USMAIN AND VRS. REPUBLIC (CR/0383/2023) [2024] GHAHC 276 (26 June 2024)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON WEDNESDAY THE 26TH DAY OF JUNE 2024 BEFORE HER LADYSHIP JUSTICE MARY M.E YANZUH JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SUIT NO: CR/0383/2023 1. MUSAH USMAIN A1/APPELLANT 2. IBRAHIM ABDUL RAHMAN VRS THE REPUBLIC REPUBLIC /RESPONDENT ===================================================== JUDGMENT The A1/Appellant herein and A2 were arraigned before the Accra Circuit court upon a charge sheet filed at the Registry of the Court on the following charges: Count one: Conspiracy to commit crime to wit Stealing contrary to Sections 23 and 124(1) of Act 29/60. The A1 was the one charged under this count. Count Two: Stealing contrary to Section 124(1) of Act 29/60. The A1 was charged under this count. 1 Count Three: Dishonestly Receiving contrary to Section 146 of Act 29/60. A2 was charged under this count. Count Four: Conspiracy to commit crime to wit causing unlawful damage contrary to Section 23(1) and 172 (1) (b) of Act 29/60. Both A1 and A2 were charged under this count. Count five: Causing unlawful damage contrary to Section 172 (1) (b) of Act 29/60. Both A1 and A2 were charged under this count. After a full trial, the court found that the prosecution has been able to prove the guilt of the accused persons and convicted them and sentenced them as follows: A1: COUNT 1: 3 years in prison IHL and a fine of 400 penalty units in default 2 years imprisonment. Count 2: 3 years imprisonment IHL and a fine of 400 penalty units in default 2 years imprisonment. Count 4: 2 years imprisonment IHL and a fine of 300 penalty units in default I year imprisonment. Count 5: 2 years imprisonment IHL and a fine of 300 penalty units in default 1 year imprisonment. A2 was sentenced as follows: Count 3: 2 years IHL and a fine of 300 penalty units in default 1 year imprisonment. 2 Count 4: 2 years IHL and a fine of 300 penalty units in default 1 year imprisonment Count 5: 2 years IHL and a fine of 300 penalty units in default 1 year imprisonment. It is against this judgment that the A1/appellant filed the instant appeal on the 11th of August 2023 which petition of appeal was amended on the 21st of November 2023 appealing against the whole judgment of the trial Circuit court dated the 13th of July 2023. FACTS OF THE CASE The case of the prosecution as presented to the court was that the complainant Banabas Cudjoe is the Internal Auditor of Yadco Ghana Limited and resident at Awudome Estate. Al is a Vulcanizer and A2 a Scrap dealer all resident at Kanda and Sabon Zongo, Abosey Okai respectively. The prosecution states that on or about the 17" day of August, 2021, Al and one Alhaji M.A. Timbila alias Zaaki now at large, hatched up a plan to sell some of industrial equipment belonging to Yadco Company around Papaye area along the Accra Tema Motorway without the consent of management of the company, in order to share the proceeds. In furtherance of the said plan, Al in the company of A2, on 20th August 2021 sneaked into a part of the premises of the company, where the company had two (2) giant galvanized Silos erected. Having entered the yard, Al who had no relationship with the said company, claimed ownership of the two Silos and in collaboration with the said Alhaji M.A. Timbila alias Zaaki now at large, Al sold the silos as scrap metals to A2 at a paltry sum of Thirty Thousand Ghana Cedis (Gh¢30,000.00). A2 agreed to the sale and paid the said amount to A1. Al and the said Alhaji M.A. Timbila 3 alias Zaaki shared the proceeds from the sale. Thereafter, Al and A2 used industrial gas welding/ cutting machine gun and cylinder bottles filled with industrial gas and cut down the two Silos, thereby causing extensive damage to same. The falling Silos landed on four concrete pillars on site damaging same. A2 then undertook to cut the damaged Silos into pieces in order to cart same away as scrap. However, the loud noise from the fall of the two Silos, attracted people to the scene and a report was made to the Police who responded and arrested A2 and subsequently A1. However, the said Alhaji M.A. Timbila alias Zaaki is at large, After investigation, the two accused persons were charged with the offences and arraigned before Court whilst efforts are being made to apprehend the said Alhaji M.A, Timbila alias Zaaki now at large. GROUNDS OF APPEAL: The grounds of appeal are as follows: (a) The conviction is a miscarriage of justice (b) The conviction is against the weight of the evidence adduced at the trial. (c) That the trial judge erred in holding that a prima facie case had been made against the accused person/appellant even though the police investigator stated that investigations into the matter were not concluded/finished. (d) That the trial judge erred when he failed to consider the defence put up by the accused person/appellant to the offences charged. (e) That the sentence imposed on the appellant was excessive and too harsh. 