REPUBLIC VRS. MUMUNI AND OTHERS (CCD/CC1/10/24) [2024] GHACC 343 (19 December 2024)

CORAM: HER HONOUR HALIMAH EL-ALAWA ABDUL BAASIT (MRS), JUDGE, SITTING AT THE CIRCUIT COURT, DANSOMAN-ACCRA ON THE 19TH DAY OF DECEMBER, 2024. SUIT NO.: CCD/CC1/10/24 THE REPUBLIC VS 1. SALIM MUMUNI A.K.A. FREE SALIM 2. RASHID MUMUNI APPIAH (Convicted and remitted to the Juvenile Court for sentencing) 3. JUDE GODSPOWER Accused Persons – Present Chief Inspector Nuarko for the Republic – Present JUDGMENT Background 1. The Accused Persons herein were charged with the following offences; a) Conspiracy to Commit Crime namely; Stealing: Contrary to Sections 23(1) & 124(1) of The Criminal and Other Offences Act, 1960 (Act 29). b) Causing unlawful damage contrary to Section 172 (1)(b) of The Criminal and Other Offences Act, 1960 (Act 29). c) Causing Unlawful Damage contrary to Section 172 (1)(b) of The Criminal and Other Offences Act, 1960 (Act 29). d) Unlawful Entry contrary to Section 152 of The Criminal and Other Offences Act, 1960 (Act 29). Judgment-The Republic vs Salim Mumuni and Ors. Page 1 of 15 e) Stealing: Contrary to Sections 23(1) & 124(1) of the Criminal and Other Offences Act, 1960 (Act 29). 2. The Brief Facts as narrated by D/C/Inspr. Francis Deku are that the Complainant, Musah Abdul-Rahman, is a businessman staying at Dansoman and owns a store at Sahara a suburb of Dansoman where he sells mobile phones, televisions, and assorted perfumes. A1, Salim Mumuni alias Free Salim is a Mason, A2, Rashid Mumuni Appiah is a labourer, both are cousins staying at Kasoa Domeabra whilst A3, Jude Godspower, a Nigerian stays at Dansoman Keep Fit. On the 10/01/24, A3 went to the complainant's shop and pretended that someone sent him to ask for the price of the phones. He then asked the price of one of the phones from the shop Attendant and called A1 on the phone for the attendant to talk to him about the price, A3 later left without buying the phone. 3. On the 13/01/24, all Accused Persons went out to steal from the Complainant's shop. A3 agreed to spy for A1 and A2 whilst they entered the Complainant's shop to steal. A1 and A2 then climbed the storey building where the complainant had his shop, caused damage to the POP ceiling in the Complainant's shop and entered the shop. They also broke the metal safe in the shop and made away with the items in the safe. After the act, whilst the Accused Persons were on their way, an informant alerted the Dansoman Police Patrol Team, and A1 and A2 were arrested together with all the stolen items. During Police interrogations, A1 and A2 admitted the offenses and mentioned A3 as an accomplice and he was later arrested from his house at Dansoman. After the Police investigation, the Accused Persons were charged with the respective offenses as stated on the charge sheet and arraigned before this Court. The Plea Judgment-The Republic vs Salim Mumuni and Ors. Page 2 of 15 4. On the 16/01/2024, all the Accused Persons, pleaded not guilty to the offences levelled against them and the Prosecution set out to adduce enough evidence to establish beyond reasonable doubt that the Accused Persons indeed committed the offences he has been charged with. Trial commenced in earnest but on the 3/6/24, A2 informed the Court of his intentions to change his plea and the Court acceded to his request. A2 pleaded guilty to all the offences levelled against him and he was immediately convicted and remitted to the Juvenile Court for sentencing as he was 17 years old as at the time he committed the offence. On the 21/6/24, A3 also changed his plea to guilty on all the charges levelled against him except Stealing. Evidence of Prosecution 5. To prove their case, Prosecution called a Four (4) witnesses to give their testimony and tendered in the following as Exhibits; a. Exhibit ‘A’ - Complainant’s Statement at the Police Station dated 13/01/2024. b. Exhibit ‘B’- PW2’s Statement given at the Police dated 13/01/2024. c. Exhibit ‘C’- PW3’s Statement given to Police dated 13/01/2024. d. Exhibit ‘D’- Caution Statement of A1 dated 13/01/2024. e. Exhibit ‘E’- Caution Statement of A2 dated 13/01/2024. f. Exhibit ‘F’- Caution Statement of A3 dated 13/01/2024. g. Exhibit ‘G Series’ - Photographs. i. Exhibit ‘G’ - Photograph of damaged P.O.P ceiling. ii. Exhibit ‘G1’- Photograph of damaged Metal Safe. iii. EXHIBIT ‘G2’- Photograph of retrieved stolen items. h. Exhibit ‘H’- Charge Statement of A1. i. Exhibit ‘J’- Charge Statement of A2. Judgment-The Republic vs Salim Mumuni and Ors. Page 3 of 15 j. Exhibit ‘K’- Charge statement of A3 Testimony of Witnesses 6. PW1 is the