REPUBLIC VRS YUSSIF & ANOTHER (NR/TL/HC/CC7/3/23) [2024] GHAHC 335 (26 June 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE TAMALE, NORTHERN REGION CASE NO: NR/TL/HC/CC7/3/23 DELIVERED ON 26th JUNE 2024 THE REPUBLIC VRS 1. ABDUL RAHMAN YUSSIF 2. ZULKA (AT LARGE) COUNSEL Gertrude Gyasiwaa Johnson for the Republic Salisu Be-Aworebe Issifu for A1 CORAM Justice Eric Ansah Ankomah JUDGMENT I. INTRODUCTION 1. The accused persons who are friends are alleged to have robbed one Kadijah Manteso who was returning from a birthday party with her two other friends all riding their motor bikes. The victim sustained cutlass wounds on her head in the course of the attack. The attackers succeeded in taking away the victim’s motor bike and her money worth GHs 700.00. A case of robbery was reported to the police and A2 was arrested by the ‘Area Boys’ but they decided to deal with him in their own way and he subsequently absconded. A1 was subsequently arrested by the police and was charged with A2 with the offence as stated in the charge sheet. 1 2. Counsel for the Republic filed her written address on 20th June, 2024 and as at the time of writing this judgment counsel for the 1st accused person had not filed his written address so I deem it as waived. I will make reference to portions of the address filed in the course of this judgment. I hereby set out the charges as appeared on the charge sheet. II. CHARGES 3. The accused persons were charged with the following offences; Count One Conspiracy to commit crime, to wit Robbery contrary to sections 23(1) and 149 (1) of the Criminal Offences Act, 1960 (Act 29). Particulars of Offence Abdul Rahman Yussif, 28 years butcher, Zurika – at large, on or about the 3rd day of December, 2022 at Kpalsi in Tamale in the Northern region of the Republic of Ghana and within the jurisdiction of the Court did agree to act together with a common purpose to use force to steal a Haojue motorbike with registration No. M-22 GD 5474 valued at GHs 15,000.00 the property of Khadija Manteso Nuhu by slashing her head with a cutlass with intent to overcome the resistance of the said Nuhu Manteso Khadija to the stealing of her aforementioned property. Count Two Robbery contrary to Section 149 (1) of the Criminal Offences Act, 1960 (Act 29). Particulars of Offence Abdul Rahman Yussif, 28 years butcher, Zurika – at large, on or about the 3rd day of December, 2022 at Kpalsi in Tamale in the Northern region of the Republic of 2 Ghana and within the jurisdiction of the Court did use force to steal a Haojue Dash 5 motor bike with registration No. M-22 GD 5474 valued at GHs 15,000.00 the property of Khadija Manteso Nuhu by slashing her head with a cutlass with intent to overcome the resistance of the said Nuhu Manteso Khadija to the stealing of her aforementioned property. Count Three Conspiracy to commit crime, to wit Robbery contrary to sections 23(1) and 149 (1) of the Criminal Offences Act, 1960 (Act 29). Particulars of Offence Abdul Rahman Yussif, 28 years butcher, Zurika – at large, on or about the 3rd day of December, 2022 at Kpalsi in Tamale in the Northern region of the Republic of Ghana and within the jurisdiction of the Court did agree to act together with a common purpose to use force to steal the amount of seven hundred Ghana Cedis (GHs 700) belonging to Khadija Manteso Nuhu by slashing her head with a cutlass with intent to overcome the resistance of the said Nuhu Manteso Khadija to the stealing of her aforementioned amount. Count Four Robbery contrary to Section 149 (1) of the Criminal Offences Act, 1960 (Act 29). Particulars of Offence Abdul Rahman Yussif, 28 years butcher, Zurika – at large, on or about the 3rd day of December, 2022 at Kpalsi in Tamale in the Northern region of the Republic of Ghana and within the jurisdiction of the Court did use force to steal the amount of seven hundred Ghana Cedis (GHs 700) belonging to Khadija Manteso Nuhu by 3 slashing her head with a cutlass with intent to overcome the resistance of the said Nuhu Manteso Khadija to the stealing of her aforementioned amount. III. FACTS 4. I now proceed to read the facts as presented by the prosecution. The complainant and victim in this case is Khadijah Manteso Nuhu, a National Service Person teaching at Baidul D/A Primary School. She resides in Kpalsi in Tamale. The 1st accused person who is a butcher also resides at Kpalsi. On the 3rd day of December, 2022 at about 4 am, Khadija and two friends, Macrina and Anisa were returning from the King David spot at Josonayili. The victim had gone there to deliver a birthday cake earlier on and had stayed back to attend the birthday party. 5. The victim and the friends each rode a motorbike. While riding along the Gurugu- Choggu road, Anisa who was riding behind her friends alerted them of a motorbike which seemed to have been following them. So they increased their speed in order to lose the suspect motorbike but the rider of the motorbike did same. Upon reaching the Hajj Gold Guest House at Kpalsi, the motorbike which had two men on it eventually overtook Anisa and got to Khadija. The first accused person Abdul Rahman Yussif who was the rider crossed Khadija and she fell off her bike. Zulka, the accused person at large who was the pillion rider was holding a cutlass. 6. First accused person then demanded for Khadija’s phone. She told him it was in her handbag and she handed over her bag which had Seven Hundred Cedis (GHs 700.00) in it to the first accused. The 2nd accused at large then slashed her head 4 about three times with the cutlass. The 1st accused also used her handbag to kick the victim while she was still on the ground. 1st accused then grabbed the victim’s brand new Hajue Dash 5 motorbike and her handbag with the money and rode off. Zulka on his part sped off with their motorbike which was an unregistered Apsonic Kombien motorbike. The victim was left behind breeding profusely from the wounds on her head. She managed to walk to Anisa’s house which was close by. 7. Subsequently when her friends also got to the house from their hideouts, they called the ambulance to convey the victim to Tamale Teaching Hospital. A report was made to the police. 8. Subsequently, through the efforts of the victim who identified her assailants, some area boys and the police, the 1st accused person was lured out and arrested few weeks later at Agric Traffic lights area and he had with him the same unregistered Apsonic Kombien motorbike used for the robbery. Zulka remains at large. Abdul Rahman Yussif and Zulka who is at large have been charged with two counts of conspiracy to commit crime to wit, robbery and two counts of robbery contrary to sections 23(1) and 149(1) of the Criminal Offences Act, 1960 (Act 29) and he is before this honorable court for trial. IV. THE LAW OF CONSPIRACY AND ROBBERY 9. I will now proceed to deal with the law creating the offences charged before I look at the burden of proof on the prosecution. I will thereafter sum up the evidence adduced at the trial before evaluation of same for findings of fact and law. The final orders shall then follow. 