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IN THE SUPERIOR COURT OF JUDICATURE, IN THE AUTOMATED/FAST TRACK COURT, (CRIMINAL) HELD IN ACCRA ON WEDNESDAY, THE 16TH DAY OF MARCH, 2012

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                                                                        SUIT NO. ST. 26/2010

                                   

 

CORAM:  M.H. LOGOH

            JUSTICE OF THE HIGH COURT

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                                    THE REPUBLIC

                       

                                                VRS

 

1.    RAYMOND  AKADZRO

2.    LOUIS  MENSAH

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ACCUSED  PERSONS  IN COURT

MISS NANA ADOMA OSEI FOR REPUBLIC

MR. C.K. HOEYI FOR ACCUSED.

 

 

 

 

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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