Republic Vrs Atta and Others [2023] GHACC 430 (19 May 2023)

IN THE CIRCUIT COURT HELD AT AGONA SWEDRU ON TUESDAY THE 9TH DAY OF MAY, 2023, BEFORE HIS HON. JONATHAN DESMOND NUNOO, CIRCUIT JUDGE. COURT CASE NO.36/22 THE REPUBLIC VRS. 1. NANA SUPI KOW ATTA 2. NANA OSOMPA NYAMEKYE II 3. KOJO ASEKU @ LARGE JUDGMENT Accused persons present. Patrick Asamoah for the Accused persons present. Charges against the Accused are conspiracy to cause unlawful damage, causing unlawful damage contrary to sections. The Accused persons pleaded not guilty to the offences. The brief facts of the case are that on 2nd June 2021, accused persons went to the Complainant’s land and removed 70 pieces of boundary pillars, they destroyed 6 pieces out of it. A report was made to the police and the Accused persons were arrested to assist investigations. Accused persons admitted the offence and led police to Gomoa Oteipro where complainant’s found lying in front of the 2nd Accused house with six (6) short pillars destroyed. Prosecution called three witnesses and tendered Exhibits A, B, C and G” in evidence. The gist of prosecution case has given by Pw1 is that he is the head of family of Royal Anona Mahodwe and the family has a land at Beyedom near Gomoa Otepro and that they erected 13 thirteen long pillars and (57) fifty seven short boundary pillars on the land and that on 2nd June2021 about 8:00 am he had information from one Yaw that a group of people led by the chief of Gomoa Otepro Nana Osumpa Nyamekye II have gone to the land to remove erected 13 thirteen long pillars valued at GHc260.00 and (51) fifty- one short boundary pillars valued at GHc2040.00 and destroyed (6) six boundary pillars valued GHC240.00. According to Pw1 the total value of the boundary pillars is GHc 2524.00. He further asserted that he sent one Emmanuel Wahab (Pw2) to go and find out whether what he has heard is true and Pw2 later called to confirm the information. At the end of the case for prosecution, Counsel for Accused file a submission of no case and it is this submission of no case that has necessitated this ruling. The issue before the court is whether prosecution has made a prima facie case for the Accused persons to be called upon to answer. Counsel submitted that per the Practice Direction And case Management in Criminal Proceedings dated 30th of October, 2018, section 5(2)(a) sates that “At the close of the case of prosecution, the court shall on its own motion or on a submission of No case to Answer, give a reasoned decision as to whether the prosecution has, or has not led sufficient evidence against the Accused person as to require the Accused person to open his defence." According to Learned Counsel from the tenure of the above section the reasoned decision ought to be given whether the Accused person makes a formal submission of no case or not Counsel for Accused also mentioned Section 173 of the Criminal and other offences Procedure Act, 1960 (Act30) which provides as follows:- “ Acquittal of accused when no case to answer at the close of the evidence in support of the charge , it appears to the Court that a case is not made out against the accused sufficiently to require the Accused to make a defence, the Court shall as to that particular charge, acquit the accused.” Counsel further stated there are many decided case regarding the above provision and cited in support State v Ali Kassena [1962] GLR SC144 where it was held at page 148 that “A submission that there is no case to answer may properly be made and upheld (a) when there has been no evidence to prove the essential elements in the alleged offence. (b) when the evidence adduced by the prosecution has been so discredited as a result of cross -examination is so manifestly unreliable that no reasonable tribunal could safely convict upon it. Apart from these two situation, a tribunal should not in general be called upon to reach a decision as to conviction or acquitted until the whole of the evidence which either side wishes to tender has been placed before it” Counsel said that the standard of proof at the close of prosecution’s case was stated in Tsatsu Tsikata v The Republic [2003- 2004] SCGLR 1068 inholding 5 as follows that on a submission of no case, the judge’s function was essentially to determine whether there was a genuine case for the trial i.e. whether there were genuine factual issues that could be properly be resolved only by the finder of fact because they might reasonably be resolved in favour of either party, the enquiry has to focus on the threshold question whether the evidence presented sufficient disagreement to require a full trial, or whether it was so one-sided that one party must prevail as a matter of law. Therefore, where reasonable minds, differ as to the import of the evidence presented in a submission of no case, that motion should be upheld. If on the other hand, there could be but one and only one reasonable conclusion favouring the moving party, even assuming the truth of all the prosecution had to say, the judge must grant the motion. Where the submission was rejected and the case went for trial, it was then that the judge or jury as appropriate, being the trier of facts, would be called upon to determine whether or not the guilt of the accused had been proved beyond reasonable doubt, His Lordship Ocran stated, delivering the majority decision: “Indeed if the submission of no case is made at the close of the prosecution’s case and the cross-examination of its witnesses, how could one seriously speak of proof beyond reasonable doubt when the defence has not had full chance of punching holes in the prosecution’s case to possible raise reasonable doubt in the minds of the trier of facts, by calling its own witnesses and presenting the counsel’s address /It seems … we have to look, for a lower proof at this preliminary stage in the criminal proceedings.” Counsel submitted that it is clear from the above decision that whether or not prosecution’s has proved its case beyond reasonable doubt should be considered at the end of the entire trial i.e. after the consideration of the case of both prosecution and defence. Counsel also cited SA Brobbey’s book PRACTICE & PROCEDURE IN THE TRIAL COURTS& TRIBUNALS OF GHANA 2nd Edition paragraphs 276-282 Counsel posited out that from the above authorities this courts is not expected to do nothing beyond a determination of whether or not a prima facie case has been made against the accused persons and in doing so one has to consider