S v Allwel and Another (G/WJ/DG/013/2024) [2025] GHADC 195 (20 January 2025)

IN THE DISTRICT COURT HELD AT WEIJA, ACCRA ON MONDAY THE 20TH DAY OF JANUARY, 2025 BEFORE HER WORSHIP RUBY NTIRI OPOKU (MRS), MAGISTRATE. SUI NO: G/WJ/DG/013/2024 THE REPUBLIC VRS 1. CLEMENT ALLWEL @KAYWA 2. JACOB KWADJO OSEI@OBOY ACCUSED PERSONS ARE PRESENT AND SELF REPRESENTED CHIEF INSPECTOR JANET INUSAH SUGRI PROSECUTING FOR THE REPUBLIC JUDGMENT The accused persons Clement Alwell@ Kaywa and Jacob Kwadwo Osei @ Oboy as A1 and A2 respectively have been arraigned before this court having been charged with conspiracy to commit a crime to wit; stealing and attempt to commit crime to wit stealing contrary to sections 23(1) and 18(1) of the Criminal Offences Act 1960, Act 29. The accused persons pleaded not guilty to the charges preferred against them and as a result the case proceeded to trial. BRIEF FACTS The brief facts of the case as presented by the prosecution are that complainant Gloria Kyeremaa is a trader residing at Anyaa whilst first accused Clement Allwell alias Kaywa is unemployed and second accused person Jacob Kwadwo Osei alias Oboy is a trader. Both accused persons live at Avenor in Accra and complainant owns a shop situate at Ablekuma junction. On 7th February 2024, at about 1:00pm, A1 and A2 arrived at complainant’s shop on a motorbike ridden by A1. A2 alighted from the motorbike and walked to the shop to enquire if complainant has Gino rice in stock. Complainant told A2 that she does not have any and A2 turned to leave. The complainant had then put her Samsung galaxy AOE4 phone on charge and placed it on a table in the shop. A2 upon spotting the phone returned with an intent to steal the phone under the pretext of finding out if complainant stocks tasty rice. The complainant who had then laid her head back answered A2 without raising her head. A2 in an attempt to steal complainant’s phone was spotted by a witness in this case who raised an alarm. A2 fled to join A1 who was sitting astride the motorbike and they attempted to ride away but luck eluded them and they were arrested. A1 denied the offences however A2 admitted the offences and after investigations, they were arraigned before this court. THE CASE OF THE PROSECUTION Prosecution called Gloria Kyeremaa as PW1, Comfort Asiedu as PW2 and No. 7097 D/PLO/CPL Abayateye Yasmin as PW3. Prosecution tendered the statements of PW1 and PW2 in evidence and same was admitted and marked as Exhibits A and B. Prosecution again tendered the investigation caution and charge statements obtained from the accused persons and same were admitted and marked as Exhibits C series. PW1 says that she owns a provision shop at Fanmilk Junction and that on 7th February on her return from Kumasi, she decided to open her shop at about 10:30am. She stated further that she placed her phone, samsung galaxy valued at GHC2,600.00 on charge on a table in her shop. Few minutes later, she saw two young men on a motorbike which they parked in front of her shop. She added that the one seated at the back walked to her in the shop to ask if she had gino rice and she told him no. The young man left and came back again to ask of tasty rice and she said no. According to her, she laid her head backwards on the chair in the shop just to hear “are you asleep” from one aunty nurse who is a witness in this case and sells water in front of complainant’s shop saying “the boy is trying to steal your phone” She stated that she raised her head and found the young man’s hand on the table trying to take the phone. Her alarm alerted young men in the neighbourhood who came and apprehended the young man when the other one tried to speed off. They were subsequently taken to the police station with the help of a patrol team. PW2 corroborated the story of PW1 and stated that she is a retired nurse who sells water and boiled eggs in front of complainant’s shop. It is her case that on 7th February 2024, she saw two young men sitting on a motorbike few metres away from the shop. The second one seated at the back got down and entered complainant’s shop. After a short while, he came out and went back into the shop and the one sitting on the motorbike went closer to the shop. She added that when A2 was not coming out, she followed up and saw A2 trying to take complainant’s phone which was placed on charge on a table. According to her, she shouted “Gloria are you sleeping?” the suspect then pulled his hand away and complainant raised her head forward. There A2 went and sat on the motorbike but her alarm brought the young men in the neighbourhood who arrested the accused persons. PW3 merely repeated the facts of the case and added that after the accused persons were arrested, she extended investigations to the scene of the crime. According to her, accused persons stated that they went to the area to look for a friend called Red / Lion however they could not lead her to any such personality. She added that at the time of