REPUBLIC VRS TSETSE (CC116 / 2022) [2024] GHACC 259 (31 July 2024)

IN THE CIRCUIT COURT HELD AT KPANDO ON THURSDAY 31ST DAY OF JULY 2024, BEFORE HIS HONOUR FRANCIS ASONG OBUAJO ESQ., THE CIRCUIT COURT JUDGE. ================================================== SUIT NO. CC116 / 2022 THE REPUBLIC VRS SAMUEL TSETSE AND 7 ORS ACCUSED PERSONS: A1 PRESENT 7 ORS: ABSENT (AT LARGE) IN THE CIRCUIT COURT HELD AT KPANDO ON THURSDAY 31ST DAY OF JULY 2024, BEFORE HIS HONOUR FRANCIS ASONG OBUAJO ESQ., THE CIRCUIT COURT JUDGE. ================================================== SUIT NO. CC116 / 2022 THE REPUBLIC VRS SAMUEL TSETSE AND 7 ORS Page 1 of 31 ACCUSED PERSONS: A1 PRESENT 7 ORS: ABSENT (AT LARGE) PROSECUTOR: D/INSPT. HENRY ODOI DOKU, PRESENT JUDGMENT The first accused person was brought to court charged with the following offences: 1. Conspiracy to commit crime to wit robbery contrary to sections 23 and 149 of the criminal offences, Act 29 / 60. 2. Robbery Contrary to section 149 of Act 29/60. Accused person pleaded not guilty to each offence in open court. Accused person was charged with the offence to together with seven (7) others who were all at large namely; A2 Maxwell, A3 Moses, A4 Prosper, A4 Francis, A6 Daniel Akpadzra, A7 Seyram Afenya and A8 Karmar. The summary of the facts of this case are that the complainant Dauda Musah age 18 years a cattle drover living at Gbefi Hoeme. On the 16/05/2020 at about 2: 00 pm took the cattle to graze along Kpando Gbefi motor road. Complainant later drove the cattle to about 400 meters away from the main road to graze. Few minutes later A1 and A2 emerged from a nearby bush where A1 held the complaint’s hand and dragged him for about 50 meters away from the cattle, handed him over to A2 who was holding a machete and kept him hostage under a tree and ordered the complainant not to watch where the cattle were grazing. A few minutes time the complainant heard the firing of gun shot in the midst of cattle. Accused persons who had already parked a tricycle at the scene conveyed three of the dead cattle into the tricycle and speed off. The complainant, who was running for his life, ran into Kpando Police Patrol team on the road and narrated his ordeal to them. The patrol Page 2 of 31 team moved swiftly to the scene and found four (4) cattle dead from gunshot and cutlass wounds. The complainant told the police seven (7) cattle that were shot dead by the accused persons are valued GH¢40, 000.00. Later the Police Patrol team in search of the accused persons spotted A1 and A2 walking by the road side who took to their heels on seeing the police but A1 was arrested upon a chase A2 managed to escape. During interrogation A1 told the police he and the accomplices on same day planned to attack and robbed the complainant of his cattle. A1 also told the police that A4, A6, A7, and A8 were wielding single barrel guns that were used in killing the cattle. After investigations, accused persons were charged with the offences. As the accused person pleaded not guilty to the offences charged. The prosecution is under sections 11 (2) and 13 (1) of the Evidence Act (1975) NRCD 323 required to lead credible evidence of the trial to establish the elements of the offences charged beyond reasonable doubt to secure the guilt of the accused person. This provision has been determined by the Supreme Court in the case of GLIGAH AND ATISO VRS THE REPUBLIC [2010] SCGLR 870 That under article: 19 (2) (c) of the 1992 Constitution everyone charged with a criminal offence was presumed innocent until the contrary is proven. That means whenever an accused person is arraigned before any Court in a criminal trial, it is the duty of the prosecution to prove the essential ingredients of the offence charged against the accused beyond reasonable doubt. In proving her case against the accused, the prosecution called two witnesses including the investigator. The G/SGT. Isaac Anane of Kpando Police gave evidence at the trial via his witness statement tendered in evidence as PW1. He stated that he knows A1 as one of the Seven (7) others who robbed and killed seven (7) cattle of the complainant with gunshots. PW1 explained that he was in charge of the Police Highway Patrol team on duty on Kpando Gbefi motor road on the 16/5/2022 from 12 : 00 pm together with the service driver G/Cp1 Eric Tetteh Pardie and G/Cp1 Wisdom Afanegla when the complainant reported to them he had Page 3 of 31 been attacked by unknown gunmen in the bush. He then instructed his colleagues and they extended their patrol to the Gbefi bridge with the complainant, who pointed out A1 and A2 who were standing by the road, few meters after the bridge as part of those who attacked him at gun point and shot and killed his 7 cattle. A1 and A2 Moses upon seeing the police took to their heels and he together with his men chased them and arrested A1 and later handed him over to the Kpando Divisional C.I.D. During cross examination from the accused, PW1 said it was the complainant who pointed out A1 as one of those who attacked him and held him captive while others went to shoot at the cattle. In another question, PW1 said he did not find cutlass on A1 upon his arrest. The investigator D/L/Cp1 Lawrence Blantari gave evidence as PW2 that this case was referred to him for investigation. He said he obtained statements from G/Sgt Isaac Anane and G/Constable Wisdom Afanegla and filed them. He also obtained caution statement from A1 after his arrest on the 16/5/22 by the Divisional Patrol team. PW2 stated further that on the 17/07/2022 accused was interrogated by the Divisional Commander ACP Mr. Wisdom Lavoe and the Divisional Crime Officer ASP/Mr. Godwin Alormenu and PW2 where A1 admitted in a video recording that he asked the complainant whether he had not been warned by Torgbui Kwametse not to send the cattle to the farm for grazing. And that because the complainant was afraid he did not say a word. He held the complainant’s right hand and after some few minutes A2 emerged from the bush with a cutlass, held complainant’s hand and dragged him into the bush. PW2 explained further that, during questioning A1 told the police that A2 after taking custody of the complainant kept him hostage with a cutlass under a tree before the operation. PW2 said he charged the accused upon instruction from the ASP/Mr. Alormenu. PW2 tendered the witness statement of G/Const Afanegla into evidence as Exhibit ‘WA’ as hearsay evidence and the Page 4 of 31 statement of the complainant Dauda Musah as Exhibit ‘DM’ as hearsay evidence after they have been read and explained to accused in Ewe. A1’s caution and charged statements admitted into evidence as Exhibits ‘A’ and ‘A1’ after they had been explained to A1 in Ewe without objections. Photograph of dead cattle at different locations at the scene of crime admitted into evidence as Exhibit B, B1 and B2 in that order. The hard drive (pen drive) containing the video of A1’s interrogation with the Divisional Commander of police