Republic Vrs Fagyi [2023] GHADC 297 (25 January 2023)

IN THE DISTRICT MAGISTRATE COURT HELD AT NEW TAFO-AKIM ON WEDNESDAY 25-01-2023 BEFORE HER WORSHIP JOSEPHINE SARFO (MRS.) COURT CASE NO.: B4/4/22 THE REPUBLIC VRS ISAAC TETTEY FAGYI ACCUSED PERSON - PRESENT D/C/INSPR. BARNABAS MENDS FOR PROSECUTION - PRESENT NO LEGAL REPRESENTATION FOR THE ACCUSED PERSON JUDGMENT The Accused Person herein (Isaac Tettey Fagyi) was arraigned before this Court on 18th May 2022 for the offence of Assault contrary to Section 84 of the Criminal Offences Act, 1960 (Act 29). The Accused pleaded NOT GUILTY to the charge preferred against him by Prosecution hence a full trial of this matter begun. THE CASE OF THE PROSECUTION The facts as presented by the prosecution is that Victoria Madjie, the Complainant and the Accused are both farmers and residents of Bomponso No.2 village. On 9/04/2022 at about 1:00pm, Complainant went in search of her livestock and realised that her pregnant sheep was missing. Complainant was informed by an informant that it was the Accused person who had caught the pregnant sheep in question. Later the Complainant met the Accused person with a kid of hers and inquired from him his reason for catching the kid. The Accused person replied that he intentionally caught the kid as a ploy to catch the mother (nanny goat). According to the Accused person, the animals had caused damage 1 to his farm produce. The complainant then asked the Accused person to calculate the cost of the damage caused for her to pay but he refused. This led to an exchange of words between them after which the complainant left the scene. The Accused person then pursued the Complainant and attacked her and in the process, his cutlass slashed the left eye brow of the complainant resulting in a deep cut. The complainant lodged a complaint with the Police and she was issued with a Police medical report form to attend hospital for treatment and endorsement. On 13/04/22, the Accused person was arrested to assist investigations. In his Cautioned Statement, the Accused admitted knocking the Complainant with his fist but denied injuring her with a cutlass. After investigations, Accused was charged with the offence per the Charge Sheet and put before this Honourable Court. The prosecution called two (2) witnesses. PW-1, Victoria Madji, who is the complainant, testified that the Accused person is her brother in law and they both live in the same area, however for some time now they have been at loggerheads. That on 9/04/22, she went looking for her livestock and realised that her pregnant sheep was missing. She was informed by someone that the Accused person had caught it. That she later met the Accused person with her young goat and inquired from him the reason for catching the goat. That the Accused person told her that he intentionally caught the goat to use it a ploy to catch its mother as it had caused damage to his crops. The Complainant stated that she asked the Accused person to calculate the cost of the damage for her to refund same to him but he refused. This resulted in an exchange of words between them and she later on left the scene. However, the Accused pursued her to insult her which she also retorted. According to the Complainant, the Accused whipped her with a cutlass and eventually slashed her left eye brow with it. That her dress got soaked with blood and she lodged a complaint with the Police and she was issued with a medical form to attend hospital for treatment and endorsement which she did and returned same to the police. 2 PW2, INSPR. Ben Fumador, the investigator herein testified next. He tendered in Evidence Exhibit A which is a picture of PW1 showing where she sustained the injury. Exhibit B which is a picture of the blood soaked dress of PW1, Exhibit C, which is the endorsed medical form of PW1, Exhibit D which is the Caution statement of the accused person dated 12th April, 2022. Exhibit E which is the Charge Statement dated 11th May 2022. He stated that on 09/04/22, he was on duty when PW1 came in with a cut on her left eye brow and a dress soaked with blood to lodge a complaint of assault against the Accused person. That he took statement from PW1, a photograph of where she sustained the injury was also taken and the blood soaked dress was also retained. That PW1 led the police to later on to arrest the Accused person. The Accused person did not cross-examine PW2 on his witness statement. THE CASE OF THE ACCUSED The Accused person testified that he lives in the same vicinity with the Complainant who is also the elder sister of his wife. He denied slashing the complainant with a cutlass and stated that for some time now the Complainant and him had been at logger heads due to the fact that the Complainant usually allowed her livestock to roam about in the vicinity causing damage to his crops and properties of other persons in their vicinity. According to the Accused person, on one of such occasions, he caught two goats and a sheep on his farm causing damage to his crops and sent them to the Odikro, Henry Tetteh (DW1), who after investigations revealed the owner of the animals to be the Complainant. According to the Accused person, DW1 invited complainant to caution her not to allow her livestock roam the vicinity but she did not honour the invitation and this caused DW1 to hand over the said animals to the Town and Country Planning Department at Kukurantumi. That on 9/04/22, he was on