the arrest, A1 was in possession of a phone which he claimed belonged to his girlfriend. He however could not furnish the police with the telephone number of the said girlfriend thus heightening the suspicion that the said phone in his possession is a stolen phone. At the close of prosecution’s case having considered the totality of the pieces of evidence of the prosecution, the court was satisfied that a prima facie case had been made against the accused persons and as a result they were called to open their defence pursuant to section 174(1) of the Criminal and other procedure Act, 1960 (Act 30) which reads as follows; 174. (1) At the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused sufficiently to require the accused to make a defence, the court shall call on the accused to make the defence and shall remind the accused of the charge and inform the accused of the right of the accused to give evidence personally on oath or to make a statement. THE CASE OF THE DEFENCE A1 informed the court that on the day of the incident, he went to visit a friend in the company of A2 at Ablekuma curve and met his absence. On his way back home, A2 informed him that he wanted to buy something from a shop and so he parked. A2 came back and went back to the shop. Shortly after, he heard people shouting Thief! Thief! so he went to find out the cause of the shouts and he was told that A2 had attempted to steal a phone from the store. According to him, he told them that he was in possession of a phone and that A2 did not have any phone on him. He added that the crowd pounced on him also and accused him of being an accomplice. They were subsequently arrested and taken to the police station, even though he informed the police that they had no intention of stealing any phone from the shop. He informed the court that the phone in his custody belongs to his girlfriend and that he could not unlock same as it had a password on it. During cross examination of A1, the following information was elicited; Q: What is the name of the friend you went to visit? A: Lion Q: What did you go there to do? A: I told him that I needed money and he asked me to pay him a visit for the money A2 informed the court that A1 is his friend who asked him to accompany him to visit his friend at Ablekuma. Whilst on the way, he asked A1 to stop so he can buy something from the shop. He entered the shop and informed the woman that he wanted to buy gino rice and she said she did not have gino rice. He went back again and said he wanted to buy tasty rice. He was standing in front of the shop when he heard a woman shouting thief! thief! before he could do anything, he was surrounded by boys in the neighbourhood who started beating him. He was arrested and taken to the police station where he was beaten until he confessed that he had gone to the store with the intention of stealing a phone in a bid to save his life. During cross examination, A2 testified that he had gone to Ablekuma with A1 to visit a friend called Red. He also stated that he accompanied A1 to the place and denied the fact that he had stated in Exhibit C3 that the purpose of the trip was to repair the motorbike of A1. ISSUES TO BE DETERMINED At the end of the trial, the issue for determination is whether or not the prosecution has been able to prove the guilt of the accused persons beyond reasonable doubt. BURDEN OF PROOF Section 11(2) and (3) of the Evidence Act 1975, NRCD 323 reads; 11.(2) 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 could find the existence of the fact beyond a reasonable doubt. 11.(3) In a criminal action the burden of producing evidence, when it is on the accused as to any fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt. 13.(1) In any civil or criminal action, the burden of persuasion as toteh commission by a party of s crime which is directly in issue requires proof beyond reasonable doubt. Section 15 of Act 30 also reads; 15(1) unless and until it is shifted, the party claiming that a person is guilty of a crime or wrongdoing has the burden of persuasion on that issue. EVALUATION OF THE EVIDENCE Section 23(1) of Act 29 reads; 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 a criminal offence. At pages 88 and 89 of the book “Contemporary Criminal Law in Ghana” by Dennis Dominic Adjei, the learned author and jurist on conspiracy stated as follows; “for conspiracy to succeed in Ghana, the prosecution must prove that the persons agreed to act together with the common purpose to commit the offence…at present, any charge of conspiracy must indicate that the persons who have been charged with the offence agreed to act together with a common purpose for or in committing or abetting a criminal offence and does not matter whether there was or without previous concert or deliberation to commit an offence or abet the criminal offence. A case of conspiracy without proving that the persons involved agreed to act together to commit the crime must fail.” A1 