Republic vrs Adamu and Others (D2/308/2023) [2025] GHACC 118 (20 May 2025)

IN THE CIRCUIT COURT ‘1’ HELD IN ACCRA ON TUESDAY THE 20TH DAY OF MAY 2025 BEFORE HER HONOUR CHRISTINA EYIAH-DONKOR CANN (MRS.) CIRCUIT COURT JUDGE CASE NO: D2/308/2023 THE REPUBLIC VRS 1. ADAMU ABUBAKAR @ YOOBI 2. YAKUBU FULANI AT LARGE 3. JADJI FULANI AT LARGE JUDGMENT FACTS The first accused person (A1) was charged and arraigned before this court on the 16th May, 2023 together with two others who are at large on two (2) counts of offences namely: conspiracy to commit crime to wit: stealing contrary to contrary to sections 23 (1) and 124 (1) of the Criminal Offences Act, 1960 (Act 29) and stealing contrary to section 124 (1) of the Criminal Offences Act, 1960 (Act 29). The case for the prosecution is as follows: “The complainant, Lenus Addo is the General Manager for Madam Rosina Aryee, a cattle farmer at Danchira-Kasoa. Adamu Abubakar is a caretaker on the complainant’s farm living at Kasoa-Danchira. The 1st accused person, Adamu Abubakar alias Yoobi is a Fulani herdsman living at Kpalbi in the Northern Region. The 2nd and 3rd accused persons are accomplices currently at large. In the month of November, 2022, A1 was employed as a cattle herdsman at Kasoa Danchira by PW2 who lived with his family together with A1 on the farm. A1 was purposely employed to take the cattle for grazing at a monthly wage of GH₡300.00. A1 worked for about one and a half months with the complainant and on the 17th December, 2022, A1 took 1 forty (40) cattle for grazing but conspired with A2 and A3 now at large, to steal the cattle and bolted. The matter was reported to the Police. On 17th April, 2023, the Police gathered information about A1 at Diaso in the Ashanti Region. Consequently, A1 was arrested and brought to the CID Headquarters to assist investigations. On interrogation, A1 admitted and named A2 and A3 as his accomplices. After investigation, A1 was charged and put before this honourable court whiles efforts are underway to arrest his other accomplices.” THE CHARGES The charges preferred against the first accused person and on the basis of which he stands trial together with the particulars of the offences in this instant case are as follows: “COUNT ONE STATEMENT OF OFFENCE CONSPIRACY TO COMMIT CRIME NAMELY; STEALING CONTRARY TO SECTION 23 AND 124(1) OF THE CRIMINAL OFFENCES ACT 1960 (ACT 29) PARTICULARS OF OFFENCE 1. ADAMU ABUBAKAR @ YOOBI, AGED 18 YEARS 2. YAKUBU FULANI AT LARGE 3. JADJI FULANI AT LARGE:- For that you on the 17th day of December, 2022 at Danchira a suburb of Kaso in the Central East Region and within the jurisdiction of this court, you agreed to act together with a common purpose to commit crime namely; stealing. Plea of A1: Not Guilty. COUNT TWO STATEMENT OF OFFENCE STEALING CONTRARY TO SECTION 124(1) OF THE CRIMINAL OFFENCES ACT 1960 (ACT 29) PARTICULARS OF OFFENCE 1. ADAMU ABUBAKAR @ YOOBI, AGED 18 YEARS 2. YAKUBU FULANI AT LARGE 3. JADJI FULANI AT LARGE:- For that you on the 17th day of December 2022 at Danchira a suburb of Kasoa in the Central East Region and within the jurisdiction of this court 2 you and with the intent to commit crime did dishonestly appropriate forty (40) cows valued at GH₡360,000.00 the property of Madam Aryee.” THE PLEA The self-represented first accused person pleaded not guilty to the charges after they have been read and explained to him in Dagbani a language of his choice. The first accused person having pleaded not guilty to the charges puts the facts of the prosecution in issue and thereafter the prosecution assumed the burden to prove the guilt of the first accused person. THE BURDEN ON THE PROSECUTION AND THE DEFENCE In our criminal jurisprudence, it has always been the duty and obligation of the prosecution, from the outset of the trial, to prove and substantiate the charges levelled against the accused person to the satisfaction of the Court unless in a few exceptions. Under the Evidence Act, 1975 (NRCD 323), the burden of proof is divided into two parts, that is the burden of persuasion or the legal burden and the evidential burden or the burden to produce evidence. The burden of persuasion is provided for under section 10 (1) of the Evidence Act, 1975 (NRCD 323) as follows: “10 (1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court”. The burden of producing evidence is also provided under section 11(1) of the Evidence Act, 1975 (NRCD 323) thus: “11 (1). For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him in the issue”. Again, in criminal proceedings, what constitutes the facts in issue depends on any relevant presumptions and the allegations involved. Since the prosecution is asserting the above facts constituting the ingredients of the offences preferred against the 3 accused person, it is incumbent on it to establish that belief of the accused person’s guilt in the mind of this Court to the requisite degree prescribed by law. In other words, the prosecution has the burden of persuasion to establish the guilt of the accused person. When the prosecution has adduced the evidence to establish the essential ingredients of the offences preferred against the accused person which will cumulatively prove the guilt of the accused person, the court at the end of the case of the prosecution will have to decide whether the prosecution has discharged the obligation on it to establish the requisite degree of belief in the mind of the court that the accused person in fact and indeed is guilty of the offences preferred against him. Except in few instances, the measuring rod or the standard of proof for determining that the evidence adduced by the prosecution has attained the requisite degree is provided under sections 10 (2) and 22 of the Evidence Act, 1975 (NRCD 323). Sections 10 (2) and 22 of the Evidence Act, 1975 (NRCD 323) provide as follows: “10 (2). The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or non-existence of a fact by the preponderance of the probabilities or by proof beyond reasonable doubt. 