The Republic v Manso and Another (BR/KD/DC/B7/22/2025) [2025] GHADC 263 (18 July 2025)

INTHE DISTRICTCOURTHELD ATKWAME DANSOONFRIDAY THE 18TH DAY OFJULY 2025.BEFOREHER WORSHIP, CYNTHIAADEI ANDY ESQ.(DISTRICT MAGISTRATE) SUITNO.: BR/KD/DC/B7/22/2025 THE REPUBLIC VRS. 1.YAWFRIMPONGMANSO 2.EMMANUEL ACHUBRAATTU J U DGME NT The accused personswere charged withthreeoffences: 1. Conspiracy to commit crime to wit: Stealing. Contrary to section 23(1) and 124(1) ofthe CriminalOffences Act,1960(Act 29) 2. Stealing :contrarytosection124(1) ofAct 29,1960 3. Causing unlawful damage: contraryto section 179(b)ofAct 29,1960. Bothaccused personspleaded not guilty toallthreecounts. 1 The fact of the case is that the complainant, Usakpin John Woyem aged 42 is the Engineer for International Development Resources (IDR) company, undertaking the Government “AGENDA 111 PROJECT” at Kajaji in the Sene East District. The first accused person (A1) is 53 years old. The second accused person (A2) is 49 years old. Both accused persons were employed by the above company as security guards. They arebothresidents ofKajaji. On the 10th of January 2025, and at about 6:00pm, A1 and A2 went and relieved the day duty security man, Kwabena Dickye Emmanuel, to perform night duty from 6:00pm to 6:00am. Whilst they were on duty, air conditioner copper pipes were stolen. It was discovered the next day that damages had also been caused to the installations at the project site. Cutters were used to cut the air-conditioner cables that had been laid in some of the rooms. The items stolen were; forty (40) pieces of air-conditioner copper pipes all valued at GH₵28,150.00, Four hundred (400) pieces of Amanfles flexible tubes valued GH₵ 7180.00, Thirteen (13) pieces of PVC pieces valued at GH₵650.00, Twenty (20) ofelbows valued GH₵60.00, Fourteen(14) pieces oftapes valued GH₵ 980.00 and a 2.5×3 cable valued GH₵1700.00, all to the tune of GH₵38,720.00. The copper cables were initially sent to a nearby bush then later to an undisclosed location. The estimated totaldamage costwas about GH₵15,312.00. In a criminal case such as this, the prosecution is required by law to prove all the elements of the offense beyond reasonable doubt. The onus of the legal burden and 2 evidential burdens are them. Generally, the legal burden does not shift. Section 10(2) and 11 of the Evidence Act 1975 NRCD323. Section 11(2) states: "In a criminal action the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind willfindthe existence of the factbeyond reasonable doubt". (3) In a criminal action, the burden of producing evidence, when it is on the accused as to a fact the converse of which which is essential to guilt, requires the accused to produce sufficient evidence so that on the totality of the evidence a reasonable mind could have a reasonable doubt as to guilt’. It is only the evidential burden that may shift on the accused persons after a prima facie case has been established by the prosecution. The standard of proof must be proof beyond reasonable doubt as provided for under section 13(1) of NRCD 323. See the case ofAmparbeng V TheRepublic [1972] 2GLR171CA. In their bid to prove their case, the prosecution called two witnesses. The first prosecution witness (PW1) was Usakpin John Woyem. He is the site engineer for IDR Company Ltd. He confirmed knowing A1 & A2 as security men employed by the company. He stated that about 6:00am on 11th January, 2025, he received a phone call from their Project Manager, Mr. Mensah Gordon. He called him from Ejura in the Ashanti Region, Mr. Mensah told him that he had received a report from Kwadwo 3 Yeboah that thieves had made away with some air-conditioner copper pipes from the site. That A1 also called him to confirm the theft. PW1 stated that he rushed immediately to the site and met A1and Kwadwo Yeboah. He saw that some of the copper pipes had been stolen. None of them claimed responsibility and so he made a complaint to the police at Kajaji. He later went to the site with an investigator. They took pictures of the scene, they also met A1 and A2. According to PW1, A1 & A2 were subsequently charged on suspicion of having committed the theft. The basis being that they were in charge of security that night and ought to have heard the noise from the chiseling ofthepipes. The final prosecution witness (PW2) was NO. 52247 G/CPL Agbotta Kporla, a police officer attached toCriminal InvestigationDivision at Kajajiinthe SeneEast District. PW2 stated that he was assigned to investigate the complaint of theft by PW1. He said he went to the site in the company of PW1 on getting there, they saw A1, A2 and Kwadwo Yeboah. He observed some of the boards used to seal some of the rooms had been partly removed. Concrete slabs in eight halls, three bedrooms and eight offices have been chiseled and damaged and the copper pipes have been taken away. In the process, A2 led them to the bush near the fence wall and showed some of the copper pipes that were left behind. In one of the offices, he saw