4 (f) The learned trial Judge erred in law and fact when he held that the Prosecution was successful in proving all essential elements of the offences against the Appellant. The court gave orders for the parties to file their written submissions. Counsel for the A1/Appellant filed his written submissions on the 23rd of February 2024 while the learned State Attorney filed her written submissions on the 25th of March 2024. RESOLUTION OF THE GROUNDS OF APPEAL GROUND A, B, C AND D The first four grounds of appeal shall be determined together as they seek to attack the conviction of the appellant herein. Also they are an invitation to the appellate court to examine the entire evidence on record to ascertain whether the trial judge’s finding that the prosecution has been able to prove a prima facie case against the appellant thereby calling upon him to open his case and also whether the trial court’s finding that the prosecution has been able to prove the guilt of the appellant herein was proper. COUNT ONE AND COUNT TWO CONSPIRACY TO COMMIT THE OFFENCE OF STEALING AND STEALING According to the prosecution in count one and two, the appellant herein and one Alhaji M.A Timbila also known as Zaaki at large agreed to act together to steal two galvanized silos valued at GHC300,000 the property of Yadco Ghana Limited and in count two the appellant and the said Alhaji Zaaki did steal the two galvanized silos the property of Yadco Ghana Limited. Section 23(1) of the Criminal Offences Act 1960, Act 29 provides that: 5 “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.” In the case of Francis Yirenkyi vrs the Republic (Criminal Appeal No. J3/7/2015) the Supreme Court stated among others that: “The effect of the Revised Edition Act, 1998 (Act 562) on the definition of the conspiracy came into focus. Whereas the old formulation in Section 23(1) of Act 29 required two or more persons to agree or act together for a common purpose, the new formulation requires them to agree to act together for a common purpose…and this new formulation in Section 23(1) of Act 29 is the law on conspiracy in Ghana…” His Lordship Dennis Dominic Adjei in his book Contemporary Criminal Law in Ghana at page 89 in deliberating on the definition of the offence of conspiracy to commit crime stated thus “At present, any charge of conspiracy must indicate that the persons who have been charged with the offence agreed to act together with a common purpose for or in committing or abetting a criminal offence and does not matter whether there was or without a previous concert or deliberation to commit an offence or abet the criminal offence” In the case of FAISAL MOHAMMED AKILU v THE REPUBLIC [2017-2016] SCGLR 444 Yaw Appau JSC stated on conspiracy under the current Ghanaian law as follows: “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 6 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… 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”. The law on stealing as per section 124 of Act 29 is that, “a person who steals commits a second degree felony.” The offence is then defined per section 125 to mean when that person “dishonestly appropriates a thing of which that person is not the owner." In given deeper meaning and explanation to this decision, it was held in the case of the REPUBLIC VRS MALLAM ALI YUSUF ISA suit No FT /MISC 2007 as follows, “For the offence of stealing to be constituted, therefore the relations, acts and intention to be proved in connection with the thing are: (i) That the person charged must not be the owner of it. 7 (ii) That he must have appropriated it and (iii) That the appropriation must have been dishonest. That the person charged must not be the owner of the thing alleged to be stolen. In the case of Republic vrs Halm and Another (1969) CC 155 C.A, it was held that “ On the issue of ownership… a charge of stealing is founded not on a relationship between the person charged and an identified owner but on the relationship between the person charged, and the thing alleged to have been stolen. Therefore the law only required proof that the accused was not the owner of the chattel. Thus In DOMENA V. COMMISSIONER OF POLICE [1964] G.L.R. 563, S.C. AT 566 it was held that: "The first essential ingredient of stealing therefore is that the person charged with the theft of a thing is not the owner of the thing, the subject- matter of the theft. Therefore if a person charged with stealing a thing pleads not guilty to the charge, the prosecution cannot under any circumstances succeed without proving either that the subject-matter of the charge belongs to the person in whom ownership of the thing is laid in the charge, or in the alternative that the defendant is not the owner of that thing. PW1 Banabas Cudjoe the internal auditor of the complainant company Yadco testified that the company has a yard on the Spintex road and at the yard is two silos. His evidence in his witness statement was that on the 20th of August 8 2021, he was at the office at North Industrial Area when the security officer stationed at the yard called him on phone that some people had unlawfully entered the company’s yard on the Spintex road and forcibly and unlawfully brought down two of the silos. PW2 the police investigator D/Inspector Richard Sagoe testified and tendered into evidence the Land Certificate of Yadco Company as exhibit