22. In a criminal action a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond a reasonable doubt, and thereupon, in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to the existence of the presumed fact”. If this Court decides that the prosecution has failed to prove each essential ingredient of the offences preferred against the accused person beyond reasonable doubt at the end of the prosecution’s case, the accused person will have to be acquitted for he will be deemed to have “no case to answer”. But if this Court decides that each essential ingredient has been proved beyond reasonable doubt, then the accused person will 4 have to be called upon to put up his defence, because there will be an established presumption of guilt (a prima facie case) which he must rebut, if he does not want the presumption to stay, thus rendering him liable for a conviction. To use the language of section 11 (1) of the Evidence Act, 1975 (NRCD 323), the accused person will have on him the burden of introducing sufficient evidence to avoid a ruling against him that he is guilty of the offences charged. In other words, he has the burden of producing evidence. The apex court in the case of Asante No (1) v The Republic [2017-2020] I SCGLR 143- 144 explained the burden on the prosecution as follows: “Our law is that when a person is charged with a criminal offence it shall be the duty of the prosecution to prove his guilt beyond reasonable doubt, meaning the prosecution has the burden to lead sufficient admissible evidence such that on an assessment of the totality of the evidence adduced in court, including that led by the accused person, the court would believe beyond a reasonable doubt that the offence has been committed and that it is the accused who committed it. Apart from specific cases of strict liability offences, the general rule is that throughout a criminal trial the burden of proving the guilt of the accused person remains with the prosecution. Therefore, though the accused person may testify and call witnesses to explain his side of the case where at the close of the case of the prosecution a prima facie case is made against him, he is generally not required by the law to prove anything. He is only to raise a reasonable doubt in the mind of the court as to the commission of the offence and his complicity in it except where he relies on a statutory or special defence. See: Sections 11(2) 13(1), 15(1) of the Evidence Act, 1975 (NRCD 323) and COP v Antwi [1961] GLR 408.” However, proof beyond a reasonable doubt does not mean beyond a shadow of doubt as was stated by Lord Denning in the case of Miller vs. Minister of Pensions (1974) 2 ALL ER 372 AT 373 thus: “It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.” 5 This dictum emphasizes that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt or proof beyond every possibility. Lord Justice of the King’s Bench from 1822-1841, Charles Kendal Bushe also explained reasonable doubt thus: “…the doubt must not be light or capricious, such as timidity or passion prompts, and weakness or corruption readily adopts. It must be such a doubt as upon a calm view of all the whole evidence a rational understanding will suggest to an honest heart the conscientious hesitation of minds that are not influenced by party; preoccupied by prejudice or subdued by fear.” See also: Osei v. The Republic [2002] 24 MLRG 203, CA Abodakpi v. The Republic [2008] 2 GMJ33 Republic v. Uyanwune [2001-2002] SCGLR 854 Dexter Johnson v. The Republic [2011] 2 SCGLR 601 Frimpong a.k.a. Iboman v. Republic [2012] 1 SCGLR 297 Again, it must be emphasized that the proof by the prosecution can be direct or indirect. It is direct when the accused person is caught in the act or has confessed to the commission of the offences. Thus, where the accused person was not seen committing the offences, his guilt can still be proved by inference from surrounding circumstances that indeed he committed the said offences. See: Logan vs Lavericke [2007-2008] SCGLR 76 Headnote 4. Dexter Johnson vs The Republic [2011] 2 SCGLR 601 AT 605. State vs Anani Fiadzo (1961) GLR 416 SC. Kamil vs The Republic (2010) 30 GMJ 1 CA. Tamakloe vs The Republic (2000) SCGLR 1 SC. 6 It is very important to note that one fundamental legal principle pertaining to criminal trials in our jurisdiction as contained in paragraph (c) of clause (2) of article 19 of the Constitution is that: “19 (2) A person charged with a criminal offence shall- (c) be presumed to be innocent until he is proven or has pleaded guilty.” The Supreme Court also held on the presumption of innocence in the case of Okeke vs The Republic [2012] 2 SCGLR 1105 at 1122 per Akuffo JSC as follows: “…the citizen too is entitled to protection against the state and our law is that a person accused of a crime is presumed innocent until his guilt is proved beyond reasonable doubt as distinct from fanciful doubt.’’ An accused person therefore in a criminal trial or action, is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt, he is entitled to a verdict of not guilty. Bosso vs The Republic (2009) SCGLR 470 ANALYSIS OF THE CHARGE OF CONSPIRACY TO COMMIT CRIME Conspiracy is defined in section 23 (1) of the Criminal Offences Act, 1960 (Act 29) as follows: “23. (1) If two or more persons agree to act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet the criminal offence.” The prosecution must prove that the first accused person who has been charged with the offence agreed to act together with a common purpose for or in committing or abetting a criminal offence and it does not matter whether or not there was a previous concert or deliberation to commit an offence or abet the criminal offence. 7 The Supreme Court in the case of Faisal Mohammed Akilu v The Republic [2016- 2017] SCGLR 444 dated 5th July, 2017 per Yaw Appau JSC stated the current Ghanaian law on conspiracy 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 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 will 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 possible, 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.” So, for the prosecution to succeed in respect of conspiracy to commit crime, the prosecution must establish beyond reasonable doubt the following: 1. That there was at least two or more persons involved in the commission of the crime. 2. That there was an agreement to act together to commit the crime. 3. That the sole purpose for the agreement to act together was for a criminal enterprise to wit: stealing. See: Francis Yirenkyi v The Republic Criminal Appeal No J3/7/2015, delivered on 17th February, 2016. To secure a conviction on the charge of conspiracy, the prosecution is under a duty to prove that the first accused person did not only agree to commit the unlawful act but that they also had the requisite intention to do the unlawful act. See: Behome v. The Republic [1979] 1 GLR 112 (Holding 1). 8 The Republic v. Christiana Holdbrook and Dr. Redeemer Amegbo-Dela, Case No CR 335/2019, delivered on the 11th May, 2020. ANALYSIS OF THE CHARGE OF STEALING Under section 124 (1) of the Criminal Offences Act, 1960 (Act 29): “124 (1).A person who steals commits a second degree felony.” Section 125 of the Criminal Offences Act, 1960 (Act 29) defines stealing as follows: “125. A person steals who dishonestly appropriates a thing of which that person is not the owner.” Section 122 (2) of the Criminal Offences Act, 1960 (Act 29) defines appropriation of a thing as follows: “122 (2). 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 that person may be deprived of the benefit or the ownership, of that thing or of the benefit of the right or interest in the thing, or in its value or proceeds, or part of that thing.” Section 120 (1) of the Criminal Offences Act, 1960 (Act 29) provides thus: “120 (1). An appropriation of a thing is dishonest (a) if it is made with the intent to defraud or (b) if it is made by a person without claim of right, and with a knowledge or belief that the appropriation is made without the consent of a person for whom that person is a trustee or who is the owner of the thing or that the appropriation would, if known to the other person, be without the consent of the other person” This therefore provides three disjunctive criteria for determining dishonest appropriation. The first criterion is that of an appropriation made with intent to defraud. The second is an appropriation made without a claim of right and with a 9 knowledge or belief that it is without the consent of the owner of the thing or of the beneficiary for whom the appropriation is a trustee. The third criterion is where the appropriation if known to the owner or the beneficiary of the trust would be without his consent. See: The Republic vs. Nana Osei Kwadwo II (Supra). In order to succeed, the prosecution would have to establish beyond reasonable doubt: 1. That first accused person charged is not the owner of the forty (40) cattle allegedly stolen. 2. That the first accused person must have appropriated the forty (40) cattle. 3. That the appropriation of the forty (40) must have been dishonest. See: Criminal Law in Ghana, P. K. Twumasi, page 20 paragraphs 2. Ampah v. The Republic (1977) 2 GLR 175 CA. Republic v. W.M.Q. Halm and Ayerh Kumi (Criminal Appeal) No. 118/67 and 113/67, 7th August (1969) CC, 155 CA. Republic v. Nana Osei Kwadwo 11 (2008) 1 GMJ 42, SC. In the case of Ampah v The Republic (1976) 1 GLR 403 at page 412 it was said that: “If these three elements are proved to the satisfaction of the court, the court will be bound to convict unless the accused is able to put forward some defence or explanation which can cast a reasonable doubt on the case for the prosecution.” ANALYSIS OF THE EVIDENCE TO PROVE THE ELEMENTS OF THE OFFFENCES OF CONSPIRACY TO COMMIT CRIME TO WIT: STEALING AND STEALING The prosecution called three (3) witnesses in support of its case. The case for the prosecution