REPUBLIC VRS BONNIE (BR/SY/CT/352/2021) [2024] GHACC 141 (11 January 2024)

IN THE CIRCUIT COURT HELD AT GOASO IN THE AHAFO REGION ON THURSDAY THE 11TH DAY OF JANUARY 2024 BEFORE HIS HONOUR CHARLES KWASI ACHEAMPONG ESQ. CIRCUIT COURT JUDGE BR/SY/CT/352/2021 THE REPUBLIC VRS. ERNEST BAFFOE BONNIE JUDGMENT Section 69 of Act 29/1960 provides that, “a person who intentionally and unlawfully causes harm to any other person shall be guilty of second-degree felony”. This is the offence which the accused person has been charged with and the basis for same lies in Prosecution’s assertion that, accused person used an axe to inflict wounds to the back and left palm of complainant. According to Prosecution on the 25th of April 2021 complainant created an access road to the community which passed behind accused person’s house. When complainant attempted to ply the road he created with his vehicle later that day, he realized that someone had placed a log in the road ostensibly to impede the movement of any vehicle. Despite seeing accused person and a certain woman standing together by the said road, complainant without any enquiry got down from his vehicle and removed the log from the road thereupon accused pushed the log back onto the road. Prosecution allege that complainant immediately attempted to roll the log once 1 more out of the road but while in a bent position he felt a sharp impact on his back. Upon lifting his head, complainant realized that he had been struck with an axe by the accused person. Accused in an attempt to deliver another blow with the axe, was impeded when complainant blocked same using his left palm thereby sustaining an injury. A scuffle subsequently ensued as the complainant attempted to disarm accused person. Other persons joined the fray all in an attempt to disarm accused person which they eventually did. A complaint was lodged with the police leading to the arrest of accused upon which he was charged with the offence above stated. Upon his arraignment on the 5th of May 2021, accused person pleaded not guilty to the offence thus saddling Prosecution with the onerous burden of establishing its case beyond reasonable doubt as provided in Section 11 (2) of the Evidence Act 1975 (NRCD 323) to the effect 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 burden to be discharged by Prosecution is so mandatory that “no attempt to whittle it down can be entertained” by the Court. (See: Woolmington vrs. DPP (1935) 2 CR APP R 72 at 95). The accused person is thus “not required to prove anything”. (See: COP vrs Isaac Antwi [1961] GLR 408). In fact he may decide to remain silent throughout the trial and may simply seek to raise a reasonable doubt in the case of Prosecution. With regards to the offence in question, that is causing harm the elements that make up the offence are as follows; 2 a. That harm must have been caused to the person of another; b. That it was accused person who caused the harm; c. That the harm must have been intentionally caused; d. That the harm was unlawful. The first issue for determination is whether or not any harm was caused to complainant? In this regard, Prosecution contended that complainant sustained injuries to his back and left palm. In fact, complainant (Pw1) confirmed the injuries he sustained when he described how the injuries occurred. He testified to the effect that on the day of the incident when he bent down to remove the log from the road the second time, “I felt that someone had used a sharp implement to hit my back and I sustained injury…”. Pw1 further stated, “…I then decided to use my left hand to block the axe from inflicting more wound on me but the axe eventually hit my left palm hence another wound was inflicted in my left palm…”. Prosecution did not end there by proceeded to tender a medical report dated the 25th of April 2021 which was marked as Exhibit C. this medical report confirmed that complainant had indeed sustained injuries to his back and left palm. The Medical Officer in the person of one Dr. Afrifa Peter Kwaku described his observations per Exhibit C as follows; “He [complainant] was alert and conscious, mildly pale, afebrile, well hydrated, in obvious pain with laceration at left palm about 4cm in length and another laceration at low back (lumber spine area) about 5cm in length and 2 cm deep which was actively bleeding” The fact that complainant sustained these injuries were neither disputed by accused person nor his lawyer. Accused person only disputed the manner in which the injuries 3 were sustained which shall be discussed shortly. Accordingly, I find that, complainant duly sustained injuries to his back and left palm as depicted in Exhibit C. Do these injuries constitute harm within the meaning of the law? Certainly so, for Section 1 of Act 20/1960 provides that, “harm means any bodily hurt, disease, or disorder, whether permanent or temporary”. Consequently, the injuries sustained by complainant were harm caused him within the meaning and intent of the law. The next issue and probably the most crucial is to ascertain who caused the harm to complainant? While Prosecution and its witnesses contended that the harm was caused by accused person, accused person held a contrary view. According to Pw1 when he bent down to roll the log away from the road the second time, he felt that someone had used a sharp implement to hit his back and realized that it was accused person who had hit him with an axe. He alleged that he, “…saw the accused person with an axe in his hand raised up in an attempt to hit me again” the second time and that was when he attempted to block the impact by using his left palm. The resultant strike unfortunately landed on his left palm thereby causing