The Republic v Yeboah and Another (CC NO.:113/2024) [2025] GHADC 255 (11 February 2025)

INTHE DISTRICT COURT SITTINGATWAMFIE ONTHE 11TH DAYOF FEBRUARY,2025BEFORE HIS WORSHIP EUGENEOBENG-NTIM,ESQ. CCNO.:113/2024 THE REPUBLIC VRS KOFIYEBOAH YAW KUMAH JUDGMENT Introduction On the 18th June, 2024, the accused persons, Kofi Yeboah and Yaw Kumah, were arraigned before the court charged with Possession of stolen property under section 148 (1) of the Criminal Offences Act, 1960, Act 29. They pleaded not guilty to the charge and the court ordered prosecution to file disclosures and served the accused persons. The prosecution duly complied with the order. The court conducted case management Conference on26th September, 2024andthereafterpreceded to trial Page 1 of 21 Factsas presented by Prosecution The complainant, Effah Kumi, a nurse at the Dormaa East District Hospital received a call from his landlord on 19th March, 2023 at about 7:00 am that his room had been brokeninto. He rushed home and noticed that his room had been ransacked and the following items stolen: 40” Hisense Television, Dell Laptop Computer, mini projector, electric lamp, handy electric blender, audio receiver, new men’s shits, pairs oftrousers, Kid’s smart phone, watches, bracelets, two Samsung phones, iPad, electric picture frame, digital camera, bed sheets, pair of socks, boxer pants and varieties of provisions value not known and the sum of 1,800.00 and US $ 90. He lodged a complainant at the Police station and on 20th March, 2023, investigations led to the recovery of the following items of complainant from the accused persons: 40” Television, Sony Laptop Computer, mini Sony projector, portable electric blender, sound system, two wrist watches bracelets, Samsung smart phone and digital phone, Samsung smart phone iPhone 3 mobile phone, Samsung tablet, electric picture frame, iPhone 7 and digitalcamera. The accused persons in their cautioned stated that on 19th March, 2023, at 10:00 pm they seized the items from one “Kwasi Boga of Berekum who was offering them for sale because they suspected the items to have been stolen. The accused persons added that Akwasi Boga bolted when they attempted to arrest him. They further Page 2 of 21 stated that they received information from the police concerning the theft of the itemsand consequently handed the retrieved items overto thepolice. Thecase of the Prosecution Prosecution called two witness. The complainant, Opanin Effah Kumi in his witness statement filed on the 11th July, 2024 stated that he received a call from his Landlord on19th March, 2023at7:30am thatthieveshave brokeninto hisroom. He rushed home and saw that his room had been ransacked and the following items were stolen: 40” Hisense Television, Dell Laptop Computer, mini projector, electric lamp, handy electric blender, audio receiver, new men’s shits, pairs oftrousers, Kid’s smart phone, watches, bracelets, two Samsung phones, iPad, electric picture frame, digital camera, bed sheets, pair of socks, boxer pants and varieties of provisions value not known and the sum of GH¢ 1,800.00 and US $ 90. He made a report to the police. The prosecution also filed a witness statement of the investigator in charge of the investigation ofthe alleged crime. He stated that, on19th March, 2023, while onduty, a case of stealing was reported by the complainant, Pw1. The complainant reported that the following items were stolen from his room: 40” Hisense Television, Dell Laptop Computer, mini projector, electric lamp, handy electric blender, audio receiver, new men’s shits, pairs of trousers, Kid’s smart phone, watches, bracelets, Page 3 of 21 two Samsung phones, iPad, electric picture frame, digital camera, bed sheets, pair of socks, boxer pants and varieties of provisions value not known and the sum of GH¢ 1,800.00and US$90 He visited the scene and observed that thief or thieves got ingress into the main hall of the building by bending the burglar-proof metal fixed on the windows and took his belongings mentioned above. He took photograph. He then activated his confidential sources including the 1st accused person, Kofi Yeboahto assist the police trace and arrest the perpetrators. The investigator made 1st accused to believe that theitems werehis properties. According to him, some hours later, 1st accused called that his enquiries revealed that on the night of 17th March, 2023, one “Akwasi Borga” of Berekum was offering some of the mobile phones for sale at Mpanpanim Wamfie. Pw2 added that 1st accused confronted the 2nd accused, Yaw Kumah, who admitted