REPUBLIC VRS HASSIW (26/2024) [2024] GHACC 325 (1 August 2024)

CORAM: HER HONOUR LILY AMOAH - KANKAM SITTING AT THE CIRCUIT COURT KINTAMPO, ON 1st AUGUST, 2024 CC NO. 26/2024 THE REPUBLIC VS TANKO STEPHEN HASSIW ------------------------------------------------------------------------------------------------- TIME: 8:38 AM ACCUSED PERSON PRESENT COMPLAINANT PRESENT CHIEF INSPECTOR JOHN MENSAH FOR PROSECUTION PRESENT THE ACCUSED PERSON IS NOT REPRESENTED JUDGMENT The accused person was arraigned before the court on 26/12/2023, and charged with the offence of stealing contrary to section 124(1) of the Criminal Offences Act 1960, (Act 29). The accused person pleaded not guilty and the case proceeded to trial for the determination of the guilt or otherwise of the accused person. The fact of the case is that the Complainant is the owner of a blue Apsonic tricycle with registration number M-22-BT5995 and Chassis number L25HCZ57N8003678. According to the prosecution, on the 20/04/2023 at about 2:00 am, complainant heard a sound of a motor on his compound. He came out only to find out that his motor tricycle was stolen. Complainant quickly raised an alarm and informed the neighborhood for assistance. Complainant together with the help of others traced it to Amoma Nkwanta where he had information that such a motor tricycle was seen packed under an MTN pole / Mast at the same Amoma Nkwanta. Complainant contacted the security man and enquired about the said motor tricycle. The security man answered that on the same date at about 3:00am, he and his colleague heard a sound of a motor in their yard. They quickly went to the yard and saw a blue motor tricycle packed in it without a rider and therefore suspected it to be a stolen one. Whilst on guard for some time, they saw three young men who approached them and claimed ownership of the tricycle saying it was stolen from their brother's house at Peninamisa so they were tracing it. The three young men convinced the security men and exchanged their contact number 0554526920 with one of the security men for the benefit of the doubt and the security man stored same. After that, the security man allowed the three men to take the motor tricycle away. Later when the complainant called on the same number, it indicated that it belongs to the accused person. Complainant further checked on the same number on whatsapp and saw accused person's mother and his little child on his profile. As a result, accused person’s parent who are well known at Peninamisa were contacted to produce him but he refused to turn up despite several efforts made by his parents. On 01/12/2023 at about 8:00am, accused was arrested at Techiman and during investigations, he claimed ownership of the MTN number but indicated to police that he misplaced the number sometime back. After investigations he was charged with the offence and brought before this honorable Court. It is trite that in criminal prosecutions, it is the prosecution that has the legal burden to prove the guilt of the accused person and the standard of proof required is “proof beyond reasonable doubt”. The accused person has no burden to prove his innocence except in some limited situations where the burden of proof shifts to the accused person to prove his innocence. The prosecution is therefore required to produce sufficient evidence from which the guilt of an accused person can be inferred by a reasonable mind. Thus section 11(2) of the Evidence Act, 1975 (NRCD 323) states 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 will find the existence of the facts beyond reasonable doubt.” The prosecution led evidence through five witnesses including the investigator. PW1; KOFI BELLO the complainant, PW2; KWAKU SALAMU, PW3; ALHASSAN YAKUBU, PW4; ABDULAI ABUKARI, PW5; MOHAMMED OSMAN and PW6; DETECTIVE INSPECTOR STEVEN ABEDI. I must state that prosecution filed the witness statement of PW3, but he never called him to testify. Witness statements are not evidence of witnesses, it becomes evidence of witnesses if the witness mounts the witness box and put it in evidence under oath. The court therefore cannot rely on the witness statement of PW3. PW1 and PW2 testified that on the day in question, PW1 had parked his motor-tricycle in front of his house and went to sleep. At about 2:00am he heard the engine sound of the machine, so he came out and detected that the machine has been stolen. He then organized people to assist him to trace it, so they traced it to Amoma Nkwanta where they met PW4 and PW5 at the Glo /MTN Mast at Amoma Nkwanta, so they told them PW1’s machine was stolen from his house at about 2:00am so they are tracing it, they gave the description of the tricycle and PW4 and PW5 confirmed that it was the same tricycle description that was parked there. According to them, PW4 and PW5 told them that some people brought same machine and parked same inside the yard. That some minutes later, some three men came and claimed ownership and said that it was stolen from their brother’s house at Peninamisa so they are coming for it. They added that PW4 and PW5 did not want to release it to them but accused called someone on phone and introduced him to them as his brother from where the machine was stolen and handed the phone to them to speak to him for confirmation. That he the person confirmed to PW4 that the machine belongs to him and that it was stolen from his house at Peninamisa so they should allow them to take it. They added that PW5 was not convinced, so he told them he is still not convinced, so accused gave out his phone number to them to contact him in case of anything so they became convinced and allowed them to take the machine away. PW1 and PW2 also stated that PW5 then gave the phone number given to him by the accused to them. So they checked the number on Alhassan Yakubu’s whatsapp and a picture of a woman and a child they know at Peninamisa were found on his profile. So they made an official report to the police at Jema, they returned and went to accused parents’ and