The Republic Vrs Assuah & Another [2023] GHADC 241 (4 July 2023)

IN THE DISTRICT COURT HELD AT SEFWI JUABOSO ON TUESDAY, THE 4TH DAY OF JULY, 2023 BEFORE HIS WORSHIP SAMUEL ENTEE JNR ESQ. THE MAGISTRATE CC. NO.:226/22 THE REPUBLIC VRS. 1. KWADWO ASSUAH 2. KWABENA NKRUMAH @ BANTAMA 1st Accused person present. 2nd Accused person absent. Detective Chief Inspector Solomon Boatri for the Republic present. Patrick Adu Amponsah for the accused present. JUDGEMENT The 1st accused person, Kwadwo Assuah, is charged with the offence of negligently causing harm contrary to section 72 of the Criminal Offences Act, 1960 (Act 29). The 2nd accused person, Kwabena Nkrumah @ Bantama is charged with the offence of possession of arms and ammunition without authority contrary to Section 11 @ of the Arms and Ammunition Act, 1992 (N. R. C. D 9) The facts of the case are that the complainant Rev. Father Boniface Owusu Asante is the Roman Catholic Priest at St, Francis of Assisi Parish Sefwi Amoaya, and both the 1st and the 2nd accused persons are farmers who also live at Sefwi Amoaya. That on the 23rd August, 2021, the complainant engaged the services of Yaw Clement now deceased to tile his mission house. In the evening about 5:00pm, Yaw Clement went to the nearby bush about 200 meters to attend nature’s 1 | P a g e call. The 1st accused went on a hunting expedition at the same location where Yaw Clement was attending nature’s call and mistook him for a bush fowl and shot at him. Yaw clement sustained gunshot wound and ran to the mission house and informed the complaint that he has been shoot at. He was rushed to the Juaboso Government Hospital and referred to Komfo Anokye Teaching Hospital, Kumasi for treatment but he died the following day on 24th August, 2021. The 1st accused reported himself to the Police at Amoaya that he shot the deceased on 23rd August 2021. He was arrested for investigation during which he told the Police he took a single barrel led gun from the 2nd accused and returned the gun to him after the incident. The 2nd accused was subsequently was arrested and the single barrelled gun was retrieved from him but could not produce a permit covering the gun. After inspection, a duplicate docket was sent to the attorney General’s office Sekondi for advice and the said office advised the police to charge the accused persons with the respective offences and put them before the court for prosecution. On 26/20/2022. The 2nd accused pleaded guilty to possession of Arms and Ammunitions without authority, and court convicted him but sentenced was differed pending the determination of the case involving the 1st accused. The prosecution called two witnesses to support their case against the first accused. The witnesses are: 1. The complainant, Rev. Father Boniface Owusu Asante (PWI), and 2. Detective chief Corporal Baafi-Opoku Kofi Christian (PW2). The 1st accused gave evidence in his defence but did not call any witness. PW1 testified that on 23rd August, 2021, Yaw Clement was working on the new mission home and later entered the bush to attend natures call then all of a sudden he heard cries from the direction of the bush towards the mission house and Yaw Clement entered the mission house crying and when he enquired as to why he was crying, he said someone had fired a gun at him. PW1 said, he saw blood oozing from his body so he put Clement on a vehicle and drove him to Juaboso government hospital but clement was referred to Komfo Anokye Teaching Hospital in Kumasi. However, when they got to the hospital in Kumasi and were removing Clement from the ambulance they found out that he was dead and he later heard the 1st accused had reported himself to the police. 2 | P a g e In his defence the 1st accused told the court that on the 23rd August 2021, he went to the bush to hunt for bush fowls and squirrels at about 4:30 pm. He said he had been hunting the said animals successfully at that area but on that day when he fired the gun he heard the shout of someone who said ‘who has done this to me’!!, and so he became afraid and run away and hid himself till in the night when he went home and informed his sister and the owner of the gun. That A2 said that he had inadvertently shot at someone so the following morning he and his sister went and reported the incident to the police and the police detained him for investigation and was later informed that the person he shot at had died The only issue for determination is whether or not 1st accused is guilty of the offence charged. Section 72 of Act 29 under which 1st accused is charged with