REPUBLIC VRS NUTAKOR (CC4/11/2023) [2023] GHADC 1211 (14 December 2023)

1 IN THE DISTRICT COURT HELD AT ADIDOME ON TUESDAY THE 14TH DAY OF DECEMBER, 2023. BEFORE HER WORSHIP MOLLY PORTIA ANAFO-SALIA (MRS) (DISTRICT MAGISTRATE) CC4/11/2023 THE REPUBLIC VRS. MAXWELL NUTAKOR PARTIES 1 . ACCUSED PERSON PRESENT. 2 . DETECTIVE CHIEF INSPECTOR ROBERT FOLI FOR THE REPUBLIC PRESENT. J U D G M E N T The accused person was arraigned in this court on the 1st of September, 2023 and charged with the offence of Assault Contrary to Section 84 of the Criminal Offences Act, 1960 (Act 29). The accused person pleaded NOT GUILTY and thereafter admitted to bail. The brief facts as presented by the Prosecution are as follows: Complainant, James Agordo is a private Security Officer aged 72, Accused person is also a private Security Officer age 54. Accused person is in a relationship with Complainant’s daughter. Parties are not in good speaking terms for some time now. Complainant warned accused person not to step his foot on his compound. On the 24th of August 2023 about 0830 hours, accused person came to Complainant’s house to deliver a message to Complainant’s wife. Complainant over heard the voice of the accused person on his compound and he came out from his room to confront the accused person but he became furious and held the Complainant’s shirt and pushed him unto the ground after which he pounced on him on the ground and subjected him to beatings. A witness in the case who heard the Complainant screaming for help came out of his room and he managed to rescue the Complainant. After the incident, the Complainant reported the matter to police with bruises on his back and chest and he was issued with a police medical form to attend hospital for treatment which he dig and returned same duly endorsed by a medical officer. Accused person was subsequently arrested and detained. Accused person in his investigation cautioned statement admitted the offence and after normal police investigation he was charged with the offence and arraigned in court. The Prosecution called three (3) witnesses and tendered in evidence, the investigation cautioned statement, charged statement, the medical report of PW1 and a photograph. They were admitted and marked as Exhibit ‘A’, ‘B’, ‘C’, and ‘D’. The case of PW1, James Agordo was that, he has not been in good speaking terms because about a year ago, accused person sent his wife to Oti Region without seeking his consent and she stayed there for twenty-three (23) days before she returned home. That on the 24th of August 2023 at 0830 hours, he heard the voice of the accused person on his compound and came out to ascertain what he was doing on his compound when he had warned him not to come to his house. Accused person asked him if he owned the house to issue this warning and without any provocation bounced on him, held his shirt and pushed him down. Accused person held his neck, slapped him three (3) time and picked a stone to hit his chest threatening to kill him at his work place. That he shouted for help. His wife and other neighbours rushed to the scene and rescued him. He reported the incident to the police and was issued with a medical form to attend hospital for treatment and same complied duly endorsed by a medical officer. PW2, Agbesi Kudofia also a tenant in PW1’s house stated he was in his room on that fateful day. He heard the voice of people outside shouting. He came out and saw PW1 on the ground with the accused person on him beating PW1 up and rushed in and managed to separate them after which the accused person left to his house. PW3, the investigation, Detective Inspector Bright Quarshie evidence was to the effect that PW1 reported a case of assault against the accused person and same referred to him. He obtained complainant statement from PW1 and PW2. That he issued a medical form for PW1 to seek medical care on his bruised chest and back. He took photograph of PW1 for evidential purpose. PW1 returned with the medical report duly endorsed by a medical officer. PW1 led him to arrest the accused person and PW3 obtained investigation cautioned statement for the accused person and thereafter charged with the offence of assault and arraigned in court. They were cross examined by the accused person and prosecution closed their case. The accused person opened his defence and called a witness. He also tendered in evidence a metal rod as Exhibit ‘1’. His case was that he has been in a relationship with DW1, Faustina Agordo, daughter of PW1. On several occasions, at least three times, he had asked for a marriage list from PW1 to enable him many the daughter customarily but not successful. That time he was at home and were in discussion of an issue of death his biological son with PW1’s wife when PW1 emerged from behind and used a metal rod to hit him. He struggled with PW1 to retrieve the metal rod from him but they both fill on the ground. He was brutally assaulted with blood stains on his body but was prevailed upon by Atsu Agordo, Gbordemefe Agordo and Sampson Agordo not to report to the police. He concluded that he never assaulted PW1. DW1, Faustina Agordo stated that she was aware PW1 brutally assaulted the accused person with a metal rod which resulted