REPUBLIC VRS FUSEINI (BR/SY/CT/86/2022) [2023] GHACC 992 (12 December 2023)

IN THE CIRCUIT COURT HELD AT GOASO IN THE AHAFO REGION ON TUESDAY THE 12TH DAY OF DECEMBER 2023 BEFORE HIS HONOUR CHARLES KWASI ACHEAMPONG ESQ. CIRCUIT COURT JUDGE BR/SY/CT/86/2022 THE REPUBLIC VRS. AZIZ FUSEINI JUDGMENT The facts giving rise to the instant charges against the accused person are that on the 12th of September 2022 accused person is alleged to have gone to the salon of complainant, a hairdresser, sat on the laps of one of her apprentices and demanded for a kiss. The said apprentice shrugged him off and refused to kiss accused. According to Prosecution accused then turned his attention to complainant by touching her arms and thighs and later lifting her dress thereby exposing her body. Accused person is alleged to have perpetuated these acts despite he being warned severally to desist given the fact that complainant was a married woman. The whole situation soon degenerated into a confrontation by which accused person rained insults at complainant. In fact, it is alleged that even though the complainant’s husband was not present, he also received his fair share of the accused person’s verbal onslaught. It was prosecution’s case that accused person further threatened to kill complainant and her husband and set her salon ablaze. This threat was allegedly repeated by accused person the next day, that is the 13th of September 2022 when complainant’s husband called accused person ostensibly to have the matter resolved. Based on these facts, Prosecution charged accused person with the offence of offensive conduct conducive to the breach of the peace and threat of death. At this stage, the above facts as narrated are nothing more than mere allegations proffered by Prosecution. These allegations move on to become facts capable of being believed by any reasonable person if and only if Prosecution establishes each fact constituting an beyond reasonable doubt. This is what Section 11(2) of the Evidence Act 1975 (NRCD 323) seeks to indicate by providing 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 the fact beyond a reasonable doubt”. This basic rule is further captured in a myriad of case law, such as in COMMISSIONER OF POLICE v. ISAAC ANTWI [1961] GLR 408 which held that; “The fundamental principles underlying the rule of law that the burden of proof remains throughout on the prosecution... it always rests on the prosecution to prove the guilt of the accused beyond reasonable doubt.” Also Lord Sankey in Woolmington vrs. DPP [1935] AC 462 had earlier stated that, "... it is the duty of the prosecution to prove the prisoner's guilt... With this in mind, the basic issue is whether or not accused person did commit the offences alleged? Count One: Offensive Conduct Section 207 of Act 29/1960 stipulates that; “Any person who in any public place or at any public meeting uses threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or where-by a breach of the peace is likely to be occasioned, shall be guilty of a misdemeanour.” From the above provision, one deduces that the elements necessary to be established by the Prosecution in order to sustain a conviction are that; a. The accused person used threatening, abusive or insulting words or behaviour; b. The act of the accused person was intended to provoke a breach of the peace or likely to occasion such breach; c. The conduct must have been done in a public place or at any public meeting. In the instant case, the particulars of offence indicate that on the day in question accused person addressed complainant using words to wit, „you and your mother’s vagina stinks‟ and „you and your husband are dogs‟. According to Prosecution, these statements were abusive and insulting in nature. What will constitute abusive or insulting words or behaviour? In QUANSAH v. THE REPUBLIC [1980] GLR 263 the court held that; “…the words "threatening, abusive or insulting words or behaviour" in Act 29, s. 207 must be given their ordinary meaning so as to avoid the danger of enlarging what Parliament had enacted in relation to the offence.” It follows therefore that the Court shall assess the alleged statements and given them their ordinary meaning in order to determine whether they constitute abusive or insulting words. According to Black’s law dictionary 7th edition, „to abuse‟ means “to depart from legal or reasonable use in dealing with a person or thing, to misuse, to injure physically or mentally or to damage a thing. While „insulting behaviour is explained in the case of Brutus v. Cozens [1972] 3 W. L. R. 521, to mean, “behaviour which affronted other people and evidenced a disrespect or contempt for their rights, and which reasonable persons would foresee as likely to cause resentment or protest”. Describing someone’s vagina as stinking is an affront to the sensibilities of any ordinary person living within any given community in Ghana. That statement connotes the impression that the maker of the statement has had a sexual encounter with the addressee and has reasonable cause to believe that the addressee’s vagina stinks. This ultimately embarrasses the addressee and tends to lower her reputation in the mind of well thinking members of the community. Again, to describe a person as a dog is a metaphorical term used to depict the attributes of a dog