REPUBLIC VRS ISSAHAKU & 8 OTHERS (B1/32/2024) [2024] GHACC 270 (16 April 2024)

IN THE UPPER WEST CIRCUIT HELD AT WA ON MONDAY THE 16TH DAY OF APRIL 2024 BEFORE HIS HONOUR JONATHAN AVOGO ESQ. CIRCUIT COURT JUDGE B1/32/2024 THE REPUBLIC VRS 1. SALAM ISSAHAKU 2. IDDRIS MUSAH 3. OSMAN IDDRISU 4. AKANFIAKO ATUPOAK 5. ADDO @LARGE 6. YERO@LARGE 7. YAW@LARGE 8. BAARASA@LARGE 9. OPANKA SUNDAY@LARGE JUDGMENT INTRODUCTION 1. The Accused persons listed above all in the cattle trade but A1, 2, 3, 4 & 6 are Fulani herdsmen resident in various parts of the Upper West Region. A4, 6,7, 8, & 9 are from the Builsa area of the Upper East Region and are cattle dealers who buy and transport cattle to the south for sale. A1, 2, 3 who are before the court were charged with conspiracy to rob and robbery under sections 23 and 149 of the Criminal & Other Offences Act (Act 29) A4 was charged for dishonest receiving contrary to sections 1…. Of the same act. 1 2. A1, 2, & 3 pleaded not guilty to the charges and stood trial. A1 pleaded guilty simpliciter and was a useful witness to prosecution at the end of the day because his evidence unraveled how the 137 cows got into the hands of A1, 2 & 3 thus their arrest by the police. Summary of the facts of the case 3. The summary of the facts however was that the complainant gave his 137 cows of various maturity to a herdsman he had recruited two weeks before the incent occurred to take care of but was informed by the herdsman that two men wielding guns visited the hamlet at about 2am of 20/2/24 and took him hostage and drove away all 137 cows away. Complainant said through his checks he recovered 16 matured cos and six calves which were birthed during the movement of the cattle to Senesi a community close to Sandema in the Upper East region. Police investigations then led to the arrest of A1 & 2 on the 26/03/24 where it came to light that one A6 at large was the one from who all others got the supply of the cows. With these facts and the plea of not guilty by A1,2 & 3 the burden was squarely on prosecution to prove the guilt of the three accused persons before the court and so they called four prosecution witnesses including A4 who pleaded guilty to dishonestly receiving and was then used as a prosecution witness. 4. Evidence of Prosecution Witness 1 (PW1) PW1 the complainant told the court of how he received information from his Fulani herdsman one Omar Idrissu a witness in this case that armed men numbering two arrived at the hamlet where he lives and took him hostage after demanding for his gun and the whereabouts of the owner of the cattle. PW1 said the herdsman told his assailants that he did not have a gun and that the cattle 2 owner was living elsewhere. That the made him lie on his abdomen whilst they stood on him and one will occasional patrol the kraal and return for the other to do same but when all was calm he heard the entire kraal of 137 cattle move out in drones and driven out of the kraal and eventually out of the community. 5. That when the cattle were driven far, the two who were keeping him hostage, woke up from two seats they sat on guarding him and immediately escaped. Seeing that they had fled, the herdsman rushed to inform him of what had happened. PW1 said he was confused of hearing that the kraal he had kept the animals to sell to buy a tractor had been lost to thieves. The witness painfully went ahead to tell the court that he immediately did not go to the kraal but left to an elderly man who has been in the cattle trade or long to inform him and word was sent to the Fulani chief to assist them trace the whereabouts of the missing cattle. That he latter received a message from the chief that some cattle were found and taken to the chief palace at Senensi in the Builsa area in the Upper East Region and so he rushed there to verify and truly he was shown 16 cows which had also delivered six calves at the time. 6. That the chief after exchanging pleasantries with him allowed him take the animals back to his kraal at Loggu after he had narrated the circumstance that brought the cattle to his palace and in his narration the name mentioned was A4 to have bought some cattle from A1 and A2 but he could not convey all away and the cattle ended up in the bush tired to trees and some good Samaritans decided to bring the cattle to the palace. On A3 PW1 told the court that he heard the community had arrested someone involved in the cattle theft and when he got there it was A3 someone he knew and so he called the police to arrest him but 3 during his arrest A1 as well mentioned him and someone he conspired with in the purchase of the animals. Evidence of Prosecution Witness 2 (PW2) 7. PW 2 the accused person turn prosecution witness who had pleaded guilty earlier and promised to tell the court the circumstances that brought him into contact with A1 told the court he received a call sometime in March from a Fulani friend informing him of some cattle in the kraal of A1. He said A1 has lived in the Builsa area before and so he knows him and so he moved to see him and it was true A1 