whether or not the evidence adduced has been so discredited as a result of cross examination that it would be unreasonable to continue with the trial , or whether the essential ingredients or elements of the charges against the accused persons has not been establish by the evidence adduced. Counsel mention the case of Atsu v he Republic [1968] GLR 716 where it was stated that, as a general rule, the defence was not called upon to present its case until the prosecution had established a prima facie case… Counsel said that at this stage, the Court need not consider whether the prosecution has proved its case beyond reasonable doubt, but whether a prima facie case has been made against the accused persons. Counsel then said that prima facie case is evidence, which on its face or first appearance, without more, could lead to conviction if the accused fails to give reasonable explanation to rebut it. It is evidence that prosecution is obliged to lead if it hopes to secure conviction of the persons charged. See Kwabena Amaning @Tagor v The Republic [2009] 23MLRG78, CA (pages 129-130 per APPAU J. A. To conclude on the matter of the duty of prosecution counsel quoted SA Brobbey Essentials of the law of Evidence at page 55 thus: “The law is well known that at the end of the case for the prosecution, only a prima facie case can be made against the accused. The principle was well articulated in the case of The State v Sowah and Essel [1964]GLR 783 where it was held at page 745 that: “it is wrong to presume the guilt of an accused merely from the facts proved by prosecution. The case for the prosecution provides prima facie evidence from which the guilt of the Accused may be presumed, and which therefore calls for explanation by the accused.” Counsel further submitted that in Michael Asamoah & Anr v The Republic (Criminal Appeal No. J3/4/2017 dated 26th July, 2017 which the Supreme Court said inter alia “.. The grounds under which a trial court may uphold a submission of no case in many landmark cases whether under summary trial or trial by indictment maybe restated as follows: a) there has been no evidence to prove an essential element in the crime b) The evidence adduced by the prosecution had been so discredited as a result of cross examination c) The evidence was so manifestly unreliable the no reasonable tribunal could convict upon it d) The evidence was evenly balanced in the sense that it was susceptible to two likely explanation one consistent with guilt the other with innocence Counsel cited the following cases Tsatsu Tsikata v The Republic [2003-2004], Kofi alias Buffalov The Republic [1987-88] 1GLR 250: Gyabaah v The Republic [1084-86] 461C. A Moshie Alias Adama v. The Republic [1977]1GLR 186- 190: Apaloo v The Republic [1975] 1GLR 156 C. A Counsel also cited as an authority the book Criminal Procedure And Practice in Ghana by Dennis Dominic Adjei Justice of the Court of Appeal, at page 275 “… The underlying in fair trial is that an accused is presumed to be innocent until he/she is proved or has pleaded guilty. Where the prosecution fails to prove an essential elements of the offence charged and the court calls upon the accused to open his, defence, the court breaches a constitutional provision by in substance saying that the accused shall open his/her defence to to prove his innocence. Therefore the courts are duty bound to ensure that whenever prosecution fails to establish a prima facie case against the accused at the close of the case of the prosecution, it stands to reason that the prosecution has failed to meet the constitutional requirement imposed on it by paragraph (c) of clause (2) of article 19 of the Constitution which provides thus: (2) A person charged with a criminal offence shall… (c) be presumed innocent until he is proved guilty or has pleaded guilty.” Counsel reiterates his point that the duty of prosecution at the end of its case is to establish a prima facie case against the accused persons to answer and prosecution must discharge the duty by proving the essential elements of the charge levelled against the accused persons. Counsel then outline the essential ingredients of the charges and juxtapose same to the evidence adduced and submitted that the prosecution failed woefully to past the test. Section 27 (1) o f A c t 1 0 3 6 2 0 / 2 0 s t a t e s t h a t a person who wilfully or unlawfully destroys, moves, or alters a boundary or survey mark, commits an offence and is liable on summary conviction to a fine of not less than one thousand penalty units and not more than ten thousand penalty units or to imprisonment for a term of not less than one year and not more than ten years or to both. Counsel posits that a person charged with the offence of unlawfully destroying boundary marks, the prosecution must prove the following essential basic ingredients namely: 1) that the accused willfully destroyed boundary marks 2) that the accused person unlawfully destroyed boundary mark. These two essential. constitutes the actus reus and the mes rea of the offence of unlawfully destroying boundary mark, in a case where the prosecution proves the ingredients the offence the accused person would be required to offer an explanation to the charge for the court to determine whether or not the conduct of the accused person was done in good faith, including where the accused asserts a claim of right to the property. Counsel cites Homenya v The Republic [1992] 2 GLR 305 Flowing from the above authorities, prosecution in the instant case had the duty to establish by the quality and quantity of the evidence that: a) the boundaries of the complainants is well demarcated by an official surveyor or licensed surveyor authorized by the Lands Commission as require by section 27 (2) of Act 1036 of 2020 According to counsel when Pw1 was cross examined he could not produce documents by their predecessor who broke the virgin forest and that Pw3 being the investigator admitted under cross examination that he never chanced on the documents of the complainant Counsel stated that the evidence on record points to the fact that the accused persons’ ancestor bought the land and Kofi Bekoe whom Pw1 admitted to be his acting head of family trespassed onto the land and alienated to third parties upon a search conducted at the Lands Commission Counsel further points out that Pw3 is not a credible witness and his testimony ought not to be believed and that Pw3 admitted not taking pictures of the broken pillars which was the epicenter