Republic Vrs Damoah (B9/02/2022) [2023] GHACC 964 (8 December 2023)

IN THE CIRCUIT COURT DUNKWA-ON-OFFIN; SITTING ON 08TH DECEMBER 2023 CORAM: HIS HONOUR YAW POKU ACHAMPONG CASE NO.: B9/02/2022 THE REPUBLIC VS AMOS DAMOAH alias NIPA ADUANE ACCUSED PERSON PRESENT SERGEANT PRINCE ADU AMOAKO FOR PROSECUTION, PRESENT JUDGMENT The accused person herein was arraigned before this court because the police found him to have breached some laws of Ghana. The police found that he had flouted sections 172(1)(b) and 124(1) of the Criminal Offences Act, 1960(Act 29). Section 172(1)(b) of Act 29 states: (1) Whoever intentionally and unlawfully causes damage to any property by any means whatsoever— (b) to a value exceeding ¢1 million[GH₵100.00], shall be guilty of second degree felony. Section 124(1) of Act 29 states: Whoever steals shall be guilty of a second degree felony. Section 125 of Act 29 defines stealing as: A person steals if he dishonestly appropriates a thing of which he is not the owner. According to the police, Accused fell foul of that law because on 27th December 2021 at Diaso, Accused who was 56 years old and had his occupation as a farmer caused damage to seven sets of milling machines valued GH¢50,500.00; the said machines being the properties of one Akwasi Manu. Also according to the police, on that same day and in that same town, Accused stole electrical wires, meter board, electricity meter, starters, two main electric switches and fire extinguisher, all valued GH¢9200.00 and all being the properties of the said Akwasi Manu. The police gathered the following facts(produced verbatim as attached to the charge sheet): “Complainant Akwasi Manu @ Bolas is a farmer and also operates corn, rice, tomatoes and flour milling machine at Diaso. He is a resident of Diaso in the Upper Denkyira West District. Accused Amos Damoah @ Nipa Aduane is also a farmer and resides at Diaso in the Upper Denkyira West District. The complainant’s late father, Opanyin Kwame Amoah Manu died some years ago and bequeathed to the complainant and his siblings seven different milling machines comprising: 3 sets of corn mill, a set of rice mill, a set of tomatoes mill and a flour mill, all valued GH₵50,500 (Fifty thousand five Hundred Ghana Cedis) mounted and housed on a parcel of land lying by the road side in the center[sic] of Diaso of which the accused person claims is his family plot. Sometime in the year 2021, accused person’s elder brother by name Andrews Nana Osei Damoah approached the complainant’s family member by name Adamu Braimah and told him that he and his family members wanted to develop the land on which the complainant milling machines are[sic] being housed, as such he should inform the complainant to vacate the land. Adamu Braimah advised Andrews Nana Osei Damoah to convene a meeting with the complainant and his family members to resolve any outstanding matter so that the complainant would vacate the land in peace. This did not go down well with the accused person and as a result he moved to the site and removed the roofing sheets and broke down the wooden structure which was housing the milling machines. Accused further dismantled all the milling machines from the land and parked them somewhere and left them to the mercy of the weather. Accused person also removed some of the electrical wires, meter board, electric meters and two pieces of electrical main switches as well as the fire extinguisher from the milling plant and kept same in his room, without the consent of the complainant. On 31/12/21 the complainant reported the case to the Police and the accused person was arrested. On 05/01/22 both parties in the case led Police to the disputed site. The scene was photographed and inspected. On inspection Police found the dismantled milling machines packed in front of the accused person’s house closer the disputed site. The accused person further led police into his room and identified some electric wires, meter board, electric meter and a pair of electrical main switches and a fire extinguisher as part of the properties he had removed from the milling machines room. After thorough investigation he was charged with the offences as stated in the charge sheet.” The prosecution are enjoined by law to lead evidence to establish the above facts in their quest to seek to secure the conviction of Accused. In this regard, the prosecution called three witnesses. Akwasi Manu testified first and he was referred to as PW1. The one who testified second is the investigator herein; PW2 he was referred to. A Police Officer – Constable Abraham Nana Yaw Owusu who said he accompanied PW2 to Diaso on inquiries testified as PW3. PW1 stated the following, inter alia, in his witness statement: “… 4. My late father by name Kwame Amoah Manu bequeathed the following milling machines to me and my siblings as follows;[sic] corn mill 3 sets, a set of rice mill, a set of tomatoes mill and 2 sets of flour mill(a mixer and a roller). 5. The machines had been assembled in the building which is adjacent to Diaso new market and all the machines were in good conditions. 6. On 27th day of December, 2021 I met one Akwasi Kwaah at his shop at Diaso and he informed me that he saw the accused and about eight other young men dismantling the my[sic] milling machines at Diaso. 