IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
HO - A.D 2018
THE REPUBLIC - (Plaintiff)
MICHAEL AGBANYO ALIAS OBINA AND HAPPY GAWU - (Defendants)
DATE: 16 TH JULY, 2018
SUIT NO: F17/5/2015
JUDGES: (SGD) N.C.A. AGBEVOR JUSTICE OF APPEAL
MR. ADUGU FOR PROSECUTION
MR. KPORHA FOR A1
The two accused persons were charged with
a) Conspiracy to commit crime with a common purpose to commit Robbery under Section 23(1) of Act 29/60.
b) Robbery of one Godwin Senanu Ahorsu under Section 149 of Act 29/60.
The facts upon which these charges are laid are that the complainant is a businessman dealing in mobile phone cards and mobile money. He resides at Ho New Housing Estates with his family. On the 1/3/2015 at 2.10am, the complainant and his wife and their two year old child were sleeping in their bedroom when three masked men broke into the room and attacked them with a gun, a cutlass and other weapons. They requested them to bring out their money. Complainants told them that they had no money. The robbers beat them with a cutlass and succeeded in taking away seven mobile phones, a motor cycle with Registration Number M14-VR-1188 and cash the sum of GH€8,000. A complaint was made to the police and after a series of investigations the two accused were arrested. In an identification parade complainant identified A1 and A2 as some of those who robbed him.
Both accused pleaded not guilty to the two charges. This plea therefore places the burden of proof of the offences committed on the prosecution.
To discharge the burden on it, the prosecution called two witnesses and tendered three exhibits in this case. Each of the accused gave evidence on oath and called no witnesses.
For prosecution to obtain a conviction of an accused, it ought to prove the essential ingredients of each offence. In GLIGAH & ATISO VRS THE REPUBLIC (2010) SCGLR 870 at 879 stated -
"In other words whenever an accused is arraigned before any court in any criminal trial, it is the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond any reasonable doubt. The burden of proof is therefore on the prosecution and it is only after a prima facie case has been established by the prosecution that the accused person is called upon to give his side of the story". The accused in a trial has no burden to discharge.
The two accused persons were charged in Count (1) One with conspiracy contrary to Section 23(1) of Act 29/60 which states –
SECTION 23 (1) - 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.
SECTION 149 of Act 29/60 states -
"A person who commits robbery commits a first degree felony".
Robbery is defined in Section 150 as -
1 "A person who steals a thing commits robbery.
(a) If in and for the purpose of stealing the thing the person uses force or causes harm to any other person or
(b) If that person uses a threat or criminal assault or harm to any other person with the intent to prevent or overcome the resistance of the other person to the stealing of the thing."
The evidence of complainant (PW1) Godwin Senanu Yaw Ahorsu was that on the 28th February, 2015 at 2.30am he was in bed with his wife and child. There was a loud ban on the living room door. He saw that the door was broken with a cement block and three men entered the room who put on the light and pointed a gun at him and “they put on the mask after entering the room and after putting on the light" one of them had a cutlass and the third held a crowbar and a tool like a screw driver. PW1 said the intruders who pointed the gun at him asked him to bring out the money which he said he did not have. He was then asked to bring out the credit cards which he said he no longer sold. PW1 said he was then slashed on the arm and neck and the intruders asked his wife to bring the money and she said they had no money. They then threatened to shoot the two year baby. He said the person with the crowbar took the child and went up and down the room and this was after he had ransacked the room. He then called the holder o the gun "Obina, Obina, let's go" and says Obina was the one holding the gun. Al was identified in court as Obina, 2nd accused was also said to be holding a cutlass. PW1 said before they left A1 pulled him to the toilet and on their way out he followed him into the sitting room. He then noticed they made away with his bag with a sum of money and other belongings.
On their way the accused made away with PW1's motor bike after they fired a gun shot. Outside, PW1 said the robbers were six in number, two took his motor bike and the rest run along the Tsikpota road. PW1 said the robbers made away with a bag with GH08, 000, work phone, personal phones which were seven phones. PW1 said he attended an identification parade where both accused were identified by several persons as the two who rubbed him. PW1 said he identified A1 by his stature, eyes, height and general appearance and the name Obina which was mentioned. A2 he said he identified as someone who frequented his shop to replace his sim and also he had a limp. The two accused persons were charged in Count 1 with the offence of conspiracy under Section 23(1) of Act 29/60. This provides -
"23(1) - 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"
The accused are said to have conspired to commit robbery.
The standard of proof required to convict the accused is as stated in WOOLMINGTON VRS D.P.P.
(1935) AC 402.