having in his possession three mobile phones with the explanation that, on the 18th March, 2023, Kwasi Borga brought the Phones to him to buy. The 2nd accused further stated that when he demanded the source of the phone, he became alarmed and bolted and added that Akwasi Borga sold a mobile phone to a young man at Kyeremasu who came topatronise his drinking bar. Pw2 continued that 1st accused requested for a motor bike to enable him trace the young man at Kyeremasu to retrieve the phone, which the complainant provided in addition to GH¢ 50.00. Pw2 stated that 1st accused traced the young man to a Page 4 of 21 drinking bar at Kyeremasu where he initially refused to return the phone but later releasedit and bolted. Pw2 concluded that on the 20th of March, 2023 at about 10:00 am, the accused persons called him with the information that their enquiries have led them to a bamboo plantation where the following items of the complainant were found: 40” Television, Sony Laptop Computer, mini Sony projector, portable electric blender, sound system, twowrist watches bracelets, Samsung smart phone and digital phone, Samsung smart phone iPhone 3 mobile phone, Samsung tablet, electric picture frame, iPhone 7 and digital camera. He requested for the items and invited them to the Police station. Pw2 tendered thefollowing exhibits: i. investigation cautioned statements of 1st Accused and 2nd Accused which weremarked Exhibits “A”and“B”. ii. charged statements of 1st Accused and 2nd Accused which were marked Exhibits “C”and “D”. iii. thepurported list ofstolenitemsmarked Exhibit“E”. Applicable Statutes and Case Laws The BurdenofProof-The Evidence Act, 1975(NRCD 323) Page 5 of 21 The Republic, having charged the accused persons of committing the offence as charged, has the burden to lead evidence to establish that the accused persons committed those offences. This position is supported by various provisions in the Evidence Act, 1975 (NRCD 323). Section 15 (a) provides that unless it is shifted, the party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue. Section 10(1) provides that: (1) for the purposes of the Act, the burden of prosecution means the obligation of a party to establish a requisite degree of belief concerningafactin the mindof the tribunal of factor the Court. Further, section 14 of the Evidence Act, 1975 (NRCD 323) states as follows: Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is ascertain. In the case of COP v Antwi [1961] GLR 408, the Supreme Court reaffirmed the principle that throughout a criminal trial it is the prosecution that bears the burden ofproof to prove a case made against the accused. This is what the courtsaid at page 412:“The fundamental principles underlying the rule of law that the burden of proof remains throughout on the prosecution and that the evidential burden rests on the accused where at the end of the case of the prosecution an explanation is required of him, are illustrated by a seriesof cases.“. Page 6 of 21 Degreeof proofof crime The prosecution, in discharging the burden, must prove the charges beyond reasonable doubt. The Supreme Court affirmed this position in the case of Fenuku v John Teye [2001-2002] SCGLR at p.1003 thus with regard to proof of forgery or for that matter any allegation of a criminal act in a civil trial, one cannot go outside the statutory provisions. In this country, the position is governed by section 13(1) of the Evidence Decree, 1975 (NRCD 323), and no amount of foreign authorities, however persuasive can dislodge this requirement of the law. It provides: "13(1) in any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directlyinissue requiresproof beyond areasonable doubt. Where prosecution has discharged the burden and a prima facie case has been established against accused person and is required to open his defence, the onus on himper section13(2) requiresonly that the accused raises areasonable doubtas to guilt. The Supreme Court affirmed this legal requirement in the case of Ali Yusuf Issa (No 2) v The Republic (No 2) [2003-2004] SCGLR 174 at p.184 that the appellant had the burden of producing evidence sufficient enough, in the light of the totality of evidence, to raise, inthe mindof the judge,reasonable doubt. From the above authorities, the combined effect of judicial decisions and statutory provisions supra is that the burden is on prosecution to lead sufficient evidence to persuade the Court beyond reasonable doubt that the accused persons committed Page 7 of 21 the offence as charged. Accused persons on their part are