REPUBLIC VRS. ADIZUA AND OTHERS (GR/KB/CCT/B7/58/2022) [2024] GHACC 373 (12 September 2024)

IN THE CIRCUIT COURT HELD AT KWABENYA ON THURSDAY 12TH SEPTEMBER, 2024 BEFORE HER HONOUR MAWUSI BEDJRAH, CIRCUIT JUDGE CASE NO. GR/KB/CCT/B7/58/2022 THE REPUBLIC VRS JAMES ADIZUA & 2 OTHERS ACCUSED PERSON (A1) PRESENT ACCUSED PERSON (A2) DISCHARGED ACCUSED PERSON (A3) ABSENT DETECTIVE CHIEF INSPECTOR MABEL ATSU FOR THE REPUBLIC PRESENT NELSON OWUSU ANSAH HOLDING THE BRIEF OF YAW DANKWAH FOR ACCUSED PERSON (A1) PRESENT JUDGMENT Accused persons have been charged with the following offences; i. A1-Stealing, contrary to section124 (1) of the Criminal Offences Act, 1960 (Act 29) ii. A2-Abetment of Crime, contrary to section 20 (1) of Act 29 iii. A3-Dishonestly Receiving, contrary to section 146 of Act 29 They all pleaded not guilty to the respective charges levelled against them. INGREDIENTS OF THE OFFENCES: Section 124(1) of Act 29 states that a person who steals commits a second degree felony whilst section 125 defines stealing as: ‘…if a person dishonestly appropriates a thing of which that person is not the owner’ And for the charge of stealing to succeed the prosecution must prove that: i. the accused person (A1) was not the owner of the items alleged to have been stolen ii. there was appropriation and iii. the appropriation was dishonest (See BROBBEY AND OTHERS V THE REPUBLIC [1982-83] GLR 608) 1 Also, for prosecution to prove the charge of dishonestly receiving, it must establish that; i. A3 received goods ii. he knew or ought to have known that the goods had been obtained through stealing iii. the act of receipt by A3 was dishonest (See the case of NYINA v COMMISSIONER OF POLICE [1964] GLR 452). BURDEN OF PROOF: Prosecution assumes the burden to prove the guilt of the accused persons beyond reasonable doubt as required by section 11(2) of the Evidence Act, 1975 (NRCD 323). On the other hand, the accused persons are not required to prove their innocence but only to raise a reasonable doubt as to their guilt as required by Section 11(3) of NRCD 323. See also ALI YUSUF ISSA (No. 2) V THE REPUBLIC [2003-2004] SCGLR 174. THE EVIDENCE OF PROSECUTION: The prosecution called three (3) witnesses in an attempt to discharge its burden of proving the guilt of the accused persons. The evidence given is as follows: Joana Ewurabena Ocran– PW1 PW1, the complainant, testified as the owner of Joantex Enterprise located in a block of shops owned by her at East Legon, where she sells all kinds of textiles. She knows A1, who used to work for her, knows A2 who was a security guard at a shop near her shop but did not know A3. Before this incident she employed A1 in her shop and gave her temporary accommodation. In the shop, she had CCTV cameras installed. On the 26th of May 2022 she closed for the day at about 9:30p.m. Later that evening, one Hagar who is a tenant in one of the shops called and informed her that one of her employees had been caught with goods stolen from her shop. On the 27th of May 2022 when she got to the shop, she saw the stolen goods in a jute bag. There were ten (10) full pieces of Holland laces which she recognized came from her shop. So she decided to have the CCTV footage uploaded onto a pen drive. She tendered the pen drive in evidence, marked as Exhibit ‘A’. According to complainant, Exhibit ‘A’ shows how the whole operation of stealing the 10 pieces of Holland laces was 2 carried out. It was later found that A1 had also stolen four pieces of Tamale kente cloth and given them to A2 to sell, which were eventually sold to A3 and that the total value of the four pieces of kente cloth was GH¢10,000 but A2 sold all the four to A3 at ¢800.00. The money was sent to A1 who gave A2 ¢350.00 from it. A3 was accordingly arrested by the police and the kente cloths brought to the police station. On the 9th of June 2022 when the case came before the Court, the 10 pieces of lace and 4 kente cloths were given to her by the Court but the police took photograph of them before giving them to her. She later realized that A1 took more goods from the shop than had been retrieved. So, she did a full check in the shop and found some empty shelves which previously had goods. She found that forty-nine (49) swiss watches, twenty-two (22) pieces of female kente cloth had been stolen from the shelves as well as the 10 pieces of lace retrieved. She tendered the following additional documents in evidence; i. Pictures of the empty shelves from which A1 removed the swiss watches-Exhibit B series ii. Pictures of the shelves from which A1 removed and stole the female kente cloths and Holland laces-Exhibit ‘C’ series Detective Chief Inspector Charles Doamekpor– PW2 PW2, the investigator in the case, tendered the following documents; i. Complainant’s statement volunteered to the police-Exhibit ‘D’ ii. Photograph of the 10 pieces of the Holland lace stolen by A1 as Exhibit ‘E’ iii. Statement of A1 made to the police dated 27th May, 2022-Exhibit ‘F’ iv. Investigation cautioned statement of A2 as Exhibit ‘G’ v. Further investigation cautioned statement of A2 dated 30th May, 2022 as Exhibit ‘H’ vi. Complainant’s further statement to the police dated 6th June, 2022 as Exhibit ‘J’ vii. A3’s investigation cautioned statement as Exhibit ‘K’ viii. Statement of one Mensah Patrick Amanfo made to the police on 27th May, 2022 as Exhibit ‘L’ ix. Charged cautioned statements of accused persons as Exhibits ‘M’, ‘N’ and ‘P’ respectively. 