amaflex rubber foams, this shows the room where the copper cables were gathered and separated from the rubber foams. According to him, the nature and circumstances under which the cables were 4 stolen, led him to suspect A1 and A2 as the main culprits. He went ahead and took statements from all present that night and after investigations, he charged the A1 and A2 because of their inability to find any reasonable excuse as to how the items were stolenand why theydid notdetect it. PW2 tendered in Exhibit A (Investigation cautioned statement of A1), Exhibit B (Investigative cautioned statement of A2) Exhibit C (charged statement of A1), Exhibit D (charged statement of A2), Exhibit E –K photographs of the crime scene and Exhibit I (Photographofthegeneralview oftheongoing building project). Atthe end ofthe prosecutioncase, accused personswereasked to opentheir defenses. A1’s defense was that, on the 9th of January, 2025, he and A2 reported to night duties at their work place. There was a total blackout in Kajaji township which also affected their workplace. A1 stated that at about 12:00am, he developed a stomach upset so he got up to visit the toilet. On his way, he saw a copper tube on the ground. He said this aroused his curiosity so he decided to investigate how it got there. He said he entered one of the rooms and saw that all the copper pipes had been removed leaving empty tubes on the floor. On seeing this, A1 said he alerted A2 and together they started searching the compound to find the culprits but found none. They then tried to call their immediate boss (PW1) but all the calls did not go through due to a bad network. According to A1, 5 they were able to get him at about 10:00am and at around 11:00am, he came to the site with a police officer. They were later arrested, they were sent home and their rooms were searched but nothing was found. They were subsequently detained at the police station. A1 didnot callawitness. A2’s defense was that they reported to work that evening. He added that there were three of them at the site that evening, himself, A1 and Kwadwo Yeboah. Kwabena Yeboah is a cleaner who had been permitted by the Foreman, Mr. Gordon, to be sleeping there. According to A2, after they had been able to detect the theft, they were only able to get in touch with the foreman and the engineer Mr.John at around 11:00am. The engineer arrived at the site with other workers. Together, they chiseled out the remaining air-conditioner pipes and materials. This was done before the police came to the site. A2 said Kwadwo Yeboah who was with them at the site that night was neither arrested norhishouse searched as theydid toA1 and himself. The definition of Stealing is provided under section 125 of Act 29 as “a person who dishonestly appropriates a thing of which that person is not the owner”. What amounts to an appropriation is given under section 122(2) of Act 29 as “an appropriation of a thing; means any moving, taking, obtaining, with the intent that a person may be deprived of the benefit of the right ownership, or of the benefit of the right or interest in the thing, or its value or proceeds, or part of the thing”. Appropriation forms the actus reus of the offence. The prosecution must therefore establish that it was the accused persons herein that 6 appropriated the things alleged to have been stolen. Per section 122(2) above, the prosecution must prove at least one of the following acts on the part of the accused persons: moving, taking, obtaining, carrying away or dealing with the things stolen. An accused person must not necessarily carry the thing away before he can be convicted of stealing. All that is required is for the object to be removed from its original position. See the case of Aning v The Republic [1984-86] 2 GLR 85. As an element of the actus reus, accused persons must be linked to the appropriation. Prosecution must prove that the accused persons caused the appropriation. Section 13(7) of Act 29 provides: “...it is a question of fact whether an event is fairly and reasonably to be ascribed to a person’s act as havingbeen caused by that act”. In order therefore for a prosecution to succeed in proving a case of stealing they must be able toestablish thefollowing; 1. That theaccused personappropriatedthe thing(s) allegedlystolen. 2. That theappropriation was dishonest 3. That theaccused personis not theowner ofthe thing. SeeAmpah vThe Republic [1976]1GLR 403 On the first issue whether or not there has been an appropriation. The case of the prosecution was that the accused persons were in charge of security at the time the incident happened as such they should be held culpable. There is no evidence on record 7 of the accused persons being linked to the appropriation of the listed stolen items. According to the prosecution, they are here because they were supposed to be in charge of security at the site. Paragraphs 18 and 19 of the witness statements of PW2 are reproduced below: 18. That I state that, the accused persons connived and stole the items because they were on duty atthe scene when the crime was committed. They were unable togive any reasonable excuse as to howthe itemswere stolen and why they did not detectit. 