REPUBLIC VRS. IQKEWEJI AND ANOTHER (GR/KB/CCT/B1/13/2024) [2024] GHACC 370 (10 June 2024)

IN THE CIRCUIT COURT HELD AT KWABENYA ON MONDAY 10TH JUNE, 2024 BEFORE HER HONOUR MAWUSI BEDJRAH, CIRCUIT JUDGE SUIT NO.GR/KB/CCT/B1/13/2024 THE REPUBLIC VRS PAUL UCHE IQKEWEJI & ANOR ACCUSED PERSON (A1) PRESENT ACCUSED PERSON (A2) PRESENT CHIEF INSPECTOR MABEL ATSU FOR THE REPUBLIC PRESENT JUDGMENT A1 and A2 were charged with two counts namely, conspiracy to commit crime to wit stealing, contrary to sections 23(1) and 124 (1) of the Criminal Offences Act of 1960 (Act 29) and attempt to commit crime, contrary to section 18 (1) of Act 29. A2 was at large initially but was subsequently arrested and brought to Court on 29th January, 2024, when the trial of A1 had concluded. However, having considered the nature of the charges, there was the need to commence trial de novo. A1 pleaded not guilty to the charges. A2 pleaded ‘Guilty with Explanation’ to Count One and Guilty Simpliciter to Count Two. The Court entered a plea of ‘Not Guilty’ for A2 in respect of Count One, as a result of the explanation given and the nature of the charge. The Court also convicted A2 in respect of Count Two and deferred judgment in respect of same. INGREDIENTS OF THE OFFENCES Per section 23 of Act 29, where two or more persons agree to act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them commits conspiracy to commit or abet the criminal offence. 1 Per section 18 (2) of Act 29, every person who attempts to commit a crime shall, be deemed guilty of an attempt, and shall, except as in this Code otherwise expressly provided, be punishable in the same manner as if the crime had been completed. Thus, it would be appropriate to indicate the ingredients of stealing, which are that; a) the accused was not the owner of the thing alleged to have been stolen b) there was appropriation and c) the appropriation was dishonest 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). 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 COMMISSIONER OF POLICE v. ANTWI [1961] GLR 408). FACTS The facts of the case as given by prosecution are that the complainant, Tanko Karim is the Sales Manager of K. Afranie Ventures residing at East Legon, Accra. The 1st Accused Paul Uche Iqkeweji, a Nigerian and the 2nd Accused Kwasi, are all steel benders and live at Ashiaman. On 12th November, 2023, at about 7:00 a.m. the complainant and a witness in this case went to their workplace where they sell building materials at La-Bawaleshie. The two spotted the accused persons loading iron rods into a Kia Rhino truck with registration number GC- 3958-21. The accused persons took to their heels on seeing the complainant and the witness leaving behind the truck driver and the truck. The truck driver was arrested. A complaint was lodged at the East Legon Police Station which led to the arrest of the 1st accused at his hideout the next day. Investigation revealed that the 1st and 2nd accused persons, who had worked with the complainant before as steel benders and knew that Sundays were off days, decided to take advantage to steal from the company. The two accused persons on Sunday 12th November, 2023 hired the service of the truck driver who was not aware of the accused persons’ intentions, to pick a load for them at La-Bawaleshie. On arrival at the scene, the two accused persons loaded three hundred and eleven pieces of 16mm 2 iron rods worth Thirty-Three Thousand, Three Hundred and Thirty-Nine Ghana Cedis, Twenty Pesewas (GH¢33,339.20) but luck eluded them when the complainant appeared. The 1st accused confessed to the offence and was charged with the offence and arraigned before this Honourable Court. The second accused was arrested and brought to Court on a Bench Warrant. THE EVIDENCE OF PROSECUTION Prosecution called two witnesses in an attempt to discharge its burden of proving the guilt of the accused persons beyond reasonable doubt. The first witness was the complainant (PW1) and the second, D/PW/CPL Doreen Dokenu (PW2), the investigator in the case. The investigator tendered the following documents: i. Statement of the complainant made to the police, dated 12th November, 2023-Exhibit ‘A’ ii. Photographs of A1 and A2 with truck number GC-3958-21 with its content- Exhibits ‘B’ and ‘B1’ iii. Statement of Eric Okpoti made to the police-Exhibit ‘C’ iv. Statement of Udu Agyekum made to the police-Exhibit ‘D’ v. Investigation cautioned statement of Yakubu Ziblila, the driver in charge of the vehicle-Exhibit ‘E’ vi. Investigation cautioned statement of the accused (A1) as Ex ‘F’ vii. The charged cautioned statement of A1 as Ex ‘G’ viii. Witness Statement of Eric Okpoti as Exhibit ‘H’ ix. Investigation cautioned statement of A2 dated 28th January, 2024 as Exhibit ‘J’ x. Charged cautioned statement of A2 dated 28th January, 2024 as Exhibit ‘K’ At the close of the case for prosecution, the Court invited the accused persons to open their defence as the Court found a prima facie case made against them. DEFENCE OF ACCUSED PERSONS Accused (A1) opened his defence as follows; “I am Paul Uche Iqkeweji. I live at Ashaiman. I am a steel bender. I was called to do work. The foreman called me as he used to call me. I did not know that it was stealing we were going to do. I was there that day to do work and