REPUBLIC VRS ISSAH & 2 OTHERS (4/01/2024) [2023] GHADC 1142 (11 September 2023)

IN THE DISTRICT COURT HELD AT DAMBAI ON MONDAY 11TH SEPTEMBER, 2023 BEFORE HIS WORSHIP ALHASSAN DRAMANI, ESQ. DISRTICT MAGISTRATE. CC NO. 4/01/2024 THE REPUBLIC VRS 1. LATIF ISSAH 2. DENTENI ISSAH 3. DAVID BADI A1 PRESENT A2 AND A3 DEALT WITH ASP A. RAZAK FOR PROSECUTION PRESENT JUDGEMENT A1 have been charged with the offences of assault contrary to section 84 of Act 29/60, acts tending to disturb the peace in public place contrary to section 298 of the criminal offences Act, 1960 and causing harm contrary to section 69 of Act 29/60. A2 and A3 on their part were charged with one count each of acts tending to disturb the peace in a public place contrary to section 298 of Act 29/60. The facts as presented by the prosecution are that on 02/08/2023 at about 10:40 pm, A1 and A2 met victim Gabriel Sey alias “Okoro” at the Dambai Old Town school park. A1 and A2 then claimed that they have received information from their younger brother by name Fatawu Issah, that victim has caused the arrest of Fatawu for stealing fish at the Dambai market. On the basis of this, A1 and A2 gave him some slaps on his face. The victim took to his heels to avoid further assault on him. Victim then went to inform his brother Joshua Sey about his ordeal in the hands of A1 and A2. On 03/08/2023 Joshua Sey confronted A1 and A2 to find out why they assaulted the victim but A1 and A2 called in A3 and some other persons and in the process a fight ensued between A3 and Joshua Sey on one hand and A1 A2 and others on the other hand. Whilst attempts were being made to separate them A1 quickly left the scene and shortly returned with a pair of scissors and stabbed A3 on the neck with the scissors which resulted in a deep cut and A3 bled profusely from the wound. A3 was rushed to the hospital for treatment. A complaint was later lodged with the police and A3 was issued with a medical form and same was endorsed by a physician assistant at the Kopah hospital and was returned to the police. The accused persons were later arrested and in their caution statements admitted the offences. They were consequently charged to appear before court this court. On their first appearance before this court A2 and A3 pleaded guilty simpliciter to their charges and were convicted on their own plea and sentenced. A1 however, pleaded not guilty to his charges thus putting on the prosecution the burden of proving his guilt beyond reasonable doubt. This judgment is therefore in respect of only A1. THE CASE OF PROSECUTION In proving its case the prosecution called five witnesses including the investigator. Pw1 was David Badi (A3). The relevant portions of his evidence is that on that fateful day, there was a misunderstanding between he and A2 and in the process A2 hit him on his face and his chest so he also retaliated and succeeded in put A2 down. According to PW1 whilst he was fighting A2, A2’s father held him from behind and pulled him down and A2 held his legs and managed to free himself from his grips. PW1 said all of a sudden A1 also immerged at the scene with a pair of scissors and stabbed him on the neck. PW1 said he was rescued by some people and rushed to the hospital. PW2 was Gabriel Sey. He stated that he was the one A1, A2 and other persons first assaulted so he informed PW4 and PW1 about the assault on him, as a result PW4 and PW1 confronted A1 and A2 leading to the fight and stabbing of PW1. PW2 said he was not present when PW1 was stabbed. PW3 Dennis Osei told the court that he was present when the fight between PW1 on one hand and A1 and A2 on the other hand occurred and that he saw A1 stab PW1 with a scissors. He said he was among those who rescued PW1 and took him to the hospital. PW4 was Sey Joshua, and he basically corroborated the testimony of PW3. He added that he was present when A1 stabbed PW1 with the scissors. He stated that he personally tried restraining A1 but was not successful. PW5 was No. 55709 G/Constable Andrews Tandoh, the investigator. He rehashed the facts of the case and tendered in evidence four exhibits including the investigation caution statement, charge statement of A1, photographs of PW1 with a wound on his neck close to the back of his right ear and other parts of his body including his shoulder, back, arm, foot as well as medical form and same marked as exhibits A, B, C series, and D respectively without objection. Thereafter the prosecution brought its case to a close and the accused person was called upon to open his defence as a prima facie case had been made against him. THE CASE OF THE DEFENCE A1 in his defence said on the day in issue there was a fight between his brothers and PW1 and other persons but he was not at the scene and did not take part in the fight. According to A1 it is not true that he fought PW1 or stabbed him with a scissors. He described the allegations against him as false. The accused did not call any witness and did not tender any exhibit in evidence hence brought his case to close after his evidence. The issues for determination in this case in the view of this court are as follows: 1. Whether A1 assaulted PW1 2. Whether A1 was the one who stabbed PW1 with the scissors Considering the nature of the issues above stated, both issues will be dealt with together. APPLICABLE LAW Section 84 of Act 29/60 provides that a person who unlawfully assaults another person commits a misdemeanor. Section 85 of same Act provides that assault includes (a) assault and battery (b) assault without actual battery and (c) imprisonment. Section 85 (2) provides that an assault is unlawful unless it can be justified within the limits specified in this Act. Section 86 of Act 29/60 provides that a person makes an assault and battery on another person if, without that persons consent, and with the intention of causing harm, pain or fear or annoyance to the other person, or of exciting the other person to anger, that person forcibly touches the other person. Section 298 (a) of Act 29/60 provides as follows: A person commits a criminal offence and is liable to a fine not exceeding ten penalty units who in a public place, or a place within sight or hearing of persons who are at that place, a) Disturbs the peace by fighting or quarrelling with any other person, or by making a loud or unseemly noise Section 69 of same Act provides that a person who intentionally and