testified that A2 asked him to stop the motorbike to enable him buy something from a shop. According to him, he sat on the motorbike waiting for A2 as he went to the shop. He failed to indicate exactly what A2 had gone to buy and why he needed to go back to the shop a second time. In Exhibit C2, he stated that A2 had gone to the store to buy water. He did not explain why A2 needed to go to the shop a second time. Exhibit C3 contradicted A1’s story as A2 stated that he went to the shop because A1 had spotted the phone in the store and had asked him to go and bring the phone. I find from the evidence that A1 and A2 conspired to steal a phone from complainant’s shop. To my mind, A1 was to sit on the motorbike and speed off as soon as A2 picks up the phone however luck eluded them when PW2 raised an alarm and got both of them arrested. Section 18 of Act 29 reads; (1). A person who attempts to commit a criminal offence shall not be acquitted on the ground that the criminal offence could not be committed according to the intent (a) by reason of the imperfection or other condition of the means, or (b) by reason of the circumstances under which they are used or (c) by reason of circumstances affecting the person against whom or the thing in respect of which the criminal offence is committed or (d) by reason of the absence of that person or thing. (2) A person who attempts to commit a criminal offence commits a criminal offence and except as otherwise expressly provided in this Act, is liable to be convicted and punished as if the criminal offence had been completed. At page 76 of the book “Contemporary Criminal Law in Ghana” by Dennis Dominic Adjei cited supra, the learned author and jurist on attempt stated as follows; “The test to determining attempt is the intention of the person to commit the offence. Intent of the person is the determinant factor for the offence of attempt and is only mens rea of attempt…once the intention of the accused person is proved, he cannot put up a defence that by reason of the imperfection or their conditions of means or the circumstances under which the offence was to be committed, or the thing or person whom the offence was to be committed was absent or the victim’s circumstances would not have allowed the commission of the offence.” From the evidence before this court, I find that the stories of A1 and A2 are conflicting. According to A1, he went with A2 to visit a friend called Lion for the purpose of collecting some money from him. A2 on the other hand stated that they went to visit a friend called red to enable him repair the motorbike of A1. A1 stated that A2 had gone to the store for water whilst A2 stated that he had gone there in search of gino rice and tasty rice. I find that the stories of the accused persons are fraught with inconsistencies. As to why A2 went to complainant’s store, A1 testified that A2 went to buy water. What he failed to explain was why A2 went back to the store a second time. What was A2 looking for from the store? A2 stated that he had gone in search of gino rice. Did he have to go back to the store a second time to request for tasty rice? Why couldn’t he make all his enquiries about the rice the first time? What was his motivation for going back to the store a second time? And why was he lingering on even though the complainant had answered all his queries about both gino rice and tasty rice? These are all questions begging for answers. Exhibit C3 threw more light on the purpose of A2’s visit to the store. According to him, he had gone into the shop on the instructions of A1 to pick up complainant’s phone however just when he laid his hands on the phone, PW2 raised an alarm leading to his arrest. From the totality of the evidence, the court finds the stories of the accused persons not reasonably probable or reasonably true. I find the story of the prosecution to be more probable considering inconsistencies in the stories of the accused persons and the confession by A2 as contained in Exhibit C2. I hold that the prosecution has proved its case against the accused persons beyond reasonable doubt. I do hereby convict the accused persons on the charges of conspiracy and attempt to commit crime to wit stealing. SENTENCING In determining the appropriate sentence for the convicts, I have taken into consideration mitigating factors such as their youthful ages, the fact that they did not profit from their crime and the 11 months that the convicts have spent in lawful custody having failed to meet their bail conditions. The court has also taken into consideration aggravating facts such as the need to impose a deterrent sentence on the convicts to sound a note of caution to the youth in society that crime as a way of life does not pay. Accordingly, the convicts are hereby sentenced to execute a bond to be of good behaviour for twelve months or in default serve a term of one month imprisonment. …………..……………………….. H/W RUBY NTIRI OPOKU (MRS.) (MAGISTRATE)