The Republic Vrs Taslim [2023] GHADC 507 (28 February 2023)

IN THE DISTRICT COURT 2, TAMALE HELD ON TUESDAY 28TH FEBRUARY, 2023 BEFORE HIS WORSHIP D. ANNAN ESQ. SUIT NO. B4/1/22

THE REPUBLIC

V

OSMAN SALIFU TASLIM

JUDGMENT

INTRODUCTION 1. On 5th October, 2023 the accused was arraigned before this court for the below offence:

STATEMENT OF OFFENCE Assault, contrary to section 84 of the Criminal Offences Act, 1960 (Act 29).

PARTICULARS OF OFFENCE Osman Salifu Taslim, Teacher, Aged 26yrs: for that you on 15th July, 2022 at Katariga a suburb of Tamale in the Northern Region and within the jurisdiction of this court did unlawfully assaulted one Adam Mariam. - 1 -

FACTS OF THE CASE 2. The facts as given by the prosecution are that accused on 15th July, 2022 went to the household standpipe to fetch water but it was locked. As a result, accused approached a co-tenant, one Memunatu Adam, for the key to enable him fetch the water. Memunatu Adam informed the accused that the key was not in her possession, but with the complainant, Adam Mariam. Accused, therefore, made comments to the effect that he was no longer going to pay water bills. Memunatu Adam retorted that accused must be courageous to tell the complainant that he would no longer pay water bills. There, accused indicated that he was not afraid to tell the complainant his decision. When the complainant returned home, Memunatu Adam informed her about what had happened. The complainant then approached the accused for confirmation of what transpired, only to be met with hostility by the accused. In an ensuing altercation, accused severely beat up the complainant resulting in injuries. The complainant reported the matter to DOVSU and was issued a medical form. Accused was subsequently arrested. He, however, denied assaulting the complainant. After investigation, the accused was arraigned before this court.

DEFINITION OF THE OFFENCE 3. Section 84 of Act 29 provides that a person who unlawfully assaults any person commits a misdemeanour.

BURDEN OF PROOF 4. By a plea of not guilty, the accused puts himself in charge of the court, meaning that his guilt has to be proved beyond reasonable doubt. The mandatory requirement that the guilt of the person charged ought to be established beyond reasonable doubt and the burden of persuasion on the party claiming that the person was guilty, has been provided for in ss. 11(2), 13(1), 15 and 22 of Evidence Act, 1975 (NRCD 323). - 2 - Significantly, whereas the prosecution carries that burden to prove the guilt of the accused beyond reasonable doubt, there is no such burden on accused to prove his innocence. At best, he can only raise a doubt in the case of the prosecution. This doubt must be real and not fanciful, see the cases of Miller v Minister Of Pensions [1947] 2 ALL ER 372 at 374, COP v Isaac Antwi [1961] GLR 408 and Gligah & Atiso v The Republic [2010] SCGLR 870.

METHODOLOGY 5. The offence herein being a misdemeanour, the court under s. 73 of the Courts Act, 1993 (Act 459) encouraged the parties to settle. However, parties indicated that they would not settle.

6. With accused person pleading not guilty to the charge, it is settled law that the prosecution must prove the whole of its case against the accused, beyond reasonable doubt.

7. The prosecution in support of its case called three (3) witnesses: Adam Mariam (Complainant/PW1), Memunatu Adam (PW2) and D/Insp. Moro Yusif (PW3). Prosecution also tendered in evidence the following exhibits: i. Exhibit A – Investigation cautioned statement of accused dated 19/7/22 ii. Exhibit B - Charge statement of accused dated 26/8/22 iii. Exhibit C – Medical Form of Complainant dated 15/7/22 iv. Exhibits D-D2 – Pictures of bruises on complainant’s body The Prosecution’s Case 8. Complainant (PW1) is a teacher and a co-tenant as the accused. According to her, on 15th July, 2022 at about 5:30pm when she returned from work, she saw Memunatu - 3 - Adam (PW2) telling her husband how accused had insulted her. PW1 indicated that PW2 also informed her that accused had stated that he doesn’t fear her (PW1). When she asked why, PW2 answered that accused stated that because he was unable to fetch water for that week, so he would not pay water bill. PW1 was surprised that accused mentioned her name in her absence, so she approached accused. Accused reiterated to her that he doesn’t fear her. According to PW1, at time she was talking to accused, she was washing her gallons to fetch water. All of a sudden, accused hit her neck. She then tried defending herself, but accused pushed her to the floor and beat her up. It took PW2 to separate them. She added that accused hit PW2 in the process.