was presented mainly by the complainant Lennox Addo as the first 10 prosecution witness (PW1) and supported largely by Fatima Shaibu as the second prosecution witness (PW2) and Chief Inspector Issah Ballu, the investigator in this case as the third prosecution witness (PW3). The prosecution also tendered in evidence the caution statement of the accused person as Exhibit “A”, the further caution statement of the accused person as Exhibit “B”, the charged statement of the accused person as Exhibit “C” and photographs of the stolen cattle as Exhibits “D”, “D1”, “D2” respectively. It is the evidence of PW1 who is a cattle farmer at Denkyira in Kasoa that on the 17th December, 2022 he had a call from Madam Rosina Aryee that she had a call from the caretaker of the cattle that the herdsman went out with the cattle to graze the previous day but had since not returned. He therefore reported the matter to the police at Kasoa and some police officers accompanied him to the cattle ranch and not a single cattle was found there. PW2 also testified that that her husband Abubakar Moro a cattle farmer was rearing a total of 40 cattle out of which about 23 of them belonged to one Madam Rosina. According to PW2, her husband needed a herdsman to assist him to take the cattle out for grazing so through the help of one Iddrisu, the services of the first accused person was engaged to take care of the cattle. According to PW2, they lived with the first accused person as a family member and maintained a good relationship with him. It is further the evidence of PW2 that on the 17th December, 2022, about 2:00 p.m. the first accused person took the 40 cattle out for grazing and never returned. They therefore informed Madam Rosina and others who owned some of the cattle which were taken out for grazing by A1 and the matter was referred to the police at Kasoa for investigation. PW3 the investigator in the case testified that on the 29th December, 2022, a case of conspiracy to steal and stealing reported by Lennox Addo against the first accused person was referred to him for investigation. According to PW3, PW1 stated that he 11 works with one Madam Rosina Aryee who is a livestock farmer precisely, a cattle rarer with her ranch at Kasoa Denkyira. That on the 12th December, 2022, she had a call from Madam Rosina to the effect that the accused person took the cattle for grazing but never returned. According to PW3, he was accompanied by other investigators to the scene of crime at Denkyira near Kasoa where Adamu Abubakar and PW2 were met. They stated that PW1 engaged his father to take care of 40 cattle and because his father is ageing coupled with his busy schedule, he engaged the first accused person through one Iddrisu to take care of the cattle for a fee of GH¢300.00 a month. The first accused person was given the 40 cattle to take care of them. On the 17th December, 2022, the first accused person took the cattle out for grazing and never returned. PW1 reported the matter to the Director General CID for investigation. During investigation, the first accused person was traced to his hideout at Diaso in the Western Region where he was arrested. He obtained caution, further caution and charged statements from the first accused person. In this case, after the court had ruled that, a prima facie case has been made against the first accused person, he exercised his option to open his defence. Indeed, the first accused person had the burden of producing evidence, sufficient enough in the light of the totality of the evidence to raise a reasonable doubt as to whether he conspired with the second and third accused persons who are at large to steal the forty (40) cattle on the 17th day of December, 2022, although he is not required to prove his innocence. See: sections 10 (1), 11 (2) and 3 of the Evidence Act, NRCD 323 See also: Ali Yusif (No.2) v The Republic [2003-2004] SCGLR 174 holding (2) The accused person in his defence denied ever conspiring with the second and third accused persons who are at large to steal the forty (40) cattle on the 17th day of December, 2022. In his defence, he stated that he was idle in the house at Kpalbi in the Northern Region and he called a friend of his known as Iddrisu of Asante Bekwai that he was looking for work to do. According to the accused person, he was in the 12 house one day when Iddrisu called to inform him that one man needed a herdsman to take care of his cattle at Kasoa Denkyira and further asked him whether he was interested and he answered in the affirmative. Iddrisu gave Mr. Adamu who happened to be the man who needed a herdsman’s mobile number to him and he called him and he met him in Accra. It is further the evidence of the first accused person that Mr. Adamu employed him to send twenty-three (23) cattle out for grazing at a monthly wage of GH₡300.00. He continued that Mr. Adamu gave him two conditions regarding the cattle which are that firstly, he should ensure that the cattle do not cause damage to anybody’s properties and secondly, he should not allow any of the cattle to go missing else, he will deal with him whilst he showed him a gun. The first accused person continued that for the first week, Adamu accompanied him to send the cattle out for grazing and showed him places that he could send the cattle out to graze. He sent