5 10. Section 23 (1) of the Criminal Offences Act, 1960 (Act 29) as amended state the offence of conspiracy to commit crime as follows: “Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence.” 11. In the case of Francis Yirenkyi v The Republic [2016] DLSC 3148 the Supreme Court affirmed the new definition of conspiracy to be an intentional conduct. By this new formulation, a person could no longer be guilty of conspiracy in the absence of any prior agreement. The elements of the offence of conspiracy under the new law are as follows: a) That there were at least two or more persons involved in the scheme of things. b) That there was agreement to act together. c) That the sole purpose for the agreement to act together was for a common purpose to commit crime or abet a crime. See the cases of; Richard Kwabena Asiamah v The Republic [2020] 170 GMJ 510 SC and Kingsley Amankwah (Alias Spider) v The Republic [2021] 173 GMJ 230 SC. In the case of George Abormegah v The Republic [2022] DLSC 11667 the Supreme court delivered itself on the offence of conspiracy as follows; 6 In essence, criminal conspiracy is a mental crime. Although of a criminal act begins in the mind of one person and is then communicated to the mind of another. Once the minds find agreement to undertake that common criminal purpose, the crime is complete. Thus, the mens rea for the offence is an intention to agree, and the actus reus is the agreement. There need not be any acts done in furtherance of the agreement for liability to accrue. See State v Otchere [1963] 2 GLR 463. 12. To be successful in proving the offence of conspiracy to commit robbery, the prosecution must satisfy the court that prior to the commission of the crime, the accused persons agreed to act together with a common purpose to commit the crime of robbery. In the absence of prior agreement by the accused persons, there cannot be the inchoate offence of conspiracy. See also Commissioner of Police v Afari and Addo [1962] 1 GLR 483 @486 where the Supreme Court stated that the proof of the element agreement in a charge of conspiracy by direct evidence is rare. Thus, agreement is normally proved by evidence of subsequent acts, done in concert and so indicating a previous agreement. Therefore, the element of agreement is proved by indirect or circumstantial evidence. 13. I agree with the submission of counsel for the Republic when she stated in her written submission that the courts have held that the mere fact of taking part in the commission of the crime is sufficient proof of the offence of conspiracy. See the case of: Faisal Mohammed Akilu v The Republic [2017] DLSC 2624, the Supreme Court speaking through Appau JSC as he then was stated as follows; 7 From the definition of conspiracy as provided under section 23(1) of Act 29/60, a person could be charged with the offence even if he did not partake in the accomplishment of the said crime, where it is found that prior to the actual committal of the crime, he agreed with another or others with a common purpose for or in committing or abetting that crime. In such a situation, the particulars of the charge normally read: “he agreed together with another or others with a common purpose for or in committing or abetting the crime”. However, where there is evidence that the person did in fact, take part in committing the crime, the particulars of the conspiracy charge would read; “he acted together with another or others with a common purpose for or in committing or abetting the crime”. This double-edged definition of conspiracy arises from the undeniable fact that it is almost always difficult if not impossible, to prove previous agreement or concert in conspiracy cases. Conspiracy could therefore be inferred from the mere act of having taken part in the crime where the crime was actually committed. Where the conspiracy charge is hinged on an alleged acting together or in concert, the prosecution is tasked with the duty to prove or establish the role each of the alleged conspirators played in accomplishing the crime. (Emphasis mine) 14. I will now discuss the substantive offence of robbery since without this substantive offence of robbery, the inchoate offence of conspiracy cannot stand. The law that creates the offence of robbery is section 149 of Act 29 and the section that defines the offence is section 150 of Act 29. I hereby reproduce the law. Section 149 of Act 29 states that; A person who commits robbery commits first degree felony. 8 Section 150 Act 1960 (Act 29) states that; “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 (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 things.” 15. The elements of the offence of robbery was set out in the case of; Behome v The Republic [1979] GLR 122 as follows: “One is only guilty of robbery if in stealing a thing he used any force or caused any harm or used any threat of criminal assault with intend thereby to prevent or overcome the resistance of his victims, to the stealing of the thing.” 16. In the case of Frimpong alias Iboman v Republic [2012] GHASC (18 January 2012) it was held that for the prosecution to succeed on the offence of robbery, the prosecution must prove beyond reasonable doubt that; 1. The accused has stolen something from the victim of the robbery of which he is not the owner. 2. For the purposes of the stealing, the accused person used force, harm or threat of any criminal assault on the person. 3. The force or the threat of criminal assault or harm used must be with the intent to prevent or overcome the resistance of any person to the stealing of the thing. 9 4. This fear of violence must either be of personal violence to the person robbed or to any member of his household or family in a restrictive sense. 5. The thing stolen must be in the presence of the person threatened. V. LEGAL OBLIGATION ON PROSECUTION 17. In our criminal jurisprudence an accused person is presumed innocent of the offence charged until proven guilty or has pleaded guilty. Article 19 (2) (c) of the 1992 constitution states that: “A person charged with a criminal offence shall- c. be presumed to be innocent until he is proved or has pleaded guilty.” 18. This is a call on the prosecution to lead evidence cogent and sufficient enough to establish all the elements of the offence the accused person is facing trial on as discussed supra. In order to be successful the prosecution must prove the guilt of the accused person beyond reasonable doubt since the 1st accused person pleaded not guilty to all charges levelled against him. 19. This burden of proof on the prosecution has been codified in sections 11(2), 13(1) and 22 of the Evidence Act 1975 (NRCD 323). There are plethora of cases to support the fact that the burden of proof in criminal case is proof beyond reasonable doubt. See the following cases; Donkor v The State [1964] GLR 598, SC Yeboah v The Republic (Consolidated) [1972] 2GLR 281 10 20. The burden of proof which is on the prosecution connotes that, the burden of persuasion or the legal burden and the evidential burden or the burden to produce evidence are all on the prosecution. It is the duty of the prosecution to adduce evidence that will suffice to establish every element of the offence charged. See section 11(2) of the Evidence Act 1975 (NRCD 323) which states that: “In a criminal action the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of a fact beyond a reasonable doubt." 