of the charge proffered against the accused persons Counsel further argues that the complaint by PW! and PW 2to the police vis–a-vis the charge proffered by the prosecution was in sharp variance while PW1 and PW2 reported that accused persons have removed their boundary pillars, prosecution charged them with the offence of destroying boundary marks which charge prosecution woefully failed to establish Counsel concluded that prosecution relied heavily on suspicion, speculation and conjectures in their quest to charge the accused as well as establishing a prima facie case against the accused persons and that having failed to lead credible evidence to establish on all the ingredients of the offence the Court should acquits and discharge the Accused persons. Finally Counsel argued that the accused persons acted in good faith by their contacts (sic) seems to be make a claim of right to the disputed land. Counsel relied on the words of Her Ladyship Afia Serwah Asare -Botwey (Mrs) in the case of The Republic v Hajia Hawa Ninchema Sumaila Ewuntomah Abudu, Alex Vadze, Alhaji Abdul-Mumuni Jesewunde, Mary-Stella Adepasa, Mumuni YakubuNambe and Mahama Ayariga (Suit No FT/012/2019) dated 7th May 2021 where she said: “Our principles of law are clear that an accused has a right not to incriminate himself, and the burden is always on prosecution to prove its case at the very least to merit an accused person being called upon to answer to it. There is no burden on the accused person in our jurisprudence to prove his innocence. The prosecution should not expect that the evidence to prove their case would be sourced from the accused person.” This court agrees with Counsel for accused persons exposition of the law on what is expected of a trial court when a submission of no case has been made and the difference between prima facie case and proof beyond reasonable doubt. In dealing with the issue I must say that Counsel for Accused did not appreciate the Act under which the charges were laid, I do not know how and where Counsel for accused got the Act under which he says that the offences were laid that is Act 1036 of 2020 (The new Land Act) and let me hasten to add that this case is not about ownership of land. Because Counsel for Accused got the Act under which the charge was laid his position for the ingredients of the offence that the prosecution must establish was inaccurate. The Accused person were charged with conspiracy to commit a crime namely causing unlawful damage and causing unlawful damage contrary to section 23 (1) and 172 (b) of Act 29 of 1960 Section 23 (1) of the Act provides 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 a previous concert or deliberation… Section 172(1) of the same Act provides for the offence of causing unlawful damage and it sates: A person who intentionally and unlawfully causes damage to property (a) to a value not exceeding one million cedis or without a pecuniary value, commits a misdemeanour, b) to a value exceeding one million cedis commits a second a degree felony. (2) A person who intentionally and unlawfully causes damage to property in a manner which causes, is likely to cause, danger to life commits a first degree felony. (3) For the purposes of this section, “property” means movable or immovable property. Section 173 provides for the definition of damage For the purposes of this Act, “damage” includes not only damage to the matter of a thing, but also an interruption in the use of that thing, or an interference with that thing by which the thing becomes permanently or temporarily useless, or by which expense is rendered necessary in order to render the thing fit for the purposes for which it was used or maintained. Section 174.f the Act gives explanation of unlawful damage; (1) A person does an act or causes an event unlawfully, within the meaning of the provisions of this Act relating to unlawful damage, where that person is liable to a civil action or proceeding, or to a fine or any other punishment under an enactment, (a) in respect of the doing of the act causing an event, or (b) in respect of the consequences of the act or event, or (c) in which that person would be so liable if that person caused the event directly by a personal act, or (d) in which that person is liable to be restrained by injunction or any other proceeding from doing that act or causing that event. (2) It is immaterial whether a person accused of a criminal offence in respect of any premises or a thing is or is not in possession or occupation of the premises or of that thing. (3) A person who is interested jointly or in common with other persons in any premises or a thing as an owner or otherwise, or who as owner is a trustee for any other person, can commit a criminal offence punishable under the provisions referred to in subsection (1) by an act which is unlawful under this Chapter. (4) A person who is the sole beneficial owner of any premises or a thing can commit a criminal offence punishable under the provisions referred to in subsection (1) by an act done with intent to injure or defraud a person or to cause harm to a person although the act is not otherwise unlawful. (5) Despite anything contained in Part One as to mistake of law, a person is not liable to punishment in respect of doing a thing which that person in good faith, believes to be entitled to do. Illustrations Subsection (2) A tenant of a house can commit a criminal offence against those provisions by setting fire to the house. Subsection (3) A person who is a joint owner or in common with other persons of a house or other property can commit a criminal offence against those provisions in respect of the injury caused by that person’s criminal offence to the other joint owners or co-owners. Subsection (4) A person who intentionally sets fire to that person’s own dwelling-house or ship may commit the criminal offence of causing unlawful damage as, for instance, if the fire is likely to spread to and does spread to other houses or if the property of any other persons is likely to be destroyed and is destroyed. Section 175. provides for the explanation as to amount of damage (1) Where an intention to cause damage to a certain amount, or a causing of damage to a certain amount, is required by a provision of this Act relating to unlawful damage, it is not necessary that the damage to that amount should be intended or done to an individual thing of a kind mentioned in this provision, but it suffices if damage to that amount in the