required to raise reasonable doubt astohis guilt. There are,however, exceptions tothe generalrule where the burdenor onusofproof rests on the accused to prove or raise a defence. In the case of Asare v. The Republic [1978] GLR 193-199 the court at p.198 stated that the burden of proving some defences lies on the accused, e.g. insanity, insane delusion, special pleas in bar (e.g. autrefois acquit, autrefois convict and pardon) and where an enactment has imposed the onus of proof of particular defences on the accused. The court further stated that under such circumstance the burden of proof on the accused is on the balance of probabilities as required inacivil action. The accused persons were charged with possession of stolen property under section 148 (1) of the Criminal Offences Act, 1960, Act 29. Section 148(1) provides that 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 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. That part of section 148 which states that “and that person does not give an account, to the satisfaction of the Court, as to the possession or control” is an exception to the rule and it places a burden on accused to raise a defence on the balance of probabilities asrequired in acivilaction. Page 8 of 21 Issues fordetermination Whether or not prosecution has proved the offence of Possession of stolen property under section 148 (1) of the Criminal Offences Act, 1960, Act 29 against the accused personstowarrantaconviction by the court. Thecharge against accused persons. The accused persons were charged with the offence of Possession of stolen property under section 148 (1). It appears that section 148 does not create a distinct and independent offence but it is dependent on section 146 based on the evidence adduced during trial by the prosecution. This position is supported by the Court of Appeal case of Rahim Ibrahim & 3 Ors Vrs The Republic 2017 Criminal Appeal No.: H2/2/2017 dated 18th July, 2017. Ackah-Ayensu JA as she then was, stated that it appears to me that the prosecutors, and also the Judge, with all due respect, confused the provisions of sections 146 and 148(1) respectivelyof Act29. Even though a person can properly be convicted under the provision of section 148(1) it is section 146 not 148(1) that creates the offence of dishonestly receiving. The introductory words under the provisions of section 148(1) “where a person charged with dishonestly receiving is proved” simple refers to cases where a person is charged with dishonestly receiving under section 146.Her Ladyship continued that prosecutors should therefore not prefer charges under section 148(1) when they have no evidence as to the ownership of the Page 9 of 21 property in question or how the accused came by it. I find therefore that the charges under section 148(1)isa nullity. Section 154(1) of the Criminal Procedure Act, 30 provides for the conviction of accused person on a different provision of the act other than the section charged if the facts prove it. The accused persons were charged under section 148 with the offence ofhaving in their possessionstolenproperty. The court has earlier statedand support its position with the case of Rahim Ibrahim & 3 Ors vrs The Republic that section 148 standing alone does not create an offence. It is dependent on section 146, which creates the offence of dishonestly receiving stolen property. The court in line with section 154(1) of Act 30 shall convict the accused persons of dishonestly receiving stolenpropertyunder section 146if prosecution succeeds in proving it. Section 146 states that a person who dishonestly receives property which that person knows has been obtained or appropriated by a criminal offence punishable, commits a criminal offence and is liable to the same punishment as if that person had committed that criminal offence. Section 147 defines the offence as 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 apurpose to restore itto the owner. Page 10 of 21 The court in the case of Rahim Ibrahim & 3 Ors vrs The Republic provided the essential elementsofdishonesty receiving as: i. that the accused person received property which he knew to have been obtained orappropriated by crime; ii. thereceipt ofthe property wasdishonest. Flowing from the ingredients of the offence, prosecution must not only establish that accused person knew the property had been obtained or appropriated by crime but that thereceipt wasdishonest. Dishonesty was explained in the CourtofAppeal case of Anang v. The Republic [1984–86] 1 GLR 458-475, per Taylor J.S.C, connotes an act