REPUBLIC VRS NYIMBA (NR/YD/CT/07/2024) [2024] GHACC 277 (30 August 2024)

IN THE CIRCUIT COURT, YENDI, BEFORE H/H EBENEZER KWEKU ANSAH SITTING ON FRIDAY, THE 30th DAY OF AUGUST, 2024 CASE NO. NR/YD/CT/07/2024 THE REPUBLIC VRS KOFI NYIMBA PROSECUTOR: DETECTIVE CHIEF INSPECTOR NICHODEMUS YORKE JUDGMENT The accused person was charged with one count of Stealing contrary to sections 124 (1) of the Criminal & Other Offences Act, 1960, (Act 29), Article 19 (2) (c) of the 1992 constitution indicates that “A person charged with a criminal offense shall… be presumed innocent until he is proven or has pleaded guilty.” It is also the duty of the court to satisfy itself that all ingredients of the offense are proven. See The Republic v Francis Ike Uyanwune (2013) 58 GMJ 162 The brief facts; Complaint Galey Mensah age 20 years in this case is a farmer residing at Lungni in the Nanumba South District whiles accused person Kofi Nyimba age 24 years student also resident at Lungni in the Nanumba South District. On 26/02/2024 at about 6:30pm, complaint was in the farm which shares boundary with his brother witness Galey Seth. Whiles in the farm working complaint later walked towards the footpath where he spotted a bicycle with an MP3 player on the ground. He took a closer look around but could not see the owner of the said items. Complainant then hid himself in the nearby bush in order to see who was actually in the farm. Few minutes later complainant spotted accused person holding exhibit 10 tubers of yam in witness Galey Seth’s farm. Complainant confronted accused person and he stated that he was hunting when he spotted the said tubers and decided to pick them. Complainant called Galey Seth to the farm where they asked the accused person to lead them to the spot where he picked the yam tubers. Accused person then led them to witness Galey Seth’s yam barn. Accused person was therefore arrested and brought to the police Lungni for further action. After investigation, accused person was charged with the offense as contained in the charge sheet now before this honourable court. The prosecution called three witnesses in the person of PW1 – Galey Mensah and PW2 – Galey Seth and PW3 Alagbe Zakari the police investigator. PW1 testified that he was in his farm around 6:30pm and whiles walking towards the foot path saw a bicycle and MP3 player on the ground he also spotted the accused person with some tubers of yam when he confronted him, he said he pick them up, he called his brother (Seth) and they both asked accused to lead them to where he picked the tubers of yam. According to him he led them to the yam barn of Seth Galey and they caused his arrest and sent him to the Binyam palace and also reported to the police. He tendered exhibits A, B, and C being pictures of a bicycle, an MP3 player and tubers of Yam. PW2 – testified that he received a call from PW1 that he had arrested a thief on his farm, he rushed to the place and met accused person with some 13 tubers of yam on his bicycle, with cutlass and an MP3 player, he added that he confronted the accused who admitted taken the tubers of yam from his yam barn, he concluded that they sent the accused to the Binyam’s palace and later reported to the police. PW3- the police investigator also testified that on the 26/02/2024 PW1 came to the station with the accused that he arrested him with 13 tubers of yam, a bicycle, a cutlass and an MP3 player on the farm of PW2, he added that he also arrested the accused person and took an investigation caution statement and charge statement from him. He concluded that the accused admitted ownership of the bicycle, cutlass and mp3 player but denied ownership of the tubers of yam. He tendered exhibits D, E and F been the photograph of the cutlass, the investigation caution statement and charge statement respectively. Defense The accused chose to address the court from the dock and said that he and the complainant use the same road to their farms and on that day, he had his cutlass, mp3 player and bicycle on his way back from the farm but upon reaching a section of the road he branched to the bush to attend to natures call. He thus parked the bicycle and put the mp3 and cutlass on it but PW1 called and questioned him as to where he was going and after informing him of his purpose, he accused him of stealing and went ahead to call PW2. He continued that PW2 and others came to the scene but they spoke in Ewe. He further added that PW1 and PW2 with the others have an issue with his parents over chieftaincy so they said he will be sent to their chief’s palace but refused as he was not sure of his safety there. He continued that one Tetteh asked them to let