Republic Vrs Tugli and Others [2023] GHADC 536 (15 June 2023)

IN THE DISTRICT COURT, DZODZE HELD ON THURSDAY THE 15TH OF JUNE, 2023 BEFORE HIS WORSHIP NELSON DELASI AWUKU DISTRICT MAGISTRATE. Case No. B1/21/22 THE REPUBLIC VRS MIHESO TUGLI & 2 ORS JUDGMENT PARTIES COMPLAINANT PRESENT ACCUSED PERSONS PRESENT REPRESENTATION CHIEF INSPECTOR HAMID MOHAMMED FOR PROSECUTION PRESENT MARK ADZANU ESQ FOR ACCUSED PERSONS PRESENT BACKGROUND The accused persons were arraigned before this Court on 10th March, 2022 on charges of Conspiracy to commit crime to wit assault and assault contrary to Sections 23(1) and 84 of the Criminal Offences Act, 1960 (Act 29). BRIEF FACTS 1 | P a g e The facts as attached by the Prosecution stated that the complainant Midawo Tugli is a motor rider of 32 years old whilst the accused persons Miheso Tugli, age 50 is a farmer, Benedicta Tugli, age 28, a farmer and Torgbui Tugli, age 32 is also a commercial motor rider. Complainant and all the accused persons are natives of Asiagborvi Tuglikorfe. The Prosecution stated that on the 22nd day of January, 2022, at about 4:30pm the complainant whiles returning from town met the accused persons and they immediately started hurling insults at him. The Prosecution stated that the accused persons followed the complainant, assaulted him and in the process tore his shirt in the presence of his wife. The prosecution stated that the complainant reported the incident to the police and was issued with a medical form to attend hospital for treatment which was returned duly endorsed by a medical officer. The prosecution stated that the accused persons were subsequently arrested and after investigations were arraigned before the court for prosecution. PLEA OF ACCUSED PERSONS AND SERVICE OF DISCLOSURES The accused persons pleaded not guilty to the offences when the charges and particulars of the offences were read and interpreted to them and were admitted to bail. Witness statements of witnesses of prosecution together with charge statements and investigation caution statements of the accused persons were filed by the prosecution together with a medical report of complainant and served on the accused persons for trial. 2 | P a g e Upon the request of counsel for the accused persons, the accused persons were served with an extract of the complaint made by the complainant from the station diary of the police based on the court’s order. THE CASE OF PROSECUTION The prosecution called the complainant as his first witness, and in addition called Rejoice Flome and the police investigator D/Inspector Bright Quarshie as supporting witnesses. In his evidence to the Court, the complainant stated that, the accused persons are his uncle and siblings respectively but he is currently not in talking terms with them. PW1 stated that on the 22nd of January, 2022 at about 4:30 pm whiles on his way to a funeral at Ashiagborvi, he met the accused persons who hurled insults at him and without any provocation assaulted him and tore his shirt in the process. PW1 stated further that A1 and A3 who were both holding a knife and cutlass at the time threatened to kill him anywhere they see him. In her evidence in support of the case of PW1, PW2 stated that on the said date and time she was returning from a funeral in town and on her way heard the voice of some people quarreling behind. PW2 stated that, she followed the voices and went to the scene where she saw A1, A2 and A3 beating PW1. PW2 stated that she saw A3 hold the shirt of PW1 on the neck while A2 and A1 kept assaulting him till he fell. 3 | P a g e PW2 stated that she shouted for help and one Geoffrey Gbolonyo and Emmanuel Agboyibor and others whose names she does not know came to the scene to rescue PW1 from the accused persons. PW2 stated that A1 later threatened that he will surely kill PW1 before he can have his rest. PW3 gave evidence as the investigator and tendered in evidence the cautioned and charge statements of the accused persons as well as the endorsed medical form of the complainant which were adopted and marked as Exhibits A, B, C, D, E and F. DEFENCE OF FIRST ACCUSED The accused stated that both A2 and A3 are his children and that on the 22nd day of January, 2022 he was in his house under a black berry tree when the complainant came to pass. A1 stated that upon seeing him the complainant shouted his name and accused him of being a murderer and a ‘juju man’. A1 stated that when he got up to confront the complainant for referring to him as such he became furious and had a quarrel with him which degenerated into a fight after his children had attempted to intervene. A1 stated that other people who were around also joined to separate them after which the complainant picked a stone and threw into his house whiles leaving the scene. He denied the claim that he assaulted the complainant or caused him any harm. 4 | P a g e DEFENCE OF THE SECOND ACCUSED The second accused stated that, on the day of the incident he was