REPUBLIC VRS (CC9/05/2022) [2023] GHADC 1225 (30 November 2023)

1 IN THE DISTRICT COURT HELD AT ADIDOME ON TUESDAY THE 30TH DAY OF NOVEMBER, 2023. BEFORE HER WORSHIP MOLLY PORTIA ANAFO-SALIA (MRS) (DISTRICT MAGISTRATE) CC9/05/2022 THE REPUBLIC VRS. SAMPSON AMEGA ALIAS BESSAH 1. ACCUSED PERSON PRESENT. 2. DETECTIVE INSPECTOR NENE OMAN V FOR THE REPUBLIC PRESENT. J U D G M E N T The accused person was arraigned in this court and charged with the Offence of Threat of Harm Contrary and Causing Unlawful Damage Contrary to Section 74 and 172 (1) (b) of the Criminal Offences Act, 1960, (Act 29). The accused person pleaded NOT GUILTY to Count one. He however pleaded GUILTY with explanation on count two. The explanation given by the accused person made the court to acquit and discharge him as parties agreed for the crops to be cut down to pave way for the construction of the building and compensated the Complainant. The brief facts as recounted by Prosecution are Complainant, Anastasia Tsegah is a trader and accused person, Sampson Amegah alias Bessah is a farmer. They live at Battor and are related, step sister and brother respectively. The complainant has a backyard garden with one Soursop plant one orange tree, one palm tree, two coconut trees, thirty-seven plantains and fifteen banana trees. That between 20th December 2021 to 10th February 2022, the accused person started hacking the complainant’s crops. That on the 18th of January 2023, the accused person was hacking the plantains and bananas when the Complainant’s children drew her attention to which she approached him to stop, accused person took offence and threatened to beat her severely that she would not be able to talk or walk again. The accused person who was not satisfied with the act, dug a life threatening pit of about 7.9 feet on a portion of the Complainant’s land to either trap the Complainant or her children. On 10th March 2022, the Complainant was working on her compound when the accused person surfaced and started threatening to remove her feet together with that of her children from the land. The complainant who was not happy with the act reported the matter to the Aveyime Police. In the course of investigation, the Complainant assisted police to arrest the accused person, he mentioned one Josephine Agordo who has gone into hiding as his accomplice. He was rearrested after he jumped Police Enquiry bail and put in Police custody where he issued words of threat. That if the Police do not kill him and he is released what will happen will be dangerous in Battor. This was on the 7th of July 2022. The scene of crime was visited and photographs taken for evidential purpose. In the course of further investigation, the Agricultural Officer at North Tongu District Agricultural Department Unit visited the scene of crime and gave GH₵3,300.00 as the cost of the damaged crops. Accused person was arraigned in court after investigation. The principle in criminal trials is that the burden of proof against an accused person is on the prosecution. The standard of proof is proof beyond reasonable doubt. Section 11 (2) of the Evidence Act 1975 (NRCD 323) states that: “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 a fact beyond a reasonable doubt: Section 13 (1) of NRCD 323 also states: “In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt”. It is clear that the proof required of the prosecution in a criminal charge such as this is said to be proof beyond reasonable doubt. The standard of proof beyond reasonable doubt was explained by Lord Denning in the case of Miller v. Minister of Pensions [1947] 2 ALL ER 372 as follows: “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. If the evidence is so strong against a man as to leave a remote possibility in his favour which can be dismissed with the sentence of course it is possible but not the least probable, the case is proved beyond reasonable doubt”. See also: 1. Tetteh v. The Republic [2001-2002] SC GLR 854. 2. Dexter Johnson v. The Republic [2011] 2 SC GLR 601 3. Frimpong a. k.a. Iboman v. Republic [2012] 1 SC GLR 297. Prosecution having assumed this burden, called two (2) witnesses and tendered in evidence all Exhibits in their possession. They included the Investigation Cautioned and Charged Statements of the accused person. They were admitted and marked as Exhibit ‘A’ and ‘B’ respectively. The accused person opened his defence and called a witness. He did not file any Exhibit. PW1, Anastasia Tsegah, stated in her evidence in chief that somewhere in December 2021, she was informed by her daughter Atsufe while in her room that someone was cutting her soursop plant. She rushed out and met accused person in the act but he refused to say anything when she quizzed him. As if that was not enough, in her absence, accused person hacked her plantain and took the matured ones away. This time she summoned him before one Togbe Adzedzo and he was charged Hundred Ghana Cedis (GH₵100.00) which he paid. According to PW1, on two separate dates, 15th and 18th of January 2022, accused person continued his act and she told him to