21. The standard of proof which is beyond reasonable doubt was explained by Lord Denning in the case of Miller v Minister of Pensions (1947)2 A.E.R 372 as follows: "Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is strong against a man as to leave a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice". 22. The Supreme Court has affirmed the fact that when we say proof beyond reasonable doubt, it actually means proof of the essential ingredients of the offence charged and not mathematical proof. See the following cases; Tetteh v The Republic [2001-2002] SCGLR 854 Dexter Johnson v The Republic [2011] 2 SCGLR 601 Frimpong A.K.A Iboman v Republic [2012] 1 SCGLR 297 11 23. The ratio is that the prosecution must lead evidence to establish all the elements of the offence of conspiracy to commit crime to wit; conspiracy to commit robbery and robbery against the 1st accused person failing which the 1st accused person is entitled to be acquitted and discharged. What this means is that the failure to prove even one of the elements of the offence would be fatal to the prosecution case. 24. When the prosecution closed its case, the court on 14th June 2023 gave a ruling that the prosecution has made a case sufficient on the charges levelled against the 1st accused person and thus called on the 1st accused person to open his defence if any. The 1st accused person testified under oath and called witnesses. 25. I will now proceed to sum up the evidence adduced and thereafter evaluate the evidence to find out whether the prosecution has been successful in proving all the elements of the offences charged beyond reasonable doubt as required by law. VI. SUMMARY OF PROSECUTION WITNESSES EVIDENCE 26. Evidence of PW1 - Khadijah Nuhu Manteso. The evidence of the victim and complainant in the case is that, on 3rd December 2022, she attended a birthday party with her friends and at about 4am she was in a convoy of two other friends who were also on their motorbikes coming home. Macrina was in front of her and Anisa behind her. At a point in time Anisa signaled that a motor bike was following them so they started speeding. When they reached a guest house the motorbike that was trailing them crossed her and she fell from her motor bike. 12 27. According to her, 1st accused person was wearing a long dress (Jalabiya) whilst the pillion rider was wearing an orange shirt and a pair of trousers. It was A1 who demanded for her phone and took her hand bag that contained GHs 700.00 as well. The pillion rider slashed her head about three times with a cutlass and A1 kicked her with his leg. She heard one of them saying that, she was dead. A1 then rode off her brand-new Apsonic motorbike usually called Kombien valued at GHs 15,000.00 with her hand bag containing GHs 700.00. She was sent to the hospital for treatment thereafter. The matter was reported to the police. Her statement to the police was taken from the hospital. 28. When she was discharged from the hospital she engaged some Area Boys to assist her find the armed robbers and her motorbike. The Area Boys showed some pictures to her and she identified A2 as the one who slashed her with the cutlass. A1 picture was not among the pictures showed to her so she did not identify A1. A2 was eventually apprehended by the area boys but they did not allow her to report to the Police for the fear of the police arresting the Area Boys. That A2 fled leaving his motor bike behind and they conveyed the motor bike to the police. 29. That she continued her search for her assailants and she contacted one of the Area Boys at Aboabo black market one night when she went there to buy food. The girlfriend of A2 was pointed out to her by the Area Boy. They questioned her about the whereabouts of A2 and she told them that he was hiding at Target an area in Tamale and she even spent the previous night with him and left her mobile phone with him. That she was expecting A2 to bring the mobile phone to her. That she sported A1 on his motor bike and he rather gave the mobile phone to the girl and quickly sped off. 13 30. That she had the mobile phone number of A1 and she arranged with a friend to lure A1 to meet her at the Agric Traffic Light-Tamale at about 8pm. That she was there when A1 appeared with the same motor bike that was used in the robbery and the police arrested him at the scene. She tendered in evidence the documents on her motor bike and it was marked as exhibit A. She was cross-examined thereafter. 31. Evidence of PW2-Anisa Sulemana is that on 3/12/2022 at about 4am she and her two friends, PW1 and Macrina were returning from King David spot at Jisonayili- Tamale after a birthday party. That Macrina and PW2 were riding ahead of her on the Choggu road near Hajj Gold Guest House. She noticed that a motor bike had been following them for quite some time and she prompted her friends about. 32. That the motorbike trailing them bypassed her and moved towards Khadijah and the pillion rider who was wearing an orange shirt turned back and she saw his face briefly. He was light skinned person and he was holding a cutlass. She did not see the riders face. The two guys crossed the victim and at that time she realized the situation had become scary so she turned back to find escape route home. That when she got home, the victim was there bleeding profusely from her head. She was sent to Tamale Teaching Hospital for treatment. 33. Evidence of PW3- Investigator D/Insp. Francis Bright Asaarik testified that on 28/12/2022 a robbery case was referred to him for investigations. He re-arrested A1 who had been identified by PW1 as one of her assailants to assist investigations. The 2nd accused person remained at large. He tendered the investigation cautioned statement of A1 taken on 18/12/2022 in evidence without objection and it was marked as exhibit B. The witness tendered further investigation cautioned 14 statement he obtained from A1 on 30/12/2022 in evidence and it was marked as exhibit C without objection. Pictures taken of the victim after the incident were also admitted in evidence and marked as exhibit D, D1, D2 and D3. 