Republic Vrs Nyamekye and Another [2023] GHADC 515 (8 June 2023)

IN THE DISTRICT COURT, ABURA DUNKWA, CENTRAL REGION OF GHANA ON 8TH JUNE, 2023 BEFORE HER WORSHIP, JULIANA S. P. MENSAH, ESQ. CCNO.225/2022 THE REPUBLIC VRS. EBUSUAPANYIN KWEKU NYAMEKYE SAFOHENE KWESI PAINTSIL ACCUSED PERSONS: – Present PROSECUTION: - D/Inspt. Mumuni Mohammed – Present DEFENCE COUNSEL: Rita Owusu-Ansah - Present JUDGMENT The Accused persons were charged with two counts: conspiracy to commit crime contrary to section 23(1) and causing unlawful damage contrary to section 172 of the Criminal and Other Offences Act, (1960) Act 29. The particulars of offence for count one are that 1. Ebusuapanyin Kweku Nyamekye aged 65, retired teacher 2. Safohene Kwesi Painstil, aged 60, Forester: On or before 03/08/2022 at 2:00 pm at Sekyerew in the Central Region and within the jurisdiction of THE REPUBLIC v. EBU. KWEKU NYAMKEKYE/CC225/2022 this court, you acted together with common purpose to commit crime to wit; causing unlawful damage. Particulars for count two are that 1. Ebusuapanyin Kweku Nyamekye aged 65, retired teacher 2. Safohene Kwesi Paintsil, aged 60, Forester: On or before 03/08/2022 at 2:00 pm at Sekyerew in the Central Region and within the jurisdiction of this court, you intentionally and unlawfully caused damage to the black stool room, lock and part of the wall of Sekyerew palace valued GH₵600.00 the property of Eguana Royal Family. Accused persons pleaded not guilty to both counts whereupon the case proceeded to trial. ALLEGED FACTS Both the Complainant and A1 claim to be Ebusuapanyin of Eguana Royal Family of Sekyerew. A2 is the Safohene of the same Family. After the death of their chief, the family began to suffer disputes over who lords over the palace and the black stool . On 3rd August 2022, at a one-week celebration of Obaapanin Araba Nkutoawaa of the same family, the Accused persons, took advantage and lured the complainant into the palace to demand the black stool. The supporters of the Accused persons also followed and there at the palace, a misunderstanding ensued. Accused persons ordered the complainant to open the stool room for inspection but the complainant refused to do so, informing the Accused persons that the timing was wrong and that the entire family had to be present and the necessary rites performed before the room could be opened. Infuriated by this response the Accused persons attacked the complainant. The Accused persons, armed with pickaxe and other implements went straight to the door to the stool room and caused damage to the door and its lock and other part of the room valued GH₵600.00. After this act, the complainant lodged a complaint with the police and the Accused persons were arrested. THE LAW THE REPUBLIC v. EBU. KWEKU NYAMKEKYE/CC225/2022 The plea of not guilty is a rebuttable presumption that the Accused is innocent under the 1992 Constitution Article 19(2)(c). Section 172(1) of the Criminal Procedure Act, 1960 (Act 30) provides that: “Where the accused does not plead guilty to the charge, the Court shall proceed to hear the evidence as the prosecutor adduces in support of the charge.” In Gyamfi v. Republic [2014] 71 GMJ 124 at page 147, the Court of Appeal stated: “It is trite that the burden of proof remains on the prosecution throughout, and it is only after a prima facie case has been established, that is, a story sufficient enough to link the appellant to the commission of the offences charged that the accused person is called upon to give his side of the story.” In accordance with this procedure, the prosecutor opened its case and called five witnesses namely: Ebusuapanyin Kofi Arku the complainant, Kobina Amoah, Prince Amoakoh, Yaw Mensah and the inspector D/C/Inspector Ernest Narh Odonkor referred to as PW1, PW2, PW3, PW4 and PW5 respectively. At the close of the prosecution’s case, the honourable court found a prima facie case against the accused persons with respect to both counts. The Accused persons were consequently called upon to open their defence. The court reminded the Accused persons of the charges and explained the options available to them under section 174(1). The section reads: “At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused sufficiently to require him to make a defence, the Court shall call upon him to enter into his defence and shall remind him of the charge and inform him that, if he so desires, he may give evidence himself on oath or may make a statement. The Court shall then hear the accused if he desires to be heard and any evidence he may adduce in his defence.” THE REPUBLIC v. EBU. KWEKU NYAMKEKYE/CC225/2022 A1 and A2 elected to give evidence in the witness box. In a criminal case, the standard of proof required