stop. Accused person took offence and started threatening to beat her severely to the extent that she would not be able to walk and talk. That she summoned him again before Togbe Adzedzo and some elders at Battor where he was asked to compensate her with an amount of Five Hundred Ghana Cedis (GH₵500.00) but accused person refused. Further, that on the 10th of March 2022, while she was working on her land, accused person came and threatened to remove her foot together with that of her children from the land. She then lodged a complaint at Aveyime Police Station. PW2, General Corporal Solomon Essel – Quayson evidence was to the effect that PW1 lodged a complaint of Causing Unlawful Damage and Threat of Harm against the accused person. He obtained statement from PW1 and the next day, 26th of March 2022 he proceeded with Foster Kofigah a CPA to effect the arrest of the accused person but met his absence. Despite, a message to one Abigail Nusetor, wife of accused person, accused person refused to avail himself until the 31st of March 2022 when accused person was eventually arrested and cautioned to the effect and granted Police Enquiry bail to be reporting periodically. According to PW2, accused person was eventually arrested on the 7th of July 2022 and continued to issue threats when he was in Police custody, “that if the police don’t kill him and releases him what will happen is going to be deadly, with other threatening gestures were recorded on video. He further called on the various water bodies to curse PW1. Accused person cross examined them and Prosecution closed their case. Accused person in his defence stated that his mother asked him to put up a building at her father’s house, Battor. This was after she informed PW1, her sister’s daughter who was on the land of her intention to develop the land. That a portion had some orange trees, plantain etc. on it. Despite all these, PW1 agreed that his mother should develop the land and he commenced work. According to the accused person, he built up to a certain level and PW1 dug under the building. That he reported to the Police and PW1 was warned, but she continued until the whole building collapsed. That he went to her and asked her about her action but decided not to do anything to her and left, packed the materials, stopped the work and never went to the site. Further, that he was at home when the Police came and invited him to the Police station that he threatened to kill PW1 but denied the alleged offence. DW1, Dora Agodome stated in her evidence how the land which the accused person commenced the development was acquired by her late father. That she allowed PW1’s mother settled on the land after her children put up some rooms for her and thereafter, PW1 took possession of the land. According to DW1, accused person’s mother approached for a place to construct a dwelling place for occupancy anytime she came from the North where she plies her trade. She directed her to PW1 and she agreed for accused person’s mother to develop the land and accused person built three (3) rooms. That PW1 dug inside and the whole structure collapsed. Later accused person informed her of his arrest. The accused person and his sole witness were cross examined after their evidence by the prosecution. This closed accused person’s case. The accused person pleaded NOT GUILTY to threat of harm which was preferred against him by the prosecution. Section 74 of the Criminal Offences Act, 1960 (Act 29) states: “a person who threatens any other person with unlawful harm with intent to put that person in fear of unlawful harm commits a misdemeanour”. To be culpable for threat of harm, it must be established that the accused person intended to put the victim in fear of an unlawful harm. The threat must be of harm and nothing else as was held in the case of Behome v. The Republic [1979] GLR 112. The ingredients the prosecution has to prove to succeed on the charge of threat of harm are that: 1. That the accused person threatened the victim; and 2. That at the time of the threat the accused person had the intent to put that person in fear of harm. Is the accused person GUILTY? The first ingredient of the offence of threat of harm is that the accused person must have threatened PW1. The second ingredient of the offence is the intent to put PW1 in fear of harm. Threat has been defined under Section 17 of Act 29 to include any threat of criminal force or harm. The Law under Section 17 (3) of Act 29 states: It is immaterial whether a threat be that the matter thereof will be executed by the person using the threat or against or in relation to the person to whom threat is used, or by, or against or in relation to any other person. The underlying factor is whether or not PW1 feared harm when the threat was issued. I wish to consider the Investigation Cautioned Statement of the accused person, thus Exhibit ‘A’ “I received a phone call from my other wife indicating that the Complainant was fetching sand under his new constructed mud house at Battor- Post Office Area. I then went to Battor Neighbourhood Watch Committee