admitted into evidence as Exhibit ‘C’ after it was played in open court. Under cross examination from A1, PW2 said accused told him he held complainants hand at the main road side (Kpando – Gbefi road) before other accused persons (Maxwell) emerged from the bush and handed complainant over to Maxwell. In an answer to another question, PW2 said he did not video the complainant Musah Dauda when he spoke in the Divisional Commander’s office on the day as PW2 did for the accused as in Exhibit ‘C’. DEFENCE OF ACCUSED PERSON Accused elected and gave evidence under oath that he is a farmer and also an employee of Volpalm industry and that he had closed from work at 4:00pm on the day and was heading home. On getting to plot two by the road side he met a young herdsman leading cattle to the farm. He then warned the herdsman not to take the cattle to graze at Kwame Tsetse’s farm around the place. When he was going away then Maxwell (A2) called to ask whether accused had closed from work and he said yes. As he was rushing home as he was hungry, at plot two (2) towards Gbefi, accused heard a gun shot behind him in the bush. Not long after that A2 ran to accused that they should walk home together. A2 then asked him whether accused heard a gunshot in the bush and accused said yes. Accused then asked A2 what Page 5 of 31 happened and A2 said they had warned the herdsmen not to bring the cattle to Gbefi land. So accused asked whether they had shot and killed the cattle and A2 said yes. Not long, accused saw a tricycle rode by on a certain road with some people in its bucket, covered with palm branches just at the time accused was near the bridge. A2 then turned and saw the police coming with the complainant in their patrol vehicle. A2 then ran away, that scared accused as he shifted a bit to the bush side of the road. Then the police came to arrest him. When the police asked the complainant whether accused was part of the people, Complainant said no. the police then asked accused of those who killed the cattle, and he mentioned their names as indicated in the facts. He was taken to the police station and appeared before the commander where the complainant said accused was not among those who killed the cattle. Adding that there was a video covering over the entire meeting with the commander where the complainant said accused was not part of those who killed the cattle. Accused said his caution statement (Exh. A) read in court was not what he told the C.I.D. Under cross examination, accused mention A8 as the one who was riding and in charge of the tricycle that carried the killed cattle away. Accused in another question from the prosecution denied holding the complainant hand and handing him over to the other accused persons stating that he never stated same in Exhibit A. same was not part of what he told the C.I.D. Accused closed his case. Exhibit ‘A’ taken on the 17/5/22 accused said he met the complainant with the cattle on the 16/5/22 at about 3:30pm on Gbefi motor road towards the palm plantation and he asked him whether they were not warned by Torgbe Kwametse not to bring cattle to graze there. Accused held complainant’s right hand for a few minutes then A2 emerged from the bush with a cutlass, held complainant’s hand and dragged him into a nearby bush. He later heard four (4) gun shots from where the cattle were grazing. Earlier that day at 1:00pm while at work, A2 called accused with phone Page 6 of 31 number 0552289972 that he and other accused persons will like to meet him at Dorm Kope for an operation at 3: 00pm. A2 again called accused on phone that he and other suspects were already waiting in the bush where A2 emerged from to meet the accused who handed complainant over to A2 to keep him hostage for the operation to go on in the bush. While accused was spying on the road and saw police patrol vehicle parked about 110 meters from where accused was standing. Accused said A4, A6, A7 and A8 were wielding single barrel guns. After the operation A2 came to meet accused by the road side and while on their way home A2 told him the tricycle could only carry one cow and picked one away. They saw police car approaching so they both took to their heels but accused was arrested. In Exhibit ‘A1’, accused relied on Exh ‘A’. Exhibit ‘DM’ the complainant’s Dauda Musah’s statement to the police on this 17/5/22. Endorsed witness statement of G/Constable Wisdom Afanegla filed on 22/9/22 admitted into evidence as Exh. ‘WA’ as hearsay evidence THE LAW AND ANALYSIS COUNT ONE Section 23 (1) of Act 29/60 of the Criminal Offences Act provides: “23 (1) where two or more persons agree to act together with a common purpose for or in committing a criminal offense, whether with or without any previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offense” The present position of the law on conspiracy requires proof of previous agreement in order to secure the conviction of the accused person. It was held in REGINA VRS ZONYRA AND OTHERS (1959) GLR 26 – 34 CA that; it was wrong to ground a Page 7 of 31 charge of conspiracy only upon the fact that two or more persons were engaged together in committing an offense. There must be evidence that they concerted together. It was held in AGYAPONG VRS THE REPUBLIC [2015] 84 GMJ, 142 CA per Korbieh J.A. inter alia that, the new formulation of the law on conspiracy in section 23 (1) of Act 29/60 required the prosecution to prove agreement to act together for unlawful purpose. From the new formulation and position of the decided cases stated above, on the law on conspiracy, the essential elements to be established by the prosecution beyond reasonable double to secure the conviction of the accused are; i. ii. iii. That two or more persons had an agreement (directly or inferred) That the agreement was to engaged in unlawful act together. That the purpose (intent) of acting together was to commit a crime. The evidence of PW1 was that he was in charge of the police patrol team on Kpando- Gbefi Highway patrol on the 16/5/2022 at about 12:00pm when the complainant came to report to them that he was attacked by unknown gun men in the bush who robbed and killed seven cattle. While searching for the unknown suspects, on getting to Gbefi bridge in the company of the complainant, he pointed out A1 and A2 who were standing by the road side as part of those who attacked him, shot and killed the cattle. A1 was arrested after a hot chase but A2 was able to escape. A1 was then brought to the police station and handed over to the investigator. PW2 the investigator in his evidence told the court that A1 admitted that he questioned the complainant whether they were not warned by Togbe Kwametse not to bring the cattle to graze at that place and held the complainant’s right hand till A2 Maxwell emerged from the bush with a cutlass and he handed the complainant over to A2 by hand who dragged him into the bush and kept complainant hostage under a tree before the operation. Page 8 of 31 In Exhibit ‘A’, A1’s caution statement, he admitted holding the complainants right hand till A2 emerged from the bush with a cutlass and held complainant and dragged him into the bush. A1 stated he heard four (4) gun shots from where the cattle were grazing that was about 3: 30 pm. A1 stated further in Exhibit A that earlier that day at about 1:00 pm A2 called him on phone that he together with other accused persons A3, A4, A5, A6, A7 and A8 who is the owner of the tricycle used to convey the cattle away, will be meeting at Dorm Kope at 3: 00pm for the operation. A2 called him later to say he and other accused persons were actually waiting in the bush where A2 came to meet A1 holding the complainants hand and he handed him over to A2 to keep him hostage for the operation to go on in the bush. The above pieces of evidence adduced by the prosecution at the trial could not be discredited through cross examination. In A1’s defense of this offence at the trial admitted meeting the complainant Dauda Musah on that day by the road side with the cattle grazing when A1 was going home after close from work at about 4pm. A1 said he just warned the complainant not to send the cattle to Kwame Tsetse’s farm to graze. It was then A2 called him as he was hurrying home. After passing plot 2 towards Gbefi that he heard gun shot behind him in the bush. It was then A2 ran to him so they could walk home and A2 asked him whether he heard of the gun shots and A1 said yes. A2 then responded to his question that the cattle were shot and killed as they had warned the herdsmen not to bring the cattle to graze there. On getting to the bridge A1 said he turned and saw the police coming with the complainant with them and A2 ran away and he also shifted a bit to the road side but the police arrested him. These defenses sought to show that A1 met with the complainant on the day at close proximity to the crime scene and also had a discussion with A2 who had a good knowledge of what was done to the cattle. A1 did not tell the court he held the complainant’s hands and handed him over to A2 in Page 9 of 31 his defense. It is my candid opinion at this stage that the defense of the accused herein is a rehearsed one trying to cover up vital information from the trial. I therefore reject his defense at the trial that he had no previous meeting and agreement with the other accused persons on that day except A2 who was just by the road side while A1 was going home from work on that day. Since A2 was able to escape arrest in this case, and it was only A1 that was arrested, the question then is, how did A1 get to know the involvement and the roles played by A3, A4, A5, A6, and A7 as he saw A8 conveyed a cow in his tricycle and passed by the other road? The prosecution’s evidence at the trial appears credible especially the statement in Exhibit ‘A’ accused caution statement which could not be discredited, same as Exhibit ‘C’ the video where accused appeared before the Divisional commander and the Crime Officer. In Exhibit A, A1 stated how A2 called him at about 1: 00pm on the telephone No 055228992 to plan how they were going to engage in this act together later in the day. These relevant and material evidence at the trial could not be controverted in any form by A1. It is my finding of fact at this stage that A2 and the rest of the accused persons at large had planned and agreed to engage in the killing of the cattle on the day for complainant’s non adherence to the warning of the elders of the town not to bring cattle to graze on their land. So A4, A6, A7, and A8 had single barrel gun each as the laid in wait in the nearby bush for A1 to close from work to kick start the attack by A1 taking physical hold of the complainant by the road side on his way home from work at that particular spot as A2 was in the bush monitoring when A1 will arrive there to commence their operation. Page 10 of 31 A1 then put the complainant into a state of fear and seized him by his hand, and handed him over to A2 who emerged from the bush where he had been waiting with a cutlass as planned and dragged the complainant into the bush and kept him hostage while others engaged in killing the cattle with guns. Carried some of the cattle away in a tricycle and left behind three (3) dead cattle at the scene of crime per Exhibit B series as other cattle got scattered. A1 did not carry any implement with him at the time he seized complainant. It is my conclusion therefore that persecution has proven all the ingredients of this offense against the accused person here beyond reasonable doubts to secure his conviction. Accused person is hereby found guilty and convicted on count one. COUNT TWO Section 149 of Act 29/60 as amended by Act 646 provides: “Whoever commits robbery is guilty of an offence and shall be liable upon conviction on trial summarily or on indictment, to imprisonment for a term of not less than ten (10) years, and where the offence is committed by the use of an offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen (15) years” Section 150 of Act 29/60 defines robbery as: “150 A person who steals a thing commits robbery a. If, in and for the purpose of stealing the thing, that person uses force or causes harm to any other person, or Page 11 of 31 b. If, that person uses a threat or criminal assault or harm to any other person, with intent to prevent or overcome the resistance of the other person to the stealing of the thing.” In the case of BEHOME VRS THE REPUBLIC [1979] GLR 112, it was held that: “One is only guilty of robbery if in the stealing of a thing he used force or caused any harm or used any threat of criminal assault with intent thereby to prevent or overcome the resistance of his victims to the stealing of a thing,, In KWAKU FRIMPONG a.k.a IBOMAN VRS THE REPUBLIC [2012] 1 SCGLR 297 at 312 – 313. The ingredients of robbery were identified as; i. ii. iii. iv. That the appellant stole something from the victim of the robbery of which he is not the owner That in the stealing the thing, the appellant used force, harm or threat of any criminal assault on the victim That the intention of doing so was to prevent or overcome the resistance The fear of violence must either be of personal violence to the person robbed or to any member of his household or family in the restrictive sense. v. The thing stolen must be in the presence of the person threatened. To effectively discharge that obligation by the prosecution, it must first lead evidence to establish all the essential ingredients of the offense of stealing which is the dishonest appropriation of a thing of which the accused is not the owner. The evidence of PW1 was that the complainant pointed out A1 and A2 to them on the day of the incident that they were among the eight (8) persons who attacked and killed the cattle he led to graze of the crime scene. And on seeing the police patrol vehicle, they bolted but A1 was arrested and admitted that he held the complainant’s hands and handed him over to A2 who