The Republic Vrs Mumuni & 2 Others [2022] GHACC 76 (11 October 2022)

IN THE CIRCUIT COURT HELD AT JASIKAN ON TUESDAY THE 11TH DAY OF OCTOBER 2022 BEFORE HIS HONOUR JUDGE ALFRED KWABENA ASIEDU ESQ. SUIT NO. D18/47/2022 THE REPUBLIC VRS. 1. MOHAMMED MUMUNI 2. AZIZ TANKO 3. FRANCIS BRAIMAH ________________________________________ JUDGMENT Mohammed Mumuni first accused (A1) and Aziz Tanko second accused (A2) persons are charged with two counts of Conspiracy to rob, and Robbery. The A1 is further charged with possession of narcotic for used and Francis Braimah the third accused person (A3) is charged with dishonestly receiving an item obtained through crime. THE CASE OF THE PROSECUTION. The case of the prosecution is that the complainant by name Alhassan Fuseini is a commercial motor rider and a resident at Nkwanta whilst the accused persons Mohammed Mumuni is a fitter, Aziz Tanko is a Farmer all living at Kpassa and Francis Braimah alias Amera is a teacher and lives at Banda. On 15th March 2022 about 4:00am complainant took a passenger from Nkwanta to Tinjaase junction and then got another passenger from there to MeriMeri Junction at Kpassa carrying a sheep. That when the second passenger alighted complainant saw him running away without knowing the reason and suddenly the first and second accused persons with one Kwame who is on the run, wielding knifes and other offensive implements rushed on the complainant, attacked and subjected him to severe beatings whiling calling the complainant a thief. They drag the complainant to the Amenuveve coldstore where the watchman of the coldstore was at post at the time. He pleaded with the accused persons to stop beating their victim but they would not listen and they drag their victim away with his motor bike. The accused persons out of the severe beatings of the complainant succeeded in stealing his blue Sanya motorbike valued GHS5,700.00 one Itel Phone valued GHS80.00 and cash of GHS75.00 from the complainant. After successful operation first and second accused persons and Kwame took the complainant’s motorbike to Banda near Chinderi and sold it to the third accused person at the price of GHS2500.00 and he made part payment of GHS1900.00. That Kpassa police intelligence led to the arrest of A1 in his room at Kpassa on the 21st of March 2022 and when a search was conducted in his room 12 wraps of dried leaves suspected then to be narcotic drugs concealed in a hat were retrieved from the room. The dried leaves were later confirmed to be cannabis by the Police forensic laboratory. Prosecution in all called four witnesses in prove of its case namely Bashiru Aruna, the watchman at Amenuveve coldstore as the first witness PW1, G/Sgt. Isaac Oduro Abadoo one of the arresting policemen as the second witness PW2. The investigator PW/Const. Lawrencia Asantewaa Amoako as the third witness PW3 who tendered into evidence without any objections the endorsed Medical Form of the victim, Exhibit A, Cautioned Statement of A1, Exhibit B, Cautioned statement of A2, Exhibit B, Photograph of the Motorbike, Exhibit C, Cautioned statement of A3, Exhibit D, Forensic Lab Results, Exhibit E, 12 Wraps of Cannabis, Exhibit F, Charge statements of A1, A2 and A3 as Exhibits G, H, K respectively. And the complainant/victim, Alhassan Fuseini, as the forth witness, PW4. BURDEN AND STANDARD OF PROOF Section 14 of the Evidence Act 1975 NRCD 323 places the burden of producing evidence in criminal cases on the prosecution. And the cases have held that there is no burden at all on the accused to prove his or her innocence. All that the accused needs do is to create doubt in the mind of the court as to facts of the prosecution. The case of Donkor Vs. The State (1964) GLR598 SC held that in criminal trials the burden of proof in the sense of the burden of establishing the quilt of the accused is generally on the prosecution. The failure to discharge the burden should lead to the acquittal of the accused. I would want to deal with the substantive offense first. On Count 2, the A1 and A2 are charged with Robbery, Contrary to section 149 of the Criminal Offences Act, 1960, Act 29. The particulars of the offense were given as; Mohammed Mumuni, aged 18, a mechanic. Aziz Tanko, aged 18, a farmer, that you, on the 15th day of March 2022 at about 4;00 am at Kpassa in the Oti region and within the jurisdiction of the court, did steal a blue Sanya motorbike valued GHS5,700.00, one black Itel mobile phone valued GHS80.00 and cash the sum of GHS75.00 properties of one Alhassan Fuseini in and for the purpose of stealing the aforementioned items subjected the said Alhassan Fuseini to torture with the intent to prevent or overcome the resistance of the said Alhassan Fuseini. To support a case for robbery the use of force or causing harm to the person robbed must be established. And also possession of, and some property in, the thing stolen by the complainant are essential ingredients of the offence of robbery. The requirement that the