aggregate is intended or done to a number or collection of those things. (2) Where different punishments are provided by a provision of this Act relating to unlawful damage, according to the differences in the amount of damage caused, a person who is accused of having attempted to cause damage to a greater amount shall not be acquitted or relieved from liability to the greater punishment on the ground that a lesser amount of damage was actually caused. This is the stipulations of the provision of the law under which the accused person is charged. In Brobbey & Others v. The Republic [1982-83] GLR 608, the essential elements for the constitution of the crime of causing unlawful damage contrary to section 172 of the Criminal Offences Act, 1960 (Act 29), was stated thus: “damage must not only be intentional but also unlawful. Mere… damage without more was insufficient”. Also in Yeboah & Another v. The Republic [1999-2000] 1 GLR 149, the Court of Appeal had the following to say regarding the ingredients of the offence of causing unlawful damage: “on a charge of causing unlawful damage under section 172 of the Criminal Code, 1960 (Act 29), the ingredients to be proved by the prosecution were intention and unlawful damage.” Whether prosecution was able to establish the ingredients of the charges laid, in other words whether or not prosecution was able to make a prima facie case against the accused persons? This was the evidence elicited from Pw1 under cross examination Q: A: You have described yourself as head of family, which family are you the head? Asona Royal family of Mawhodwe. Q: And by paragraph 5 of your witness statement, you have stated that your family has a land at Beyedom near Gomoa Oteipro, correct? A: Correct. Q: You will agree with me that as a family head, you are the custodian of all the family properties including the members of the family? A: I agree with you, that is so. Q: By measurement, what is the size of the family land which you said is situated at Beyedom near Gomoa Oteipro? A: It is about (756) seven hundred and fifty-six acres. Q: Who are the boundaries owners of your land? A: Gomoa Otepro, Nana Kobina Asiedu Botwey; Ankobeahene and Nana Tufuhene. Q: You have mentioned Nana Ankobeahene, Nana Botwey and Nana Tufuhene where are these people from? A: Agona Swedru. Q: A: Can you show the Court the documents of this your land? I did not bring the document. Counsel for Accused prayed that the witness be made to produce the documents covering his said land near Gomoa Oteipro at Beyedom and the application was granted. Cross examination continued. Q: How did you acquire the land you have mentioned in paragraph 5 of your witness statement. A: Our ancestors broke the virgin of that forest. Q: Which of your ancestors broke the virgin of the forest of this land? A: Our chiefs and elders who are our predecessors broke the virgin of the forest. Q: A: Are you well vest with the history of your family? I do not know all the history of my family. Q: Should it be taken by the Court that you do not know the name of the 1st predecessor of yours who broke the virgin of the forest, is that what you want to tell the Court. A: I do not know. Q: I am suggesting to you that because you do not know, you have trespassed onto the land of the Accused persons and you have erected corner pillars on same. A: That is not true, the boundaries are there. Q: By your witness statement you said that you had information from one Yaw that the accused persons and some other persons were on the land uprooting corner pillars erected by you, correct? A: Correct. Q: Are you aware that the accused persons particularly, 2nd accused has instituted an action against your family in respect of your unlawful action on his land at High Court, Winneba. A: That is so I am aware. Q: And the said action at the High Court, Winneba is against the Ebusuapanyin Bekoe of Asona Royal family of Maahodwe do you know that also. A: I know that. Q: Are you telling the Court that in your family, you have two (2) heads of family who are distinct from each other as against custom and practice of the Akans and for that matter the people of Agona Swedru. A: That is not the case. Q: Do you know that in respect of the civil matter at the High Court, Agona Swedru the said Ebusuapanin Bekoe has filed processes in that matter without objecting that he is the head of family of Asona Royal family of Maahodwe? A: I know that but Kofi Bekoe was made the caretaker but when I was made the head of family, I have been attending the Court; the Oteipro people know Kofi Bekoe that is why his name was used in the suit. Q: You have been punctual and regular at the Court in respect of the land the subject matter of this case at the High Court, correct? A: That is so. Q: And any time the suit at the High Court, Winneba is called, you are the one who always represent? A: That is not true. Q: Have you taken steps to effect the change of title of the suit at the High Court at Winneba as the head of family? A: No, if that is the case. Then I will see my lawyer to effect the change if that, can it be done? Q: You have not taken the steps to effect the change in that suit at Winneba High Court because you are not the head of family? A: I am the substantive head of family if that is what you are saying I will take the necessary steps to effect the change by the next adjourned date. Q: You gave a statement to the police in connection to your complainant you made. A: Yes. Q: … Q: A: Look at the statement you gave to the police it is dated 2nd May 2012. Can you read in English? Yes. Q: Point to the Court or read to the Court from your statement that you told the police the accused has caused damage to your corner pillars? A: I went to the police station and told the police that Oteipro people have removed our pillars, it was the police who preferred the charges against the accused. Q: So the statement which you gave to the police when the event were so fresh in your mind you did not tell the police that the accused persons have caused unlawful damage to your corner pillars. A: When I lodged my complaint to the police I did not tell the police the charges to prefer against the accused. After I have narrated what has happened, then the police preferred the charges. Q: Then I am suggesting to you that the statement you gave to the police was not supporting the charges against the accused persons. I suggest that to you. A: That is not true, the complaint supports the charges. Q: Per your statement