REPUBLIC VRS DUMASI [2023] GHADC 1212 (19 December 2023)

1 IN THE DISTRICT COURT HELD AT ADIDOME ON TUESDAY THE 19TH DAY OF DECEMBER, 2023. BEFORE HER WORSHIP MOLLY PORTIA ANAFO SALIA (MRS) (DISTRICT MAGISTRATE) CC10/01/2023 THE REPUBLIC VRS. MICHAEL DUMASI PARTIES 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 Offensive Conduct Conducive to the Breach of the Peace Contrary to Section 207 of the Criminal Offences Act, 1960 (Act 29). Particulars of Offence: Michael Dumasi age 34 (farmer) that you on the 17th of February, 2021 and about 1430 hours at Mafi-Luta in the Adidome Magisterial District and within the jurisdiction of this court did utter certain abusive words and circulated on various social media platforms to wit: foolish and useless man, you have been destooled to the annoyance of Togbe Dedu IV with intent to provoke a breach of the peace. The accused person pleaded NOT GUILTY and was thereafter admitted to bail. The brief facts as recounted by Prosecution are that; the Complainant, Togbe Dedu IV, is the Divisional Chief of Mafi-Dedukope and accused person is a farmer. Both reside at Mafi-Dedukope and Mafi-Luta respectively. The complainant, for some time now has seen various posters with his picture indicating false announcement in Aveyime, Mafi- Luta and Mafi-Defukope by unknown person(s) that he has been destooled. The complainant on seeing those posters within Aveyime, Mafi-Luta and Mafi-Dedukope lodged a complaint with the Aveyime Police. During investigations the posters circulated by the accused person. The complainant assisted the police and the accused person was arrested. During the arrest, the accused person repeated same offensive words in the presence of the arresting officers. The accused person was cautioned and granted police enquiry bail to be reporting periodically. The retrieved posters were kept for evidential purposes. After investigation, the accused person was charged with the offence and arraigned in court. The plea of NOT GUILTY presumes an accused person innocent until he has pleaded GUILTY or his guilt has been proven as enshrined in Article 19 (2) (c) of the 1992 Constitution of the Republic of Ghana. The same presumption of innocence was held by the Supreme Court in the case of Okeke v. The Republic [2012] 41 MLRG 53 at 61-62 and also in the Republic v. Francis Ike Uyanwune [2013] 58 GMJ 162 at 177 that: “a person charged with a criminal offence shall be innocent until he is proved or has pleaded guilty”. It is trite in all criminal cases, that the prosecution has to prove the guilt of the accused person beyond reasonable doubt. The burden of proof remains on the prosecution throughout the trial and it is only after a prima facie case has been established that the accused person will be called upon to give his side of the story. Again, where a statute creates an offence, which is a precondition to securing conviction, unless the same statute places a particular burden on the accused person the fundamental and cardinal principle as to criminal burden of proof should not be shifted slightly. Statute has placed this criminal burden of proof on the prosecution at Section 11 (2) and 13 (1) of the Evidence Act, 1975 (NRCD 323). Section 11 (2): “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 the fact beyond a reasonable doubt. Section 13 (1): “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 a reasonable doubt”. The Prosecution called two (2) witnesses, Togbe Dedu IV and G/C2 Emmanuel Ofori and tendered in evidence all Exhibits in their possession. They include Cautioned and Charged Statements of the Accused Person, the publication circulated on the social media, Extract from the National House of Chiefs, photograph of the scene of crime at Mafi-Luta. All were admitted and marked Exhibit as A, B, C, C1 C2 C3 C4 C5 6, 67, D and E respectively. The Accused person opened his defence and called a witness, Etse Adika. He tendered in evidence a document on destoolment of Togbe Dedu IV and Newspaper publication as Exhibit ‘1’ and 2. PW1, Togbe Dedu IV stated that, William Ahortor circulated a letter that he has been destooled as the chief of Dedukope. He was invited to a meeting with the elders but he failed to attend. Later he spotted and observed banners of himself with some inscription in Mafi-Dedukope, Mafi-Luta and Aveyime. This was in October 2020. That on 18th of February 2021, he spotted the same banner at Mafi-Luta and informed the Aveyime Police which was removed. It was in the process that the accused person came around pointed to the policemen who were with him and stated that they have come here with this stupid man and foolish man who has been destooled as his poster hanged for all to witness. That he later lodged a complaint. PW2, G/C2 Emmanuel Ofori, the investigator stated that a complaint of Offence