The burden of persuasion and the burden of producing evidence in terms of Sections 10 and 11 of the Evidence Decree (1975) NRCD 323 respectively are the components of the burden of proof - See ALI YUSIF (NO.2) VRS THE REPUBLIC (2003/4) 1 SCGLR 174 per Sophia Akuffo JSC. In proof of the offence of conspiracy the evidence of the prosecution was that three persons entered complainant's room after breaking the door and demanded the complainant and his family surrendered their money to them. Complainant said he identified A1 by his built, facial characteristics and also that he was called as 'Obina' by one of the criminals. A2 he said he noticed with A1 when they entered his room, switched on the light before putting on their masks. A2 he also said has a limp. Both were also identified at a parade as some of the robbers. The two accused denied being at the scene and being part of the robbers. They stated their alibis in their caution statements and in evidence. The alibis given by the two accused who claimed they did not know each other have no relationship with the crime committed.
Prosecution's case is that on the 28th February, 2015 the criminals broke into complainant's home at 2.30am. The events of that day raised by A1 which engaged him were all in the day of 27th February, 2015 (See Exhibit B). On the part of A2 he stated in his cautioned statement - "On 8/3/2015 at 4.30pm I took one Mawuli to my farm to go and fell down some trees to prepare charcoal.................'
These pieces of evidence do not relate to where the accused were in relation to the commission of the crime on 28th February, 2015 at 2.30am. The investigator failed to follow up on these alibis by the accused.
An accused person is not required to prove his innocence during the course of his trial. The burden is on the prosecution. The evidence of the complainant on these events are when the accused broke and entered the room "one person pointed a gun at me. In fact they put on the masks after entering the room and after putting on the light. Complainant said it was A1 who was referred to as Obina and the A2 was the one holding a cutlass.
The evidence in respect of who entered the complainant's room by the complainant was certain that he identified the criminals. Thus in ADU-BOAHE VRS THE REPUBLIC (1972) 1 GLR a case of the identity of three robbers, it was held that "where the identify of an accused person is in issue, there can be no better proof of his identify then the evidence of a witness who swears to have seen the accused committing the offence charged". It is also stated in that case that the holding of an identification parade and proof of personal characteristics are pointless where the identifying witness has known the accused for some time prior to the commission of the crime as relates to A2 in this case. Thus by the definition of conspiracy that where two or more persons agree to act together with or without a previous concert and there was a criminal act the suspects are guilty of conspiracy to commit that act.
Thus in this case the identity of the two accused apprehended is clear and known. The A1 by his features and name, identified at the scene of crime by the victim and A2 that he limps. PW1 from his narration had ample time to identify each of the accused. The defence of the accused was a total denial of the offence but this does not negate the evidence in this case. Accordingly the two accused were part of the six robbers and I hereby convict them.
The two accused were also charged in Count Two for robbery. SECTION 150 defines robbery as stated above. To prove this offence the ingredients required to be proved are that -
1 (a) There must be a stealing of a thing;
(b) In the stealing force was used or harm was caused to another person; or
2 (a) That person used threat or criminal assault or harm to another.
In this case it must be with intent to prevent or overcome the resistance of the other person to the stealing of the thing. In his addresses to this court, Counsel for A1 submitted that in view of the rejection of the charged statements of both accused, the accused have not been charged and therefore there is no charge against the accused. This proposition does not seem correct. The two accused persons were charged hence their charged statements. The statements were rejected by a judicial process.
The two accused issues caution statements on the offences charged meaning they were aware of the offences charged. The rejection of the charged statements only means the accused made no such statements and that they were silent when charged. Thus in the STATE VRS BOATENG (1967) C.C.46 (and in C.O.P VRS KWAME DONKOR (1961) 2 GLR 694) Sampson Baidoo J. held that an accused was not obliged to give any statement to the police during their investigations of a crime. See also Lord Atkinson in R. VRS CHRISTIE (1914) A.C. 545 and HALL VRS R. (1971) 1 ALL ER 322. What is required in each criminal prosecution is whether or not there is enough evidence beyond reasonable doubt to convict accused. In this case, complainant narrated how three armed men broke unto them in the night and robbed them. He was definite in his description of the said persons. He said he was injured by the robbers. The robbers used force in entering the room by breaking the door to steal.
The robbers threatened to kill or shoot at the complainant's two year old. The complainants said the robbers made away with items listed in the charged sheet and the use of force was to overcome their resistance. The defence of the two accused persons was a denial of the offence through alibis. These alibis do not relate to the time and place of the offence. The alibi therefore is rejected. Accordingly I find each accused guilty and I convict each of the accused of the offence charged.
SENTENCE – Robbery is increasing in Ho and in some trials many are acquitted on technicalities. Where they are found guilty they ought to be punished to deter others. I therefore sentence each accused to 5 years IHL on Count 1 with hard labour. I also sentence each accused to 7 years IHL on Count 2 with hard labour. Both sentences to are run concurrently.