J U D G M E N T:
The two (2) Accused
persons herein have been charged
with the offences of conspiracy
to rob contrary to Sections
23(1) and 149 of the Criminal
Offences Act 1960 Act 29 and
robbery contrary to Section 149
of the same Act 29. Both
Accused persons pleaded not
guilty to the charges. This
placed the burden on the
Prosecution to adduce credible
evidence to establish their
guilt beyond reasonable doubt as
required by Section 13(1) of the
Evidence Act 1975. NRCD 323.
The facts of this
case as given by the Prosecution
are that the Complainant is a
taxi cab driver who plies his
trade around the Madina area in
Accra. On the 10th
day of March 2005 and at about
10.30 p.m. the Accused persons
hired his Opel Kadett Taxi Cab
with registration number GR 9869
B from Madina to Nmaijorn. When
they arrived at Nmaijorn, one of
the Accused persons alighted and
went into a direction. He
returned later to say he was
unable to locate the fellow they
were looking for. They then
requested of the complainant to
drive them back to Madina.
In the course of
their journey back, the Accused
persons asked the Complainant to
stop. He obliged. The Accused
persons overpowered and threw
him out of the vehicle. Accused
took control of the vehicle
fired some shots from a locally
manufactured gun to warn the
complainant and drove off.
The complainant stopped
another taxi driver he knew and
on their way they saw the
Accused persons in the taxi they
had snatched from the
Complainant. The Complainant
and the taxi driver began to
chase the Accused persons. When
the Accused persons realized
that they were being chased,
they drove at a top speed and in
the process crashed the vehicle
into a fence wall around the
Ritz Hotel Junction. The
vehicle was badly damaged as a
result and the Accused persons
were trapped in it. The Madina
Police were alerted and they
arrested the accused.
At the trial, the
Prosecution called five (5)
witnesses and tendered eight (8)
exhibits in evidence.
The Prosecution’s
case is that on 10th
March 2005 at about 9.00 p.m.,
P.W. 1 one Ofosu Adjeiwaa at the
Ashalley Botwe Station with a
taxi driver friend called
Cudjoe. Whilst there, some
passengers came to hire the
services of Cudjoe but Cudjoe
was then having a meal so he
asked P.W. 1 to go and ‘drop’
the said passengers with his
(Cudjoe’s) taxi cab. P.W. 1
took the said passengers in
Cudjoe’s green and yellow Opel
Kadett taxi cab with
registration No GR 9869 B. He
‘dropped’ the said passengers at
Madina and on his way back, the
Accused persons stopped him
around the Madina Social Welfare
area. P.W. 1 continued that he
was to drop the Accused persons
off at Nmaidjorn. On the way
the Accused persons asked him to
branch as they had to collect
money from someone. According
to P.W. 1 he charged the Accused
persons thirty thousand old
cedis (¢30,000.00) for the trip.
On their way and after taking
the turn as requested by the
Accused persons one of the
Accused got down and was later
joined by the other. Accused
persons returned later and since
they had taken sometime, P.W. 1
said he increased the fare and
this led to a misunderstanding
and an argument. 2nd
Accused who was sitting right
behind the P.W. 1 asked him
where he kept his money and that
it was his money they wanted.
P.W. 1 was asked to drive on.
At a point, 2nd
Accused pulled a gun at him and
asked him to stop. He did and 2nd
Accused came and opened his
door. He was ordered out of
the vehicle and Accused persons
drove away in the taxi cab. The
area was a new site so there
were no people around. P.W. 1
finally got a taxi and they
combed the area for the Accused
but without any success.
P.W. 1 then decided
to go and inform Cudjoe of his
predicament. Together with
Cudjoe who testified as P.W. 2
they decided to go and lodge a
complaint with the Madina
Police. They took a taxi but
realized on the way that they
had no money. They therefore
returned home to take some
money. On their way, they saw
the taxi cab that had been taken
away from P.W. 1. They
therefore followed the said
taxi. They got to a place
called Third Gate where there
was a police barrier and
informed the police
accordingly. When they got to
Ritz Junction area, P.W. 1
pulled out his head and shouted
thief, thief, thief. The
Accused person upon hearing his
cry, drove at top speed and as
the road was muddy they crashed
into a wall.
There was some
mechanic around who assisted the
P.W. 1 and P.W. 2. 1st
Accused came out of the crashed
car but A. 2 wa shiding. They
went to the Madina police for
help. They arrived and found
the 2nd Accused
hiding in the boot of the car.
In their defence,
Accused persons denied the
charges leveled against them.
They gave very identical
accounts of what took place on
the night in issue. According
to the Accused persons, they
hired P.W.1’s taxi cab from
Madina Social Welfare area to
Nmaijorn. Their mission was to
look for a particular mason.
P.W. 1 charged them fifty
thousand old cedis. They found
the fare exorbitant and
excessive and therefore
protested to the P.W. 1. The
Accused persons offered twenty
thousand cedis (¢20,000.00).
They continued that when they
got to Nmaijorn they did not
meet the mason so they asked
P.W. 1 to take them back to
where he had picked them. This
time round P.W. 1 insisted on
taking sixty thousand old cedis
(¢60,000.00) from them as he
felt they had wasted his time.
