REPUBLIC VRS ADOTEY & 2 OTHERS (D2/138/2021) [2023] GHACC 845 (8 November 2023)

IN THE CIRCUIT COURT 3 HELD AT ACCRA ON WEDNESDAY THE 8TH DAY OF NOVEMBER 2023 BEFORE HER HONOUR SUSANA EDUFUL (MRS.), CIRCUIT COURT JUDGE COURT CASE NO. D2/138/2021 THE REPUBLIC VRS PHILIP KPAKPO ADOTEY MOSES ADOTEI KPAKPO AYIKAI AYIE COMFORT The 1st and 2nd Accused Persons have been charged on count 1 with Conspiracy to commit crime to wit causing unlawful damage contrary to section 23(1) and 172(1) (b); the 3rd Accused Person has been charged on Count 2 with Abetment of crime to wit Causing Unlawful Damage Contrary to section 20(1) and 172(1)(b); (c) all 3 Accused Persons have been charged on count 3 with Causing Unlawful Damaged contrary to section 172 (1) (b), and on Count 4 and 5 Conspiracy to commit crime to wit, conflicting Transaction of land and then Conflicting Transaction of Land contrary to section 23(1) of Act 29, 1960 and Section 277(2) of Act 1036 FACTS: The brief facts as presented by Prosecution are that “In 2014, the Complainant Alexander Bosompem Kwabi bought a plot of land situate and lying at Ayikai Doblo from Nii Adjei Kojo Ayikai and Sowah Onukpa, heads of Ayikai Family of Ayikai Doblo. In 2016, the family gave indenture and site plan to the Complainant. The Complainant had since constructed a two – bedroom footing on the land waiting to raise same. A1 Philip Kpakpo Adotey and A2 Moses Adotei Kpakpo are brothers and their mother is A3 Ayikai Ayie Comfort. As Complainant was preparing to raise the footing to be roofed, A3 approached him and alleged that her family members from whom he purchased the land did not give her any money from the sale. She therefore claimed ownership of the land and demanded to resell the land to the Complainant. The Complainant to let sleeping dogs lie, and after meeting with Accused Persons agreed to, in addition pay GH₵3,000.00 to A3 while a member of the family also agreed to add his GH₵3,000.00 to her to make a total of GH₵6,000.00 as agreed. The Complainant paid the GH₵3,000.00 to her. A3 later sold the plot in question to one Ahenkora Emmanuel, a soldier who was brought by A1 and A2. On 22nd day of February 2021, A3 commanded A1 and A2 to grade the plot and level it for the new buyer to develop the land. The Complainant was informed about this development, only to visit the site on 23rd February 2021 to find out that his footing on the land had been destroyed by the Accused Persons. A report was lodged with the Police and Accused Persons were arrested. During Police investigations, the Accused Persons maintained that their family members who sold the land never involved A3 in the transaction to enable her benefit from the proceeds. The three Accused Persons were subsequently charged with the offences after investigations and are before this Honourable court.” On April 13, 2021, all 3 Accused Persons pleaded not guilty to all the charges levelled against them. The Prosecution were called upon to prove the charge against the Accused Persons. On a Ruling by the court on submission of no case to answer dated 25th day of April, 2022 the court acquitted and discharged A2 but called upon A1 and A3 to open their defence as follows; On count 2 abetment of crime to wit, Unlawful Damage, A3 was called upon to open her defence. On count 4 conspiracy to commit crime to wit, Conflicting Transaction of land, A1 and A3 were called upon to open their defence On count 5, Conflicting Transaction of land, A3 was called upon to open her defence. Prosecution’s duty was to prove the charge proffered against Accused beyond reasonable doubt in accordance with Section 13 (1) of the Evidence Act, 1975, (NRCD 323). Reasonable doubt was explained by Denning J (as he then was), in Miller v. Minister of Pensions [1947] 2 All ER 372 @ 373 as "...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. Under section 11(2) of NRCD 323, in criminal cases the burden of proof is on the Prosecution throughout. The Prosecution is required to produce sufficient evidence on a fact essential to establish the guilt of the accused, so that on all the evidence a reasonable mind could find the existence of that fact beyond reasonable doubt. In the case of the Accused except in cases where a statute throws the burden upon him, he is not obliged to prove anything. All that the law requires of him is to raise a reasonable doubt as to his guilt on the fact in issue. But then unless and until Prosecution has discharged the burden of proving the guilt of the Accused to the requisite degree, no burden will be shifted on to the accused or assumed by him. THE EVIDENCE OF PROSECUTION The Prosecution called three Witnesses and tendered 8 exhibits. THE EXHIBITS Indenture of the land the subject matter in dispute – Exhibit A series Documents from the Lands Commission – Exhibit B series. Ghana Revenue Receipt – Exhibit C series Photograph taken of PW1’s construction on the land – Exhibit D Photograph taken of the land when PW2 visited the land – Exhibit E Investigation Caution Statement and charge statement of Accused Person (A1) – Exhibit F and J Investigation Caution