conduct was lodged by Togbe Dedu IV against the accused person and he obtained statement from him and his witness. Accused person was arrested and Investigation Cautioned Statement obtained from him. Later the scene of crime was visited and after investigation, accused person was charged and arraigned in court. After their evidence, accused person cross examined them. This closed Prosecution’s case. The Accused person in his statement in defence denied uttering those abusive words of foolish and useless man to the annoyance of PW1. That he recalled a certain investor was in search of land at Mafi-Luta and Dedukope and that was put on their whatsapp plat form. It was there one person suggested that the said investor should see Togbe Dedu IV for the land. He placed on the platform that Togbe Dedu IV PW1 has been destooled and same published in the Newspaper with a radio announcement to that effect. According to the accused person, even though the matter was known to the public but someone on the plat form claimed he had not seen the information and requested for him to send it. That he complied and sent him a copy of the newspaper publication, the letter written by the king makers concerning the destoolment and the radio announcement. This member then forwarded same to PW1 and he (PW1) reported the matter to the Police. DW1, Etse Adika stated that, he was the acting chief and has replaced PW1 who was destooled some time ago. That PW1 was destooled by those who enstooled him for various reasons and all rituals performed to that effect and that accused person had no hand in PW1’s destoolment. Prosecution cross examined them after their evidence and it closed his case. Is the Accused person guilty of the offence charged? The accused person was charged with the offence of Offensive Conduct Conducive to the Breach of the Peace Contrary to Section 207 of the Criminal Offences Act, 1960 (Act 29). It states: “A person who in a public place or at a public meeting uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or by which a breach of the peace is likely to be occasioned, commits a misdeameanour”. In the case of Gaba v. The Republic [1984-86] 1 GLR 694-697 Sowah CJ (as he then was) held that, the offence of Offensive Conduct Conducive to the Breach of the peace: “It seem to me that an essential ingredient of the offence and its sine qua non under the section is that the offence must be committed in public place. It may happen in a building but then it must be a building to which the public has access. A literal interpretation under the section means that any person whose activities are conducive to a breach of the peace in a public place is guilty under the section. No offence is committed under it by a person whose activities take place in a private house to which the public has no right of access or licence thereto”. From the above provision, the essential ingredients of the offence of Offensive Conduct Conducive to the Breach of the peace are as follows: (a) the use of threatening abusive or insulting words or behaviour; (b)at a public place or meeting place; and (c)that the accused person had the intention to provoke the peace or by which a breach of the peace is likely to be occasioned. Section 1 of the Criminal Offences Act, 1960 (Act 29) defines what a Public place is as follows: “Public place” includes any public way and any building, place or conveyance to which for the time being the public are entitled or permitted to have access, either without any condition or upon condition of making any payment and any building or place which is for the time being used for any public or religious meeting or assembly, or as in open court; “Public way” includes any highway, market place, lorry park, square, street bridge or other way which is lawfully used by the public; act are done “publicly” . (1) if they are so done in any public place as to be likely to be seen by any person, whether such person be or be not in a public place; or (2) if they are so done in any place, not being a public place, as to be likely to be seen by any person in any public place”. The case of the prosecution as stated in the present case is that the accused person has uttered abusive words of foolish and useless man who has been destooled and circulated on various social media plat forms to the annoyance of PW1 with intent to provoke a breach of the peace. The accused person in both his evidence on oath and Investigation Cautioned Statement, Exhibit A denied uttering those abusive words to the annoyance of PW1. In his Cautioned Statement, he stated how PW1 with two policemen approached him at the last bridge before entering Mafi-Luta that he (accused person) hanged a banner and they wanted it but he denied knowledge of any banner and left. On the contrary, the accused person in his witness statement