This certainly did not go down
well with the Accused persons
and an argument ensued. The
Accused persons maintained that
they asked P.W. 1 to drive them
to the Madina Police Station for
the resolution of the matter
there but P.W. 1 would have none
of that. This led to a struggle
as the Accused persons wanted to
compel the P.W.1 to send them
to the Police Station. In the
course of the struggle, the P.W.
1 left control of the vehicle
and crashed it unto a fence
wall. The Accused persons
denied ever possessing a gun let
alone firing a shot that night.
They also denied that one of
them was found in the boot of
the crashed car.
Like the state
attorney. I propose to decide
whether or not the offence of
robbery has been committed in
this case before considering the
question of conspiracy. Now the
offence of robbery was created
by section 149 of Act 29. The
same section prescribes the
punishment for the offence.
However, it is section 150 of
Act 29 that defines or tells
what robbery actually consists
of. Now Section 150- of Act 29
recites:
“150 A person
who steals commits robbery
a.
If in and for the purpose of
stealing the thing, that 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.”
Osei Hwere, J. (as he
then was) in the case of Behome
vrs The Republic [1979] G.L.R.
112 in holding 5 explained
robbery as follows:-
“50 Under Section 150 of
Act 29, A would only be guilty
of robbery if in stealing a
thing, he used any force or
caused any harm or used any
threat of criminal harm to B
with intent thereby to prevent
or overcome the resistance of B
or C to the stealing of the
thing. The fear might be either
or personal violence to the
person robbed or to a member of
his family in the restructive
sense of a man, wife and
children. And the thing stolen
must be from the person or the
one threatened or in his
presence if the property is
under his immediate and personal
care and protection.”
To sustain a charge
of robbery, the Prosecution is
required to prove the following
ingredients beyond reasonable
doubt.
“1. That there was
stealing.
2 That force or threat
of criminal harm was used or
employed and
3 That the force or
violence or threat of criminal
harm was intended
to prevent or overcome
the resistance of anybody
during the stealing.”
So did the Accused persons
steal the Opel Kadett with
registration number GR 9869 B
from the P.W.1? It is pertinent
to note that although the
Prosecution called a total of
five (5) witnesses, it was only
P.W. 1 who was present when the
said vehicle was allegedly
snatched. His evidence is
therefore paramount.
According to P.W. 1
when the Accused persons hired
his cab from Madina Social
Welfare to Nmaijorn 1st
Accused was seated at the front
passenger seat and 2nd
Accused sat at the back seat.
He charged them twenty thousand
old cedis (¢20,000.00) for the
trip. They however delayed when
they went looking for the person
they were going to see. When
the Accused returned asked to be
sent back P.W. 1 said he told
them he would charge them fifty
thousand old cedis
(50,000.00). This the Accused
did not accept and an argument
ensued between the two Accused
persons on one part and the P.W.
1 on the other. P.W. 1 said 2nd
Accused asked where he kept his
money and he said it was under
the carpet. 2nd
Accused then pulled a gun at him
and one of the Accused shouted
at him to stop. He stopped and
2nd Accused ordered
him to get down from the car.
He obliged and 2nd
Accused took over the car and
they drove off. In effect P.W.
1 is saying that, the Accused
persons snatched his car from
him.
Now what did he do?
He claims that the area was a
new site so there was nobody
around. He did not shout. He
did not run. He walked along
the road and met a tAxi driver.
He told the taxi driver his car
had been taken away from him.
With the assistance of the said
driver P.W. 1 combed the area
but did not see the Accused. He
then went to inform P.W. 2 who
was the actual driver of the
taxi cab in issue. He went and
narrated his predicament to Kojo
in his house and they decided to
go and inform the police. On
the way to the police station
they realized they had no money
on them so they decided to go to
P.W. 1’s house to take some
money. They picked a taxi with
a view of going to P.W. 1’s
house. They got to a junction
near where the car was
snatched. There, Kojo saw a car
coming and should that the head
light of the said car looked
like his. They stopped and when
the car passed them by they saw
the registration number. They
instructed the taxi driver to
follow the vehicle. They
followed the car to a place
called 3rd Gate at
Ashalley Botwe Road. There was
a police barrier there and they
reported to the police and the
police asked them to follow the
car. When they got to Ritz area
their vehicle got close to the
snatched car. P.W. 1 maintained
that Accused persons crossed
onto a rough road and they
pursued them. He pulled his
head out and shouted that his
car had been taken away or
snatched from him. The road
was muddy and there were some
fitters there who also joined
him in shouting. All he heard
was a big noise bam the Accused
have crushed the car into a
wall. He continued that when
the fitters opened the door they
saw only 1st Accused
in the car. 2nd
Accused was later found in the
boot of the car when the police
arrived.
On the contrary,
both Accused persons maintained
in their first investigation
Caution Statements as well as
their testimonies before this
court that they did not snatch
any car from P.W. 1. They
insisted it was when they were
arguing and struggling out the
fare that P.W. 1 lost control of
the vehicle and drove onto the
wall. They said after the
accident, people came to the
scene and rescued or removed
them from the car. They did not
have any gun and no gun was
found on them.
