REPUBLIC VRS. ABORBOR (GR/KB/CCT/B7/3/2024) [2024] GHACC 365 (27 August 2024)

IN THE CIRCUIT COURT HELD AT KWABENYA ON TUESDAY 27TH AUGUST, 2024 BEFORE HER HONOUR MAWUSI BEDJRAH, CIRCUIT JUDGE CASE NO. GR/KB/CCT/B7/3/2024 THE REPUBLIC VRS MAKAFUI ABORBOR ACCUSED PRESENT CHIEF INSPECTOR GERSHON TOGBE ACHONDO FOR PROSECUTION PRESENT JUDGMENT Accused has been charged with the offences of stealing contrary to section 124 (1) of the Criminal and Other Offences Act, 1960 (Act 29). Accused pleaded guilty to Count One and Not Guilty to Count Two. The Court entered a plea of Not Guilty on his behalf in respect of Count One, upon further interrogation. INGREDIENTS OF THE OFFENCES: For the charges of stealing to succeed the prosecution must prove the following ingredients of the offence; (a) That the accused was not the owner of the items alleged to have been stolen (b) That there was appropriation (c) That the appropriation was dishonest (See BROBBEY AND OTHERS V THE REPUBLIC [1982-83] GLR 608) BURDEN OF PROOF: Prosecution assumes the burden to prove the guilt of the accused beyond reasonable doubt as required by section 11(2) of the Evidence Act, 1975 (NRCD 323). 1 On the other hand, the accused is not required to prove his innocence but only to raise a reasonable doubt as to his 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 Prosecution called two witnesses in an attempt to discharge its burden. PW1- ISSAH ABUBAKARI PW1 was the 2nd complainant in the case. He testified that he is a scrap dealer staying at Amasaman and that he has a shop at Haatso Ecomog. On 25th July, 2023 at 9:00p.m he was at his shop when the 1st complainant in this case, Mercy Barnes gave him 1,500 dollars to change into Ghana currency the following day for her. He kept the money in a bag belonging to 1st complainant and he also had an amount GH¢8000.00, his personal money which he kept in the same bag in a deep freezer in his shop. The following day on 26th July, 2023, he was at Amasaman when his brother called him on phone and informed him that the accused had stolen the money and bolted. On receipt of the information, he came to Haatso Ecomog and the accused had already been arrested and brought to the Atomic Police station. PW2-DETECTIVE CHIEF INSPECTOR ALICE PENOO PW2 was the officer who investigated the case. She tendered the following documents: i. Statement of 1st complainant, Mercy Barnes to the police-Exhibit ‘A’ ii. Statement of 2nd complainant, Issah Abubakari to the police-Exhibit ‘B’ iii. Statement by Mohammed Asukadiri to the police-Exhibit ‘C’ iv. Investigative cautioned statement of the accused as Ex ‘D’ v. Charged cautioned statement of the accused as Ex ‘E’ At the close of the case for prosecution, the Court invited the accused to open his defence as the Court found a prima facie case made against him. The accused testified that he was a mason but currently worked at the block factory and admitted that he was guilty. I hereby quote part of his testimony related to the admission as follows; 2 “I live in the same house with the 2nd complainant. He comes to me and I also go to him. I did not plan to steal the money. On the day of the incident, I went to his house as usual. I did not steal the amount as indicated to the Court. I just took a little amount to buy food because I was hungry. I only took 500 dollars and GH¢300.00, out of which I used GH¢20.00 to buy food.” EVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW: As stated supra prosecution must prove all the three ingredients of stealing, being property of which accused is not the owner, dishonesty and finally appropriation. Prosecution led evidence through the witnesses to show that the accused had taken money that did not belong to him, being 1500 dollars and GH¢8000.00. Although prosecution was not able to establish that the accused dishonestly appropriated the amounts as indicated on the charge sheet, I have noted that the accused admitted to dishonestly appropriating a lesser amount, being 500 dollars and GH¢300.00. However, this does not absolve him in any way, since the essential ingredients of the offence have been established. The accused was not the owner of the 500 dollars and GH¢300.00 that he admitted that he took. In effect, there was appropriation and the appropriation was dishonest since the money was taken without the knowledge and consent of the complainanst. This is further confirmed by Exhibits ‘D’ to ‘E’. It may also be helpful to reproduce part of Exhibit ‘D’, as follows; “I stole a bag from witness Issah Abubakari’s shop which contained 500 dollars and GH¢300.00. I took GH¢20.00 to buy food”. This is a statement voluntarily made by the accused in the presence of an independent witness, the veracity of which has not been challenged. This is also consistent with the statement the accused person made when asked to open his defence. The question then is if the accused person normally goes to visit the 2nd complainant and he needed money for food, why did he not ask him for some money for the purpose but rather went to steal the bag containing the money? 3 On the totality of the evidence, I find that the accused person lacks integrity and cannot be relied on. This is based on the case of ANANG v THE REPUBLIC [1984-86] 1 GLR 458, where Taylor J (as he then was), explained that to sustain a conviction for stealing there must be an act of the accused of such a nature as to cast a slur on his character revealing him as a person lacking in integrity or as a plainly dishonest person. I find that although the amount admitted by the accused appears to be less than the amount mentioned in the particulars of offence, this does not make the offence any less one, since the ingredients of the offence have been established. From the above and the evidence adduced, I find accused guilty on the charges of stealing and I accordingly convict. SENTENCE I have considered the age of the accused and the fact that he is a first time offender. I have also considered the fact that the amount stolen by the accused as admitted has been retrieved, except the GH¢20.00 used for food. Juxtaposing these with the intrinsic seriousness of the offences committed, the accused is sentenced to three months’ imprisonment and a fine of 100 penalty units or in default, nine months’ imprisonment for Count One and a fine of 100 penalty units or in default, nine months’ imprisonment for Count Two, both to run concurrently. Her Honour Mawusi Bedjrah Circuit Judge 4