of the accused of such a nature as to cast a slur on his character revealing him as a person lackingin integrity or as aplainly dishonestperson. A pertinent question that needs to be asked is whether there is a defence available to accused person charged with dishonestly receiving stolen property under section 146? The latter part of the offence of dishonestly receiving stolen property under section 146 states that if that person receives, buys, or assists in the disposal of the property otherwise thanwith a purposeto restoreit to theowner. What it means is that if accused charged with dishonestly receiving stolen property, succeeds in proving that his receipt of the property was intended to restore it to the owner,he wouldbe entitled toadefence to thatcharge. Page 11 of 21 The court in the case of Rahim Ibrahim & 3 Ors vrs The Republic referred to above held that the charges against the accused persons under section 148(1) was a nullity. It further cautions prosecutors not to charge accused persons when they have no evidence as to the ownership of the property in question or how the accused came by it. What it implies is that prosecutors may prefer a charge under section 148(1) if the facts prove ownership of the property in question or the circumstances surrounding accused having possess. The question to pose at this juncture is; would there be a defence for accused charged with the offence of having in possession stolen property under section 148? By the provision of the section, accused would be entitled to a defence if he gives an account, to the satisfaction of the Court, as to the possession or control of the stolen property. Evaluation ofthe evidence and application ofthe laws. The complainant, who is the owner of the properties, Opanin Effah Kumi,Pw1 stated in his witness statement filed on the 11th July, 2024 that on the 19th March, 2023 at 7:30 am, he had a call from his landlord that thieves have broken into his room and therefore rushed home. His room had been ransacked and the following items were stolen: Page 12 of 21 40” Hisense Television, Dell Laptop Computer, mini projector, electric lamp, handy electricblender, audio receiver, newmen’sshits, pairsoftrousers, Kid’s smart phone, watches, bracelets, two Samsung phones, iPad, electric picture frame, digital camera, bed sheets, pair of socks, boxer pants and varieties of provisions value not known and the sum ofGH¢1,800.00and US $90.He thereaftermade areporttothe police. The investigator in charge of investigation of the alleged theft, Detective Inspector Daniel Otutu in his witness statement filed on 11th July, 2024, corroborated the testimony of Pw1 of the break in and theft when he visited the scene. He thereafter activated his confidential sources which included the 1st accused person, Kofi Yeboah, to assist the police trace and arrest the perpetrators. He told 1st accused that the items were his properties. Within some hours later, 1st accused called that his enquiries revealed that on the night of 17th March, 2023, one “Akwasi Borga” of Berekum was offering some of the mobile phones for sale at Mpanpanim Wamfie. That 1st accused confronted the 2nd accused, Yaw Kumah, who admitted having in his possession threemobile phones withthe explanationthat, onthe 18thMarch, 2023, Kwasi Borga brought the Phones to him to buy and when he demanded the source of the phone, he became alarmed and bolted. Pw1 further stated that 2nd accused had informed 1st accused that Akwasi Borga had sold a mobile phone to a young man at Kyeremasuwho came topatronise his drinking bar. Page 13 of 21 1st accused then requested for a motor bike to enable him trace the young man at Kyeremasu to retrieve the phone which was provided by the complainant in additionto GH¢50.00. Pw2 stated that 1st accused then traced the young man to a drinking bar at Kyeremasu where he succeeded in retrieving the phone. Pw2 concluded that on the 20th of March, 2023 at about 10:00 am, the accused persons called him with the information that their enquiries have led them to a bamboo plantation where the following items of the complainant were found: 40” Television, Sony Laptop Computer, mini Sony projector, portable electric blender, sound system, two wrist watches bracelets, Samsung smart phone and digital phone, Samsung smart phone iPhone 3 mobile phone, Samsung tablet, electric picture frame, iPhone 7 and digital camera. The accused persons were called upon to open their defence but they elected not to testify. They however cross examined the complaint, Pw1 on the theft of the