The Republic Vrs Tweneboah & 3 Others [2023] GHADC 198 (27 April 2023)

IN THE DISTRICT COURT HELD AT SEFWI JUABOSO ON THURSDAY THE 27TH DAY OF APRIL, 2023 BEFORE HIS WORSHIP SAMUEL ENTEE JNR. < CC No. 1/23 THE REPUBLIC VRS. 1. STELLA TWENEBOAH @ ABENA DAMTOA 2. AMA DONKOR 3. MABEL TWENEBOAH 4. MERCY TWENEBOAH @ AFIA ABOAGYEWAA Accused Persons: Present Chief Inspector Solomon Boatri for Rep: Present. JUDGEMENT The accused persons; Stella Tweneboah (A1), Ama Donkor (A2), and Mabel Tweneboah (A3) are charged with one count of assault and all 4 accused persons including Mercy Tweneboah (A4) are charged with offensive conduct conducive to breaches of the peace. Both offences are contrary to Sections 84 and 207 respectively of the Criminal Offences Act,1960 (Act 29). The particulars of the offences are that on 25th June,2022 at about 1:00pm at Sefwi Bodi; Stella Tweneboah, Ama Donkor and Mabel Tweneboah unlawfully assaulted the complaint, Margaret Gyabeng @ Abena Tettey without. And on the same date and time Mercy Tweneboah joined the 3 accused persons and all 4 accused persons uttered abusive words against the complaint, that she was a foolish and filthy woman and would attack her if she passed infront of their house, with intent to provoke a breach of the peace. 1 | P a g e The facts of the case are that the complainant and the accused persons live at Sefwi Bodi. That A1, A3 and A4 are sisters and A2 is their mother, and complainant is married to a relative of the accused persons. On 25th June, 2022, A2’s grandson Nana Yaw caused damage to the complainant window net. The complainant on seeing the damage talked and complained about the behaviour of Nana Yaw and when A1, A2 and A3 heard the complainant talking about Nana Yaw, they picked a quarrel with her and insulted her during which A1 pounced on complainant, slapped her, and pushed her to ground and A2 and A3 joined A1 and they beat complainant who sustained multiple injuries on her body. On the same day both the complainant and A1 reported the case to the police at Sefwi Bodi and were issued with police medical form to attend hospital. The complainant returned her medical form duly endorsed but A1 returned her medical form unendorsed. A4 on hearing that A1, A2 and A3 had quarreled with the complainant, went to her house and without any provocation insulted the complainant that she was a foolish dirty woman among other abusive words. On 27th June, the accused persons were arrested and after investigation, they were charged with the respective offences and put before court for prosecution. The complainant Margaret Gyapong @ Abena Tettey (Pw1) and the investigator in the case D/CpL Baafi Christian Opoku (Pw1) gave evidence to support the prosecution to prove their case against the accused persons. Margaret Gyapong (Pw1) testified that on 25th June,2022 at about 12:30pm she saw Nana Yaw causing damage to her window net. That she complained about the conduct of Nana Yaw and A1, A2, and A3 insulted her that she was a dirty woman and a witch among other insults. Then A1 slapped her and pushed her to the ground whiles A2 and A3 assisted A1 to beat her and they also kicked her when she was on 2 | P a g e the ground. That she struggled to resist the attack but she was over powered till she had bruises on her body with severe bodily pains. Pw1 continued that on that same day, A4 came to her house and insulted her that she was a witch and warned her not to pass on the street in front of their house or else she would fight her. Pw1 further testified that, on the same day she reported the case to the police at Bodi and was issued with police medical report form which she sent to Bishop Angloby Memorial clinic and it was endorsed by a medical officer and she returned the medical form to the police. Stella Tweneboah (A1) on her defence said on the day of the incident, Pw1 accused Nana Yaw of causing damage to her window net but when A2 enquired from Nana Yaw about it, he denied it. A1 further said that, their house was close to Pw1’s house so she was at home when she heard that A2 and Pw1 were quarreling and she went there and told her mother to stop because it was Nana Yaw who created the problem. That Pw1 retorted that she (A1) was a prostitute that was why her children have different fathers and she responded that Pw1 had a husband but she had taken her children to her sibling at Sefwi Wiawso, and it turned into a heated exchange of words. Then suddenly Pw1 slapped her on the left cheek and she slapped Pw1 back and it turned into a fight between them during which Pw1 tore her dress and she also tore Pw1’s dress and A2 and A3 came and separated them. So A2 and A3 did not join her to fight with Pw1. Ama Donkor (A2) in her defence said that on the day of the incident she was at her store when she heard that A1 and Pw1 were