HAMIDU VRS YAKUBU (A4/14/23) [2024] GHADC 369 (15 May 2024)

IN THE DISTRICT COURT 1, TAMALE HELD ON WEDNESDAY 24TH JULY, 2024 BEFORE HIS WORSHIP D. ANNAN ESQ. [AS ADDITIONAL RESPONSIBILITY] SUIT NO. B3/2/24 THE REPUBLIC VRS SUMAILA SAYIBU JUDGMENT INTRODUCTION. 1. On 14th December, 2023 the accused person was arraigned before this court on the charge of threat of harm. FACTS OF THE CASE 2. The facts as given by the prosecution are that on 24th November, 2023 the accused, a former Assemblyman for Lahagu Electoral Area, Jarigu, angrily went to the house of the complainant, Abdul Rahaman Salifu, with a cutlass intended to attack complainant, but did not meet him. The accused rather met the complainant’s wife, Sanatu Abdul Rahman and other witnesses, where accused asked the whereabout of complainant. Complainant’s wife informed the accused that the husband had gone to the farm. The accused then left threatening message that, “If he returns, he should unroof his house and take the roofing and house from the land, because the land belongs to [me]. If he refuses, he [accused] will come back and harm him.” Same day, 24th November, 2023 the complainant reported the case to the Regional CID, Tamale. The accused was - 1 - contacted on the telephone and he reported himself to the Regional CID, Tamale. The accused was later arrested and in his cautioned statement, he denied the offence. After investigations, accused was brought before this court for the above offence. DEFINITION OF THE OFFENCE 3. Section 74 of Act 29 provides that, “A person who threatens any other person with unlawful harm, with intent to put that person in fear of unlawful harm 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. It is settled law that a person is presumed innocent until the contrary proved, see article 19(2)(c) of the 1992 Constitution. 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). In Gligah & Atiso v The Republic [2010] SCGLR 870, the Supreme Court, per Dotse JSC re-emphasized this point thus: “…whenever an accused person 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 beyond reasonable doubt. The burden 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.” 5. Thus, 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. But the doubt must - 2 - be real and not fanciful, see the cases of Miller v Minister Of Pensions [1947] 2 ALL ER 372 at 374 and COP v Isaac Antwi [1961] GLR 408. METHODOLOGY 6. The prosecution in support of its case called four (4) witnesses: Abdul Rahman Salifu (Complainant/PW1), Sanatu Abdul Rahman (PW2), Asimawu Abubakari (PW3) and D/Const. Kenneth Amoquandoh (PW4). Prosecution also tendered in evidence the following: Exhibit A – Investigation cautioned statement of accused dated 25/11/23. Exhibit B – Charged cautioned statement of accused dated 25/11/23. Prosecution’s case 7. In brief, the prosecution’s case is that on 24th November, 2023 at about 7:00am accused person went to the Complainant/PW1’s house but met his absence. Accused, however, left this threatening message with PW2 and PW3, that “If he [complainant] returns, he should unroof his house and take the roofing and house from the land, because the land belongs to [me]. If he refuses, he [accused] will come back and harm him.” PW2 is the wife of PW1. PW3 lives with PW1 and PW2 in the same house. PW3 stated that he was in the house with PW2 when accused came with a cutlass and issued the threatening words. PW4 indicated that he conducted the investigation and subsequently charged the accused with the offence of threat of harm. 8. At the end of the Prosecution’s case, the Court found that a prima facie case had been established against the accused and therefore called upon accused to open his defence. Accused’s Defence - 3 - 9. In his witness statement filed on 30th May, 2024 accused stated that on 24th November, 2023 at about 7:00am he was at his residence, Vutting, relaxing. He explained that the previous day he had accompanied the newly installed Jarigu chief, Mahama Issahaku (DW1) to the Nantong Paramount Chief and the Yaa Naa to pay homage. While relaxing, he received a call from the District Police Command, Tamale inviting him and the DW1 to the station. He, therefore, called his elder brother, Jarigu Dulilana to come along with the DW1 for them to honour the police invitation. The calls from the police were persistent such that accused stated that he drove his vehicle to meet DW1 and Jarigu Dulilana around Dufaa and they headed to Tamale. Upon arrival, the police inspector Abu Issahaku took them to the Regional CID and the Second in Command. Thereafter, DW1 gave a statement to an investigator known as Ken. After the statement was taken, he accused sent the others to their various destinations. Accused maintained at the time of the alleged incident he was not at PW1’s house. 