REPUBLIC VRS WILLIAMS & 2 OTHERS (D3/02/23) [2024] GHACC 12 (25 January 2024)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON THURSDAY, THE 25TH DAY OF JANUARY, 2024, BEFORE HER HONOUR AGNES OPOKU- BARNIEH, CIRCUIT COURT JUDGE SUIT NO: D3/02/23 THE REPUBLIC VRS: 1. PRINCE WILLIAMS 2. KOJO KWAN 3. BERNARD ANDOH ACCUSED PERSONS ABSENT (IN LAWFUL CUSTODY) INSP. EMMANUEL ASANTE FOR PROSECUTION PRESENT PAULINA FLEISCHER, ESQ FOR ACCUSED PERSONS PRESENT RULING ON SUBMISSION OF NO CASE FACTS: The three accused persons were jointly charged and arraigned before this court on 28th April 2023, on the following charges; 1. Unlawful Entry contrary to Section 152 of the Criminal Offences Act, 1960 (Act 29) 2. Causing Unlawful Damage contrary to Section 172(1)(b) of the Criminal Offences Act (1960) Act 29. 3. Attempt to commit a crime namely Stealing contrary to Sections 18 and 124 (1) of (Act 29). The brief facts presented by the prosecution are that the complainants in this case are Police officers stationed at the Tema Community One District Headquarters. The first 1 accused person, Prince Williams, is a driver's mate, the second accused person, Kojo Kwan, is a fisherman and the third accused person, Bernard Andoh is a seaman and all three accused persons are squatters at Abonkor Waterland, Tema New Town. The prosecution claims that on 24th April, 2023 at midnight, the accused persons scaled the company’s wall and entered a portion of the premises which is defunct. The accused persons then set an electricity transformer in the premises ablaze to enable them to remove the cables in it. The nefarious activities of the accused persons were seen by some good Samaritans who alerted the complainants who were on patrol duty in the area. The patrol team moved to the company and informed the security guards on duty at the main entrance which is far from where the accused persons were engaging in their activities. The police, together with the security guards arrested the accused persons and sent them to the Tema Lube Oil Police Station where a complaint was lodged. The scene was visited and photographs were taken. The prosecution further alleges that the accused persons admitted the offences in their respective investigation caution statements. After investigations, the accused persons were charged with the offences and put before this honourable court. THE PLEA The accused persons who were represented by Counsel at the time their pleas were taken pleaded not guilty to the charges after they had been read and explained to them in the Twi language. After the conduct of the case management conference, and the case was ripe for trial, the accused persons changed their legal representation and their present lawyer, informed the court about the decision of the accused persons to change their pleas to guilty on counts 1 and 3 and maintain their pleas on the charge of causing damage on count 2. With the benefit of legal advice, the pleas of all three accused persons were retaken. The accused persons pleaded guilty on counts 1 and 3. 2 Consequently, the court proceeded to pronounce the accused persons guilty on counts 1 and 3 dealing with unlawful entry and attempt to steal and convicted them on their pleas of guilty on the two counts. Since the court had to conduct a trial on count 2, the court deferred sentencing until the determination of the charge of causing unlawful damage. The case proceeded to trial on count two and the prosecution called four witnesses and tendered in evidence the following documentary evidence; Exhibit ‘A’: Investigation Caution Statement of the first accused person dated 24th April, 2023 Exhibit ‘B’: Investigation Caution Statement of the second accused person dated 24th April, 2023 Exhibit ‘C’: Investigation Caution Statement of the third accused person dated 24th April 2023. Exhibit ‘D’, ‘DI’: Photographs of. Transformer Exhibit ‘E’: Photographs of the second accused person’s slippers at the scene of crime. Exhibit ‘F’: Photographs of the wall the accused person scaled into the premises. Exhibit ‘G’: Charge statement of the first accused person. Exhibit ‘H’: Charge statement of the second accused person. Exhibit ‘J’: Charge statement of the third accused person. At the close of the case for the prosecution, Learned Counsel for the accused persons submitted that there was no case diffidently made out against the accused persons requiring them to open their defence and filed a submission of no case on 23rd January, 2024. 3 Paragraph 21 of the Practice Direction (Disclosures and Case Management in Criminal Proceedings) states that: “at the close of the case for the prosecution, the Court shall, on its own motion or on a Submission of No case to Answer, give a reasoned decision as to whether the Prosecution has or has not led sufficient evidence against the accused person”. Accordingly, counsel for the accused having raised a submission of no case pursuant to Section 173 of the Criminal and Other Offences (Procedure) Act 1960, (Act 30) the court is duty bound to evaluate the evidence led by the prosecution to determine if a case is sufficiently made out against the accused person to require him to open his defence. THE LAW ON SUBMISSION OF NO CASE: Section 173 of the Criminal Procedure Act, 1960 (Act 30) provides that: "Where at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require him to make a defence, the Court shall, as to that particular charge, acquit him." In the oft-cited case of State v. Ali Kassena (1962) GLR 144-154, the Supreme Court laid down the principles governing a submission of no case. The Supreme Court stated that a submission that there is no case to answer might properly be made and upheld: (a) When there has been no evidence to prove an essential element in the alleged offence; (b) When the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict upon it In the same case of Sarpong v. The Republic [1981] GLR 790 the court held in its holding 1 that: 4 “the law enjoined a trial judge to hold that no prima facie case had been made and that the accused was entitled to be acquitted and discharged if at the close of the prosecution’s case, no sufficient evidence had been adduced to prove beyond all reasonable doubt, the charge laid against the accused; and it was wrong in law for the trial judge to