complainant must have some property in the thing stolen is widely construed. Thus it was held to exist in a maidservant alone in her master's house as regards his goods there: R. v. Harding (1929) 21 Cr. App. R. 166; 142 L. T. 583. REGINA v. MENUH AND DADE 1957 2GLR, 348 SC, CA refers In proof of the Robbery the PW4 testified that he had taken a passenger carrying a sheep on his blue motor bike from Tinjaase junction to Mereimeri and when he stopped for the passenger to alight and untie his sheep he PW4 was urinating and he noticed the passenger was running away. Then suddenly A1 and A2 with one another showed up there holding knifes and other implements and they pounced on him alleging he was a thief. They would not listen to his plea that he is not a thief and kept beating him mercilessly. That he was dragged to the front of a Coldstore nearby by name Amenuveve while being beaten and the security man for the coldstore pleaded with the accused persons to stop beating him and yet they would not stop. He was taken away from the sight of the security man and he was further beaten till he became weak to resist them. And they dispossessed him of his said motorbike. And he later made a report to the Kpassa Police. The testimony of the PW4 was firmly corroborated by the said security man of the Amenuveve coldstore by name Bashiru Aruna, PW1. The investigator PW/Const. Lawrencia Asantewaa Amoako, PW3, tendered into evidence without any objection Exhibit A, the medical report form of the complainant. Exhibit A, confirmed that complainant suffered multiple abrasions at his back, shoulder, abdomen and sub conjunctional neurite as a result of the assault on him. A1 in his cautioned statement admitted accosting the complainant with his friend by name Kwame and accused him of being a thief and beat the complainant up whereupon Kwame took the motor bike of the complainant. That when they went home at about 5;00am Kwame suggested they sell the motor bike and he also agreed. Then he A1, together with A2 and Kwame went to Banda and sold the motor bike to A3. A2 in turn denied any involvement in the attack and hence the robbing of the complainant of his motor bike. He stated that at the time of the alleged incidence he was sick at home and could not even walk and therefore could not have been present at the scene of the robbery, though he, at the request of A1 and Kwame, led them to A3 to sell the motor bike. A2 called his sister and brother to testify to the fact of his sickness. The brother’s evidence was discounted as hearsay as he came to tell only the denials the A3 himself had previously told him. The sister who testified that she was footing the bills for the treatment of A2 admitted not staying with him and until she came to testify in court she did not even know A2 was in fact, fit and was involved in the sale of the motorbike the morning after the robbery. She looked clearly surprised and lied to by his brother A2. From the evidence of PW1 who was an eye witness to the assault on complainant and who firmly identified the accused persons and the testimony of the complainant himself. I am unable to believe the denial by A2. A2 must have been indeed present at and partook in the assault on the complainant to rob him of the motorbike for him to be with A3 and Kwame to go and sell the motor to A3 and told by A1. There is no doubt that the complainant was in possession of the motorbike and the property of same was in him at the time it was stolen from him. I therefore find and so hold that the prosecution has satisfactorily proven that A1 and A2 robbed the complainant of his motor bike. I therefore convict A1 and A2 as charged of robbing the complainant of his blue Sanya motor bike. THE CONSPIRACY CHARGE The first and second accused persons were charged with conspiracy to rob the complainant. The accused persons have been found guilty of the robbery as charged. It was in fact inappropriate to charge them for conspiracy to rob when the same facts and evidence were that which the prosecution relies on to prove the substantive offence. In THE STATE v. OHENE-KESSON AND MENSAH 1962 2GLR 706 SC holding (4) stated “it is only in cases where there is clear evidence of the actual commission of a substantive offence by two or more, so that the prosecution is in a position and intends to submit to the court proof of the actual commission of the offence, that it is improper to join a count for conspiracy to commit the same offence”. Furthermore, section 24 of Act 29 provides as follows; section 24(1) where two or more persons are convicted of conspiracy for the commission or abetment of criminal offence, each of them shall, where the criminal offence is committed, be punished for that criminal offence, or shall, where the criminal offence is not committed, be punished as if each had abetted that criminal offence. In our instance case the two accused persons have been convicted as above of the substantive offence of Robbery. And from the