REPUBLIC VRS. ANKOMAH AND ANOTHER (D2/049/24) [2024] GHACC 334 (23 October 2024)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON WEDNESDAY, THE 23RD DAY OF OCTOBER, 2024 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE CASE NO.: D2/049/24 THE REPUBLIC VRS JOSEPH ANKOMAH JAMES (AT LARGE) ACCUSED PERSON PRESENT A.S.P. STEPHEN AHIALE FOR THE REPUBLIC PRESENT NO LEGAL REPRESENTATION FOR THE ACCUSED PERSON JUDGMENT THE CHARGES The Republic v. Joseph Ankomah and James (At Large) Page 1 of 17 The accused person was arraigned before this Court with one James who is at large on the following charges; 1. Conspiracy to commit crime to wit stealing contrary to Sections 23(1) and 124(1) of the Criminal Offences Act, 1960 (Act 29) 2. Causing Unlawful Damage contrary to section 172 of the Criminal Offences Act, 1960 (Act 29) 3. Unlawful Entry, contrary to section 152 of the Criminal Offences Act, 1960 (Act 29) 4. Stealing, contrary to section 124(1) of the Criminal Offences Act, 1960 (Act 29) THE PLEA The accused person pleaded not guilty to the charges after same had been read and explained to him in Twi, being his language of choice. The accused person having pleaded not guilty to the charges, the prosecution assumed the burden to prove the guilt of the accused person beyond reasonable doubt. FACTS The facts of the case as presented by the prosecution are that the complainant Moses Boadi is an IT expert and lives at Ofankor market junction. The accused person Joseph Ankomah is a driver's mate and lives at Ofankor barrier. On 19th February 2024, the complainant closed from work and locked up his office and left home. Early hours of 20th February 2024, accused person and suspect one James now at large conspired to steal. They went to complainant's premises and caused damage to his office door valued GHS500.00 and entered the office unlawfully. They stole computer monitor valued GHS800.00, digital video recorder (DVR) valued GHS3,000.00, computer system unit valued GHS2,000.00, air condition remote valued GHS600.00, computer desktop valued GHS3,000.00. The complainant reported for work in the morning and he noticed that his The Republic v. Joseph Ankomah and James (At Large) Page 2 of 17 office was broken into and his properties were stolen. He reported the case to Ofankor police for investigation. Fortunately, there was a CCTV camera fixed at the place. He viewed the footage and saw images of the accused person and that of suspect James. With the help of some friends, accused person was arrested and handed over to the police for investigation. He was re-arrested and detained. Initially he denied any knowledge of the theft but later on seeing his image captured by the camera, confirmed having committed the act together with suspect James who had taken the stolen items to Kwame Nkrumah Circle for sale. Accused person alleged he does not know place of abode of his accomplice for his arrest and possible retrieval of the items. He was cautioned to that effect and charged with the offences and arraigned before this Honourable court. To discharge their legal burden, the prosecution called two witnesses being the complainant and the investigator. EVIDENCE OF THE PROSECUTION WITNESSES PW1, who is the complainant herein testified that he is a software developer residing at Ofankor Barrier behind market junction. That on 20th February between the hours of 12 am and 1:50 am, the outside CCTV camera captured two persons breaking into one of the offices of G/Boadiwaa Supermarket at Ofankor Barrier opposite Ofankor Police station. He continued that the office door has been taken off and items such as office monitor or desktop with mouse and system unit, AC remote, DVR and documents were all stolen. That they then reported the case to Ofankor police in the hours of 9am same day. That the accused person, popularly known as "AY", and one other person known as James were all captured by the CCTV. PW2, the investigator herein, Detective Chief Inspector Michael Dorgbefu stationed at Ofankor police station repeated the brief facts of the case as presented by the prosecution. The Republic v. Joseph Ankomah and James (At Large) Page 3 of 17 He further testified that, the police commenced investigations immediately and visited the crime scene and it was established that, the complainant's shop has been broken into. That photographs were taken of the scene. That whilst investigations were ongoing, the complainant was assisted by two others and they arrested and brought to the station accused Joseph Ankomah with a report that he was one of the people who broke into the complainant's shop. That the accused person was re-arrested, and a cautioned statement was obtained from him. PW2 tendered the caution statement of the accused person in evidence as exhibit ‘A’. That it was also established that the incident was captured by a CCTV camera and same was retrieved. That the footage was played to the accused person and he identified himself in the footage. He tendered the footage in evidence as exhibit ‘C’. that at the close of investigations, the accused person was charged with the offence and he volunteered a statement to that effect. PW3 tendered the charge statement of the accused person in evidence