REPUBLIC VRS. NYAME-TUMI AND ANOTHER (D6/010/24) [2024] GHACC 382 (10 September 2024)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON TUESDAY, THE 10TH DAY OF SEPTEMBER, 2024 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE CASE NO.: D6/010/24 THE REPUBLIC VRS 1. FRANK NYAME-TUMI 2. GYAMFI THOMPSON ACCUSED PERSONS PRESENT INSPECTOR VIVIAN TAMEA GYABAAH STANDING IN FOR ASSISTANT SUPERINTENDENT OF POLICE ISAAC BABAYI FOR THE REPUBLIC PRESENT NKRABEAH EFFAH-DARTEY, ESQ. FOR THE ACCUSED PERSONS PRESENT JUDGMENT The Republic v. Frank Nyame-Tumi & Gyamfi Thompson Page 1 of 17 THE CHARGE The accused persons herein were arraigned before this court charged with the offence of Preparation to commit crime namely Robbery, contrary to sections 19 and 149 of the Criminal Offences Act, 1960 (Act 29). THE PLEA The accused persons pleaded not guilty after the charge had been read and explained to them in Twi being their language of choice. FACTS The brief facts of the case as presented by the prosecution are that the complainants are Police Officers stationed at the National Operations Directorate, Accra. A1 Frank Nyame- Tumi and A2 Gyamfi Thompson are private security guards working with First Watch Security Company with their Head Office at Adabraka. A1 and A2 were assigned to the First Atlantic Bank, Osu branch as security guards. Whilst the accused persons were performing their duties at the bank, they also pretended to be helping customers who come to transact with huge sums of money thus gathering information about the customers such that they could relay the information to their robbery gang to launch a robbery attack. On 26/08/2023, the accused persons went to Liberia Camp near Kasoa to recruit a robbery gang for their expedition and met one Musah Abdulai whom they hatched a plot to help recruit others to join in the robbery expedition. They made it known to the gang that the appropriate days would be on Monday because those are the days The Republic v. Frank Nyame-Tumi & Gyamfi Thompson Page 2 of 17 customers come with a lot of money from weekend sales. Police then picked intelligence on the actions of the accused persons and decoyed for their arrest. On 4/09/2023, the accused persons were arrested at the First Atlantic Bank, Osu branch and were confronted with their preparations to recruit armed robbers to rob customers of the Bank. The two accused persons readily admitted to their plot and ascribed their actions to low wages. After investigation, the accused persons were charged and put before this honorable court. EVIDENCE OF THE PROSECUTION WITNESSES PW1 who is also the investigator in this case testified that his name is D/Inspr Issah Alidu Ballu. That he is stationed at the Anti Armed Robbery Unit, CID, Headquarters, Accra. That he knows all the witnesses and the two accused persons in this matter. He continued that on the 4th September 2023, at about 1.00 pm, an extract of occurrence that accompanied the accused persons were received from the Police Intelligence Unit. That the content stated among other things that the accused persons who were security personnel of First Watch Security Service and have been detailed to provide security at the Osu branch of First Atlantic Bank conspired with an informant to rob same bank. That the informant alerted the Police and the accused persons were arrested together with two other colleagues. That he interrogated the accused persons in the presence of his Commander and the accused persons stated that there is a particular Chinese Company that usually brings huge amounts of money to be deposited every Monday. That they usually assist the said Chinese customers to carry the money from their car into the banking hall but they are not appreciated and as a result, they decided to rob them at the bank. That by so doing, they went to Kasoa Budumburam to mobilize prospective robbers to help carry on with the operations. That on the 4th September which happened to be Monday and as usual were expecting the targeted customers to bring money to the bank The Republic v. Frank Nyame-Tumi & Gyamfi Thompson Page 3 of 17 so it was scheduled that the robbery would take place. According to PW1, the informant who happened to be a good patriotic citizen informed the Police and they pretended to be armed robbers who kept communicating with the accused persons and had them arrested. That after the interrogation and further investigation, statements were obtained from the arresting officers and other witnesses. PW1 further testified that he took cautioned statements from the accused persons and their two other colleagues and it became necessary to let go the two colleagues as suspects and so one of them was used as PW2 and a witness statement was obtained from him. That he also visited the scene and conducted some investigations and as part of his investigations, he got to know that the accused persons were living in the Security Company’s hostel at Adabraka because they do not have a fixed place of abode in Accra. That after investigations, he was instructed by his Commander to charge the accused persons with the respective charges. PW1 tendered in evidence the caution and charge statements of A1 as exhibits ‘A’ and ‘B’; the caution and charge statements of A2 as exhibits ‘C’ and ‘D’ as well as an extract from station diary as exhibit ‘E’. PW2, gave his name as No.49427 G/Sgt. Emmanuel Yeboah Otoo. That he is stationed at the Surveillance and