Complainant herein and he testified on oath that he is a business man, resides at Dansoman and owns a shop at Sahara where he sells ABM Gadgets and perfumes. On 13/01/24, a Police Officer called to inform him that some suspects have been arrested in connection with a suspicion that his shop was burgled. He testified further that he then went to the Police Station identified the stolen items retrieved as his of which Two (2) of his Sales Boys identified one of the Accused Persons, as one who came to the shop under the guise of buying a phone. He then lodged an official complaint and he together with the Police Officers and the Accused Persons went to the shop for the Accused Persons to demonstrate to the Police how they broke into the shop. 7. PW2 is Ismaila Nasiru, PW1’s Sales Attendant who testified that on 10/01/24, he was in the shop with his cousin when Two (2) men entered the shop to buy a phone of which his cousin attended to them, but they did not buy anything, and left the shop with a promise of returning, which they never did. On 13/01/24 he received a call that some people were caught with stolen goods from the shop prompting him to also go to the Police Station where he was able to identify A3 as one of the Two (2) men who came to the shop on 10/01/24 under the pretext of buying a phone. 8. The next Prosecution Witness is D/C/Inspr. Francis Deku of Dansoman District CID. He testified that on 13/01/24, he was on duty when the Dansoman Police Patrol Team arrested and brought all Accused Persons to the station together with some stolen items. The Team then reported that A1 and A2 broke into a shop at Sahara through Judgment-The Republic vs Salim Mumuni and Ors. Page 4 of 15 the ceiling of the said shop and succeeded in making away with the said items. He testified further that in the course of investigation, the Three (3) Accused Persons mentioned one Kofi Delli who was also arrested and cautioned to that effect. The Accused Persons in their Caution Statements admitted the offenses and stated that A3 seized A1’s phone and threatened not to return the phone unless A1 and A2 break into the shop and bring him the booty. 9. He testified further that A3 and Kofi Deli were the people who spied the shop the previous day and plotted how to execute the alleged crime. As part of investigations, the crime scene was reconstructed where A1 and A2 demonstrated how they entered the shop by breaking through the P.O.P ceiling of the shop of which all damages were assessed and valued. A3 was identified as one of the persons who earlier came to the shop and further investigations revealed that A3 indeed seized Al's phone on the condition that the two break into the PW1’s shop but investigations could not unravel why that condition was given by the A3. Upon conclusion of the investigations, the Three (3) Accused Persons were arraigned before Court except Kofi Delli because intelligence could not link him to the offence. 10. PW4 was G/Cpl/ Francis Kuma Kofi Nkah, an Arresting Officer stationed at Dansoman Police Station. He testified that in patrolling the Dansoman environs with his colleagues, A1 and A2 were spotted with sacks. The Team arrested them and upon searching the sacks, boxes of body deodorant, iPhone charges, one Apple MacBook laptop, DVD disk players, one play station, and other valuable items were found. At the Police Station., A1 and A2 alleged that A3 snatched their iPhone 12 and A3 refused to return the said iPhone to them only on condition that they break into a phone shop, and steal the phones for him before he could release their iPhone 12 to them. He testified further that A3 took them to the said shop and told them he Judgment-The Republic vs Salim Mumuni and Ors. Page 5 of 15 has already spied on the shop, so they could do the operation late in the night whilst he waited for them in the house. A3 was later arrested and confirmed the claims by the Al and A2 with regards to the snatched iPhone 12 but stated that the phone had been sold one Alhaji. Analysis 11. It is worth repeating that the A1 has since pleaded guilty to all offences with the exception of the charge of Stealing contrary to Section 124(1) of Act 29. A3 however pleaded not guilty to the offence of Conspiracy to Commit Crime to Wit; Stealing contrary to Section 23(1) and 124(1) of Act 29. Trial continued to establish the guilt of A1 and A3 on the above mentioned charges and at the close of the case of the Prosecution, the Court determined that the Prosecution had established a prima facie case against the Accused Persons to require them to open their defence. A1’s