and reported to them before going to the location of the said mud house under construction. On reaching there I spotted the complainant Anastasia fetching the sand so I placed a phone call to my brother Sodzi Amegah and Ephraim Amegah and some others who came. My brother Sodzi called Complainant but she did not mind him. The complainant continued to fetch the sand under my mud building so I got angry and hacked the plantains off. I did not threaten to beat the complainant”. This did not contradict with his evidence in chief in court. This is what ensued under cross examination: Q: You got angry with PW1 when she was fetching sand on her own land, it that correct? A: It is not true. Q: How many rooms were you putting up on the land? A: 3 Q: Which of the 3 room belongs to you personally? A: None. Q: In the last paragraph of Exhibit ‘A’ your cautioned statement you told the police you were angry with PW1? A: I did not say so. Q: Are you telling the court that on 31st March 2022 you never gave any statement to the Police? A: Yes I did. Q: I am putting it to you that this is part of the statement you gave to Police? A: It is not true. Q: I am putting it to you that you again stated that you cleared all crops on the land because of annoyance? A: I said the area where I was putting up the building is where I cleared. Q: You agree with me that PW1 sacked all of you from the land? A: She told us not to come near the land. Q: I put it to you that PW1 agreed for you to build on the land but based on the threat she sacked all of you? A: It is not true. Q: You agree with me that no one else has come to sack you from the land except PW1? A: Everybody agreed for the work to continue but she is the only person who disagreed. Q: Finally, I put it to you that your actions caused fear in PW1? A: It is not true. I started the building to a level before PW1 caused damage to it. Flowing from the dialogue, it was established that accused person was engaged to construct a building on a land which PW1 was in possession at that time. Again, the accused person entered the land not as of right but permission was sought from PW1 and he put up the three (3) rooms for his mother. It is a notorious fact that construction of a house is not done in a day. It takes a lot of preparation before. So far the accused person to have put up three (3) rooms on the land meant that PW1 agreed for the project to be carried out. Accused person cannot therefore convince the court that PW1 did not agree for him to construct the project, knowing very well that, she cannot claim the entire land. Though the court has no jurisdiction to determine ownership here but it cannot lose sight of the fact that, the commission of the alleged offence, threat of harm could not have occasioned without a cause. The construction of the three (3) rooms were not done of on a bare land. It took some clearing which affected some crops on that portion of land. The crux of the matter was that the accused person cleared the orange trees, plantain trees and palm trees without compensating PW1 despite her permission for the construction of the project. This later was sorted out with the involvement of some elders and some amount paid to PW1. This should have settled the matter especially when accused person alleged he cleared only the portion he was asked to build but unfortunately he extended it further. Under cross examination between accused person and PW1, this is what ensued. Q: You said I threatened to kill you? A: Yes you did Q: Do you have a witness to testify that I threatened you? A: Yes I have. Q: I put it to you that you caused damage to the building? A: It is not true. Q: Are you saying that you did not see me putting up a building? A: I saw you building. Q: So why is that you dug inside the building? A: I did not dig inside any building. Q: Are you then saying that you never did that and yet there was misunderstanding which occasioned the alleged crime? A: It is not true. Q: Was there any agreement or contract with my mother before I commenced the building? A: There was no agreement. Q: Are you saying that before the building commenced, you and my mother never discussed anything? A: Yes there was a discussion and she told me that she was coming to put up a building. Q: Do you remember that I fell a tree and our chief collected money in respect of that for you? A: No money was given to me. Q: What will be your evidence if the said chief comes to confirm my assertion? A: Then the said chief will not be truthful. From the evidence of PW1, accused person hacked more of her economic trees and when she complained he threatened to beat her. Initially, accused person paid GH₵100.00 but was asked to pay GH₵500.00 more for further destruction but he refused to pay. His continuous action made her report to the Police having been advised by Togbe Senafu and his elders. The accused person from the evidence so far could not produce any of the people he stated in his cautioned statement, Ephraim Amegah, Sodzi Amegah and even the said chief he gave the money to authenticate his assertion that