Intelligence Unit of the National Police Headquarters and he lives at Tema. That he knows both the accused persons and witnesses in this matter. On the 2nd September 2023 an informant called him to say that two private security personnel in the persons of the accused persons have approached him to help them to rob First Atlantic Bank, the Osu branch where they had been detailed to perform guard duties. That he quickly informed his commander and he gave him the go ahead to team up with the informant and to pretend to be interested to enable them arrest the accused persons. That the informant and himself pretended to be interested and so on the 3rd September 2023, they met the accused persons at the bank at Osu and planned how to carry out the The Republic v. Frank Nyame-Tumi & Gyamfi Thompson Page 4 of 17 robbery. According to PW2, the two accused persons vividly showed them where the bulk amounts are kept and further showed them the position of the police officer on duty. That the two accused persons further showed them the specific days by which the customers with huge amount of money come to deposit same. That they therefore agreed on a date and time for the robbery operation which happened to be Monday 4th September 2023. PW2 further testified that he therefore sent the information to his commander and on 4th September 2023, three additional officers were added to himself and they moved to the bank at Osu. That they met the two accused persons and their other colleagues at post and the accused had positioned themselves according to how the operation was planned. That they had them arrested to the office and after interrogations, handed them over to the investigation unit for further action. PW2 tendered his statement to the police as exhibit ‘F’. PW3, Inspr. Andrew Aryeh also testified that he is a Police Inspector stationed at the Intelligence Unit, National Police Headquarters. That the Police Intelligence Unit had an intel from an informant from Kasoa Budumburam to the effect that the accused persons have asked for his support to rob the bank of huge sums of money so they could share the booty. That it was gathered that a Chinese Company owner who are the customers of the bank usually come to deposit large sums of money on Mondays due to weekend sales. That it was also gathered that the accused persons who have been performing guard duties at the bank have been assisting the customers to carry the money from the car into the banking hall. That the accused persons scheduled to rob the bank on 4/9/2023 which happened to be a Monday when they were anticipating the Chinese customers to bring money as usual. According to PW3, the Police organized men to lay ambush and surveillance at the bank and when the scheduled time for the robbery arose, he and his The Republic v. Frank Nyame-Tumi & Gyamfi Thompson Page 5 of 17 other colleagues arrested the accused persons and took them to the office. That the accused persons when interrogated admitted the offences hence his statement. He tendered exhibit ‘G’ being his statement to the police. Thereafter, the prosecution closed its case. After the close of the case of the 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 persons to open their defence. The Court then gave a ruling that a prima facie case had been made and the duty of the accused persons was to raise a reasonable doubt in the case of the prosecution. In view of that the accused persons were called upon to enter into their defence, after the options available to them were explained to them. The court also reminded the accused persons of the charge against them. The accused persons told the court that they do not have anything to say; and they also did not call witness. LEGAL ISSUE The legal issue to be determined is whether or not the accused persons herein with the intent to commit crime, did recruit armed robbers from Liberia Camp, Kasoa to attack and rob customers of First Atlantic Bank, Osu branch. The Republic v. Frank Nyame-Tumi & Gyamfi Thompson Page 6 of 17 BURDEN AND STANDARD OF PROOF The basic 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. Under Article 19(2)(c) of the 1992 Constitution, a person charged with a criminal offence is presumed innocent until proven guilty or has pleaded guilty. In the case of Gligah & Attiso v. The Republic [2010] SCGLR 870, the Supreme Court held in its holding 1 that: “Under article 19 (2) (c) of the 1992 constitution, everyone charged with a criminal offence was presumed innocent until the contrary is proved. In other words, whenever an accused person was arraigned before any court in any criminal trial, it was the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond reasonable doubt. The burden of proof was therefore on the prosecution and it was only after a prima facie case had been established by the prosecution that the accused person would be called upon to give his side of the story.” The burden on the accused person, when called upon to enter his defence, is to raise a reasonable doubt in the case of the prosecution. See the case of Osae v. The Republic [1980] GLR 446 The Republic v. Frank Nyame-Tumi & Gyamfi Thompson Page 7 of 17 Also, in the case of Asare v The Republic [1978] GLR 193 – 199, per Anin J. A. reading the Court of Appeal decision stated that “There was no burden on the accused to establish his innocence, rather it was the prosecution that was required to prove the guilt of the accused beyond all