Republic Vrs Gakpo and Others [2023] GHADC 555 (23 January 2023)

IN THE DISTRICT COURT, DZODZE HELD ON MONDAY THE 23RD OF JANUARY, 2023 BEFORE HIS WORSHIP NELSON DELASI AWUKU DISTRICT MAGISTRATE. Case No. B1/10/22 THE REPUBLIC VRS AMETSI AMEWUGA GAKPO & 7 OTHERS JUDGMENT PARTIES COMPLAINANT PRESENT ACCUSED PERSONS PRESENT REPRESENTATION CHIEF INSPECTOR HAMID MOHAMMED FOR PROSECUTION PRESENT BACKGROUND The accused persons were arraigned before this Court on 7th December, 2021 on charges of Conspiracy to commit crime to wit threat of death contrary to sections 23 and 75 of the Criminal Offences Act and threat of death contrary to Section 75 of the Criminal Offences Act, 1960 (Act 29). BRIEF FACTS 1 | P a g e The facts as attached by the Prosecution stated that the complainant Rita Anyidoho is a trader and a native of Klikor and lives in the same vicinity at Huive with all the accused persons, namely, Ametsi Amewuga Gakpo, John Gborgla, Wisdom Gakpo, Bessa Gakpo, Dzakosi Ametsi, Ahor Ametsi and Kofi Ametsi Atokple. The Prosecution stated that on the 8th day of October, 2021 around 9:00am, the complainant was in her house with PW2, Lucia Amenuku conversing when to their surprise, the accused persons wielding a catapult and other offensive weapons and passing through their house suddenly stopped and walked towards the complainant. The Prosecution stated that the accused persons threatened to kill the complainant and poison her children for causing their arrest by the police. The Prosecution stated that A4 in the process pulled out the catapult and attempted to strike the complainant but rescinded his decision. The Prosecution stated that the complainant reported the incident to the police on the same day and the accused persons were subsequently arrested but denied the offence in their cautioned statements. The accused persons were arraigned before the court after police investigations. PLEA OF ACCUSED The accused persons pleaded not guilty to the offences when the particulars of the offences were read and interpreted to them and were all admitted to bail. 2 | P a g e Witness statements of witnesses of prosecution together with charge statement and investigation caution statement of the accused persons were filed by the prosecution and served on them for trial. THE CASE OF PROSECUTION The prosecution called three witnesses, including the complainant and the investigator to prove his case. In his evidence to the Court, the first prosecution witness stated that, on the 8th of October,2021, she was in her house at about 9:00am with PW2 and her husband when seven men namely, Bessavi (A4), Dzakosi (A5), John Gborgla (A2), Ehor (A6), Amewugah (A1), wisdom (A3) and one other person whose name she has forgotten came to the house. PW1 stated that A4 was holding a catapult while A5 held a gun and A4 pointed the catapult at her accusing her to have caused their arrest by the police. PW1 stated that A4 threatened that they will kill her and thereafter poison her children. CASE OF ACCUSED PERSONS In their respective witness statements filed on 26th August, 2022 all the accused persons denied the allegation and stated that they did not even go to the house of the complainant on that day. FACTS 3 | P a g e From the evidence of witnesses for prosecution and the accused, the court finds the following as the facts; a. PW1 alleges that A1, A2, A3, A4, A5, A6 and one other person were in her house on 8th October, 2021. b. PW1 alleges that A4 in the midst of the other accused persons mentioned by her and in the presence of PW2 threatened to kill her and poison her children. c. All accused persons denied the offence and their presence in complainant’s house on the alleged date. THE LAW Burden of Proof 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 will find the existence of the facts beyond reasonable doubt. See Section 11(2) of the Evidence Act, 1975 (NRCD 323) and the cases of Kingsley Amankwah (a.k.a Spider) v. The Republic [2021] DLSC10793 at pages 25-26 per Dotse JSC and Frimpong alias Iboman v. The Republic [2012] 1 SCGLR 297. In the case of Ali Yussuf Issa (No.2) v. The Republic [2003-2004] SCGLR 174, it was held that the burden of proof has two components, the duty to lead evidence on any fact required to be proved and the duty to provide sufficient evidence to persuade a reasonable mind as to the existence of any such fact. See also Kweku Quaye alias Torgbe vs. The Republic [2021] DLSC10794 at page 9-10 per Prof. Mensa Bonsu, JSC. The extent of the onus on the accused on the other hand is provided by section 11(3) of the evidence Act 1975 which states; 4 | P a g e “In a criminal action, the burden of producing evidence, when it is on the accused as to a fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on the totality of the evidence a reasonable mind could have a reasonable doubt as to guilt”. See also the case of COP v. Antwi [1961] GLR 408. The Law on Conspiracy Section 23(1) of the Criminal Offences Act, 1960 (Act 29) in defining the offence of conspiracy states