REPUBLIC VRS BUKARI & ANOTHER (UB/BG/CT/B7/82/2023) [2024] GHACC 193 (21 May 2024)

IN THE CIRCUIT COURT HELD AT BOLGATANGA IN THE UPPER EAST REGION OF GHANA ON TUESDAY THE 21ST DAY OF MAY, 2024 BEFORE HIS HONOUR SUMAILA MBACHE AHMADU CIRCUIT COURT JUDGE. CASE NO.UB/BG/CT/B7/82/2023 THE REPUBLIC VRS 1. BASHIRU BUKARI 2. RAZAK ALOORE @ZACK J U D G M E N T The accused persons are each charged with DISHONESTLY RECEIVING; contrary to section 146 of the criminal and other offences act 1960 (ACT 29). The accused persons have all denied the offences. THE CASE FOR THE PROSECUTION On 23/12/2021 about 7:20pm, Complainant was in his friend’s house preparing to attend a funeral at Winkogo with others and later realized that he had left his mobile phone at home. The complainant then rode his newly bought unregistered Haojue Express motorbike with chassis number LC6PCJBJ9M0054321 back home to pick the phone. After picking up the phone and just as he was about to sit on the motorbike to start it, two unidentified assailants armed with a gun appeared at the scene on a motorbike and removed the complainant’s motorbike ignition key and seized same. This led to a scuffle between them and the complainant also removed theirs. However, they overpowered the complainant and dispossessed him off his motorbike. In the course of 1 the encounter, the assailants fired at the complainant injuring his left leg and sped off with his motorbike leaving him to his fate. On hearing the gun shot, family members and others rushed to the scene and took the complainant to Bolgatanga Regional Hospital for treatment. Later, the complainant was referred to Ultima Platz Hospital, Zuarungu for specialist treatment. 3/01/2022, complainant returned his police medical report form fully endorsed by a surgical specialist who attended to him at the Bolgatanga Regional Hospital. On 18/01/2022, police had information that A1 Bashiru Bukari receives and sells stollen motorbikes and arrested him. A search conducted at his place of abode led to the recovery of complainant’s stolen motorbike, one other motorbike and several motorbike numbers plates in his custody. A1together with the exhibits were handed over to the Regional CID, Bolgatanga for further investigations. During interrogation, A1, Bashiru Bukari claimed he bought the complainant’s motorbike from one Zack and gave his identity to the police. Upon hearing the arrest and detention of A1 at Tongo police cells, A2 went there under the guise of visiting him but warned A1 not to mention his name as accomplice. On 14/04/2022, A2 Zack Alore @ Zack was arrested but he denied A1’s claim. However, investigations revealed that on 05/01/2022, Bashiru Bukari actually made payment of Ghc202.00 to suspect Razack Alore’s mobile money account number 0594510266 as part payment of the purchased exhibit motorbike. Upon completion of investigations, duplicate case docket was prepared and forwarded to Attorney General’s Office, Bolgatanga for study and advice. The law office therefore advised that accused persons be charged with the offence before this honourable court. Based on this, accused persons were accordingly charged. BURDEN OF PROOF. Prosecution must prove its case beyond reasonable doubt under sections 11 (1) and 13 (1) of the evidence Act 1975 NRCD 323. 2 ELEMENTS OF DISHONESTLY RECEIVING.; It must be shown that (1) the goods alleged to have been stolen were in fact stolen, (2) that the accused knew they were stolen and (3) nevertheless, assisted in the disposal of the goods otherwise than with a purpose to restore them to the owners. ANALYSIS AND APPLICATION OF THE LAW. From the evidence adduced before this court I find the first element of the offence of dishonestly receiving proved, that the goods alleged to have been stolen were in fact stolen. From exhibit D1 the motorbike entered Ghana on the 13/12/2021 through the TATALE CUSTOMS BORDER POST, the complainant purchased it on 20/12/2021 from HAMIDU BAGAYA ENTERPRISE, on 23/12/2021 the motorbike was stolen from the complainant, the complainant suffered a gun shot wound to his left leg. On 18/01/2022 the motorbike was retrieved from A1. Section 148 of Act 29. Provides thus; 1. Where a person charged with dishonestly receiving is proved to have had in possession or under control, anything which is reasonably suspected to have been stolen or unlawfully obtained, and that person does not give an account, to the satisfaction of the court, as to the possession or control, the court may presume that the thing has been stolen or unlawfully obtained, and that person may be convicted of dishonestly receiving in the absence of evidence to contrary. In the instant case A1 in his investigation cautioned statement dated 20/01/2022 says he bought a blue unregistered express motorbike from Zack (A2) and paid GHS 4500.00 and that A2 promised to give him the relevant documents covering it and to receive the balance of GHS 500.00. and his further statement dated 04/01/2023 stated that he made a part payment of GHS 2,500.00 instead of GHS 4,500.00 and that, he paid GHS 2300 cash on the spot and paid GHS 200 through mtn mobile money, in his own words; I 3 intentionally did that to have evidence of payment since the suspect did not give me receipt. A2 in his cautioned statement says he did not know A1 and that he had never come into contact with him and denied ever selling the motorbike to him, but he has not denied the mtn mobile money transaction to him on the 5th Jan. 2022 from A1. In the case of RAHIM IBRAHIM & 3 OTHER V. THE REPUBLIC. CRIMINAL APPEAL NO. H2/2/201 DATED 18 DAY OF JULY, 2017. The court states When a person is charged with dishonestly receiving, the prosecution must prove the following essential ingredients, namely (1) that the accused received property which he knew to have been obtained or appropriated by crime, and (2) that the receipt of the property was dishonest. These two essential elements constitute the ACTUS REUS and the MENS REA of the offence of dishonest receiving. Proof that the accused received something which has been stolen or obtained by any crime is not sufficient. There must be further proof that the accused person knew that the thing had been stolen or obtained by crime, since proof of guilty knowledge on the part of the accused person is essential to the constitution of the offence. In the instant case, the evidence intentionally preserved by A1 clearly shows that he did not trust A2 to accept that he sold the motorbike to him if caught, indicative of his knowledge that the motorbike was stolen. The new motorbike also had no documents covering it and the price paid is so low. It is the duty of the court to satisfy itself that the accused knew that the property has been obtained or appropriated by crime. It has been held by the court of criminal appeal in England in the case of R V JOHNSON [1911] 6 Cr. App 2. 218, that knowledge that the property has been stolen must exist at the time of receipt of it by the accused. 4 From the totality of evidence adduced before this court I hold that the prosecution has proved its case beyond reasonable doubt and hereby convict the accused person as charged. I have considered the length of time the accused persons have been in custody and sentence A1 to 15 years in prison custody each on count one, and A2 to 18 years in prison custody on count two HIS HONOUR SUMAILA MBACHE AHMADU CIRCUIT COURT JUEDGE. 5