had a cutlass at the time. Then Page 12 of 31 Exhibit ‘A’, accused (A1’s) caution statement taken on the 17/5/22, he stated how A2 called him at 3: 00pm that he (A2) and other suspects were already waiting in the bush where A2 came to meet him. It was there A1 held the complainants hand and handed him over to A2 who kept complainant hostage for the operation to go on in the bush. While A1 was spying on the road and saw police Patrol vehicle parked. A1 further described the conditions and how his other accomplices were prepared for the operation by stating that A4, A6, A7 and A8 were wielding single barrel guns. That after the operation A2 came to meet him at the road side and while walking home A2 told him the tricycle could only carry one cow. All of those pieces of evidence of the prosecution at the trial did not suffer any credibility from the accused through cross examination. Per the evidence of the prosecution, it is my finding that A1 was one of those who attacked the complainant herd’s boy in the bush on the said day at about 3: 45pm where the cattle were grazing. A1 and others planned to embark on this operation; thus using force to attack and kill the cattle on the day. With well-defined roles among them. A1 was to use the threat of criminal assault on the complainant so he will not run away that explained why he came to the crime scene (bush) without my implement and held unsuspecting complainant by the hand and questioned the complainant if they not warned to bring the cattle to graze at that place. Then quickly A2 set in his role as he came to where A1 held the complainant with the cutlass after Al handed him over to A2 who took the complainant hostage with instruction not to look at the direction of the cattle where other accomplices were ready to take up their roles by shooting and killing these number of the cattle. The defense of A1 at the trail was that while going home at about 4: 00pm from work on that day, he met the complainant leading the cattle to graze at a certain man’s (Kwame Tsetse) farm. as he continued his journey home from there that A2 called him to ask whether he had closed from work and he said yes and both started Page 13 of 31 walking towards home together before he heard gun shot from the bush behind him. Then A2 ran to meet him that they should walk home together. A1 by his defense denied any involvement in this killing of the complainant’s cattle on the day. A1 actually denied entering the bush at all as he was just walking home by the main Gbefi-Kpando road before he met the complainant with the cattle. The defense of the accused at the hearing appears to be a complete departure from Exhibit A. which defense appears to be a rehearsed one to exonerate himself from culpability on this offense which is not strange at all. It is therefore my finding that the defense of the accused at the trial is inconsistent with what he stated in Exhibit A when he was freshly arrested over the offense. Accused’s evidence at the trial on the 7/2/2024 ran contrary and contradictory to his statement given to the police in Exhibit ‘A’ taken a day after his arrest on the 17/5/2022. It was held in BUOR VRS THE STATE (1965) GLR 1 that, where a witness has previously said or written something contrary to what he testifies to in Court, his evidence should not be given much weight. Therefore to the extent that accused’s evidence is contrary to what is contained in Exh. A1. I will attach no weight to his defense at the trial, as that defense is considered as an afterthought. Accused also at his defense stated that the content of Exhibit A was not exactly what he told the police investigator. Accused however admitted in his defense that he gave a statement to the investigator voluntarily. And endorsed same subsequently. Accused however in his defense appear to object to the content of Exhibit ‘A’ that was tendered in evidence. At pages 135 to 136 of Learned author Brobbey (JSC) in his book titled ‘Essentials of the Ghana Law of Evidence” (2014) states “… if his complaint is that he objected to Page 14 of 31 portions that were not his but was told to sign and he just signed it to appease the police or the investigator, what accused will be saying is that he gave the statement by himself voluntarily. The voluntariness of a statement will not arise to be investigated. It is the content of the statement that he was not happy with. In that event, the statement should be admitted in evidence but accused will be given the opportunity to cross examine…” Accused admitted making the statement voluntarily to PW2 and thumb printed same in the presence of an independent witness, therefore Exhibit A has been properly taken and could not have been rejected at the hearing. From the foregoing, as in Exhibit A, it is my finding that accused person. Has more or less admitted if not confessed to being part of the attack on the complainant on the day over the cattle. Accused described how A2 kept calling and told him how they were waiting at the nearby bush for A1 to come and commence their operation (attack on the complainant and cattle) on the day in the bush. A1 actively participated in the act by going into the bush to apprehend the complainant with a threat of criminal assault which A2 came to continue with as he took the complainant hostage and put the fear of violence in him with intent to prevent the complainant of any form of resistance, that enable other accomplices wielding the single barrel guns to then open fire on the cattle. One notable fact about this case is that A1 gave detail accounts on how the attack was done names of those involve with the instruments or implements the accomplices were carrying for the said attack on the complainant over the cattle. The question then is, if A1 was not part of the other accomplices mentioned in Exhibit A, how come he could mention their names and the role they played in the attack of the complainant. Per PW1 the complainant reported to him while on Patrol that he was attacked by unknown gun men in the bush. And he later identified A1 and A2 near the Gbefi bridge area to the police as part of those who attacked him. This evidence was not Page 15 of 31 even discredited at the hearing. Those clearly is a strong indication that the cattle were not for A1. It is my final finding that accused person took part in the attack on the complainant and robbed him of the seven (7) cattle that were shot and killed with guns on the day. The prosecution has therefore proven the offense of robbery against A1 beyond reasonable doubt to secure his conviction. Accused is hereby found guilty and accordingly convicted. It must be noted that accused carried no missiles or implement on him during the attack. It must be stated here that I did not attach any weight or consideration to Exh. ‘WA’ witness statement of G/Const Afanegla and Exh ‘DM’ the complainant’s statement made to the police as by so doing it will not occasion injustice to the accused person. BY COURT: Do you have anything to say before sentence is passed. Accused prays for mercy of the court. BY COURT: Accused’s plea on instigation taken into consideration in passing the sentence. Accused is sentenced to prison for ten (10) years on each count which shall run concurrently. FRANCIS A. OBUAJO CIRCUIT COURT JUGDE 31 / 7 / 2024 Page 16 of 31 PROSECUTOR: D/INSPT. HENRY ODOI DOKU, PRESENT JUDGMENT The first accused person was brought to court charged with the following offences: 3. Conspiracy to commit crime to wit robbery contrary to sections 23 and 149 of the criminal offences, Act 29 / 60. 