F to show that the Company had acquired the said plot on which the silos were situated and also testified that the silos were for the company. The law is that, for the purposes of proving stealing, the prosecution need not necessarily prove that ownership of the subject matter is vested in the person named on the charge sheet as the owner. It is enough if the prosecution can prove that, ownership of the subject matter is not vested in the accused person. Therefore the fact that the subject matter of the theft which are the two galvinzed silos as stated on the charge sheet was for the complainant was proved to the right degree. This is more so when the appellant herein’s case is that it was Alhaji Zaaki a chief who asked him to take A2 to the land to sell the silos as scraps to him. THAT THE APPELLANTS MUST HAVE AGREED TO ACT TOGETHER TO APPROPRIATE THE GOODS, AND THAT THEY APPROPRIATED THE GALVINISED SILOS The next hurdle was for the prosecution to prove that, the person charged with the offence agreed to act together to appropriate the subject matter. In order words, the prosecution was required to demonstrate the said acts 9 undertaken by appellants in their quest to appropriate the said sums of money. The evidence led by the prosecution must clearly establish the agreement and acts of appropriation by the person/persons charged. Thus in BROBBEY AND OTHERS v. THE REPUBLIC [1982-83] GLR 608-616 at page 610 it was said that: “ by the provision of Act 29, s. 125, the essential elements of the offence of stealing were that; (i) the person charged must have appropriated the thing allegedly stolen, (ii) the appropriation must be dishonest, and (iii) the person charged must not be the owner of the thing allegedly stolen. Consequently a person could not be guilty of stealing unless he was proved to have appropriated the thing in the first place”. Section 122 of the Criminal Offences Act 1960 Act 29 dealing with acts, which amount to an appropriation provided in subsection (2) that: “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 some person may be deprived of the benefit of his ownership or of the benefit of his right or interest in the thing or in its value or proceeds or any part thereof” Writing on this section, P.K.TWUMASI IN HIS CELEBRATED BOOK, CRIMINAL LAW wrote at page 312 as follows: “to summarise, we may say that, there cannot be appropriation within the meaning of section 122(2) of the criminal code, 1960, Act 29 unless 10 1. There is evidence that, the accused not being the owner of the thing stolen took or moved or obtained the thing or did some act in respect of the thing 2. That the act whether it consisted of moving, taking, obtaining or dealing with the thing in any other manner was intended by the accused person to deprive some person of the benefit of his ownership or the benefit of his right in its value or proceeds, or any part thereof; the act and the intent together constitute the appropriation, and 3. The intent need not be to deprive any person permanently of his benefit of ownership etc. it s enough if the intent is to deprive some person temporarily of his benefit or right or interest in the thing appropriated” According to the PW1 when he went to the yard, he saw that the two silos mounted on their various stands in the yard had been forcibly brought down by the accused persons. He said that when the silos fell on the concrete pillars extensive damage was caused to the silos as the impact of the fall caused the silos to change in shape. According to the PW2 the accused persons and their accomplices used industrial gas wielding cutting machine gun and cylinder bottles filled with industrial gas to cut down the two silos. He added that the accused persons had moved the two silos from their original position to another location within the yard with the plan of cutting them into pieces to be conveyed as scraps. He said that the silos landed on four concrete pillars on site with a very loud noise which attracted large people to the scene for them to make a report to the police. In exhibit A the caution statement of the appellant herein, he stated that he sold the two silos to the A2 for the price of GHC30,000. His story to the police was that it was one Alhaji Zaaki the development Chief of Tse Addo King Ayitoba palace who owns the land on which the silos was situated and the said 11 Zaaki informed him that he wanted to develop the area and wanted to clear the land and remove all the structures on the land so he sold the silos to A2 as scraps. In his further caution statement exhibit A1, he added that Alhaji Zaaki informed him that the land and everything on it was rented by Ga Adangbe Land Adminstration to some German national who has vacated the land because their rent had expired and that was the reason why he sold the silos and had same cut down. The case of the appellant at the trial was not different from his statement given to the police. At the trial, he stated that “ I was sent by one Chief by name Alhaji Zhaki. I am a scrap dealer so he called me that he has scrap to sell so I went and called A2 who deals in scraps and took him to the Chief. The chief asked me to take A2 to