reasonable doubt.” ANALYSIS The accused persons have been charged with preparation to commit crime namely robbery, contrary to sections 19 and 149 of Act 29. Section 19 of Act 29 on Preparation for Committing Certain Crimes provides as follows: “Every person who prepares or supplies, or has in his possession, custody, or control, or in the possession, custody or control of any other person on his behalf, any instruments, materials, or means, with the intent that the instruments, materials, or means, may be used by him, or by any other person, in committing any crime by which life is likely to be endangered, or any forgery, or any felony shall be liable to punishment in like manner as if he had attempted to commit that crime.” From the above, the accused persons must have had in their control or control of any other person on their behalf instruments, materials or the means with the intent that such instruments, materials or means may be used by them or by any other person in committing the offence of robbery which is a felony and therefore falls within the category of crime suggested in section 19 of Act 29. The said provision further provides that if an accused person is convicted of such offence, he shall be liable to punishment just like same punishment as though he had attempted to commit the offence which in this case is robbery. The Republic v. Frank Nyame-Tumi & Gyamfi Thompson Page 8 of 17 The offence of robbery, the preparation of which the accused persons are alleged to have made is contained under section 149 of Act 29 as amended by Act 646. Section 149 (1) of Act 29 as amended by the Criminal Code (Amendment) Act 2003 (Act 646) provides as follows: “Whoever commits robbery is guilty of an offence and shall be liable upon conviction and trial summarily or on indictment, to imprisonment for a term of not less than ten (10) years, and where the offence is committed by the use of an offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen (15) years”. Section 150 of Act 29 further defines robbery in the following terms; “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.” The essence of the crime of preparation is that the accused had the necessary instruments, materials or means within his control or the control of another person on their behalf. In the instant case, the evidence on record suggests that the accused persons provided material information to aid the said person who they wanted him to rob the bank on their behalf and later share the money. The said information was very vital to assist any person who wanted to rob the bank as the accused persons gave a detailed description of when the said bulky money is brought to the bank, how the money is carried to the banking hall, and even where the police on duty stands when the money is brought to the bank. The Republic v. Frank Nyame-Tumi & Gyamfi Thompson Page 9 of 17 The said operation of robbery could not materialize because the person the accused persons gave all these important security information to, rather became an informant and informed a police officer about it being PW2 which made the police intelligence unit mount a surveillance to arrest the accused persons with one of the police officers (PW2 herein) feigning an interest in the operation of the said robbery. PW2 testified to the court that the accused persons actually showed him and the informant vividly where the bulk amounts are kept and further showed them the position of the police officer on duty. That the accused persons also told them the specific days the customers with huge amount of money come to deposit and the accused persons further agreed with PW2 and the informant on a date and time for the robbery operation. That when the said date being 4th September 2023 arrived, they met the two accused persons at post and they had positioned themselves according to how the operation was planned, and they arrested them. Can the evidence of PW2 be said to be hearsay? I answer in the negative because from the evidence on record, PW2 testified that he personally met the accused persons who gave him and the informant the said vital security information to prepare them for the commission of the offence of robbery. I have no cause to doubt the testimony of PW2 given that PW2 as a Police General Sergeant stationed at the Surveillance and Intelligence Unit of the National Police Headquarters, feigning interest in something to gather intelligence is his line of work. I therefore find PW2 as a credible witness. Moreover, the evidence on record as adduced by the prosecution includes the caution statements of the accused person which was admitted in evidence in the presence of the accused persons and their lawyer but there was no objection to same. The said statements contain some confessions made by the accused persons. The Republic v. Frank Nyame-Tumi & Gyamfi Thompson Page 10 of 17 For the avoidance of doubt, I reproduce the said caution statements of the accused persons below. Exhibit ‘A’ being the caution statement of A1 dated 4th September 2023 is as follows. “My name is Frank, I am a security guard with First Watch Security Company. I have been with the company for two months now. I was detailed at First Atlantic Bank Osu Branch for the past two months. I met four other security guards there including Gyamfi Thompson. I was very close to Thompson. The first day I started work, one Chinese man came to deposit money at the Bank so we assisted him