unlawfully causes harm to any other person commits a second degree felony. In Brobbey and ors V The Republic (1982-83) GLR 608 it was held inter alia that the harm must not only have been intentional but also unlawful. EVALUATION OF EVIDENCE AND ANALYSIS Pw1 gave an account of how the whole incident took place as narrated at paragraphs 7, 8 and 9 of his witness statement as follows: “….after saying that Denteni (A2) hit my chest and a misunderstanding ensued. I was able to put Denteni on the ground and whilst I was on top of him fighting their father Anyoman came and held me from behind helping the son to hold my legs and pulled me down but I was able to overturn Denteni. Suddenly Latif (A1) appeared from nowhere used a scissors he was holding to stab me whilst Fatawu and Lapoe where fighting with Joshua and Dennis…” PW3 and PW4 have both corroborated the account of PW1 stating that they were present when A1 stabbed PW1. A1 in his evidence has however denied being present at the scene of the incident on that fateful day and further contends that he was not the one who stabbed PW1. It is not in doubt that someone stabbed PW1 on the neck resulting in a deep cut. The medical report (exhibit “D”) stated in part as follows: “…. On examination: Puncture wound post auriclarly, bleeding with abrasion on the back at around T3-T4 extending to left scapula…” Apart from this, exhibit C series are photographs of PW1 with blood stains on his neck, back, foot and arm. The law is that where the identity of a person who is alleged to have committed an offence is in issue there can be no better proof of the identity than the evidence of a witness who swears to have seen the accused committing the offence. See the case of Ameshinu V The Republic (2010) 34 MLRG 207. Again it is the law that in every criminal trial it is not only necessary for prosecution to prove the commission of the crime, but also to lead evidence to identify the accused, as the one who committed it. A judge is to guide himself by considering factors such as the period of time over which the witness saw or observed the accused, the conditions in which the observation took place, whether or not the area or vicinity was lit to make observation possible, the distance between the witness and the accused or whether or not the description by the prosecution witness agreed with that of the accused. See the case of Razak and Yamoah V The Republic (2010) 2 SCGLR 750. In the instant case, the prosecution witnesses (PW1, PW3 and PW4) swore an oath before giving their evidence and said they saw A1 stab PW1 with a pair of scissors. In fact, PW4 in particular said he tried to restrain A1 but was not successful. From the evidence on record the incident happened at 9:00pm hence visibility was quite low. However it is important to state that A1 and all the prosecution witnesses live in same community and know each other very well it was therefore very possible for identification considering the closeness of the distance. Having been guided and considered these factors, I have come to the conclusion that prosecution has been able to lead evidence to identify A1 as the one who stabbed the neck of PW1 resulting in a deep cut and so I hold. It is also significant to state that in his caution statement to the police, when the matters were very fresh in his mind, A1 said that on that fateful day there was a fight between he and his brothers on one hand and PW1 and his friends on the other hand and that whilst he was struggling with PW1 he saw a scissors on the ground. According to him PW1 was trying to pick the scissors but he quickly picked same but he did not stab PW1 with it so he does not know how PW1 got injured. However, under cross examination by prosecution A1 gave several contradictory answers. The following transpired between A1 and prosecution on 08/09/2023. Q. Do you remember that you told this court in your evidence that the fight was between PW1 and PW2. A. Yes. Q. So you were present when the two were fighting right. A. Yes. Q. So you mean you were at the scene when the fight was going on. A. No. Q. So if you were not present how did you know that the fight was between those two people. A. When I arrived they were still fighting and some people were trying to separate them. Q. So it means you were present at the crime scene. A. No. From the above encounter the accused on one leg admitted being present during the fight between PW1 and A2 and on another leg denied being present during the fight. This obviously is in contrast to his earlier statement given to the police 06/08/2023. In the case of Gyabaah v. The Republic [1984-86] 2 GLR 461-475, Osei-Hwere J. A (as he then was) stated thus: ‘………For the law is that a witness whose evidence on oath is contradictory of a previous statement made by him, whether sworn or unsworn, is not worthy of credit and his evidence cannot be regarded as being of any importance in the light of his previous contradictory statement unless he is able to give a reasonable explanation for the contradiction…’ The accused in the instant case has not been able to offer any reasonable explanation to the contradictions in his caution statement submitted to the police on 06/08/2023 and his evidence before this court. From the evidence on record, I find as a fact that A1 was not only present during the fight between the two factions but was actively involved in the fight. I also find that A1 was the one who stabbed PW1 with the per of scissors resulting in the wounds he sustained on his neck, shoulder and back. For the foregoing reasons A1 (Latif Issah) is accordingly convicted on counts one, two and three. By Court: Q. Is the accused person known? A. No Q. What do you have to say in mitigation before your sentence? A. I am pleading with the court to have mercy on me. This will never happen again. By Court: In sentencing the accused, the court has taking into account the seriousness of the offence committed by A1 and also the rising state of impunity within this jurisdiction of late. In the circumstances A1 deserve a deterrent sentence to serve as a warning to others. A1 is hereby sentence to eighteen (18) months prison term on count one, on count two he is cautioned and discharged and on count three he is sentenced to twenty two (22) months prison term. Counts one and three are to run consecutively. SGD H/W ALHASSAN DRAMANI DISTRICT MAGISTRATE 11TH SEPTEMBER, 2023.