that; “where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet the criminal offence” In the case of The Republic v Ernest Thompson & Others [2021] DLSC 10174 at page 10174 the court stated that; “under the definition of the offence of conspiracy, a conviction could be secured upon proof of the following ingredients; i. ii. Prior agreement for the commission of a substantive crime; Acting together in the commission of the crime in circumstances which show that there was a common purpose; iii. Previous concert even if there was evidence that there was previous meeting to carry out the criminal conduct” See also the cases of Francis Yirenkyi v The Republic (2016) 99 GMJ 1 SC and Agyapong v The Republic [2015] 84 GMJ, 142, CA. Same elements were stated in the case of Republic v Baffoe Bonnie & Others (Suit No. CR/904/2017) (Unreported) dated 12th May 2020, where the elements of conspiracy were outlined by the court in the words as follows; 5 | P a g e “For prosecution to be deemed to have established a prima fascie case, the evidence led without more should prove that: a. That there were at least two or more persons b. That there was an agreement to act together c. That the sole purpose for the agreement to act together was for a criminal enterprise”. The effect of the principles in the above authorities is that, persons accused of conspiracy must not only be established to have agreed to act but there must be an agreement to act together for a common purpose to commit crime. It is also significant to note that, under the new formulation of the law on conspiracy as defined by the Supreme Court, a person could no longer be guilty of conspiracy in the absence of the evidence of any prior agreement. See KINGSLEY AMANKWA (a.k.a SPIDER) vs. THE REPUBLIC [2021] DLSC 10793 @ page 28 per Dotse JSC. Threat of death A person who threatens any other person with death, with intent to put that person in fear of death commits a second degree felony under section 75 of the Criminal Offences Act, 1960 (Act 29). In the case of Behome v The Republic [1979] GLR 112, it was held that, “in the offence of threat of death, the actus reus would consist in the expectation of death which the offender creates in the mind of the person threatened whilst the mens rea would also consist in the realization by the offender that his threats would produce that expectation.”. ANALYSIS AND EVALUATION OF EVIDENCE For the purposes of Count one in respect of the offence of conspiracy, the prosecution per the elements required as established in the cases of The Republic v. Ernest Thompson & 6 | P a g e Ors and Republic vs. Baffoe-Bonnie(Supra) had a duty to adduce evidence to establish the fact of a prior agreement between the accused persons or together with any other party to act in common purpose towards the commission of any substantive offence. The evidence of PW1 was that she was in the house with PW2 when A1, A2, A3, A4, A5,A6 and one other person who she had forgotten surfaced in her house. PW2 confirmed the assertion by PW1 when she mentioned that A2, A3, A4, A6, A7 and two others as the people who allegedly came to the house. The expectation by the court was for prosecution especially through PW3, the investigator to establish the basis for the conclusion that there was an agreement by the accused persons to act together in this alleged criminal enterprise since crime cannot be constituted on the bases of mere inferences or suspicions. The court was not told about where the accused persons met, when and what activities or interactions were intercepted as evidence of the alleged conspiracy. For a conviction in a criminal case on the offence of threat of death, it will be important to establish the following; i) ii) That the accused actually threatened the complainant with death. That the threat was with the intent to put that person in fear of death. Although all the accused persons have denied the allegation, it is significant to take a look at paragraphs 2 to 6 of the complainant’s witness statement reproduced below; “2. That Bessavi was holding a catapult while Dzakosi was also holding a gun. 3. That the suspect Bessavi pointed the catapult at me. 7 | P a g e 4. That he said you people brought police to come and arrest us. 5. That you made them entered our room whiles our wives were naked. 6. That he continued and said we will kill you and thereafter poison your children”. From the evidence of PW1, it was A4 who actually uttered the words which is alleged to constitute a threat to kill. The doubts in the mind of the court as to whether A4 if he indeed uttered those words spoke for himself or on behalf of all the others were cleared by paragraphs 3 and 4 of the evidence of PW2. “3.That suspect Bessavi mentioned the complainant’s name and said I will poison you to death. 