property belonging to him which they did not dispute. They also did not object to the tendering of Exhibit “E” which was the list of the stolen items. Therefore, in the absence of any challenge to the stolen items and no objection raised by the accused persons to the tendering of the list of items stolen, I find as a fact that those items of thecomplaint were stolen. Page 14 of 21 I would now to examine whether those stolen items were in the possession of the accused persons, and if so, whether they can give an account, to the satisfaction of theCourt. The investigator, Pw2, alleged that those properties of Pw1 were in the possession of the accused persons, hence the charge of having in their possession stolen property. The accused persons, even though they did not testify when called upon to do so, did not deny having in their possession those items when they cross examined prosecutionwitnesses. In deed they justified their possession in their cautioned statements, which were tenderedby prosecutionand markedExhibits “A”and “B”. The 1st accused, in his cautioned statement to the Police, Exhibit “A” stated “on 19/03/3023 at about 11:00 am, Mr. Otutu a police officer at Wamfie called me on the phone and told me that his items comprising of his mobile phones, television set and other electrical gadgets have been stolen from his room. Mr. Otutu pleaded with me to put my ears on the ground to assist him identify the culprits, arrest them and retrieved the items stolen. I agreed and started my investigations”. 1st accused added that his investigations led to the retrieval of some items believed to have been stolen by one “Kwasi Borga”. He was therefore surprised when he was arrested by the police on 13/04/2023 at about 9:30 amforhaving inhis possessionstolenproperties. Page 15 of 21 The 2nd accused also provided circumstances leading to his possession of those items in his cautioned statement, Exhibit “B”. He stated “on 18/03/2023 at about 10:00 pm, I was at my bar when one Kwasi Borga of Berekum brought three mobile phones to me to buy. After inspecting the mobile phones, I demanded to know the source from the said Kwasi Borga but he could not tell me. I attempted to arrest him but he bolted. A customer later told me that he had earlier saw Kwasi Borga selling a mobile phone to a young man from Kyeremasu who came to my bar to buy drink. On 19/03/2023suspectKofi Yeboah confronted me on the three mobile phones in my possession”. 2nd accused further stated that he handed overthe three mobile phones to 1stAccused, KofiYeboah, who latertold him thathe had retrievedthe mobile phonefromthe youngman. He later gathered that Kwasi Borga had been entering a bamboo plantation on 18/03/2023. He informed 1st accused and when both of them combed the bamboo plantation, they found a television, sound system, a laptop computer and other electrical appliances. From the cautioned statements, accused persons did not come to possess those items by chance. Their possession of the stolen items was triggered by the information given to 1st accused by Pw2, the investigator, that his items had been stolen and required his assistance toretrieve them. This fact is corroborated by the witness statement of the investigator, Pw2. He stated that when he received the complaint of the stolen items, he activated his confidential sources which included the 1st accused person, Kofi Yeboah, to assist the police trace Page 16 of 21 and arrest the perpetrators. He also told 1st accused that the items belonged to him. His evidence also reveals that not only did 1st accused go to work to retrieve the items but Pw2 provided him with the necessary resources such as a motor bike and Gh¢ 50.00 to trace a young man at Kyeremasu who had purchased one of the phones atthe drinking bar of2nd accused. Pw2 also confirmed in his witness statement that those items listed in exhibit “E”, came to the possession of accused persons due to the instructions given to 1st accused toassist with their retrieval. This is what transpired when 1stAccused crossexamined the investigator, Pw2: Que: We returned theitemsyoudirected usto lookfor. Ans: That is so. The accused persons not only did they use their own time to trace the stolen properties but took risks in pursuing and confronting persons who had in their position some of the stolen items. I find them to be truthful and will therefore accept their explanations surrounding their possessionofthestolenitems ofPw1. Fromthe evaluationofthe evidence, thecourt finds asafact that: Page 17 of 21 i. the accused persons had in their