S v Nyabi (B7/39/2024) [2025] GHADC 185 (31 March 2025)

IN THE DISTRICT COURT HELD AT SEGE ON MONDAY, THE 31ST DAY OF MARCH, 2025. BEFORE HER WORSHIP VICTORIA AKUA GHANSAH ESQ. AS MAGISTRATE. CC: B7/39/2024 THE REPUBLIC VRS 1. SERAPHINE NYABI 2. (AT LARGE) JUDGMENT Accused was charged with the offence of stealing: contrary to section 124 (1) of the criminal offences act 1960 (act 29). Accused pleaded not guilty to the charge. By this plea it means that their guilt has to be proved by prosecution beyond reasonable doubt. That common law rule that a person was presumed innocent until the contrary was proved or he pleaded guilty is reinforced by Article 19(2) (c) of the 1992 Constitution which enacts: (2) “A person charged with a criminal offence shall ------- (c) Be presumed to be innocent until he is proved or has pleaded guilty.” The mandatory requirement that the guilt of the person charged ought to be established beyond reasonable doubt and the burden of persuasion on the party claiming that a person was guilty, has been provided for in S.s 13 and 15 of the Evidence Act, 1975 (NRCD 323). Significantly, whereas the Prosecution carries that burden to prove the guilt of the Accused beyond reasonable doubt, there is no such burden on him to prove his innocence. At best 1 he can only raise a doubt in the case of the Prosecution. But the doubt must be real and not fanciful. 1. Prosecution in proving their case called two witnesses including the investigator. The statements of these witnesses including other documents for Case Management Conference (CMC) were filed on the 21/12/23. Hearing commenced on the 29/1/24. 2. In Republic v. Adu-Boahen & Another [1993-94] 2 GLR 324-342, per Kpegah JSC, the Supreme Court held that: 3. “A plea of not guilty is a general denial of the charge by an accused which makes it imperative that the prosecution proves its case against an accused person ……….. When a plea of not guilty is voluntarily entered by an accused or is entered for him by the trial court, the prosecution assumes the burden to prove, by admissible and credible evidence, every ingredient of the offence beyond reasonable doubt”. It happened that accused person upon his arraignment before this court, denied both charges against by pleading not guilty to the said charges. It is without doubt that the obvious legal effect of his pleas- which joined issues on the counts with the prosecution - resulted in the prosecution assuming the burden of proving his guilt on the counts against him beyond reasonable doubt in criminal proceedings of this nature. This is because under Article 19 (2 ) ( c ) of the 1992 Constitution, a presumption of innocence has been created in favour of the Accused upon pleading not guilty as follows; “Article (2) (c) A person charged with a criminal offence shall…. be presumed innocent until he is proved or has pleaded guilty”. BRIEF MATERIAL FACTS 2 The brief material facts of this case as supplied by the prosecution are essentially that the complainant Godfred Avusuglo, the manager of J.K Block factory and the accused persons A1 and A2 at large are driver and beer bar operator both residing at Amatey Koni and Kasseh respectively. On the 25th day of July, 2024 about 5:00am the complainant detected theft of the factory’s green Apsonic tricycle with registration number M-22-GS-418 which was parked in the block factory at Amatey Koni. On the 30th day of July, 2024 about 4:00pm the complainant had information that the stolen green Apsonic tricycle was spotted at Kasseh and the colour has been changed to blue. The complainant together with other people immediately proceeded to Kasseh where they spotted the accused person riding the stolen Apsonic tricycle. The Complainant stopped the rider and inspected the Apsonic tricycle and it was the factory’s tricycle that was stolen on 25th day of July, 2024 at the factory. The complainant together with other people arrested the accused person together with the Apsonic tricycle and brought to Sege police station for investigation. During investigation, a witness who sprayed the tricycle from green to blue colour told police that it was A1 and A2 now at large who brought the stolen green Apsonic tricycle to his workshop for spraying. After investigation the accused person was charged with the offence stated in the charge sheet and now before this honorable court. ISSUES FOR DETERMINATION 1. Whether the Accused person stole the Apsonic Tricycle motorbike of complainant. In proving their case the prosecution called three witnesses including the prosecutor. They testified per their filed witness statements. Prosecution also tendered into evidence the following documents or exhibits in support of the case of the prosecution: 1. Exhibit A Investigative Cautioned Statement 2. Exhibit B Investigative Charged Statement 3. Exhibit C was a picture of Apsonic Tricycle 3 EVIDENCE ADDUCED BY THE PROSECUTION