as exhibit ‘B’. Thereafter, the prosecution closed its case. After the close of the case of prosecution, the Court examined the evidence of the prosecution witnesses to determine whether a prima facie case had been made by the prosecution to warrant the accused person to open his defence. The Court then made a finding that the prosecution had made out a prima facie case against the accused person; and he was called upon to enter into his defence. In view of the above, the Court found that the accused person had a case to answer. The court however explained the rights of the accused person to him that he can decide to remain silent, make an unsworn statement from the dock or give evidence on oath. The court also reminded the accused person of the charges against him. The Republic v. Joseph Ankomah and James (At Large) Page 4 of 17 EVIDENCE OF THE ACCUSED PERSON In opening his defence, the accused person testified in open Court that his name is Joseph Ankomah, and he stays at Ofankor Barrier; that he is a trotro mate. He continued that on 19th February 2024 around 2:00 am in the morning, he was on his way to work. That he normally passes in front of Madam Boadiwaah's Supermarket and it is a path where they normally pass from Ofankor Township to the road side where he works. That the trotro drivers park in front of Madam Boadiwaah's Supermarket in the morning before loading. At night after work, some trotro mates and drivers sleep in their cars in front of the Supermarket even when the Supermarket was not there. That around 2:00 am in the morning, he was going to work when he saw one of the loading boys called James standing in front of Boadiwaah's Supermarket holding two sacks. That James then asked him to help him with one of the sacks he was holding to the roadside. He then helped him with one of the sacks to the roadside. Then, he left James at the roadside and went to continue with his work. He continued that, that very day, after work in the afternoon, he was in the house when two community police personnel came to his house to arrest him. That they told him that he was captured by the CCTV camera at the compound of Maame Boadiwaah's Supermarket holding a sack together with James. That the community police personnel then went to search his room but they did not find anything and they took him to the police station. The accused person did not call witness and thereafter closed his defence. LEGAL ISSUE The legal issue to be determined by this court is whether or not the accused person committed the offences he is charged with. BURDEN AND STANDARD OF PROOF The Republic v. Joseph Ankomah and James (At Large) Page 5 of 17 The cardinal rule in all criminal proceedings is that the burden of establishing the guilt of the accused person is on the prosecution and the standard of proof required by the prosecution should be proof beyond reasonable doubt as provided in the Evidence Act, 1975 (NRCD 323), per sections 11(2), 13(1) and 15. Section 11(2) of the Evidence Act, 1975 (NRCD 323) is that: “In a criminal action the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond reasonable doubt” In the case of Republic v. Adu-Boahen & Another [1993-94] 2 GLR 324-342, per Kpegah JSC, the Supreme Court held that: “A plea of not guilty is a general denial of the charge by an accused which makes it imperative that the prosecution proves its case against an accused person... When a plea of not guilty is voluntarily entered by an accused or is entered for him by the trial court, the prosecution assumes the burden to prove, by admissible and credible evidence, every ingredient of the offence beyond reasonable doubt”. Significantly, whereas the prosecution carries that burden to prove the guilt of the accused person beyond reasonable doubt as per sections 11(2) and 13(1) of the Evidence Act, 1975 (NRCD 323), there is no such burden on the accused persons to prove their innocence. At best they can only raise a doubt in the case of the prosecution. But the doubt must be real and not fanciful. ANALYSIS The Republic v. Joseph Ankomah and James (At Large) Page 6 of 17 Count 1: Whether or not the accused person did agree or act together with one James now at large, to commit stealing? Section 23(1) of Act 29 provides that: “Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence.” In law, Conspiracy consists not merely in the intention of two or more persons, but also in the agreement of two or more persons to do an unlawful act or to do a lawful act by an unlawful means. And a person could be charged with conspiracy to commit a crime whether he was involved in the conspiracy before the act (accessory before the fact) or after the act (accessory after the fact). What is material is whether there was a common design by the parties to commit the crime. The essential ingredients of the offence which the prosecution must prove to succeed on as stated by Kyei Baffour JA sitting as an additional High Court Judge in the case of Republic v. Eugene Baffoe Bonnie (unreported); Suit No. CR/904/2017 delivered on 12th May, 2020, are as follows: i. That there were at least two or more persons. ii. That there was an agreement to act together. iii. That the sole purpose of the agreement to act together