fighting so she and A3 went and separated A1 and Pw1 and stopped the fight. However, Pw1 claimed that she (A2) and A3 joined A1 to assault her and reported them to the police but she never 3 | P a g e assaulted Pw1. Mabel Tweneboah (A3) in her defence said on the day of the incident, A1 and Pw1 were fighting and she and A2 went and separated them and stopped the fight. Mercy Tweneboah (A4) in her defence said when the incident happened between the other accused persons and Pw1, she was not present but when she came home, A1 and A3 informed her that Pw1 had accused Nana Yaw of causing damage to her window net, and rained insults on Nana Yaw. That because of what she was told, she also said if Pw1 did not want others to pass behind her house, then from that day onwards Pw1 should also not pass behind their house. A4 further said Pw1 heard what she said and came out of her house and insulted her that she had been taken drugs and had bloated and did not fear her and would pass by the house every day. So she (A4) retorted that if Pw1 is a woman, she should pass there for her to see. That her father came there within that moment and talked to her to stop exchanging words with Pw1 and that he would settle the dispute between them but Pw1 continued to rain insults on her but she did not respond to the insults. From the fact before the court; The issues for determination are: 1. Whether or not A1, A2 and A3 are guilty of the offence of assault. 2. Whether or not A1, A2, A3 and A4 are guilty of the offence of offensive conduct conducive to breaches of the peace. Section 84 of Act 29 under which A1, A2 and A3 are charged with assault provides that “A person who unlawfully, assaults another person commits a misdemeanor.” Section 86 (1) of Act 29 defines assault as “A person makes an assault on another person if without the other person’s consent and with the intention of causing harm, pain or fear that person forcibly touches the other person”. For the prosecution to succeed, therefore they must prove that 1. A1, A2 and A3 forcibly touched the complainant. 2. Without the complainant consent and 4 | P a g e 3. With intend to cause pain to her. According to A1, she fought with Pw1 after Pw1 slapped her on the cheek and she also slapped her back. But Pw1 denied under cross-examination that she slapped A1. In her evidence-in-chief, A1 told the court that her house was very close to Pw1’s house and was at home when she heard Pw1 and A2 quarrelling so she went to Pw1’s house where they were quarrelling and asked A2 to stop the quarrel. The evidence indicated that it was within that moment that A1 said Pw1 allegedly slapped her. In her investigation caution statement to the police which the investigator (PW2) tendered in evidence as Exhibit A, A1 stated that “My mother, Ama Donkor went with Abena Tettey to find out the extent of damage. My mother then saw that the damage was done not that day but was done a long time ago. My mother then exchanged words with Abena Tetteh and I went there to ask my mother to stop the argument, Abena Tettey started to insult me and slapped me first and I also returned the slap and we fought” The statement of A1, Exhibit A, indicated that her mother A2, was present when the alleged fight with Pw1 started, but A2 never told the police or the court that Pw1 slapped A1 and that brought about the fight. A3 also did not tell the court that she saw Pw1 slapped A1. Since A1 could not establish that Pw1slapped her, the court is inclined to dwell on A1’s own evidence that she slapped Pw1. The court is further inclined to believe the prosecution’s evidence that A1 beat Pw1 and rejects A1’s evidence that she fought with Pw1. The belief of the court is fortified by the medical officer’s report which Pw2 tended in evidence as exhibit I. The medical doctor stated on examination of Pw1 that there was “tenderness at right lower eyelid with swelling and confusion”. In fact, all the 3 accused persons (A1, A2, and A3) told the court that they saw that Pw1 had a swollen face after the incident. And their observation was in consonance with the medical report, Exhibit I. Again tendered 2 photographs of Pw1 in evidence as 5 | P a g e Exhibits E and F. Exhibit F showed that Pw1 had a swollen face due to the assault. Exhibit E also showed bruises on the back of her neck. The 2 photographs of Pw1also clearly showed that Pw1 was assaulted. Since the evidence showed that A1 forcibly touched Pw1 without her consent and with the intention of causing pain to her, I find that A1 assaulted Pw1 and accordingly I find that A1 is guilty of assault. Even though A2 told the court that she heard that A1 and Pw1 were fighting on the premises of Pw1’s house and went there to separate them, the evidence by A1 clearly indicated to the court that A2 was present when A1 started to assault Pw1. A1 