Republic Vrs Ekemeh and Others [2023] GHADC 524 (22 May 2023)

IN THE DISTRICT COURT, DZODZE HELD ON MONDAY THE 22ND OF MAY, 2023 BEFORE HIS WORSHIP NELSON DELASI AWUKU DISTRICT MAGISTRATE. Case No. B1/5/22 THE REPUBLIC VRS DASHIE EKEMEH & 3 OTHERS JUDGMENT PARTIES COMPLAINANTS PRESENT 1ST & 2ND ACCUSED PERSONS PRESENT 3rd & 4th ACCUSED PERSONS ABSENT REPRESENTATION CHIEF INSPECTOR HAMID MOHAMMED FOR PROSECUTION ABSENT BACKGROUND On 19th of August, 2021, the accused persons were arraigned before this Court on charges of conspiracy to commit crime and assault contrary to Sections 23(1) and 84 of the Criminal Offences Act, 1960 (Act 29). 1 | P a g e A4 was additionally charged with the offence of stealing contrary to section 124 of the Criminal Offences Act, 1960 (Act 29). BRIEF FACTS The brief facts as narrated by Prosecution indicated that the complainants Amenyo Christian and Stephen Amenyo are siblings who live in Dzodze-Apeyeme. The prosecution stated that the first accused Dashie Ekemeh is the mother of the second accused Alex Adzogble who is a friend to the third and fourth accused persons, Mawuli Dordunu and Daniel Adaditsu. The Prosecution stated that sometime in January, 2021 a misunderstanding ensued between the parents of the complainants and A1 which matter was resolved. The Prosecution stated that later on 3rd February, 2021 A1 mobilized the other accused persons to the house of the complaints and on reaching there they subjected the complainants to severe beatings. The Prosecution stated that, A4 in the process stole a gas cylinder belonging to the complainants and valued at Eighty Ghana cedis (GH₵80.00). The Prosecution stated that, A4 gave the gas cylinder to one Vivian Dorgbertor and collected from her an amount of Thirty Ghana Cedis (GH₵30.00) with a promise to refund same when he comes back for the cylinder. The Prosecution stated that the complainants reported the incident to the police and were issued with medical forms to attend St. Anthony Hospital for treatment which they later returned to the police duly endorsed. 2 | P a g e The prosecution stated that, the accused persons and the said Vivian Dorgbetor with whom the cylinder was deposited were arrested subsequently and police investigations revealed that she did not have the intention to purchase the cylinder. The accused persons were therefore charged with the offences and arraigned before the court for prosecution. THE CASE OF PROSECUTION The prosecution called four witnesses comprising the complainants, Antoinette Fiaseme (PW3) and the Police Investigator, Detective Corporal Ernest Oppong (PW4). The prosecution’s first witness Christian Amenyo stated that sometime in January, 2021 he washed and dried his clothes on the line but upon his return to the house later in the day noticed that two of his shirts, two shorts and one under wear were missing. PW1 stated that the next day he saw A2 wearing one of his shirts and when he confronted him, he became annoyed and pulled a knife to stab him. PW1 stated that he reported the incident to A1 but she only told him that since A2 is his brother, there is nothing wrong with him wearing his shirt. PW1 stated that, when he informed his father about what A1 said he followed up to their house but A1 only insulted him when his father sought to enquire about what she was reported to have said earlier. PW1 stated that on the 3rd of February, 2021 at about 10:30pm A1 led a mob to their house and they subjected him and PW3 to beatings without provocation. 3 | P a g e PW1 stated that he identified A3 and A4 among the people who came to the house and stated further that in the course of the assault the mob entered his room and made away with his Smart Tecno mobile phone valued at GH₵450.00, a cash amount of GH₵350.00 and a gas cylinder valued at GH₵80.00. In his evidence in chief, PW2 stated that on 3rd February, 2021 he was with PW1 and PW3 in the house around 9:30pm when A1, A2, A3, A4 and four others came to attack and assaulted him and PW1 and in the process they stole their cylinder. PW3 also gave evidence to the effect that on 3rd February she was in her room around 9:00pm when she heard an unusual noise outside and when she came out saw A2, A3, A4 and others who subjected PW1 and PW2 to severe beatings. PW3 stated further that the accused persons entered the room of PW1 and PW2 and scattered all their electrical appliances. PW3 stated that it was A1 who organized the other accused persons who are friends of A2 to assault PW1 and PW2. DEFENCE OF FIRST ACCUSED PERSON A1 denied the assertions by the complainants and their witnesses and stated in defence that on the 3rd of February, 2021 at about 9:00pm she was in her house cooking when the complainant, his wife and two children came to the house. The accused stated that the complainant in her presence told her wife and the two children that where she was staying belongs to him and that if she does not behave well they will beat her up or even kill her and no one will question them. 4 | P a g e The accused stated that without uttering any word in response, the complainant fetch sand and put it into the food she was preparing, beat her up together with his wife and children and they used the kitchen stool on which she sat to hit her. The