34. The witness tendered the medical report form issued to the victim in evidence and it was marked as exhibit E. He further tendered medical bills and receipt which were marked as exhibit F, F1, F2 and F3 without objection. The prescription form of the victim was also admitted in evidence and marked as exhibit G. The charged cautioned statement of A1 was admitted in evidence and marked as exhibit H. A picture of the motor bike that was used in the robbery was admitted in evidence and it was marked as exhibit J, J1 and J2 without objection. The pictures taken from the scene of crime were admitted in evidence and marked as exhibit K, K1, K2 and K3. He tendered the statement PW1 gave to the police on 3/12/2022 and 21/02/2023 in evidence and they were marked as exhibit L and M respectively. The statement of PW2 was admitted in evidence and it was marked as exhibit N. The statement of PW3 was also admitted in evidence and marked as exhibit P. All the prosecution witnesses were cross-examined by counsel for the accused person. VII. SUMMARY OF 1ST ACCUSED PERSON CASE 35. Evidence of Abdul Rahaman Yussif The 1st accused person filed witness statement and after case management conference his witness statement was adopted by the court as evidence in chief. The 1st accused person who is a butcher was arrested on 17/12/2022 around 7-8pm with a friend on his motorbike. When he was informed about the offence, he got to know that it was PW1 who alleged his involvement in the case. 15 36. That in 2021 he got to know A2 when both of them were learning the trade of being butcher. That A2 father who knows him as a very humble person used to send A2 to him to collect his motor bike to harvest fodder for his horses and the last time Zulka came for his motor bike was in the morning of 2nd December,2022 and he returned it by midday same day. 37. The 1st accused person added that on the 2nd and 3rd day December 2022 he did not pick A2 as a pillion rider and that he has never agreed with A2 to commit any offence of robbery. He denied knowing PW1 anywhere and he has never engaged in stealing or robbery in his life 38. That the first time he saw PW1 was when he was sitting with his colleagues at their youth base called CMB near Radio Justice FM when one Abi also known as Alhaji Abi the leader of a group called Aluta Boys brought PW1 to their group base with some young men. Their complaint was that PW1 claimed to have been robbed by two young men. That the Aluta boys brought out some pictures to show to the complainant and she identified A2 as being the one who robbed her- and they have been hunting for him for some days now until they were told that Zulka was sitting at their base that afternoon. 39. That Zulka was sitting with them at the base and their group leader told Alhaji Abi that he does not tolerate people with dubious character. A2 was sitting with them and Alhaji Abu requested to take him away but it was suggested that their accusation could be false so for verification they decided to consult a Mallam nearby. That he moved with the members of his group and the Aluta boys to a 16 Mallam’s house near Lamashegu market and the Mallam after his consultation found Zulka guilty of the act of the robbery. 40. On their return he told Chief told the group to take A2 away since he does not entertain criminals at his sitting base. That before they take A2 away Chief asked PW1 whether she can identify A2 accomplice and she answered in the affirmative and went on to describe him as dark, tall and huge young man. Chief asked her to fish out the accomplice of A2 if that person was among the people gathered there but upon looking around PW1 declared that the alleged accomplice was not among them at that material time. 41. The 1st accused person added that he was and others were tasked to accompany the Aluta boys with A2 to his parents for them to know what had transpired. When they got to A2 father’s house he was not present so they called him on phone and he requested that they should wait for him. On the father’s return, Alhaji Abi narrated what had happened to A2’s father and he told the group to take A2 away to anywhere to prove his innocence since he cannot tell whether his son is guilty or not. That A2 maintained that he was innocent of the crime but one Ziblim suggested to PW1 and the Aluta boys that they should seize and keep the motor bike of A2 pending the determination of the quilt or otherwise of A2. That if it is found out that A2 is guilty and they could not trace the alleged stolen motor bike then they sell the seized motor bike to defray the cost incurred. 42. The motor bike of A2 was then seized and handed over to Alhaji Abi for onward submission to PW1. He added that, that day was the last time he saw A2 and PW1 until he was arrested and accused wrongly by PW1 as one of the people who attacked her. He was cross-examined by Counsel for the Republic. 17 43. A1 called two witnesses and subpoenaed two other witnesses including the first investigator in this case as well as an officer from DVLA. I will sum up their evidence as well. 44. Evidence of DWI- ALHASSAN MUSAH. The witness is the father of A2 and he testified that he knows A1 as a butcher and A2 is his biological son. That A2 and A1 have been friends for about four years. That he has been requesting for the motor bike from A1 to anytime he run out of stock of fodder until he recently purchased his motor bike. That the request are always in the morning and he speak directly to A1 on A2’s mobile phone for the request for the motor bike. That the motor bike is usually returned to A1 before afternoon prayers. 45. That one evening some young men numbering about seven came to his house with A2 when he was away. He was called on mobile phone and on his return he saw the young men with A2. That he told them to send A2 to wherever they can go to exonerate him or if found guilty A2 should return the stolen motor bike since he does not move with his son to know whether he is guilty or innocent. 46. That on another occasion within the same period a young man with dreadlocks, a lady and another young man came to his house to find out the whereabout of A2 and he told them he was not in the house.- That, the young man alleged that A2 robbed the lady, injured her and took her motor bike. He told them that A2 was not around for him to interrogate him. That for well over a year now, he has not seen A1 personally or seen him moving with A2 on any occasion whatsoever and they have not followed each other as they use to do in the past to come to his house 18 or to Zulka’s room. That it was only last week that he saw A1 personally. The rest had been telephone conversation. The witness was cross-examined. 47. Evidence of DW2- ZIBLIM MUSAH. He is a businessman and trade in cashew. They have a common sitting place at Lamashegu popularly called CMB near Justice FM where they sit to while away time when they are less busy. That they have been sitting there with A1 for many years as key old member of the sitting place. That A2 alias Binzorigu recently joined them at the sitting base. 48. That one evening, PW1, Alhaji Abi and other youth from Aluta boys came to their sitting base with the information that two boys attacked and robbed PW1 of her motor bike. That PW1 told them that she can identify her attackers when she see’s them. That upon further questions to PW1 she brought out the picture of A2 who was sitting among them. PW1 was further asked if she could identify A2 accomplice among the people sitting there and she answered yes and went ahead to describe the accomplice as dark, huge and tall and that such a person was not sitting at the base at that material moment. 49. That A1 was among the group of young men numbering about fifteen on that day who were all sitting at the base when PW1 came with the Aluta boys. That when A2 picture was brought, he disagreed and they advised that they resort to soothsaying as tradition demands because it is one of the methods of verification they know and it actually confirmed that A2 was guilty of the offence alleged upon divination. That A1 was among the young men who accompanied PW1 and the Aluta boys to the Mallam’s house for the soothsaying rituals. That after divination found A2 liable he personally seized A2’s motor bike and handed it over to the 19 Aluta boys leader for onward handing over to PW1 for keeps and if possible sale to defray the cost of what A2 was alleged to have stolen. That he did this in the presence of A1, PW1 and many others. 