REPUBLIC VRS. SENYO AND ANOTHER (B1/46/2023) [2024] GHACC 355 (3 December 2024)

IN THE CIRCUIT COURT ‘B’ KOFORIDUA IN THE EASTERN REGION OF THE REPUBLIC OF GHANA HELD ON TUESDAY, THE 3RD DAY OF DECEMBER 2024 BEFORE HER HONOUR MRS. MATILDA RIBEIRO, CIRCUIT COURT JUDGE_____________________ CC NO. B1/46/2023 THE REPUBLIC Versus. PHILIP DORKENO SENYO 1ST ACCUSED PERSON ADU GYASI @ COBBY 2ND ACCUSED PERSON —————————————————————————————————-------------- JUDGMENT —————————————————————————————————-------------- The charges against the two accused persons are Conspiracy to commit crime to wit robbery contrary to sections 23(1) and 149 of the Criminal Offences Act 1960 (Act 29) and robbery contrary to section 149 of Act 29. The Complainant (Vincent Kofi) is said to be a 36-year-old Fashion Designer and resides at Ho-Lokoe. The first accused person aged 22 years is a Mason whilst the 2nd accused person aged 18years is a Pragia Rider. It is alleged that on Wednesday the 9th November 2022 whilst the complainant was sleeping in front of the workplace (shop) on the first floor of the building where the two accused persons sleep, at about 4:00am, the accused persons went and woke him up and the 1st accused person pulled a knife on the complainant whilst the second accused person pulled a scissors on him and both of them forcibly collected his Itel smart phone valued at GHC480.00 and hand bag containing cash of GHC 560.00. Upon a complaint lodged by the Complainant, the 2nd accused person was arrested and the exhibit scissors was retrieved from him. Later, the second accused person was also arrested. Conspiracy under section 23(1) of Act 29 is explained as; Page 1 of 8 ------------------------------------------------------------------------------------------------------- The Republic v. Philip Dorkeno Senyo & Adu Gyasi @ Kobby 03/12/24 “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 any previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence”. Meaning for conspiracy to be established, prosecution has to prove that there was an agreement between the accused persons charged, with a common purpose to commit or abet the criminal offence of robbery to the complainant victim herein. This agreement could be direct or inferred from their subsequent overt acts. “Section 150 Act 29—Definition of Robbery. “A person who steals a thing is guilty of robbery if in and for the purpose of stealing the thing, he uses any force or causes any harm to any person, or if he uses any threat or criminal assault or harm to any person, with intent thereby to prevent or overcome the resistance of that or of other person to the stealing of the thing.” It was held in the case of Behome v. The Republic [1979] GLR 112 that “one is only guilty of robbery if in the stealing of a thing he used any force or caused any harm or used any threat of criminal assault with intent thereby to prevent or overcome the resistance of his victim to the stealing of the thing” Also, in Frimpong @Iboman V. The Republic [2012] 1 SCGLR 297 the Supreme Court stated the elements to be established in a robbery trial as follows: • That the appellant stole something from the victim of the robbery of which he is not the owner. • That in stealing the thing, the appellant used force, harm or threat of any criminal assault on the victims. • That the intention of doing so was to prevent or overcome the resistance. Page 2 of 8 ------------------------------------------------------------------------------------------------------- The Republic v. Philip Dorkeno Senyo & Adu Gyasi @ Kobby 03/12/24 • That this fear of violence must either be of personal violence to the person robbed or to any member of his household or family in a restrictive sense. • The thing stolen must be in the presence of the person threatened. (See also Ibrahim Razak Kennedy Yemoah v. The Republic [2012] 50 G.M.J 139/ DLHC 2593) Meaning the offence of robbery is established or proved when a thing is stolen and, in the process, or for the purpose of the stealing, force, harm, threat, or criminal assault or harm is used with the intention of overcoming the resistance of the victim or any other person to the stealing of the thing. What then is stealing? Section 125 of Act 29 provides that “A person steals if he dishonestly appropriates a thing of which he is not the owner” Appropriation has also been defined under section 122(2) of Act 29 as “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.” And appropriation is dishonest per section 120 of Act 29 if “it is 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”. Our Criminal jurisprudence is replete with cases to the effect that, Prosecution assumes the duty to prove every element of the offence an accused person is charged with once he or she pleads not guilty to the charge. It is only after this that an accused Page 3 of 8 ------------------------------------------------------------------------------------------------------- The Republic v. Philip Dorkeno Senyo & Adu Gyasi @ Kobby 03/12/24 person may be called upon to open his or her defence. See sections 11 and 13 of the Evidence Act 1975 (NRCD 323), C.O.P v Antwi [1961] GLR 408 and The Rep. v Francis Ike Uyanwune [2013] 58 GMJ 162. Since the two accused persons pleaded not guilty to the two charges against them, prosecution assumed the burden to lead credible evidence not only to prove that the offences were indeed committed by proving every element of the offence of conspiracy and robbery as discussed above but also that it was committed by these two persons before the Court today. In discharging the burden placed on prosecution, Prosecution called only the investigator (No. 44832 D/Sgt Isaac Tsiatey Narteh-Yoe) as its witness in this case and tendered through him the following exhibits. Exhibit A Series (A, A1, A2 and A3) being photographs of crime scene including photographs of a bag and slippers. Exhibit B being a pair of scissors (yellow) Exhibit C being investigation cautioned statement of Philip Dorkeno Senyo (1st accused person) Exhibit D Series (D and D1) being investigation cautioned statement and further cautioned statement of Adu Gyasi (2nd accused person) Exhibit E being charged cautioned statement of the 1st accused person Exhibit F being the charged statement of the 2nd accused person In the evidence of prosecution witness, the investigator testified that on 9th November 2022 at about 4:15am, the Complainant Vincent Kofi lodged a complaint that he was sleeping in front of a store on the first floor of one of the storey buildings at the Ho lorry terminal, Koforidua when around 4:15am, four (4) guys including the two accused persons came and attacked him with a pair of scissors and a knife and Page 4 of 8 ------------------------------------------------------------------------------------------------------- The Republic v. Philip Dorkeno Senyo & Adu Gyasi @ Kobby 03/12/24 collected his hand bag containing an Itel smart phone valued at GHC480.00 and cash of GHC560.00. According to the witness, he visited the crime scene with the complainant, but the suspects took to their heels upon seeing the police. That at the scene of crime, he saw a green bag about 15 metres away from where the complainant was sleeping, and he (the complainant) identified same as his bag which was snatched from him by the accused persons. When same was retrieved, there was nothing in it. According to the investigator, the complainant spotted the 2nd accused person at the Kumasi lorry terminal on the 11th of November 2022, alerted the police and he was arrested by No. 61386 G/Constable Emmanuel Amponsah who handed him over to him, the investigator together with the exhibit scissors (yellow) which was retrieved from him and same was identified by the complainant at the police station. Statement was taken from the 2nd accused person and he again visited the crime scene with the 2nd accused person. At the scene the 2nd accused person confessed that he was holding a scissors but did not threaten the complainant with it. He said at the crime scene the Complainant identified a white slipper the 2nd accused person was wearing as the slippers he found at the scene after he was robbed. Whilst there, the 2nd accused person saw one Alhassan Mohammed and pointed him as his accomplice and he was also arrested but was subsequently cautioned and granted bail when the complainant told police that he was not part of the gang that robbed him. He testified further that the 1st accused person was arrested on the 28th of December 2022 so he revisited the crime scene again with the two accused persons and the complainant for a reconstruction of the scene. Statements were taken from the two accused persons and arraigned before this Court. This evidence of the investigator was subjected to cross examination by the accused persons on 20th June 2023 and 21st June 2023. The 1st accused person sought to put across during cross examination that he did not know the 2nd accused person and that although he thumb Page 5 of 8 ------------------------------------------------------------------------------------------------------- The Republic v. Philip Dorkeno Senyo & Adu Gyasi @ Kobby 03/12/24 printed the cautioned statement, the content is not reflective of what he told the investigator and that he never said that he had seen or knew the 2nd accused person. Whilst under cross examination, the investigator testified further that the 1st accused person stated in his investigation cautioned statement that he went and retrieved the complainant’s bag from the 2nd accused person and brought same to the complainant and that the 1st accused person repeated same before this Court differently constituted. The investigator admitted during cross examination that he was not the one who retrieved