accused stated that A2 who came to the scene and wanted to prevent the assault on her was also beaten up together with one other person by name Mawunyo. The accused stated that A3 and A4 were not present at the scene and that she later reported the incident to the police and was issued with a medical form to attend hospital which she later returned to the police duly endorsed. The accused denied the allegation that she or A2 assaulted the complainants and stated further that it was rather the complainant and his family who assaulted her, A2 and her husband as a result of which her husband became sick and died later. DEFENCE OF SECOND ACCUSED PERSON A2 stated that on the said day at about 8:30pm he was in his room when he heard the voice of the complainant on their compound but he did not come out and continued with what he was doing. He stated that whiles in the room he heard people shouting and urging someone to stop so he came out and saw the complainant’s wife and children fighting with A1. A2 stated that when he attempted to intervene, the complainant and his son held his shirt by the neck and started beating him too. 5 | P a g e He stated further that A3 and A4 were not at the scene on the said date and that both him and A1 did not assault anyone as being claimed. ABSENCE OF 3RD AND 4TH ACCUSED PERSONS 3rd and 4th accused persons were convicted and sentenced for different offences in cases brought before the court during the pendency of trial. The prosecution failed to have them brought before the court to open their defences in respect of this case. THE LAW AND EVIDENCE OF PROSECUTION Burden of Proof In a criminal action the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind will find the existence of the facts beyond reasonable doubt. See Section 11(2) of the Evidence Act, 1975 (NRCD 323) and the cases of Kingsley Amankwah (a.k.a Spider) v. The Republic [2021] DLSC10793 at pages 25-26 per Dotse JSC and Frimpong alias Iboman v. The Republic [2012] 1 SCGLR 297. In the case of Ali Yussuf Issa (No.2) v. The Republic [2003-2004] SCGLR 174, it was held that the burden of proof has two components, the duty to lead evidence on any fact required to be proved and the duty to provide sufficient evidence to persuade a reasonable mind as to the existence of any such fact. See also Kweku Quaye alias Torgbe vs. The Republic [2021] DLSC10794 at page 9-10 per Prof. Mensa Bonsu, JSC. Section 13(1) of the Evidence Act 1975 (NRCD 323) provides the extent of proof or the burden on the prosecution in a criminal action thus; 6 | P a g e “In civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt”. The extent of the onus on the defence on the other hand is provided by section 13(2) of the evidence Act 1975 which states; “Except as provided in section 15(c), in a criminal action, the burden of persuasion, when it is on the accused as to a fact the converse of which is essential to guilt, requires only that the accused raise a reasonable doubt as to guilt”. See also COP v. Antwi [1961] GLR 408. Conspiracy Section 23(1) of the Criminal Offences Act, 1960 (Act 29) in defining the offence of conspiracy states that; “where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet the criminal offence”. In the case of The Republic v Ernest Thompson & Others [2021] DLSC 10174 at page 10174 the court stated that; “under the definition of the offence of conspiracy, a conviction could be secured upon proof of the following ingredients; i. ii. Prior agreement for the commission of a substantive crime; Acting together in the commission of the crime in circumstances which show that there was a common purpose; iii. Previous concert even if there was evidence that there was previous meeting to carry out the criminal conduct” See also the cases of Francis Yirenkyi v The Republic (2016) 99 GMJ 1 SC and Agyapong v The Republic [2015] 84 GMJ, 142, CA. 7 | P a g e Same elements were stated in the case of Republic v Baffoe Bonnie & Others (Suit No. CR/904/2017) (Unreported) dated 12th May 2020, where the elements of conspiracy were outlined by the court in the words as follows; “For prosecution to be deemed to have established a prima fascie case, the evidence led without more should prove that: a. there were at least two or more persons b. there was an agreement to act together c. the sole purpose for the agreement to act together was for a criminal enterprise”. The effect of the principles in the above authorities is that, persons accused of conspiracy must not only be established to have agreed to act but there must be an agreement to act together for a common purpose to commit crime. It is also significant to note that, under the new formulation of the law on conspiracy as defined by the Supreme Court, a person could no longer be guilty of conspiracy in the absence of the evidence of any prior agreement. See KINGSLEY AMANKWA (a.k.a SPIDER) vs. THE REPUBLIC [2021] DLSC 10793 @ page 28 per Dotse JSC. Assault A person who unlawfully assaults any person commits a misdemeanor under section 84 of the Criminal Offences Act, 1960 (Act 29). A person commits an assault and battery on another person, if without the other person’s consent and with the intention of causing harm, pain or fear or annoyance to the other person or of exciting him to anger, that person forcibly touches the other person. Section 86 of the Criminal Offences Act, 1960 (Act 29). 