stated he had to place on a whatsapp platform about the destoolment of PW1 in the newspaper. Thus, Exhibit 2 ostensibly to stop the investor who was in search of land at Mafi-Luta and Dedukope. One of the whatsapp group member had suggested that the investor see PW1 who is the chief of Dedukope, Togbe Dedu IV. The accused person knowing the status of PW1 and per Exhibit 1 and 2 decided to circulate this information despite the fact he alleged that it was already known to the public. This is what ensued between accused person and prosecution. Q: Do you have your own personal picture? A: Yes, I do. Q: Identify all the photographs in Exhibit C A: It is my very self. Q: You agree with me that you have posted a photograph of PW1 in the media that he has been destooled A: Yes, I have. This is indicating that accused person put information in the public domain concerning PW1. The evidence overwhelming of his action. His photograph embossed on Exhibit C5 and therefore an admission of his action. Accused person’s constant denial of the offence of Offensive Conduct Conducive to the Breach of the peace needs much to be desired. Under cross examination this is what ensued between accused person and PW1. Q: I know nothing about the charge preferred against me by the Prosecution? A: It is not correct. Q: You said I posted your banner and when you saw me what did you do? A: That is why I reported to the Police. Q: You said I insulted you when I insulted you what did you ask me? A: I did not ask you anything, but I reported you to the police. From the dialogue, PW1 made a report to the Police because accused person had insulted him, the words already in evidence, foolish and useless man. These abusive words were uttered when the Police had gone to remove the banners at Mafi-Luta, Exhibit C7 with the derogatory inscription “Togbe Dedu IV destooled for misconduct and embezzlement”. The evidence of DW1 that the accused person had no hand and was never involved in the destoolment of PW1 is not the issue before this court. The issue before this court is entirely a criminal issue and has nothing whatsoever to do with destoolment which is a chieftaincy issue of which this court has no jurisdiction as per the Chieftaincy Act 2008 Act 759. The court witness, Togbe Asamoah Kwanta III, a member of the Mafi-Traditional Council and who was subpoenaed identified Exhibit ‘D’ an Extract from the National House of Chief of gazzetted Chiefs and with PW1’s name as Chief of Dedukope confirmed the present status of PW1. The evidence on record so far is that accused person uttered abusive words of foolish and useless man in public and circulated information about PW1’s destoolment on social media platforms. Accused person though admitted the offence but he never knew it was an offence. Per Exhibit ‘D’ it makes Exhibit ‘C’ entirely untrue. As such the publication by accused person is false news. This cannot exonerate him from criminal liability as same cannot be justified. The offence of publication of false news is a misdemeanour. It is committed where a person either publishes or reproduces a statement, rumour or report which is either likely to cause fear and alarm to the public or to disturb the public peace where the person knows or have reason to believe that the said statement, rumour or report is false. The essential ingredients for the offence are that there must be a publication or reproduction of statement or rumour or report, it must be likely to cause fear and alarm to the public or to disturb the public peace: See section 208 (1) of Act 29 and page 389 of Contemporary Criminal Law in Ghana by Dennis Adjei. If indeed what the accused person circulated was factual then it could be under a mistake or ignorance of fact in good faith. It is not a strict liability offence prove of the mens rea is essential. It goes therefore that merely circulating the publication without the lawful right to do or without the knowledge of the authorities is not enough to fix a person with liability. It must be established that the accused person did so with the intention of committing a crime. The absence of this factor inures to the benefit of the accused person. Intention as stated by P. K. Twumasi in his book Criminal Law in Ghana page 77 like any state of mind is incapable of direct proof, it is always inferred from proven facts. The intention as to whether the accused person circulated false news can only be inferred from the proven facts and the surrounding circumstances of the alleged crime. In the instant case, the undisputed facts are that the accused person circulated a publication on PW1’s destoolment on various social media platforms. Intention of the person who is alleged to have committed crime shall be proved and it is a material in all criminal cases. In the case of D. P. P. v. Beard [1920] AC 