3 Mensah Patrick Amanfo-PW3 He testified that on 26th May, 2022, he was detailed for duty at complainant’s shop. On his arrival, he went into a store room to change. As soon as he entered the said room, he saw a bag loaded with cloths and was alarmed. He thought it was the complainant who kept the bag there and for him to be sure of the person who kept the bag there, he laid ambush and was monitoring to see who owned it. At about 8 p.m, the complainant left the premises without taking the bag. He reported the incident to his supervisor at Lion Heart Company Ltd and his other colleague, a security guard with a different company. When he alerted A2, he informed him that he saw A1 carrying the item to the store in the afternoon. A2 also informed another client who also has his shop next to complainant’s shop. They then saw A1 coming for the bag loaded with the cloths. They arrested him and brought him to that next shop. A1 admitted having stolen the said cloths and concealed same in the jute bag and pleaded with him to forgive him. A1 further informed him that he used to steal some of the cloth and give same to A2 to sell and bring the proceeds for them to share. At the time A1 came for the jute bag and its contents, he used his phone to capture him and sent the video to the complainant for her perusal. At the close of the case for prosecution, learned Counsel for the accused persons filed a submission of no case to answer on 31st August, 2023. This was based on section 173 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30). The Court upheld the submission of no case to answer in respect of A2 and thus, discharged him. The Court, however, found that a case had been sufficiently made out against the accused persons (A1 and A3) for them to make their defence. Accordingly, they were called upon to do so on adjourned dates. Whilst A1 took advantage of same, A3 did not avail himself of the opportunity. Counsel, who subsequently represented only A1, filed an address on his behalf, which has been considered in this judgment. DEFENCE OF ACCUSED PERSON (A1) Accused person states that he was employed by the complainant as a full-time worker and not as a cleaner only and that as full-time worker, he used to clean where he sleeps every morning as well as the shop before complainant comes to open. He also arranges the dummies to be brought outside and changes the dresses on them. Accused person also states that the complainant has CCTV 4 cameras all over the shop and she is always in the shop and that when someone comes to buy, he goes with the customer to pick what he or she wants and then brings them to the complainant, who would issue a receipt upon payment after which he carries the items to the car park. If the customer does not bring a car, he will escort the customer out with the goods. Due to dust, he cleans the items which are packed in a polythene bag, especially when no customer is around. According to the accused person, he is not the person who took the items to the storeroom and that the complainant has CCTV cameras all over the place and she regularly monitors them, which he is aware of and would never attempt to steal anything from her. Further, at no point did any camera capture him stealing and if he is captured carrying items, it is only to the extent that he has been instructed to do so or such as in the normal course of his duties. The additional evidence of A1 is that the gentleman who videoed him as having stolen the items wrongly believed that he had stolen them and created that impression. ANALYSIS OF THE EVIDENCE AND APPLICATION OF THE LAW: In coming to the conclusion that a prima facie case had been established against A1, the Court noted that the statement of offence was for stealing, contrary to section 124 (1) of Act 29. The Court also noted that per the particulars of offence, A1 is said to have stolen ten (10) pieces of kente cloths valued at GH¢45,000.00. However, from the evidence on record, he should have been charged with stealing 10 pieces of hollandaise on 26th May, 2022 and four pieces of kente cloth on an earlier date. This notwithstanding, the Court found that the charge contained particulars to give reasonable information to the accused as to the nature of the charge he faced. It was also guided by the fact that the Court differently constituted, on 1st June, 2022, ordered that the retrieved items should be returned to complainant. The