in blood oozing from his body. That upon seeing the blood, she advised the accused person to report to the police but Atsu Agordo, Gbordemefe Agordo and Sampson Agordo intervened and accused person did not report to the Police. According, to DW1, her biological father PW1 has refused despite several occasions to provide a marriage list to accused person to marry her customarily. She concluded that accused person never assaulted PW1. Prosecution cross examined them and this closed accused person’s case. The legal issue for determination after the end of the trial is whether the accused person assaulted James Agordo. It is trite that a person was presumed innocent until the contrary was proved or he pleaded guilty, Article 19 (2) (c) of the 1992 Constitution states: “A person charged with a criminal offence shall........................... (c) be presumed to be innocent until he is proved or has pleaded guilty”. See: Okeke v. The Republic [2012] 41 MLRG 53 at 61-62. The principle is that, in criminal trials, the burden of proof against an accused person is on the prosecution. The standard of proof is proof beyond reasonable doubt which they ought to establish 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”. In the case of the Republic v. Adu Boahen and Another [1993-94] 2 GLR 324-342 per Kpegah JSC (as he then was) the Supreme Court held that: “A plea of not guilty not guilty is a general denial of the charge by an accused which makes it imperative that the prosecution proves its case against an accused person..................when a plea of not guilty is voluntary entered by an accused or is entered for him by the trial court, the prosecution assumes the burden to prove, by admissible and credible evidence every ingredient of the offence beyond reasonable doubt. The standard of proof beyond reasonable doubt was explained by Lord Denning in the case of Miller v. Minister of Pensions [1972] 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. The accused person has been charged with the Offence of Assault contrary to Section 84 of the Criminal Offences Act, 1960 (Act 29). Section 84 states: “A person who unlawfully assaults another person commits a misdemeanour”. From the facts presented by the prosecution, the charge of assault against the accused person is that of Assault and Battery. Section 85 (1) (a) of the Criminal Offences Act, 1960 (Act 29). It states: “For the purposes of section 84 “assault” includes (a) Assault and Battery. Section 86 (1) of the Criminal Offences Act, 1960 (Act 29) defines assault and battery as follows: “A person makes an assault and battery on another person if, without the other person’s consent, and with the intention of causing harm, pain or fear, or annoyance to the other person, to anger, that person forcibly touches the other person.” To constitute assault and battery, it is sufficient if the prosecution proves that without the consent of the other person, and with the intention of causing harm, pain or fear, or annoyance to the other person or exciting him to anger the accused forcibly touched him or caused any person, animal or matter to forcibly touch him. In order to ground a conviction, the prosecution would have to prove beyond reasonable doubt that: (1) The accused person forcibly touched the complainant; (2) The touch by the accused person was without the consent of the complainant; (3) The touch or assault was intentional; and (4) The touch or assault was unlawful. The legal issue for determination is whether or not the accused person assaulted PW1, James Agordo. The court in determing the issue had to consider whether or not the accused person touched PW1. The accused person came to PW1’s house and PW1 heard his voice and came out to asked why he was there after PW1 warned him never to step foot in his compound, accused person did not take kindly to it, held PW1’s shirt, pushed him and he fell on the ground. PW2 corroborated this evidence that he came out after he heard PW1’s shouting and saw PW1 on the ground and accused person on him beating, rushed and managed to separate them. Meanwhile, accused person denied beating PW1 rather PW1 used a metal rod Exhibit ‘1’ to hit his head, waist and knee without any provocation. That in an attempt to collect the Exhibit ‘1’, they fell to the ground and they were separated. Accused person never denied his presence in PW1’s house but that he was there to deliver a message to PW1’s wife. It is clear from their narration that there was a touch, except that accused person denied beating PW1, a 72 year old man against a 54 years accused person DW1 in her evidence stated she was aware PW1 brutally assaulted the accused person. Being aware could mean she was informed of the incident but might not have witnessed it. The children of PW1, Atsu Agordo, Gbordemepe Agordo and Sampson Agordo who according to DW1 prevailed on accused person not to lodge a complaint but did they witness the incident. Her evidence is skewed and favoured accused person as the mention of PW1 was his refusal to allow them (accused person and DW1) to marry. The touch by the accused person did PW1 consent to it. PW1 in his evidence stated that he was at home when the accused person came there. He came out and