to a person. A cursory online search regarding the insult does reveals a Wikipedia explanation which states as follows; “Dog has long been used as an insult toward both women and men. In ancient Greece, dog was often used in a derogatory sense to refer to someone whose behaviour was improper or transgressive. This could include shamelessness or lack of restraint, lack of hospitality, lack of loyalty, and indiscriminate or excessive violence among other qualities…” (See: https://en.m.wikipedia.org/wiki/Bitch_(slang)#:~:text=In%20ancient %20Greece%2C%20dog%20was,excessive%20violence%2C%20am ong%20other%20qualities) It is therefore the finding of the Court that the ordinary meaning of the words allegedly uttered by accused person to wit; „you and your mother’s vagina stinks‟ and „you and your husband are dogs‟ suggests that the said statements are abusive and insulting. Did accused person make these statements? Prosecution alleges that it was accused person and no other who uttered those words, this was however vehemently denied by accused person. The onus thus falls on Prosecution to establish its position beyond reasonable doubt. Prosecution called complainant (Pw1) who testified at paragraphs 16 and 17 of her witness statement as follows; “16. That when I came out, accused started insulting me that to wit I am a dog child, my mother and my husband are all dogs. 17. That accused again insulted me that my vagina and my mother’s vagina stink.” Accused person did not challenge Pw1 with regards to the above assertions during cross examination, he is therefore deemed to have admitted the truth of same. The case of Republic vrs. Kwame Amponsah & 6 ORS (2019) JELR 107122 (HC), is instructive on the legal effect of a party’s failure to cross examine on material facts. The Court observed that a “…failure by the defence to cross-examine amounted to an admission by the defence”. In any case accused person himself in his Caution Statement, Exhibit A alludes to the fact that he sent complainant’s husband a voice note by which he referred to complainant’s husband as a dog. There is therefore no doubt in the mind of the Court that accused person in fact made the statements attributed to him. The first element of the offence is accordingly established beyond reasonable doubt. Following the resolution of the first issue, it must now be ascertained whether the conduct of accused person in uttering the said words, was intended to provoke a breach of the peace or likely to occasion such breach. The Court in Solomon Joojo Cobbinah & Others V. Accra Metropolitan Assembly & Others (2017) JELR 69501 (HC) considered what amounts to breach of the peace by making reference to the English case of R v. Howell [1982] QB 416 at 427 where Watkins LJ observed as follows; “We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be to a person or in his presence his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.” Again, in Quansah v. The Republic [1980] GLR 263 the Court observed that; “In considering the meaning of the words "with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be occasioned" in Act 29, s. 207, the test of the reasonable man was inapplicable to the person or persons likely to be provoked. A speaker who used threatening, abusive or insulting words, had to take his audience as he found it and, if the words spoken to that audience were likely to provoke a breach of the peace, he would be guilty of an offence; it did not matter if the audience were a band of hooligans or a rabble. Jordan v. Burgoyne [1963] 2 Q. B. 744, D. C. applied” The combined effect of the respective observations by these Courts is that, where threatening, abusive or insulting words are uttered to another and by virtue of these words, harm is caused or is likely to be caused to a person or his property either through assault or some other unlawful means a breach of the peace has taken place even if the words spoken were addressed to persons who do not understand its import and hence did not react. In other words, any statement made that is likely to cause unrest, altercation, confrontation is a statement likely to cause a breach to the peace. Consequently, this Court holds that, the statements made by the accused person were likely to cause a breach of the peace given the fact that the nature and character of the statements were so distasteful that same was likely to cause unrest, altercation, confrontation between the accused person, complainant and possibly other persons who were present at the scene. Where did this incident take place? In the instant case, there is overwhelming evidence indicative of the fact that the incident took place as the Salon of the complainant. In fact in his evidence in chief accused person alluded to that fact that he visited his girlfriend at the shop of complainant. Having established that the incident took place at Complainant’s Salon, it must be ascertained whether or not a Salon qualifies as a public place within the meaning of the law? A public place is defined in section 1 of Act 29/1960 to include: “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 an open Court.” In the case of Gaba vrs. The Republic (1986) JELR 66770 (HC) the Court observed that, “…an essential ingredient of the offence and its sine qua non under the section is that the offence must be committed