the cattle out for grazing one month and a week alone and in the subsequent week, he was attacked by three unknown men in the bush who tied him, including his face and took the cattle away. He laid in the bush until the following morning when a lady came to his rescue. He walked to Kasoa and took a vehicle to Kpalbi. He later went to Kumasi to look for work and he stayed for three months. He subsequently relocated to Diaso where he was picked up by the police. I am now enjoined by holding (3) in the case of Lutterodt v the Commissioner of Police [1964] 2 GLR 429 SC at 480 to examine the defence of the first accused person as follows: “Where the determination of a case depends upon facts and the court forms the opinion that a prima facie case has been made, the court should proceed to examine the case for the defence in three stages: (1) Firstly, it should consider whether the explanation of the defence is acceptable, if it is, that provides complete answer, and the court should acquit the defendant; 13 (2) If the court should find itself unable to accept, or if it should consider the explanation to be not true, it should then proceed to consider whether the explanation is nevertheless reasonably probable, if it should find it to be, the court should acquit the defendant; and (3) Finally, quite apart from the defendant's explanation or the defence taken by itself, the court should consider the defence such as it is together with the whole case, i.e., prosecution and defence together, and be satisfied of the guilt of the defendant beyond reasonable doubt before it should convict, if not, it should acquit.” The accused person during his cross-examination of the prosecution witnesses and in his evidence-in-chief admitted that indeed some cattle were entrusted in his care to send out for grazing every day by one Adamu but the total number of cattle which was given to him by Mr. Adamu to send out for grazing was twenty-three (23) and not forty (40) as the prosecution would want the court to believe. The prosecution stated further that Adamu is also known as Dogo which the first accused person denied stating that, the person who employed him and entrusted the twenty-three (23) cows in his care to send out for grazing each day was one Mr. Adamu and not Dogo. The court was therefore expecting the prosecution to call Mr. Adamu, the one who personally employed the first accused person and entrusted the cattle into his care to send out for grazing to tell the court as to how many cattle he entrusted into the care of the first accused person but the prosecution failed to do so. In the opinion of this court, Adamu is a material witness since the first accused person has denied the prosecution’s assertion that he was entrusted with forty (40) cattle. In the case of Tetteh v. The Republic [2001-2002] SCGLR 848, the Supreme Court stated that: “As a general rule, the prosecution has the direction to present such witnesses as it elects to call in support of its case. But the discretion must be exercised in a manner that would further 14 the interests of justice and ensure fairness to the accused so that he does not suffer any disadvantage… the rule that the prosecution must call material witnesses becomes, therefore, an important qualification on the prosecution’s discretion. Whether or not a witness is a material witness depends on the quality and the content of the evidence he is expected to offer in relation to the case on trial. He will be deemed to be material if the evidence from him is deemed vital as to be capable of clearly resolving one way or the other an important and decisive issue of the fact that is in controversy. The evidence must appear likely to have a profound impact on the facts of the case to the extent that if it is acceptable as true it will compel the court to come to a conclusion that is different from the decision it has taken.” The Supreme Court in the case of Gligah v The Republic [2010] SCGLR 870, at holding 5 stated thus: “The Supreme Court would affirm as good law, the principles of law regarding the need for a party to call a material witness in support of its case.” This sound principle of law was reechoed by the Supreme Court in the case of Frimpong Alias Iboman v The Republic (supra). In the opinion of this court, the prosecution’s failure to call Adamu to confirm the prosecution witnesses assertion that the accused person was given forty (40) cows to send out for grazing and not twenty-three (23) was fatal to the prosecution’s case, injures the case of the prosecution and also makes the prosecution’s case incomplete. The testimony of Adamu was clearly vital in resolving one way or the other the important and decisive issue of the fact that is in controversy, which is whether or not the accused person was given forty (40) or twenty-three (23) to send out for grazing. The first accused person admitted in his evidence-in-chief, answers given under cross- examinations and statements given to the police that twenty-three (23) cattle were entrusted in his care by Adamu to send out for grazing each day and not forty (40) cattle. This court therefore finds as a fact that twenty three (23) cows were given to the first accused person to send out for grazing and not forty (40) as the prosecution would want the court to believe. 