution: Prosecution : The Camera captured you, when you were warned through a letter served on you not to go to the 13 premises of the Sanctuary? Accused : I was not the only person the Camera captured. Prosecution : I put it to you that, the Camera captured you and others, and others are being pursued, but you have been arrested? Accused : I agree. In the Court of Appeal case of: AMOAH v THE STATE [1966] GLR 737, CA, it was held (per Holding 2), as follows: “The essence of the charge of being on premises for an unlawful purpose under section 155 of Act 29 was the purpose for which the entry was made; if the purpose was lawful then no offence was committed.” On the evidence, accused is known to have been executing his unlawful activities in the Sanctuary, despite warning Notice (Exhibit “E”) served on him since 19th December, 2022, but he failed to heed to the warning. Subsequently, accused was finally captured on a motorbike in the Sanctuary, within the period of the missing two (2) Cameras, which clearly showed that, the purpose for which the entry was made was unlawful. In “CROSS ON EVIDENCE”, (2nd Ed.), at p. 43, it was stated as follows: “When there is no doubt that, an act has been done, and the question is whether it was the act of a particular person, all relevant evidence is normally admissible in order to prove or disprove that fact.” Section 122 (2) of Act 29, defines appropriation as follows: “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, some person may be deprived of the benefit of his ownership or of the benefit of his right or interest in the thing, or in its value or proceeds, or any part thereof.” 14 In the Court of Appeal case of: AMPAH v THE REPUBLIC [1977] 2 GLR 171, @ Pg. 175, it was stated as follows: The offence of stealing is created by section 124 of the Criminal Act, 1960 (Act 29), and in section 125 ‘stealing’ is defined as follows: “A person steals if he dishonestly appropriates a thing of which he is not the owner.” Therefore, to establish the offence of stealing, the prosecution was required to prove the following three (3) elements: (i) dishonesty; (ii) appropriation; and (iii) property belonging to another person. • AMPAH v THE REPUBLIC [1976] 1 GLR 403, H.C, ABBAN J, Applied. A man’s intentions could be proved from the surrounding circumstances including of course the presumption of law that, a man was deemed, prima facie, to intend the probable and natural consequences of his act. In the instant case, the accused intention to steal could be gathered from his disregard/disrespect of the Warning Notice/Letter, dated 19/12/22 (Exhibit “E”), served on him, preventing him from entering the Sanctuary, but he (accused) continued to enter the Sanctuary, resulting in the missing Cameras. Thus, opportunity on the part of accused to do the act and his knowledge of circumstances enabling it to be done were admissible to prove identity. • PHIPSON ON EVIDENCE (10TH. ED.), at p. 171, para. 383, Applied. In the circumstances of this case, having considered the whole evidence adduced by both Prosecution and Accused person, I hold that, Prosecution had led sufficient and credible evidence, which proved the guilt of the Accused person herein beyond reasonable doubt. I am therefore satisfied with the guilt of the Accused person and convict him on all two counts accordingly. 15 In sentencing the accused person, the Court considered the nature of the offence charged, and the prevalence of such offences within the jurisdiction of this Honourable Court. The Court also considered the fact that, the accused failed to abide by the warning letter served on him, preventing him (accused) from entry into the Sanctuary. Accused being a first offender, and considering his plea, the following sentence is hereby imposed on him. Accused sentenced to pay a fine of Two Hundred (200) Penalty Units on each of the Two (2) Counts, or in default, serve Twelve (12) Months Imprisonment. Sentences to run Concurrently. I further order that, Accused pays a total sum of Seven Thousand, Nine Hundred and Seventy-Five Cedis, Twenty-Four pesewas (GH¢7,975.24), being the cost of the Two (2) missing Cameras to the Complainant, within Two (2) weeks from today. .................................................... MAXWELL M. TITRIKU, MAGISTRATE. DISTRICT COURT, WA, UW/R, 14/02/2024. 16