9. PW2 in her testimony indicated that on the day of the incident at about 8:20am, she was at home when accused came to ask for the pipe key. She informed accused that the key was with PW1. According to PW2, accused then went to Sis. Vida, the one who collects the water bill, and informed her that he was not going to pay water bill for the month. She told accused that accused was afraid of PW1 that was why he did not go to PW1. PW2 added that at about 8:30pm when PW1 had returned home and gone to ask accused to whether he had come to ask what happened, accused became offended and subjected PW1 to severe beatings. PW2 added that accused picked a firewood and threw it at PW1, but missed and rather hit her. PW2 then picked the firewood and threw it at accused. As a result of the altercation, some people from outside came and rescued PW1.

10. PW3 indicated that he investigated the case and caused accused to be charged with the said offence. He tendered in evidence Exhibits A, B, C and D series as aforementioned. - 4 - 11. At the end of the prosecution’s case, the court found that a prima facie case had been established against accused and therefore called upon accused to open his defence. Accused’s Defence 12. According to accused, on 15th July, 2022 he realised he did not have water in his gallons to bath, so he went to PW2 for the pipe key. But PW2 did not reply. So while returning to his room, he went to Sis. Vida and informed her that since he was unable to fetch water for that week and being denied, he would not pay for the water bill. It was there that PW2 came out and indicated that that would not happen and that he (accused) should rather tell PW1 instead of Sis. Vida. According to accused, PW2 stated that because he fears PW1 that was why he was informing Sis. Vida. Then, he informed PW2 that he was not afraid of PW1. He then went to his mother’s house and took his bath for school. On return from school, PW2 informed him that a court awaits him when he returns from extra classes. So when he returned home at about 6:00pm, he picked his abolition bucket and headed to the bathroom. PW1 then came out of her room with insults, saying “if you say you are a ‘sheggay’ and you don’t fear me, repeat what you

said”. Accused stated that he entered the bathroom and returned and then took his motor to go out but PW1 was in the way. He then pushed her from the door and a fight ensued. While fighting, PW2 offered PW1 a stick, but he collected it and threw it away. PW1 then took a firewood and he got hold of it, but received a knock from another firewood, this time from PW2. Accused averred that it took one Mr. Abdulai, a co-tenant, to separate the fight. Later the caretaker was invited to settle the matter, but the matter was not resolved. Subsequently, he was arraigned before this court.

13. Accused did not call any witness or tender any exhibit. - 5 -

ANALYSIS OF FACTS AND LAW 14. Regarding assault contrary to section 84 of Act 29, the law is that the prosecution need not specify the specific assault, i.e. whether assault and battery, assault without actual battery or imprisonment, the nature of the assault may be deduced from the facts of the case, see Bruce-Konuah v The Republic [1967] GLR 611. Further, to sustain a conviction, prosecution must lead evidence to establish beyond reasonable doubt that without the consent of the other person and with the intention of causing harm, pain or fear, or annoyance to the other person, or exciting the other person to anger, the accused forcibly touched that other person or cause any person, animal or matter to touch that other person (in the case of assault and battery) or intentionally putting the victim in fear of an instant assault and battery (in the case of assault without battery).

15. In the instant case, the evidence point to the fact that PW1 was not happy because accused mentioned her name. According to her, she confronted accused, “for mentioning my name and for saying you will not pay water bill and for saying that you don’t fear me.” Accused was also not happy with PW1 coming over to confront him. Below is what ensued when he was under cross-examination: “Q: And when complainant came to you, you were not also happy, is that not correct? Yes. I was not happy with the approach. I am putting to you that you and complainant fought. A: … Q: A: It is true, there was a fight. - 6 - Q: Complainant attended hospital for treatment as a result of your beatings, which you are aware? A: Yes, I was shown pictures of that.” 16. I take judicial notice that payment of water bill in this country is postpaid, save fetching it and paying instantly. This explains why accused indicated that he was not going to pay water bill, since he did not fetch the water. The accused mentioning PW1’s name, saying he would not pay the water bill and not fearing PW1, all these happened in PW1’s absence. Yet, she went to confront accused. What for? Admittedly, there was a fight after the confrontation. From the evidence, I find that there is conclusive evidence that accused assaulted the complainant. However, this whole issue was fueled by PW2. She informed PW1. PW1 is also not without a blame since her actions in confronting the accused were provocative, see Bruce-Konuah v The Republic (supra). The accused is, therefore, to sign a bond to be of good behaviour, for one (1) month.

17. In effect, the accused is hereby cautioned and discharged. H/W D. ANNAN [MAGISTRATE] INSP. A. R. DAWUD FOR THE REPUBLIC

ACCUSED APPEARED IN PERSON - 7 - References: 1. s. 84 of the Criminal Offences Act 1960 (Act 29) 2. ss. 11(2), 13(1), 15 and 22 of Evidence Act, 1975 (NRCD 323) 3. Miller v Minister Of Pensions [1947] 2 ALL ER 372 at 374 4. COP v Isaac Antwi [1961] GLR 408 5. Gligah & Atiso v The Republic [2010] SCGLR 870 6. Bruce-Konuah v The Republic [1967] GLR 611 - 8 -