479 the English Court of Appeal decided that, no person could be convicted of a crime unless mens rea is established. The intention of the person and the act committed by the said person come together to make the commission of an offence complete. The courts are required to apply cases before them, see the case of Quartey alias Kukuaa v. The Republic [1999-2000] 2 GLR 201 CA. Section 11 of the Criminal Offences Act, 1960 (Act 29) states five (5) provisions relating to intent. Section 11 (3): “A person who does an act of a kind or in a manner that, if reasonable caution and observation had been used, it would appear to that person. a) that the act would probably cause or contribute to cause an event, or b) that there would be great risk of the act causing or contributing to cause an event, for the purposes of this section, to cause that event until it is shown that that person believed that the act would probably not cause or contribute to cause the event, or that there was not an intention to cause or contribute to it. Per this provision, the defence available to the accused person who failed to use reasonable caution and observation in his act shall be that he in his act believed that the act would neither cause or contribute to the causing of the event. The accused failed to exercise reasonable caution and therefore intended his action. The accused person’s action was to ward off the investor from dealing with PW1 as the Chief of Dedukope. It is not a defence therefore that he did not know the magnitude of his action to have circulated and published false news which he ought to have proved and to take reasonable measures to verify the authenticity of the publication before putting it out in the public domain on their farmers whatsapp plat form. Since accused person did not do due diligence before publishing it, it breached the peace of the public and created fear and alarm. In all criminal cases, the prosecution can prove their case by either direct or indirect evidence. Direct, where the accused person is caught in the act of committing or has confessed to the commission of the offence. An indirect which can sustain conviction is where the guilt of the accused person is proved by inference of surrounding circumstance, the case of Dogbe v. The Republic [1975] 118. Per the evidence adduced the accused person has admitted circulating Exhibit C on social media and without any corroborative evidence constitute a conviction. This makes the court not to believe the accused person that those abusive words uttered at Mafi-Luta that PW1 is foolish and a useless man was never uttered by him. His evidence therefore is not convincing and lacked substance and merit. It is inconsistent with normal acceptable behaviour and conduct and same ought to be rejected. Of course the Law is that where a case boils down to facts and credibility of a witness, if the court takes the view that one side or the other is the truth then the accounts are mutually exclusive to each other. Once the court decides to believe one side of the story it means the other side is a fabrication, the case of Ansah-Sasraku v. The State [1966] GLR 224 at 298 SC. Again, the law is well settled that, a party or witness whose evidence on oath contradicts a previous statement is not worthy of credit and his evidence should not be regarded. Unless he is able to explain the statement and the evidence. See: Gyabaah v. The Republic [1984-86] 2 GLR 461 CA. Unfortunately, the accused person was not able to explain to court the contradictions between his evidence on oath, statement to Police, Exhibit A, his Cautioned Statement and answers under cross examination. From the foregoing, I find as a fact that accused person’s conduct falls equally within the offence of Offensive Conduct Conducive to the Breach of Peace contrary to Section 207 of the Criminal Offences Act, 1960 (Act 29). I therefore hold that the prosecution led sufficient evidence beyond reasonable doubt that the accused person committed the offence supra. Accused person is guilty and accordingly convicted. MITIGATION Accused person pleaded for leniency. SENTENCE The court considered the plea in mitigation by the accused person, age and as a first offender which should have mitigated his sentence but accused person and as part of the legal process failed to submit to a settlement process prayed and granted in accordance with Section 73 of the Courts Act, 1993 (Act 459) to ameliorate the situation and to apologise and show remorse of his conduct. The court cannot be merciful as he never showed mercy himself. He must be punished to deter others who may want to follow such path as he deserves custodial sentence. Accused person is hereby sentenced to three (3) months imprisonment. H/W MOLLY PORTIA ANAFO-SALIA (MRS) (SGD) (DISTRICT MAGISTRATE) 19TH DECEMBER, 2023