even told the court that on a previous occasion, Nana Yaw went to Pw1’s house and it resulted in a fight between Pw1 and A2 and so Pw1 and A2 were not on talking terms. In her investigation caution statement to the police, Exhibit B, A2 initially denied insulting Pw1 but later said Abena Tettey insulted her that she was a dirty woman and she also insulted Abena Tettey that she was also a dirty woman. This statement by A2 on exhibit B confirmed the evidence of A1 that A2 and Pw1 started quarrelling before she (A1) went there. So A2’s evidence that she heard A1 and Pw1 fighting and went there in the considered opinion of the court is not correct. The court is of the view that because of the previous fight between A2 and Pw1, it could be easy for A2 to take advantage of the situation presented by Pw1 accusing Nana Yaw, A2’s grandson of causing damage to her window net to fight Pw1 again, especially when A2 went to Pw1’s house to quarrel with her when they were not on talking terms. So in the opinion of the court when A1 started the assault by slapping Pw1 on the cheek, it would not be farfetched to say that A2 joined A1 to beat Pw1 up. This opinion of the court is buttressed by the fact that A2 denied that she was present when the alleged fight between A1 and Pw1 started, when the evidence clearly showed that she was present when A1 started assaulting Pw1. 6 | P a g e On the evidence before the court therefore, I find that A2 assaulted Pw1. Accordingly, I find that A2 is guilty of the offence of assault. With respect to A3, she said she heard that A1 and Pw1 were fighting and she went there to separate them. To a question as to who informed her about the fight, she replied that she heard shouts that they were fighting and she went there. In her investigation caution statement to the police Exhibit C, A3 stated that whiles at the house she saw her elder sister, Abena Damtoa and Abena Tettey fighting and she went to the scene with her mother, Ama Donkor to separate them. That she was pregnant for 8 months and had no strength to fight anyone. So whiles A3 told the court that she heard shouts that they were fighting, she stated in exhibit C, she saw A1 and Pw1 fighting whiles she was at home. The court is of the view that this conflict in A3’s statement to the police and her evidence in court makes her evidence not credible. This view of the court is supported by the fact that A3 also said she and her mother A2 went from their home to where A1 and Pw1 were fighting and separated them. Meanwhile, the evidence showed that A2 was already at Pw1’s house together with A1 assaulting Pw1. So the court is of the view that A3’s evidence is not credible. Furthermore, during the cross-examination of Pw1, A3 could not or did not deny Pw1’s evidence that she and A1 and A2 together assaulted her. According to Pw1, A1 slapped her and pushed her to the ground whiles A2 and A3 assisted A1 to beat her by kicking her whiles on the ground. But A3 did not challenge or deny or dispute this evidence by Pw1. The court is therefore of the view that the evidence of the prosecution is more reliable and acceptable to the court compared with that of A3. The fact that A3 was 8 months pregnant at that time did not mean she could not kick somebody pushed to the ground. If as she said, she had no strength because she was 8months pregnant to fight anyone, then how did she get the strength to go and separate the alleged fight between A1 and Pw1. If A3 had told the court that she just 7 | P a g e talked to them to stop the fight, that would have been different. And the court does not think A1 and Pw1 fought, rather she was beaten. Even if she fought back then she did that in self-defense to preserve her life, as she stated in her evidence-in-chief that she struggled to resist the attack but she was over powered till she had bruises on her body with severe bodily pain. On the evidence before the court therefore, I find that A3 assaulted Pw1. Accordingly, I find that A3 is guilty of the offence of assault. On the second issue, Section 207 of Act 29 under which A1, A2, A3 andA4 are charged with offensive conduct conducive to breaches of the peace provides that “A person who in a public place or at a public meeting uses threatening, abusive or insulting words or behavior with intent to provoke a breach of the peace or by which a breach of the peace is likely to be occasioned, commits a misdemeanor”. In the case of Gaba V. The Republic [1984-86] 1 GLR 694, the court held that “An essential ingredient of the offence under Section 207 is that it must be committed in a public place. No offence is committed in a private house to which the public has no right of access. Thus a quarrel in a house is not sufficient to support prosecution under the section because a private house is not a public place” So for the prosecution to succeed in this case, they must prove that; 1. Accused persons used insulting words. 