was for a criminal enterprise. In the case of Faisal Mohammed Akilu v. The Republic [2017-2018] SCGLR 444 the Supreme Court per Yaw Appau JSC stated as follows; “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 The Republic v. Joseph Ankomah and James (At Large) Page 7 of 17 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” Both PW1 and PW2 in their evidence in chief and under cross examination indicated that a CCTV camera captured two persons which include the accused person breaking into the complainant’s shop and stealing the said items mentioned above. From exhibit ‘C’ being the CCTV footage, the accused person together with one other person are seen behind the said shop monitoring the area where the accused person went for a sack and brought it to the back of the shop. The accused person and the other person at large continued to perambulate around the shop and monitor to see if someone was watching them. From exhibit ‘C’ the accused person and the other person at large indeed worked together to commit the offence of stealing as they were seen together behind the shop and moving about to monitor the environment. The accused person and the other one at large are also seen in the videos binging from behind the shop two sacks containing some items after the accused person in particular had brought the sacks which before then did not have anything in them and now were filled with items where the accused person carried one sack and the other person at large also carried the other sack and they both left the area where the shop is. From the evidence on record, the accused person knew what he was doing that is, he actually worked together with the other person at large and he even brought the sacks for the items to be carried away. The defence of the accused person is an afterthought because he was not just passing by where he was called to help the other person at large to carry his things. Rather from the The Republic v. Joseph Ankomah and James (At Large) Page 8 of 17 evidence on record, both of them were behind the shop and intermittently came out to monitor the area to check if someone had seen them or was watching them. The conduct of the accused person suggests that he knew whatever they were doing behind the shop was not a good one and the items he brought the sack to be carried away from behind the shop was also not theirs that is why they kept looking around to ensure that they have not been caught, coupled with the odd time at which they were behind the shop being 1:00am thereabout. The role the accused person played in committing the offence of conspiracy was how he helped to monitor the environment to ensure they were not seen and how he brought the sacks to be able to carry the said items away as well as how he actually carried one of the sacks from behind the shop whilst the other person at large also carried the other sack. From the evidence on record and the authorities above, I find that the prosecution has been able to establish the elements of conspiracy against the accused person. I accordingly find that the first count has been proven by the prosecution beyond reasonable doubt. Count 2: Whether or not the accused person did intentionally and unlawfully cause damage to office door valued GHS500.00, the property of Moses Boadi? Section 172 (1) (b) of Act 29 provides thus: “(1) A person who intentionally and unlawfully causes damage to property (b) to a value exceeding one million cedis commits a second a degree felony. From the above, the elements of causing unlawful damage are as follows: The Republic v. Joseph Ankomah and James (At Large) Page 9 of 17 1. That damage was caused. 2. That the damage was caused by the accused person. 3. That the damage was intentionally and unlawfully caused. The evidence on record does not establish that the accused person caused damage to the office door even though both PW1 and PW2 stated in their evidence that the accused person did break into one of the offices of the said shop. The prosecution witnesses did not adduce satisfactory evidence to support their assertion that damage was caused to an office door. There is no picture or video of the said door that was damaged by the accused person. Prosecution ought to have shown proof of the damage caused to the said office which formed the basis of that charge. Unfortunately, no substantial evidence was adduced to establish that the accused person caused damage to the said office door. Accordingly, the evidence on record is unable to establish the essential elements of the offence under count two. Consequently, same cannot ground a conviction against the accused person on count two. Count 3: Whether or not the accused person did unlawfully enter the office of one Moses Boadi with the intent to commit crime to wit stealing. Section 152 of Act 29 on unlawful entry provides that: “Whoever unlawfully enters any building with the intention of committing crime therein shall be guilty of second-degree felony.” The elements of the offence of unlawful entry are provided in section 153 of Act 29 as follows: The Republic v. Joseph Ankomah and James (At Large) Page 10 of 17 “A person unlawfully enters a building if he enters otherwise than in his own right or by the