another injury. These facts were denied by accused person who, during the cross examination of Pw1 sought to put across his position, through Counsel, as follows; Q. When you set out at 5pm to test the road you had constructed, you had your weapon, the axe, in the car? A. Not true. Q. When you went back to the car after seeing that accused had blocked the road with a log you took out the axe to attack the accused but accused resisted your attack? A. Not true. 4 Q. In the ensuing scuffle between you and the accused, accused threw you to the ground in his attempt to disarm you. A. Not true. Q. You fell on the axe and unsuccessfully struggle to free yourself from accused person but got injured in the process. A. Not true. In other words, accused person sought to alleged that the injury sustained by complainant (Pw1) did not arise from any attack or blow emanating directly from him (accused) but rather that the injuries sustained by complainant were as a result of him falling on his own axe. With these two opposing contentions having been brought to the fore, the onus fell upon Prosecution to establish beyond reasonable doubt that it was accused person who inflicted the harm on complainant. Prosecution called four (4) other witnesses in support of its case but the testimony which this Court deems most relevant was that of Solomon Ativor (Pw2) who was present during the incident and witnessed same first hand right from its inception to its conclusion. None of the other witnesses of prosecution saw who inflicted the harm save Pw2. It is thus essential that the testimony of Pw2 be gone over with a fine-tooth comb. According to Pw2, he was moulding blocks close to the scene where the incident happened. Under cross examination he indicated that he was just about 10 to 15 feet from the scene. He stated that on the day of the incident he saw complainant weeding, cutting tree stumps and levelling parts of a road that passes through the back of accused person’s house and upon completion complainant left. He later saw that accused person had crossed the road earlier created by complainant to another house and on his return, he overheard accused person say to the effect that he would see how that road would be used by anyone. Some few minutes later, Pw2 alleges that, he saw that accused person had come out of his house and was standing behind his house while talking to someone 5 on phone. Pw2 indicated that he observed that accused person had in his possession a polyethylene bag which he kept under his armpit but did not know its contents. Accused then pushed a log across the road. According to Pw2, when complainant got to the scene in his car, he alighted and rolled the log from the road but accused pushed the log again onto the road. At that point complainant went the second time to remove the log from the road but this time when he bent down to do so, accused person “removed the polyethylene bag under his armpit with its content, held it in his right hand and used it to hit the back of Pw1”. This statement is very instructive, but may appear a bit ambiguous as it tends to connote two meanings, to wit that the implement was removed from the black polyethylene bag and was used to hit complainant’s back or that the implement still in the black polyethylene bag was used to hit complainant. Clarity was brought to bear during cross examination when Counsel for Accused person asked Pw2 as follows; Q. What did accused person say? A. I saw accused talking on phone. He had something in a black polyethylene bag under his armpit. As Pw1 was approaching in his vehicle, I heard accused telling the person on the other side of the call that he should hold on since Pw1 was coming and he would see where he would pass. Accused started pushing the logs to the road. So Pw1 stopped to remove the logs from the road. However, as Pw1 was removing the logs, accused was pushing the logs onto the road. All I heard was that, Pw1 shouted “what have you used to cut me”. At that point I did not see the implement accused was holding because it was in a black polyethylene bag. By the time we rushed to the scene we saw that Pw1 was struggling to hold the axe which accused used to cut his back and palm. Later the wife of Pw1 came to the scene shouting. We struggled to take the axe from accused but it was difficult. It was until another man came to the scene and assisted in retrieving the axe from accused. 6 Thus, from the above evidence, Pw2 contended that; i. It was Accused person who first struck complainant; ii. Accused person struck complainant with an implement concealed in a black polyethylene bag under his armpit. iii. Accused did so without removing the implement from the black polyethylene bag. iv. The implement concealed in the black polyethylene bag was an axe. This Court found no reason to doubt the evidence of Pw2 given the fact that there were no material inconsistencies in his evidence. In the course of trial, it turned out that there was another witness present who initially was to have been a witness for accused person, but was eventually subpoenaed to testify and when she appeared she testified as a court witness. This Court witness (CW1), was in the person of Theresa Dukpo and she testified to the effect that on the day of the incident she visited her mother’s house which adjoins that of accused person and when she was leaving she met accused person in his house. The latter offered her food to eat but she politely refused. Accused then offered to escort her and that was when they saw complainant driving towards them. Cw1 alleged that the road in question was created by complainant and when he got to a portion, accused person blocked it with a log. Complainant got out