informed him his compatriots in the Upper West Region had delivered some cattle to him and so he could come buy some. 8. That upon arriving at the kraal, he saw A2 with A1 and he was shown ten cows to by at a cost of 2500 each. That he bought 9 for that price and a bigger one he bought for GHC6000. That he explained to A1 he did not have money immediately to pay but A1 said that was not an issue but asked that he deposits something small and he proceeded to deposit a GHC1700 and left without taking even a cow with him. That when he got home A1 and 2 arrived at his residence asking for money and he added them a GHC2000 and on another occasion they came threatening that if he did not pay up he wont be allowed to take the cattle away from their kraal and so he found another GHC6000 for them after which he went to take just three cows leaving seven with A1. 9. PW2 went ahead to brief the court in detail that he was asked again by A1 when he received information from A2 that A1 needed him but this time his kraal in the forest was relocated deep into the forest and so he went and met A8 & 9 also cattle 4 dealers in the Builsa area who were there to buy from the kraal. PW2 said on this occasion he purchased 24 cows and immediately go 23 transported to Kumasi in the Ashanti Region and sold all. That he immediately returned and gave what was A1s due to him which was GHC80,600. That he lodged the money in Commercial Bank Navrongo and went to withdraw it for A1 upon return. 10. PW2 then described how he went back for the remaining eight cows but was told the cows were sold to someone else by A6 which issue generated a misunderstanding because he could not belief that animals he had bought could be resold. That he received information some cows were seen tired to trees in the bush were returned to the chief of Senesi and so he visted the palace and low and below the cattle among other cows were identified and some of those he had earlier bought from A1. PW2 told the court the chief questioned him as to where he bought the cattle and he mentioned A1 but when the chief asked to speak to A1 on phone he took the handset but declined speaking when the chief was on the line. 11. That the chief declined to release the cattle to him but recollects when he returned to A1 he hgave him an amount of GH10,000 to give to the chief to release the cattle to them since the presence of the cattle will led to the discovery of him A1 as the brain behind the distribution of PW1’s kraal. PW2 said he collected the money and duly delivered same to the chief who collected the money but refused to allw him take the cattle away but instead received PW1 who was informed that some cattle was found and taken the palace at Senesi. He then told the court that sixteen cows were found and taken to the palace and whilst the cattle was with the chief six calves were born and all returned to PW1 when PW1 satisfactorily justified why 5 the cattle should be returned to him. PW2 said he was not reserving any truth but will spill the beans to secure an acquittal. 12. Evidence of Prosecution Witness 3 (PW3) The name of the the Fulani chief in Wa was mentioned as one who facilitated the recovery of some of the cows back to PW1 from a colleague chief in Senensi. He told the court as a chief of the nomads, there was a lot of pressure on him because many of them do get into trouble and he has to intervene to solve some of the issues that could be resolved. He told the court that when PW1 informed him of the lost of his cattle he immediately circulated pictures of the cattle on a whatsapp group that his folks are on and that led to a tip off that some cattle were found in the bush at Senesi and were returned to the chief of that community. 13. That he sent an emissary together with the owner of the kraal PW1 to where the cattle were found and they returned with 16 cows with six calves. That whilst A1, 2 and 3 were in custody he has had discussions to facilitate the return of some of the cows if indeed some were still around but that was difficult to proof since the main architect A6 was at large. 14. PW3 admitted starting a discussion with the accused persons to find cattle to settle the loss of PW1 but he was aware the criminal aspect of the case could not be compromise and so far 18 cows were taken from the kraal of A1 and given to PW1. He pleads with the court not to misconstrue his intervention as subverting the law but as a community chief he cant remain aloof when his subjects are in trouble. 