to the police vis a vis, your witness statement you did not set foot on the land to ascertain whether corner pillars were damage. Did you go onto the land or not? A: When I heard what has happened I asked my friend call Wahab who is also a witness in this case to go and check for me, he went and came to inform me that it is true that they have removed the pillars so I went to lodge the complaint and I went to the site with the investigator. Q: A: Is this person who informed you the same as Emmanuel Wahab? Yes. Q: Nowhere in your witness statement and the statement you gave to the police that you went to the land with the police? A: Because I did not initially go to the land before I lodged the complaint, the police went with me to the land to see for himself in order to believe what I have come to say. Q: Again nowhere in the statement of Emmanuel Wahab did he say that he saw the Accused persons causing damage to your corner pillars. A: I repeat that because the police officer wanted to ascertain the truth of the matter he, Wahab and myself went to the land to see the damage caused. Q: All that Emmanuel Wahab said was that he went to the land and saw group of people numbering about seven (7) led by the chief of Gomoa Oteipro who had packed boundary pillars into a vehicle, I suggest that to you? A: Wahab is not here, the pillars are boundaries pillars, he met the people there together with the chief but when we went to the scene with the police the chief and the people had left, but we went to the chief’s house and we saw the pillars. Q: Per the statement given by Wahab Emmanuel on 2nd June 2021, on the face of that statement nowhere did Wahab Emmanuel said that the accused person has caused unlawful damage to corner pillars, I suggest that to you A: What you are saying is not true, when we proceeded to the chief’s palace we saw 64 pillars, 13 pillars are long pillars, 51 are short pillars and six pillars were damaged at the site. Q: How many boundary pillars did you caused to be planted at the boundaries of the land? A: Seventy (70) pillars Q: Since you became the substantive head of family you will agree with me that you have assumed the stewardship of an Ebusuapanyin Bekoe as the family head. A: Yes, that is correct Q: The 2nd accused’s predecessor in title Kobina Egyir secured the land lying and situated at Gomoa Oteipro by a deed of conveyance dated 28th November 1896 between Josia Ekwam and Opanyin Kobina Egyir, I suggest that to you. A: That is not true because the suit at Winneba High Court they have stated this assertion in the claim but the lawyer filled a defence denying this very allegation. Ekwamkrom people are the caretakers of our land the caretakers of the land are from my gate. Q: I am suggesting to you that all search in respect of Oteipro land are done with reference to Kobina Egyir? A: That is not true else when we registered our lands in the year 2020 at lands commission, Cape Coast that will be revealed to us. Q: You have just told the Court that you have taken full responsibilities of the stewardship of the Ebusuapayin Kofi Bekoe, the caretaker family head, do you still stand by this assertion? A: Yes, I do. Q: I am suggesting to you that a search conducted at the land commission, Cape Coast on 25th October 2017 showed that Ebusuapayin Kofi Bekoe trespassed onto the accused persons land and alienated portion of the land to one Faustina Ohene Nyarko. A: That is not true otherwise Ebusuapanyin Kofi Bekoe would have informed me when he handed over to me as head of family besides when we registered our land on 2nd September 2020 this information would have been revealed to us. Q: Again on the search dated 11th May 2022 your predecessor Ebusuapanyin Kofi Bekoe trespassed onto the Accused land at Gomoa Oteipro and by deed of conveyance dated 20th July, 2019 unlawfully trespassed and alienated portions of accused persons’ land and granted same to Gospel Ambassadors Church, I suggest that to you. A: That is not true, we granted that piece of land to the Gospel Ambassadors Church and since the grant we have not heard any issue about that grant else when we did the search that will be revealed. Q: Again on the same search dated with 11th May 2022 by the 2nd Accused in the name of his predecessor Kobina Egyir showed that Ebusuapanyin Kofi Bekoe trespassed onto the accused person’s land and convey a piece of land belonging to the accused person to Eric Amfo Mark, I suggest that you? A: That is not true else it would have shown on our search. Q: I am suggesting to you that by a search conducted by the accused persons you have trespassed onto the land belonging to the accused person and erected corner pillars? A: That is not true we know our boundaries. Q: It is the unlawful act by your predecessor Ebusuapanyin Kobina Bekoe by trespassing unto the accused persons land that made the accused persons to go and remove the corner pillars to the palace to see who trespassed unto that land. A: That is not true, we all know our boundaries and even when we grant land to people they the Otepro people come and assist us to delineate the boundaries. Q: The accused persons never caused any damage to any corner pillars but they only removed the corner pillars to abate the trespass of your predecessor? A: That is not true they admitted at the police station that they removed the corner pillars. Q: I am suggesting to you that Wahab Emmanuel did not give you the accurate occurrence on the land? A: That is not true, when we went to the site we saw the six pillars damaged and when we proceeded to the place of the accused persons. We saw the other corner pillars there, the accused person was involved in counting the pillars. Q: I am suggesting to you that the Accused person removed the pillars to show that the land belongs to them and they did not course any damage to any pillars? A: That is not true, we have our respective boundaries they trespassed unto to the land and removed the pillars. This was the evidence adduced by second prosecution witness (Pw2 Emmanuel Wahab) under cross examination Q: What is your relationship with Ebusuapanyin Kobina Atta Arhinful? A: I bought a land from his family I have been visiting the palace each time. Q: A: So in effect you are not a family member of Ebusuapanyin Kobina Atta Arhinful. That is correct. Q: I am suggesting to you that PW1 Ebusuapanyin Kobina Atta Arhinful has no land for him to sell part of it to you? A: I bought the land long ago. Q: Would you be surprised to know