from his vehicle and removed the log but accused placed the log in the road again. Cw1 then stated; “On this second time around the two of them started fighting. A gentleman was moulding blocks on my mother’s plot of land and came to the scene but he was not 7 separating them but rather joined in the fight…I took a stick which I used to hit all of them severally until the stick broke into pieces. An axe was used during the fight. Complainant got injured so he left for town…” Cw1 did not indicate who struck the first blow prior to the scuffle between the complainant and accused person. In fact, she later indicated that she did not see Accused person wielding an axe prior to the incident. Interestingly however upon enquiry by the Court Cw1 made the following admissions; Q. You stated that an axe was used during the fight. Who brought this axe to the fight? A. I did not see who brought the axe to the fight but after the separation the axe was retrieved from the accused person. Q. In the course of the fight did you see the axe being used on any one? A. Yes. It was accused who used it to injure complainant. Consequently, one observes that the testimonies of Pw2 and Cw1 corroborated each other to the extent that the harm was caused to complainant by no other than accused person and that the implement used in causing the said harm was the axe. It is not surprising that Cw1 alleged that prior to the scuffle she did not see accused person wielding any axe. This Court finds that Cw1 held that assertion based on the fact that the axe was concealed in a black polyethylene bag as earlier testified to by accused person and corroborated by Pw2, and thus Cw1 could not have seen it prior to the altercation. Despite having not seen the axe prior to the incident, Cw1 saw that it was used to cause harm to complainant. It is therefore the finding of the Court that it was accused person who caused the harm to complainant and none other. 8 Did accused person cause the harm intentionally? The respective testimonies of complainant (Pw1) and Pw2 are indicative of the fact that the harm was caused intentionally. The deduction that can be made from their respective testimonies is that, the fact that accused person placed the axe in a black polyethylene bag to conceal it and subsequently brought same to the scene is indicative of a premeditated intent to perpetrate the act complained about. On the other hand, accused person denied ownership of the axe and denied striking complainant with same. He testified at paragraphs 13 and 14 of his witness statement as follows; “13. He got angry and went to his car and brought out an axe. 14. Between where I stood and his car there was no way I could escape from him, so I had to tackle him. We both fell to the ground and George Agyei fell on the axe”. If indeed, the axe belonged to complainant and accused person’s contention as to how the injuries sustained by complainant came about are established, the element of intention on his part is eliminated and Prosecution’s case must fail. One thing about „intention‟ the „mens rea‟ is that it cannot be known by merely looking at the facial expression of an accused person. As the saying goes, “...the thought of man is not triable, for even the devil does not know what the thought of man is...”. (See: Brogden vrs. Metropolitan Railway Company [1893]1 Q.B 256). Thus the intent of an accused person can only be ascertained from the circumstances surrounding the case. Firstly, both Pw2 and Cw1 who were present when the incident commenced did not see complainant bringing out an axe from his vehicle had it been so, they would have stated so. The evidence on record rather suggests that at all material times, the concealed axe and its subsequent revelation, was in the possession and control of accused person and 9 that is why all the witnesses who were present at the scene, including Cw1, testified to the effect that the axe was eventually retrieved from accused person. It was only accused person who held a contrary view to the effect that the axe was retrieved from underneath complainant which was not corroborated by any evidence on record. This Court therefore finds that the axe was brought to the scene by accused person and remained in his possession up until he was dispossessed of same. Furthermore, the injury to complainant’s left palm appears commensurate with a defensive wound which accords with the evidence of complainant to the effect that in his attempt to prevent the second onslaught by accused person with the axe, he used his left palm to block same thereby sustaining the injury. On his part however, accused person alleged that complainant sustained injury to his back when he fell on it at the time he, accused person, tackled him defensively. Assuming this explanation is deemed plausible same however offers no reasonable explanation to the injury sustained by complainant to his left palm. This Court therefore finds as established the following facts; i. On the day of the incident accused person brought to the scene an axe concealed in a black polyethylene bag. ii. Accused person struck complainant’s back with the axe while same was still concealed in the black polyethylene bag. iii. Accused person attempted to strike a second time but this was blocked by complainant with his left palm. Based on the above established facts, this Court finds that accused person intentionally caused harm to complainant. The last element to be established is whether the harm was unlawful. 