15 I now wish to determine whether the accused person is innocent or liable. I have already indicated that, it is the prosecution that is to prove his guilt. It is instructive to note that, the first accused person denied ever conspiring with the second and third accused persons who are at large to steal any cattle on the 17th December, 2022. In fact, in his evidence-in-chief, he sought to create the impression that he was attacked by three men in the bush who tied him including his face and took the cattle away. Interestingly, in his further caution statement (Exhibit “B”), he stated that the three men rather attacked him with weapons and took the cattle away. Excerpt from the accused person’s evidence-in-chief are as follows: “In the subsequent week, I was attacked by three unknown men at the point of grazing and I was tied by those men and they went away with the cattle. When they tied me, they tied my face and took the cattle away.” The accused person stated in part in Exhibit “B”: “It was in the first week of second month I took the cattle out to graze three Fulani men came to attack me with weapons and took the cattle away. They told me that if I resist they will shoot me.” Secondly, the accused person in his evidence-in-chief stated that because he was tied, he laid in the bush until the following morning when one lady came to his rescue. Surprisingly, no such lady was mentioned in his further caution statement (Exhibit “B”). The accused person in his evidence-in-chief stated thus: “I was lying in the bush for the whole night until the next morning when a lady came to my rescue.” Thirdly, the first accused person denied ever receiving one thousand Ghana cedis and a phone number from the alleged attackers who mentioned their names as Yakubu and Jadji whilst answering questions under cross-examination. Strangely, in his 16 caution statement, he admitted that the attackers gave him one thousand Ghana cedis (GH¢1000.00), gave him their MTN number and asked him to call them when he faces any problem and also heard them mention two of their names as Yakubu and Jadji. The following dialogue ensued between the accused person and PW3: “Q. Who are Yakubu Fulani (A2) and Jadji Fulani (A3)? A. Those are the people you said they tied you and took the cattle away? Q. I never mentioned A2 and A3’s names to you and that Fulani is a tribe not a name? A. You mentioned Yakubu and Jadji and they are all Fulanis and because they are Fulanis, I decided to add Fulani to their names. Q. I put it to you that I did not receive one thousand Ghana cedis (GH¢1,000.00) from the three (3) people who tied me up? A. You were given one thousand Ghana cedis (GH¢1,000.00) to use as transportation back home. Q. I also put it to you that I never took any phone number from the three (3) people who tied me up? A. You stated during interrogation that you have their phone numbers and that you have left the phone on which you have stored the number on with your wife after I asked you if you could give us the clue to trace them. Q. I put it to you that what you just told the court is not true? A. That is exactly what you told me.” Excerpts from the accused person’s further caution statement (Exhibit “B”) are as follows: “It was in the first week of second month I took the cattle out to graze three Fulani men came to attack me with weapons and took the cattle away. They told me that if I resist they will shoot me. They gave me GH¢1000.00 and drove the cattle away. I don’t know them. I only heard them mention their names as Yakubu and Jagjah. They gave me a telephone number an MTN number which I do not know off head to contact them if I am facing any problem. I have stored the number on my mobile phone but the phone is with my wife Khabliso at Diaso.” 17 It is obvious from the above dialogue that the first accused person has contradicted his sworn evidence as against his unsworn statement in Exhibit “B” and the law is that, where a case boils down to facts and credibility of witnesses, if the court takes the view that one side or the other is the truth then the accounts are mutually exclusive of each other. Once the court decides to believe with one side of the story it means the other side is a fabrication. See: Ansah-Sasraku v. The State (1966) GLR 294 at 298 SC. In the case of Kuo Den alias Sobti vrs The Republic (1989-90) GLR 203 at 213 it was held by the Supreme Court that material inconsistencies in defence put up by the accused person have been held to provide sufficient justification for the defence to be rejected. The law is also that a witness whose evidence on oath was contradictory of a previous statement made but him, whether sworn or unsworn was not worthy of credit unless he gave a reasonable explanation. See: section 76 of the Evidence Act, 1975 (NRCD 323). Yaro vrs The Republic [1979] GLR 10 where it was stated by the court thus: “A previous statement which was in distinct conflict with the evidence on oath was always admissible to discredit or contradict him and it would be presumed that the evidence on oath was false unless he gave a satisfactory explanation of his prior inconsistent statement. A witness could not avoid the effect of a prior inconsistent statement by the simple expedient of denial.” See: Bour v The Republic [1965] GLR 1 SC. Gyabaah vrs The Republic [1984-86] 2 GLR 461 CA. State vrs Otchere (supra). 