that PW1 Kobina Atta Arhinful was not able to mention his predecessor who first worked on the land? A: I cannot give an answer to this question. Q: I am suggesting to you that the ancestor of the Accused persons are the owners of 2008 acres of land which PW1 Ebusuapanyin Kobina Atta Arhinful has trespassed and erected boundary pillars? A: That is not true. Q: I am again suggesting to you that one Kobina Egyir who is the predecessor in title of the accused persons bought this land from Joshuah Ekwam from Ekwamkrom? A: That is not true. Q: I am suggesting to you that this land I have maintained share boundary with land of chief of Agona Swedru Asafo lands, the lands of Tufuhene of Agona Swedru and Rivers Ayensu and Akora? A: That is not true. Q: It is on record that you were asked by PW1 to go to the land to check those who were on the land, correct? A: PW1 called me to say that he has heard that some people are on the land removing pillars on it so I went and I saw the 2nd accused and 1st Accused and one Prince who was wielding a pump action gun. Those I met were seven in number but I do not know the rest and they were packing pillars into a vehicle, the 2nd accused asked what I am doing there, I told him that Ebusuapanyin Kobina Atta Arhinful asked me to come and see what is going on and I added what 2nd accused is doing is not right I then called PW1 Ebusuapayin Kobina Atta Arhinful at Maahodwe to inform him and he said I should not say anything again to them so I boarded a vehicle to Maahodwe and we went to the police station to make a complainant Q: You not being a family member but, being deeply involved in PW1’s trespassing activities would it be fair to refer to you as land guard? A: No I am not a land guard. Q: Are you again aware that the land for which reason we are in here in Court is a subject of litigation at Winneba High Court with the 2nd Accused being the plaintiff in that matter? A: Yes, I am aware. Q: A: You gave a statement to the police in respect of the matter? Yes. Q: And in that statement you gave to the police you did not tell the police the accused has cussed unlawful damage to corner pillars? A: No. Q: I am suggesting to you that the conduct of the accused person does not amount to unlawful causing damage? A: When they took the pillars away we went to the palace of the accused person with the police and we saw that some of the pillars were broken. Q: The removal of the corner pillars by the accused was to demonstrate that they are the rightful owners of the land? A: That is not true. Q: When you were asked by the Accused why you were on the land and you mentioned Ebusuaapanyin Konina Atta Arhinful as the one who sent you, you made the accused person aware of the trespasser which enable them to issue a writ against Ebusuapanyin Kobina Atta Arhinful family? A: That is not correct. This was the evidence of third prosecution witness (Pw3 investigator) under cross examination as well Q: A: Q: A: Are you the one who conducted the investigation in this case? Yes. How many corner or boundary pillars were in total on the land? They were seventy (70). Q: Where precisely was the crime scene? A: It is a portion of land near Gomoa Oteipro. Q: In the course of your investigation you elicited information from the complainant A: Q: A: Q: A: and PW2 Emmanuel Wahab? That is correct. The complainant lodged a complainant with your outfit, correct? Correct. Can you recall what the complainant exactly told you? The complainant came to the station to report that he had phone call from PW2 Wahab to the effect that accused persons have gone to their land to remove boundary pillars. Q: And that you preferred a charge of causing damage when the complainant reported a removal of pillars, correct. A: Yes. Q: I am suggesting to you that at the figment of your investigation concocted a charge which run in sharp contradiction to what actually took place. A: That is not so. Q: Again no corner pillars were unlawfully destroyed by the accused persons I suggest that to you? A: They were. Q: A: How many of such pillars were allegedly damaged? Six short pillars. Q: Were these 6 pillars that were allegedly damaged did you capture them in the photograph you took described as Exhibit B? A: Yes. Q: Which of the pillars were damaged by the accused persons? A: The short pillars. Q: Look at Exhibit “B” and show the Court the very pillars which you claimed were damaged by the accused? … : The pillars damaged are those lying on top, the pillars lying near the stairs leading to the 2nd accused house. Q: Those pillars were part of the short pillars which were not photographed that is why they looked as if they are damaged, I suggest that t you? A: That is not so. Q: You intended to rely on broken pillars to charge the accused persons, the proper thing you ought to have done is to assemble and display separately and photograph taken in that manner, I suggest that to you? A: At the scene we all counted the pillars and agreed on the broken ones before taking the photograph. Q: A: Q: A: Are you aware that PW1 and PW2 did not tell the Court what you have just said? No I am not aware. Did you or you did not take photos of the six (6) damaged corner pillars? I did not. Q: I am suggesting to you that no unlawful damaged was caused by the accused persons to corner pillars of the complainant? A: They did. Q: Did you on your investigations checked on document in respect of the land of the accused person and complainant? A: No. Q: I am suggesting to you that the land where the complainant erected their corner pillars forms part of the accused person 2008 acres of land at Gomoa Oteipro? A: I cannot tell. Q: That to proof ownership the accused persons removed the pillars and safely deposited same at the frontage of the house, I suggest that to you? A: That is not true. Q: You have just told the Court that you did not extend your investigation to documents covering the land of the accused and complainant. Do you still stand by that assertion? A: Yes. Q: Then upon what basis did you tell the Court that the complainant and family has a large track of land at Gomoa Oteipro? A: It was because their pillars were on the land. Q: So it is your case that if one succeeds unnoticed to erect a boundary pillars one at Swedru and one at Accra 37 military hospital laying claim to jubilee house that the land belongs to him? A: That is not so. Q: Are you also aware that the accused person has sued the head of family of the complainant Ebusuapanyin Bekoe in respect