the offence of negligently causing harm provides that “A person who negligently and unlawfully causes harm to any other person commits a misdemeanour”. Section 12 of Act 29 under negligence provides that “A person causes an event negligently where without intending to cause the event, that person causes it by a voluntary act, done without the skill and care that are reasonably necessary under the circumstances”. Section 76 of the act 29 defines unlawfully harm as: “Harm is unlawful which is intentionally or negligently caused without any of the justification under section 31 (a) - (j) of act 29. For the prosecution to succeed, they must prove beyond reasonable doubt that: 1st accused caused harm to Yaw Clement (deceased) 1st accused caused the harm unlawfully 1st accused caused the harm negligently PW1 said Yaw Clement told him someone fired a gun at him and PW1 saw blood oozing from Yaw Clément’s body. The 1st accused admitted in his evidence-in-chief that he shot at someone but it was not intentional. He also confessed in his investigation caution statement to the police, Exhibit A, 3 | P a g e which was tendered in evidence by the investigator, PW2, that he fired a shot at a bush fowl but he heard the voice of a man who shouted that he had been shot. In the post mortem report on Yaw Clement (deceased) dated 27/08/2021 and tendered in evidence by the investigator as Exhibit C, the Pathologist, Dr. Issac Siaw Lartey, of Komfo Anokye Teaching Hospital, Kumasi gave a summary of the post mortem finding as: 1. Multiple pellet entry wounds upper limb, left side of chest wall and left flank. 2. Pellet entry wound through the posterior aspect of the ventricle of the heart. The Pathologist stated the cause of death as “haemopericardium following injury to the chest from gunshot”. From the evidence therefore, I find that the accused person caused harm to Yaw Clement (deceased). Section 31 (a)-(j) of Act 29 provide grounds on which force or harm may be justified. a) of express authority given by an enactment, or b) of authority to execute the lawful sentence or order of a court, or c) of the authority of an officer to keep the peace or of a court to preserve order, or d) of an authority to arrest and detain for felony, or e) of an authority to arrest, detain, or search a person otherwise than for felony, or f) of a necessity for the prevention of or defence against a criminal offence, or g) of a necessity for defence of property or possession or for overcoming the obstruction to the exercise of lawful rights, or h) of a necessity for preserving order on board a vessel, or i) of an authority to correct a child, servant, or other similar person, for misconduct, or j) of the consent of the person against whom force is used. However the evidence before the court showed that the harm 1st accused caused to Yaw Clement (deceased) did not fall under any of the justification provided under section 31 of Act 29. Accordingly, I find that the 1st accused unlawfully caused harm to Yaw Clement. 4 | P a g e According to PW1, on the day of the incident he went and delivered food to Yaw clement at about 3:30pm, and Yaw Clement said he should buy him a new brush to work, so he went back but when he returned yaw was not present. In exhibit A, the accused stated that he left home at about 5:00pm on the day of the incident to the bush to hunt for fowls. In his evidence-in-chief, he told the court he got to the spot where he fired the gun at about 4:30pm. But under cross examination, accused conceded that he did not reach the place at 4:30pm as he left home about 5:00pm. To a suggestion that he fired the gun and shot at Yaw Clement about 5:20pm the first accused denied it. But if one looked at the time PW1 went and delivered the food to Yaw Clement, went back and returned to find out that Yaw Clement was not present at the new mission house, and the time 1st accused said he left home to hunt for bush fowls and the time the gun was fired, it would be about the 5:20pm the prosecution suggested to the 1st accused. Judicial notice is taken of the fact that normally from 4:30pm to 5:20pm on any day including the day of the incident, the visibility is good, and there is no evidence to the court before the court. So it is the view of the court that at that time, the 1st accused person could see what he aimed at. So it is the expectation of the court that he must see the target before aiming and firing at it. However, in Exhibit A, he stated: “I heard a bush fowl entering the bush and on seeing the direction of the bush fowl, I shot at the same direction. I heard the voice of the man who shouted, ‘who did this to me’? I became frightened and bolted home”. In his evidence-in-chief, he said he saw some bush fowls at that area and stood there a long time and studied where the fowls were particularly stationed and fired the gun. And at that very moment, he heard someone who shouted, “who had done this to me?”