AT THE TRIAL: The first prosecution witness (PW1) was Godfred Avusuglo of Amartey Koni who works at J. K Block factory at Amartey Koni. PW1 confirmed the facts of the case and how he got people to assist him to arrest the accused to Sege police station. PW2: ERIC KWAME A SPRAYER AT KASSEH In his evidence in chief PW2 stated that, he was in his spraying shop when Accused and another came with the Apsonic Trycycle Motorbike that they wanted to change the color. PW2 added he charged them GH¢1,200.00. After the spraying the Accused and the other paid GH¢1,000.00 with a balance of GH¢200.00 to be paid to him for the spraying work he did. PW3 Number 45684, D/Sgt Nazzarh Nashiru stationed Sege station CID Pw3 in his evidence as the investigation officer intimated to court that PW1 and others arrested Accused to the station with the Apsonic Tricycle motorbike that was stolen from his block factory. According to PW3 Accused told police it was one Aworry at large who asked him to go for it from one Manasseh before he was arrested on the way to Aworry’s place. Accused led the police to the shop of PW2 as the one who sprayed the blue tricycle into green color. After investigation the accused was charged. Meanwhile, at the close of the case of the prosecution, the court determined that the prosecution had, by their evidence, made out a prima facie case against the accused person on the count warranting him to open his defence to avoid a ruling of the court on the issue against them. See section 174 of the Criminal Procedure Act, 1960, Act 30. CASE OF THE FIRST ACCUSED PERSON, SERAPHIN…. 4 The accused person in his sworn defence told the court that he was arrested at Kasseh (Ada) and a driver. Accused denied any knowledge about the motorbike. The motorbike was given to him by Stephen Doku to bring it from Luofenya (Ada) to Kasseh. On reaching Stephen Doku’s house, the complainant and Police arrested him with the motor around 2pm to 4pm. Accused continued that he had known Stephen as a childhood brother. Stephen did not own a motorbike before the day in question. When he came to meet the Police and the Complainant in the house, he told them Stephen sent him to bring the tricycle. The Police took the tricycle from him. Accused got Stephen’s number to the Police. The Police called Stephen. The line was not going through. Stephen was at Kasseh. He was hiding. Accused further added that anytime he called him Stephen tells him he was not in town. He was sent to the Police station and statement was taken. One of the complainants by name Nyamekye told him Stephen Doku stole the tricycle. Excerpts from cross examination Q. On the day in question when sending the tricycle to look for buyer, you did not go with Aworry. A. Yes. I did not go with him. Q. But the following day, he sent you alone to go and bring the motorbike. A. That is so. But it was same day. He sent it to the buyer at Luofenyo and asked me to bring it in the afternoon to Kasseh. Q. What is the name of this buyer. A. He is called Manasseh. Q. Did he tell you the reason why you have to bring the motorbike back. A. Yes. He said the price the buyer wanted to pay was too low. Q. Did the buyer also tell you the reason why he did not bring the motorbike. 5 A. Stephen Doku told me he had an accident before so his leg was paining him. Q. You said the first time you went to the house of Aworry, you saw unregistered green motorbike. A. That is so. Q. And this Aworry told you he wanted to change the colour. A. That is so. Q. You agree with me that Aworry told you the colour was not faded. A. Yes. Q. Did Aworry tell why he wanted to change the colour. A. He did not tell me. I asked him and he told me his favourite colour was blue. Q. I am putting it to you that you and Aworny stole the motorbike and agree to change the colour from green to blue so that the owner will not see it. A. That was not so. Q. It is true that before you met motorbike in the house, you were always visiting him and there was no such motorbike in the house you were always visit. A. That is so. Q. And before this incident, you never saw this motorbike packed in the house. A. That is so. I never saw this motor until that day. Q. Did you ask your friend where he bought this motorbike from. A. I asked him and he told me the motorbike was sold to him from Somanya. 