of the land at Winneba High Court? A: No. Q: Among other reliefs claim by the accused person are a declaration of title and trespass against the complainant head of family are you aware? A: No. Q: Are you also aware that the complainant had told Court that he is the substantive head of their family? A: No. Q: Are you also aware that the complainant told the Court that he is liable to all the liabilities of Ebusuapanyin Bekoe. When he complainant assumed office as the substantive head of their family? A: No. Q: Are you aware that it is on record of this Court in respect of this matter that a search conducted by the 2nd accused person that said Ebusuapayin Bekoe has made extensive encroachment on the land belonging to the accused persons? A: No. Q: For you not extending your investigation into the boundaries and ownership where the complainant erected their corner pillars you sat at the comfort of your office and by the stroke of your pen designed a charge prepared witness statement without recourse to proper investigation I suggest that to you? A: That is not so. Q: You are also aware that the accused persons in their caution and charged statements stated that they never caused unlawful damage to corner pillars? A: They stated that in the statements. Q: And that they removed the corner pillars safely to the front of the house to look for the person who unlawfully trespassed on their land, I suggest that to you? A: That is not so. Q: I am suggesting to you that if the accused person intended to cause unlawful damage they would have done that on the land where they were rather than incurring a cost by removing them and packing them into a car and transport same and placed them at the frontage of their house? A: They intended causing damage to the pillars. Q: Your investigations ended at the frontage of the house of the house of the accused nothing more or less? A: Investigations was extended to the land. Q: A: Q: A: Did you observe any of holes or dug outs which the pillars were removed? Between the time the complainant reported the case and the time we visited the scene it rained so I could to see any hole or dugout. So is it your case that some of the evidence was concealed? Yes. Q: And you want the Court to rely on investigators which was partly conceded to convict the accused persons? A: Yes. .. In the case of Gligah & Atiso v. The Republic [2010] SCGLR 870; [2010-2012] 1 GLR 39, SC wherein His Lordship stated 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 person beyond any reasonable doubt. The burden of proof 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.” In evaluating the case of the prosecution, I understand PW1 to be saying that the land belongs to his family of which he is the head and the Accused persons have removed their boundary pillars and caused damage to some of the pillars. Pw3 said he proceeded to the site with the complainant and saw that the accused persons have removed the pillars and they have taken them to the palace and they proceeded to the palace of 2nd Accused person there they found the pillars and the accused persons admitted removing the pillars, Counsel argument that the charge proffered against the accused persons runs contrary cannot be accurate as stated already because under section 172 of Act 69 of 1960 what the accused did was contrary to section and the charges were properly laid in my view but whether the prosecution succeeded in making a prima facie case against the accused persons is another kettle of fish . Let me find out from the evidence adduced whether with the prosecution has provided enough evidence of which if the Accused persons is to be called upon to answer as their failure to do so will result in conviction. In other words whether a prima facie case has been made by the prosecution to warrant the court to call on the accused person to open their defence. From the facts of the instant case as I find them, there is no doubt that it was the accused person who caused removed the boundary pillars and caused damage of PW1 on the land in issue, and thus, the ingredient of intention on the part of the accused person to cause the said damage has been established beyond reasonable doubt by the prosecution. There is no need to belabor that point. After all, the accused persons themselves had candidly admitted that fact. What is left for this court to ascertain is whether the accused person caused the said damage to PW1’s boundary pillars unlawfully. Considering the explanation given by the accused person for causing the said damage to PW1’s boundary pillars project on the land, I get the impression that the accused persons did so believing in good faith that they were entitled to remove the said boundary pillars. The accused protested PW1’s development of the land with the belief that the land belongs to them. This implies that she was laying a claim of right to the land. In Okoe v. The Republic [1979] GLR 137, it was held that by section 174 (1) and (5) of Act 29 which explains the offence of unlawful damage in section 172 (1)(b) of Act 29, the appellant’s act could only be punishable if it was done intentionally and unlawfully and he did not believe in good faith that he was entitled to demolish the building. The court further held that “to succeed in a prosecution it was first necessary to establish that the building was lawfully on the land, for if it was not lawfully there removing it would be lawful”. In the instant case, I do not find any shred of evidence, not even a scintilla, proffered by the prosecution to establish that the boundary pillars on the land by PW1 was lawfully on the land. I say so because both the complainant (PW1) and the accused person were laying claim of title to the land. PW1 and PW2 admitted under cross examination that there is dispute between particularly the 2nd accused and complainant (PW1) family in High Court Winneba for determination of ownership of the land That explains why, according to him, when they saw that boundary pillars on the land the removed it and (6) six got damaged and took same to the 2nd accused person house. At the risk of sounding repetitive I will reproduce the evidence adduced from Pw1 when he was cross examined; “Q. Are you aware that the accused persons particularly, 2nd accused has instituted an action against your family in respect of your unlawful action on his land at High Court, Winneba. A: That is so I am aware. Q: And the said action at the High Court, Winneba is against the Ebusuapanyin