ignore that legal duty and instead call upon the appellant to enter his defence.” The current position of the law is that the standard of proof at the close of the case for the prosecution is a prima facie case as opposed to beyond reasonable doubt which can only be arrived at after evaluating the evidence led by both the prosecution and the defence. See the case of Kwabena Amaning Alias Tagor and Anor. v. The Republic (200) 23 MRLG 78. Additionally, where the court overrules a submission of no case on grounds that a prima facie case is made out against the accused person and calls upon the accused person to open his defence but he refuses to offer any defence, he can properly be convicted upon the evidence led by the prosecution at this stage. See the case of Armah v. The State [1961] G.L.R. 136 at p. 141. The elements of a submission of no case are discussed in the light of the evidence led in support of the ingredients of the offence to determine if, at the close of the case of the prosecution, a prima facie case is made out to call on the accused person to open his defence. COUNT 2 The accused person is charged with causing unlawful damage contrary to Section 172 (1)(b) of Act 29. Section 172 (1)(b) provides that “a person who intentionally and unlawfully causes damage to property to a value exceeding one million cedis, commits a second-degree felony. To succeed, the prosecution must establish the following essential elements of the charge; a. that damage was caused to the transformer. 5 b. that the accused persons caused the damage. c. That the damage caused by the accused persons was unlawful. d. That the unlawful damage caused by the accused person was intentional. e. That the value of the damage caused was more than GH¢100. In the case of Homenya v. The Republic [1992] 1 GLR 305-319 it was held at page 312 that “Section 172(1) of Act 29 which creates the offence of unlawful damage requires that for a person to be liable under the said section, the accused must have caused the damage intentionally and unlawfully. The first prosecution witness, Joshua Botchway testified that he is a security guard and that on 23rd April 2023, at about 11:00 pm, he was at his company’s main plant at Community 3, Tema when he received a phone call from a colleague, one Abdul Rah Iddris Abdul Malik that he has received a call from one Shadrack who is an Octavian Private Security manning Blue Ring, a subsidiary of Wilmar located at Industrial Area that thieves had entered the premises. He rushed to the scene with the said Abdul Rah and discovered that the police were already at the scene and had arrested the accused persons. He also detected that a transformer on the premises had been set ablaze. According to him, this was not the first time there had been a theft of cables in the company. The accused persons were interrogated and they led them to Abonkor Waterline where they pointed out three persons as the people they have been selling the stolen cables from the company to. When the accused persons were arrested, they had an empty sack with them. Under cross-examination by Counsel for the accused person, the first prosecution witness testified that he did not see the accused person set the transformer on fire and that when he got to the scene, the accused persons had been arrested by the police and the transformer was on fire which means that the accused person set the transfer on fire 6 because they go on patrol every day and they did not see the transformer on fire. He further testified that the purpose of the burning was to enable them to take coppers out of the transformers. He further testified that the value of the transformer was estimated at GH₵350,000 and that he could not tell if the transformer was working but it was a new one. The second prosecution witness, Abdul Rahim Iddris Abdul Malik testified that when the incident happened and they visited the scene of the crime, the patrol team had already arrested the accused persons with sacks in the backyard where the non- functioning transformer was located and they noticed that the accused persons had set the transformer on fire. The second prosecution witness also testified under cross- examination that the company stopped using the transformer in the year 2021 and that he does not know if the machine is still working but he knows that thieves go there and they arrest them. The third prosecution witness, Chief Inspector Carl Dotse also testified that on 24th April, 2023, whilst on night patrols, they had information that some people had scaled into Bluering Company Limited and they quickly drove to the said company. The team met the security man at the entrance of Bluering Company Limited yard so they told him their mission there and without hesitation, he walked them into the company’s abandoned section where three young men who are the accused persons in this case were burning an old transformer and upon seeing the Police tried to scale the wall but they quickly surrounded them and arrested them. The third prosecution witness under cross-examination by Counsel for the accused person, the following ensued; Q: You indicate that on the day of the arrest, the transformer was on fire. Did you take any pictures? 7 A: No, My Lord. Q: Did you see the accused persons with any items in their hands belonging to Blue Ring? A: My Lord, I saw them with an empty sack. Q: So you did not obtain any gadgets used in setting any alleged fire nor parts of an electricity transformer as you seek to make this court believe. A: Yes my Lord. Again, under further cross-examination by counsel for the accused persons, the third prosecution witness testified that when he got to the scene, he saw the accused persons by the fire burning. He also described the transformer that was burning when he got to the scene as an old transformer and stated that it was almost a skeleton since some parts had been extracted from it and that since the transformer was on fire, he could not touch it. The fourth prosecution witness, No. 47742 G/CPL Frank Mbora, the investigator testified that during his investigations into the case, he proceeded to the company and the security guards informed him that they were able to arrest the accused persons who at the time had set an electricity transformer ablaze to enable them to remove