REPUBLIC VRS OSABUTEY (CC/31/24) [2024] GHADC 304 (25 September 2024)

JUDGMENT DELIVERED IN THE DISTRICT COURT, ADA ON WEDNESDAY, THE 25TH OF SEPTEMBER, 2024 BEFORE HER WORSHIP PAULINA KWAKYEWA ADWOA. SUIT NO: CC/31/24 THE REPUBLIC VS. PHILEMON OSABUTEY ......................... ACCUSED Accused Person……………………………………………………………………………………Present Chief Inspector Godfred Appiah, for the prosecution……………………………Present JUDGMENT The Accused person herein was arraigned before this court, charged with the offences of Unlawful Entry and stealing, contrary to sections 152 and 124(1) of the criminal offences Act, 1960, (Act 29). The accused person pleaded guilty with explanation to the first count and guilty to the second count. However, his explanation to the court to his plea of guilty with explanation with respect to count one revealed to the court that he wanted to put up a defence and so the court entered a plea of not guilty on his behalf. The case was later set down for trial after Case Management Conference (CMC). The brief facts of the case as stated by the prosecution were as follows: The complainant, Seth Aggrey, aged 39 is a security man of the Ghana Highway Authority, Ada Foah whilst the accused, Philemon Osabutey aged 20 is unemployed. Both reside at Ada Foah. For some time now there has been series of cable theft cases reported at the Ada Foah Police station which the police and the affected persons have been on the lookout for the culprits. On 17th day of March, 2024, at about 12am, whilst the complainant was patrolling at the aforementioned yard, spotted the accused holding quantities of 2mm, 10mm and 5mm electrical cables all concealed in a big shirt, coming out of one of the offices of the public Works Department. The accused, upon seeing the complainant, abandoned the cabled and escaped. The complainant, assisted by his colleagues, arrested the accused and handed him over to the police, together with the exhibits and a complaint formally lodged. The accused was rearrested and detained. The Accused was later cautioned and he admitted the offence in his Investigation Caution Statement. After investigations. The accused was charged with the offences as stated on the charge sheet and arraigned before court. At the trial, the Prosecution called three witnesses in support of its case. The First Prosecution Witness (PW1) was Seth Aggrey, the complainant in this case. He indicated in his evidence in chief to the court that, whilst on duty on the day of the incident, he decided to take some patrol around the premises. In the process, he heard and saw something drop like a glass. He then put his head on a wall close by to know the cause. It was his case that he heard a further noise which indicated to him that there was someone in the room. He went to check the door and it was locked and so he decided to position himself to see what would happen. Not long after that, the PW1 said he his hand saw the accused person herein coming out of the room, through one of the windows, holding a knife, scissors, electric tester and some other items he had wrapped in a shirt. The PW1 further informed the court that he asked the accused person what was in the shirt and he told him they were cables. He then retrieved the knife, scissors, tester and the shirt from him. However, he said when he tried putting the items on the ground, the accused person run away but he was able to arrest him with the help of his colleagues, after he had called for help. They later phoned the police and the investigator went for him after which he and the accused person were taken to the crime scene. The Police Investigator of this case was the Third Prosecution Witness (PW3). In his evidence in chief, he stated to the court that on that fateful day, he received a distress call that the accused person herein, Philemon Osabutey had gone to steal cables from one of the offices of the Public Works Department (PWD) at Ada Foah and had been arrested but that his friends were trying to help him escape from those who arrested him. So, he quickly rushed to the scene and saw the accused person holding a shirt containing bundles of electrical cables and being beaten mercilessly by his father. He quickly rescued him from his father. The PW3 further indicated in his evidence in chief to the court that, as soon as the accused person saw him, he started pleading with him and told him that he went to steal the cables which was the reason why his father was beating him. It was his case that the accused person later led him to the place where he said he stole the cables from. After that, the PW3 said he took him to the police station where he obtained statements from the PW1 as well as their Second Witness, one Wayo Lenel. He also took an Investigation Caution Statement from the accused person and according to him, the accused person admitted having committed the offence in his caution Statement. He then obtained instructions from his District Commander to charge the accused with the offences which he did. The PW3 later tendered in evidence the Caution and Charge statements of the accused person as well as a photograph of a bundle of 10mm, 5mm and 2mm electrical cables retrieved from the accused person. They were admitted in evidence as exhibits ‘A’, ‘B’ and ‘C’ respectively without any objections after which the prosecution ended their case. After the prosecution’s case, the court called upon the accused person to open his defence. He informed the court in his evidence in chief that some months before his arrest he visited his grandmother at a place called Adedetsepanya near Ada Foah. His grandmother went to church but he decided to take a stroll to some chalets on the way to a community known as Azizanya. On his way, and when he got to adjacent the premises of the Ghana Highways Authority and before the Public Works Department (PWD) premises, the accused person said he felt nature’s call. So he entered the bush to ease himself for about five (5) minutes and came out. When he came out, the accused said the PW1 saw him, stopped him and accused him of being behind the theft of some electricity cables there which he denied knowledge of. The accused person further indicated to the court that he kept the tools, including a knife, on him to protect himself because some boys were threatening to fight him. This, he said he explained to the PW1 but he refused to accept his explanation. He was therefore about to leave the PW1 when he called some boys around who crossed and arrested him. The PW1 later phoned the police and one of their officials went for him and took him to the police station. The accused person did not call any witness and so ended his case here. This is a case of unlawful Entry and Stealing and the legal issues for determination at this point are: 1.whether or not the prosecution has been able to prove its case. 2. whether or not the accused person herein is guilty