7. Based on the information, I quickly moved to where the machines were and found that the machines had been dismantled and removed [from] its[sic] original position in the building i[sic] had kept it[sic][in], and parked outside the building and exposed to the vagaries of the weather and had rusted. ...” According to PW2, this case was referred to him for investigations on 31st December 2021. The next day saw the arrest of Accused. PW3 visited the crime scene whilst Complainant and Accused were present there. Accused person then led the police into a room within his place of abode where PW3 found fire extinguisher, an electric meter, meter breakers and meter board. Accused told PW3 that he(Accused) removed them from the milling machines that he(Accused) dismantled. PW2 tendered in evidence the investigation cautioned statement he said he took from Accused and it was marked Exhibit after a minitrial. The statement PW2 attributes to Accused in Exhibit A reads: “I know the complainant as the son of the Opanin Kwame Manu. The late Kwame Manu asked [for] a piece of land from myself, Kofi Manu and Kwame Atta who are all my siblings about fourty[sic] years ago. He came to ask for the land to set up his milling plants. Before 2004 the late Kwame Manu put up a building structure in which he set up milling plants and was working in it, and every year he gave a token to my late father, Kwabena Damoah. In 2004 myself, Kofi Manu and Kwame Atta made verbal agreement with the late Opanin Kwame Manu and the agreement we reached with him was that every year he would give my father GH₵100.00 and One fowl. In 2016 myself and the others mentioned above told Akwasi Manu after the demise of his father Kwame Manu that we have[sic] increased the land rent to GH₵300.00 but Akwasi Manu told us that was too much for him to bear, he pleaded with us through Opanin Duro but we insisted we would take the same amount. In 2017 Akwasi Manu, son of the late Kwame Manu started taking away their milling plants from our land in bits. By 2019 Akwasi Manu had taken away major parts of the milling machines and it had been left with few structures, which I would call “skeleton”. Later on in the year 2021 I went to Opanin Anthony Annor, Opanin Christopher and Opanin Osei Yaw to impress on Akwasi Manu and Adamu to come and remove the skeleton remains of their milling machines because we wanted to develop the land. Akwasi Manu informed Opanin Anthony Annor, Opanin Christopher an OpaninOsei Yaw that the rest belongs to Adamu the next of kin of their late.[sic] In February 2021 myself and Opanin Anthony Annor and the two others went to Adamu the next of kin of the late Kwame Manu and informed him that Akwasi Manu @ Akwasi Bolas is no more in the land and does not pay any rent, we also want to develop our land. Adamu then gave us instruction to go and dismantle the remains of the milling machines and park all well somewhere, after that we should come and call him to witness it. On Sunday, 26/12/21 myself and five other men went and dismantled the remains of the milling machines and kept all in the same compound but covered it with iron sheets.” The charged statement taken from Accused as in a document PW2 tendered in evidence which was marked Exhibit B, reads: “I rely on my previous statement given to Police on 01/01/2022.” PW2 also tendered in evidence what he said was electric meter, meter breakers, fire extinguisher, meter board and also what he said was photographs depicting the extent of damage that according to Prosecution, Accused caused. PW3 essentially corroborated PW2 on the visit to Diaso by the police. The Court found on the evidence adduced by the prosecution that a case had been made out against Accused sufficiently to require him to open his defence. See section 173 of the Criminal and Other Offences(Procedure) Act, 1960(Act 30). The court then proceeded to explain section 174(1) of Act 30/ section 63 of NRCD 323 vis-a-vis Article 19 (10) of the Constitution, 1992 to Accused. Section 174(1) of Act 30: At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused sufficiently to require him to make a defence, the Court shall call upon him to enter into his defence and shall remind him of the charge and inform him that, if he so desires, he may give evidence himself on oath or may make a statement. The Court shall then hear the accused if he desires to be heard and any evidence he may adduce in his defence. Section 63 of NRCD 323 states: (1) An accused in a criminal action may make a statement in his own defence without first taking an oath or affirmation that he will testify truthfully and without being subject to the examination of all parties to the action. (2) Such a statement by an accused is admissible to the same extent as if it had been made under oath or affirmation and subject to examination in accordance with sections 61 and 62. (3) The fact that the evidence was given without oath or affirmation, or that there was no possibility of examination, may be considered in ascertaining the weight and credibility of the statement, and may be the subject of comment by the court, the prosecution or the defence. Article 19(10) of the Constitution, 1992 states: No person who is tried for a criminal offence shall be compelled to give evidence. Accused testified and called two witnesses. According to Accused, on 27th December 2021, he was at a place called Diaso Ebenezer. He denied the charges. He stated that it was Complainant(PW1) himself who went to remove the said items as mentioned in the charge sheet. PW1 later went to collect them from where he kept them. Accused stated further that when his father was alive, he(his father) rented the land on which those items were out to PW1’s father. Before his father did that, he discussed that with Accused and his siblings. PW1’s father died before Accused’s father died. After Complainant’s father died, Complainant