in the house with his father at Ashiagborvi Tuglikorpe when the complainant came to their house. A2 stated that as soon as the complainant saw his father, he shouted his name and referred to him as a madman, murderer and a ‘juju man’. A2 stated that when A1 got up to confront him a quarrel ensued between the two and the complainant started beating his father so she together with A3 helped their father in the fight. A2 stated that in the process the complainant picked a stone and threw it at them but it hit a bystander. A2 denied beating the complainant or causing him any harm and stated further that PW2 was not present when the fight took place and that she did not see her there at all. DEFENCE OF THIRD ACCUSED A3 stated that on the 22nd of January, 2022, the complainant came to their house and was quarreling with his father and sister. A3 stated that, he approached the complainant and asked him why he was insulting his father who is also his uncle but he became offended, held his shirt and tore it. A3 stated that a fight ensued between himself and the complainant as a result but one Geoffrey Gbolonyo and other persons around came to the scene and separated them. 5 | P a g e A3 stated that whiles leaving, the complainant threw a stone into their house and it hit a bystander called Agboyibor Cephas. A3 denied assaulting or causing harm to the complainant and stated further that PW2 was not present when the fight took place. THE LAW 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. In the case of Abdulai Fuseini v the Republic, reported in [2020] Crim LR, page 331, the Supreme Court reiterated the basic principle underpinning criminal prosecution in our courts as follows; “Proof beyond reasonable doubt is actually proof of the essential ingredients of the offence charged and not mathematical proof”. See also Frimpong alias Iboman v. The Republic [2012] 1 SCGLR 297. Section 11(2) of the Evidence Act, 1975 (NRCD 323) provides as follows; “In a criminal action, the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt required the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of a fact beyond reasonable doubt”. 6 | P a g e The accused persons in this case are charged with the offences of conspiracy to commit crime namely assault contrary to sections 23 and 84 and assault contrary to section 84 of the Criminal Offences Act, 1960 (Act 29). 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. 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; 7 | P a g e “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 makes 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). ANALYSIS AND EVALUATION OF EVIDENCE For the purposes of Count one in respect of the offence of conspiracy, the prosecution 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 8 | P a g e agreement between the accused persons to act in common purpose towards the commission of the substantive offence or any other offence. It is the case of PW1 that whiles on his way to the funeral on the said day, he met A1, A2 and A3 and as soon as they saw him, they started hurling insults at him. He stated further in paragraph 5 of his witness statement that the accused persons without provocation followed and assaulted him. The evidence by PW1 is to the effect that, the incident occurred when he had met the accused persons on his way to the funeral. Unless it is established that the accused persons had fore knowledge of the complainant passing by that area on the said day and time and were actually waiting for him or went there purposely to meet him to execute their intention, it will be accurate to conclude that the incident was triggered by developments that took place when the parties met rather than it being occasioned by a prior agreement between the accused persons to commit an offence. Both witnesses called by the prosecution in support of the evidence of PW1 did not witness the initial stages of the incident and were not in the position to tell what actually triggered the alleged attack and how exactly it occurred. The facts and evidence suggest that there was a physical or forceful contact on the complainant arising from incidents in relation to the developments on the said day but there is no sufficient basis to confirm that there was a prior agreement between any of the parties prior to the act, based on which they could be convicted on count one. 9 | P a g e In the circumstance, the accused persons are acquitted and discharged on the first count of conspiracy to commit crime namely assault. In respect of count two on assault, the complainant claims that, A1, A2 and A3 followed him and without any provocation attacked him and tore his shirt. The prosecution’s second witness PW2 who stated that, on the day of the incident she was also returning from a funeral when she heard the voices of people quarreling behind her. PW2 stated that when she got to the scene, she saw the accused persons assaulting PW1 and that A3 actually held his shirt at the neck whilst A2 and A1 kept assaulting him. In the court’s opinion, the two other persons Geoffrey Gbolonyo and Emmanuel Agboyibor who were specifically mentioned by PW2 to be among the persons who came to the scene and rescued the complainant from the accused persons are material witnesses. However, as a general rule, it is the prosecution who has the discretion to present such witnesses as it elects to call or in support of its case. See Tetteh v. the Republic [2001- 2002] SCGLR 848. PW2 gave evidence as an eye witness and although concerns have been raised about her relation to PW1, she remains a competent witness per section 58 of the Evidence Act (NRCD 323). 