Defence 12. The first Accused Person testified that A3 is a friend who one day, called to inform him that he has found a phone shop around Sahara and so he should come over so they go and watch the phone shop of which he went with his younger brother (A2). They then met A3 at Dansoman Roundabout and they went to the shop at Sahara together with A3’s friend called Friday. A1 testified further that A3 told both he and A2 to go inside the shop to take the phones in there. A3 then took them to where he stays and on their way, A3 took his (A1) mobile phone and said they will be hanging around whilst A1 and A2 goes into the shop to get the phones. A1 concluded his testimony by stating that whilst in the shop, they did not find any phones but rather perfumes and laptop which they took. However, on their way out, they were arrested by the Police. Judgment-The Republic vs Salim Mumuni and Ors. Page 6 of 15 13. The first Accused Person is charged with the offence of Stealing which is contrary to Section 124(1) Of Act 29. Section 125 of Act 29 provides that, ‘… a person steals if he dishonestly appropriates a thing of which he is not the owner… The Court ruled that the Prosecution had made a prima facie case of stealing against the A1 which required him to open his defence. In opening his defence however, A1 has not denied that he stole certain items in the said shop. In fact, the following ensued during cross-examination of A1 by Prosecution as follows; Q: Your so called Defence you just narrated to the Court affirms the Statement you granted the Police, i.e Exhibit ‘D’, is that not the case? A: Yes Q: During your cross examination to the PW4, the Investigator, your position about the role played by A3 was different, is that the case? A: Yes Q: So your position then and the Defence you have given now, how do you reconcile with the Two [2] or the two position, which one do you want the Court to take now? A: What I am saying now. 14. In view of the evidence on record, the testimony of A1 suggests an admission. Thus, the admission of A1 amounts to an acceptance of guilt and same can be described as a confession. According to the learned Justice Brobbey in his book Essentials of the Ghana Law of Evidence, 2014 at page 121 stated as follows; ‘…confession is a variant of admission. Obviously, if the confession statement amounts to an admission of a crime by Judgment-The Republic vs Salim Mumuni and Ors. Page 7 of 15 the Accused Person, it can be admitted in evidence on bases similar to the admissibility of admission. When the confession is admitted, it can form the basis of conviction…’. It must however be stated emphatically that the confession of the first Accused Person in this case was made as at the time he opened his Defence and as such part of the evidence before the Court. A3’s Defence 15. A3 testified that A1 called him to look for a mobile phone shop for him so that he can go into and pack off the mobile phones inside. He then asked A1 how he can do that but he was told that is not his business. After a week interval, whilst with his brother called Friday, A1 again called him to inquire about the mobile phone shop but he informed A3 that he does not understand how A1 can enter a shop without the key but A3 told him not to worry about that. A3 testified further that he identified a mobile phone shop at Sahara and whilst inside the shop with Friday, he called to inform A3 that he had identified a mobile phone shop, of which A1 informed him that he was coming over to the shop. According to A3, he then went home with Friday and in the evening, they met A1 and A2 at Dansoman Roundabout and all Four (4) of them went to A3’s house. Whilst at his house, A1 kept checking the time and said they should go back to the mobile phone shop and upon reaching the shop, A1 went into the shop and said there are people sitting inside the store with he and Friday sitting outside. 16. A3 testified further that he and Friday began to sense danger and since they are Nigerians they were afraid and left the scene without informing A1 although A1’s phone was still with him. A1 then called to inform him that he does not intend breaking into the shop on that day and so he should bring his phone. He then parted Judgment-The Republic vs Salim Mumuni and Ors. Page 8 of 15 ways with Friday and went to a place called Paa Willie where he stayed with a friend till evening but upon his return in the evening, whilst asleep at about 3.00am when A1 came with the Police Officers. This shocked him and the Police Officers beat him and took him to the Police Station that night. The Police asked him if he knew A1 and A2 and whether they all had plans of stealing mobile phones. He answered that they initially had such plans but he backed out with his brother and the only misunderstanding between them is A1’s phone that was with him. He then went to his house with the Police Officers to bring A1’s mobile phone and he was subsequently arrested. 