15. Evidence of Prosecution Witness 4 (PW4) 6 PW4 the herdsman from whom the cattle was taken gave a brief account of what happened and what PW4 told the court was that deep in the night of the day he was asleep when two men one wielding a single barrel gun and another a short gun woke him up from sleep and demanded that he turned in his gun. Being under siege the elderly herdsman who has barely started working with PW1 for just two weeks told them he has not gun and they enquired of the whereabouts of PW1 and he told them he lived elsewhere. PW4 said they then asked him to lie on his chest and pointed their guns at him whilst others they came with could be heard opening the kraal and driving the cattle out. 16. He told the court he was held hostage till the cattle left the kraal and when he was left alone because the two arm men had left he rushed to inform PW1 of what had happened 17. Evidence of Prosecution Witness 5 (PW5) PW5 the police investigator one …. Told the court he received information from PW1 about his 137 cows getting missing when he was the available investigator at the Regional CID. That later when PW1 assisted in following leads to where the cattle could be, word came that some cattle was seen and taken to the chief of Senensi in the Builsa South District. The inestigator told the court that they collaborated with their colleague Police in Sandema and got PW1 and 2 arrested and it was during the intoregation of him that he mentioned A3 and he was picked up from the community where the cattle were stolen. 18. The inestigator told the court that A1 denied going to robe the cattle of PW1 but then mentioned A6 to have given him the cattle but will not give anymore information. He told the court the interrogation of A4 made the police convinced that A1 was the mastermind as he had information and will not release it to aid the investigation process. He however added that in the investigation process A3 7 admitted that he had a call from A6 that he was heading some cattle into the forest of North East but was missen and so he needed his assistance to re-route to the right direction and when he A3 got into the forest to assist him A6 he saw him with cattle and calves numbering over 60 and when they were in the process of driving the cattle A1 and two other men of Fulani extraction arrived and drove the cattle away. 19. PW5 proceed to tender the investigative caution statement of A1,2 and 3 and the charge statements of the same accused persons and spoke to the fact that the chief of Senensi had indeed taken custody of the aminals numbering 16 that had also delivered six calves and PW1 went and identified the cattle and took them back. He also spoke to the fact that he received information from A4 now prosecution witness 2 that he A1 gave him GHC10,000 to give to the chief to enable them take back the cattle else it could lead to information to recover the animals but that PW2 did indeed deliver the money to the chief but yet released the cattle to PW1 when he came and identified the cattle as his. 20. CLOSE OF PROSECUTION’S CASE The prosecution called five (5) witnesses and closed its case. At the close of the prosecution’s case, the court determined that there was a conspiracy to dispossess PW1 of his animals and that some persons did indeed go to the kraal and with weaponry to subdue and drive all 137 cows away. These findings of fact allows prosecution to prove the charges to the stage of making a prima facie case case against the three accused persons and so I rule that A1, 2 and 3 be made to put up defenses to avert their convictions. 21. The Defense of A1 8 A1 by name Salam Issahaku started his defense by being very insincere and wobbled from not knowing where Sandema and Senensi were when indeed he had settled in those communities. A1 then told the court that he was home when he received a call from 6 that he was on Builsa land and needed a place to settle and will need his assistance. That he left to Fumbisi to meet A6 and together they entered Wiagah and there they met Barrick and two others heading a flock of cattle. He admits knowing A4 now PW2 and that the animals A4 purchased were those he met A6 with but he had bought them from A5and not him as he sought to portray. 22. A1 in responding to cross examination questions mainly based on the evidence of PW2 A1 refused to admit he sold over twenty cows to PW2 and that he never went to meet A6 where A3 was with him. He again denied giving PW2 money to be given to the chief. To conclude, A1 appeared to be in his own world because he denied every evidence against him even when it was evident the claimant could not be speaking untruth. 23. When the prosecutor enquired why he made an overture to the chief of the Fulani community to facilitate the settlement of the case by providing 18 cows towards the eventual part settlement of the case he told the court that it was not an admittance of guilt but an attempt to solve the problem to have his freedom. That he has since released 18 cows to PW2. 