4. Robbery Contrary to section 149 of Act 29/60. Accused person pleaded not guilty to each offence in open court. Accused person was charged with the offence to together with seven (7) others who were all at large namely; A2 Maxwell, A3 Moses, A4 Prosper, A4 Francis, A6 Daniel Akpadzra, A7 Seyram Afenya and A8 Karmar. The summary of the facts of this case are that the complainant Dauda Musah age 18 years a cattle drover living at Gbefi Hoeme. On the 16/05/2020 at about 2: 00 pm took the cattle to graze along Kpando Gbefi motor road. Complainant later drove the cattle to about 400 meters away from the main road to graze. Few minutes later A1 and A2 emerged from a nearby bush where A1 held the complaint’s hand and dragged him for about 50 meters away from the cattle, handed him over to A2 who was holding a machete and kept him hostage under a tree and ordered the complainant not to watch where the cattle were grazing. A few minutes time the complainant heard the firing of gun shot in the midst of cattle. Accused persons who had already parked a tricycle at the scene conveyed three of the dead cattle into the tricycle and speed off. The complainant, who was running for his life, ran into Kpando Police Patrol team on the road and narrated his ordeal to them. The patrol team moved swiftly to the scene and found four (4) cattle dead from gunshot and cutlass wounds. The complainant told the police seven (7) cattle that were shot dead Page 17 of 31 by the accused persons are valued GH¢40, 000.00. Later the Police Patrol team in search of the accused persons spotted A1 and A2 walking by the road side who took to their heels on seeing the police but A1 was arrested upon a chase A2 managed to escape. During interrogation A1 told the police he and the accomplices on same day planned to attack and robbed the complainant of his cattle. A1 also told the police that A4, A6, A7, and A8 were wielding single barrel guns that were used in killing the cattle. After investigations, accused persons were charged with the offences. As the accused person pleaded not guilty to the offences charged. The prosecution is under sections 11 (2) and 13 (1) of the Evidence Act (1975) NRCD 323 required to lead credible evidence of the trial to establish the elements of the offences charged beyond reasonable doubt to secure the guilt of the accused person. This provision has been determined by the Supreme Court in the case of GLIGAH AND ATISO VRS THE REPUBLIC [2010] SCGLR 870 That under article: 19 (2) (c) of the 1992 Constitution everyone charged with a criminal offence was presumed innocent until the contrary is proven. That means whenever an accused person is arraigned before any Court in a criminal trial, it is the duty of the prosecution to prove the essential ingredients of the offence charged against the accused beyond reasonable doubt. In proving her case against the accused, the prosecution called two witnesses including the investigator. The G/SGT. Isaac Anane of Kpando Police gave evidence at the trial via his witness statement tendered in evidence as PW1. He stated that he knows A1 as one of the Seven (7) others who robbed and killed seven (7) cattle of the complainant with gunshots. PW1 explained that he was in charge of the Police Highway Patrol team on duty on Kpando Gbefi motor road on the 16/5/2022 from 12 : 00 pm together with the service driver G/Cp1 Eric Tetteh Pardie and G/Cp1 Wisdom Afanegla when the complainant reported to them he had been attacked by unknown gunmen in the bush. He then instructed his colleagues and they extended their patrol to the Gbefi bridge with the complainant, who Page 18 of 31 pointed out A1 and A2 who were standing by the road, few meters after the bridge as part of those who attacked him at gun point and shot and killed his 7 cattle. A1 and A2 Moses upon seeing the police took to their heels and he together with his men chased them and arrested A1 and later handed him over to the Kpando Divisional C.I.D. During cross examination from the accused, PW1 said it was the complainant who pointed out A1 as one of those who attacked him and held him captive while others went to shoot at the cattle. In another question, PW1 said he did not find cutlass on A1 upon his arrest. The investigator D/L/Cp1 Lawrence Blantari gave evidence as PW2 that this case was referred to him for investigation. He said he obtained statements from G/Sgt Isaac Anane and G/Constable Wisdom Afanegla and filed them. He also obtained caution statement from A1 after his arrest on the 16/5/22 by the Divisional Patrol team. PW2 stated further that on the 17/07/2022 accused was interrogated by the Divisional Commander ACP Mr. Wisdom Lavoe and the Divisional Crime Officer ASP/Mr. Godwin Alormenu and PW2 where A1 admitted in a video recording that he asked the complainant whether he had not been warned by Torgbui Kwametse not to send the cattle to the farm for grazing. And that because the complainant was afraid he did not say a word. He held the complainant’s right hand and after some few minutes A2 emerged from the bush with a cutlass, held complainant’s hand and dragged him into the bush. PW2 explained further that, during questioning A1 told the police that A2 after taking custody of the complainant kept him hostage with a cutlass under a tree before the operation. PW2 said he charged the accused upon instruction from the ASP/Mr. Alormenu. PW2 tendered the witness statement of G/Const Afanegla into evidence as Exhibit ‘WA’ as hearsay evidence and the statement of the complainant Dauda Musah as Exhibit ‘DM’ as hearsay evidence after they have been read and explained to accused in Ewe. Page 19 of 31 A1’s caution and charged statements admitted into evidence as Exhibits ‘A’ and ‘A1’ after they had been explained to A1 in Ewe without objections. Photograph of dead cattle at different locations at the scene of crime admitted into evidence as Exhibit B, B1 and B2 in that order. The hard drive (pen drive) containing the video of A1’s interrogation with the Divisional Commander of police admitted into evidence as Exhibit ‘C’ after it was played in open court. Under cross examination from A1, PW2 said accused told him he held complainants hand at the main road side (Kpando – Gbefi road) before other accused persons (Maxwell) emerged from the bush and handed complainant over to Maxwell. In an answer to another question, PW2 said he