S v Ahiable (B3/2/22) [2023] GHADC 1324 (10 August 2023)

IN THE DISTRICT COURT, DZODZE HELD ON THURSDAY THE 10TH OF AUGUST, 2023 BEFORE HIS WORSHIP NELSON DELASI AWUKU DISTRICT MAGISTRATE. Case No. B3/2/22 THE REPUBLIC VRS FRANCIS AHIABLE JUDGMENT PARTIES COMPLAINANT PRESENT ACCUSED PRESENT REPRESENTATION CHIEF INSPECTOR HAMID MOHAMMED FOR PROSECUTION PRESENT BACKGROUND The accused was arraigned before this Court on 3rd September, 2021 on charges of threat of death and non-registration of arms and ammunition contrary to Section 75 of the Criminal Offences Act, 1960 (Act 29) and section 1(1) of the Arms and Ammunitions Act, 1972 (NRCD 9). BRIEF FACTS 1 | P a g e The prosecution stated that both the complainant and the accused are Farmers and siblings, resident in Adibafui, a suburb of Dzodze. The Prosecution stated that in the evening of 3rd August, 2021 there was a misunderstanding between the complainant and the accused, in the course of which the accused threatened to kill the complainant with a gun or make his son kill him with a gun. The Prosecution stated that on the 8th of August, 2021 while the complainant and his wife were in the room, they over heard the accused saying that when he finishes eating he was going to proceed towards them with a gun. The Prosecution stated that whiles the complainant and his wife were sitting on their compound, they saw the accused actually coming towards them with a torchlight and whiles attempting to seek refuge, they heard three gun shots behind their building. The Prosecution stated that the complainant reported the incident to the police and the accused was arrested by the night patrol team who retrieved three empty shell of AA cartridges from behind the room of the complainant. The Prosecution stated further that, a single barrel gun was also retrieved from the room of the accused and a visit to complainant’s room showed portions of the roofing sheet behind the room perforated in a manner suspected to have resulted from gun shots. The Prosecution stated that the accused admitted in his cautioned statement that, there was a misunderstanding between himself and the complainant, but denied threatening to kill him or firing gun shots at him. 2 | P a g e PLEA OF ACCUSED The accused pleaded not guilty to both counts when the charges and particulars of the offences were read and interpreted to him and was admitted to bail. Witness statements of witnesses of prosecution together with charge statement and investigation caution statement of the accused were filed by the prosecution and served on the accused for trial. THE CASE OF PROSECUTION The prosecution called three witnesses comprising the complainant as the first prosecution witness, Sandra Kpodo as a second witness and the investigator Detective Sergeant Shaibu Amadu as the third witness to prove his case. In his evidence to the Court, the first prosecution witness stated that, the accused who is his brother invited him to his house on 3rd August, 2021 where he disclosed to him that, he wanted to renovate their late father’s building and he welcomed the idea. PW1 stated that two days after, on the 5th of August, 2021, while having a conversation with his wife, the accused interfered and asked him why he had to reveal their previous discussions to his wife. PW1 stated that he did not reply the accused, so he became offended and threatened to kill him with a gun or let his son kill him with a gun. PW1 stated further that on the 8th of August, 2021 while in the room with his wife around 8:00pm, he overheard the accused saying that when he finishes eating he was going to proceed towards them with a gun. 3 | P a g e PW1 stated that while sitting on a bench outside with his wife, the accused was seen actually proceeding towards their house holding a torch light so they decided to seek refuge. PW1 stated that, they heard three gun shots from behind his room which made them scared so he went to report the incident to the police. PW1 stated that upon their arrival at the scene, the police noticed that portions of the roofing sheet behind his building had perforated holes and also three empty shells of cartridges were retrieved from behind his building. PW1 also stated that, a single barrel gun was retrieved by the police from the room of the accused. Giving evidence in support of prosecution’s case, PW2 stated that on 4th August, 2021 at around 6:30am, she was on the compound of their house and overheard the accused insulting the complainant as a foolish man and a thief. PW2 stated that when the complainant sought to find out from the accused what he had done to warrant such insults, the accused answered and told him that it was because of his bad character. PW2 stated that in a state of anger, the accused told the complainant that he will kill him with a gun or let his son kill him with a gun. 4 | P a g e PW2 stated that on 8th August, 2021 at about 8:00pm, she was in the room with the complainant when they overheard the accused saying he was going to advance towards them with a gun when he finishes eating. PW2 corroborated the evidence of the complainant that she was sitting with