Statement and charge statement of Accused Person (A2) Charge Statement – Exhibit G and K Investigation Caution Statement and charge statement of Accused Person (A3) Call details of A1- Exhibit H and L PW1 – Alexander Bosompem PW1 was Alexander Bosompem the Complainant herein. According to PW1 he bought a piece of land in 2014 from Nii Adjei Kojo Ayikai. And he was issued with the land document on September 12, 2016. The Accused Person constructed what he termed as “footing” on the piece of land he purchased and waited a while to raise funds continue the project. PW1 was informed by his mason he has not been allowed to continue the construction work on the land. When PW1 inquired form Adjetey Sowah he indicated he knew nothing about that. When PW1 went to inquire about why his worker was prevented from working, A1 informed PW1 that the chief did not give his mother her portion of the money taken and so directed PW1 to A3 who is A1’s mother. When PW1 met A1 in the company of the Assembly man and four others it was agreed that PW1 pays GH₵6,000.00 to A3 for the land. PW1 therefore paid GH₵3,000.00 and Adjetey Sowah agreed to pay the remaining GH₵3,000.00 at the meeting. PW1 later called A1 to inquire about the land and A1 indicated the land was bushy and also his mother A3 was not well and so PW1 sent money to A1 to cater for his mother A3’s treatment. PW1 later called A1 to assist a surveyor to take coordinates on the land which A1 did. PW1 was later informed by Adjetey Sowah the footing which PW1 constructed on the land had been demolished and the land had been graded. When PW1 approached A3 about events on the land A3 confirmed to PW1 that he had sold the land to another person. PW1 tendered exhibit A an indenture issued by the chief to him after the purchase of the land. PW2 – D/CPL ABRAHAM ABOTSIVIA PW2 was Detective Corporal Abraham Abotsivia. He is stationed at the Regional CID Accra. He knows all 3 Accuseds Person. According to PW2 on February 23 2021 the Complainant PW1 reported this case to the Police and he was assigned to investigate it. PW2 took the Complainant’s statement. PW2 then visited the scene of crime and took pictures of the scene of crime. PW1 also gave PW2 pictures of the land before the destruction. PW1 also brought an indenture showing that he had purchased the land in issue in 2016. PW2 then arrested all three Accused Persons and also took the Investigation Caution Statement of all Accused Persons. PW2 stated that, his investigation revealed that indeed PW1 purchased the said land in 2014 and was given an indenture to the land in 2016. In 2018 the Complainant constructed a structure which is also referred to as “footing” on the said piece of land. Later he discontinued the development as he had raised money to do so. A3 claimed ownership of the land and therefore PW1 scheduled a meeting with A3 and some others. There PW1 paid GH₵3,000.00 to A3 and Adjetey Sowah was to pay GH₵3,000.00. According to PW2 A1 was a caretaker of the land for the Complainant. The Accused Persons later sold the land to another person Ahenkora Emmanuel and so the Accused Persons cleared the land of PW1’s construction work to pave way for Emmanuel Ahenkora the new purchaser to develop the land. PW3 – NII ADJEI KOJO AYIKAI PW3 was Nii Adjei Kojo Ayikai he lives at Ofankor near Amansaman and the Head of family of Ayikai family of Ayikai Doblo. According to PW1 in 2014 Adjetey Sowah who his son introduced to the Complainant to he, PW3 for the purchase of a piece of land. PW3 got a surveyor to demarcate a potion to the complainant and he paid GH₵15,000.00. Thereafter an indenture was prepared for the Complainant in 2016. PW3 however stated that the land in issue does not belong to Madam Ayikai Ayie Comfort. According to PW3 the whole parcel of land which is 21 plots was shared among the family and A3 got 10 plots which she sold out. PW3 further stated that he is the caretaker of his father’s property as he obtained Letters of Administration to administer the land and have attached the Letters of Administration as exhibit in evidence. After the Prosecution closed their case, the court granted Counsel for the Accused Person’s prayer to file a written submission of no case to answer and same was filed on April 14, 2022 to the court. Based on the ruling A2 was acquitted and discharged on all the charges against him. A1 and A3 were called upon to open their defence on Count 4, Conspiracy to commit crime to wit Conflicting Transaction of land, on Count 2, Abetment of Crime to wit Causing Unlawful Damage, A3 was called upon to open her defence and on Count 5, Conflicting Transaction of land A3 was called upon to open her defence. The 1st and 3rd Accused Persons testified and called one witness EVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW: Count 4 Accused Persons (A1 and A3) have been charged with conspiracy to commit crime to wit, conflicting Transaction of land. For the of crime conspiracy to succeed against the Accused Persons as spelt out under section 23 of Act 29 the Prosecution must prove; i. That the Accused Persons agreed together