10 Section 76 of Act 29/1960 provides that, “harm is unlawful which is intentionally or negligently caused without any of the justification mentioned in Chapter I of this Part”. The justification referred to relates to section 31 which provides that; “Force may be justified in the cases and manner, subject to the conditions, hereinafter in this Chapter mentioned, on the ground of any of the following matters, namely (a) express authority given by an enactment; or (b) authority to execute the lawful sentence or order of a Court; or (c) the authority of an officer to keep the peace or of a Court to preserve order; or (d) authority to arrest and detain for felony; or (e) authority to arrest, detain, or search a person otherwise than for felony; or (f) necessity for prevention of or defence against crime; or (g) necessity for defence of property or possession or for overcoming the obstruction to the exercise of lawful rights; or (h) necessity for preserving order on board a vessel; or (i) authority to correct a child, servant, or other similar person, for misconduct; or (j) the consent of the person against whom the force is used”. From the defence of accused person, the closest justification that could be said to enure to the benefit of accused person is that listed in Section 31(g) which is harm caused in, 11 “necessity for defence of property or possession or for overcoming the obstruction to the exercise of lawful rights”. Thus the onus rests upon accused person to establish that he caused the harm in question in defence of his property. From the respective testimonies of all the persons who testified in the course of trial, one fact which was not denied is that the incident took place in a road. Accused person chose to describe this road as a lane, alley or route but insisted that it was unapproved. Whether the road, lane, alley or route was unapproved is not of the essence. What is of the essence is whether or not the road, lane, alley or route belonged to accused person. In this regard accused person testified to the effect that on the day of the incident while at home he heard complainant and one Kwasi Ayarna cutting trees behind his house. He however did not confront them since he thought it was a communal labour taking place due to an earlier announcement to that effect. When the two men finished working, he realized that the trees behind his house and his flowers had been cut. Later that day Cw1 visited and as he was seeing her off he noticed that complainant was driving towards them in the alley between his house and that of Cw1 which he and Kwasi Ayarna had worked on earlier that day. Accused person protested to complainant alleging that the alley was not an approved route to which complainant did not accept. This led to a confrontation between him and complainant resulting in the injuries complained about. The issue therefore is, whether or not the alley, lane or the route in question formed part of accused person’s property? The onus fell upon accused person to establish his ownership of the said lane, alley or route. This issue is crucial to the resolution of the matter before the Court in the sense that, if accused person establishes ownership of the lane, alley or route one can conclude that he had every right to protect same. In this regard, accused person tendered a site plan marked as Exhibit 1 as well as a drawing of the scene marked as Exhibit 2. While Exhibit 1 is duly executed by the 12 Omanhene of Goaso as well as the Town Planning Officer of Goaso and appeared to emanate from an official source, Exhibit 2 on the other hand, bore no such official markings and Counsel for accused person in his written address filed on the 8th of November 2023 at page 17 indicated that Exhibit 2 was an explanatory sketch of the scene of the crime. Unlike Exhibit 1, this Court finds Exhibit 2 as a self-serving document whose authenticity cannot be independently verified. Exhibit 1 however confirms that plot number 42 is in the name of accused person. Exhibit 1 however does not depict the road, lane, alley or route in question and hence does not attribute any ownership of same to accused person. In any case, never at any point in time did accused person contend that the road, lane, alley or route belonged to him. If accused person claimed ownership of same, he would have clearly stated so in his evidence. His only contention was that the road, lane, alley or route was unapproved. This Court accordingly finds that, accused person had failed to clothe himself in any of the justifications available to him under section 31 of Act 29/1960. Consequently, the harm caused by accused person to complainant was unlawful. This Court hereby finds that Prosecution established its case against accused person beyond reasonable doubt. Accused person is hereby convicted of the offence. Taking into consideration the fact that accused person is a first time offender as he has no previous conviction and considering Counsel’s prayer to be lenient, this Court shall seek to balance the need to reform accused person while at the same time deterring like minded persons from committing similar crimes especially giving the fact that it is the penchant of person within the jurisdiction of the Court to settle scores by arming themselves with machetes and other deadly weapons in order to harm persons they disagree with. A development that needs to be nipped in the bud. It is therefore the considered view that a custodial sentence in this regard is appropriate. Accused person 13 is sentenced to serve a term of imprisonment of 15 months in hard labour. Given the nature of the injury sustained, this Court deems it appropriate for accused to pay a sum of GH₵2,500.00 to complainant which is a reasonable sum representing cost of medical treatment. Complainant may however sue for damages for a larger sum he deems entitled to. SGD H/H CHARLES KWASI ACHEAMPONG ESQ. CIRCUIT COURT JUDGE - GOASO 14