REPUBLIC VRS AJUMAH (B7/35/24) [2024] GHADC 99 (5 March 2024)

IN THE DISTRICT COURT 2, TAMALE HELD ON TUESDAY 5TH MARCH, 2024 BEFORE HIS WORSHIP D. ANNAN ESQ. SUIT NO. B7/35/24 THE REPUBLIC V ALI AJUMAH JUDGMENT 1. In this case, accused is charged with stealing an unregistered motorbike the property of one Dahamani Waleni, contrary to section 124(1) of Act 29. FACTS OF THE CASE 2. The facts of the case as given by the prosecution are that on 26th December, 2023 at about 4:00pm the complainant, Dahamani Waleni, went to Loagri market in the Mamprugu Moagduri District with his unregistered Apsonic Aloba Motorbike valued at GHS9,500.00 to buy things. He parked the said motorbike under a tree close to the market. While buying his things, he saw the accused person escaping with his motorbike. He then raised an alarm and the accused person was apprehended. Accused was handed over to the police at Yagaba and the complainant made an official complaint. The accused was later charged with stealing having established that the said motorbike belonged to the complainant. - 1 - 3. Accused when arraigned before this court pleaded guilty with explanation. In his brief explanation, he stated that he was not stealing the motorbike and that the complainant was his good friend. He often takes the motorbike, with or without the complainant’s consent and that was something usual between them. Upon hearing the explanation, the court entered a plea of 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 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.” - 2 - 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, upon a not guilty 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 tw0 (2) witnesses: Dahamani Walenii (Complainant/PW1) and Eric Akonu (PW2). Prosecution tendered in evidence the following exhibits: a. Exhibit A - Investigation Cautioned Statement of Accused b. Exhibit B - Charge Cautioned Statement of Accused c. Exhibit C – Picture of the said motorbike. The Prosecution’s Case 9. PW1 recounted similar facts as narrated above. He added that accused was not his friend. 10. PW2 also added that he investigated the case. He explained that when accused was arrested he was about to be lynched, when the chef of the Loagri community drew the attention of the police and the accused was rescued. He stated that the distance - 3 - from where the motorbike was parked to where the complainant saw accused with the motorbike clearly showed that accused was stealing the said motorbike. 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 defence stated, “The complainant is not telling the truth in saying that I stole his motorbike. The reason is that complainant used to come to park his motorbike at my place. On that day when he came, I only took the motor to park it at a different location close to a motorking, so that I can go to the market to buy some foodstuffs. When I was at the market, he came to meet me. He was with a friend, I do not know. The complainant took me to where the motor was parked and said I stole the motor. I told the complainant that you usually park the motor with me, but all of a sudden you are saying I have stolen a motorbike. They started beating me and the colleague complainant came with, he rescued me from the mob to a nearby town and called the police. That is all.” 13. Accused did not call any witness. ANALYSIS OF FACTS AND LAW 14. 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 - 4 - the thing allegedly stolen. Therefore, a person could not be guilty of stealing unless 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. 15. In the instant case, prosecution contended that accused has no relations with the complainant. Yet, accused was able to move the motorbike and was sighted by the complainant. During cross-examination of the complainant/PW1, below is what transpired: “Q: I am putting it to you that the day I was arrested, you told the police that you did not know me but today you said you know me? A: … Q: I told the police I do not know you because you said I am your friend. I am putting it to you that you are my friend. A: I am not your friend. I don’t know your house and you don’t know my house.” 16. When accused was under cross-examination, below is what ensued: “Q: In your explanation to you the plea, you mentioned that complainant is your friend? A: Yes. Q: You further pleaded that complainant should forgive you, not so? - 5 - A: Yes.” 17. From the evidence, prosecution was able to prove that accused has no relations with the complainant and that he had no right in taking the said motorbike, yet he took it and parked it elsewhere with the intent of stealing it. 18. Flowing from the case, Brobbey & Ors v The Republic [supra], I hereby conclude that the did not obtain the consent of complainant in moving or taking the motorbike. He simply took what does not belong to him, under the erroneous belief that he was re-parking it. Assuming without admitting that complainant was his friend, he still could not have taken the motorbike without complainant’s consent. He was simply throwing dust into the court’s eye. Hence, I hold that prosecution has been able to prove beyond reasonable doubt that accused appropriated the motorbike which clearly did not belong to him. SENTENCING 19. Having heard accused and the prosecution on mitigation, I note that the accused has been in custody/remand since 4th January, 2024. Thus, a little over 2months. I also note that the said motorbike has been returned to the complainant in good condition. 20. In the circumstance, accused is to pay a fine of 85p.u. and in default shall serve a jail term of 2months. H/W D. ANNAN ESQ. [MAGISTRATE] INSP. SULEMANA MOHAMMED FOR THE REPUBLIC - 6 - 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 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 -