Court further noted the lengthy cross-examination by Counsel for accused persons of the witnesses for prosecution, particularly PW1 and some inconsistencies pointed out by Counsel. However, it found the said inconsistencies as not having discredited the evidence of prosecution. Exhibits ‘F’ and ‘M’ of ‘A1’, being the investigation cautioned and charged statements of A1, come across as an admission of his offence. In these Exhibits, A1 admits taking four kente cloths and giving same to a security guard to sell and bring the proceeds and that in the month of April 2022, the said security 5 guard brought an amount of ¢800.00 and he gave him ¢350.00. He further states that on 26th May, 2022, he took ten (10) pieces of full piece cloths from the shop and placed them in a jute bag in a different room, also in the compound, and that he does not know whatever that came upon him. He did not intend to steal. However, during the cross-examination of A1, he informs the Court that the statements are not his. It is interesting that these Exhibits were not objected to as not being the statements of the accused person, at the time that they were admitted into evidence. One also wonders how such a story could be made-up by the investigator or prosecution, having regard to the additional Exhibits, including Exhibit ‘N’. Thus, I find the information by the accused person that the statements are not his as an afterthought. Accused person, in his defence, also told the Court that he is not the one who took the items to the storeroom, contrary to the evidence led by prosecution and that if he is captured as carrying items, it is only to the extent that he has been instructed to do so or such as in the normal course of his duties. Meanwhile, the Court is not informed of any other duties of A1, except that he is a cleaner. Further, A1 has not been able to convince the Court that he was instructed to carry the items to the storeroom by the complainant. He could neither dispute PW3’s evidence that they saw him coming for the bag loaded with the cloths and they arrested him and sent him to the next shop. PW3 is actually the one who took a video of A1 with the jute bag and items when he was coming for them. Thus, I do not find credibility in A1’s defence that the gentleman, that is PW3, believed wrongly that he had stolen the items. On the totality, I find A1’s defence incredible. It is also worth noting that A1 was employed by the complainant in the month of February, 2022, barely three months before the incident. A3 has been charged with dishonestly receiving, contrary to section 146 of Act 29. The particulars are that at about two months ago, he did dishonestly receive four (4) pieces of Ladies’ Kente valued at GH¢6,000.00, which he knew to have been obtained by means of crime, to wit stealing. The evidence led is to the effect that based on information provided by A1 and A2, the four female kente cloths were retrieved from A3, to whom they had been sold at a price far cheaper than what prevailed in the market. These items were tendered to the Court as Exhibit ‘E1’. From the evidence, A3 received the four pieces of kente cloths. According to prosecution, per the price he paid for the goods, he knew or ought to have 6 known that the goods had been obtained through stealing and thus, his act was dishonest. It may be helpful at this stage to make reference to a statement made by Charles Crabbe J in the case of REPUBLIC V BAYFORD [1973] 2 GLR 421-429 as follows; “And so to knowledge. Guilty knowledge is largely a matter of inference. The nature of the property is important. The condition of the property is important. And so are the circumstances of the receipt of the property.” This being the case, the Court found it appropriate to call on A3 to make his defence but he refused to come to Court. It is instructive to note that evidence has been led to prove the essential elements of the offence, which has not been discredited as a result of cross-examination. Thus, a reasonable tribunal could safely convict upon it. DECISION I find from the totality of the evidence that A1 was not the owner of the items retrieved in this case and that there was an appropriation of same by A1, which was dishonest. I also find that A3 dishonestly received goods that he ought to have known that they had been obtained through stealing. Thus, I convict A1 of the offence of stealing and A3 of the offence of dishonestly receiving. I have considered the fact that the accused persons are first time offenders. I have also considered the fact that the stolen clothes have been retrieved. Having also considered the intrinsic seriousness of the offences committed, the accused persons are sentenced to two months’ imprisonment each and a fine of 350 penalty units each or in default, 24 months’ imprisonment. A3 is to serve his sentence upon his arrest, based on a Warrant issued by the Court. Her Honour Mawusi Bedjrah Circuit Judge 7