see the scraps. I told him that I don’t know where the land is so he sent someone and the person took me to the land…it was priced to the tune of thirty thousand Ghana cedis (GHC30,000.00) So Alhaji asked me to collect the money and bring it to him in his office. So I collected the money and gave it to Alhaji Zhaki” The prosecution having asserted and led evidence to show that the silo was the property of Yadco Company and the accused having raised the defence that the said land was for the said Alhaji Zaaki and some chiefs who had given him authority to sell the said land, the appellant herein needed to lead evidence on the defence he is asserting. He called DW1 Francis Nii Adjei Akporh Obedeka who testified that the land on which the silos were located belongs to the Numo Mmashie family of Teshie and covered by a judgment civil appeal 4980 delivered in 1982. He tendered said judgment as exhibit 1. He added that the family engaged Alhaji Zaaki to clear the land on which the silos were situated and the appellant 12 herein was invited to assist him with the express consent of the family. Firstly there is no evidence on record showing that the land on which the silos were located is part of the land described in exhibit 1. Even if it were, the judgment of the court is that the Numo Mmasi family was entitled to compensation in respect of the land acquired for the TV station. Further to that the exhibit 2 which is a newspaper report written by one Ing Surv. Samuel Larbi Darko commenting on certain judgment of the courts is not a court order ordering the Numo Mmasi family recovery of possession of the land on which the silos were positioned. Moreover the silos are not the property of the said family or the appellant herein. Per this evidence there is no gainsaying the fact that, the appellant not being the owner of the silos with the intent to permanently deprive Yadco of the benefit of its ownership in the galvinsed silos, dealt with them by selling same to the A2. The fact of appropriation is manifested by the lack of any evidence that he would have accounted to the owner of any gains or proceeds gained from the sale. The appropriation or the taking of the goods was clearly dishonest as the evidence notes that same was done without the consent of the PW1 the owner of those goods. This is so because per section 120 (1) dishonest appropriation implies an appropriation “made with an intent to defraud or 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 some person for whom he is trustee or who is owner of the thing, as the case may be, or that the appropriation would, if known to any such person, be without his consent. 13 In the case of AMPAH AND ANOTHER VRS THE REPUBLIC (1976) 1 GLR 403, the appellants were convicted of stealing. On appeal, their appeal was dismissed because there was enough evidence of dishonesty, appropriation and property belonging to another. The court indicated that there are two kinds of dishonest appropriation: an appropriation made without a claim of right, and an appropriation without the consent of the owner. The court further held that proof of either one would be sufficient evidence of dishonest appropriation. The company Yadco or any of its officials did not consent to the sale of the silos to the A2. I therefore find that the prosecution was able to prove the guilt of the appellant on count one and count 2 that is the offence of conspiracy to steal and stealing. COUNT FOUR AND FIVE CONSPIRACY TO COMMIT THE OFFENCE OF UNLAWFUL DAMAGE AND CAUSING UNLAWFUL DAMAGE. Section 172 (b) of Act 29/60 provides for the law on causing unlawful damage. It provides that: “(1) A person who intentionally and unlawfully causes damage to property (a) to a value exceeding one million cedis commits a second degree felony.” In the case of Homenya v The Republic [1992] 2 GLR 305-319 in the head notes the ingredients of the offence of causing unlawful damage were outlined that: “an accused could only be liable on a charge of unlawful damage to property under Section 172(1) of Act 29 where the prosecution was able 14 to establish not only that the accused caused the damage intentionally but also that the damage was caused unlawfully. From the evidence on record, the appellant herein sold the silos to the A2 for same to be used as scraps. As such the A2 and his group of men cut down the silos thereby causing damage to it. I must state that the evidence on record proves satisfactorily that the Appellant herein and the A2 agreed to cause damage to the silos. There is however no evidence on record to show that the Appellant herein engaged in the cutting down of the silo as the PW2 in his paragraph 7 of his witness statement outlined the names of the men who with A2 cut down the silo. The general principle of law on causation was espoused by P.K Twumasi in his book Criminal Law in Ghana at page 93 that: “it is only fair that the punishment prescribed by the law must be inflicted always on the person or persons who may be responsible directly or indirectly for the physical result of human conduct which the law seeks to prohibit. Conversely no one must be punished for a crime which he has not committed” It is