from the Prosecution is different from that expected of an Accused person. While that of the Prosecution is proof beyond a reasonable doubt that of an Accused is just to raise a reasonable doubt about the charges against him. The standard for the Prosecution is set out in Section 11(2) of The Evidence Act, 1975 (NRCD 323). It reads: “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 could find the existence of the fact beyond a reasonable doubt. The authorities indicate the difficulty in determining what constitutes a reasonable doubt but have settled that the doubt is expected to be reasonable. Thus in the often quoted case of Miller v. Minister of Pensions [1947] 2 All ER 372 at 373 Denning J, (as he then was) said “… it need not reach certainty, but it must carry a high degree of probability, proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.” Denning further explained that “If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable,’ the case is proved beyond reasonable doubt …” The standard for the Accused is in Section 13(2) of the Evidence Act. It reads: THE REPUBLIC v. EBU. KWEKU NYAMKEKYE/CC225/2022 “In a criminal action the burden of producing evidence, when it is on the accused as to any fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt. Thus the Accused is not required to prove his innocence but raise a doubt as to his guilt. This fundamental principle is succinctly captured in the case of Commissioner of Police v. Isaac Antwi [1961] GLR 408 where Korsah CJ, in delivering the judgment of the Supreme Court held in holding (1) “the fundamental principles underlying the rule of law are that the burden of proofs remains throughout on the prosecution and the evidential burden shifts to the accused only if at the end of the case for the prosecution an explanation of circumstances peculiarly within the knowledge of the accused is called for. The accused is not required to prove anything; if he can merely raise a reasonable doubt as to his guilt, he must be acquitted; THE LAW REGARDING THE INSTANT CHARGE The Criminal Offences Act, 1960 (Act 29) section 23 (1) defines the offence of conspiracy as “If two or more persons agree or act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime, as the case may be.” In the recent case of The Republic v. Ernest Thompson and 3 ors [2021] DLSC 10174, the Supreme Court speaking through Tanko JSC, re-echoed the new formulation of conspiracy holding that “the persons must not only agree or act, but must agree to act together for a common purpose.” THE REPUBLIC v. EBU. KWEKU NYAMKEKYE/CC225/2022 The law on Causing Unlawful damage is found under section 172(1) of Act 29. It states: “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; (now GH₵100.00), (b) to a value exceeding One Million Cedis, commits a second degree felony”. In Yeboah & anor v. The Republic [1999-2000] I GLR 149 the Court of Appeal held in holding (I) that 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 are intention and unlawful damage. Section 11(1) of Act 29 describes “Intent” as “Where a person does an act for the purpose of causing or contributing to cause an event, that person intends to cause that event, within the meaning of this Act, although either in fact or in the belief of that person, or both in fact and also in that belief, the act is unlikely to cause or to contribute to cause the event.” The learned jurist, Sir Dennis, in his book, Contemporary Criminal Law in Ghana, page 138, states “Intent … is the intention of the person at the time the person committed the offence.” At page 63 he states “Criminal intent is also referred to as mens rea or guilty mind … It is a yardstick for which criminal offences are measured … “It is clear then that the decision as to whether or not the prosecution’s case has been proved beyond reasonable doubt should be made after the end of the entire trial, i.e. after the consideration of the case of the prosecution and that of the defence.” See the High Court case of Republic v. Dr. Frederic Mac-Palm number CR/0401/2021, 25th July 2022, presided over by Justice Afia Serwah, page 15. In order to evaluate the evidence, I will re-harsh the evidence of both Prosecution and Accused persons. THE REPUBLIC v. EBU. KWEKU NYAMKEKYE/CC225/2022 PROSECUTION’S EVIDENCE All the Prosecution witnesses, except PW5, recalled the 3rd August, 2022 one-week observation of the passing of their late mother at the Sekyerew funeral grounds as the day the Accused persons committed the alleged offence. PW1, the complainant, testified that he is the Ebusuapanyin of the Eguana royal family at Sekyerew. According to him, on the said fateful day, he left the funeral grounds to collect a notebook from the palace. Whilst at