above provision of section 24(1) of Act 29, the accused persons can only be punished for only the substantive offence of robbery for which they have been convicted even if they are convicted of the conspiracy. It seems to me joining conspiracy to a substantive offence will be safe where not all the conspirators engaged in the commission of the substantive offence. I do not, therefore, find it expedient to consider the charge of conspiracy and same is accordingly struck out and the accused persons discharged on same. COUNT 3 Now on count 3, A1 is charged with being in possession of narcotic drugs namely cannabis for use. The case of the prosecution is that while investigating the robbery case, intelligence led to the arrest of the A1 and another in the room of A1. That a search in the room of A1 discovered 12 wrapped leaves in a hat, which the forensic lab has confirmed to be cannabis. Hence the substance having been found in the room of A1 he was in possession of same/ and was accordingly charged. The statement of offense and the particulars on count 3 are as follows; STATEMENT OF OFFENCE; POSSESSION OF NARCOTICS: Contrary to section 37 of the Criminal Offences Act, 1960, Act 29 PARTICULARS OF OFFENCE; Mohammed Mumuni, aged 18, a mechanic that you, on the 21st day of March 2022 at about 4;00 am at Kpassa in the Oti region and within the jurisdiction of the court, did unlawfully have in your possession twelve wraps of dried leaves suspected to be narcotics drugs. The brief facts of the case attached to the charged sheet states of the narcotics as follows “…. intelligence led to the arrest of A1, Mohammed Mumuni in his room at Kpassa on 21st of March 2022 and when a search was conducted in his room 12 wraps of dried leaves suspected to be narcotic drugs concealed in a hat were retrieved from the room”. In testimony PW2, G/Sgt. Isaac Oduro Abadoo delivered himself as follows “I saw a black polythene bag in the room where they were arrested and when I opened it I found four lighters, two Itel phones, one calcus phone, one xnova phone and twelve wraps of dried leaves suspected to be Indian hemp”. These are the only pieces of evidence provided by the prosecution in proof of A1 being in possession of the said narcotic drug. Beside the inconsistency of where in the room the alleged substance was found either in a hat or a black polythene bag as stated by the prosecution which created doubt in the case of the prosecution, the accused denied ownership of even the room where the substance was allegedly found. A1 stated that though he was in a room where the police came to arrest him, that room is the room of his late brother who had died barely a month before his arrest. Accused called his mother and sister in support of his positon. The two witnesses confirm that the room in which A1 was arrested indeed belonged to the late brother of the accused person. Prosecution sought to say further that A1 was arrested with one Alhassan Ibrahim who confirmed that the room where they were arrested was indeed the room of the A1. But the said Alhassan was not called into evidence though he was not charged. I find the story of the A1 in respect of the possession of the narcotic that he was not in possession of any narcotic drug believable. Even if it was true that the said narcotic substance which has been proven to be cannabis were found in the room where the A1 was arrested, which has not been sufficiently proven, there is enough evidence to show that accused is not the owner of the room. And to the extent that he is not the owner of the room, it is very probable he was not aware the substance was in the room. The substance was not found on his person; I am unable to hold that A1 was in possession of the said cannabis. I therefore find and hold that prosecution has failed to prove that A1 was in possession of any narcotic drug as charged and accordingly acquit A1 on count 3. COUNT 4 Finally, A3 is charged on count 4 with DISHONESTLY RECEIVING: Contrary to section 146 of the Criminal Offences Act, 1960, Act 29. Particularized as Francis Braimah, aged 42, a Teacher, that you, on the 16th day of March 2022 at about 4;00 am at Kpassa in the Oti region and within the jurisdiction of the court, did buy a blue Sanya motor bike valued GHS5,700.00 at GHS2,900.00 from Mohammed Mumuni and Aziz Tanko which you well knew or ought to have known to have been obtained or appropriated from crime. Section 146 of Act 29, under which the accused is charged, is to the effect that any person who dishonestly receives any property which he knows to have been obtained or appropriated by any offence commits the offence of dishonestly receiving. Section 147 (1) of Act 29 explains dishonestly receiving as follows: “A person commits the criminal offence of dishonestly receiving property which that person knows to have been obtained or appropriated by a criminal offence, if that person receives, buys, or assists in the disposal of the property otherwise than with a purpose