17. Thus, to succeed on a charge of conspiracy, the Prosecution had to prove that (a) the Accused Persons agreed together with a common purpose for or in committing or abetting a crime or (b) the Accused Persons acted together with common purpose for or in committing or abetting a crime. To prove that all Accused Persons conspired to commit the offence, Exhibit ‘D’, the Caution Statement of A1 was tendered in and at Page 2, Line 13, A1 stated; ‘…on 11/01/24 at about 11.00pm myself, Jude GodsPower, my Cousin Rashid Mumuni and Kofi Delli alias Friday all went to where the shop is situated. The shop was closed then. The Two of them showed us the shop and told us the items in the shop and that we should go and steal same and we share. On the same day, we made an attempt but we could not. On 12/01/24, between 11.00pm and 12.00am, we went to the shop again. All the four of us went there. Myself and Rashid Mumuni started the operation whiles the two other suspects were monitoring the grounds for us…’ 18. A1’s statement above was corroborated by A2 when he stated in his Caution Statement marked as Exhibit ‘E’ at page 2 Line 4 Statement of Defence follows; ‘…yesterday, 12th January 2024, my cousin Salim Mumuni told me that he was invited by Judgment-The Republic vs Salim Mumuni and Ors. Page 9 of 15 his friend of Tunga and that I should accompany him to the place. When we came to him, he told us that there is a shop at Sahara which they are selling mobile phones in it and that we should go and steal the phones from the shop, bring them to him so that he give us our share. He came and showed us the shop and promised to be hanging around the area for us to carry out with the operation…’. 19. The said Exhibits ‘D’ and ‘E’ are the Confession Statements of A1 and A2, in the case of Ekow Russell vs The Republic [2017-2020] SCGLR 469, the Court defined a Confession Statement as follows: “A confession is an acknowledgment in express words, by the accused in a criminal charge, of the truth of the main fact charged or of some essential part of it. By its nature, such statement if voluntarily given by an accused person himself, offers the most reliable piece of evidence upon which to convict the accused. It is for this reason that safeguards have been put in place to ensure that what is given as a confession is voluntary and of the accused person’s own free will without any fear, intimidation, coercion, promises or favours…’ The statements made by the A1 and A2 where never challenged and the said statement links A3 to the offence and establishes that the all Accused Persons agreed to act together with a common purpose for or in committing or abetting a criminal offence. 20. A3, in his defence however denied being involved in the committing of the crimes. During cross-examination of A3 by the Prosecution, he continuously denied that he was involved in the commission of the crime. Below are some excerpts of what ensued; Q: You were not part of the Two other Accused Persons that stole from the Complainant’s shop, is that the case? A: Yes. Judgment-The Republic vs Salim Mumuni and Ors. Page 10 of 15 Q: You will also agree with me that flowing from your own defence, you showed the Two (2) Accused Persons the complainant’s shop and what he sells there? A: No, I am not the one that showed them. Q: In your defence, you stated that you have followed one other person to Complainant’s shop for observations and had communicated back your findings to A1, is that not the case? A: No, I did not take anyone to any shop. Q: You are untruthful person and your stories keeps on changing, is that not the case? A: No. Q: But at least you will agree with that your Caution Statement at the Police contrast whatever Defence you put up here? A: I myself I did not write the Statement, the CID wrote the Statement himself. Q: But at least, the statement was read and explained to you and you did thumbprint? A: On that very day, when they are reading the statement to me, I was arguing with them that this is not what happened, but other some of the CID who were beating me up that I should shut up and they took me back to the cells. Judgment-The Republic vs Salim Mumuni and Ors. Page 11 of 15 Q: There was an independent Witness when your