the scissors (Exhibit B) from the 2nd accused person but rather, his colleague who arrested the 2nd accused person and handed him over together with the scissors to him. In his cautioned statement, the 2nd accused person mentioned Senyo as the one who collected the complainant’s bag from the Complainant. The 2nd accused person was arrested not at the crime scene but later by another police officer after the complainant spotted him at the Kumasi terminal. A1 was arrested because A2 mentioned his name in his statement to the police. It is uncertain how the complainant identified him as in the case of one Alhassan Mohammed against whom no criminal charge was preferred. The photograph allegedly taken of the 2nd accused person wearing a pair of white slippers (Exhibit A) shows only legs in the slippers; it is not clear from the photograph the person whose legs were in the slippers. The evidence of the prosecution witness, the narration of the crime is as told the investigator by the complainant. So apart from the investigator’s visit to the crime Page 6 of 8 ------------------------------------------------------------------------------------------------------- The Republic v. Philip Dorkeno Senyo & Adu Gyasi @ Kobby 03/12/24 scene with the accused persons, the photographs taken, and the statements taken from the accused persons, all other evidence before the Court by the investigator is hearsay and the Complainant was not called to be cross examined on same. According to Prosecution, the complainant left the shop he was working and all efforts to contact him proved futile. The ingredients of the offence of robbery as stated above in the Frimpong @Iboman V. The Republic [2012] 1 SCGLR 297 case requires that the thing stolen should have been in the presence of the person threatened. The person in whose presence the offence is alleged to have been committed (complainant) and who is alleged to have been threatened and his phone and money stolen was not called to give evidence to be subjected to cross examination by the accused persons. It was posited by the West African Court of Appeal in the case Regina v. Ansere 3 WALR 388 that “The principle of law is that if there is one witness whose evidence would settle the case one way or another and the prosecution fails to call that witness their case must fail since in that event, they have not proved their case beyond all reasonable doubt. But the failure to call a witness whose evidence would be only of a negative character is not fatal to conviction” (See also Gligah & Anr v the Republic [2010] SCGLR 870). It is the view of the Court that the evidence by the complainant in this case is very critical to the determination of the matter before the Court. In the absence of which prosecution has failed to prove the elements of the offence of robbery. Also Prosecution failed to lead evidence to prove any form of agreement between the two accused persons to rob the complainant. Meaning, they have failed to establish a prima facie case of conspiracy to rob and robbery against the two accused persons to the standard required by law. In Tamakloe v. The Republic (2011) SCGLR 29 it was held that, where a statute creates an offence, it is the duty of the prosecution to prove each and every element of the Page 7 of 8 ------------------------------------------------------------------------------------------------------- The Republic v. Philip Dorkeno Senyo & Adu Gyasi @ Kobby 03/12/24 offence which is a sine qua non to securing conviction, unless the same statute places a particular burden on the accused. The fundamental and the cardinal principle as to criminal burden of proof on the prosecution should not be shifted even slightly. See also the case of Kwaku Frimpong Vs. The Republic (2012) 45 GMJ, 1 SC which established that the burden of proof remains on the prosecution throughout the trial, and it is only after a prima facie case has been established that the accused will be called upon to give his side of the story (see also C.O.P v. Antwi [1961] GLR 408 and section 15 of NRCD 323) In conclusion, Prosecution having failed to prove all the elements of the offences of conspiracy and robbery against the two accused persons, this Court is disabled from calling upon the accused persons to open their defence. The two accused persons are accordingly acquitted and discharged of both charges against them in accordance with section 173 of Criminal and Other Offences Procedure Act 1960 (Act 30) which provides that “Where at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require the accused to make a defence, the Court shall, as to that particular charge, acquit the accused”. SGD. H/H MATILDA RIBEIRO (MRS) CIRCUIT COURT JUDGE Page 8 of 8 ------------------------------------------------------------------------------------------------------- The Republic v. Philip Dorkeno Senyo & Adu Gyasi @ Kobby 03/12/24