his farm when he realised that some goats were causing damage to his crops and due to the fact that they were many, he managed to catch an ewe and two goats. That after catching the said animals, he was on his farm when the Complainant 3 came there and begun to assault him verbally. The Accused person stated that the Complainant also told him to roast the animals he had caught and eat to which he also retorted that after roasting same, he was going to bring her part of it. That his reply did not enthuse the Complainant who kept on insulting him to the extent of calling him a fool. The Accused also insulted the Complainant that she is also a fool and this infuriated the Complainant causing her to slap the Accused on his right ear. The Accused person further stated that he was in the process of catching another goat which was destroying the crops when he received the slap on his right ear and being apprehensive of any further attack from the Complainant who was wielding a cutlass, he gave her a knock which landed on her left eye brow injuring her in the process. That the Complainant fell down and blood started oozing out of the injury she had sustained. According to the Accused person, his wife and one Linda came to the scene to separate them and he was asked to go home while they attended to the Complainant. The Accused person stated that he did not harm the complainant with a cutlass but knocked her in a bid to defend himself from the cutlass she was holding. The Accused person further stated that after the incident he decided not to lodge any complaint against the Complainant due to the close relationship between them. That the actions of the parties on the said day amounted to acts tending to disturb the public peace. However, the Complainant acting in bad faith and seeking to settle previous scores ignored calls from opinion leaders including DW1 for an amicable settlement and sought to pursue a criminal action against him. Henry Tetteh-DW1, testified for the Accused Person and stated that as the Odikro of Bomponso No.2 he was in his palace on one occasion, when the Accused person brought two goats and a sheep he claimed were on his farm causing damage to his crops and thus wanted him to summon the owners to caution them to cage their livestock. That his investigations, revealed that the animals belonged to the Complainant so he summoned her to his palace however the Complainant did not heed to the summons so after a month 4 he sent the animals to the Town and Country Planning Department at Kukurantumi. According to DW1, it was recently that he noticed that there has been a fight between the Accused person and the Complainant concerning the same issue of Complainant’s livestock causing damage to the Accused crops on his farm. DW1 stated that in a bid to settle the matter amicably, he summoned them to his palace however the Complainant failed to show up. BURDEN OF PROOF The proof required in a criminal case is proof beyond reasonable doubt. The Evidence Act, 1975 (NRCD 323), outlines this in subsections 11(2) and 13(1) 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. 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 burden is therefore on prosecution to prove its case beyond reasonable doubt. In the oft-cited case of Miller Vrs Minister of Pensions [1947] 2ALL ER 372 at 373 Denning J (as he then was) explained proof beyond reasonable doubt as follows: “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 … If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt”. 5 THE INGREDIENTS OF THE OFFENCE OF ASSAULT Section 84—Assault. A person who unlawfully assaults any person commits a misdemeanour. Section 85 of the Criminal Offences Act (Act 29) states as follows; (1) For the purpose of section 84, ‘assault’ includes (a) Assault and battery; (b) Assault without actual battery; and (c) Imprisonment (2) An assault is unlawful unless it is justified on one of the grounds mentioned in Chapter one of this part. Section 86—Definition of and Provisions Relating to Assault and Battery. (1) A person makes an assault and battery upon 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, or of exciting him to anger, he forcibly touches the other person. Prosecution must therefore satisfy the following elements of assault with battery as follows; a. A prohibited physical contact with another person without consent; 6 b. The prohibited physical contact must be intentional; c. The intentional act is to cause harm, pain, fear or annoyance to the person d. The conduct complained about should be unjustifiable under law. Proof of the assault must be established by evidence of conduct of the accused as falling within one or other of the definitions of assault in sections 86, 87 and 88 of Act 29; but proof of any act of the accused indicating an intention to use violence against the officer would suffice. See the case of Asante v. The Republic (1972) GLR 177. PW1 testified that the Accused person whipped her with a cutlass and eventually slashed her left eye brow with the cutlass as a result of a heated verbal exchange which ensued between her and the Accused person concerning the destruction of Accused person’s farm produce/crops by the livestock of PW1. The Accused person denied harming her with a cutlass but however in his evidence and under cross examination maintained that he did knock PW1 on her left eye but did not injure her with a cutlass as PW1 is alleging. The Accused