to grant conflicting transaction of land. ii. That the Accused Persons agreed together to grant Conflicting Transaction of Land with respect to the land in issue. iii. That the Accused Persons acted together with the others with a common purpose to grant Conflicting Transaction of Land. In the case of FRANCIS BOAFO @ CUDJOE V. THE REPUBLIC (2017) JELR 63751. SUIT NO: H3/9/2013, dated 4th MAY 2017; the Court of Appeal in determining whether or not the prosecution has sufficiently proved the Charge of Conspiracy to commit crime against the Appellant to warrant the conviction, noted inter alia, that; In short it has to be proved that the Appellant agreed with the other Accused Persons to act together to commit the robbery or that he abetted the commission of the robbery. It is irrelevant whether he never actually met the others physically or whether plans for the commission of the offence had already been set in motion when he became involved. What is important is to prove that he and the others came to an agreement to act together to achieve the purpose of executing the robbery in question. Therefore, what this Court is required to determine, is whether or not there was evidence of a common purpose; and if so if each of the Accused Persons was a party to it. To sum up on the charge of conspiracy against the Accused Persons, the Prosecution had a burden to prove an agreement or acting together for the common purpose of committing the crime as charged against the Complainant The Prosecution has to prove that all two Accused Persons (A1 and A3) acted together for the common purpose to commit the crime charged. The Prosecution stated that A1 and A2 are sons of A3. PW1 bought the land from Nii Adjei Kojo Ayikai and was given an indenture to that effect and on that basis PW1 started construction of a two bedroom ‘footing’. One day whilst the workers of PW1 were on site A1 came to stop them from working and directed that they meet A3 as she is the owner of the land in issue. PW1 consequently met A3 in the presence of the Assembly man one Ayitey Noah and four others and there A3 demanded GH₵6,000.00 for the sale of the same piece of land to PW1 even though PW1 claimed he had already purchased it. From the evidence, Prosecution stated that A3 claimed ownership of the land and so at a meeting with A3 she agreed to take GH₵6,000.00 for the sale of land and PW1 paid GH₵3,000.00 and Adjetey Sowah the chief’s son promised to pay the remaining GH₵3,000.00. After this A3 admitted to PW1 she had resold the same land to another person. It was A1 who went to the site to stop the workers of PW1 from working until PW1 has gone to meet A3. A1 stated in exhibit F, his Investigation Caution Statement that “I and my mum met Complainant and his workers on my mother’s land. We stopped them from working on the land and they have since not returned.” A1 in defense has stated that his mother sold the land to one soldier WO after she was permitted to take her land by the CID. The court having considered the evidence as a whole cannot establish beyond reasonable that the A1 and A3 acted together to the crime as stated. Consequently, Prosecution has failed to prove the offence beyond reasonable doubt the Accused Persons (A1 and A3) on the offence of conspiracy to commit crime to wit, conflicting Transaction of land they are accordingly acquitted and discharged. Count 2 The 3rd Accused has been charged under court 2, for abetment of crime to wit Unlawful Damage. For the charge of abetment to succeed there must be established any of the elements listed in section 20 of Act 29 that is; that the Accused did any of the following towards the commission of crime – directly or indirectly aided, facilitated, encouraged, promoted, instigated, commanded, counseled, procured or solicited the commission of crime. PW1 stated in evidence that after his purchase of the land, he also had a meeting with A3 as A3 claimed she is the owner of the land in issued. PW1 met A3 in the presence of the Ayitey Noah former assembly man of the area and four others and the price of GH₵6,000.00 was agreed upon as the price of the land in issue. It was also agreed at the meeting that PW1 pays the amount of GH₵3,000.00 and Adjetey Sowah also pay GH₵3,000.00 to A3. PW1 continued the construction on the land but due to inadequate funding PW1 stopped construction to raise some money. PW1 contacted A1 on all issues concerning the land in issue. PW1 after sometime had information that his construction work on the land had been demolished and the land had been cleared. PW1 contacted A3 who confirmed that she had sold the land in issue to another person since Ayitey Sowah did not pay the amount of GH₵3,000.00 he promised to pay. A3 in her investigation caution Exhibit H admits that she asked her children to destroy PW1’s construction work on the land. “So I instructed my children to go and grade the land so the footing was destroyed.” this piece of evidence constitutes a confession of the offence of abetment of crime to wit, Unlawful damage to land. The 3rd Accused in her defense stated that in January 2021 the