the cables from it. According to him, the accused persons admitted having unlawfully entered the premises and attempted to steal but denied having set the transformer ablaze and claimed that the transformer was burning when they scaled into the premises of the company. On 25th April 2023, he visited the scene together with the security guards and the accused persons where the accused persons pointed to the place where they scaled over the wall into the premises of the company. He further stated that the burnt transformer 8 was not seen at the scene and one Aboagye Acosta, the Human Resource Manager of the company told him that the authorities of the company had taken it away and he produced photographs of the transformer before it was set ablaze and another photograph of the same transformer after it was set ablaze. He stated further that during the investigations, the complainants told him that the transformer was valued at GH₵350,000.00. The investigator under cross-examination by Counsel for the accused persons again stated that when he visited the crime scene on 25th April 2023, with the complainant, and the accused persons, the transformer was not at the scene of the crime. He further stated that he did not know the time that the transformer was removed from the scene but at the time of his visit to the scene, the transformer had been removed and management told him that they decided to remove it because they were afraid that some thieves might come and steal same from the place. According to him, the complainants only told him the value of the transformer but when he asked for the receipts, he stated that he had to contact the Electricity Company. As a result, he could not tell the value of the transformer at the time of arrest although the value was given as GH₵350,000.00. He further testified that he did not find anything on the accused persons that could have been used to set the transformer ablaze and that they were arrested and brought to the station and handed over to him to investigate. All the accused persons in their investigation caution statement and the charge statements stated that they went to the premises of the company in search of scraps but they all denied setting the transformer on fire. Learned Counsel for the accused persons in her written submission of no case strenuously contends that the prosecution failed to prove that it was the accused persons who set the fire to the transformer. Counsel maintains that the evidence of the 9 prosecution is riddled with inconsistencies and contradictions such that the prosecution failed to prove the essential elements. Learned Counsel for the accused persons also contends that the company obstructed justice by tampering with evidence when it moved the transformer from its location before the investigator could investigate same. The prosecution witnesses were also not consistent on the value of the transformer as to whether it was new or not. In the case of Brempong II v. The Republic [1995- 1996] 350-367 @ 361-362 “...In law for conflicts and inconsistencies in evidence to influence a decision they must be material and such that they destroy proof of an element of the offence or totally discredit the witnesses such as to make their story unreliable. So long as there was evidence to support the charge of stealing which any reasonable tribunal could act upon to convict, there was a prima facie case made out. A court should not reject a party's case simply because the witnesses contradicted themselves here and there, especially when they testified to events which occurred some years earlier. The court should consider the materiality of the conflicts in the light of the issue(s) which such evidence sought to prove and decide whether it makes proof of the issue, if relevant to the case, highly unacceptable or unreasonable to accept. ….” In the instant case, conflicts and inconsistencies as to the value of the transformer and whether new or old is not material since for purposes of the offence of unlawful damage, the value determines whether the offence is a misdemeanour or a second- degree felony. Thus, where damage is caused to a property valued at more than One Hundred Ghana Cedis, the offence becomes a second-degree felony and any value below that makes the offence a misdemeanour. Where the prosecution fails to prove the value, the courts treat the damage as of no pecuniary value which makes it a misdemeanour under Section 172 (a). See the case of Asante v. The Republic [1972] 2 GLR 177. 10 In the instant case, the prosecution witnesses contend that although no one saw the three accused persons set fire to the transformer, they highly suspect them to have been the people who set fire to the transformer. The evidence of the prosecution witnesses also shows that before the investigator, PW4 assigned to investigate the case, the company had already removed the alleged burnt transformer from the scene of the crime. Thus, tampering with the material evidence in this case denied the investigator the opportunity to examine the cause of the fire since a transformer being electrical can catch fire without anyone necessarily setting fire to it. On the face of the photographs, it is not clear that the transformer was indeed on fire. It was therefore necessary for the cause of the fire, who set it and how the fire was finally extinguished to be established on the evidence. The prosecution witnesses were all candid under cross-examination when they admitted that they saw the accused persons at the premises but upon arrest, nothing incriminating for setting fire to cause damage to a transformer was found on them but only empty sacks. They further stated that the accused persons were not the first people to be arrested in respect of theft at the premises and that some of the people had been charged and convicted before court. On the totality of the evidence led by the prosecution, I find that the prosecution failed to prove that the accused persons set fire to the transformer to cause damage to it if any damage was caused at all. The prosecution therefore failed to prove the essential elements of the offence charged. The submission of no case is accordingly upheld. The accused persons are acquitted and discharged on count 2. SGD. H/H AGNES OPOKU-BARNIEH (CIRCUIT COURT JUDGE) 11