. He became afraid and run away. 5 | P a g e In Exhibit A, the 1st accused’s statement indicated that he did not see any bush fowl but heard some sound which he assumed was that of a bush fowl and fired at the direction of the sound, but in court he said he saw bush fowls and fired the gun. The court is of the view that the statement in Exhibit A, and the evidence-in-chief of the 1st accused compared above are conflicting. The 1st accused gave Exhibit A, to the police a day after he fired the gun shot and was likely to have had the incident clearly in his memory. He gave Exhibit A, to the police on 24th August, 2021 and relied on it in his charge caution statement, in Exhibit B. So for the first accused to now say that he saw bush fowls before firing the gun when he gave his evidence in chief on 30th March 2023, in the view of the court was an afterthought. The court is of the view therefore that the 1st accused’s evidence in court that he saw a bush fowls before he shot the gun was not credible and therefore was not reliable and so the court will not attach any weight to it. The evidence before the court showed that at the time the 1st accused fired the gun, he could see his surroundings clearly but he did not see any bush fowl. He just heard some sound and decided to shoot at the direction of the sound whiles Yaw Clement was attending natures call at the same place. The 1st accused did not tell the court that the sound he heard was that of a bush fowls. He could not establish that he had even killed a bush fowl at the place before to support his assertion that he had been hunting at that area successfully when the prosecution disputed it. Again the place the new mission house was situated was not far from where Yaw Clement attended nature’s call. So since there is a house around, the 1st accused had a duty to exercise the requisite due care and skill before firing the gun as the pellet could stray and hit other people around. Because the 1st accused should have contemplated that with houses or a house around, people may enter the bush to attend nature’s call or do other things. So the 1st accused had a duty of care to Yaw Clement who was then working at the new mission house and entered the bush to attend natures call. The evidence showed that 1st accused was in breach of that duty of care, and the breach of that duty of care resulted in 1st accused causing harm to Yaw Clement. 6 | P a g e It is therefore the view of the court that if the 1st accused had contemplated that people would enter the bush to attend natures call because there was a house or houses around especially, when it was not in the night that he might not expect anyone in the bush except probably another hunter, he should have exercised due care and skills required of a hunter and the resultant shooting of Yaw Clement would not have occurred. So the 1st accused ought to have had in contemplation the presence of human beings in the area but he failed to do so. The evidence before the court therefore showed that although the 1st accused did not intend to shoot at Yaw Clement, he nonetheless shot at him voluntarily without the skill and care that was reasonably necessary under the circumstances. Accordingly, on the evidences, I find that the 1st accused negligently caused harm to Yaw Clement (deceased). On the evidence therefore, the prosecution has been able to prove their case against the first accused person beyond a reasonable doubt. I therefore find that the 1st accused person is guilty of the offence charged. Accordingly, the 1st accused is hereby convicted on the offence of negligently causing harm- contrary to Section 72 of Act 29, and sentenced to 24 months IHL. The 2nd accused was convicted on his own plea of guilty in respect of the offence of possession of arms or ammunition without authority on 26th October, 2022. Accordingly, the 2nd accused is hereby sentenced in absentia to pay a fine of 200 PU or in default 12 months IHL. The 1st accused is ordered to pay GH₵ 6,000.00 as compensation to the estate of Yaw Clement (deceased). Section 148(2) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) applied. 7 | P a g e SGD::: SAMUEL ENTEE JNR ESQ THE DISTRCT MAGISTRATE 8 | P a g e