6 Q. Did he tell you the amount he bought it. A. No. Q. Did he show you any document. A. No. Q. I am putting it to you that you and Aworry stole this motorbike from the owner and changed the colour from green to blue so that the owner cannot identify. A. That is not so. DWI is Mawuli Davor, a loading boy at Kasseh and the Accused is his Auntie’s son. On the day of incident, he was at Kasseh sitting behind a kiosk. He heard some noise and came to see what was happening. DW1 heard Accused being accused of stealing a tricycle. He told them he did not steal the tricycle that he was sent with it. He was arrested to the Police station at Sege. DW1 joined them in the tricycle. He told them Accused did not steal but was sent to go and bring the tricycle from the sprayer to Tseitey. Excerpts from cross examination Q. What time did you meet Accused in the day. A. I was with him at Aworry place in the morning. But when Aworry sent him I was not there. It was when I was in the tricycle going to the police station that a call came saying it was Aworry who sent the Accused. Q. Before the incident did Aworry have a tricycle. A. No. He sent Accused to bring it from a sprayer. Q. Whose tricycle was that. A. I do not know the owner. 7 By Section 124(1), a person who steals commits a second degree felony. By definition, Section 125 provides that, a person steals if he dishonestly appropriates a thing of which he is not the owner. The actus reus is the appropriation of a thing and the mens rea is the dishonesty with which the thing was appropriated. To establish these elements, the prosecution must prove three requirements, namely: 1. that the accused is not the owner of the thing allegedly stolen 2. that the accused appropriated the thing alleged to have been stolen, and 3. that the appropriation was dishonest. There is absence of consent as there is no form of consent associated with the offence of stealing. In Osei Kwadwo II v The Republic the court held in a charge of stealing; it must be proved by the prosecution that the accused dishonestly appropriated the stolen item. She further held that dishonest Appropriation is when one has an intention to deprive the owner of the use and enjoyment of his thing. Appropriation is not necessarily permanent. The accused must have appropriated the thing alleged to have been stolen. This is governed by Section 122 of Act 29. By Section 122(2), appropriation of a thing means the taking, moving, obtaining, carrying away, or dealing with the thing with the intention of depriving the owner of; - the benefit of his ownership, or - the benefit of his right or interest in the thing, or - in its value or proceeds, or - any part thereof In a charge of stealing the court in LUCIEN v THE REPUBLIC held the accused must not be the owner of the thing allegedly stolen. There is no requirement that the prosecution should prove who actually owns the thing allegedly stolen According to Section 123(3) of ACT 29 all that is needed is for the prosecution to show that the accused is not the owner of the thing allegedly stolen 8 HALM v REPUBLIC the court stated that the law only requires proof that the accused was not the owner of the chattel. The intent to deny the owner of the use of the tricycle was when they decided to change the color and look for a buyer when Accused knew very well the THIS Aworry at large did not own a tricycle. Since Accused did not produce Aworry in court to confirm having any dealing as to the ownership in the instant case the court will deem it that it was accused who personally stole the complainants’ apsonic motorbike. It is easy to push the blame on Aworry but it does not stand to test when the only time AWORRY got a motor bike was when Complainant’s own was stolen. Beside it does not stand to reason why the color of the tricycle which was not defected would be changed to blue when the owners’ intention was simply that he likes color blue. I want to draw Accused attention to the fact that if Aworry loves color blue then he should have used the tricycle when he sprayed it blue but not to chase buyers after changing the color to confuse the owner. Prosecution has proved that accused was in possession of the Complainant’s motorbike which was stolen looking for a buyer at the time of arrest. Accused confirmed Aworry didn’t owe any tricycle until the time complainant tricycle was stolen. It was the defence of accused that one Aworry who was at large sent him to deal in whichever way with the motorbike. That was the story. The Accused therefore carries the burden to produce this person to prove his innocence. It does not lie in his mouth just to say Aworry sent me….one should not lose sight of the fact that Accused and his accomplice went to see PW2 to change the color of the tricycle. There was nothing to prove the innocence of Accused in his involvement of the stealing of the tricycle. The acts of Accused in dealing with the tricycle was sufficient proof that he stole the tricycle and prosecution proved same. 9 The court is of the view that Prosecution proved the guilt of Accused beyond reasonable doubt. Accused is convicted and after mitigating his sentence. Accused was sentenced by the court to pay a fine of 100 penalty units in default serve 12 months prison terms. The reason for the decision of the court was that the tricycle was retrieved and handed over to the complainant. Besides the accused was a first time offender who was not known to the law. (SGD) VICTORIA A. GHANSAH (MAGISTRATE) 10