Investigator in this case asked her to come for her GH₵3,000.000 which she did. Then the Investigator asked her to go for her land and so she asked A1 to grade and clear the land because she had leased it to another person. Considering the evidence as a whole, the court finds that there was an agreement between A3 and Complainant to sell the land to him at the price of GH₵6,000.00 after Complainant had started construction work to develop the land. Upon the payment of the amount of GH₵3,000.00 by Complainant, A3 did not hear from Complainant and the remaining GH₵3,000.00 was not paid by the Complainant or the Adjetey Sowah as agreed. A3 confirm that after waiting for a long time and without recourse to Complaint she instructed A1 to clear the land. This caused damage to the construction work by the Complainant. The vexed question is so did A3 abet the unlawful damage? There is evidence that the construction work on the land carried out by Complainant had been damaged. A3 knew that Complainant had done some construction work on the land upon that she agreed to sell the land to PW1 at a price of GH₵6,0000.00. By the payment of the amount of GH₵3,000.00, A3 had alienated some right and interest on the said land to Complainant though equitable, therefore A3 could not take any action on the land without recourse to Complainant. As by A3’s conduct she had conferred to Complainant some equitable right to be on the land. Even though the evidence on record does not establish the persons who actually caused the said damage, A3’s admission in her evidence that she instructed A1 to clear the land and the fact that she had leased the land to another person, establishes a confession that she abetted the crime of unlawful damage on the land. The Prosecution has therefore proved the offence beyond reasonable doubt Accused is accordingly is convicted of the crime. The court therefore, is of the opinion that prosecution has made a prima facie case against the A3 on the charge. A3 is accordingly convicted of the offence charged. Count 5 All 3 Accused Persons have been charged with the offence under Section 277 (2) (c) which provides; A person who makes conflicting grants in respect of the same piece of land to more than one person, commits an offence and is liable on summary conviction to a fine of not less than seven thousand five hundred penalty units and not more th an fifteen- thousand penalty units or to a term of imprisonment of not less than seven years and not more than fifteen years or both. The evidence of PW1, is that he bought the land situate at Ayikai Doblo from Nii Adjei Kojo Ayikai and he was given an indenture Exhibit A. Thereafter he constructed a two bedroom ‘footing’. His workmen were stopped from working on the land because A3 claimed that she is the owner of the land and therefore he PW1, cannot continue working on the land without paying to her the value of the land. PW1 agreed and paid the amount of GH₵3,000.00 out to the GH₵6,000.00 agreed price. The chief’s son through whom PW1 bought the land promised to pay the remaining amount of GH₵3,000.00 but he did not pay as expected. A3 even though she agreed to sell the land to PW1 at GH₵6,000.00 and accepted part payment for it went ahead to sell the same land to another person without any recourse to PW1. The Prosecution established that even though A3 indicated to PW1 that she is the owner and took part payment for the sale of the said piece of land, A3 still went ahead to sell the same piece of land to another person without contacting Complainant and indicating to him, her intention and also not refunding the amount of GH₵3,000.00 to the Complainant before reselling it. A3 has stated the Police investigator returned the amount of GH₵3,000.00 to her and directed her to go for the land. This piece of evidence even though uncorroborated by the said investigation does not exonerate Accused as the Investigator was not part of the agreement between A3 and Complainant to alienate her land to PW1. A3 in evidence stated thus “So I asked my son to grade and clear the land for the person I leased the land to.” This piece of evidence is a confession of the fact that A3 had alienated some interest in the land to another person, A3 cannot whilst the said interest of PW1 subsist in the land lease the same land to another person as she has stated. A3 ought to have terminated PW1’s interest in the land before going ahead to lease it to another person. The Accused person’s defence does not raise a doubt in the mind of the court to warrant her acquittal. The offence is accordingly established by Prosecution beyond reasonable doubt. Consequently, A3 is convicted of the offence as stated. SENTENCE This court has taken into consideration the fact that the Accused (A3) is advanced in age. She is also not known to the law. On count 2, A3 is sentenced to a fine of 300 penalty units and in default 12 months imprisonment. On count 5 the court will defer sentence. PROSECUTOR CHIEF INSPECTOR CHRISTINE BANSAH LEGAL REPRESENTATION EDWINE AMUI FOR KENNEDY WIAFE EFFAH ESQ. H/H SUSANA EDUFUL (MRS) (CIRCUIT COURT JUDGE) 16