consent of some other person able to give such consent for the purposes for which he enters." From the evidence on record the accused person was not seen entering the said office however exhibit ‘C’ shows that the accused person and the other person at large were behind the shop for a considerable length of time where they intermittently came out in the open to check if someone was around or had seen them. A careful watch and examination of exhibit ‘C’ does not establish the accused person entering any office but rather he was behind the shop which is an open place at that ungodly hour and his conduct suggested he was not supposed to be in that place. From the evidence on record, I find that the prosecution has not been able to prove the elements of the offence of unlawful entry into the office of Moses Boadi as the evidence on record does not indicate that the accused person entered the said office of Moses Boadi. I accordingly find that the third count has not been proven by the prosecution beyond reasonable doubt. Count 4: Whether or not the accused person did dishonestly appropriate the said items mentioned above being the property of one Moses Boadi. Section 124(1) of Act 29 provides that: “Whoever steals shall be guilty of a second-degree felony.” Section 125 of Act 29 defines Stealing as follows: “A person steals if he dishonestly appropriates a thing of which he is not the owner”. The Republic v. Joseph Ankomah and James (At Large) Page 11 of 17 Taylor J (as he then was) in the case of Lucien v. The Republic [1977] 1 GLR 351-359 laid out the elements in the offence of stealing as follows: “The only basic ingredients requiring proof in a charge of stealing were that: i. the person charged must not be the owner of the thing stolen, ii. he must have appropriated it and iii. the appropriation must have been dishonest”. Section 122 (2) of Act 29 defines Appropriation as follows: “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”. PW1 told the Court in his evidence that he realized that the office door has been taken off and items such as office monitor or desktop with mouse and system unit, AC remote, DVR and documents were all stolen. PW2 also testified that his investigation established that the accused person and other person at large stole the said items and the accused person identified himself in the CCTV footage being exhibit ‘C’. The accused person in his evidence did not deny that he is the one in the videos but rather gave an afterthought story that he was passing by when the other person asked him to help him carry the items which this court has rejected the said defence in its analysis above under count one. From the evidence on record the accused person and the other person at large actually stole the said items because by their conduct they knew the items did not belong to them but still carried them away in a discreet manner unfortunately for them the CCTV camera exposed them. The Republic v. Joseph Ankomah and James (At Large) Page 12 of 17 The defence of the accused person that he went behind the shop to smoke is also an afterthought because he knew what he was doing from his conduct as shown in exhibit ‘C’ and analyzed above. He was also seen carrying the items away together with the other person. In the case of State v. Anani Fiadzo [1961] GLR 416, the Supreme Court held at page 418, on the issue of circumstantial evidence as follows: “Presumptive or circumstantial evidence is quite usual, as it is rare to prove an offence by evidence of eye-witnesses, and inferences from the facts proved may prove the guilt of the appellant. A presumption from circumstantial evidence should be drawn against the appellant only when that presumption follows irresistibly from the circumstances proved in evidence; and in order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the appellant, and incapable of explanation upon any other reasonable hypothesis than that of guilt. A conviction must not be based on probabilities or mere suspicion.” From the circumstantial evidence on record, the conduct of the accused person points to only one irresistible conclusion that the accused person and the other person at large are the ones who stole the complainant’s missing items and carried them away in the sacks brought by the accused person. This is because from exhibit ‘C’, the accused person and the other person stayed behind the shop for a period of time amidst coming out to the front of the shop which is an open space to monitor if someone had seen them or someone was around. Nothing from the said CCTV footage suggests that the accused person went behind the said shop at that odd time at about 1:00am to smoke cigarette which is the story accused person told the court in his defence. Again, the evidence on record does not indicate that the accused person was just passing by the shop and the other person at large requested for his assistance to carry the items. The Republic v. Joseph Ankomah and James (At Large) Page 13 of 17 From the evidence on record the accused person actually partook in the stealing expedition and carried one sack containing some items out of the two sacks. The conduct of the accused person and the other person at large suggested that they had