to restore it to the owner.” In the REPUBLIC v. BAYFORD 19732 GLR 421 it was held that (1) for an accused person to be guilty of dishonestly receiving stolen goods, it was essential for the prosecution to adduce sufficient evidence to establish the following: (a) that the property was in such a condition as to be under the dominion of the accused to the exclusion of the person who obtained or appropriated it by an offence. It was not necessary only that the accused had physical or manual possession, but it had to be shown that the property was under his control; (b) that the accused received the property, that is to say, that the accused took possession of the goods, actual or constructive. It had to be shown sufficiently that the accused and the person who obtained or appropriated the property by an offence did not both have possession at the same time; © at the time the property was received by the accused it had actually been obtained or appropriated by an offence;(Page 422) (d) guilty knowledge which was largely a matter of inference. In our present case there is sufficient evidence on record to support the first three elements of the offence as stated above in the case of REPUBLIC v. BAYFORD supra. The accused in Exhibit E, his investigation Cautioned statement, given on the 30th day of March 2022 stated that the motor bike the property subject of the offence had been under his control for two weeks prior to his giving of Exhibit E, satisfying elements (a) and (b) above. The fact of the property having been obtained or appropriated by an offence has also been established as same has been found to have been obtained through robbery by A1 and A2. Now the element (d), guilty knowledge which is largely by inference. In SANTUOH v. THE REPUBLIC 1976 1GLR 44 it was held that in discharging the onus of proof of knowledge, it was not necessary for the prosecution to lead evidence of actual knowledge, it was sufficient if evidence from which knowledge could be justifiably inferred was established. Are there pieces of evidence from which the guilty knowledge of the accused person A3 before the court can be inferred, one may ask. A3 admitted having been in the business of retailing motorbike for the past twenty-two years and by inference very well vexed in the business. He stated that A2 had in December 2021 tried to sell to him a motor bike but he refused to buy same because he noticed it was stolen. It seems to me he nevertheless did not report that incidence to the police. That incidence put A3 on notice of the potential conduct of A2 and for that matter his friends with whom A3 dealt in respect of the present blue Sanya motorbike. A3 admitted buying the subject motorbike from A1, A2 and their friend Kwame, at the price of GHS2500.00, as he put it, and paid GHS2000.00 to them awaiting the documents covering the property to settle the balance of GHS500.00. A3 an experienced dealer in the motorbike told the court that ordinarily in the market a brand new Sanya motor bike like the subject of this discussion should have been sold for between GHS5500.00 and GHS5700.00 and admitted that the price he paid for this particular one was below the market price. He also admitted that he bought the motorbike without any proof that same belonged to the vendors. During cross examination of A3 by prosecution the following among others ensued; Q. That you have been in the business of buying and selling motorbikes for the past 22 years A. That is so Q. You agree with me that that motorbike you bought is a brand new and unregistered. A. That is so it was unregistered. Q. Did you know the price of a new motorbike at the time you bought this one. A. Yes I knew Q. How much was a new motorbike at the time A. It depends on the brand and that Sanya was within GHS5500.00 and GHS5700.00 Q. You agree with me that the price you paid was cheaper than the market one. A. Yes but it was slightly used for about a year. Q. That you bought the bike without any proof that A1 and A2 owns it. A. That is so but I requested for that but they did not provide it. Considering the experience of A3 as retailer of motorbikes within the community for the past 22 years and his knowledge of A2 in particular, as him having offered for sale what he A3 detected to be a stolen motorbike, A3’s decision to buy the instant motorbike at less than one half of the minimum possible open market price he very well knew and last but not the least buying the said motorbike without ascertaining the rightful owner, are very strong pointers to his guilty knowledge that the motor bike had been obtained or appropriated through criminal offence. The inference is very strong, in fact conclusive, that he knew the motorbike was stolen and yet he nevertheless bought it. I therefore find and so hold that A3 is guilty of dishonestly receiving the blue Sanya motorbike from A1, A2 and their friend who is on the run and accordingly convict A3 as charged. ALFRED KWABENA ASIEDU ESQ. (CIRCUIT JUDGE)