REPUBLIC VRS. AKURUGAH (B7/20/25) [2025] GHACC 2 (25 February 2025)

IN THE CIRCUIT COURT HELD AT KIBI IN THE EASTERN REGION ON TUESDAY THE 25TH DAY OF FEBRUARY 2025 BEFORE H/H PETER OPPONG-BOAHEN, ESQ CIRCUIT COURT JUDGE CASE NO. B7/20/25 THE REPUBLIC VRS HARUNA AKURUGAH JUDGMENT Complainant, Abraham Konyuur is a mason, whilst accused, Haruna Akurugah is a farmer. Both reside at Akyem Asiakwa. On 29/12/24 about 7:30 am, complainant sent accused to deliver his gold detector machine valued GHc35, 000.00 to his brother by name Benjamin at Asiakea. Later same day complainant detected that accused did not deliver the gold detector machine and his whereabouts was unknown. Complainant lodged a complaint with the police for investigations. During investigations accused was arrested from his hideout at Binduri in the Upper East Region. During interrogation he confessed using the gold detector machine to take a loan of GHc15,500.00 from one Mohammed Keita at Osino and he led police to retrieve it. Sme was retained by police. After investigation, accused was charged with the offence as stated on the charge sheet and was arraigned before this Honourable Court. 1 It is upon these facts that the accused person herein; Haruna Akurugah aged 45 years was charged with the offence of Stealing contrary to section 124(1) of the Criminal Offences Act 1960(Act 29) The particulars of offence as contained in the charge sheet read as follows: ‘HARUNA AKURUGAH, AGED 45 YEARS; FARMER: For that you on the 29th day of December, 2024 at Asiakwa in the Eastern Circuit and within the jurisdiction of this court, you dishonestly appropriated a gold detector machine valued GHc35, 000.00, the property of Abraham Konyuur. .Accused pleaded Guilty with explanation and after his explanation the court entered a plea of Not Guilty for him leading to the trial of this case. It is a trite law that when an Accused person pleads ‘Not Guilty’ or ‘Guilty with Explanation’ and after his explanation a plea of Not Guilty is entered for him’, everything is in issue. Prosecution, in proof of its case, called three (3) witnesses including the investigator. PW1, Abraham Konyuur, in his testimony, confirmed the facts as presented by prosecution. PW2, Mohammed Keita testified to the effect that accused indeed came to his shop on 29/12/24 with the gold detector machine and used same as collateral for a loan of GHc15, 500.00 from him. PW3, PW/Lance Corporal Caroline Nimo, the investigator in this case, told the court that on 04/01/25 the complainant reported that on 29/12/24 he gave his gold detector machine valued GHc35,000.00 to accused to deliver to his brother 2 at Asiakwa but he failed and his whereabouts was unknown. He was later arrested from his hideout at his hometown Binduri in the Upper East Region and upon his arrest, she cautioned him. She testified she photographed the gold detector machine and later charged accused with the stated offence on the charge sheet. She tendered in evidence without objection the investigation cautioned statement of the accused, photographs of the gold detector machine he led police to retrieve from PW2 and charge statement of the accused which were admitted and same were marked as Exhibits A, B, B1 and C respectively. In his defence to the charge preferred against him, accused denied dishonestly appropriating the gold detector machine both in his evidence in chief and in his cautioned statement. Under cross examination too he denied having committed the offence. The sole issue to be resolved in this case is whether or not accused did dishonestly appropriate the gold detector machine valued GHc35, 000.00 the property of Abraham Konyuur BURDEN OF PROOF In this trial, prosecution is enjoined by law to prove the guilt of the Accused beyond reasonable doubt as provided in the Evidence Act, 1975 (NRCD 323) sections 11 (2) and 13 (1)). Similarly, in the case of Republic v District Magistrate Grade II Osu;Ex parteYahaya[1984-86] 2 GLR 361-365, Brobbey J (as he then was) stated as follows: 3 ‘One of the cardinal principles of criminal law in this country is that when an accused person pleads not guilty, his conviction must be based on evidence proved beyond reasonable doubt’. …What ‘proof beyond reasonable doubt’ means is proof of the essential ingredients of the offence charged and not mathematical proof? See Frimpong( Alias Iboman) v the Republic[2012] 45 GMJ 1 SC. In the case of Oteng v The State [1966] GLR 352 at 355 the Supreme Court stated as follows: ‘One significant respect in which our criminal law differs from civil law is that while in civil law, a plaintiff may win on a balance of probabilities; in a criminal case the prosecution cannot obtain conviction upon mere probabilities’. At page 355 Ollenu JSC stated further: ‘The citizen too is entitled to protection against the state and that our law is that, a person accused of a crime is presumed to be innocent until his guilt is proved beyond reasonable doubt as distinct from fanciful doubt’. Also, the Supreme Court has held in the case of COP v Isaac Antwi [1961] GLR 408 that the fundamental principles underlying the rule of law are that the burden of proof remains throughout on the prosecution and the evidential burden shifts to the Accused only if at the end of the case for the prosecution an explanation of circumstances peculiarly within the knowledge of the Accused is called for. In that case, the Accused bears the evidential burden to raise the issue or defence of their existence. Thus, the Accused is merely required to raise doubt on the balance of probability. See also section 10(3) of the Evidence Act, NRCD 323 4 The burden on the prosecution to prove the guilt of the Accused is a burden to prove all the elements of the offence beyond reasonable doubt. The offence accused person was charged with is stealing contrary to section 124(1) of the Criminal Offences Act, 1960(Act 29). Stealing is defined in section 125 of the Criminal Offences Act, 1960(Act 29) as follows: ‘A person steals if he dishonestly appropriates a thing of which he is not the owner’. , In the case of Brobbey& Others v The Republic [1982-83] GLR 608-616, Twumasi J stated as follows: ‘Three essential elements of the offence of stealing become recognizable and they are: 1. That the person charged must have appropriated the thing allegedly stolen. 