the palace, the Accused persons led one Jones and one Ewura Ama to the palace and ordered PW1 to open the stool room for them to take the black stool away. PW1 told the Accused persons to wait till after the funeral then the entire family would sit to take a decision. Accused persons refused to listen. They left and returned with pickaxe and forcibly broke the door, causing damage to the lock, door and wall. PW2 testified that he left the funeral grounds to see off the queen-mother but got a call from the complainant saying that the palace was under attack by the Accused persons and some other persons. PW2 rushed to the palace where he saw the Accused persons instructing Jones and others to break up the door with a pickaxe. The door, lock and wall got damaged in the process. PW2 went with the Police to effect the arrest of the Accused persons. PW3 testified that at the funeral grounds, PW1 took leave of the mourners to go for a notebook. Soon after PW1 left, he called on the phone to say that the Accused persons have led a group of people to the palace to go for the stool. PW3 and his sister Akos rushed to the palace where they met the Accused persons, Jones, Kwabena and Abeku Damptey and asked about their mission at the palace. The question generated misunderstanding and so PW3 left the palace. PW1’s grandson, PW4 also testified that after PW1 left the funeral grounds to go for a notebook PW1 called to inform him about the happenings at the palace. PW4 rushed THE REPUBLIC v. EBU. KWEKU NYAMKEKYE/CC225/2022 to the palace and saw Accused persons and some people opening the door to the stool room. PW4 attempted to prevent them from entering the room but he was pushed aside. The instant case was referred to PW5, the investigator. I must state here that PW5 filed statements he obtained from Accused persons as part of the disclosures but these statements were not tendered in evidence at the trial. However, a 15 seconds and 1.07 minutes video footage of the crime scene labelled Exhibit “A” was tendered in evidence. In Exhibit “A”, eight people including A2 are captured in the video and the voices of a few other persons can be heard in the background. In the 15 seconds video footage, a young man in a dark T-shirt is seen breaking a door with a pickaxe. A2 is seen standing just behind and watching this young man break the door with the pickaxe. There is this other man also looking on while the young man in T-shirt breaks the door. In the second 1.07 minutes video footage, A2, the young man captured breaking the door and two other men are seen coming out from the room which door was seen being broken. A2 then stops at the entrance of the room and holds the door with his left hand to keep it ajar. He sorts of beckons some other person(s), not captured in the video, to enter the room. A pickaxe is seen positioned close to the entrance of this room. EVIDENCE ADDUCED BY ACCUSED PERSONS A1’S TESTIMONY It is A1’s testimony that he is the Ebusuapayin (head of family) of the Equana Royal Family of Sekerew and that PW1 is trying to usurp his position as the Ebusuapayin. THE REPUBLIC v. EBU. KWEKU NYAMKEKYE/CC225/2022 A1, before the instant case, lodged a criminal complaint against PW2 that he has stolen the family’s ‘black stool’. The case came before this honourable court and it was revealed that the PW2 had returned the black stool. Following the court’s decision, A1 as family head found it necessary to confirm whether PW2 had returned the black stool to the Stool Room and so during the one-week celebration of a family member’s passing, A1 took advantage of the presence of family members at the function, to get them to go and verify whether PW2 has indeed returned the black stool. The confirmation was necessary because of an impending ritual which would require the black stool. A2 and other family members accompanied A1 to the palace for the inspection. They invited PW1 to join in the exercise at the palace. Whilst deliberations were ongoing, one Akos began to cast insinuations against A1 and physically assaulted him, as a result of which A1 was escorted out of the palace. A1 was in the house when he heard that the family members had opened the black stool room but did not find the black stool. As part of A1’s evidence, he tendered a ruling delivered by this honourable court dated 26th July, 2022. A2’S TESTIMONY A2’s testimony is the same as that of A1 and more. He testified that he is the Safohene and a principal member of the Equanaa Royal family. According to him, after A1 was escorted out of the palace, he and other family members demanded of PW1 to open the door to the stool room. PW1 responded that the key was missing and so if they so wish they could break the door. This response