him go as he had not done anything to them, but eventually Seth, and Menoba took his bicycle, cutlass and mp3 player and sent it to the chief’s palace. He also stated that Menoba called his sister to inform her that he had been sent to the chief’s palace, there he was asked to call his people but later asked to go and come back the next day. Whiles home he heard shouts of ‘thief’ ‘thief’ but the person – Njinan was someone who had been sent to come and kill his chief but the police were called and it later came out that Njinan had been sent to come and call his chief- Njoti Namuk, who later informed him that Njinan mentioned that he had gone to steal yams and was wanted at the police station and when he went there he was arrested and asked to give a statement. In the case of Dexter Johnson v. The Republic [2011] SCGLR 601, Dotse JSC had this to say about the standard of proof in criminal matters and I quote: “Our system of criminal justice is predicated on the principle of the prosecution, proving the facts in issue against an accused person beyond all reasonable doubt. This has been held in several cases to mean that, whenever any doubts exist in the mind of the court which has the potential to result in a substantial miscarriage of justice, those doubts must be resolved in favour of the accused person”. Therefore, the Prosecution has the burden of establishing all the elements of the offence of stealing as provided for by section 124 (1) of Act 29 against the accused person in order to avoid an acquittal of the accused person. The accused person on the other hand is not required to prove anything; if he can merely raise a reasonable doubt as to his guilt, he must be acquitted. This was stated in the case of COP v. Antwi [1961] GLR 408. Section 125 of Act 29 defines stealing as follows: “A person steals who dishonestly appropriates a thing of which that person is not the owner." 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 per holding 2 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”. For the prosecution to sustain a charge of stealing therefore, it must be able to prove the above ingredients beyond reasonable doubt that the accused stole or took the property of another without consent or lawful authority. After the trial before the court the following finding of facts was arrived at by the court; 1. That accused was accosted with some tubers of yam in his hand, according to PW1 2. That both PW1 and PW2 said the accused led them to the yam barn of PW2 as the place where he picked the yams and as a result sent him to the Binyam’s palace. 3. That PW3 told the court that PW1 brought to the police station 13 tubers of yam, cutlass, bicycle and an mp3 player that accused was found with the said exhibits and he arrested accused when he came to the police station. 4. During cross examination of PW3 it came to light, that five persons were mentioned to him as been at the scene of the incident but only two persons were called to testify against the accused. 5. The accused in his defence also indicated that others persons were at the scene and one Tetteh mentioned that he should be set free as he had not done anything but this was not done by PW1 and PW2. 6. The accused admitted ownership of exhibits A, B and C but denied having or owning the tubers of yam. As the accused mentioned others persons been present on the farm including one who called for his realease it was expected that the investigator will have interviewed them to ascertain the veracity of his claim but this did not seem to be the case. PW3 besides mentioning that a case of stealing was handed over to him and he taking charge of the exhibits brought by PW1 he could not confirm the story of PW1 nor deny that of accused of having attended to natures call. He also could not also assist the court to know the owner of the said tubers of yam, let alone how they came to be with the accused if indeed they were not for him as claimed by PW1. The elements of the charge leveled against the accused person have not been sufficiently proven by the prosecution. Indeed it is trite that the guilt of an accused must be proved beyond reasonable doubt and where there arise doubts in the mind of court such doubts should inure to the benefit of the accused. See the case of Dexter Johnson v. The Republic supra. Per the facts and evidence led in court, the prosecution has failed to discharge the burden placed on them and the accused, Kofi Nyimba, is accordingly acquitted and discharged. R/O The bicycle cutlass and Mp3 player of the accused is to be released to him forthwith ................................................... EBENEZER KWEKU ANSAH CIRCUIT COURT JUDGE