not to steal. Before this incident, I was not going there since I had been warned not to go there. It is A2 who knew what he was going to do. That is all.” 3 Accused (A2) also opened his defence as follows; “My name is Kwasi Abuntuik. I live at Ashaiman. I am a steel bender. We did not conspire. I was there when I had a call from A1 and the truck driver. Sometimes, the company gives my number to truck drivers to call me for work. The other person with the driver asked us to load the truck with the iron rods.” EVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW Prosecution led evidence to the effect that anytime that materials were brought to the company, A2 would be informed and normally mobilised his boys including A1, to come and off load the iron rods for the company. So, A1 and A2 have been working with the company as and when the need arises, until A1 was asked to stop working for the company. On the day of the incident, A1 and A2 were seen packing iron rods into a Kia Truck without authorization from the company. The accused persons took to their heels on seeing the complainant and a witness, leaving behind the truck driver and the truck. The truck driver was arrested. As previously stated, A2 pleaded guilty to Count Two, being the offence of attempt. Both A1 and A2 were seen loading the trucks with the iron rods. However, according to A1, he did not know that they were going to steal. It is worth noting that both accused persons decided not to cross-examine the first witness. In cross- examining the second witness, their concern was with the driver. The cross- examination by A1 in this regard is as follows; Q: Where is the driver and the car? A: During investigations, it came to light that both of you went to the station to hire the driver for the service and he was not part of the plan. The truck has been restored. Q: Where is the witness that saw that we stole? A: He is no more.” I have noted the various inconsistencies in the statements of A1 to the police and his evidence in Court. More so, A1 in his own evidence informed the Court that he did not know that they were going to steal. That being the case and having been warned not to go to the premises, he should have obtained the necessary permission from the company or its authorized person to be there. And then, if he thought they were there to work, why did he run away when someone from the company approached and questioned them? I have further noted from the cross- examination quoted earlier that he admits the offence of stealing. 4 I find that A1 and A2 attempted to steal the iron rods, of which they were not owners. A1 and A2 were actually caught in the act of loading the iron rods into the truck. They would have succeeded in their act, but for the intervention of witnesses. I find that their act of appropriating the iron rods was dishonest. As regards the charge of conspiracy, I refer to a statement by Crabbe JSC in COMMISSIONER OF POLICE V AFARI AND ADDO that “It is rare in conspiracy cases for there to be direct evidence of the agreement which is the gist of the crime. This usually has to be proved by evidence of subsequent acts, done in concert and so indicating a previous agreement.” I find in this case that there was sufficient evidence in respect of conspiracy, which conspiracy was both in the agreement to go and steal and the overt acts of the accused persons in going together to the company and loading the iron rods into the KIA truck. The defence by the accused persons did not raise any reasonable doubts in the prosecution’s case. I accordingly convict accused persons, A1 and A2 of conspiracy to commit crime namely stealing. I further convict A1 of attempt to commit crime. As previously stated, Per section 18 (2) of Act 29, every person who attempts to commit a crime shall, be deemed guilty of an attempt, and shall, except as in this Code otherwise expressly provided, be punishable in the same manner as if the crime had been completed. Further, per section 24(1) of Act 29, where two or more persons are convicted of conspiracy for the commission or abetment of a criminal offence, each of them shall, where the criminal offence is committed, be punished for that criminal offence, or shall, where the criminal offence is not committed, be punished as if each had abetted that criminal offence. Also, section 20 (3) (b) provides that a person who abets a criminal offence is, if the criminal offence is not actually committed, in any other case the abettor is punishable in the same manner as if the criminal offence had been actually committed in pursuance of the abetment. 5 SENTENCE I have considered the above provisions in respect of the offences and also considered the fact that the accused persons have been in police custody since the commencement of the case. I have also considered the fact that they are first time offenders and that the iron rods have been retrieved and restored to the complainant. I have furthered considered the plea in mitigation by Counsel for the accused persons. The accused persons are therefore sentenced to a day’s imprisonment and a fine of 200 penalty units for Count One and a fine of 250 penalty units for Count Two or in default, 12 months’ imprisonment, both to run concurrently. Her Honour Mawusi Bedjrah Circuit Judge 6