24. Evidence of Second Accused Person (A2) 9 A2 Iddris Osman told the court he knows PW2 but has not dealt with him. That the last time he saw him was in Fumbisi town and does not agree with PW2 when he said he found him in A1 kraal when he came to buy the cattle. He however admitted being in the company of A5,6 & A1 where A6 was found with cattle but he did not know where he got them from. He said later all of them including A1, 5 & 6 later that day spent the night in Sandema but he denies robbing PW1 of his cattle or selling any of it. 25. Evidence of Third Accused Person (A3) He admits to living in a village call Kalahi close to the village Loggu where PW1 has his kraal. He told the court that in February A6 had the occasion to call him to assist him drive some cattle to a destination in Tantali that upon meeting him he was with two young boys heading a large flock of cattle and I assisted them drive the cattle to Tuosa. That at Tuosa was where A1 aarived there at about 12 noon with two Fulani men and took the cattle away and A6 brought him back to his community. He concluded by saying he does not know if the cattle were PW1s. Police during his cross examination gave information out that A3 was arrested when A1 mentioned him as his accomplice and that the community in Loggu also take him hostage and subjected him to beating where PW1 then called the police for his arrest. These accounts ended the defenses of the accused and they called not witnesses to their aid. The third accused person Iddris Musah was arrested when the community in Loggu charged on his after the loss of PW1’s cattle because he is accused to know something about the incident. Again Police gave evidence that A1 also whilst in custody mentioned A3 was an accomplice and so was the need to pick him up. A3 told the court that he traveled to Dakola in the Upper East Region to visit and to 10 relocate his wife but that was not successful and so he was on his way back when he met A6 at Jayiri. That A6 asked him to go with him to Wiaga which he did and saw that A6 had cattle with him and later they went into town at Fumbisi and met A5 & 3 and together their errands took them to Sandema where the all spent the night in one room. 26. ANALYSIS & SUITABILITY OF THE CHARGES VRS THE EVIDENCE Having heard both the prosecution and accused, the charge of conspiracy to commit a crime was present because A1, 2 & 3 met with A6 in Fumbisi and in Wiagah where A6 is alleged to have shown A1 cattle numbering 60 cows and again all three spent a night in a room in Sandema ahead of the sale of the cows to various persons and A1 and A3 too again met when A6 handed over the over 60 cows to A1 in the forest in Tuosa. So to resolve the issues of whether or not the charges were appropriate I will hold that yes the count of conspiracy was justifiable and had evidence to prove just that they conspired to dishonestly receive and not to robe because no evidence pointed to A1, 2 & 3 robbing PW1 of his cattle as the ensuing analysis will reveal. 27. ISUUES FOR DETERMINATION The issue to resolve is whether or not all three accused persons conspired to commit the offence of dishonest receipt because they were found with stolen property in the nature of cattle. Section 148 of Act 29 which the court finds reason to rely on and to substitute section 147 in place of robbery as per section 154 of Act 30 reads; “[1] Where a person charged with dishonestly receiving is 11 proved to have had in possession or under control, anything which is reasonably suspected of having 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 the contrary”. In section 147 [1] of Act 29, dishonestly receiving the charge the court prefers to robbery reads; “A person commits the criminal offence of dishonestly receiving property which that person knows to have been obtained or appropriated by a criminal offence, if that person receives, buys or assists in the disposal of the property otherwise than with a purpose to restore it to the owner”. 28. Now, the charge the court prefers to that of prosecution is having in possession of stolen property. Having microscopically gleaned from the evidence that robbery was not the most appropriate charge but that the evidence that A1, 2 & three were all involved in the dishonest receipt of over 60 cows which they took time in the forests of the builsa arrears to sell to various cattle dealers. The evidence of PW2 was very chilling because he recounted how he was contacted 12 and he reached out to A1 who took him to his kraal and there he saw A2 where he negotiated the price for 10 cows and was further invited to buy another 24 cows which he did and took to Kumasi to sell. A1’s participation in the dishonest receipt of the over 60 cows from A6 was evidence the court will describe as incontrovertible. 29. It is obvious 2 & 3 played various roles in the dishonest receipt, whereas A2 was with A1 during the sale and appeared to have relocated to the builsa enclave to facilitate the receipt of his share of the booty, his involvement will not be as much as A1 and I will factor that in his sentencing because he could not explain away that he was not present when PW2 came to buy the cows on both instances. Though prosecution tried to tire A2 to facts surrounding the robber PW1 & PW4 the Kraal owner and the herdsman who takes care of the over 130 cows gave evidence that the two who descended on the kraal were not seen by their very faces and they cannot be recognized when seen. The court was therefore hesitant in finding A2 and others for robbery but has evidence that he conspired and dishonestly received the cattle from A6 when he was in the company of A1,2 & 3 when they met and planned