2. That the appropriation must have been dishonest. 3. That 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. Thus from the above, it is incumbent on the prosecution to show that the accused person appropriated the gold detector machine (supra) belonging to the complainant dishonestly. In the case of Salifu v The Republic [1974] 2GLR 291, Ata-Bedu J stated: 5 ‘There is no doubt that the crucial ingredient or element in a charge of stealing is dishonest appropriation.’ It is provided in Section 122(2) of the Criminal Offences Act 1960(Act 29) 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’. It is the case of prosecution that accused dishonestly appropriated the gold detector machine belonging to PW1. PW1 testified to the effect that on 29/12/24 he gave his gold detector machine valued GHc35, 000.00 to accused to be delivered to his brother by name Benjamin at Asiakwa but accused failed. According to him, accused took the said machine to Osino and used same as collateral to obtain a loan of GHc15500.00 from PW2, a gold buyer, and travelled to Binduri, his hometown in the Upper East Region. He testified on 2nd day of January, 2025 he had information that accused has been spotted in his hometown Binduri where he lodged a complaint with Asiakwa Police Station. It is his case that accused was later arrested by Binduri police and brought down to Asiakwa where he went to Asiakwa Police Station and identified him as the culprit. Accused, in his evidence in chief vehemently denied stealing the machine. According to him, complainant and he are farmers and they work together. The complainant gave the gold detector machine to him to work with. The chief in his hometown was celebrating their festival and he attended. He further testified he was at Bawku when a police officer called him that the complainant has lodged a complaint against him that he has stolen his gold detector machine and has 6 travelled with it to Bawku. It is the case of accused that he left the machine behind with a friend and without him that person would not release the machine to PW1 (complainant). He again testified that police at Binduri called him on phone that Asiakwa police has informed them he has stolen a gold detector machine. According to him, he reported to the police at Binduri, and was later brought to Asiakwa police station. He then went to Osino to collect the machine from his friend. He further testified he took GH₵ 10,000.00 from his friend whom he gave the machine to but when he wanted to refund the money PW2 said he would not take the GH₵ 10,000.00 back. I find the explanation by the accused as unreasonable probable. It is to be noted PW1 is not a farmer and accused and PW1 do not work together as the accused sought to portray to the court in his evidence in chief. Per paragraph 2 of the witness statement of PW1, he is a mason and this evidence stands uncontroverted as accused did not challenge same during cross examination. In fact after the testimony of PW1, accused said he has no question for him. The instruction PW1 gave to accused was to deliver the SAID gold detector machine to his brother Benjamin but accused failed and rather sent it to his friend, a gold buyer at Osino for GHc15, 500.00. Again the testimony of accused that their chief was celebrating their festival warranting him to travel to Binduri his hometown cannot be true as same is not supported by any evidence on record. He bolted away with his booty after using the gold detector machine as collateral to secure a loan of GHc15, 500.00. from PW2. His evidence that he also attempted refunding GHc10, 000.00 to PW2 but PW2 rejected same is incredible as the evidence in chief of PW2 did not capture any statement that accused wanted to refund the money to him but he rejected same. The evidence of accused can best be described as an afterthought because 7 his cautioned statement (Exhibit A) to the police on 5th January, 2025 when the incident was still fresh in his mind contradicts his evidence in chief and his answers when he was under cross examination. In Exhibit A, he stated thus: ‘I know the complainant and I normally call him ‘Taller’ Barely two weeks ago about 7:30 am, complainant gave me his gold detector machine normally called ‘ambulance’ to go to work. I could not go to work and informed him on phone around 9:30 am. In three days’ time about 12:30 pm, I called complainant on phone to inform him that I want to travel to my hometown in the Northern Region and that he should come for the said machine. He then told me he was not around and that I should go and give it to his brother around the Methodist Church. I then went to his brother’s house but he was not at home and I called complainant on phone again to inform him about it. Complainant then asked me to take the gold detector machine with me. Same day about 5:30 pm I went to Osino and gave the gold detector machine to one gold buyer as collateral and collected an amount of GHc10, 000.00 and I left for the Northern Region. Later in three days’ time in the afternoon, I received a