18 In the case of Poku vrs The State [1966] GLR 262, the Supreme Court stated that: “The principle in the must cited case R v Harris [1927] 20 Cr. App. R, 144, is strict but not absolute. In this country it would expose the administration of criminal justice to ridicule if the testimony of the witness on oath were rejected outright because he is alleged to have made a previous unsworn statement which is in conflict with his evidence without carefully considering his account of the circumstances under which any such statement was made.” The court stated further that: “Since the witness in this case was not cross examined by the prosecution to explain why the two statements differed, his sworn statement should not have been ignored, but should have been accepted.” It is instructive to note that the accused person was cross-examined on the contradictions between his evidence-in-chief, answer given under cross-examination and further caution statement (Exhibit “B) yet, he could not give this court any satisfactory explanation. In one breath, he was attacked by three men with weapons. In another breath, three men tied him including his face and took the cattle away. On one leg, the three men did not give him any GH¢1,000.00. On another leg the three men gave him GH¢1,000.00 and asked him to run away. In one vein, he heard the three men mention two of their names as Yakubu and Jadji. In another vein, the three men did not mention any two names. On one hand, the three men gave him their MTN number and asked him to call them if he faces any challenges. On another hand, the three men did not give him any mobile number. Granted without admitting that the first accused person was indeed attacked in the bush and the cattle taken from him, the prudent thing that he should have done if he was scared to report the issue to Mr. Adamu who gave him the cattle was to go to the nearest police station and report, rather than run away to Kpalbi, Kumasi and then to Diaso where he was arrested. The first accused person could have also informed Iddrisu, the gentlemen who helped him to secure the job with Adamu to inform Mr. 19 Adamu about what had happened. He could have equally asked the lady who untied him the following morning, to accompany him to the police station to lodge a complaint or take him to Adamu to explain what she saw to him. The only inference that can be drawn from the conduct of the first accused person as explained above is that he acted together with A2 and A3 at large and also acted with a common purpose with A2 and A3 at large to steal the cattle. Therefore the inference that can be drawn is that the accused person conspired with A2 and A3 at large to steal the cattle. In the case of Logan v The Republic [2007-2008] SCGLR 76 @ 78, it was held by the apex court that in conspiracy charges, where there is no direct evidence, “ the conspiracy is a matter of inference, deduced from the certain criminal acts of the persons accused, done in pursuance of an apparent criminal purpose in common between them.” The first accused person failed to lead a shred of evidence to support his wild allegation in this trial. This court therefore finds the first accused person’s assertions that three men tied him in the bush and took the cattle away and Adamu threatened to deal with him when any of the cattle goes missing hence his inability to inform him about what allegedly happened in the bush are all afterthoughts calculated to throw dust into the eyes of this court and to avoid the axe of justice upon him and they will be taken with a pinch of salt. Under the Evidence Act, 1975 (Act 323) section 80 (2), the court is entitled to consider statements or conducts consistent or inconsistent with the testimony of witnesses at the trial to prove the credibility of witnesses. See: In State v Otchere [1963]2 GLR 463 Bour v The State [1965] GLR 1 Egbetorwokpor v The Republic [1975] 1 GLR 585, CA 20 In the case of Kyiafi v Wono [1967] GLR 463 at 467 C.A the court per Ollennu J.A. said that: "It must be observed that the questions of impressiveness or convincingness are products of credibility and veracity; a court becomes convinced or unconvinced, impressed or unimpressed with oral evidence according to the opinion it forms of the veracity of witnesses." A court has to test its impression as to the veracity or truthfulness of oral testimony of a witness against the whole of the evidence of that witness and other evidence on record. See: Ackom v Republic [1975] GLR 419. This court also formed an impression of the behaviour of the accused person in the witness box. From the way the accused person reacted to questions and how he answered questions showed that he was not a witness of truth. The accused person was very economical with the truth he is therefore not a credible witness. It would be madness to rely on his evidence. The accused person’s evidence is therefore not credit worthy to be relied on and therefore he is not a credible witness of belief. The accused person’s defence is not satisfactory and not reasonable probable. From the totality of the evidence led by the prosecution witnesses and the defence witness together with the exhibits, the applicable laws as enunciated above and the analysis, this court finds as a fact the following: 1. That on the 17th day of December, 2022 the first accused person and A2 and A3 at large agreed to act together with a common purpose to commit crime namely; stealing. 