Bekoe of Asona Royal family of Maahodwe do you know that also. A: I know that. Q: Are you telling the Court that in your family, you have two (2) heads of family who are distinct from each other as against custom and practice of the Akans and for that matter the people of Agona Swedru. A: That is not the case. Q: Do you know that in respect of the civil matter at the High Court, Agona Swedru the said Ebusuapanin Bekoe has filed processes in that matter without objecting that he is the head of family of Asona Royal family of Maahodwe? A: I know that but Kofi Bekoe was made the caretaker but when I was made the head of family, I have been attending the Court; the Oteipro people know Kofi Bekoe that is why his name was used in the suit. Q: You have been punctual and regular at the Court in respect of the land the subject matter of this case at the High Court, correct? A: That is so. Q: And any time the suit at the High Court, Winneba is called, you are the one who always represent? A: That is not true. Q: Have you taken steps to effect the change of title of the suit at the High Court at Winneba as the head of family? A: No, if that is the case. Then I will see my lawyer to effect the change if that, can it be done? Q: You have not taken the steps to effect the change in that suit at Winneba High Court because you are not the head of family? A: I am the substantive head of family if that is what you are saying I will take the necessary steps to effect the change by the next adjourned date.” Earlier on when the complainant was asked of his document covering the land he said he did not bring it. From the evidence adduced, it is my firm conviction that to the best knowledge of 2nd accused, the land in question belongs to his family and complainants are trespassing on same. The evidence on record even shows that the land in question happens to be a subject matter of a civil litigation before the High Court, 2nd accused is claiming title to a tract of land including the one in issue and the said suit is still pending determination. Pw2 admits that PW1 has sold a piece or parcel of land to him but that is not the land in issue and PW1 did not give any concrete evidence of ownership to the land by way of documentary or oral to suggest that the land in issue is theirs though I have said that this matter is not for determination of ownership of land but since the accused persons are acting on claim of right then the issue of ownership should be put beyond doubt in this case in order to make a prima facie case against the accused persons considering the charges preferred against them. Pw3 relied on the boundary pillars that complainants have planted on the land to suggest that the land belongs to the complaints but that cannot be, there must be more to establish land ownership that just planting boundary pillars and that was why the accused persons removed the boundary pillars as they claim to find the trespasser which they did. I am unable to say for certain who is demonstrably entitled to the land on which PW1 planted the boundary pillars which the accused went and removed and destroyed some. That is obviously for the High Court, Winneba to determine. Until that is done, I have no business in venturing into that sort of determination. In Homenya v. The Republic [1992] 2 GLR 305, it was clearly stated that where an accused person claims ownership of the property in dispute and contends that he destroyed it because it was his, the prosecution had to establish that the accused person had no such claim to the property. It was further held per curiam that “since a person cannot be prosecuted for unlawful damage in respect of his own property under section 172 (1) of Act 29 unless the damage has affected other people’s property, it follows that where in a complaint of unlawful damage to property, the suspect vehemently maintained that the property damaged is his and not the complainant’s, a prosecution under section 172(1) of Act 29 would be inappropriate, except where the accused’s claim to ownership of the property is patently a ruse, calculated to enable him escape the result of his criminal action, and the prosecution have a water-tight proof of the complainant’s title to the property.” I shudder to say that the prosecution woefully failed to proffer a water-tight proof of the complainant’s title to the land in this case since 2nd accused and the complainant (PW1) are even before the Winneba High Court seeking the judicial declaration of title to the said land in issue. In my considered view, until the High Court delivers its judgment in that matter in favour of the complainant’s, I do not think a prima facie case can be said to have been establish by the prosecution. Accused persons asserts through cross examination of prosecution witnesses that a search conducted at Lands Commission by them revealed that, it was rather the caretaker head of family Pw1 one Bekoe who has trespassed onto their land and made certain alienation to certain people which are all issues to be settled by the High Court Winneba. Being mindful of the jurisdiction I am exercising over this case, which is purely a criminal one, I dare say that I have no such power to make such a pronouncement respecting ownership of land. The case of Homenya v. The Republic [supra] admonishes that “the task of the court in a criminal trial under section 172(1) of Act 29 is not to embark upon the determination of the ownership of property as between the complainant and the accused” In concluding this delivery, I wish to refer to the case of Asante v. The Republic [1972] 2 GLR 177 and observe that to secure a conviction under section 172(1) of Act 29, it is necessary for the prosecution to prove beyond reasonable doubt that the damage was caused intentionally within section 11 (2) of Act 29, and also without just cause or excuse. In my candid view, the prosecution could not surmount that legal hurdle. In applying the law to the evidence adduced I am of the firm conviction that prosecution has failed to make a prima facie case against the accused persons and calling on accused persons to open their defence will mean this court is calling on them to rather establish their innocence which courts of competent jurisdiction are forbid from doing. It therefore follows that prosecution having failed to make a prima facie case against the accused persons they are entitled to be acquitted and discharged and I so hold. (SGD) H/H JONATHAN DESMOND NUNOO (CIRCUIT COURT JUDGE). 38