the complainant in the house when they saw the accused coming towards their house that evening with a torch light. She stated further that they heard three gun shots fired from behind their building and she accompanied the complainant to the police station to make a complaint. PW2 stated that upon their visit to the house, the police found three empty shells of cartridges at the back of the complainant’s room and also retrieved a single barrel gun from the room of the accused. In his evidence to the court, PW3 stated that on 6th August, 2021 whiles he was on duty as the available investigator, a case of threat of harm was referred to him involving the accused for investigation. PW3 stated that whiles the earlier case was pending investigation, another complaint was made by PW1 on the 8th of August, 2021 around 8:00pm that the accused threatened to kill him with a gun and actually fired three gun shots at the back of his house. PW3 stated that the accused was arrested by the night patrol team who found three empty shells of AA cartridges at the back of complainant’s room and also retrieved a single barrel gun from the room of the accused. 5 | P a g e PW3 stated that he visited the scene later and saw a perforated roofing at the back of the complainant’s room suspected to have resulted from the gun shots by the accused and he took photographs of the scene. PW3 stated that he obtained cautioned statement from the accused in which he admitted to the misunderstanding that ensued between him and the accused but denied threatening to kill him as alleged and that he was in his house sleeping when the police came to arrest him. PW3 tendered in evidence the investigation cautioned statement and the charge statement of the accused, photographs taken from the scene of the alleged perforated roofing sheet behind the complainant’s house as well as the gun and ammunitions retrieved from the room of the accused. The items were adopted in evidence and marked Exhibits A, B, C, C1, C2, D and E. CASE OF ACCUSED In his evidence to the court the accused admitted that the complainant is his younger brother and that he had earlier discussed with him his intentions to have their late father’s house renovated. The accused stated that the complainant later went to discuss their agreement with his wife and she advised him against the idea of using the proposed mason but that he should look for his own mason and should not allow the one they had both agreed on earlier to do the work. The accused stated that he was insulted by the wife of the complainant but he did not retaliate. He stated that the following morning, he called the complainant to find out from 6 | P a g e him why he told the wife what they had earlier discussed for his wife to come and insult him. The accused denied threatening to kill the complainant with a gun or saying that he will let his son kill him with a gun. The accused stated that their father was a hunter from whom both he and the complainant acquired their hunting skills. He stated further that, there is a fetish in their house called ‘ADE’ and that when they go for hunting, empty shells of cartridges are kept in the shrine. The accused stated that it is not true he shot through the roofing sheets as they want the court to believe but that the shells claimed to have been retrieved from the scene were collected from the old shells in the shrine. The accused stated that, it was PW2 who took the gun from his room and gave it to the police together with the empty shells collected from the shrine. In his evidence in support of the defence of the accused, Dogbe Kodzovi Adome who gave evidence as the defendant’s witness stated that he knows the house of the parties very well and that there is a shrine in their house called ‘ADE’ which is a fetish that aids hunting. DW2 stated that, due to the presence of the shrine in the house and because they are hunters, there are lots of empty cartridge shells in their house. DW2 stated that he was informed the accused was arrested for causing damage to the roof of the house of PW1 and that the police took empty shells from the house. 7 | P a g e DW2 stated that even though he did not witness the alleged incident, he will be surprised if the accused did commit the alleged act since there is no previous issue between him and the complainant to the best of his knowledge to warrant such an action. 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. 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. Threat of death 8 | P a g e A person who threatens any other person with death, with intent to put that person in fear of death commits a second degree felony under section 75 of the Criminal Offences Act, 1960 (Act 29). Threats in the Criminal Offences Act, 1960 (Act 29) as explained in Section 17(1) (a) means a threat of criminal force or harm. Registration of arms and ammunition Section 1 (1) of the Arms and Ammunitions Act, 1972 (NRCD 9) requires that, a person who owns, possesses or controls arms or ammunition registers those arms or ammunition at the nearest police station. Under Section 26 (2) (a) of the Arms and Ammunitions Act, a person commits a misdemeanor if that person contravenes a provision of the Act or of an instrument made under section 24 or of a condition in a license or permit. ANALYSES AND EVALUATION OF EVIDENCE COUNT ONE For a conviction in a criminal case on the offence of threat of death, it will be important to establish the following; i) ii) That the accused actually threatened to kill the complainant, That the alleged act of the accused created in the mind of the complainant an expectation of death and iii) That it was in the realization of the accused that his action would produce an expectation of death in the mind of the complainant. 