REPUBLIC VRS YEBOAH & 9 OTHERS (D7/153/2023) [2024] GHACC 217 (19 March 2024)

IN THE CIRCUIT COURT HELD AT AMASAMAN – ACCRA ON TUESDAY THE 19TH DAY OF MARCH, 2024 BEFORE HER HONOUR ENID MARFUL-SAU, CIRCUIT COURT JUDGE CASE NO. D7/153/2023 THE REPUBLIC VRS. 1.EVANS YEBOAH 2.AKWESI POKU 3.NANA OSEI TUTU 4.DACOSTA APPIAH 5.KWABENA OFORI 6.KWESI ABOAGYE 7.JOSEPH AMO 8.JAMES ASAMOAH 9.KYEI BAFFOUR 10.YAW NTIM 11.JACOB DONKOR ACCUSED: A1 PRESENT, A2 ACQUITTED, A3-A5 DISCHARGED PROSECUTION: C/INSP. AWUAH ANSAH HOLDING BRIEF FOR ASP DORA AMOH PRESENT NO LEGAL REPRESENTATION JUDGMENT By a Charge Sheet registered on 25th July, 2023, A1 is charged with 3 counts of stealing contrary to 124(1) of the Criminal Offences Act 1960, Act 29 and A2 - A11 are charged Page 1 of 7 with one count each of dishonestly receiving on counts four to thirteen respectively contrary to the Criminal Offences Act, 1960, Act 29. The facts as presented by Prosecution are that the complainant Isaac Frimpong is a second-hand shoes importer and somewhere in the year 2022, he detected theft of his shoes at his warehouse situated at Fise so he sought the advice of Police. Prosecution says that complainant was advised to install CCTV cameras in and around the warehouse, so he did. According to Prosecution, on 15th July, 2023 at about 02:30hours, complainant received an alert on his mobile phone from the CCTV Camera of an ongoing theft at the warehouse, so he immediately proceeded to the place in the company of Baffour Ransford and upon arrival met the suspect making selections from sacks of shoes piled up. Prosecution says that complainant called the police and A1 was arrested. Prosecution says that in the course of investigations A1 admitted the offence and mentioned the other Accused Persons as his accomplices and those he supplied the shoes to. Based upon these facts the Accused persons were charged with the offences. A1, A2, A3, A4 and A5 were arraigned before this court. On 5th February, 2024, Prosecution made a prayer to withdraw the charges against A3, A4 and A5; they were accordingly discharged. By a Ruling dated 22nd February, 2024, A2 was acquitted. By that Ruling, the court found that a prima facie case has been made against A1 on the sole offence of an attempt to steal shoes from the warehouse of PW1 on 16th July, 2023 contrary to section 18(2) of the Criminal Offences Act, 1960 (Act 29). A1 was therefore called upon to open his defence to the offence of the attempt to steal as established by the evidence. A1 elected to give an unsworn statement from the dock. He stated that he is a businessman and the offence levelled against him is untrue. According to him, the warehouse in question is a common warehouse for all who trade at Kantamanto and all of them keep their goods in that warehouse, so he went there. He stated that complainant also has his goods in the warehouse, and he came to meet him in the Page 2 of 7 warehouse and accused him of stealing his goods. He stated that he told the complainant that that was not true and besides the complainant knows the sort of person he is. He stated that they import goods from outside. According to him, he gave every explanation he could, but they concluded that the fact that they saw him in the warehouse it meant he was there to steal. He stated that he did not go there to steal and that even the warehouse owner knows him and all importers in Kantamanto know that he has goods in the warehouse hence he is innocent of the charges levelled. PW1 testified that he is an importer of shoes which he keeps at his warehouse at Festus Pokuase. He testified that he has been experiencing shortage of some of the goods at his warehouse, so he complained to his workers but to no avail. He stated that about four months ago, he detected that a thief or thieves had entered the warehouse through a ventilation hole and stolen a quantity of shoes. He testified that he instructed his brother, PW2 to lodge a complaint and they were advised to install CCTV cameras. According to him, on 16th July, 2023, he received an alert from his mobile phone that there was somebody inside the warehouse so he called PW2 and informed him that someone was inside the warehouse so he should inform the police. He testified that he proceeded to the warehouse around 1:10pm and upon reaching there he started to inspect the warehouse. He testified that he detected that all the doors were intact so he sat behind the building and waited till about 2:30am when he saw the Accused passing some shoes through the holes so he alerted him that he was around so he should not try anything stupid. He stated that PW2 and the police arrived at the scene, and he opened the main door and A1 was met sitting beside parked shoes in sacks. He testified that the Accused was arrested. PW2 was Isaac Frimpong. He testified that he sells second hand shoes for his older brother (PW1). He stated that PW1 is an importer and has a warehouse around Pokuase Festus where all sorts of shoes imported are kept for sale. He testified that for the past two years, he has noticed shortages of assorted shoes so he informed PW1 and he instructed him to lodge a complaint at the Pokuase Police Station. He stated Page 3 of 7 that at the charge office he was advised to install CCTV cameras. According to him, on 16th July, 2023 at about 1:00am, PW1 called him that he had an alert on his phone indicating that a thief or thieves were stealing from the warehouse, and he has taken the