generated a heated argument and in the course of it, some family members broke the door of the black stool room and entered the room. Afterwards, A2 heard shouts “the black stool is not there”. He abandoned the argument and also entered the room and found that the black stool THE REPUBLIC v. EBU. KWEKU NYAMKEKYE/CC225/2022 was not there. A2 says he did not break the door nor instigate anyone to break into the stool room. The Defence witness, Linda Amoo, referred to as DW1 is a principal member of the family of Equanaa Royal family. Her testimony is in substance the same as that of A2. She added that she and A2 were so engrossed in the argument that they did not know how or which of the family members broke the Stool Room door. All she heard was “the Black Stool is not in the Stool Room”. DW1 rushed into the stool room and when she found that the stool was not in the room she then left out of anger. She said the Accused persons neither broke the stool room door nor instigated the family members to break the door. CONSIDERATION BY COURT I start with a caveat and say that the determination of this criminal case does not include the determination of the headship of the Eguana Royal family. Both PW1 and A1 claim to be the family head of the Eguana family to which the witnesses, excluding PW5, belong. The facts and evidence suggest that this case evolved from a contention over the headship of the family and to an extension, control over the family’s black stool which is of essence in the performance of rituals. This black stool is kept in a room under lock and the key is kept by a member of the family. A1 under cross-examination, gave an inclining as to who has possession of the key. I refer to the portion of the cross- examination below: Q. - Tell this court the year in which you were enstooled as Ebusuapanyin? A. - 2018 THE REPUBLIC v. EBU. KWEKU NYAMKEKYE/CC225/2022 Q. – Are you aware that the complainant Ebusuapanyin Kofi Arkoh was enstooled as the Ebusuapanyin of Eguana Royal Family? A. - I am not aware. Q. – I am putting it to you that Ebusuapanyin Kofi Arkoh was enstooled as the Ebusuapayin on 5th February, 2016 after the death of Ebusuapanyin Papa Mensah? A. – That is not correct. Q. – Now who keeps the keys of the stool room? A. – Nana Nyarko Entsil Q. – He is alive? A. – No Q. – So at the moment who keeps the keys? A. – Opanyin Kofi Arkoh The above dialogue establishes the stark truth that PW1 is currently in possession of the key to the stool room. I am unable to tell whether the late Nana Nyarko Entsil had possession of the key before or after the death of Ebusuapanyin Papa Mensah. However, since PW1 is currently in possession of the key, I would presume that it has been in his possession since 2016. The allegations against the Accused persons are that they conspired and lured PW1 to the palace to demand of him the black stool. I would play the scenario at the palace, as gathered from the evidence on record against the background of the contention between PW1 and A1, and the fact that A1 is aware that PW1 is in control over the key to the stool room. THE REPUBLIC v. EBU. KWEKU NYAMKEKYE/CC225/2022 Now the scenario at the palace suggests that the A1 invited PW1 after he left the funeral grounds to the palace. Accused persons and their followers were already at the palace. The evidence also indicates that members of the family aligned to PW1 were not present at the time Accused persons demanded of PW1 to open the stool room. I am of the view that PW1 felt trapped in the midst of Accused persons and their supporters and so called his supporters under the pretext of inviting them. The presence of the followers of the two contending heads obviously generated arguments. A1 is escorted out of the palace after a supporter of PW1 strikes A1 in the face. Undeterred by the refusal of PW1’s or his inability to open the door to the stool room, the door is forcibly broken by persons seen in Exhibit ‘A’. It would be recalled that PW1, PW2 and PW3 testified that they saw the Accused persons, and some other persons including one Jones at the palace. PW2 al so testified that he saw Accused persons instructing Jones to break the door with a pickaxe. PW2’s testimony that both Accused persons instructed Jones to break the door may not be accurate, because A1 was not captured in Exhibit A and probably because he was escorted out of the palace as he himself testified. There is, however, no denying the fact that a young man is seen in the video forcefully breaking the door with a pickaxe. A2 and a couple of others can be seen looking on while this gentleman breaks the door with a pickaxe. Section 22 of Act 29 which falls under Chapter 4 on Abetment and Conspiracy, states “A person