9 | P a g e To prove the intention on the part of the accused to put the complainant in fear of death, it is important to establish that he exhibited a real or wicked intention to put the other person in fear of death. Whether the accused threatened to kill the complainant? In his evidence to the Court, PW1 alleged that on the 5th of August, 2021 the accused threatened that he will kill him with a gun or let his son kill him with a gun following an earlier misunderstanding between the two of them. PW1 stated further that on the 8th of August, 2021 while sitting on a bench in their house with his wife, the accused was seen actually proceeding towards their house holding a torch light and whiles seeking for a place to hide, they they heard three gun shots fired from behind their room. According to PW1, the alleged shooting incident occurred not long after the accused was overheard by him and his wife saying that he will proceed towards them with a gun after he had finished eating. The above evidence was corroborated by PW2 who stated that she was with PW1 on the day the misunderstanding ensued when the accused uttered the words of threat. She also confirmed that she was with the complainant when they heard the accused saying he was going to proceed towards them with a gun and they later heard the gun shot fired from behind their room. The evidence of PW1 on the date the accused is alleged to have had the altercation with him and threatened to either kill him with a gun or let his son kill him with a gun was inconsistent with what PW2 stated in her evidence-in-chief. Whereas PW1 claimed the 10 | P a g e incident occurred on 5th August, 2021, PW2 stated that it occurred on the 4th of August, 2021. The accused however did not challenge that there was an altercation between himself and PW1 either on the 4th or 5th August, 2021. His defence was that he did not threaten to kill PW1 or stated that he will let his son kill him and did not also fire the alleged gun shots. The issue regarding inconsistencies in the evidence of a witness is dealt with in the case of Effisah v Ansah [2005-2006] SCGLR 943 per Wood CJ as she then was, it was held as follows; “In the real world, evidence led at any trial which turned principally on issues of fact, and involving a fair number of witnesses, would not be entirely free from inconsistencies, conflicts or contradictions or the like. In evaluating evidence led at a trial, the presence of such matters per se, should not justify a wholesale rejection of the evidence to which they might relate. Thus in any given case, minor inconsistencies must not be dwelt upon to deny justice to a party who had substantially discharged his or her burden of persuasion. Where inconsistencies or conflicts in the evidence were clearly reconcilable and there was a crucial mass of evidence or corroborative evidence on crucial or vital matters, the court would be right to gloss over those inconsistencies”. In the case of Behome v The Republic [1979] GLR 112, it was held that, “In the offence of threat of death the actus reus will consist in the expectation of death which the offender creates in the mind of the person he threatens whilst the mens rea will also consist in the realisation by the offender that his threats will produce that expectation. It matters not, therefore, whether the threats were related to the present or to the future.”. 11 | P a g e The facts against the accused in this case is in two folds. The allegation that he threated to kill the complainant with a gun or cause his son to kill him with a gun and the claim that he actually fired a gun toward the room of the complainant. Regarding the allegation on the firing of gun shots, prosecution relied on the claim that shots were fired into the roofing sheet behind the room of the complainant, cartridges were retrieved from the scene and that a single barrel gun was recovered from the room of the accused. Once the accused denied the allegation and stated that he did not fire the gun shots, the prosecution was placed under a burden to establish that the perforated holes noticed in the roofing sheet were actually occasioned by ammunitions fired by the accused. In paragraph 7 of his evidence – in – chief, PW3 the investigator stated he visited the scene of the alleged offence and noticed a perforation in the roofing at the back of the complainant’s house believed to be where the accused fired through. The standards required for conviction however goes beyond mere suspicion. Once the allegation was being contested, it became necessary to establish that the perforations in the roofing sheet actually resulted from shots fired by the accused. With regard to the allegation on the threat to kill the complainant with a gun or let his son kill him with same, PW1 gave evidence which was corroborated by PW2. The evidence of both witnesses against the accused were consistent with each other and the facts does not suggest any previous conflicts prior to the issues in relation to the developments that gave rise to the alleged threats. 