2. At a public place. 3. By which a breach of the peace was likely to be occasioned. A1, A2 and A4 admitted that they exchanged words with Pw1 but Pw1 denied exchanging words with them. A2 stated in her exhibit B that Pw1 said she was a dirty woman and she also told Pw1 that she was a dirty woman. Although A1 said her mother A2 exchanged words with Pw1, she did not tell the court the actual words exchanged. So it is the view of the 8 | P a g e court that A2 could not establish that Pw1 insulted her that she was a dirty woman. I therefore find that A2 uttered insulting words against Pw1. A1 also said Pw1 told her that she was a prostitute and she also insulted Pw1 back. But A1 did not state in exhibit A that Pw1 said she was a prostitute, so it is difficult for the court to accept her evidence in court because the court is of the view that it was an afterthought. Pw1 said A3 together with A1 and A2 came to her house and insulted that she was a dirty woman and a witch, but A3 failed to deny this evidence by Pw1. Both A1 and A2 also did not deny this evidence by Pw1. So the court presumes that A3 as well as A1 and A2 uttered those insulting words against Pw1. According to A4, she came home after the incident and when she was informed about she sent a warning message across to Pw1 in her house, that if Pw1 did not want others to pass behind her house, then Pw1 should also not pass behind their house. That Pw1 got out of her house and responded to what she (A4) had said and it turned into a quarrel between them. Pw1 however, said in her evidence-in-chief that when A4 also came to her house and insulted her that she was a witch and warned her not to pass on the street in front of their house or else she would fight her (Pw1). Although, A4 denied that she insulted her, she said in her own evidence-in- chief that she quarreled with Pw1 after Pw1 allegedly told her that she was bloated. The court is therefore of the view that, the fact that A4 went to Pw1’s house to warm her and exchanged words with her, it is highly probable that she uttered the insulting words to Pw1 that she was a witch. The evidence of Yaw Ackah (Dw1) the father of A4, confirmed the evidence of A4. Accordingly, on the evidence before the court, I find that each accused person used insulting words on Pw1. However, the evidence of the prosecution witnesses and all the accused persons showed clearly to the court that the use of the insulting words on Pw1 did not occur in a public place, but at the frontage of Pw1’s house. 9 | P a g e In the case of Quansah V. The Republic [1980] GLR 263, the court held that public place within the meaning of Section 207 of Act 29 had been defined in Section 1of Act 29 to include “any public way and any building, place or conveyance to which for the time being the public are entitled or permitted to have access, either without any condition or upon condition of making any payment, and any building or place which is for the time being used for any public or religious meeting, or assembly or as an open count. “That the only evidence about the locus of the alleged offence was that it took place in the frontage of the head of family’s house that was too vague to satisfy the definition of a “public place” in Section 1 of Act 29. Appling the above cited case in the instant case, since the use of the insulting words took place at the frontage of Pw1’s house, that place is too vague to satisfy the definition of a public place in Section 1 of Act 29. Accordingly, the likelihood of a breach of the peace does not arise as a breach of the peace does not occur at a private house or at the frontage of a private house. On the evidence therefore, the prosecution could not prove their case against the accused persons on count 2. I therefore find that the accused persons are not guilty of the offence of offensive conduct conducive to breaches of the peace. Accordingly, each accused person, (A1, A2, and A3) is hereby convicted on the charge of assault, count 1. Consequently, each accused person) (A1, A2, and A3) is hereby sentenced to pay a fine of 50 penalty unit on count 1 or in default 3 months IHL. Each accused person (A1, A2 and A3) is hereby further sentenced to sign a bond to be of good behavior for 6 months or in default 1month IHL. Each accused person (A1, A2 and A3) is hereby ordered to pay GH₵1000 to the complaint (Pw1), Margaret Gyabeng @ Abena Tettey as compensation for her medical expenses and the pain she suffered as a result of the assault. 10 | P a g e The charge of offensive conduct conducive to breaches of the peace, count 2 is however, dismissed and the 4 accused persons are hereby acquitted and discharged on count 2. SGD::: SAMUEL ENTEE JNR ESQ THE MAGISTRATE 11 | P a g e