phone call from complainant and he asked me about his machine but I told him I have left it for someone at Osino and that I would come and collect it for him. That on 4th January 2025 about 12:00 pm I was arrested by Binduri police officers and they later brought me to Asiakwa police station’. PW2, Mohammed Keita also testified to the effect that accused came to his shop on 29/12/24 with a gold detector machine in a sack requesting for a loan of GHc19,000.00 to foot the medical bills of his sick father at his hometown Binduri. According to PW2, accused told him he wanted to use the gold detector machine as collateral for the loan of the GHc19, 000.00 but he told him he could only get 8 him GHc15, 500.00. Accused collected the GHc15, 500.00 and left the machine at PW2’s shop. He finally testified he heard accused has been arrested for stealing the machine he brought to him. This piece of evidence was not controverted by accused. He failed to cross examine PW2 as he said he had no question for him. This is the witness whom accused alleged he took only GHc10, 000.00 from but not GHc15, 500.00 as suggested by PW2and used the gold detector machine as collateral. It is to be noted that accused, in his cautioned statement to the police and in his evidence in chief did admit PW1 gave the gold detector machine to him to deliver to his brother. That he also admitted he sent the said machine to PW2 at Osino instead of PW1’s brother at Aiakwa as instructed. Accused further admitted he used the said machine as collateral to secure a loan of GHc10, 000.00 from PW2 notwithstanding his patent denial of committing the offence of stealing. It is instructive to define what ‘Collateral’ means. The Oxford Dictionary defines Collateral as: ‘Something pledged as security for repayment of a loan, to be forfeited in the event of default’. Flowing from the definition of collateral accused did pledge the gold detector machine as security for the repayment of the GHc15, 500.00 he took from PW2. Has it been the recovery of the gold detector machine from PW2, he would have forfeited same. 9 The evidence on record stands unchallenged that accused is not the owner of the gold detector machine. For him to have used the said gold detector machine as collateral for a loan of GHc15 500.00 beats my imagination, It can only be his intent to deprive PW1 of the benefit of the ownership of the gold detector machine by taking, obtaining, carrying away or dealing with it. See section 122(2) of Act 29. PW1 gave same to him to be delivered to his brother but he failed. Accused never challenged this assertion either in his cautioned statement, testimony or under cross examination. It must be stated without mincing words that the evidence of the accused that he did not dishonestly appropriate the gold detector machine in his testimony and under cross examination is unsupported by any evidence on record. He did dishonestly appropriate the said machine as per Exhibit A (cautioned statement) where he used the gold detector machine as collateral to secure a loan of GHc10, 000.00 from PW2 before leaving for the Northern Region. Quite obviously, it will not be wrong to state that this confession of the accused collaborates the evidence of PW1 and PW2 that upon accused’s arrest and detention at the Asiakwa police station, the confessed using the gold detector machine as collateral for a loan of GHc10,000.00.. In Koranteng v The Republic unreported CA dated 19/7/68 the Court of Appeal held that: ‘A voluntary confession of guilt which is fully consistent and probable is regarded as the most satisfactory evidence wherever there is independent proof that a criminal act has been committed.’ 10 Having carefully examined the totality of trial and the evidence adduced so far before me, I find that sufficient evidence has been adduced by prosecution to prove its case beyond reasonable doubt as required by section 13(1) of the Evidence Act, 1975(NRCD 323) that the accused committed the offence of stealing as charged. Thus accused appropriated the gold detector machine valued GHc35,000.00 the property of Abraham Konyuur, that the appropriation was dishonest and that accused is not the owner of the gold detector machine allegedly stolen. See section 125 of the Criminal Offences Act 1960(Act 29) In the case of Lutterodt v Commissioner of Police [1963]2GLR 429-440, Ollennu JSC., delivering the judgment of the Supreme Court stated: ‘If quite apart from the defendant’s explanation, the court is satisfied on a consideration of the whole evidence that the accused is guilty, it must convict.’ Relying on the dictum of Ollenu JSC (supra), I find accused person herein, HARUNA AKURUGAH guilty of the offence of stealing and I accordingly convict him. In sentencing the accused the court takes into consideration the fact that accused has been in custody for one (1) month and some days. Accused has a previous conviction. He was convicted and sentenced by this same court on 03/05/23 on the offences of unlawful entry and stealing of a gold detector machine. He was sentenced to a fine of 150 penalty units on count one (1) or in default serves a prison term of 12 months. He was also sentenced to a fine of 200 penalty units on count two (2) or in default 18 months imprisonment. The sentences were, however, to run concurrently. Accused has not learned any lesson from his previous conviction and sentence. 11 Accused is sentenced to ten (10) years imprisonment in hard labour. The gold detector machine retrieved from PW2 should be restored to the complainant forthwith. H/H PETER OPPONG-BOAHEN, ESQ (CIRCUIT COURT JUDGE) 25/02/25 REPRESENTATION D/INSPECTOR JAMES K. NABUNE FOR THE REPUBLIC ACCUSED SELF REPRESENTED 12