showed the number to them to see if it is known to them. According to them, the accused parents confirmed that it is their son the accused person’s number. According to PW4 and PW5, PW5 said that Abdulai Abukari PW4 the watchman at the Glo mast is his friend and on the day in question, he was with him, and at about 2:00 am they heard the sound of motor engine in the yard, so they quickly rush there and met an APSONIC motor-tricycle, blue in color packed but there was nobody there, not quite long accused and two others came and claimed ownership. They said that the Accused told them, the machine was stolen from his brother at Peninamisa so they were tracing it, and they quickly called someone on phone and introduced him as the owner of the motor-tricycle and gave the phone to PW4, and PW4 spoke with the person who claimed to be the owner. They also said that the Accused and PW5 exchange phone numbers for them to be sure that they are the owners of the machine. The number the accused gave to PW5 is MTN number: 0554526920, so at that point they allowed them to take the machine away. PW4 and PW5 also said further that, at about 4:30am same day, the complainant and his people also came around searching for their motor tricycle and the description they gave was the exact description as the one they allowed the accused and his people to take away. They said that, they then gave the MTN number accused gave PW5 to them and when they checked it on their whatsapp they saw pictures of a woman and child on the profile which they identified as accused person’s mother and his child, after that they left. According to PW5, at about 3:30pm of same day accused called him on the phone with same number he exchanged with him. That the phone number he gave to him (PW5), the complainant and his people keep calling him on that phone. PW5 said again that the accused told him that the complainant and his people told him they will come with him to his place that is PW5’s place and that when they come he should tell them that he made a mistake when he was giving the number to them so that they will have a change of mind. The accused also promised PW5 that if he is able to do that for him, he will give him any motor of his choice, and that he can even do business with him by supplying him with motor-bikes to sell, that they work with customs so documentation is not a problem. PW5 then recorded the conversation and forwarded same to PW4 and the complainant. PW5 said that among the three people who came for the machine accused was the one who came close and did all the conversation with him. PW6 the investigator, Detective Inspector Stephen Abedi told the court that on the 24th of April, 2023 a case of stealing was reported to them, and he took up the investigation on 29/11/2023. He said that during the investigation, both complainant and witness furnished him with MTN phone number 0554526920 which accused exchanged with PW4 and PW5 before moving the motor-tricycle away. He added that, it was also establish that, when the number was checked on whatsapp, pictures of accused mother and child were on his profile, and intelligences later led to the arrest of the accused at his hideout in Techiman and investigation cautioned statement was obtained from him. In his investigation cautioned statement, accused confess and admitted that the MTN number 0554526920 is for him, he also said he came across audio conversation between PW5 and the accused. PW6 tendered three exhibits. Exhibit ‘ A’ and ‘A’ series, the documents and receipt of the said motor bike, Exhibit ‘R’ the caution statement which was tendered and objected on grounds that it was taken in the absence of an independent witness, exhibit ‘B’ charge statements of the accused person and exhibit ‘C’ the audio conversation between the accused and PW5. The prosecution closed its case thereafter. It should be noted that even though exhibit ‘B’ was admitted in evidence, the document the accused seeks to rely on is not in evidence, as having being taken in violation of the provisions in section 120 of the evidence decree. Section 124 under which the accused person is charged enacts that: “A person who steals commits a second degree felony” The Act further provides for the definition of stealing in section 125 as: “A person steals who dishonestly appropriates a thing of which that person is not the owner” On a charge of stealing therefore the prosecution has to prove beyond reasonable doubt, three main elements as was stated in Brobbey and Others v The Republic [1982-83] GLR 608 namely that: • The person charged must have appropriated the thing allegedly stolen • The appropriation must be dishonest • The person charged must not be the owner of the thing allegedly stolen Section 122 of Act 29 defines acts which will constitute appropriation as follows: (1) An appropriation of a thing by a trustee means dealing with the thing by the trustee with the intent of depriving a beneficiary of the benefit of the right or interest in the thing or in its value or proceeds or a part of that thing. (2) An appropriation of a thing in any other case means any moving, taking obtaining, carrying away or dealing with a thing with intent that a person may be deprived of the benefit of the ownership of that thing or of the benefit of the right or interest in the thing or in its value or proceeds or part of that thing Furthermore per section 120 of Act 29, an appropriation of a thing is dishonest, (a) If it is made with an intent to defraud or (b) If it is made by a person without claim of right and with a knowledge or belief that the appropriation is without the consent of a person for whom that person is a trustee or who is owner of the thing or that the appropriation would, if known to the other person, be without the consent of the other person At the close of the case for the prosecution, it was established that the motor Tricycle which the accused person is alleged to have dishonestly appropriated belongs to the complainant. The third element is