10 | P a g e Her evidence cannot be merely rejected on the basis of the concerns about her relations with the complainant and the possibilities of the impact of such relations on her testimony. See the case of GPRTU v. NTRAKWA [1999-2000] 2 GLR 278. The credibility of the witness and the truthfulness of her testimony is subject to the scrutiny of cross examination and the rules of evaluation of evidence. Both A2 and A3 claimed in their witness statements that PW2 was not present at the scene on the day. That assertion by A2 in particular contradicts what she stated in her caution statement to the police that the wife of PW1 was earlier standing with her Uncle’s children and when PW1 was passing by he saw her and queried her about what she was doing in the house of a ‘juju man’. The medical report tendered in evidence and endorsed by Dr. Kofi Bonsu of the Akatsi District Hospital revealed that the victim reported for treatment on 29th January, 2022 and it was observed that he had some abrasions and was also experiencing some musculoskeletal pain attributable to an alleged assault. In a matter of this nature, the issues for determination are; i. Whether the parties actually met on the said date? ii. Whether the evidence establish a forcible contact on the complainant? iii. Whether the forcible contact is justified in law? The prosecution through its witnesses and the evidence tendered established that the complainant had been assaulted. The fact is not in dispute that the parties met on the said date and the accused persons in their own evidence admitted that there was a physical encounter between themselves and the complainant on the said date but described what took place as a fight which was instigated by the conduct and actions of the complainant. 11 | P a g e The attempt by counsel for accused persons to establish that because the complainant delayed in reporting the incident to the police and not having himself medically examined on time, then the medical report which was later obtained could be related to a different incident is not supported by the facts and evidence. For that argument to hold, the onus was on the person alleging same to make available to the court facts and evidence that will reasonably lead to that conclusion. The burden on the accused persons per section 11(3) of the evidence Act 1975 required them to produce sufficient evidence so that on the totality of the evidence a reasonable mind could have a reasonable doubt as to their guilt. See also the case of COP v. Antwi (supra). . All the accused persons in their evidence denied assaulting or causing harm to the complainant. A1 narrated his version of what actually transpired in paragraphs 4,5,6 and 7 of his witness statement; “4. On the 22nd day of January, 2022, I was in my house under a black berry tree at Ashiagborvi – Tuglikope when the complainant came to pass in front of my house. 5. When the complainant was passing and saw me in my house he shouted my name and said I am a madman, juju man and a murderer. 6. As he was calling me those names I got up to confront him and he became furious and picked a quarrel with me but my children intervened and it resulted in a fight. 7. Bystanders came to separate us but the complainant picked a stone and threw into our house whiles he was leaving”. 12 | P a g e The sum of the evidence of A1 is that, whiles the complainant was passing in front of his house on the said date, he hurled insults at him and upon confronting him a quarrel ensued which later resulted in a fight when his children attempted to intervene. In paragraph 6 of her evidence, A2 stated that the complainant was beating her father and she together with A3 went to help their father in the fight. This claim was found to be in sharp contrast with the evidence of A1. In both his witness statement and the investigation caution statement given to the police, A1 was consistent in his narration that a quarrel ensued between him and the complainant when he confronted him. He did not state that he was beating up by the complainant. The evidence of A1 suggested that the physical confrontation or fight only ensued after his children had come into the picture but was not clear on what exactly any of the parties said or did that triggered the fight. The contradiction