50. That A1, PW1, Alhaji Abi and himself as well as others matched A2 to his father’s house. He confirmed that A2 father told them to take A2 to anywhere to prove his guilt and retrieve the lost property of PW1 if A2 is found guilty. That they left A2’s house and his motor bike in the hands of PW1 and the Aluta boys. 51. That after three days of the incident at their base, PW1 called him to say that they cannot find A2 again and that he should try again to assist them identify the whereabout of A2. He agreed and searched corners in Tamale for A2 but to no avail. That PW1 has been calling her on A2 whereabout and he has been going round with A2 to look for A2 till recently that PW1 recently that PW1 calls have ceased. 52. That two weeks later PW1 called to inform him that they have arrested A1 and when he probed to know the reasons for her causing A1’s arrest, PW1 dropped the line and she has never called him again. The witness was cross-examined by Counsel for the Republic. 53. Evidence of DW3 D/CORP SALLAH COURAGE VILAWOE. The witness who was subpoenaed to testify for A1 evidence is that, he was the first investigator in the case before the docket was taken from him. That on 3rd December, 2022 he received a call from a junior colleague that a lady had reported a case of robbery and she was on admission at the Tamale Teaching Hospital. That 20 he directed another police officer of a junior rank to proceed to the hospital on the same day to take the complaint from PW1. That on the same day of the incident PW1 was discharged and she came to his office. That the complainant narrated the incident of the robbery to him and how the two robbers who attacked her chased them. 54. That PW1 told him that the one who was ridding the motor bike was tall, stout and was wearing jalabiya but she did not see his face and could not describe any facial features. The complainant described the pillion rider as fair and not too tall but could not identify him by face. That according to PW1, the robbers accosted her at inter locked road in her bid to escape. She became frightened and fell and the pillion rider removed a machete and slashed her head and took away her motor bike and the two robbers sped off. 55. That PW1 did not take him to the scene of crime before the case docket was taken from him. That in about a week’s time, PW1 told him that she has spotted the suspects in town. That she informed the community people and they assisted her to arrest A2 but they warned her not to inform the police about A2’s arrest. That upon A2’s arrest they took him to three different soothsayers (Mallams) to invoke the gods to reveal whether A2 was involved in the robbery and all of them confirmed A2’s involvement but A2 denied his involvement. That PW1 further told him that the community people had taken A2’s motor bike and given it to her to use with a further promise that A2 will bring her motorbike in a week’s time. That after the week A2 did not bring the motor bike and she came to the police. 56. The witness added that he later found out that PW1 engaged Aluta boys to assist her get her motor bike. PW1 brought a list where all monies she had paid to the 21 Aluta boys were in and he filed it in the case docket. That the District Officer ordered PW1 to bring the motor bike of the A2 and PW1 complied. That he did not arrest anybody in respect of this case. That it was PW1 who called to inform him that the community people suspects A1 as the one who was with A2 for the robbery so she was going to lure A2 to the Agric traffic for his arrest. He was instructed by his superior officer to tell PW1 to bring the boys she sought their assistance to the police station but PW1 never showed up. That he was there when he received information that two suspects have been arrested and detained in his name when he had not instructed. That is how he got to know A1 and another suspect who was not charged. The witness identified exhibit B as investigation cautioned statement he ordered to be taken from PW1. The witness was cross- examined by Counsel for the republic. 57. Evidence of DW4-HARUNA GANIU. The witness was subpoenaed from Driver and Vehicle Licensing Authority where he tendered in evidence documents dated 29th February, 2024 on some motorbikes. The one with Registration No. M 22 GD 22 bears the owner’s name as Alhassan Karim. The motorbike with Registration number, M 22 GD 5474 has the name of the owner as Asi Sylvester. The witness was cross-examined. VIII. VALUATION OF THE EVIDENCE 58. I will deal with the four counts on the charge sheet in the following manner. First I will combine counts 1 and 3 since they are all on the charge of conspiracy to commit the offence of robbery because the difference in counts 1 and 3 is the items that were robbed and they all flow from one incident of robbery. In fact counts 1 22 and 3 could have been merged as one count since the items robbed in the two counts happened in one incident of robbery attack. 59. I will also combine counts 2 and 3 which are on the substantive offence of robbery since the only difference in the counts is the subject matter of the robbery. The two counts also flow from the same incident of robbery on the same day, same time same victim and same accused persons. After all there is no law that prohibits the courts in dealing with similar charges together to avoid repetition and for ease of assessment of the evidence. See the case of; The Republic v Sedina ChristineTamakloe Attionu and Daniel Axim supra where the trial judge cited the Court of Appeal decision in the case of; Aaron Kwesi Kaitoo v The Republic Suit No. H2/25/2017 dated 26th April, 2018 (reported online on Dennislawgh as [2018] DLCA 4485). 60. There is no iota of doubt that PW1 at the dawn of 3rd December, 2022, was attacked by two men on a motorbike and in the cause of the attack, they succeeded in taking away her motorbike when one of the attackers inflicted cutlass wounds on PW1 head and in the process took away PW1 money and motorbike away. The pictures tendered in court and marked as exhibits D, D1, D2 and D3 shows the wounds PW1 sustained. Again, the medical report tendered and marked as exhibit E corroborate the fact that PW1 sustained cutlass wounds on her head. Further the uncontroverted evidence of PW2 on how the attackers chased them and in the process accosted PW1 confirm the fact that PW1 was attacked and in the process the attackers took away her motorbike and money. In the process of the attack on PW1, the attackers succeeded in using force to steal the motorbike in her custody as well as her money. All these pieces of evidence have not been denied and the court has no reason to believe them. From the evidence so far adduced in this court 23 there is no doubt that PW1 was robbed on 3rd December, 2022 at dawn. The question that is begging for answer is the identity of the people who caused the attack and succeeded in robbing PW1. Who caused this heinous crime to the victim? 