From the foregoing,
there is no doubt that the
Accused persons hired the P.W.
1’s car from Madina Social
Welfare area to Nmaijorn. That
they had an argument over the
fare to be paid is also not in
dispute. It is also not in
controversy that the vehicle
was driven into a fence wall.
What is in dispute
is whether it was the 2nd
Accused who took over the car
and drove same upon being chased
into the wall or it was P.W. 1
who lost control of the car and
as a result of the argument over
the fare into the wall. I
initially reproduced the entire
testimony of the P.W. 1 for a
purpose. He said when the
vehicle was snatched from him,
he did not shout or he did not
even attempt to run after the
vehicle. His reason is that the
place was a new area. I think
the natural think for the
average person to do is to at
least shout and run after the
snatched car. He also said
whilst walking he got a taxi
with which he combed the area
for the snatched car but to no
avail. He did not tell this
court how long he spent combing
the area for the car. He added
that he went and told P.W. 2
about the stolen car. He said
he went to P.W.2’s house to
report. He did not tell this
court how far P.W.2’s house was
from the place the car was
snatched from him. He also
claimed they hired another taxi
and followed the snatched car
when P.W. 2 made out the car
from afar by its peculiar
headlight. P.W. 2 said he
rather identified the car from
far by its top light. Both P.W.
1 and P.W. 2 insisted that they
chased the alleged snatched car
through a police barrier and
reported to the police there.
Strangely enough, they want this
court to believe that the
police just waived them on
without taking any steps. This
is incredible to say the least.
I think if indeed they reported
to the police at the barrier as
they wanted the court to
believe, the police would at
least call a patrol team or
assist in pursuing the car.
They will definitely not merely
waive the P.W. 1 and P.W. 2.
Further P.W. 1 and
P.W. 2 claimed they used a taxi
to chase the accused. They even
said it was the driver of this
taxi who went to lodge a
complaint at the Madina Police
Station at their instance.
Strangely enough the
Prosecution failed to call this
very vital witness. Indeed but
for his alleged heroic exploits
the Accused persons would not
been arrested. Their failure to
call this key witness is clearly
disastrous for the case of the
Prosecution.
Besides the P.W. 1
and P.W. 2 said they were
assisted by some mechanics who
opened the door of the accident
car and found the 1st
Accused therein. None of these
mechanics was also called to
testify. Absolutely no reasons
were given for not calling the
taxi driver and the mechanics.
As of now the resolution of this
matter boils down to the word
of the P.W. 1 and to some extent
P.W.2 and that of the Accused
persons. Had the Prosecution
called the said taxi driver, the
police at the 3rd
Gate barrier and the mechanics
to buttress their case there
would be no doubt at all in
the mind of the court. These
are material witnesses and
failure to call them is clearly
fatal to the case of the
Prosecution. This is so as the
Prosecution is enjoined to call
all any material or relevant
witness whose evidence or
testimony may help resolve any
doubts in the case. Failure to
call such a witness is fatal to
the case of the Prosecution.
See Republic vrs Kuree [1941] 2
WACA 175.
It would however
appear that where the
Prosecution has reason to
believe that the said persons
may not tell the truth or could
not be traced, it may do without
them. In this case no such
reason was given at all. The
Prosecution should have called
them or lose the case. See
Tetteh v. The State [1965]
G.L.R. 670.
Above all I am of
the humble view that the story
told by the Accused persons as
to how the car got crashed into
the wall was more probable than
what the Prosecution said. In
deed any serious car snatcher
will not be fighting over fares
any way. This is because he
knew he will not be paying any
fare after all. Secondly,
considering the rounds the P.W.
1 told the court he made before
seeing the snatched car, accused
who lived in Madina and at about
10.30 p.m. when most roads are
clear, would have left Madina
area without any trace.
I have also been
invited by the Prosecution to
take judicial notice of certain
matters. This had to do with
the route from Nmaijorn to
Madina Police Station. To begin
with there are several routes by
which one can get to Madina
Police Station from Nmaijorn.
Also I do not think that the
burden placed on the Prosecution
by Section 13(1) of the
Evidence, can be discharged by
asking the court to take
judicial notice of matters that
must be positively established
by evidence. The Prosecution is
enjoined by law to prove its
case by adducing credible
evidence and not hide behind any
cloak. The Prosecution also
seeks to rely on exhibits D and
E which it described as
confession statements. I have
carefully read the statements
but failed to see any confession
in them. The statements speak
for themselves and cannot be
described as confessions at all.
I do not think these statement
can make up for the short falls
in the Prosecution’s case,
It is from all the
above that I hold that the
Prosecution has failed to
establish that the Accused
persons have snatched or stole a
car from the P.W. 1. In view of
this holding I do not think any
useful purpose would be served
by discussing the other elements
of the offence of robbery and
conspiracy. Accused are
therefore found not guilty.
They are accordingly acquitted
and discharged.
(sgd.) M.H. LOGOH
JUSTICE OF THE HIGH COURT.
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