lead there so he should call the police. He testified that upon getting there, the door was open and the first Accused person was met sitting beside assorted shoes packed around him so the police arrested him. PW3 was the investigator, D/PW/Inspr. Georgina Mensah. She testified that on 25/05/2023, a case of stealing was referred to her for investigation. She testified that the complainant reported that he had detected theft of second hand shoes at his warehouse in Fise so he was advised to install CCTV cameras at the warehouse. She testified that on 27/07/2023, PW1 had an alert on his phone of the Accused person stealing and altered the Police. She stated that the Police proceeded to the warehouse and arrested the Accused person to the station. According to her, her investigation revealed that the Accused started stealing from the warehouse since a year and a half ago and entered the warehouse through a ventilation window. She testified that Accused person stole three sacks a day with each containing fifty pairs of shoes. She stated that the Accused person led police to arrest the dishonest receivers who he sells the shoes to at Kantamanto, Accra and Koforidua. According to her, Accused sold the shoes at a cost of GHȼ30.00 and GHȼ50.00 instead of GHȼ100.00, GHȼ120.00 and GHȼ50.00. She tendered the following Exhibits which were admitted and marked as follows: - Exhibit A: Statement of Isac Frimpong - Exhibit A1: Further Statement of Isac Frimpong - Exhibits B & B1: Investigative & Charge Cautioned Statements of Nana Sei Tutu - Exhibits C & C1: Investigative & Charge Cautioned Statements of Dacoster Appiah - Exhibits D: Investigative Cautioned Statement of Akwasi Poku Page 4 of 7 - Exhibits E, E1 & E2: Investigative, Charge & Further Investigative Cautioned Statements of Evans Yeboah - Exhibit F & F1: Investigative and Charge Cautioned Statements of Kwabena Ofori - Exhibits G & G1: Investigative and Charge Cautioned Statements of Kwesi Aboagye - Exhibits H & H1: Investigative and Charge Cautioned Statements of James Asamoah - Exhibits J & J1: Investigative and Charge Cautioned Statements of Jacob Donkor - Exhibits K & K1: Investigative and Charge Cautioned Statements of Jacob Amo - Exhibit L & L1: Investigative and Charge Cautioned Statements of Kyei Baffour - Exhibit M & M1: Investigative and Charge Cautioned Statements of Yaw Ntim - Exhibit N: Charge Cautioned Statements of unnamed Accused. - Exhibits P & P1: Charge Sheet and Brief Facts - Exhibit Q: Photograph Section 18(2) of the Criminal Offences Act, 1960 (Act 29) provides as follows: “A person who attempts to commit a criminal offence commits a criminal offence, and except as otherwise provided in this Act, is liable to be convicted and punished as if the criminal offence has been completed.” As already indicated, the first Accused person was called upon to open his defence to a charge of an attempt to steal contrary to section 18(2). There is direct evidence before this court that A1 was caught inside the warehouse of PW1 around 1:00am on 16th July, 2023 after PW1 had received a notification on his phone from a CCTV Camera he had installed on the premises of the warehouse. PW1 testified that he saw A1 passing shoes through holes and he alerted A1 that he was present. The evidence is also that when the door to the warehouse was opened, A1 was met inside sitting beside packed Page 5 of 7 shoes in sacks. PW2 also stated same that when the door was opened, A1 was met sitting beside assorted shoes packed around him. Prosecution also tendered Exhibit Q which is a photograph of A1 standing shirtless in a pair of shorts and handcuffed with a police officer standing in front of him. In the case of DOCHIE v. THE STATE [1965] GLR 208 it was held as follows: “Evidence given from the dock was entitled to consideration by the court, even though the weight to be attached to it was necessarily small, and failure to go into the witness-box must not be interpreted as a corroboration of the case for the prosecution.” The evidence of the Accused from the dock is therefore worth considering. The Accused claimed that the warehouse in which he was found was a common warehouse in which traders at Kantamanto store their shoes. He added that even the owner of the warehouse knows him hence on the said date he was not in the warehouse to steal. Yet, when presented with the opportunity to call witnesses, A1 informed the court that he did not have any witnesses. I consider that there is no evidence before this court to suggest otherwise that the said warehouse is owned by PW1. From the evidence it is also apparent that A1 did not have access into the warehouse through the main door hence his inability to exit the warehouse until the police arrived and opened same. If A1 could ordinarily use the said warehouse, how then was it that accessed the said warehouse through a ventilation hole and not the main door? I consider the story of the accused to be so mendacious that no reasonable fair-minded person would place any credence on such an explanation. The defence of the accused is unacceptable and same is not reasonably probable. The court is satisfied on a consideration of the whole evidence that the accused is guilty of attempting to appropriate shoes belonging to PW1 and the said attempt at appropriation was dishonest. See. LUTTERODT v. COMMISSIONER OF POLICE [1963] 2 GLR 429. He is accordingly hereby convicted. Page 6 of 7 H/H ENID MARFUL-SAU CIRCUIT JUDGE AMASAMAN Page 7 of 7