PW1 indeed dug under the building and it collapsed. His sole witness evidence was on ownership which was not an issue. The rest was hearsay as she never witnessed the incident. Therefore, the court viewed it with a pinch of salt. The evidence on record is that of PW1 and the accused person. The evidence is oath against oath. In Lutterodt v. Commissioner of Police [1963] 2 GLR 429, Supreme Court per holding 2 stated that: “where a decision of a trial court turns upon the oath a prosecution witness against that of a defence witness, it is incumbent on the trial court to examine the evidence of the said witnesses carefully along with other evidence adduced at the trial before preferring one to the other. If the court prefers the evidence of the prosecution, then it must state reasons for the preference, but if it is unable to give any reason for the preference, then that means that there is a reasonable doubt as to which of the versions of the story is true, on which case, the benefit of the doubt must be given to the defence”. The accused person from the onset denied threatening PW1 to kill. Initially, his understanding was that he threatened to kill PW1, but upon further explanation, he still denied threatening to beat PW1. From the evidence, accused person action has been unlawful. In the sense that, the very agreement to allow him put up the structure, he took upon himself to indiscriminately cut down PW1’s economic trees and harvested some away as if same was part of the agreement. When PW1 complained, he issued the threat. In criminal trials, the identity of the accused person who committed the crime might be proved either by direct testimony or by circumstantial evidence of other relevant fact from which it might be intended thus opportunity on the part of the accused to do the act and his knowledge of circumstances enabling it to be done were admissible to prove identity, the case of Dogbe V. The Republic [1975] 1 GLR 118. The principle of the prosecution having a duty to prove the guilt of an accused beyond reasonable doubt was given serious attention by Amissah JA, sitting as an additional High Court Judge in the case of Darko v. Republic [1968] GLR 203 holding 2 as thus: “The principle that an accused person should be acquitted if his defence was believed or if it was reasonable probable did not call for uniformity of expression by Judges or the use of any particular form of words. The crucial question relevant to the point in any ordinary criminal trial would turn upon whether the Judge or Tribunal of fact upon consideration of the whole evidence found that the case of the prosecution had been proved beyond reasonable doubt. Where a court convicted only because it took the view that the accused person’s defence was not to be believed this would be equivalent to shifting the burden of proof onto the defence. It would in effect amount to saying that he was entitled to be acquitted only if he proved his defence to the satisfaction of the court. By implication the court would have been relieved the prosecution of its duty to prove its case beyond reasonable doubt which it was not entitled to do. A court could not therefore stop short at saying that it was convicting the accused person because it did not believe its story. It must go further and show whether his story did not create a reasonable doubt either”. The law is very clear that in all criminal cases, the prosecution must prove the guilt of the accused person beyond reasonable doubt. This is a distinctive feature of criminal cases and it is different from civil cases, where one can win on a balance of probabilities. This was the view of the Supreme Court in the case of Oteng v. The State [1966] GLR 332 at 354 that: “One significant aspect in which our criminal law differs from our civil law is that while in civil law a Plaintiff may win on a balance of probabilities, in a criminal case the prosecution cannot obtain a conviction upon mere probabilities”. Taking inspiration from the cases above and relying on the case of Lutterodt v. Commissioner of Police supra, I prefer the case of the prosecution to that of the defence as I find that the prosecution has proved its case beyond reasonable doubt thereby linking the accused person to the offence. On count one, prosecution led sufficient evidence to prove the guilt of the accused on threat harm that he put fear in PW1 and at the time of the offence accused person had the intent to put fear in PW1. The accused person therefore cannot escape criminal liability. He is guilty of the offence of Threat of Harm Contrary to Section 74 of the Criminal Offences Act, 1960 (Act 29). Accordingly accused person is convicted. MITIGATION Accused Person pleaded for leniency. SENTENCE The court considered his plea, age and the fact that he is a first offender, accused person sentenced to a fine of 200 penalty units, in default 12 months. In addition, accused person to sign a bond to be of good bahaviour for 12 months in default 18 months imprisonment. H/W MOLLY PORTIA ANAFO-SALIA (MRS) (SGD) (DISTRICT MAGISTRATE) 30TH NOVEMBER, 2023