gotten something from behind the shop and had to leave the area whilst looking around if someone had seen them. The accused person admitted that he was the one seen in the videos carrying the items but added that he did not know the items were stolen items. The said defence of the accused person is not reasonably probable considering the conduct he exhibited prior to bringing the sacks to be able to carry the items away. I therefore find from the evidence on record that the accused person herein and one other person at large dishonestly appropriated the said items which got missing from the shop the very midnight they sneakily stayed behind the shop and brought sacks to carry away the items from the same place. In the case of Commissioner of Police v. Isaac Antwi [1961] GLR 408-412, it was held that the accused person is not required to prove anything. All that is required of him is to raise a reasonable doubt as to his guilt. This is further emphasized by sections 11(3) and 13(2) of the Evidence Act, 1975 (NRCD 323). All that the accused person needed to do was to raise a reasonable doubt in the case of the prosecution but he could not do so in respect of counts one and four. This is because the defence of the accused person could not raise a reasonable doubt as to his guilt on counts one and four, because same is not reasonably probable. There is sufficient evidence on record to sustain the charges of conspiracy to steal and stealing under counts one and four as analyzed above. The Republic v. Joseph Ankomah and James (At Large) Page 14 of 17 On the other hand, there is no concrete evidence on record to sustain the charges of causing unlawful damage and unlawful entry under counts two and three. Consequently, the charges under counts two and three are hereby dismissed. CONCLUSION On the totality of the evidence on record, I find that the prosecution proved their case beyond reasonable doubt on counts one and four. For the foregoing reasons, I pronounce the accused person herein guilty of the charges against him on counts one and four; and accordingly convict him of the offences of conspiracy to steal and stealing respectively. From the evidence on record and the authorities above, I acquit and discharge the accused person on the charges of causing unlawful damage and unlawful entry under counts two and three for lack of sufficient evidence. Pre-Sentencing hearing Court: Any plea in mitigation before sentence is passed? Accused: I want to thank the court especially the judge and the experience I have had in court. I plead with the court to have mercy on me and that this is the first time I have been in court. Court: Is the accused person known to the police? Accused: He is not known to us but we wish to draw the court’s attention that we have not been able to retrieve any of the items. SENTENCING In sentencing the accused person, the Court takes into consideration his plea in mitigation, the fact that he is a first-time offender and his youthful age. In accordance with Article 14(6) of the 1992 Constitution, time spent in custody by the accused person The Republic v. Joseph Ankomah and James (At Large) Page 15 of 17 during the trial is considered by the court. However, the Court has equally taken into consideration the fact that the said items that were stolen by the accused person and the other person at large under count four were not retrieved from them. The Court has also considered the entire evidence on record and the role the accused person played in committing the said offences at that ungodly hour of the night. The Court is of the view that there is a need to impose a deterrent sentence to send shivers down the spine of people with similar criminal propensity to control the spate of these crimes within the jurisdiction for people and businesses in the area to operate under peaceful and secured environment. I consequently sentence the accused person as follows: Count 1: The accused person is sentenced to serve a term of imprisonment of thirty (30) months in hard labour. In addition, the accused person shall pay a fine of two hundred (200) penalty units. In default of the fine, the accused person shall serve a term of imprisonment of twelve (12) months in hard labour. Count 2: The accused person is acquitted and discharged. Count 3: The accused person is acquitted and discharged. Count 4: The accused person is sentenced to serve a term of imprisonment of thirty (30) months in hard labour. In addition, the accused person shall pay a fine of two hundred (200) penalty units. In default of the fine, the accused person shall serve a term of imprisonment of twelve (12) months in hard labour. The sentences on both counts one and four shall run concurrently. Restitution Order The accused person is ordered to pay half of the amount of GHS9,400.00 to the complainant being the value of the complainant’s items he and the other person at large The Republic v. Joseph Ankomah and James (At Large) Page 16 of 17 dishonestly appropriated or lead police to retrieve the said items for the complainant provided they are still in the condition they were stolen. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) The Republic v. Joseph Ankomah and James (At Large) Page 17 of 17