2. That A1, A2 and A3 at large stole twenty-three (23) cattle. 21 The accused person was charged for stealing forty (40) cattle as stated on the charge sheet. However, it has been established that, it was twenty-three (23) cattle which was given to him to send out for grazing. However, the accused person can still be convicted for stealing twenty-three (23) cattle. After all, if a person is charged with stealing a certain sum, it is sufficient if the prosecution proves that he in fact stole part of that sum. See: Obeng alias Donkor v. The State [1966] GLR 256 SC. The prosecution thus succeeded in leading sufficient evidence in proving the two offences of conspiracy to commit crime to wit: stealing contrary to sections 23 (1) and 124 (1) of the Criminal Offences Act, 1960 (Act 29) and stealing contrary to section 124 (1) of the Criminal Offences Act, 1960 (Act 29) against the first accused person. On a thorough perusal of the evidence on record together and on a full and careful consideration of the charges, the exhibits the applicable laws, and the above analysis, this Court finds the first accused person guilty of the offence of conspiracy to commit crime to wit: stealing contrary to sections 23 (1) and 124 (1) of the Criminal Offences Act, 1960 (Act 29) and convicts him accordingly. The court further finds the first accused person guilty of the offence of stealing contrary to section 124 (1) of the Criminal Offences Act, 1960 (Act 29) and convicts him accordingly. SENTENCE In imposing the appropriate sentence, this court considered the following aggravating factors: i. The intrinsic seriousness of the offences charged. ii. The gravity of the offences charged. iii. The degree of revulsion felt by the law-abiding citizens of this country for the crime committed. iv. The premeditation with which the criminal plan was executed. 22 v. The prevalence of the offences within the Accra Metropolitan Assembly and the country generally. vi. The sudden increase in the incidence of these crimes. vii. The accused person’s lack of show of remorse for his action. This court also took into consideration in imposing the appropriate sentence, the following mitigating factors: i. The fact that the accused person has had no brush with the law. ii. The accused person’s plea for leniency and mitigation. iii. The two (2) years and three (3) days that the accused person spent in lawful custody in accordance with clause (6) of article 14 of the Constitution of Ghana, 1992. See the following cases: Frimpong @ Iboman v The Republic [2012] 1 SCGLR 297. Kamil v The Republic [2011] 1 SCGLR 300. Gligah & Atiso v The Republic [2010] SCGLR 870. Kwashie and Another v The Republic (1971)1 GLR 488 CA. Asaah Alias Asi vrs The Republic (1978) GLR 1. Since the offences preferred against the accused person are of a very grave nature, the sentence must not only be punitive but it must also be a deterrent or exemplary in order to mark the disapproval of society and this country of such conduct. This Court shows its revulsion for such conducts by imposing a harsh sentence to serve as a deterrent to like-minded persons and to help manage a reduction of the high number of cases in this regard. On this note, this court hereby sentences the first accused person to three (3) years imprisonment with hard labour (I.H.L) on count one (1) namely: conspiracy to commit crime to wit: stealing contrary to sections 23 (1) and 124 (1) of the Criminal Offences Act, 1960 (Act 29). 23 The first accused person is further sentenced to three (3) years imprisonment with hard labour (I.H.L) on count two (2) namely: stealing contrary to section 124 (1) of the Criminal Offences Act, 1960 (Act 29). The sentences of the first accused person are to run concurrently. CONCLUSION The prosecution thus succeeded in leading sufficient evidence in proving the two (2) offences of conspiracy to commit crime to wit: stealing contrary to sections 23 (1) and 124 (1) of the Criminal Offences Act, 1960 (Act 29) and stealing contrary to section 124 (1) of the Criminal Offences Act, 1960 (Act 29) against the first accused person. The first accused person is sentenced to three (3) years imprisonment with hard labour (I.H.L) on count one (1) namely conspiracy to commit crime to wit: stealing contrary to sections 23 (1) and 124 (1) of the Criminal Offences Act, 1960 (Act 29). The first accused person is further sentenced to three (3) years imprisonment with hard labour (I.H.L) on count two (2) namely: stealing contrary to section 124 (1) of the Criminal Offences Act, 1960 (Act 29). The sentences of the first accused person are to run concurrently. RESTITUTION ORDER In accordance with section 146 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), the accused person shall refund cash the sum of one hundred and sixty- one thousand Ghana cedis (GH¢161, 000.00) to the complainant forthwith being the value of the twenty-three (23) cattle. ASP KOFI ANANE FOR THE REPUBLIC IS PRESENT ACCUSED PERSON IS SELF-REPRESENTED FIRST ACCUSED PERSON PRESENT SECOND AND THIRD ACCUSED PERSONS AT LARGE (SGD) H/H CHRISTINA EYIAH-DONKOR CANN (MRS.) 24 (CIRCUIT COURT JUDGE) 25