did not video the complainant Musah Dauda when he spoke in the Divisional Commander’s office on the day as PW2 did for the accused as in Exhibit ‘C’. DEFENCE OF ACCUSED PERSON Accused elected and gave evidence under oath that he is a farmer and also an employee of Volpalm industry and that he had closed from work at 4:00pm on the day and was heading home. On getting to plot two by the road side he met a young herdsman leading cattle to the farm. He then warned the herdsman not to take the cattle to graze at Kwame Tsetse’s farm around the place. When he was going away then Maxwell (A2) called to ask whether accused had closed from work and he said yes. As he was rushing home as he was hungry, at plot two (2) towards Gbefi, accused heard a gun shot behind him in the bush. Not long after that A2 ran to accused that they should walk home together. A2 then asked him whether accused heard a gunshot in the bush and accused said yes. Accused then asked A2 what happened and A2 said they had warned the herdsmen not to bring the cattle to Gbefi land. So accused asked whether they had shot and killed the cattle and A2 said yes. Page 20 of 31 Not long, accused saw a tricycle rode by on a certain road with some people in its bucket, covered with palm branches just at the time accused was near the bridge. A2 then turned and saw the police coming with the complainant in their patrol vehicle. A2 then ran away, that scared accused as he shifted a bit to the bush side of the road. Then the police came to arrest him. When the police asked the complainant whether accused was part of the people, Complainant said no. the police then asked accused of those who killed the cattle, and he mentioned their names as indicated in the facts. He was taken to the police station and appeared before the commander where the complainant said accused was not among those who killed the cattle. Adding that there was a video covering over the entire meeting with the commander where the complainant said accused was not part of those who killed the cattle. Accused said his caution statement (Exh. A) read in court was not what he told the C.I.D. Under cross examination, accused mention A8 as the one who was riding and in charge of the tricycle that carried the killed cattle away. Accused in another question from the prosecution denied holding the complainant hand and handing him over to the other accused persons stating that he never stated same in Exhibit A. same was not part of what he told the C.I.D. Accused closed his case. Exhibit ‘A’ taken on the 17/5/22 accused said he met the complainant with the cattle on the 16/5/22 at about 3:30pm on Gbefi motor road towards the palm plantation and he asked him whether they were not warned by Torgbe Kwametse not to bring cattle to graze there. Accused held complainant’s right hand for a few minutes then A2 emerged from the bush with a cutlass, held complainant’s hand and dragged him into a nearby bush. He later heard four (4) gun shots from where the cattle were grazing. Earlier that day at 1:00pm while at work, A2 called accused with phone number 0552289972 that he and other accused persons will like to meet him at Dorm Kope for an operation at 3: 00pm. A2 again called accused on phone that he and Page 21 of 31 other suspects were already waiting in the bush where A2 emerged from to meet the accused who handed complainant over to A2 to keep him hostage for the operation to go on in the bush. While accused was spying on the road and saw police patrol vehicle parked about 110 meters from where accused was standing. Accused said A4, A6, A7 and A8 were wielding single barrel guns. After the operation A2 came to meet accused by the road side and while on their way home A2 told him the tricycle could only carry one cow and picked one away. They saw police car approaching so they both took to their heels but accused was arrested. In Exhibit ‘A1’, accused relied on Exh ‘A’. Exhibit ‘DM’ the complainant’s Dauda Musah’s statement to the police on this 17/5/22. Endorsed witness statement of G/Constable Wisdom Afanegla filed on 22/9/22 admitted into evidence as Exh. ‘WA’ as hearsay evidence THE LAW AND ANALYSIS COUNT ONE Section 23 (1) of Act 29/60 of the Criminal Offences Act provides: “23 (1) where two or more persons agree to act together with a common purpose for or in committing a criminal offense, whether with or without any previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offense” The present position of the law on conspiracy requires proof of previous agreement in order to secure the conviction of the accused person. It was held in REGINA VRS ZONYRA AND OTHERS (1959) GLR 26 – 34 CA that; it was wrong to ground a charge of conspiracy only upon the fact that two or more persons were engaged together in committing an offense. There must be evidence that they concerted Page 22 of 31 together. It was held in AGYAPONG VRS THE REPUBLIC [2015] 84 GMJ, 142 CA per Korbieh J.A. inter alia that, the new formulation of the law on conspiracy in section 23 (1) of Act 29/60 required the prosecution to prove agreement to act together for unlawful purpose. From the new formulation and position of the decided cases stated above, on the law on conspiracy, the essential elements to be established by the prosecution beyond reasonable double to secure the conviction of the accused are; iv. v. vi. That two or more persons had an agreement (directly or inferred) That the agreement was to engaged in unlawful act together. That the purpose (intent) of acting together was to commit a crime. The evidence of PW1 was that he was in charge of the police patrol team on Kpando- Gbefi Highway patrol on the 16/5/2022 at about 12:00pm when the complainant came to report to them that he was attacked by unknown gun men in the bush who robbed and killed seven cattle. While searching for the unknown suspects, on getting to Gbefi bridge in the company of the complainant, he pointed out A1 and A2 who were standing by the road side as part of those who attacked him, shot and killed the cattle. A1 was arrested after a hot chase but A2 was able to escape. A1 was then brought to the police station and handed over to the investigator. PW2 the investigator in his evidence told the court that A1 admitted that he questioned the complainant whether they were not warned by Togbe Kwametse not to bring the cattle to graze at that place and held the complainant’s right hand till A2 Maxwell emerged from the bush with a cutlass and he handed the complainant over to A2 by hand who dragged him into the bush and kept complainant hostage under a tree before the operation. Page 23 of 31 In Exhibit ‘A’, A1’s caution statement, he admitted holding the complainants right hand till A2 emerged from the bush with a cutlass and held complainant and dragged him into the bush. A1 stated he heard four (4) gun shots from where the cattle were grazing that was about 3: 30 pm. A1 stated further in Exhibit A that earlier that day at about 1:00 pm A2 called