took over the milling business of his(Complainant’s) father which was on the said land. Accused’s father died soon after PW1’s father died. So, PW1 was paying rent in respect of the land to Accused and his siblings. Later, there arose a disagreement between Accused and PW1 over the rent to be paid. Accused and siblings increased it to GH¢400.00 per year but PW1 insisted on paying rent of GH¢300.00 which he had paid for four years. PW1 called on one Opanyin Koo Duro to intercede on his behalf but Accused and his siblings were resolute on taking the GH¢400.00 per year. Later, Accused observed that Complainant was taking out the milling machines and the other times from the shop where they were. Accused realized that PW1 had taken those milling machines elsewhere across the road and set up a new shop with them. Complainant later removed the items mentioned in Count Two of the charge sheet and gave them to one Kwabena Bofa for the said Kwabena Bofa to keep them for him. DW1 is the said Kwabena Bofa and he simply told the court in his evidence before the court that he showed the police where he kept the meter and the police took it away. DW2 testified to the fact that he observed some broken items beside a dilapidated building that belonged to his father who was also Accused’s father and that some of the items were like electricity meter. Accused operated a drinking spot beside that dilapidated building and that Accused did not live at that place but lived at a place at Diaso called Ebenezer. Ollennu J(as he then was) in Majolagbe v. Larbi [1959] GLR 190 made reference to a dictim he gave earlier in Khoury and Anor v Richter which judgment was delivered on 8th December, 1958, as regards proof in law. That dictum has been referred to with approval in Klutse v. Nelson (1965)GLR 537 @ 542 and also Baah Ltd v. Saleh Brothers [1971] 1GLR 119 @ 122. That dictum is: "'Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true'." Later on, in the judicial life of Ghana, Kpegah J. A. (as he then was) whilst looking at proof in law stated in Zabrama v. Segbedzi [1991] 2 GLR 221 @ 246, that: “… a person who makes an averment or assertion, which is denied by his opponent, has a burden to establish that his averment or assertion is true, and he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden.” It must be said that Prosecution did their best to produce evidence to seek to prove their case by proper legal means. The police having made out a case sufficiently against Accused, the onus shifted on to Accused to lead credible and admissible evidence to seek to persuade the court to rule in his favour. Accused might do this by giving cogent explanation on the events culminating in the charges, to seek to persuade the court to accept his side of the story. Section 10(1) of the Evidence Act,1975(NRCD 323) defines “Burden of Persuasion” and it states: For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. Section 10(2) of the Evidence Act adds that: The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non- existence of a fact or that he establishes the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Section 11 of NRCD 323 defines “Burden of Producing Evidence” and states further as follows: (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (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. (3) In a criminal action the burden of producing evidence, when it is on the accused as to any fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. In Ackah v. Pergah Transport Limited and Others[2010] SCGLR 728 at 736; Sophia Adinyira JSC threw more light on burden of proof when she stated that: “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things(often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable[sic] than its non-existence. This is a requirement of the law on evidence under sections 10 and 11 of the Evidence Decree[sic].” In cross-examination of Accused by Prosecution, the following, inter alia, transpired: “Q. Do you know one Opanyin Adamu. A. Yes. Q. I am putting it to you that you went to the said Opanyin Adamu to seek permission from him to dismantle the said milling machines. A. It is not true. It is my brother called Kwaku Konadu who went to the said Opanyin Adamu to tell him that Complainant was not paying the rent and so he(Kwaku Konadu) was seeking permission for him(Opanyin Adamu) to go and remove the metals which were left on the land after Complainant had removed the milling machines. Q. I am putting it to you that you are not truthful to this Court. A. I am being truthful to the Court. Q. In Exhibit A, you stated that you and one Opanyin Anthony Annor and others went to Adamu that you wanted to develop the land and that Complainant was not paying rent and he was no more on the land and Adamu gave you instructions to go and dismantle the remains of the milling machines and pack all well somewhere. I am therefore putting it to you again that you are not being truthful to the Court. A. I did not say that to the police. … Q. I put it to you that you and five(5) others dismantled the remainder of the milling machines. A. It is not true. It was after Complainant had removed the milling machines from that structure that the said Adamu asked my brother called Osei Damoah alias Osei Yaw to remove the skeletal parts of the machines that were left there and park them somewhere. … Q. I put it to you that you ie Accused person herein went to Adamu to seek permission to remove the remaining parts of the milling machines and take the land, as you stated in your investigation cautioned statement. A. It is not