8 | P a g e Stealing A person steals who dishonestly appropriates a thing of which that person is not the owner. See section 125 of the Criminal Offences Act, 1960 (Act 29). To successfully prove a case of stealing against a person in our law, three elements have to be established which include the fact that; a. the person is not the owner of the thing allegedly stolen, b. that he appropriated the thing and c. that the appropriation was dishonest. ANALYSIS AND APPLICATION OF LAW For the purposes of Count one in respect of the offence of conspiracy, the prosecution per the elements required as established in the cases of The Republic v. Ernest Thompson & Ors and Republic vs. Baffoe-Bonnie(Supra) had a duty to adduce evidence to establish the fact of a prior agreement between the accused persons to act in common purpose towards the commission of the substantive offence or any other offence. The testimonies of prosecution’s witnesses and evidence put before the court does not satisfy the elements required to establish the offence of conspiracy. In paragraph 3 of the witness statement of PW3, she stated that it was A1 who organized the other accused persons who are friends of A2 to attack the complainants. That same claim is also made by PW1 in paragraph 15 of his witness statement when he stated that, on the 3rd of February, 2021 at about 10:30pm A1 led a mob to their house who subjected him and PW3 to beatings without provocation. 9 | P a g e What the law requires to be established in this case is prior agreement and in the circumstances of the denial by the accused persons, the standard is not met by the mere repetition of the stories on oath. For the purposes of the offence of assault and battery, the burden is on the prosecution to prove that without the consent of the complainant, and with the intention of causing harm, pain or fear or annoyance to him or exciting him to anger, the accused forcibly touched him. The element of intention required to be satisfied under section 86 of the Criminal Offences Act is a specific intent and it would be sufficient if prosecution is able to establish some amount of recklessness on the part of the accused. The evidence of PW1 in paragraph 15 of his evidence in chief to the effect that, A1 led a mob to assault him and PW2 in his house was corroborated by PW2 and PW3 in paragraphs 14 and 11 of their evidence-in-chief as eye witnesses. PW2 stated that, “on 3rd February, 2021 at about 9:30pm he was in the house with PW1 and PW3 when A1, A2, A3, A4 and four others came and attacked him and PW1 mercilessly”. In their evidence-in-chief in defence of the charges against them, A1 and A2 did not deny being at the house of the complainants on the said date and time but consistently made reference the parents of PW1 and PW2 as the complainants. Both A1 and A2 completely ignored the allegations against them and rather focused on another incident allegedly involving the parents of the complainants herein. However, the court is of the opinion that the facts of that case are constitute separate offences and are capable of different charges if that is their case. 10 | P a g e The narrations in prosecution’s brief facts and the time of occurrence, suggests that reference was being made to an earlier incident that occurred on the same day involving the same parties which may have triggered the reaction from the accused persons that culminated in this action against them. The witnesses for prosecution were consistent in their narration which implicated the accused persons. The accused persons could not use the opportunity of cross examination to raise reasonable doubts. The issues they raised to the effect that they were rather assaulted by the parents of the complainants do not constitute a defence in this case since those issues as already stated are also capable of forming the basis for a charge in a different case against the persons who allegedly assaulted A1. A4 was charged with a third count of stealing a gas cylinder because he was alleged to be the one who later deposited the cylinder with one Vivian Dorgbetor from whom the cylinder was later retrieved. The person with whom the cylinder was alleged to have been deposited was not called as a witness in the case which rendered assertions attributed to her by prosecution as a hearsay evidence and non-admissible. A4 as indicated was also not available to open his defence in view of his conviction and sentence in another offence. CONCLUSION 11 | P a g e On the basis of the above reasoning, the court holds that the prosecution failed to prove the elements of conspiracy against the accused persons. The accused persons are therefore acquitted on count one. The prosecution was successful in proving count two. A1 and A2 are convicted on count two. A1 is to enter a bond to be of good behavior. The bond is to be without surety and is to last for six (6) months in default to one (1) month imprisonment. A2 is referred to the Juvenile Court for sentencing. The charges against A3 and A4 are struck out for want of prosecution and the accused persons are discharged. NELSON DELASI AWUKU MAGISTRATE 12 | P a g e