61. A1 and A2 are facing the inchoate offence of conspiracy to commit the offence of robbery. I have discussed the law on conspiracy and as such it is my duty to find out whether the evidence available to this court can support conviction of A1. In doing so, I must put on record that, the identity of the accused person at the scene of crime is critical in the resolution of this case. The defence of A1 is that, he was not with A2 at the dawn of the incident and that he could not have been at the scene of the crime. However, PW1 (victim of the robbery) evidence is that she saw A1 and he took part in the robbery. The evidence of PW1 and A1 are all under oath and there is the need to assess the evidence critically to come to a conclusion. See the case of Lutterodt v Commissioner of Police [1963] 2GLR 429, SC. 62. I now proceed to discuss the identity of A1 as a key element in the offences charged. In criminal trials it is just not enough to state that the offence has been committed without linking the accused person to the commission of the crime. The determination of this element in one way or the other will have significant impact on the case. The question of conviction or acquittal depends on this salient element in respect of all the counts. In Razak and Anor v The Republic (J3/6 / 2011) delivered on 25th April 2012. The Supreme Court delivered itself as follows: “In every criminal trial it is not only necessary for the prosecution to prove the commission of the crime, but also to lead evidence to identify the accused as the 24 person(s) who committed it. That was of a very crucial importance for a proven case of mistaken identity is a good ground for reversing a conviction for a crime on appeal. Thus where the ground of appeal bothers on mistaken identity, a trial or appellate Court ought to carefully examine the evidence on it. A judge is to guide himself by considering factors such as the period of time over which the witness saw or observed the accused (appellants in this appeal), the conditions in which the observation was made, whether or not the area or vicinity was lit to make the observation possible, the distance between the witnesses and the appellants, or whether or not the description by the prosecution witnesses agreed with that of the appellant(s). On this see the guidelines by Lord Widgery CJ in R v Turnbull [1977] QB 224. The identification may take various forms. In ‟Phipson on Evidence‟ (10 th ed.) p 170 paragraph 1381, it is stated: ‘When a party’s identity with an ascertained person is in issue, it may be proved or disproved not only by direct testimony, or opinion evidence, but presumptively by similarity or dissimilarity of personal characteristics: e.g. age, height, size, hair, complexion, voice, handwriting, manner, dress, distinctive marks, faculties, or peculiarities including blood group, as well as of residence, occupation, family relationship, education, travel, religion, knowledge of particular people, places, or facts, and other details of personal history” 63. Where there is identification crises as to whether the accused person was the one who was at the scene of crime and actually took part in the commission of the crime, the court must assess the evidence well and in case of doubt it must inure to the benefit of the accused person. It is therefore my duty to find out whether such evidence exist in this case to point to an irresistible conclusion that it was the 1st accused person herein who was at the scene of crime with A2 who is now at 25 large to commit the offence of robbery. It must be borne in mind that A2 was not arrested by the Police for him to be charged. 64. In the normal scheme of affairs the 1st accused person could have filed alibi for it to be investigated by the Police under section 131 of Act 30. This failure or refusal to file alibi does not lessen the burden of proof on the prosecution to prove its case beyond reasonable doubt even if the alibi filed is weak or fails. See Bediako v The State [1963] 1GLR 48 SC. In the case of Afwireng v The Republic [1972] 1 GLR 270 it was held that where the court does not call upon an accused person to give a notice of alibi when such a defence exist, and the prosecution also does not call the attention of the court to the requirement to the requirement and does not apply for the particulars of the defence of alibi to be given, such failure does not make it impossible for the court to believe the accused person or to exclude evidence of alibi. 65. In the instant case before me, the court did not draw the 1st accused person attention of the defence of alibi and he did not also file alibi though represented by counsel. From the authorities, this cannot preclude the court in considering the defence of alibi as raised in the 1st accused person investigation cautioned statement, the charged statement and the defence he mounted in court that. he was not at the scene of crime as alleged. I will therefore examine the entire defence to find out whether it raises reasonable doubt in the case of the prosecution. 66. In the police statement of PW1 (exhibit L) nowhere did the victim state that she could identify the robbers when seen. There is no scintilla of evidence of PW1 on the identity of those who attacked her. The statement was given by the victim of 26 the robbery the same day the incident happened. The victim referred to those who attack her as two guys. I hereby reproduce the content of exhibit L for emphasis. “That yesterday 02/12/2022 I together with my friends went for a birthday party at King David Pub, after the party at about 4:00am I together with my friends were on motorbikes going home and on reaching Globe Guest House at Kpalsi one girl who was sitting behind me on my motorbike alerted us that there are two guys on a motor bike following us so we started speeding up and they also did same until they crossed me and then I fell from the motorbike. The guy removed cutlass and hit it on my head and demanded for my mobile phone and that of my bag. I told them that my phone is in my bag and they collected my bag together with cash sum of GHs 700.00 that was inside, he later hit my head three time and sped off with my brand new Houjoe motorbike with registration number M22 90-22. Later I detected that I was rather sitting on my phone so I quickly called on ambulance which they came and rushed me to Tamale teaching hospital for treatment.”(Emphasis supplied). 67. I am aware of the law that where the identity of an accused person is in doubt there is no better proof of the identity than the one who swears to have seen him commit the offence. See the case of; The Republic v Adu Boahen [1972] 1 GLR 70 CA which was cited in the case of Prosper Ameshinu v The Republic [2010] DLCA 7470. “Where the identity of an accused person is in issue there can be no better proof of his identity than the evidence of a witness who swears to have seen the accused committing the offence charged. Dicta of Viscourt Haldane L C in Reg vrs Christie [1914] AC” 27 68. The victim in her testimony under oath stated that she saw 1A during the attack on her. When PW1 was given another opportunity to submit further statement to the Police after the arrest of A1, PW1 stated in her further statement to the Police (exhibit M) as follows: I was riding on Hoajoe Dash 5 with Registration Number 5474-M-22. On reaching Hajj Gold Guest House at Kpalsi we were chased by two boys riding unregistered Apsonic Kombien. They crossed me and took away my motorbike and my bag which I had GHs 700.00 in it. Whilst robbing me of my properties I raised my head and looked at their faces since the (sic) was street lights at the spot of the robbery and they didn’t cover their faces. I saw them very well and that made them cutlass on my head and I fell off and the (sic) went away with my motorbike. (Emphasis supplied). 