true. It was Adamu who told Osei Yaw to remove the skeletal remains of the milling machines for us to take possession of the land as Complainant had earlier removed the main parts of the milling machines.” Section 80 of the Evidence Act states: (1) Except as otherwise provided by this Decree, the court or jury may, in determining the credibility of a witness, consider any matter that is relevant to prove or disprove the truthfulness of his testimony at the trial. (2) Matters which may be relevant to the determination of the credibility of the witness include, but are not limited to the following: (a) (b) the the demeanour substance of of the the witness; testimony; (c) the existence or non-existence of any fact testified to by the witness; (d) the capacity and opportunity of the witness to perceive, recollect or relate any matter about which he testifies; (e) the existence or non-existence of bias, interest or other motive; (f) the character of the witness as to traits of honesty or truthfulness or their opposites; (g) a statement or conduct which is consistent or inconsistent with the testimony of the witness at the trial; (h) the statement of the witness admitting untruthfulness or asserting truthfulness. In Ntiri v. Essien [2001-2002] SCGLR 451, it was held that the trial judge has the duty to ascertain credibility of a witness. Looking at the statement Accused gave in Exhibit A as against his testimony in court vis-a- vis his answers under cross-examination, it can be seen that Accused is not a credible witness. It was held in Commissioner of Police v. Isaac Antwi[1961] GLR 408 SC, per Korsah CJ that: “The fundamental principles underlying the rule of law that the burden of proof remains throughout on the prosecution and that the evidential burden rests on the accused where at the end of the case of the prosecution an explanation is required of him, are illustrated by a series of cases. Burden of proof in this context is used in two senses. It may mean the burden of establishing a case or it may mean the burden of introducing evidence. In the first sense it always rests on the prosecution to prove the guilt of the accused beyond reasonable doubt; but the burden of proof of introducing evidence rests on the prosecution in the first instance but may subsequently shift to the defence, especially where the subject-matter is peculiarly within the accused's knowledge and the circumstances are such as to call for some explanation.” The learned judge continued, referring to Archbold's Criminal Pleading, (34th ed.) at p. 371, para. 1001, that: "Where the prosecution gives prima facie evidence from which the guilt of the prisoner might be presumed and which, therefore, calls for an explanation by the prisoner and no answer or explanation is given, a presumption is raised upon which the jury may be justified in returning a verdict of 'guilty'. But if an explanation is given by or on behalf of the prisoner which raises in the mind of the jury a reasonable doubt as to his guilt, he is entitled to be acquitted, because if upon the whole of the evidence in the case the jury are left in a real state of doubt the prosecution has failed to satisfy the onus of proof which lies upon them." Accused failed to produce cogent evidence to seek to counter the prosecution’s evidence against him. Accused also failed to explain himself away on count one. On a criminal charge such as stealing, there must be the guilty mind also known as men rea which must agree with the wrongful act which is known as actus reus, for there to be said that such a crime has taken place. See R v. Tolson (1889) 23 QBD 168. Section 122(2) of Act 29 states, inter alia: An appropriation of a thing in any other case[apart from that stated in subsection 1] means any moving, taking, obtaining, carrying away, or dealing with a thing, with the intent that some person may be deprived of the benefit of his ownership, or of the benefit of his right or interest in the thing, or in its value or proceeds, or any part thereof. In the instant case, though the prosecution proved that the accused acted wrongfully by removing the items as mentioned in count two and took them somewhere, they failed to establish that Accused had the mens rea. I find Accused Not Guilty on count two and acquit him on that count. On count one, I find that Accused is liable for causing damage to the items mentioned in that count; I hereby pronounce Accused Guilty on count one and convict him accordingly. Section 148 of Act 30: (1) A person who is convicted of felony or misdemeanour may be ordered by the Court to make compensation to any other person injured by that offence. (2) A person who is convicted of an offence on summary conviction may be ordered by the Court to make compensation, not exceeding an amount of money equivalent to five hundred penalty units, to any other person injured by that offence. (3) The compensation may be in addition to or in substitution for any other punishment. In accordance with section 148(1) of Act 30, Accused is ordered to pay compensation of GH¢10000.00 to Complainant herein as compensation for the damage caused to the said items as in count one of the charge sheet. Accused is sentenced to pay a fine of one hundred(100) penalty units and in default serve six(6) months imprisonment in hard labour. Accused is ordered to sign a bond to be of good behaviour and to keep the peace for a period of one(1) year and if he breaches the bond, he will serve another six(6) months imprisonment for breaching the terms of the bond. (SGD) HH YAW POKU ACHAMPONG CIRCUIT COURT JUDGE 08/12/2023 14