who, knowing that a person designs to commit or is committing a felony, fails to use all reasonable means to prevent the commission or completing the felony commits a misdemeanour.” THE REPUBLIC v. EBU. KWEKU NYAMKEKYE/CC225/2022 Per the above section, there is a clear criminal liability on the part of A2 and those captured in the video as their posture is seen to be endorsing the breaking of the door to the stool room. PW1’s refusal to open the door or telling A2 that the key to the door is missing is not enough justification for A2 to ensure that the door is broken, especially when neither he nor A1 has control over the key. At this stage, I wish to commend the defence Counsel for filing an address in respect of this case. She submits that the Prosecution has failed to establish the case against the Accused persons beyond a reasonable doubt. The reasons, among others, are the failure of the Prosecution to thoroughly examine DW1 on matters she testified on and the fact that the Prosecution failed to arrest the person seen in the video breaking the door. I hold a different view considering the evidence on record which exposes A2 and DWI as not credible witnesses. DW1 and A2 sought to suggest that they were so engrossed in an argument at the palace that they had no idea how the door was broken. DW1 is not seen in the video let alone seen or heard in any argument with A2. In Exhibit A, A2 is seen standing right by and watching patiently, for some time, as this young man, who could probably be the Jones mentioned earlier, breaking the door to the stool room. Exhibit ‘A’ exposes the calculated lies told by DW1 and A2. I am thus of the view that there was no need to further examine DW1. In respect of the value of the damaged padlock. Here is my view. I must state here that the impact on the door from the use of the pickaxe will certainly occasion damage to either the door lock, the door, or the wall. Under section 172(1) Causing unlawful damage to property to a value not exceeding One Million Cedis, is a misdemeanour; and to a value exceeding One Million Cedis, is a second degree felony”. THE REPUBLIC v. EBU. KWEKU NYAMKEKYE/CC225/2022 Under cross-examination, Prosecution’s witness PW5 said the Accused persons and PW1 assessed the damaged padlock at GH₵600.00. I am unable to accept this armchair investigation into the cost of the damage to the padlock though I am of the belief that damage has been occasioned. CONCLUSION I refer again Miller v. Minister of Pensions supra, where Denning J, (as he then was) said “… it need not reach certainty, but it must carry a high degree of probability, proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.” and then “If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt …” The uncontroverted fact is that there is a contention over the headship of the Eguanaa family and control over the family’s black stool. I am satisfied that, A1 knowing that PW1 his opponent, has the keys to the stool room, conspired with A2 and his followers, to compel PW1, in the absence of PW1’s followers, under the pretext of a verification exercise, to gain access to the family’s black stool. The intention of Accused persons was carried out by their supporters as can be seen in Exhibit A, in spite of PW1’s realising their intentions and calling for help. THE REPUBLIC v. EBU. KWEKU NYAMKEKYE/CC225/2022 Both Accused persons cannot be exculpated from the damage caused because their followers carried out the exercise of breaking the door and in the process caused damage to the lock. On the strength of Miller v. Minister of Pensions, supra I am fortified that the evidence is enough to hold that the offences preferred against Accused persons have been proved beyond a reasonable doubt. A1 and A2 are consequently found guilty on count one conspiracy to cause unlawful damage under section 23(1) of Act 29 and count two causing unlawful damage under section 172(1)(a) of Act 29. PLEA IN MITIGATION BEFORE SENTENCING Defence Counsel: My lady, considering that the Accused persons and complainant are family members and also the fact that this is the first time they have had a brush with the law, I pray that the count would be lenient with them. Prosecution: The law rests in your bosom, M/L. B/C: I have heard Defence Counsel and Prosecution. Considering the fact that the Accused persons and the Complainant are elders from the same family and the Accused persons have not had a brush with the law, I am inclined to be lenient with them. SENTENCE The Accused persons are ordered to sign a bond to be of good behaviour for the next year, failing which they will serve one month prison term. SGD: H/W JULIANA S. P. MENSAH DISTRICT MAGISTRATE THE REPUBLIC v. EBU. KWEKU NYAMKEKYE/CC225/2022 15