the incident occurred. The accused person did not deny his presence at PW1’s house. He had gone there to give information to his sister, PW1’s wife. Meanwhile accused person was very much aware of PW1’s warning not to come to his house yet he refused to comply. Accused person defence that the house has one entrance is immaterial because each tenant has its territory clearly define or designated. PW1 never anticipated that accused person would be that aggressive and he could not have consented to the assault. It will be impossible for PW1 to have consented to the assault. PW1’s presence to ascertain as to what accused person had come to his house to do could not have mean PW1 consented to any assault. Consent obtained by deceit to commit assault and battery on another would not suffice as a justifiable ground where the intention of the accused person was to cause harm or pain on PW1. Especially when accused person and DW1 are pained because PW1 has been an obstacle to their marriage, not ready to provide the marriage list to seal their marriage plans. In Exhibit ‘C’ Dr. Christopher Nyamekye of Adidome Government Hospital who examined PW1 on the 24th of August 2023 stated that “smelling observed on the occipit which is tender 1. Headache 2. Chest pain 3. Neck pain Managed on Out Patient Department (opd) base on account of Myalgia and scalp confusion secondary to alleged assault with pending review in a week Tread and discharged”. In Exhibit A, the Investigative Caution Statement of the accused person obtained on the 21st of August 2023 stated that he went to PW1’s house to deliver a message to his wife and in the process PW1 came out and without any provocation hit his head, waist and knee. That he held the iron bar in an attempt to collect it from him, PW1 struggled with him and they both fell on the ground and other neighbours came and separated them. He sustained a cut on his head but was advised not to report him to the police, because PW1 is his father in law. From the evidence, accused person suffered more injuries compared to Exhibit C which is the medical report of PW1, yet he refused to report to the Police because PW1 is his father in law. This is on humanitarian grounds but not because PW1 is accused person’s father in law, the law is not a respect of persons. The court cannot fathom how accused person could listen to neighbours not to have reported PW1 to police and not to have exhibited any medical report of his injuries to make a case for himself. No mentioned of attending hospital in his defence, how then did he treat the injuries. Despite the accused person’s denial of the offence of assault charged cannot be true. His defence that PW1 used the iron bar, Exhibit 1 to inflict pain on him and never retaliated cannot be accepted by the court. Did accused person looked on for PW1 to hit his head, waist and knee because PW1 is his father in law or because he is an elderly person and without any provocation could met out such punishment? Judging from the animosity between PW1 and the accused person the accused person cannot convince this court that he never assaulted PW1. The Law is that the prosecution must prove all the ingredients of the offence charged in accordance with the standard burden of proof, that is to say the prosecution must establish a prima facie case and the burden of proof would be shifted to the accused person to open his defence and in so doing he may run risk of non-production of evidence and or non-persuasion to the required degree of belief else he may be convicted of the offence. The accused person must give evidence of prima facie case is established else he may be convicted and if opens his defence the court is required to satisfy itself that the explanation of the accused person is either acceptable or not. If it is acceptable the accused person should be acquitted and if it is not acceptable the court should probe further to see if it is reasonable probable. If it is reasonable probable, the accused person should be acquitted and if it not and the court is satisfied that in considering the entire evidence on record the accused person is guilty of the offence the court must convict him, the case of the Republic v. Francis Uyanwume [2013] 58 GMJ 162 at 177. On the strength of the above case and having considered the evidence on record on its entirely, the court is of the opinion that the accused person and his sole witness evidence is not reasonably probably, rather the prosecution has proved the guilty of the accused person beyond reasonable doubt having established the ingredients of the offence of Assault Contrary to Section 84 of the Criminal Offences Act, 1960 (Act 29). The Accused Person is hereby GUILTY and accordingly he is CONVICTED. MITIGATION Accused Person pleaded for leniency. SENTENCE In sentencing the court considered the plea of the accused person, age and the fact that accused person is a first offender, accused person is sentenced to fifty penalty units in default six (6) imprisonment. Accused Person shall settle an amount of Five Hundred Ghana Cedis (GH₵500.00) to PW1 by the 28th December, 2023 to defray part of his medical expenses. (SGD) H/W MOLLY PORTIA ANAFO-SALIA (MRS) (DISTRICT MAGISTRATE) 14TH DECEMBER, 2023