possession stolen property belonging to the complainant, Pw1. ii. the accused persons had possession due to the instructions given to 1st accused by Pw2 toassist withtheir retrievalsince theybelonged tohim. For the prosecution to succeed with the charge of having in their possession stolen property, prosecution must established beyond reasonable doubt that the accused persons had in their possession stolen property belonging to the complainant, Pw1. Since the court has found as a fact that accused persons had in their possession stolen property belonging to the complainant, Pw1, prosecution has established beyond reasonable doubt that the accused persons had in their possession stolen propertybelonging tothe complainant, Pw1. Where prosecution succeeds in proving that accused persons had in their possession stolen properties of the complainant, the onus thereafter shifts to the accused persons to raise a defence to the charge by giving an account of how they came to havepossessionofthe propertytothe satisfactionofthe court. I have earlier found a fact that the accused persons had possession of the stolen property due to the instructions given to 1st accused by Pw2 to assist with their retrieval since they belonged to him. I am satisfied, on the balance of probabilities, by the account giving by the accused personswhich is that theyassisted the Pw2, the investigatorforthe prosecution, toretrieve the stolenitems. Page 18 of 21 I would proceed to apply the findings of fact to ascertain whether the facts prove a conviction of the accused for dishonestly receiving stolen property under section 146 other than the charge under section 148. For prosecution to succeed in proving dishonestly receiving stolen property under section 146 per the case of Rahim Ibrahim & 3 Ors vrs The Republic, it should be established, first, that the accused persons received property which they knew to have been obtained or appropriated by crime. I have found as a fact that the accused persons had in their possession stolen property belonging to the complainant, Pw1. The accused persons, therefore, knew at the time they received those items that they were properties stolen from the complainant Pw1. Second, prosecution must prove that the receipt of the property was dishonest. Dishonestyper the CourtofAppealcase ofAnangv. The Republic connotesanact of the accused of such a nature as to cast a slur on his character revealing him as a person lacking in integrity or as a plainly dishonest person. Prosecution must prove thatthe circumstances surrounding the receipt ofthose itemportrayaccused persons as dishonest or persons lacking in integrity. The court has found as a fact that the accused persons had possession of those items due to the instructions given to 1st accused by Pw2 to assist with their retrieval since they belonged to him. Therefore, the circumstances surrounding their receipt of those item cannot portray them as dishonest personsorpersonslacking in integrity. Page 19 of 21 Apart from the absence of dishonesty on the part of the accused persons, section 147 provides that an accused persons would be entitled to a defence to the charge of dishonestly receiving under section 146 if accused proves that his receipt of the property was intended to restore it to the owner. The court had earlier found as a fact that the accused persons had possession of those items due to the instructions given to 1st accused by Pw2 to assist with their retrieval since they belonged to him. The court would hold that the receipt of the items by the accused persons was intended to restore it to the owner, Pw2. The accused persons have, therefore, raised adefence tothe charge ofdishonesty receiving. Conclusion The court, after evaluation of the evidence and the application of the relevant laws, including decided cases, is of the view that the prosecution has failed to prove the charge of Possession of stolen property under section 148 (1) of the Criminal Offences Act, 1960, Act 29against the accused persons to warrant aconviction by the court.The Accused personsshall accordinglybe acquitted and discharged. Orders: The 1st accused person, Kofi Yeboah is accordingly acquitted and discharged of the offence of Possession of stolen property under section 148 (1) of the Criminal Offences Act,1960,Act 29. Page 20 of 21 The 2nd accused person, Yaw Kumah, is accordingly acquitted and discharged of the offence of Possession of stolen property under section 148 (1) of the Criminal Offences Act,1960,Act 29. Eugene Obeng-Ntim District Magistrate Page 21 of 21