therefore not in dispute. The evidence also shows that the motor tricycle was parked in front of the complainant house and it was later discovered missing and seen parked under an MTN pole / a mast at Amoma Nkwanta. This shows that there was an appropriation in terms of section 120 of the Act and the appropriation was dishonest because it was done without the consent of the owner and the owner has been deprived of the benefit or of the use of it. However the critical question that arises is whether or not the accused person was the one who dishonestly appropriated the motor tricycle as there was no direct evidence of any body seeing him take the motor tricycle from the complainant house. As stated above, the law posits that an accused person in a criminal trial has no burden to prove his innocence. All he has to do is to raise a reasonable doubt in the case of the prosecution. The accused person thus gave evidence and didn’t call any witness. The accused person’s evidence is that, on one faithful morning somewhere in April 2023, he had a phone call but he was not able to pick up. He later woke up around 6am, and left for work. At the work place two men approached him and told him they had a slight accident which resulted to some damage on their motor, so they needed his help for them to be able to continue their journey. He said he left his work place to where the motor was and that’s where he realized the motor was a motor king and spring forks of the motor was totally damaged. The men then told him to fix new spring fork for them to enable them continue the rest of their journey to Sunyani and after fixing the new spring forks for them, they left and continued their journey. He further stated that, after returning to the work place he received another call from Bronoso to repair another person’s motor king, So he quickly took some spare parts from one Nigeria man and left for Bronoso, because he was in a hurry he forgot his phone behind. After his return from Bronoso, he stopped by the Nigeria man’s shop to pay for the spare parts he took from him and one man called Chairman told him that his mother said he should call her. Desperately, he called his mother and the mother told him that the motor king he took yesterday, he should return it to the owners because they are threatening her life. According to him, he told his mother he had no idea about the motor king they were talking about. However, it flashed his mind that maybe it could be the motor king he repaired in the morning, unfortunately he scrolled through his phone and could not identify the phone numbers of the persons because he missed lots of calls. He said the next morning, he left Bronoso to Sunyani in search of the people but could not find them or the motor king he repaired. Five days later he left to Sunyani again and when he was returning from Sunyani, he saw the motor king he repaired earlier on at Wobrease, so he asked the person who was using the motor king and he told him is for him. He told him he repaired some motor for some men few days ago and the man said those people use to work for him but no more. He added that he went ahead and told the man about what happened on the day he repaired the motor king. After which he suggested to him to please come with him and his motor to Paninamisa for inspection to see if the motor was not the one stolen from Paninamisa, he said the man disagreed and told him the motor is for him, so there is no need for him to do as he suggested. He also stated that, a week later, his uncle came to Bowku, where they were speaking about motor king and told him the motor king which was stolen is an Apsonic Motor. This was the moment he realized that, the Motor King he repaired for the people was not the stolen Motor King because that one was rather Lifan Motor King, so he told his uncle he had no idea about the stolen Motor King and from there he never thought of the stolen Motor King issue again. Five months later, his master who thought him motor mechanic work had an accident and pleaded with him to come to Techiman and help take care of his shop for him. One day, he was at his master’s work place in Techiman and a policeman together with two complainants came to the work place, he was told he was under arrest for the stolen Motor King From the evidence adduced there is no dispute about the fact that a motor tricycle was seen parked under a mast at Amoma Nkwanta. It is also not in dispute that the accused mother was contacted with respect to the said stolen Motorking. The evidence further shows that at all material times, nobody saw the person who stole the tricycle from the complainant’s house and came to park same under the mast. There is no evidence that any of these persons who were at the yard saw the accused person parking the motor tricycle under the mast. However, PW4 and PW5’s allegations that on the day the incident happened, the complainant and his people came to them that their motor is missing and they gave the number the accused allegedly gave to PW5 on that fateful day to them, and when they checked the whatsapp status of the said number, they saw the accused mother and child on the status, was never challenged by the accused person. The accused also during cross examination admitted that the said number that was given to PW5 belongs to him, but the said number is missing, and that it was that same number he used to call PW5. This transpired during cross examination on the accused by the prosecution Q. on 20/04/ 2023, at about 3pm, you spoke to Osman Mohammed ( PW5) on phone A. yes that is so Q. And you told him that the number you gave him is for you A. NO my lady. Q. And in that same conversation, you told him that the number you gave to him when you give it to people is some ways A. yes that is true. Q. You just told the court that you spoke to PW5 on phone, is that the case A. Yes my lady Q. What number did you use to call him A. 0554562920 Q. How did you get PW5’s number A. I Called the missed calls on my phone. Q. And