69. It must be noted that exhibit M quoted supra was written down on 21st February 2023, after PW1 had met A1 at the Agric traffic light, Tamale and caused his arrest. At the time of writing exhibit M, PW1 had already seen A2 and A1 through the intervention of some area boys she employed to assist her find those who attacked her and took away her motorbike. It must be emphasized that exhibit M was written almost a year after the robbery incident. 70. The circumstances leading to the arrest of A1 and how PW1 and the area boys contacted soothsayers and used unorthodox procedure to find out whether he took part in the robbery or not cannot stand the legal test. The court does not deal with visions, soothsaying, predictions and spiritism in arriving at conclusions. The court deals with empirical and hard core evidence. This is a time tested and proven 28 way in arriving at decisions in court. The evidence on the circumstances leading to the so called confession by A2 who was arrested by the area boys upon the identification of him by PW1 in a picture showed to her is so bizarre that putting any evidential value on exhibit M will not serve any useful purpose. The description made by PW1 at that time is suspicious because she had at that time seen A1 and A2 after the robbery incident as stated supra. 71. In cross-examination, PW2 who was following A1 and actually alerted her friends of the guys following them admitted that, she cannot identify those who attacked PW1 since the place was dark. Hear PW1 in cross-examination. Q: What was visibility like at the time of the robbery? A: It was still dark. I saw one in a flash when he turned his head. Q: By seeing the person in a flash you could not have made him out the next day? A: Yes. 72. This piece of evidence from PW2 is consistent with her statement to the police on the date of the incident which was admitted in evidence and marked as exhibit N. I hereby reproduce the relevant portion. “…we were going home after the party at about 4:00pm (sic) at Gbolo Kpalsi- Tamale I saw two guys on a motorbike chasing us so I alerted my two friend who were riding in front of me and we started speeding, the guys came and passed me and crossed my friend Kadija. I then saw one of them removed cutlass and I stopped 29 then turned backwards and quickly branched of the road to hide myself. So what happened next I do not know and more also I cannot identify them”. 73. The evidence of PW1 that, there was street light at the scene of the robbery and that made her identify the accused person runs contrary to the evidence of PW2 that the place was still dark. It further contradicts the evidence of PW3 who admitted in cross-examination that, he did not see any street lights at the scene of crime. Hear the Police investigator in cross-examination. Q: Who took you to the scene of crime? A: The complainant. Q: Tell the court the distance between the scene of crime and Hajj Guest House? A: About 150 meters. Q: Tell the court if there is road at the scene of crime? A: There is a road that motors use. Q: Is there street light at the scene of crime? A: I did not see street light there. 74. The evidence of PW2 who was also at the scene of crime at that time was corroborated by PW3 the Police investigator who also visited the scene of crime and informed the court that he did not see any street lights there. 75. The pictures produced from the scene of crime (exhibits K, K1, K2 K3 and K4) are consistent with the sworn testimony of PW2 and PW3 that the place was dark and 30 had no street lights as the pictures did not show any street lights at the scene of crime. These pieces of evidence sharply contradict PW1 evidence and for the fact that it was PW1 who led PW4 to the scene of crime and the pictures taken, this court cannot make a finding of fact that the scene of crime had light or visibility was good such that PW1 could identify A1 she had never met till the date of the crime. The mere fact that PW1 did not describe A1 and A2 in her statement to the police or give any indication that she could identify those who robbed her makes her evidence in exhibit M about the identity of A1 after she had already seen him suspicious. Exhibit M was authored after PW1 caused A1 arrest. Therefore any description of A1 by PW1 in exhibit M after seeing him without more cannot be said to be untainted. 76. I must also put on record that DW3 the police investigator who initially was the case officer in his evidence in court had this to say on what PW1 told him about the identity of those who attacked her. The description was given by PW1 to DW3 at the time she had not seen PW1. Here him; “That the one ridding the motorbike was tall and stout and was wearing a yellow Jalabiya but did not see his face and that she could not describe any facial features of the rider but she only saw his back. The complainant described the pillion rider as fair and not too tall but cannot identify him by face. The complainant added that where the robbers accosted them was a little dark.” 77. In cross-examination of DW3 by counsel for the Republic DW3 informed the court that PW1 informed him that A1 was with the area boys when A1 was arrested and when he asked her then why did she not point out A1 as one of the guys who 31 robbed her, this made PW1 doubt his investigations. I hereby reproduce the cross- examination. Q: You recall that A1 did not tell you that he met PW1 prior to his arrest and she could not point A1 out. A: Honestly, when I interacted with PW1 at the time she told me A2 had been arrested and was moving from one mallam to another, A1 was with them on the movements. I asked PW1 that if indeed A1 was with you moving from one mallam to another, why was A1 not pointed out as one of the armed robbers. This made PW1 had doubts in the investigations. 78. These pieces of evidence corroborate the evidence of DW1, DW2 and the 1st accused person that A1 was present when PW1 came with the Aluta boys to arrest A2 and thereafter A1 accompanied them to consult the mallams and ended up with them in A2’s father house. Indeed if PW1 really knew the identity of A1 as one of the armed robbers, why did she not cause his arrest or point him out throughout her encounter with him and the area boys? It must be recalled that DW2 asked PW1 to look through if indeed she can identify A2 accomplice but she could not point A1 out though he was present there. In fact the pieces of evidence so far adduced by the accused person and his witnesses raise reasonable doubt on his identity in the commission of the crime. 