Republic Vrs Awudi [2023] GHADC 535 (9 May 2023)

IN THE DISTRICT COURT, DZODZE HELD ON TUESDAY THE 9TH OF MAY, 2023 BEFORE HIS WORSHIP NELSON DELASI AWUKU DISTRICT MAGISTRATE. Case No. B10/3/22 THE REPUBLIC VRS MICHAEL AWUDI JUDGMENT PARTIES COMPLAINANT PRESENT ACCUSED PERSON PRESENT REPRESENTATION CHIEF INSPECTOR HAMID MOHAMMED FOR PROSECUTION PRESENT BACKGROUND On 21st of March,2022 the accused person was arraigned before this Court on charges of publication of false news and offensive conduct conducive to the breach of the peace contrary to sections 208 and 207(1) of the Criminal Offences Act, 1960 (Act 29). BRIEF FACTS 1 | P a g e The brief facts attached by the prosecution disclosed that the complainants and the accused person are both natives of Ablorme - Dzodze. The prosecution stated that sometime in December, 2021 the accused person and others from the Adisre royal family in Ablorme-Dzodze reported to the police about the stealing of their ancestral stool which matter was pending investigation. The Prosecution stated that on the 3rd of January, 2022 the accused posted the photograph of PW2 on facebook with the caption, “This is the juju man who was contracted by a police sergeant Mathias Agbeshie Agbanyo stationed at Adenta/Dodowa with AK 47 firing warning shots to steal the ancestral stool of the Adisre royal family of Dzodze – Ablorme around 1:00am on 23 December, 2021. They are wanted as I write. The Dzodze police are yet to act on the case when they come from Christmas holidays”. The Prosecution stated that PW1 and PW2 made a report to the police in respect of the post and the accused person was arrested and arraigned before the court for prosecution after investigations. THE CASE OF PROSECUTION The prosecution relied on the evidence of the complainants Mathias Agbeshie Agbanyo (PW1), Abraham Dzakpasu (PW2) and the police investigator No. 47363 D/Corporal Ernest Oppong (PW3). In addition to their witness statements, the cautioned statement and charge statement of the accused person were tendered in evidence and adopted as Exhibits A and B. A snap shot of the post allegedly made by the accused on facebook was also tendered in evidence and marked Exhibit C. 2 | P a g e In his evidence in chief PW1 stated that the accused person and himself are both members of the Adisre family and that there has never been any dispute or misunderstanding between them. PW1 stated that on the 3rd of January, 2022 the accused person posted the photograph of PW2 on facebook with the caption that he as a police officer had contracted PW2 who he described as a juju man and stole the Adisre family stools from the family stool house. PW1 quoted what the accused is alleged to have posted about him on facebook as follows; “This is the juju man who was contracted by a police sergeant Mathias Agbeshie Agbanyo stationed at Adenta/Dodowa with AK 47 firing warning shots to steal the ancestral stool of the Adisre royal family of Dzodze – Ablorme around 1:00am on 23 December, 2021. They are wanted as I write. The Dzodze police are yet to act on the case when they come from Christmas holidays”. PW1 stated that what the accused posted about him on the social media was untrue and he was almost provoked into reacting in a manner which would have breached the peace. CASE OF THE ACCUSED The accused person stated in his defence that sometime in the year 2020, PW1 and PW2 led a group of men to the Adisre Family stool house with the intention to break one part of the wall of the house to create an exit there but some principal members of the family and himself got hint of that so went to stop them. The accused stated that on the 31st of December, 2021 around 1:00am he received a call from one of his brothers who lives next to the stool house by name Christoph Amable who informed him that some persons have broken into the stool house firing guns and took away the stools. 3 | P a g e The accused stated that on the same day around 1:45am PW1 came with his son to knock on his door and when he opened them, PW1 told him not to worry but should go to sleep and gave him an amount of Fifty Ghana Cedis (GH₵50.00). The accused stated that in the evening of 1st January, 2022 he called the acting chief and PW1 and suggested that a meeting be organized for the family to discuss their action but on the day of the meeting members of the Dzakpasu family did not attend and he was later informed that PW1 had left for his base in Accra and PW2 was nowhere to be found. The accused stated that following the complaint and the visit of the police to the crime scene he requested for an extract of the complaint and photographs taken at the scene by the police but was denied by the commander. The accused stated that because the police and the Adisre family he was prompted to make the post on facebook with the authority of the royal family as the stool secretary for the information of the larger family both home and abroad. The accused stated that he referred to the action of the complainants as stealing on facebook because by the custom of their family anything to do with the royal stool has to be done with the express permission of the stool father and head of family which was not obtained in this case. The accused maintained further that the publication hew made on facebook was not false but rather the true state of affairs. THE LAW Burden of Proof 4 | P a g e 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. The extent of the onus on the accused on the other hand is provided by section 11(3) of the evidence Act 1975 which states; “In a criminal action, the burden of producing evidence, when it is on the accused as to a fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on the totality of the evidence a reasonable mind could have a reasonable doubt as to guilt”. See also the case of COP v. Antwi [1961] GLR 408. Publication of false news Section 208(1) of the Criminal Offences Act, 1960 (Act 29) provides that, “ A person who publishes or reproduces a statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace knowing or having reason to believe that the statement, rumour or report is false commits a misdemeanour”. Offensive conduct conducive to the breach of the peace A person who in a public place or at any 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 misdemeanour”. Section 207 of the Criminal Offences Act, 1960 (Act 29). ANALYSIS AND EVALUATION OF EVIDENCE 5 | P a g e For the purposes of count one, the court is required to satisfy itself that the prosecution has proved the following elements; i. ii. iii. iv. That