him on phone that he together with other accused persons A3, A4, A5, A6, A7 and A8 who is the owner of the tricycle used to convey the cattle away, will be meeting at Dorm Kope at 3: 00pm for the operation. A2 called him later to say he and other accused persons were actually waiting in the bush where A2 came to meet A1 holding the complainants hand and he handed him over to A2 to keep him hostage for the operation to go on in the bush. The above pieces of evidence adduced by the prosecution at the trial could not be discredited through cross examination. In A1’s defense of this offence at the trial admitted meeting the complainant Dauda Musah on that day by the road side with the cattle grazing when A1 was going home after close from work at about 4pm. A1 said he just warned the complainant not to send the cattle to Kwame Tsetse’s farm to graze. It was then A2 called him as he was hurrying home. After passing plot 2 towards Gbefi that he heard gun shot behind him in the bush. It was then A2 ran to him so they could walk home and A2 asked him whether he heard of the gun shots and A1 said yes. A2 then responded to his question that the cattle were shot and killed as they had warned the herdsmen not to bring the cattle to graze there. On getting to the bridge A1 said he turned and saw the police coming with the complainant with them and A2 ran away and he also shifted a bit to the road side but the police arrested him. These defenses sought to show that A1 met with the complainant on the day at close proximity to the crime scene and also had a discussion with A2 who had a good knowledge of what was done to the cattle. A1 did not tell the court he held the complainant’s hands and handed him over to A2 in his defense. It is my candid opinion at this stage that the defense of the accused Page 24 of 31 herein is a rehearsed one trying to cover up vital information from the trial. I therefore reject his defense at the trial that he had no previous meeting and agreement with the other accused persons on that day except A2 who was just by the road side while A1 was going home from work on that day. Since A2 was able to escape arrest in this case, and it was only A1 that was arrested, the question then is, how did A1 get to know the involvement and the roles played by A3, A4, A5, A6, and A7 as he saw A8 conveyed a cow in his tricycle and passed by the other road? The prosecution’s evidence at the trial appears credible especially the statement in Exhibit ‘A’ accused caution statement which could not be discredited, same as Exhibit ‘C’ the video where accused appeared before the Divisional commander and the Crime Officer. In Exhibit A, A1 stated how A2 called him at about 1: 00pm on the telephone No 055228992 to plan how they were going to engage in this act together later in the day. These relevant and material evidence at the trial could not be controverted in any form by A1. It is my finding of fact at this stage that A2 and the rest of the accused persons at large had planned and agreed to engage in the killing of the cattle on the day for complainant’s non adherence to the warning of the elders of the town not to bring cattle to graze on their land. So A4, A6, A7, and A8 had single barrel gun each as the laid in wait in the nearby bush for A1 to close from work to kick start the attack by A1 taking physical hold of the complainant by the road side on his way home from work at that particular spot as A2 was in the bush monitoring when A1 will arrive there to commence their operation. A1 then put the complainant into a state of fear and seized him by his hand, and handed him over to A2 who emerged from the bush where he had been waiting with Page 25 of 31 a cutlass as planned and dragged the complainant into the bush and kept him hostage while others engaged in killing the cattle with guns. Carried some of the cattle away in a tricycle and left behind three (3) dead cattle at the scene of crime per Exhibit B series as other cattle got scattered. A1 did not carry any implement with him at the time he seized complainant. It is my conclusion therefore that persecution has proven all the ingredients of this offense against the accused person here beyond reasonable doubts to secure his conviction. Accused person is hereby found guilty and convicted on count one. COUNT TWO Section 149 of Act 29/60 as amended by Act 646 provides: “Whoever commits robbery is guilty of an offence and shall be liable upon conviction on trial summarily or on indictment, to imprisonment for a term of not less than ten (10) years, and where the offence is committed by the use of an offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen (15) years” Section 150 of Act 29/60 defines robbery as: “150 A person who steals a thing commits robbery c. If, in and for the purpose of stealing the thing, that person uses force or causes harm to any other person, or d. If, that person uses a threat or criminal assault or harm to any other person, with intent to prevent or overcome the resistance of the other person to the stealing of the thing.” Page 26 of 31 In the case of BEHOME VRS THE REPUBLIC [1979] GLR 112, it was held that: “One is only guilty of robbery if in the stealing of a thing he used force or caused any harm or used any threat of criminal assault with intent thereby to prevent or overcome the resistance of his victims to the stealing of a thing,, In KWAKU FRIMPONG a.k.a IBOMAN VRS THE REPUBLIC [2012] 1 SCGLR 297 at 312 – 313. The ingredients of robbery were identified as; vi. That the appellant stole something from the victim of the robbery of which he is not the owner vii. That in the stealing the thing, the appellant used force, harm or threat of any criminal assault on the victim viii. That the intention of doing so was to prevent or overcome the resistance ix. The fear of violence must either be of personal violence to the person robbed or to any member of his household or family in the restrictive sense. x. The thing stolen must be in the presence of the person threatened. To effectively discharge that obligation by the prosecution, it must first lead evidence to establish all the essential ingredients of the offense of stealing which is the dishonest appropriation of a thing of which the accused is not the owner. The evidence of PW1 was that the complainant pointed out A1 and A2 to them on the day of the incident that they were among the eight (8) persons who attacked and killed the cattle he led to graze of the crime scene. And on seeing the police patrol vehicle, they bolted but A1 was arrested and admitted that he held the complainant’s hands and handed him over to A2 who had a cutlass at the time. Then Exhibit ‘A’, accused (A1’s) caution statement taken on the 17/5/22, he stated how A2 called him at 3: 00pm that he (A2) and other suspects were already waiting in the bush where A2 came to meet him. It was there A1 held the complainants hand and Page 27 of 31 handed him over to A2 who kept complainant hostage