Statement was taken, and the content was explained to you, is that not the case? A: Yes, there was a lady sitting. Q: You were asked questions by Arresting Officer concerning your involvement this instant case or the charges preferred? A: Yes. Q: You gave a Defence in this Court? A: Yes. Q: At the later part of your Defence, it was your case that “The Police asked me where I know A1 & A2 and I said yes, they were my friends and they also asked me whether we had plans of stealing mobile phones or whatever? I told them that we had that plans to get there, but unfortunately we have remove ourselves from that plan”, flowing from your own words, will I be correct to say there were prior agreements of minds between you and the other Accused Persons? A: There was no prior agreement between me and them, because I did not know when they to do whatever they did, because they did not call me. Q: I am putting it to you as a matter of fact that you are indeed the person who brought the whole idea and has planned accordingly with the other 2 Accused Persons? A: No. Judgment-The Republic vs Salim Mumuni and Ors. Page 12 of 15 Q: And I am putting it to you in furtherance that you were there at the very beginning when they broke into the Complainant’s shop, “At that very time, his phone was with me, so as my brother said he is going back, I did not even tell A1 that I was going home because he asked me to stay at the roadside and watched there for him, so I and my brother left and went back home”, per your defence A1 had asked you to watch the roadside but you left without telling him? A: That was not the day the incident happened. The incident happened in Two [2] days’ time, after we went. Q: I am putting it to you that you are untruthful person and the Court should not take you seriously as you changes your stories with time. A: What I said was the truth. 21. P.K. Twumasi in his book “Criminal law in Ghana”, Ghana Publishing Corporation, 1985 at page 111 to page 112 states this on the law of conspiracy: “In conclusion, the legal position is that a conspiracy may be proved in one of two ways. The first mode of proof is by direct evidence which admittedly is very rare to obtain. Such evidence may be offered by a person who may have concurred in the conspiracy for the sole aim of detecting and punishing the actual conspirators or by the confession statements of some of the conspirators themselves, or by any eye witness account. The second and the most regular mode of proof is by establishing evidence of overt acts. The overt acts are done to carry out the criminal objective.”. In the instant case, both modes of proving the role of A3 in the conspiracy that led to the stealing from the mobile phone shop were presented to the Court. There was the direct evidence of A1 and A2, both co-conspirators who Judgment-The Republic vs Salim Mumuni and Ors. Page 13 of 15 pointed to the A3 as the person who identified the shop and gave them the instructions to go there to steal the mobile phones. 22. The evidence on record, per the testimony of all Prosecution Witnesses shows that A3, more or less, coordinated the events and activities of A1 and A2 that led to the eventual commission of the crime. The testimonies of the A1 and other Prosecution Witnesses as well as the Statements made by A2 at the Police Station and exhibited during trial paints a picture of how the conspiracy was hatched with A3 being at the center of the stealing of the items. A3 has however denied all allegations levelled against him but it is important to state that A3 was unable to produce his brother called Friday or any other person to testify in his favour. Additionally, A3, despite his denials has been unable to produce a fragment of evidence that would extricate him from the commission of a crime. As such, the conclusion of the Court is that A3 gave a totally different uncorroborated version of the whole occurrence and the Court finds it extremely difficult to comprehend. (See Richard Kwabena Asiamah Vrs Republic, Criminal Appeal NO. J3/06/2020 4th November, 2020) Conclusion 23. In the circumstances, the Court finds both Accused Persons guilty and are hereby convicted of the offence of Stealing and Conspiracy and shall be sentenced accordingly. Additionally, A1 pleaded guilty to all other offences levelled against him and his hereby convicted of all the offences levelled against him and shall also be sentenced accordingly. H/H HALIMAH EL-ALAWA ABDUL-BAASIT Judgment-The Republic vs Salim Mumuni and Ors. Page 14 of 15 CIRCUIT COURT JUDGE Judgment-The Republic vs Salim Mumuni and Ors. Page 15 of 15