10. DW1 repeated the story of accused and added that accused was not in Jarigu on the said day or time of the incident and never came to Jarigu before the police invitation on that day. ANALYSIS OF FACTS AND LAW 11. Under section 74 of Act 29, threat of harm consists of threatening a person with unlawful harm with the intent to put that person in fear of unlawful harm. Where a charge against the accused is threat of harm, it is unnecessary to prove actual harm or even an attempt to cause actual harm. The actus reus is complete when the accused issued the threat to cause unlawful harm to the recipient. It is also unnecessary to prove that the accused was armed with any weapon at the time of issuing the threat. The mens rea of the offence is that the words or actions of the accused are meant to put the victim in fear that he will sustain some unlawful bodily harm. In other words, the - 4 - words or actions of the accused must be intended to create in the victim some apprehension that bodily harm will be caused to him. It is an essential element to prove that the accused intended his or her words to be taken seriously. However, whether the recipient of the threat takes it seriously is not, in and of itself, an element of the offence. 12. In the instant case, prosecution contended that the accused went to PW1’s house and left those threatening words. PW1 admitted that he was not present, but when PW2 informed him, he reported the matter to the police. The following ensued when PW2 was under cross-examination: “Q: Can you tell the court whether or not the land in which PW1 has his house was acquired for accused? A: No. Q: I am suggesting to you that your allegation of threat for which you and PW1 went to the Regional CID to make a complaint is baseless? A: I was in the house that very morning when accused entered and asked of my husband, PW1. I replied PW1 was not around and accused told me that when PW1 comes I should tell him, he (PW1) owns the roof and wood but that the land belongs to him (accused). Q: The accused disputes the allegations of threat of harm? A: Accused came. - 5 - Q: I finally put it to you that by peddling such speculations, you deceived your absentee husband in making the case at the police CID against the accused? A: He actually came to the house and told me that my husband should remove the roof and the wood and I told him that I cannot tell my husband. When I said that he told me to shut up. Q: That is all for her.” 13. PW3 added that accused was in PW1’s house on the said day at about 7:00am. She stated that accused came there with a cutlass. PW4 intimated that considering the time that accused reported to the police station in Tamale it was about 10:00am on 24/11/23, the day of the incident. To him, accused must have gone to PW1’s house at 7:00am, before honouring the invitation of the police. 14. Accused person, on his part, maintained that he did not threaten to harm PW1. He stated that on the day and time of the alleged incident he was not at PW1’s house. DW1 stated that accused was not even in Jarigu on the said day. 15. From the evidence, I find that prosecution was able to prove that accused was at PW1’s on the day and time of the incident, i.e. 24th November, 2023 at 7:00am. This was stated by PW2 and corroborated by PW3, with PW3 describing that accused came there with a cutlass. It was established that PW2 and PW3 know accused very well such that they could not mistake him for another person. In fact, accused is the uncle of PW1. I also find that if accused was pleading alibi, that did come out clearly and for the police to investigate, see s. 131 of Act 30. In fact, DW1 was not in the position to tell the whereabout of accused prior to their visit of police station. The purported - 6 - alibi was not clearly proven. I, therefore, find evidence to the effect that accused went to the house of PW1 and made the threatening words with a cutlass to which PW1 became apprehensive and reported the matter to the police. 16. On the totality of the evidence, I hold that prosecution has led sufficient evidence in proof beyond reasonable doubt that accused person threatened to harm PW1. Accused is hereby convicted on the charge of threat of harm. PRE-SENTENCING HEARING 17. Having heard the accused persons and prosecution on mitigation, I note that PW1 is the nephew of the accused. Accused has also abated any form of intended harm. Accused, however, is to sign a bond to be of good behaviour for a period of six (6) months. This is to serve as a deterrence to accused from threatening anybody, particularly with a cutlass or implement, going forward. In breach of his bond, accused shall be punished in accordance with law. CONCLUSION 18. In effect, accused is hereby to sign a bond to be of good behaviour for six (6) months. H/W D. ANNAN [MAGISTRATE] C/INSP. EUNICE APASSNABA FOR THE REPUBLIC ASURO NAPARI ESQ., FOR THE ACCUSED References: - 7 - 1. Article 19(2)(c) of the 1992 Constitution 2. ss. 11(2), 13(1), 15 and 22 of Evidence Act, 1975 (NRCD 323) 3. s. 74 of the Criminal Offences Act 1960 (Act 29) 4. s. 131 of the Criminal Procedure Act, 1960 (Act 30) 5. Gligah & Atiso v The Republic [2010] SCGLR 870 6. Miller v Minister Of Pensions [1947] 2 ALL ER 372 at 374 7. COP v Isaac Antwi [1961] GLR 408 - 8 -