19. That at the scene, it is difficult for an intruder(s) to barge at the scene to easily remove the installed copper pipes from the building unless the person(s) breaks the concrete slabs with a chiseland hammer. Accused persons in their defenses, were able to establish that the yard they were responsible for was very big. That where the theft occurred was about 5-6 electricity poles apart from their duty post. They also indicated that there was a total black out that night. These responses aside, according to them, the thieves did not chisel the walls before removing the cables. It was their case that the culprits broke the end pipe and pulled out the cables. They emphasized that the actual chiselling was done in the morning after the incident and it was under the instructions and supervision of PW1. PW1 also admitted doing so before the police were brought in. This is what transpired whenPW1 was under cross-examinationby A1: 8 Q. Do you remember after the discovery of the theft, I helped you to chisel out the remaining items? A. Yes.We had to dothat to keep the remaining items safe. As a matter of fact, a search was conducted in their homes and nothing was found. Prosecution therefore failed to prove that the accused person appropriated the missing items. On the next issue, and as held earlier, prosecution failed to link the accused persons with the act. The prosecution failed to prove an appropriation. It therefore flows from the above holding that the prosecution has failed to prove any dishonesty on the part of theaccused personsaswell. In conclusion, it will be preposterous to hold the accused persons responsible for the crime of stealing only because they were the security men at post that night. Prosecution therefore failed in their bid to prove that the accused persons stole the cables belonging to theIFR. On the third count of causing damage, section 172(1) of Act 29 provides that a person who intentionally and unlawfully causes damage to any property commits a crime. The value of the property destroyed determines the severity of the punishment. The prosecution must therefore prove that the accused persons intentionally caused damage tothe propertyallegedand thattheir acts were unlawful. 9 The prosecution case was that the accused persons chiseled out the cables and therefore caused damage tothe installations. Both accused persons denied this strongly. According to A1 and A2, what they observed on a careful look at the way the crime was committed was that the thieves broke the end of the pipes and pulled the cables. That they did not see that the cables were chiseled out. They however, said that when PW1 got there in the morning and before he would bring in the police, he ordered the accused persons and some other workers present to start chiseling out the remaining cable from the concrete. PW1 did not deny this when this was put to him when he was under cross-examination. He claimed he was trying to preserve the remaining cables. I must emphasize again that this was done beforePW2, thepolice investigatorcame tothe crime scene. Since the accused persons denied causing damage to the property at hand, it is incumbent on the prosecution to prove their case which they failed as no evidence was introduced to prove the culpability of A1 and A2. In my opinion, accused persons were able to raise reasonable doubt in my mind as to their guilt. They were able to satisfy section13(2)ofthe Evidence Act. Prosecution therefore failed to prove that accused persons were the ones who intentionally andunlawfully caused damage tothe property. 10 On the charge of conspiracy to steal, section 23 of Act 29 provides: where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence. In order for prosecution to succeed they must prove previous agreement between the two accused persons. See the case of Francis Yirenkyi v The Republic C.A CRIM APPEAL NO. H2/15/13; 10th April 2024. An agreement can be inferred from the accused person's conduct. The offense can be established on just the agreement alone and later repentance cannot even count as a defence. It also means that one can be found culpable even if the main crime was not committed. Intheinstant case, the accused personsherein havebeen broughtfor conspiring tosteal. The prosecution failed to prove that there was an agreement between the accused persons to commit stealing. Again the circumstances of the case do not also support such findings. On the basis of this, I hold that the prosecution failed on this count as well. On the basis of the above findings therefore, prosecution has failed to prove their case onall threecounts assuch, accused personsare notguilty oncounts one, twoand three. A1and A2 areaccordingly discharged onallthree counts. 11 …………………………………… H/W CYNTHIA ADEI ANDY ESQ. (DISTRICTMAGISTRATE) 12