trite learning that a person of matured and sound mind is by law presumed or considered to have intended the natural consequences arising from his/her act or conduct unless the evidence adduced proves that conclusion not to be so. The law presumes that an accused person intended to cause an event if it would have appeared to any reasonable person that if he did not use reasonable caution and observation there would be great risk of his act causing or contributing to cause that event which in this case is damage to the foundation. See Section 11 of Act 29/60. As such the appellant herein 15 and A2 conspired to cause damage to the silos and A2 caused damage to the foundation. If the accused person’s act was intentional, was it lawful? “ In the case of Homenya cited above supra, it was stated that: “Section 174 of Act 29 provided inter alia, that for an event to constitute an unlawful damage, it was essential that the conduct of the actor should be capable inter alia of landing him in civil liability. Accordingly, where an accused claimed ownership of the property in dispute and contended that he destroyed it because it was his, as in the instant case, the prosecution had to establish that the appellant had no such claim to the property by showing that the trees were within the complainant’s land. ? The appellant herein and the A2 agreeing to cut down the silos and the A2 going ahead to cut it down with his hired men when they had no ownership rights in same constituted an unlawful act. I therefore from the evidence led find that the prosecution was able to prove the guilt of the appellant on count four. There was however no evidence to prove that the appellant indeed caused damage to the silos. The trial judge properly considered the defense of the appellant herein and properly delivered himself on counts 1, 2 and 4. GROUND H The sentence is harsh and excessive under the circumstances. The punishment for stealing as per Section 124 of Act 29/60 and Section 296 of Act 30/60, a person convicted of the offence of stealing is liable to a term of 16 imprisonment not exceeding twenty-five years. The law provides that where two or more persons are convicted of the offence of conspiracy to commit an offence and the offence is committed, they are punished for that criminal offence but where the criminal offence is not committed, they are punished as if each had abetted that criminal offence. Section 24(1) of Act 29 provides that: “(1) Where two or more persons are convicted of conspiracy for the commission or abetment of a 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.” Section 172 (b) of Act 29/60 provides for the law on causing unlawful damage. It provides that: “(1) A person who intentionally and unlawfully causes damage to property (a) to a value exceeding one million cedis commits a second degree felony.” Section 296 (2) of Act 30/60 provides that: “ Where a criminal offence which is not an offence mentioned in subsection (5), is declared by an enactment to be a second degree felony and the punishment for that offence is not specified, a person convicted of that offence is liable to a term of imprisonment not exceeding ten years. Thus the trial judge was within the limits of the law when he sentenced the appellant to the sentences stated supra. I have however considered the fact that the silos were not completely cut into scraps as intended and the complainant did not completely lose it. It is the view of this court that this is a factor that the trial judge should have taken 17 consideration of. I have considered the entire circumstances of the case particularly the evidence led during the trial. I have also considered that the appellant is in a youthful prime age and this is their first brush with the law. The youthfulness of an accused person and the fact of the person having had just his first brush with the law are factors which trial courts are also mandated to consider as possible mitigating factors. Youthfulness itself induces leniency in the eyes of the law as the court takes the position that there are a lot of life lessons to be learnt by persons in their youthful years. Going by the above, the sentence of : COUNT 1: 3 years in prison IHL and a fine of 400 penalty units in default 2 years imprisonment is substituted with a sentence of one (1) year IHL. Count 2: 3 years imprisonment IHL and a fine of 400 penalty units in default 2 years imprisonment is substituted with a sentence of one (1) year IHL. Count 4: 2 years imprisonment IHL and a fine of 300 penalty units in default I year imprisonment substituted with the sentence of one (1) year IHL. The sentences will run concurrently and is to take effect from the 13th of July 2023 when the appellant was convicted. The conviction and sentence of 2 years imprisonment IHL and a fine of 300 penalty units in default 1 year imprisonment on count five is hereby set aside as I have found no evidence led in support of that charge. The appeal succeeds in part. PARTIES: 18 APPELLANTS PRESENT COUNSEL: PHOEBE AMPOFO OFORI WITH LOIS AGYEMAN AND ABDULAI MUSAH FOR THE PRESENT MENSIMA CRENTSIL FOR THE REPUBLIC/RESPONDENT PRESENT. MARY M.E YANZUH J. HIGH COURT JUDGE 19