in a 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”. Hence it begs the question whether or not complainant’s salon is a private house? Certainly not. This answer is not surprising giving the fact that the salon is a place where people visit to have their hair and other services performed for them. It is a place where the public are entitled or permitted to have access to. In Cawley v. Frost (1977) 64 Cr. App. R. 20, D. C, Lord Widgery C. J. at p. 24 indicated that a public place is a place "…where you have an establishment which is set up to provide for the public…”. (emphasis mine). To the extent that complainant’s salon provides services to the public her salon is a public place. By virtue of the above finding, one observes that Prosecution has established all the elements of the offence beyond reasonable doubt in respect of Count One. Accused person is accordingly found guilty and hereby convicted on Count One. COUNT TWO: Section 75 of Act 29/60 provides as follows; “A person who threatens any other person with death, with intent to put that person in fear of death, commits a second degree felony”. According to section 17 of Act 29/60 „Threat‟ means, inter alia, „a threat of criminal force or harm‟. Thus, prosecution must establish the following; a. That the accused did threaten another. b. That the threat was criminal in nature, that is the use of criminal force or harm. c. That the accused person had the intent to put that person in fear of death. The first issue to be determined in this suit is whether or not the accused did in fact threaten the complainant with death and in this regard the complainant (Pw1) testified to the effect that after accused person made the unsavoury statements above identified, he further threatened to burn her shop and kill her and the husband. Pw1 stated that, “…accused person started threatening me that he will burn and destroy my shop then afterwards he will kill my husband and I” (sic). This assertion did not go unchallenged by Accused person who questioned complainant as follows; Q. I never said I will kill you? A. You said you will kill me. Having categorically denied making the said threat through the cross examination of Pw1, Prosecution’s burden had not been discharged. In this regard, Prosecution called another witness and this time it was Pw2, Adwoa Osaah. Pw2 in her evidence stated as follows; “…accused person again threatened the complainant and her husband that if he meets any of them anywhere he will kill them…accused person again swore to that he will cause damage to the complainant’s shop and the glass attached to it” (sic). Accused person did not cross examine Pw2 on the allegation that he had threatened complainant and her husband. Naturally, on the principle as enunciated in Republic vrs. Kwame Amponsah (supra) to the effect that such failure to cross examine meant an admission of the truth of the alleged fact, this Court would have deemed that accused person had admitted making such threats against complainant and her husband. However, given the surrounding circumstances pertaining to this suit, I am unable to arrive at such a conclusion. These surrounding circumstances are; i. The difference in the testimonies between Pw1 and Pw2 regarding the alleged threat. While Pw1 stated that accused said he would kill her and the husband simpliciter, Pw2 alleged that accused said if he meets Pw1 and her husband anywhere he would kill them. ii. The Investigator L/Cpl Isaac Asamoah who visited the scene and interviewed an eye witness called Sister Hajara, did not state that the said sis Hajara heard accused person making such threats of death. iii. Pw1 the complainant, alleged that accused person further threatened to kill her husband when her husband called accused person on phone on the 13th of September 2022. This phone call was not recorded however, Prosecution tendered a voice note sent by accused person to complainant’s husband which was marked as Exhibit C. Having listened to the entire voice notes, this Court observed that nowhere in the said voice notes did accused person threaten to kill complainant or her husband. At best the voice note captures accused person admitting that he would beat up complainant’s husband who had allegedly threatened to assault accused person using hired thugs. iv. The testimony of Pw2, even though material ought to be taken with much caution given the fact that she is an apprentice of Pw1 and so her evidence may very well have been given to please her „madam‟. For the above reasons this Court cannot find and hold that accused person issued the said threats beyond reasonable doubt. Accused person on his part and in his Defence admitted insulting complainant and the husband and the evidence on record supports this contention. The evidence does not, in any way support a threat of death. Prosecution has therefore failed to establish the first element of the offence of threat of death and as such the Count Two must fail. On the whole and in summary, accused person found guilty on Count One and hereby convicted. Accused is sentenced to pay a fine of 200 penalty units and in default 12 months imprisonment in hard labour. On Count Two, accused person is found not guilty and accordingly acquitted and discharged. SGD H/H CHARLES KWASI ACHEAMPONG ESQ. CIRCUIT COURT JUDGE - GOASO 11