12 | P a g e In his extensive cross examination of both PW1 and PW2, the accused failed to establish the basis for a reasonable doubt of the accounts of the witnesses and to successfully controvert same. Whether the alleged act of the accused created in the mind of the complainant an expectation of death? Section 17 (1) (a) of the Criminal Offences Act, 1960 (Act 29) makes it clear that unless the context otherwise requires, threat means any threat of criminal force or harm. The law under section 17(3) of Act 29 provides that, it is immaterial whether a threat would be carried out or executed by the person issuing it or not. The determining factor is whether the victim of the crime was put in a state of fear of death when the threat was communicated to him or her. In this instance, the complainant stated in paragraphs 3, 4 and 5 of his evidence-in-chief as follows; “3. On 5th August, 2021 at about 7:30am I and my wife were in the house chatting. Suddenly accused asked me why should I reveal the matter he discussed with me to my wife. 4. I did not utter a word and accused became offended threatened me with words to wit “I will kill you with a gun or I will let my son kill you with a gun”. 5. As a result I lodged a complaint to the police”. 13 | P a g e From the evidence of PW1, the determining factor as whether he was put in a state of fear of death when the threat was made can be inferred from the action taken in reporting to the police. Although the prosecution failed to prove the connection between the cartridges and the gun retrieved which would have been the basis of inferences that the accused actually fired the gun, the claim that he threatened to kill the complainant with a gun or cause his son to kill him with a gun was established by prosecution’s witnesses. COUNT TWO Section 1 (1) of the Arms and Ammunitions Act, 1972 (NRCD 9) requires that, a person who owns, possesses or controls arms or ammunition registers those arms or ammunition at the nearest police station. Under Section 26 (2) (a) of the Arms and Ammunitions Act, a person commits a misdemeanor if that person contravenes a provision of the Act or of an instrument made under section 24 or of a condition in a license or permit. The requirements in proving this charge is to establish that the accused owns or has in his possession arms or ammunition which has not been registered with the police. Under cross examination by prosecution on 16th March, 2023, the accused admitted ownership of the gun retrieved from his room by the police and stated that same had been registered by his father. Q. The gun that was found in your possession who owns it? A. It belongs to my late father. After his death my siblings agreed and sold it to me. 14 | P a g e Q. So it has become your personal property, not so? A. Yes Q. Have you registered it? A. It was registered by my father but the registration documents could not be found by my brothers before they sold it to me. Q. I am putting it to you that the gun was not registered? A. It is not true. The registration number is on the butt. Q. I am putting it to you that you are using the gun unlawfully? A. It is not true. The accused however did not submit to the court any document on the registration of the gun retrieved from his room to confirm his claim of registration. Once he was not challenging ownership and the fact that the gun was in his possession, he bore a burden to prove that it was actually registered in an offence of this nature. CONCLUSION The Court on the basis of the above reasoning convicts the accused on both charges brought against him by the prosecution. 15 | P a g e Per the provisions under section 296 (2) of the Criminal and other offences procedure Act, 1960 (Act 30), the offence of a threat of death is punishable by a term of imprisonment not exceeding ten years. Section 296 (4) of Act 30 provides that, where a criminal offence is declared by an enactment to be a misdemeanor and the punishment for that offence is not specified, a person convicted of that offence is liable to a term of imprisonment not exceeding three years. However, in consideration of the age of the accused in this case, his state of health and the fact that the accused is a first time offender, the court in lieu of the prison term sentences him to a fine of Fifty (50) penalty units on count one in default to six months imprisonment. The accused is sentenced on count two to twenty-five (25) penalty units and in default to a prison term of one month. Sentences on both counts to run concurrently. NELSON DELASI AWUKU MAGISTRATE 16 | P a g e