asserted that it was as a result of PW1 having slapped him that he also retaliated by knocking her with his fist on the left eye side. It is therefore not in doubt that there was an actual touch of PW1 by the Accused Person. What is in issue is whether or not the touch by the Accused person was carried out by a cutlass. Exhibit C, the medical report of PW1 which was tendered in evidence by the Investigator, PW2, read as follows: “on presentation, there was a deep laceration above the left eye profusely bleeding. She complained of severe headache. The wound was immediately sutured and client discharged home on oral medications”. This piece of evidence is very instructive in determining whether or not the knock the Accused person gave PW1 on her left eye brow was effected by a sharp object (cutlass) or the mere hand/fist. The aforementioned report by the medical officer reveals that there was a deep laceration above the left eye profusely bleeding. In my opinion a knock using 7 one’s hand or fist could not occasion a deep laceration on the left eye brow of PW1. The deep laceration could have only been occasioned by a sharp object. It is important to state that the Accused person did not deny touching the Accused person physically on the left eye brow. He denied using a cutlass. Exhibit C however reveals that a deep laceration was occasioned by the physical touch of the Accused person on PW1’s left eye brow, the same area Accused admitted hitting PW1 at. The Accused in his defence asserted that he only knocked PW1 on the left eye brow side of her face as a result of a slap he received from her on his right eye and since PW1 was wielding a cutlass and was in an infuriated state, he anticipated that PW1 could harm him with the said cutlass so he gave PW1 a knock which landed on her left eye causing her to fall. The Accused person in essence raised the plea of Self defence in his defence for assaulting PW1. Section 85(2) of Act 29 stipulates that “an assault is unlawful unless it is justified on one of the grounds mentioned in Chapter one of this part”. Section 31 of Act 29 outlines the grounds on which force or harm may be justified, i.e. on which assault may be justified. Among others, self defence is one of the grounds on which assault may be justified. “The justification of self-defence was available to a charge of assault under section 51(1) of the Police Act, 1964, as in the case of any other assault, provided that the prior assault by the police was not justified”; see the Case of Asante v The Republic supra. In this case, the plea of self defence will only avail the Accused person if it is proved that the Complainant (PW1) had earlier assaulted the Accused person. The Accused in this case asserted that he gave PW1 a knock which landed on her left eye brow after having anticipated that PW1 could assault him with the cutlass she was wielding having earlier slapped him on his right ear. PW1 however, denied under cross-examination that she was neither wielding a cutlass nor did she initially slap the Accused person. Since there is no evidence on record that the Complainant slapped the Accused while wielding a cutlass, the retaliation of the 8 Accused in injuring her with a cutlass was unjustifiable and not commensurate with the slap he allegedly received from the Complainant. More so, there was no witness to the whole incident and the Accused person decided not to lodged a complaint against the Accused person for slapping him. The failure of the Accused in not reporting the altercation he had with the Complainant is very revealing indeed especially for someone who has admitted that he and the Complainant had been at loggerheads for some time meaning that there was indeed no cordial relationship between them prior to the incident and thus there was no relationship to be preserved in the first place. The Accused realising the strenuous relationship between the Complainant and him should have lodged a complaint of the whole incident with the police for the police to also commence investigations into same. Be that as it may the Accused has admitted knocking the Complainant with his fist and that in itself will suffice as an assault. I find therefore from the evidence before this Court that the Accused did slash and assault PW1 on her left eye brow with a cutlass without any justifiable reason. I equally find that the Accused’s plea of self defence was just an afterthought having realised the gravity of the injury he had caused to the Complainant with the cutlass. CONCLUSION Having examined the whole evidence on record, the court is of the considered opinion that the prosecution has discharged its burden of proof beyond reasonable doubt with regards to the offence of assault. Thus, the ingredients of the offence of assault has been proved beyond reasonable doubt by the Prosecution. Accordingly, the accused person is found guilty of Assault contrary to sections 84 of the Criminal and other offences Act, 1960 (Act 29). The accused person is therefore convicted for the crime of Assault contrary to section 84 of Act 29. SENTENCE 9 Mitigation of sentence by the accused person: I am pleading for mercy. I pray the court to temper justice with mercy. By Court: Considering the plea of the accused person for mercy or leniency and the fact that he has shown remorse, the Accused person is hereby sentenced to pay a fine of 30P/U in default 1month imprisonment. H/W JOSEPHINE SARFO (MRS.) SGD 10