79. I would have given PW1 evidence purporting that A1 was part of the guys who attacked her another chance of serious consideration if PW1 memory of recovery of events was consistent and reflective of the uncontroverted facts of the case but the inconsistencies in her evidence proves otherwise. PW1 in exhibit L gave her 32 motorbike number as M 22 90- 22 and in cross-examination as well as in exhibit M (further statement) she gave the registration number of her motorbike as 5474-M- 22. All these numbers turned out not to be the correct number of the motorbike. 80. Again PW1 in exhibit L claimed that she had a pillion rider at the back of her motorbike but her evidence-in-chief as well as the evidence of PW2 contradicted that piece of evidence. No wonder PW1 asserted in cross-examination that exhibit L being her own statement to the police is not entirely what transpired at the dawn of 03/12/2024. Hear PW1 in cross-examination. Q: Do you believe the statement you have read in court marked exhibit 1 is what actually happened on the day you were allegedly attacked. A: Not entirely. 81. I agree with learned counsel for the Republic submission that, once the accused person is proven as not the owner of the items robbed or stolen, the offence is made out and the failure to identify the real owner is immaterial in respect of that element. I have only made reference to these inconsistencies in the testimony of PW1 in assessing her credibility and ability to recall events and not as to whether she is the true owner of the robbed motorbike. Her mere possession of the motorbike at the time she was dispossessed off suffice. 82. On this same identity crises, the evidence of A1 is that when PW1 and the Area boys were looking for A2, he was with the area boys but PW1 did not point him out as one of the guys who attacked her. He further added that, he was with the group of young men who took A2 to his father’s house in the company of PW1. 33 The 1st accused person evidence was corroborated by DW2 who was instrumental in getting A2 arrested and also instructed that they consult soothsayer to find out whether A2 was among those who robbed PW1. His evidence on the area boys consulting mallams was corroborated by the evidence of A1 as well as the evidence of the first investigator of the case. There is equally no doubt that A2 was arrested by the area boys to the knowledge of PW1 but due to the nefarious activities of such groups including the area boys, PW1 could not invite the police to effect A2 arrest. PW1 in her own evidence stated that the area boys even seized her mobile phone and told her not to call the police. 83. In cross-examination of DW2 by counsel for the Republic, DW2 evidence was not impeached. He was resolute in his answers and I have no reason to doubt his credibility. His evidence is that when PW1 came with the area boys to inquire about A2 at their base, A1 was sitting with them and he as well followed them to A2’s father house. In all these activities, PW1 was present yet PW1 did not identify or point out A1 as part of guys who attacked her at the dawn of 3rd December 2022. 84. A1 evidence that he was present throughout the time A2 was arrested and taken to his father’s house has been corroborated by DW2 who in one way or the other assisted PW1 in her quest to get those who attacked her arrested. Though DW2 and his group as well as PW1 used unorthodox modus operandi in getting A2 implicated in the crime, I have no reason to doubt the evidence of DW2 in court. 85. For the fact that there is a finding of fact that the area where the robbery took place was dark and visibility poor per the prosecution witnesses and coupled with the fact that PW1 did not give a scintilla of information on the identity of her attackers when the matter was fresh in her mind, as well as other findings of fact made in 34 this case, this court on the strength of the Razak And Anor v The Republic supra case is unable to say that the identity of A1 as particeps criminis has been proved beyond reasonable doubt. The description given by PW1 in exhibit M and her evidence-in-chief after the arrest of A1 are suspicious and I dare say that they are a clear case of afterthought. The evidence connecting A1 to the offence on 3rd December, 2022 is weak, unsupported and does not satisfy the onus of proof beyond reasonable doubt. The 1st accused person defence that he was not at the scene of crime and could not be identified by PW1 when she met her sitting with the area boys raise reasonable doubt in the prosecution case and I so hold. 86. Counsel for the Republic did her best in pointing out the inconsistencies in the accused person defence and that of his witnesses and I cannot close my eyes on them. However, these inconsistencies as juxtaposed to the evidence adduced by the prosecution cannot make the case of the prosecution any better in meeting the required standard of proof beyond reasonable doubt. It is the law that in criminal trial where a court does not believe the story or explanation of an accused person, the court should nevertheless go ahead to consider whether that explanation is reasonable when considered together with the evidence on the record as a whole before deciding on the guilt of the accused person. See R v Abisa Grunshie [1955] 1 WALR 36-WACA. See also The Republic v Francis Ike Uyanwuni [2013] 58 GMJ 162 CA. The defence mounted by A1 though had some inconsistencies, raises reasonable doubt in the case of the prosecution. 87. I am not unaware of the law that minor inconsistencies that do not affect the substance of the evidence of a party may be ignored by the Court however, in this instant case the inconsistencies touch the very core of the case as to the identity of A1 as particeps criminis and I cannot ignore them. A mistaken identity in a 35 criminal trial if it is in real doubt must inure to the benefit of the accused person. See the case of Razak and Anor v The Republic supra. 88. There is also uncontroverted evidence that PW1 was unlawfully attacked by two men one of whom was wielding cutlass at the dawn of 3/12/2022. There is enough evidence on record that, the attackers succeeded in causing harm to PW1 and in the process the attackers used force to take PWI motorbike and her bag containing GHs 700.00 from her. That in the course of the attack, PW1 suffered cutlass wounds on her head. Exhibits D series as well as the medical report give pictorial and vivid description of the injury PW1 sustained in her head and there is no doubt about that. The attackers bolted with their booty after the harm. The pieces evidence as produced in court on the attack on PW1 have not been challenged and they have been proved beyond reasonable doubt. 89. The only element in the offences as charged which is limbo is whether it was A1 who conspired with A2 to rob PW1. The spirited defence mounted by A1 raised reasonable doubt in the case of the prosecution. 90. I find A1 not guilty of the offences charged and I hereby acquit and discharge A1 on all the charges. A2 was not tried in absentia and I have no authority to pronounce on him as to whether he is guilty or not. I urge the police to look for him for due process to follow. I hereby order the police to release the motorbike of A1 to him forthwith. SGN ERIC ANSAH ANKOMAH JUSTICE OF THE HIGH COURT 36 TAMALE. 37