of the offences charged. The fundamental principle underlining the rule of law as far as criminal law is concerned is that the burden of proof remains on the prosecution and the evidential burden shifts to the accused only after a prima facie case had been made against the accused person. In the case of Commissioner of Police v. Isaac Antwi [1961] GLR 408 it was held per holding one (1) as follows: “The fundamental principles underlying the rule of law are that the burden of proof remains throughout on the prosecution and the evidential burden shifts to the accused only if at the end of the case for the prosecution an explanation of circumstances peculiarly within the knowledge of the accused is called for. The accused is not required to prove anything” Also, in the case of Gligah & Atiso v. The Republic [2010] SCGLR 870@879, Dotse JSC (As he then was) stated as follows: “in other words 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 against the accused person beyond any reasonable doubt…” Section 152 of the Criminal Offences Act, 1960, (Act 29) states that: A person who unlawfully enters a building with the intention of committing a criminal offence in the building commits a second degree felony. Section 153 explains unlawful entry as follows: “A person unlawfully enters a building if that person enters otherwise than in the exercise of a lawful right or by the consent of any other person able to give consent for the purposes for which that person enters.” From the above, the ingredients to be proven by the prosecution in a case of unlawful entry therefore are that: 1. 2. 3. a person enters a building; without a lawful right or consent of a person capable of giving consent; with intent of committing a crime. Section 125 of Act 29 defines stealing as follows: “A person steals who dishonestly appropriates a thing of which that person is not the owner.” Again, 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 a person may be deprived of the benefit of the ownership of that thing, or of the benefit of the right or interest in the thing, or in its value or proceeds, or part of that thing.” Dishonest Appropriation is also defined in section 120 of Act 29/60 as follows: An appropriation of a thing is dishonest: “(a) if it is made with the intent to defraud; or (b) if it is made by a person without claim of right, and with a knowledge or belief that the appropriation is without the consent of a person for whom that person is trustee or who is owner of the thing, or that the appropriation would, if known to the other person, be without the consent of the other person.” The above then gives the elements of stealing as stated in the case of Lucien v. The Republic [1977] 1GLR as follows: “The only basic ingredients requiring proof in a charge of stealing were that: (I). the person charged must not be the owner of the thing stolen; (ii). he must have appropriated it and (iii). the appropriation must have been dishonest.” The prosecution would have to prove all the ingredients above in order to discharge the burden placed on them to prove their case beyond reasonable doubt against the accused person. The case of the prosecution is that on the 17th of March, 2024, at about 12.00 midnight, the accused person herein was seen by the PW1 with quantities of electrical cables hidden in a big shirt coming out of one of the offices of the PWD premises at Ada Foah which he, the accused abandoned and escaped after seeing the PW1 but was later accosted by the help of some persons around and handed over to the police. This was corroborated by the complainant, PW1 and the PW3, the investigator of this case. The accused person in his defence did not deny the fact that he was seen with the electrical cables which photograph was tendered in evidence as exhibit ‘C’. All that he told the court was that he came out from the bush near the PWD premises after attending to nature’s call only to be stopped by the PW1 and accused of stealing. Although, in criminal matters the burden of proof remains on the prosecution, it is trite that the evidential burden shifts to the accused where at the end of the case for the prosecution an explanation of circumstances peculiarly within the knowledge of the accused is called for. In this instant case, the court indeed called upon the accused person to give explanation regarding the accusations against him after the court had concluded that a prima facie case had been made against him which he attempted to do. I would therefore rely on the three tier test for examining the defence of the accused as held by Ollenu JSC in the case of the case of Lutterodt v Commissioner of Police [1963]2 GLR, at 439, as follows: ‘’where the determination of a case depends upon facts and the court forms the opinion that a prima facie case has been made, the court should proceed to examine the case for defence in three stages; 1. Firstly, it should consider whether the explanation of the defence is acceptable, if it is, that provides complete answer, then the court should acquit the defendant; 2. If the court should find itself unable to accept or, if it should consider the explanation to be not true, it should then proceed to consider whether the explanation is nevertheless reasonably probable, if it should find it to be, the court should acquit the defendant; and 3.Finally quite apart from the defendant’s explanation or the defence taken by itself, the court should consider the defence such as it is together with the whole case, i.e. prosecution and defence together, and being satisfied of the guilt of the defendant beyond reasonable doubt before it should convict, if no, it should acquit.’’ Following from the above and upon my consideration of the totality of the evidence as adduced by the prosecution and that of the defence, I say that I am satisfied of the fact that the accused person herein indeed entered the office of the PWD, Ada Foah unlawfully and stole their electrical cables. He is therefore found guilty of both offences charged - Unlawful Entry and stealing and is convicted on both counts accordingly. Any plea in mitigation before sentence is passed: Accused person: I admit that what I did was wrong. I unlawfully jumped the wall and entered the yard. So, I am begging the court. Q. is the accused person known. Prosecution: No, he is not. By Court The accused person herein is said to be a first time offender. He has pleaded with the court to tamper justice with mercy. The stolen property- the electrical cables have been retrieved. Taking the above into consideration, therefore, the accused person herein is sentenced as follows: The accused person is sentenced to serve a 12- month prison term, with regards to count one, the offence of unlawful Entry. He is further sentenced to serve an 18- month prison term in respect of count two – stealing. Both offences should run concurrently. H/W PAULINA KWAKYEWA ADWOA. SGD