REPUBLIC VRS AGBOTSE (B4/11/2021) [2023] GHADC 1157 (27 February 2023)

IN THE DISTRICT MAGISTRATE COURT, HELD AT AGBOZUME ON TUESDAY THE 27TH DAY OF FEBRUARY, 2023 BEFORE HIS WORSHIP IDDRISU ISSAH ESQ., THE DISTRICT MAGISTRATE 1 COURT CASE NO. B4/11/2021 THE REPUBLIC VERSUS EDEM AGBOTSE ----------------------------------------------- JUDGMENT: The prosecution instituted the charge of assault on the accused person, Edem Agbotse. He pleaded not guilty to the charge. Brief facts to this case are that the complainant in the case is Enyonma Ayem, a petty trader who resides at Gbubla a suburb of Aflao whilst the accused person Edem Agbotse also a petty trader lives at Rainbow, a suburb of Aflao. On the 8th of October, 2020 at about 11: 00 a.m the complainant was on her way to visit her parents when she met the accused person. The accused person held the complainant at her throat. In the process of freeing herself from the accused person’s grip she sustained bruises. The accused person was invited for questioning and subsequently charged. 1 2 The prosecution invited two witnesses to its case. They were Enyonam Ayem (PW1) and the police investigator, Paul Ellonye (PW2). The PW1 stated that on the 8th of October, 2020, at around 11:00 a.m she was on her way to visit her mother when suddenly someone gripped her neck. She struggled to free herself because she was carrying a child at her back. She sustained a bruises around the neck. Besides the accused person threatened to deal with her mother and sister when she meets them. The PW2 also stated that it was on the 8th of October, 2020 that the PW1 reported the matter. He was made to conduct investigation into the matter. Upon the investigation the accused person was charged. Also he issued a medical form to the PW1 to attend hospital. The PW2 tendered in various statements in evidence as exhibits A, B and C. The medical form was tendered and marked as exhibit D. The accused person also stated that on the 5th of October, 2020 the complainant and their parents attacked her when she come back to rescue her son from them. The police were invited into solve the matter. However three days later she met the complainant alone. She told the complainant that she could also do whatever she wanted with her since her parents were not around. The complainant dared her to do what she could. They exchanged insults and pointed fingers at each other’s faces and nothing more. Given the evidence before it the court found the following as its findings of facts: (1) That the accused person had a grudge with the complainant’s family. (2) The accused person subsequently met the complainant at a lonely area. (3) The accused person and the complainant exchanged words. 2 3 Considering the facts of this case the relevant question for determination is whether or not the charge of assault against the accused person would stand. In our criminal trials, the burden of proof in the sense of the burden of establishing the guilt of the accused person is generally on the prosecution. The proof required of the prosecution is said to be proof beyond reasonable doubt. In the case of Miller Vrs. Minister of Pensions [1947]2 All ER 372 at 373 it was said per Denning J (as he then was) that: “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 defect the course of justice.” Section 86 (1) of the criminal offences Act 1960, Act 29 states 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, pains or fear or annoyance to the other person, or of exciting the other person to anger, that person forcibly touches the other person.” According to the section 86 (2), the application of the subsection (1) is subject to the following provisions: (a) Where the consent of the other person to be forcibly touched has been obtained by deceit, it suffices with respect to intention that the touch is intended to be a touch that is likely to cause harm or pain, or is intended to be a touch that, but for the consent obtained by the deceit, would have been likely to cause harm, pain, fear or annoyance or to excite anger. 3 4 (b) The slightest actual touch suffices for an assault and battery: if the intention is an intention as is required by this section 86 (2). Analyzing the evidence is its entirety the accused person is found guilty on the charge of assault against her. She is hereby convicted on the charge of assault. She is sentenced to thirty (30) penalty units or in default three months in prison. She is to pay GH₡300.00 as costs of medical expenses. H/W IDDRISU ISSAH ESQ., DISTRICT MAGISTRATE 28/02/2023 Boa./* 4