4. That he continued and said I will kill your children too”. The evidence of both witnesses for prosecution suggest that even if there was any threat it was A4 who issued the alleged threat. Having denied the alleged offence in his witness statement, it was for prosecution to prove to the court that A4 was actually in the house on the said date and issued the words as alleged. Both PW1 and PW2 are competent witnesses whose credibility the court has no bases to doubt. However, the evidence of prosecution would have been enhanced further if there were accounts from other persons who witnessed the events of that day. The claim by the accused persons that the complainant is being used by her husband to fabricate the accusations against them because of the land dispute they are having with him is considered untenable. 8 | P a g e In his cross examination of PW2 on 8th April, 2022 A1 who had earlier denied in his witness statement that he never went of the house of the complainant contradicted himself by admitting that they were there but did not threaten anyone and did not carry any weapons. Extracts of the proceedings for the day are reproduced below; A1. Is there not a land dispute between us and your husband? PW2: I am not aware A1: What do you think would have been the cause of what you are alleging we did? PW2: I don’t know A1: I am suggesting to you that it was after your husband caused our arrest for erecting a red flag on the farm that we came to your house to warn you that what he did was wrong? PW2: I don’t know anything about that A1: I am finally putting it to you that we only came to inform your husband that he did not do well. We had no weapons? PW2: That is not true. You came with weapons On 13th September, 2022 during his cross examination by prosecution, A1 admitted again that they were in the house but only to warn the husband of the complainant. 9 | P a g e The admission by A1 that they were actually in the house of the complainant corroborates the evidence of PW2 as against the evidence of the other accused persons. A1, A2, A3, A4, A5 and A6 according to the evidence of A3, A4 and 5 were not at the scene on the day and could not have done what they are being alleged to have committed since they were at the Assembly man’s place. Only A7 stated that he was not part of those who went to the place of the Assembly man and the evidence of some of the accused persons confirmed same. The evidence that A1, A2, A3, A4, A5 and A6 were with the Assembly man on the said day was also weakened by the failure of the accused persons to call him as a material witness. The effect of the contradictions, admissions and failure to call some material witnesses by the accused persons give credence to the fact that all of them apart from A7 were in the house of the complainant. The claim by A7 that he was not in the house of the complainant on the said day is strengthened by the fact that PW1 could not name him as one of the people who came to the house since she claimed to have forgotten. However, by the evidence given by PW1 and PW2, it is A4 who specifically issued the threats. In the case of Behome v The Republic [1979] GLR 112, it was held that, “in the offence of threat of death, the actus reus would consist in the expectation of death which the offender creates in the mind of the person threatened whilst the mens rea would also consist in the realization by the offender that his threats would produce that expectation.”. As stated above, the court does not find any bases to doubt the credibility of PW1 and PW2 and the fact that the incident as alleged actually did occur. 10 | P a g e The issue however is whether whatever transpired did create in the mind of the complainant the expectation of death and whether it was within the realization of A4 that his threats would produce that expectation. The facts and the evidence before the court does not suggest that there was the expectation of death and it was within the intendment of A4 that his action was to create an expectation of death in the mind of the complainant. Rather what may have driven the accused persons to the house of the complainant as already hinted by some of them are the issues in relation to the land which they are claiming ownership to. It can be inferred that the intention of A4 in acting together with the other accused persons was to prevent the husband of the complainant and his family from claiming ownership to the land. CONCLUSION The Court on the basis of the above reasoning did not find that the burden has been sufficiently discharged by the evidence put before it. The accused persons are acquitted and discharged in respect of both counts. Where a person is charged with an offence and facts are proved which reduce it to a lesser offence, that person may be convicted of the lesser offence although not charged with it. See section 154(2) of the Criminal and Other Offences Procedure Act, 1960 (Act 30). Based on the facts and evidence in this case, A1, A2, A3, A4, A5 and A6 are convicted for the lesser offence of being on premises for unlawful purpose contrary to section 155 of the Criminal Offences Act, 1960 (Act 29) and sentenced to a fine of twenty-five penalty units each and in default to three months imprisonment. 11 | P a g e NELSON DELASI AWUKU MAGISTRATE 12 | P a g e