of A2 is more telling when what she stated in her investigation caution statement is compared to her witness statement. The story narrated by her was completely different from her own narrations in her witness statement and that of A1. Portions of the cautioned statement A2 gave to the police on 2nd February, 2022 are paraphrased below; “ On the 22nd day of January, 2022 at about 1:00pm, the complainant was passing by our house and spotted his wife standing with my Uncle’s children and without any provocation he asked his wife to leave the compound of this juju man after which he mentioned the name of my father. At this point, my father and I together with my brother by name Torgbui Tugli got up to confront the complainant but he became furious and picked a stone and attempted to hit me with same”. 13 | P a g e In paragraph 6 of his witness statement, A3 also admitted that he rather had a fight with the complainant on the said day. Find paragraphs 5 and 6 of the witness statement of A3 below; “5. On the 22nd day of January, 2022, complainant came to our house and was quarreling with my father and sister. 6. I also approached and asked complainant why he was insulting my father who is also his uncle and he became offended and held my shirt and tore and we both picked a fight but one Geoffrey Gbolonyo and other persons around came to the scene and separated us” A3’s evidence that the fight ensued between him and the complainant also contradicted the claim by A2 that the complainant was beating A1 and the two of them went to help A1, their father in the fight. Whereas A2 admits that she took part in the fight, A3’s evidence was to the effect that the fight was between him and PW1. One thing that was common in the evidence of all three accused persons is that they all made reference to the fact that there was a fight. A1 stated that it was when his children had sought to intervene in an earlier quarrel between himself and the complainant that the incident became ‘more or less’ a fight. He did not state whether the fight was between himself and the complainant or between the complainant and his children. A2 who was also narrating the same incident stated that the complainant was beating their father A1 and she and A3 helped their father in the fight. 14 | P a g e A3 who A2 stated joined her to help their father in the fight also gave his account of the narration in which he stated that the fight was actually between him and the complainant and persons including one Geoffrey Gbolonyo who were around came to separate them. He did not mention both A1 and A2 as taking part in the fight. Whether or not there was a fight through which the accused was assaulted, what resulted in the fight and which people were actually involved in the fight are questions that remained unanswered and call for proof by the persons making that claim. The evidence given by all the accused persons were inconsistent with each other and left the court wandering whether they were given account of the same incident. In the case of A2, she was discredited as a witness by the conflict between her statement to the police and testimony in court. In the case of the Republic v. Maikankan and Others [1972] 2 GLR 502, it was held that, “once it has been proved that a witness has made previous statements to the police, the contents of which are inconsistent with the evidence given in court by the same witness, the effect of the evidence is negligible”. See also the cases of Poku v. the State [1966] GLR 262 and Yaro and Another v. the Republic [1979] GLR 10. The accused persons did not deny having a physical encounter with the complainant on the said day. They rather sought to rely on the defence that it was the complainant’s misconduct that had triggered a fight. Section 38 (2) of the Criminal Offences Act, 1960 (Act 29) defines as unlawful a fight which a person engages or maintains otherwise than solely in pursuance of a matter of justification specified in the Act. 15 | P a g e The onus of prove of that justification however lies on the persons relying on the defence. Unfortunately, the evidence of the accused persons collectively as already indicated above is replete with material inconsistences and cannot be safely relied on as a prove of their claim. CONCLUSION In respect of count two, the evidence adduced by prosecution proved the complainant suffered an assault and the accused persons admitted to engaging in a physical encounter with the complainant on the alleged date. The court did not find the claim by the accused persons to have engaged in a fight with the complainant reliable and justified in view of the inconsistencies in their evidence and failure to call material witnesses. In the circumstance, the accused persons are convicted on count two. The accused persons therefore sentenced to a fine of Thirty-five (35) penalty units each on count two and in default to one (1) month imprisonment. NELSON DELASI AWUKU MAGISTRATE 16 | P a g e