and I found out the bags were heavy. So, I said I won’t assist him again the next time he brings money to the bank and Thompson told me that I have not even seen anything because the man normally comes with “Ghana must go” bags. He continued by saying if he gets some boys to rob it and give him some it won’t be a bad idea. Because after carrying all those heavy bags, the Chinese man does not even say thank you. So, I said what he said was true. So, we both decided to arrange for some people to do that since we couldn’t do it ourselves. So, we decided to go to Kasoa to search for some “wee” boys for that job. So about 3 weeks ago, we went to Kasoa and met someone around Amanfrom and told him of our plan. He also told us that he has one other partner so, he went to call him. When the two of them came back, we informed the latter of our plan and they took my cell phone number and told us that they will call us. So, we came back to Accra. We didn’t hear from them till the next day. Thompson asked me to call them because they were not serious. I called and the other guy picked up and said they have not forgotten and that they will come. Last Saturday 2/09/2023, one of them called in the morning and said he will come and spy the place, but he will call me before he comes. It rained on Saturday so he didn’t come but he came there on Sunday 3/09/2023 around 10 to 11 am and went back. He called us and told us that they will come for the operation on Monday. So, he called me today 4/09/2023 around 10:00am and told me that they are on their way coming so I informed Thompson that the guys were coming so we went to stand The Republic v. Frank Nyame-Tumi & Gyamfi Thompson Page 11 of 17 outside. We were waiting for them outside when Policemen came to arrest us and brought us to their office”. The caution statement of A2 being exhibit ‘C’ dated 4th September 2023 is also as follows: “I am a Private Security man working with First Watch Security Company. Our office is located at Adabraka, Accra. Charles Badu is my supervisor. I have been assigned to First Atlantic Bank Osu branch as the day security man on duty from 6:00am to 6:00pm. I have started performing duties in the bank since April 2023 which is about 6 months ago. I am at the bank with a friend colleague from the same private security company called Frank Nyame Tumi. He came to join me at the bank in June, 2023. About three weeks ago, Frank Nyame Tumi approached me that the way Chinese people have been coming to the bank with high sums of monies like that we should go to Kasoa get some squad to come and collect the money and take it away. I told him that this idea will not help us. I advised him to let us forget about it and concentrate on our work but he would not listen to me. A week later he brought the idea again and said he has been calling the boys but they do not pick his calls. On last week Saturday 26/08/23, I told Frank Nyame Tumi that I want to go and visit a friend at Kasoa. Then he told me that Sunday he will be going to Kasoa so I suggested that we should go together. On Sunday 27/08/2023, we took Trotro to Kasoa and alighted at Liberia camp. Frank Nyame Tumi approached a bread seller at the roadside and asked of where the notorious boys live at Liberia camp the young boy bread seller directed us to some “Okada” riders across the street. We approached them and talked to one of them. The man said he was going to talk to their leader and get back to us. He returned to us and some few minutes later, the leader came and asked us what we wanted them to do. My friend Frank Nyame Tumi explained to him that we work in bank at Osu and some man has been coming with plenty money so we want them to come and take the money away. The man then took Frank Nyame Tumi phone and dial his own number and thus how they exchanged numbers The Republic v. Frank Nyame-Tumi & Gyamfi Thompson Page 12 of 17 and he asked us to go we will hear from them. They told us that they will come and check the grounds first before they will do the operation. The next Monday when we came to work Frank did not tell me anything and I did not also ask him anything. It was Tuesday Frank told me that he has been calling the guys they don’t pick up his calls. Since then we have not spoken about the issue again. It was this morning Frank told me that the guys called him to say that they will be coming today to come and check the place. Later he came again to tell me that he was lying to me. At about 10:00am my supervisor, Charles Badu came to inform me that the police officer who is on duty at the bank says she wants kenkey so I should go to buy her kenkey. When I was going to buy the kenkey I saw Frank Nyame Tumi in handcuff. Later, I was also arrested and brought to the C.I.D Headquarters for investigation. The number the notorious boys gave Frank Nyame Tumi is 0243122614”. A careful scrutiny of exhibits ‘A’ and ‘C’ shows that they were taken in compliance with section 120 of the Evidence Act, 1975 (NRCD 323). There was an independent witness in the person of Seth Nyarko in both exhibit ‘A’ and exhibit ‘C’. Akamba JSC in the case of Ekow Russel v. The Republic [2016] 102 GMJ 124 SC, stated 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 fear, intimidation, coercion, promises or favours ...” (Emphasis mine) The Republic v. Frank Nyame-Tumi & Gyamfi Thompson Page 13 of 17 From the evidence on record, I find that the information the accused persons gave to the said