REPUBLIC VRS MUSAH (UE/BG/CT/B7/58/2024) [2024] GHACC 189 (21 May 2024)

IN THE CIRCUIT COURT HELD AT BO LGATANGA 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. UE/BG/CT/B7/58/2024 THE REPUBLIC VRS HAKIM MUSAH @ALIAS J U D G M E N T The Accused person is charged for Stealing: Contrary to Section 124 (1) of the Criminal and other Offences Act of Ghana, 1960 (Act 29). The Accused pleaded not guilty to the Offence. THE CASE FOR THE PROSECUTION. On 09/01/2024 at about 11:00am, the complainant was in her shop when the accused person approached her and requested for her black Yamaha Sirius motorbike with registration number M-19-UE 5625 to enable him buy something from Bolgatanga town. The complainant gave the motorbike to the accused person with the hope that he will return within a short period of time. Accused person from the complainant, failed to return same and proceeded to Dakola-Burkina Faso to sell the motorbike. In support of its case the prosecution called two witnesses, PW1 (Akolbila Perpetual) and PW2 (No. 53871 G/CPL. Essien Solomon) the investigator. 1 THE CASE FOR DEFENCE. The accused says he has twins with a lady from Paga who abandoned them with his blind mother and disappeared. That he proceeded to Paga in search of her and that crossed to Dokola to see if she lives there. That he was confronted by a security operative and that landed him in their cells. That he did not understand what they were saying. 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. INGREDIENTS OF STEALING 1. The person charge must have appropriated the thing alleged, stolen. 2. The appropriation must be dishonest and. 3. The person charged must be the owner of the thing allegedly stolen. ANALYSIS AND APPLICATION OF LAW. The accused person had the permission of pw1 to use her motorbike to Bolgatanga town and to return it. The accused person went beyond Bolgatanga town to Paga and crossed the border into Dakola a community in Burkina Faso. The accused is alleged to have offered the motorbike for sale and was arrested by the authorities in Burkina Faso and handed to the Ghanaian authorities for investigations and prosecution. The arresting officer who is in Burkina Faso has not appeared in court to give evidence. What conduct of the accused person arose the suspicion of a sale of the motorbike and how much was it offered for sale either CFA or GHC. Certainly, at the moment the accused person went beyond Bolgatanga town he was without the consent of pw1, but 2 lack of consent alone is not enough to constitute stealing, it is the dishonest appropriation of the article that result in the offence of stealing. The purported offer for sale of the motorbike allegedly took place in Dakola. Off course this court is not oblivious of the difficulty in getting the arresting officer from Burkina Faso to give evidence in a case like this one, but the evidence of the offer for sale is very material in this matter. The accused person has been consistent in his story both in his investigating caution statement and in his evidence in chief, that he proceeded to Paga and into Dakola in search for his fiancé with whom he has twins. In the case of BROBBEY AND OTHERS V. THE REPUBLIC [1982-83] GLR 608, the states the essential elements of stealing; by the provision of ACT 29, s. 125, the essential elements of the offence of stealing were that; (1) the person charged must have appropriated the thing allegedly stolen (2) the appropriation must be dishonest, and (3) the person charged must not be the owner of the thing allegedly stolen. Consequently a person could not be guilty of stealing unless he is proved to have appropriated the thing in the first place. In the instant case, what happened on the part Ghana alone is not enough to achieve a conviction. The conduct of the accused person across the border is material. In the absence of the arresting officer to testify leaves a huge gap in the case of the prosecution. S. A. Brobbey JSC in his book trial courts and tribunals of Ghana at page 167 paragraph (X111) 355 making reference to the case of C O P v Kwashie stated; a conviction can be on the evidence of single witness who is an eye witness. In the instant case PW1 and PW2 are not eye witnesses; this eye witness is a material witness in the establishment of the guilt of the accused person herein. 3 Pw1 in her evidence says she permitted the accused person to use the motorbike, PW2 in paragraph 6 of his witness statement says; on same day the regional police intelligence department (PID) received from a station commander chief Sanou Moussa at Dakola-Burkina Faso Republic that, accused person was arrested together with the complainant motorbike when he was in the process of selling the motorbike. In the absence Chief Sanou Moussa this statement remains an unproven allegation. I hold that the consistent statement of the accused person has not been displaced. I hereby hold that the Prosecution has not proven its case beyond all reasonable to warrant a conviction, Accused is acquitted and discharged. HIS HONOUR SUMAILA MBACHE AHMADU (CIRCUIT COURT JUDGE). 4