the accused published or reproduced a rumour, report or statement, That the rumour, report or statement is false, That the accused knows or reasonably beliefs that the rumour, report or statement is false and That there is the likelihood that the statement, rumour or report will cause fear or alarm to the public or disturb the public peace. In his investigation caution statement to the police dated 5th January, 2021 and in his evidence in chief filed in this court on 26th October, 2022, the accused admitted that he posted the alleged information on facebook but it was with the authority of the elders of the royal family. The accused stated that it was true the complainants at that material time were wanted by the police and elders of the family so his purpose for posting the information on his social media platform was to keep all members of the Adisre royal family abroad updated on the development in relation to the stools. In a criminal action, a confession made by an accused in respect of a crime for which he is being tried when admitted is evidence against him provided it is shown by prosecution that it was made voluntarily. See the cases of Francis Yirenkyi v the Republic, CRA J3/7/2015 delivered on 17th February, 2016 (Unreported) and State v Otchere & Others [1963] 2 GLR 463. The information posted by the accused on his facebook wall a copy of which was tendered in evidence as Exhibit C reads as follows; 6 | P a g e “This is the juju man who was contracted by a police sergeant Mathias Agbeshie Agbanyo stationed at Adenta/Dodowa with AK 47 firing warning shots to steal the ancestral stool of the Adisre royal family of Dzodze – Ablorme around 1:00am on 23 December, 2021. They are wanted as I write. The Dzodze police are yet to act on the case when they come from Christmas holidays”. The content of the publication amounts to an allegation against the accused persons which at the time of the post had not been proven by any court of competent jurisdiction. Under cross examination by prosecution on 24th January, 2023 the accused gave the following answers in response to questions on whether the complainants at the time of his publication had actually been declared wanted; Q. You published on your facebook page and stated that this is a juju man who was contracted to steal the Adisre royal stool. Who declared the people wanted as you stated? A. The Dzodze police and Torgbui Adisre Royal family Q. How were they declared wanted? A. What I meant to say was that the police and the family were looking for them Q. I am putting it to you that at the time you published the information you knew your claim was false? A. That was the true state of affairs 7 | P a g e Q. Are you aware that by the effect of that publication you dented the reputation of PW1 and PW2? A. I don’t agree with that position Q. With the understanding that you have now will you go back to your page and correct your post? A. Yes. I can do that easily Q. Do you believe that the publication of the information could likely breach the peace? A. I don’t believe that Q. As at the time you stated they were wanted it was not true? A. I meant they were being looked for and it was true. Under article 19 (1) (c) of the 1992 Constitution of Ghana, an accused person is to be presumed innocent until he is proved or has pleaded guilty. At the time the accused posted the image and name of the complainants on facebook and attributed the offence of stealing to their names, he knew very well that the complaint they made to the police was pending investigations and they complainants have not been charged for trial and pronounced guilty of stealing. Per the provision under section 208 (1) of Act 29, the prosecution is not under a duty to prove strictly that the accused intended to cause fear or alarm to the public or disturb the 8 | P a g e public peace. The test to satisfy is whether the statement, rumour or report was likely to cause fear or alarm to the public or disturb the public peace. The count finds that the statement published by the accused against the complainant was of a nature that is likely to have caused them or their relations to react which reaction could have resulted in a breach of the peace. On the basis of that determination, the accused person is convicted on count one. With respect to count two, the prosecution is required to prove that the accused in a public place or at a public meeting used threatening or abusive or insulting words or behavior with the intention to provoke a breach of the peace or in the alternative the words or behavior must be such as is likely to occasion a breach of the peace. The most essential thing is that the threatening, abusive, insulting words or behavior must be uttered or shown by the accused in a public place or meeting. A public place by definition includes “a public way and a building, place, or conveyance to which the public are entitled or permitted to have access, without a condition of making payment or on condition of making a payment, and a building or a place which is used for a public or religious meeting or assembly or as an open court”. Section 1 of the Criminal Offences Act, 1960 (ACT 29). A public way by definition also under section 1 of Act 29 includes any highway, market place, lorry park, square street, bridge, or other way which is lawfully used by the public. Having admitted that he made the post on his facebook wall and there being no doubt that it is insulting to refer to a person who is yet to be convicted of an offence as a thief, 9 | P a g e the question to resolve in this case is a determination of whether by conduct, the accused can be said to have acted in a public place or meeting. Primarily, the purpose of the law is to ensure an atmosphere of peace and quietness at public places among persons who have actually gathered or are present there. By posting on facebook, which is a social networking site and a media platform which allows users to share pictures, articles, thoughts and their opinion with other people, the conduct of the accused rather amounts to a publication which breaches section 208 and does not satisfy the elements of the offence under section 207 of the Criminal Offences Act. CONCLUSION The Court on the basis of the above reasoning acquit and discharge the accused person on count two. The accused is convicted on count one. In consideration of the age of the accused, he is sentenced to a fine of twenty-five (25) penalty units and in default to one-month imprisonment. NELSON DELASI AWUKU MAGISTRATE 10 | P a g e 11 | P a g e