where is your phone A. I don’t have a phone, my phone is missing. From this dialogue, it can be inferred that indeed the accused person called PW5 on the phone number 0554562920 he exchanged with him that fateful day the incident happened. I am surprised that the accused never mentioned this in his evidence. Accused told the court that the phone number he called PW5 on is missing. Assuming even that the phone is missing, when did it get lost, and why is he still not having a phone, somebody who has a job, and in this era that replacement of sim cards has become so easy, that upon request you get some on the same day the request is made, this beats my mind. What is baffling me now is, exhibit ‘C’, upon listening to the audio, PW5 in exhibit ‘C’ after saying hello said “still if I call, he doesn’t pick.” Then the accused responded “that number is mine and is missing so if you give it to people it’s some way.” Meanwhile in the evidence before this court that is the same number the accused used to call PW5. I am confused here. In any case the facts still remains that there was a conversation between the accused and PW5, and the accused has admitted same. In exhibit ‘C’ again, I had the impression upon listening to the audio that PW5 and the accused had entered into some transaction earlier on, and the conversation was a follow up of that transaction. “The accused also said this in the audio” the money is in and that is why I am calling, are the people in when you speak with them let me know, did I tell you they told me we will be coming to your place, if its motor you want I can give you some and supply you some to sell, and for documentation it’s not a problem because we work with customs. Then PW5 said lets finish solving this one first.” what I am not able to understand now is whether the conversation in exhibit ‘C’ was on the phone number the accused allegedly exchange with PW5. I am of the view that there was an earlier conversation between accused and PW5, because upon listening to exhibit ‘C’, it was clear to me that it was a follow up conversation. Per PW5’s evidence, the accused called him at about 3:30pm on the day the incident happened with the phone number the accused gave him, and told him that the complainant and his people told him they will come with him to his place but when they come he should tell them that he made a mistake when he was giving the number to them so they will have a change of mind. To me this was probably the first conversation and probably that was not recorded. Then the follow up conversation was on exhibit ‘C’. I am of the view per this that two separate calls were placed, probably on different phone numbers. If the number the accused gave to PW5 is not going through as indicated by PW5 in exhibit ‘C’, I am of the view that probably the second call was on a different phone number. Accused admitted during cross examination that he called PW5, why didn’t he state that in his evidence. Furthermore, the accused during the trial when PW6 was tendering exhibit ‘C’ into evidence initially objected the exhibit and when it was played to his hearing he later withdrew the objection and admitted the document. Looking at the demeanour of the accused during the trial, he is not a credible witness. For the accused defence to this court the least talked about it the better, his defence to this court to me is just a cooked up story. I am not seeing the head and tail of the accused defence. Per the evidence before the court there is no direct evidence to establish that it was the accused person who stole the motor from the complainant’s house at peninamisa. However, it is my opinion on the totality of the evidence before the court that the accused person was among the three persons who went to pick the motor tricycle that was parked at the yard of the mast at Peninamisa on that fateful day. Considering the evidence adduced by both the prosecution and the defence, it is my view that the evidence of the prosecution sounds more probable and the conduct and demeanour of the accused person during the trial makes him an incredible witness PW6 the investigator in the case, in fact did not conduct any investigation at all into the case. To the extent that a phone number was given to him but he never took steps to go to the telecommunications for information and also that the matter was reported on 24/4/23 and he took up the investigation on 29/11/23, 7 solid months after the case was reported, this he said in his evidence in chief. If he intended to do justice and had conducted investigations very well it could have led to the arrest of the other two suspects. He only jumped into conclusion that the accused person committed the offence because one of the three persons phone number has been furnished to him. And there had been a phone conversation between the accused and PW5, and that the accused mother and child is on his dp. He never took any steps to find out the whereabout of the other two suspects. Investigators should sit up and conduct in-depth investigations into cases, that lackadaisical attitude of some investigators should be halted during investigations so that there will be justice in the prosecution of cases in the country From the foregoing, it is my view that the defence did not raise a reasonable doubt in the case of the prosecution and so a conviction of the accused will lie. Consequently the accused person is hereby convicted of the charge of stealing levelled against him. PRE- SENTENCE HEARING: Q. Any plea in mitigation. A. I’m praying for forgiveness, I have two children, my last child’s mother is deceased, the court should be lenient to me. Q. Are you married A. Yes Q. Prosecution is he known A. No my lady The accused person is a first offender, he has pleaded the court for mercy and leniency. Even though the accused pleaded for mercy, he was not remorseful, he also wasted the courts time. He is accordingly sentenced to 1 YEAR IMPRISIONMENT. ……………………………………………….. HER HONOUR, LILY AMOAH - KANKAM (CIRCUIT COURT JUDGE)