at Sandema and moved to Fumbisi and then to Wiagah where the cattle were. 30. On A3 he gave evidence as to how he assisted A6 drive the over 60 cows to Tuosa when he received a call from him that he was lost in the forest on his way towards Tatala in the North east Region. A3 said he offered to assist A6 and during the movement of the cows to their preferred location in the bush was where A1 arrived with other two compatriots and took the cattle away. The fact that A3 later was found with A1 during their errands to sell the cows and ended up lodging in the same room with A1 & 3 should leave the court with the conviction that he was part of the conspiracy to receive the animals when they were stolen 13 from Loggu where A1 lives and rears his cattle. Again, because criminal prosecution requires strict proof, the court did not allow itself to be carried away by the evidence that the community in Loggu had arrested and subjected A3 to some beating accusing him of having knowing of the theft of PW1’s cattle instead, I prefer the evidence of prosecution that A1 was the one who mentioned A3 as his accomplice when he was arrested and interrogated whilst in custody. 31. The import of section 146 being when a person who dishonestly receives property which that person knows has been obtained or appropriated by a criminal means. It is obvious A1 2 & 3 knew these cows were not the property of A6 but still aided the disposal of the cows. The offence is punishable as a criminal offence and offenders liable to the same punishment as if that person had committed that criminal offence. See Salifu & Another V The Republic (1974) 2 GLR 291. “Knowledge” refers to knowing that the goods have been stolen at the time the goods are received and not subsequent to that date. The basic ingredients that the prosecution must prove in the offence of dishonestly receiving property are that the property being the subject matter of the crime was or has been obtained or appropriated by a criminal offence, the person charged knows that the property has been obtained or appropriated by a criminal offence but the person charged received, bought or assisted in the disposal of the property otherwise than with a purpose of restoring it to the owner. See Gariba V The State (1963) 2 GLR 54. See also R V Bayford (1973) 2 GLR 421. A1, 2 & 3 were certainly co- conspirators who knew and followed the crime all through to the disposal of some of the cows, some of which to PW2 and certainly though knew of the cattle being proceeds of crime never contemplated restoring same to PW1. 14 The charge against the accused persons as having in possession of stolen property contrary to section 148 [1] of Act 29 may be problematic when you consider the totality of the evidence. For the avoidance of doubt, let me reproduce the law again for some legal discourse. The law is section 148 [1] of Act 29. It reads; “Where a person charged with dishonestly receiving is proved to have had in possession or under control, anything which is reasonably suspected of having been stolen or unlawfully obtained, and that person does not give 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 the contrary”. The above provision, as I have always understood suggests that where a person has possession of a thing which is reasonably believed to have been stolen or procured by illegal means, that person ought to be charged with dishonestly receiving so that if that person does not explain to the satisfaction of the court as to how he came by the thing, the court may assume that the thing had been stolen. In that case, the court may convict that person of the offence of dishonestly receiving and not having possession of stolen property. Therefore, section 147 of Act 29 creates the offence of dishonestly receiving. However, in my view, no offence is created in section 148 [1] of Act 29 with which the accused persons can be charged because the punishment is even unknown for it. 15 In article 19 clause 11 says: “No person shall be convicted of a criminal offence unless the offence is defined and the penalty for it is prescribed in a written law”. To this end, I find that A1, 2 & 3 are guilty of the offences of conspiracy to commit crime to wit dishonestly receiving and I proceed to convict them to serve a custodial term of 5 years each. On count two which the court has exercised its digression to prefer section 147 of Act 29 I convict and sentence A1 to eight (8) years in hard labour for creating the market for stolen cattle. A2 having equally have received the cows whilst in the company of A1 is convicted and sentenced to 4 years and A3 being the one who got the cattle to A1 and stayed with him to facilitate the sale is convicted and sentenced to two (2) years. I will however make the sentences of A2 & 3 to run concurrently meaning the will serve five (5) years being the highest of the two charges in hard labour. The 18 cows that were given to PW2 are legitimized by this judgment for him to own though not the very cows he lost. SGD: HIS HONOUR JONATHAN AVOGO ESQ CIRCUIT COURT JUDGE, WA 16