for the operation to go on in the bush. While A1 was spying on the road and saw police Patrol vehicle parked. A1 further described the conditions and how his other accomplices were prepared for the operation by stating that A4, A6, A7 and A8 were wielding single barrel guns. That after the operation A2 came to meet him at the road side and while walking home A2 told him the tricycle could only carry one cow. All of those pieces of evidence of the prosecution at the trial did not suffer any credibility from the accused through cross examination. Per the evidence of the prosecution, it is my finding that A1 was one of those who attacked the complainant herd’s boy in the bush on the said day at about 3: 45pm where the cattle were grazing. A1 and others planned to embark on this operation; thus using force to attack and kill the cattle on the day. With well-defined roles among them. A1 was to use the threat of criminal assault on the complainant so he will not run away that explained why he came to the crime scene (bush) without my implement and held unsuspecting complainant by the hand and questioned the complainant if they not warned to bring the cattle to graze at that place. Then quickly A2 set in his role as he came to where A1 held the complainant with the cutlass after Al handed him over to A2 who took the complainant hostage with instruction not to look at the direction of the cattle where other accomplices were ready to take up their roles by shooting and killing these number of the cattle. The defense of A1 at the trail was that while going home at about 4: 00pm from work on that day, he met the complainant leading the cattle to graze at a certain man’s (Kwame Tsetse) farm. as he continued his journey home from there that A2 called him to ask whether he had closed from work and he said yes and both started walking towards home together before he heard gun shot from the bush behind him. Then A2 ran to meet him that they should walk home together. A1 by his defense denied any involvement in this killing of the complainant’s cattle on the day. A1 Page 28 of 31 actually denied entering the bush at all as he was just walking home by the main Gbefi-Kpando road before he met the complainant with the cattle. The defense of the accused at the hearing appears to be a complete departure from Exhibit A. which defense appears to be a rehearsed one to exonerate himself from culpability on this offense which is not strange at all. It is therefore my finding that the defense of the accused at the trial is inconsistent with what he stated in Exhibit A when he was freshly arrested over the offense. Accused’s evidence at the trial on the 7/2/2024 ran contrary and contradictory to his statement given to the police in Exhibit ‘A’ taken a day after his arrest on the 17/5/2022. It was held in BUOR VRS THE STATE (1965) GLR 1 that, where a witness has previously said or written something contrary to what he testifies to in Court, his evidence should not be given much weight. Therefore to the extent that accused’s evidence is contrary to what is contained in Exh. A1. I will attach no weight to his defense at the trial, as that defense is considered as an afterthought. Accused also at his defense stated that the content of Exhibit A was not exactly what he told the police investigator. Accused however admitted in his defense that he gave a statement to the investigator voluntarily. And endorsed same subsequently. Accused however in his defense appear to object to the content of Exhibit ‘A’ that was tendered in evidence. At pages 135 to 136 of Learned author Brobbey (JSC) in his book titled ‘Essentials of the Ghana Law of Evidence” (2014) states “… if his complaint is that he objected to portions that were not his but was told to sign and he just signed it to appease the police or the investigator, what accused will be saying is that he gave the statement by himself voluntarily. The voluntariness of a statement will not arise to be investigated. It is the Page 29 of 31 content of the statement that he was not happy with. In that event, the statement should be admitted in evidence but accused will be given the opportunity to cross examine…” Accused admitted making the statement voluntarily to PW2 and thumb printed same in the presence of an independent witness, therefore Exhibit A has been properly taken and could not have been rejected at the hearing. From the foregoing, as in Exhibit A, it is my finding that accused person. Has more or less admitted if not confessed to being part of the attack on the complainant on the day over the cattle. Accused described how A2 kept calling and told him how they were waiting at the nearby bush for A1 to come and commence their operation (attack on the complainant and cattle) on the day in the bush. A1 actively participated in the act by going into the bush to apprehend the complainant with a threat of criminal assault which A2 came to continue with as he took the complainant hostage and put the fear of violence in him with intent to prevent the complainant of any form of resistance, that enable other accomplices wielding the single barrel guns to then open fire on the cattle. One notable fact about this case is that A1 gave detail accounts on how the attack was done names of those involve with the instruments or implements the accomplices were carrying for the said attack on the complainant over the cattle. The question then is, if A1 was not part of the other accomplices mentioned in Exhibit A, how come he could mention their names and the role they played in the attack of the complainant. Per PW1 the complainant reported to him while on Patrol that he was attacked by unknown gun men in the bush. And he later identified A1 and A2 near the Gbefi bridge area to the police as part of those who attacked him. This evidence was not even discredited at the hearing. Those clearly is a strong indication that the cattle were not for A1. Page 30 of 31 It is my final finding that accused person took part in the attack on the complainant and robbed him of the seven (7) cattle that were shot and killed with guns on the day. The prosecution has therefore proven the offense of robbery against A1 beyond reasonable doubt to secure his conviction. Accused is hereby found guilty and accordingly convicted. It must be noted that accused carried no missiles or implement on him during the attack. It must be stated here that I did not attach any weight or consideration to Exh. ‘WA’ witness statement of G/Const Afanegla and Exh ‘DM’ the complainant’s statement made to the police as by so doing it will not occasion injustice to the accused person. BY COURT: Do you have anything to say before sentence is passed. Accused prays for mercy of the court. BY COURT: Accused’s plea on instigation taken into consideration in passing the sentence. Accused is sentenced to prison for ten (10) years on each count which shall run concurrently. FRANCIS A. OBUAJO CIRCUIT COURT JUGDE 31 / 7 / 2024 Page 31 of 31