informant and PW2 amounted to a means by which the operation of robbery could have been committed. Under cross examination by counsel for accused person, PW1 maintained his position that he came to know the accused persons and what they planned to do through intelligence by an informant and given that the accused persons confessed to the said plan to rob the bank as they gave information to people to come and rob the bank, it verified that the information by the informant was accurate. PW1 also testified under cross examination that when the information was received their intelligence personnel contacted the accused persons by feigning interest and visited them prior to the robbery day. That he had a meeting with them and they told him about how the security situation in the bank is, the various times customers come to the bank with money, where they offload and where they go to pack the money before doing the deposit. That the accused persons also ran him through the security situation within the bank premises. PW1 also testified that another evidence is in the statements obtained from the accused persons. As earlier stated, Counsel for accused persons did not object to the statements obtained from the accused persons when PW1 sought to tender same in evidence. From the evidence on record, there is sufficient evidence by the prosecution to indicate that the accused persons with the intent that the offence of robbery will be committed, recruited some persons to rob the bank by providing the necessary information to assist the said persons to commit the offence of robbery however the said persons did not commit the offence and made the police aware which resulted in the arrest of the accused The Republic v. Frank Nyame-Tumi & Gyamfi Thompson Page 14 of 17 persons where they confessed to giving vital security information that would have aided in the commission of offence of robbery. Therefore, I find that the accused persons committed the offence of preparation to commit robbery. 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). The accused persons could not raise a reasonable doubt as to their guilt as there is adequate evidence on record to sustain the charge against the accused persons. CONCLUSION On the totality of the evidence on record, I find that the prosecution proved their case against the accused persons beyond reasonable doubt. For the foregoing reasons, I pronounce the accused persons herein guilty of the offence of preparation to commit robbery. Pre-Sentencing hearing Court: Any plea in mitigation before sentence is passed? Counsel for accused persons: With the greatest respect I want to plead in mitigation of sentence. The conviction of the inchoate offence carries the same punishment as the substantive offence. The actus reus did not take place so the court is punishing the accused persons for their guilty minds. I invite the court to consider the young ages of The Republic v. Frank Nyame-Tumi & Gyamfi Thompson Page 15 of 17 the accused persons. There is no court which will set aside this conviction. The accused persons cannot appeal because the fact and the law as the court has read is solid. They will live with this conviction on their heads. For these reasons I invite the court to be lenient with them. The court has the discretion to even caution and discharge the accused persons as the prisons are already full. The accused persons all have wives and children and are bread winners of their families. Court : Are the accused persons known? Prosecutor: They are not known. BY COURT The court has carefully listened to the plea in mitigation of sentence made by counsel for the accused persons on behalf of the accused persons; where counsel has invited the court to consider that it has the discretion to even caution and discharge the accused persons herein because of the mitigating factors as he stated in his submission. However as read in the instant judgment, section 19 of Act 29 under which the accused persons have been convicted by the court makes provision to the effect that a person who is convicted under the said section 19 of Act 29 shall be liable to punishment in like manner as if he had attempted to commit that crime. In the instant case, the substantive offence the accused persons prepared for same to be committed is robbery; and section 149(1) of Act 29 has also provided the minimum sentence of robbery to be 10 years or 15 years depending on the circumstances of the case and how the offence was committed. Accordingly, the court is unable to accede to the invitation offered by counsel for the accused persons to consider cautioning and discharging the accused persons. In the The Republic v. Frank Nyame-Tumi & Gyamfi Thompson Page 16 of 17 instant case the court can only be lenient and give the minimum sentence as the law has provided. Therefore, in sentencing the accused persons, the court takes into consideration the plea in mitigation by counsel for the accused persons and the fact that the accused persons are first time offenders as well as the youthful ages of the accused persons. In accordance with Article 14(6) of the 1992 Constitution, time spent by the accused persons in custody is considered by the court. I consequently sentence each accused person to serve a term of imprisonment of ten (10) years in hard labour (I.H.L.) [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) The Republic v. Frank Nyame-Tumi & Gyamfi Thompson Page 17 of 17