REPUBLIC VRS ODWIRA (B1/33/2023) [2024] GHACC 79 (16 February 2024)

IN THE CIRCUIT COURT, MPRAESO, EASTERN REGION, BEFORE HER HONOUR MRS ADWOA AKYAAMAA OFOSU, CIRCUIT COURT JUDGE ON THURSDAY, THE 16TH OF FEBRUARY, 2024 __________________________________________________________________ B1/33/2023 THE REPUBLIC V MABEL OWUSU ODWIRA MAVIS ASANTEWAA EDWARD A. KORANTENG DANIEL OWUSU ANIM JONATHAN ……………………………………………………………………………………………………… ………………………. TIME: 8:52 AM ACCUSED PERSONS: A1 & A4 PRESENT A2, A3 & A5 ABSENT CHIEF INSPECTOR BEATRICE LARBI FOR THE PROSECUTION PRESENT P a g e 1 | 18 LAMBERT ASOBAYIRE ESQ PRESENT H/B FRANCIS OPOKU NSIAH FOR THE ACCUSED PERSONS JUDGMENT The accused persons herein were jointly charged and arraigned before this court on the 9th of November, 2022 for various offences under the Criminal Offences Act, 1960 (Act 29) as follows: Conspiracy to commit crime to wit stealing contrary to section 23 and 124, threat of death contrary to section 75 and stealing contrary to section 124. A2 and A5 were absent on the aforementioned date and so the pleas of A1, A3 and A4 were taken. They all pleaded not guilty to the charges. A2 and A5 appeared in court on the next adjourned date being the 7th of December, 2022 and the charges were read to them. They also pleaded not guilty to the charges. By the pleas of the accused persons the facts based on which the charges were laid were put in dispute and thus triggered the obligation on the prosecution to prove the guilt of the accused persons as required by the law. The facts presented by the prosecution in support of the charges are that the complainant Isaac Kwakye is a farmer and resides in his cottage farm house at the Saafram village near Kwahu Bepong. The complainant cultivates cocoa, banana, plantain and other farm crops on the farm land. A1, A2, A3, A4 and A5 also have a cottage at the Saafram village. From the month of February, 2022, the accused persons have been harvesting the farm products of the complainant. Any time the complainant approaches them, they would tell him the land on which he cultivates belongs to them. Efforts to stop the accused persons from harvesting the complainant’s farm products failed. P a g e 2 | 18 On 21st October, 2022, at about 12:00 pm, the complainant was in his cottage together with a witness in this case relaxing when the accused persons came to the cottage of the complainant and when the complainant asked of their mission, A2 asked the complainant whether he knows that it is the Aduana clan that occupies the stool at Bepong and the complainant said yes. A2 then told the complainant that then he should be as well aware that, the land in Bepong to Ntomem village belong to them because they are members of the Aduana clan. A2 went ahead and threatened the complainant to wit: “we are giving you one week to vacate from this cottage and land else what looks fine to you will be nasty soon”. This generated exchange of words and the accused persons left the house of the complainant. The complainant left home out of fear and reported the matter to the police. The accused persons were arrested, cautioned and granted court bail. After investigations they were charged with the offence as stated per the charge sheet and arraigned before this honourable court. As aforementioned, the plea of the accused person put the facts in dispute and therefore the prosecution assumed the burden to prove the gilt of the accused person because, unless an accused person pleads guilty or he is proven guilty, he is presumed to be innocent in terms of Article 19(2)(C ) of the 1992 Constitution of the Republic of Ghana which provides as follows: “A person charged with a criminal offence shall be presumed to be innocent until he is proved guilty or has pleaded guilty” In proving an allegation or an assertion whether in a civil or criminal matter, the Evidence Act, 1975 (NRCD 323) provides for the nature of proof and the required standard. In criminal matters Section 11(2) provides for the standard of proof as follows: Section 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 P a g e 3 | 18 that on all the evidence reasonable mind could find the existence of the existence of the fact beyond reasonable doubt. In explaining the nature and standard of proof required in criminal cases, the Supreme Court in Asante (No 1) v The Republic (No.1) [2017]-2020] 1 SCGLR 132 at 143, per Pwamang JSC held that: “Our law is that when a person is charged with a criminal offence it shall be the duty of the prosecution to prove his guilt beyond reasonable doubt, meaning the prosecution has the burden to lead sufficient admissible evidence such that on an assessment of the totality of the evidence adduced in court, including that led by the accused person, the court would believe beyond a reasonable doubt that the offence has been committed and that it was the accused person who committed it. Apart from specific cases of strict liability offences, the general rule is that throughout a criminal trial the burden of proving the guilt of the accused person remains with the prosecution. Therefore, though the accused person may testify and call witnesses to explain his side of the case where at the close of the case of the prosecution a prima facie case is made against him, he is generally not required by the law to prove anything. He is only to raise a reasonable doubt in the mind of the court as to his commission of the offence and his complicity in it except where he relies on a statutory or special defence” Lord Denning in the case of Miller vs. Minister of Pensions (1947) 2 All ER 372 explains the term ‘reasonable doubt’ thus: "It needs not reach certainty but 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 positions to deflect the course of justice" In order to discharge its burden of proof, the prosecution led evidence through three witnesses. P a g e 4 | 18 PW1, Isaac Kwakye the complainant testified that he lives and cultivates cocoa, banana, oranges and other crops on his farm land at Saafram village near Kwahu Bepong. In the month of August, 2022, the accused persons started visiting and harvesting his farm products without his consent and they told him the land belonged to them. He further testified that on the 21st of October, 2022, whilst he was in his cottage with PW2 at the Saafram village, he spotted A1, A2, A3, A4 and A5 coming towards his cottage. They arrived at the cottage and greeted him. He responded and offered them a seat and asked them of their mission. A2 asked him whether he knows the chieftaincy position in Bepong Town is occupied by the Aduana clan and he responded yes. A2 then told him that then he should as well know that the land from Bepong to Ntomem belongs to them for they are members of the Aduana clan. PW1 further testified that A1, A2, A3, A4 and A5 told him point blank that they give him one week to vacate from his cottage and land on which he cultivates else what is fine for him will be nasty to him soon. After making these threats they walked out of his cottage insulting him with continuous threat to his life. He immediately left home out of fear and reported the case to the police for assistance. PW2, Kwaku Billa, testified that on the material date, he was with PW1 at his cottage at Saafram sleeping. PW1 woke him up and told him they had visitors. He woke up and saw A1, A2, A3, A4 and A5 already sitting down. PW1 asked them what brought them to his house and A2 asked him whether he knows the chieftaincy position in Bepong is occupied by the Aduana clan and he said yes. A2 further said that she believed PW1 is very much aware that the land from Bepong to Ntomem village including the one he works on belongs to them for they are members of the Aduana clan. A1 ,A2, A3, A4 and P a g e 5 | 18 A5 threatened PW1 that they give him one week to vacate from his cottage and land on which he cultivates else what is fine for him will be nasty to him soon. PW2 continued that the threats from the accused person resulted in an exchange of words between the two parties. The accused persons left the premises of PW1 with continuous threats to his life. PW1 also left home and said he was going to report the case to the police. He was later called by the police and he submitted his statement. The investigator, No 54361 Detective Lance Corporal Kantab Elijah testified as PW3. He told the court that he is stationed at Kwahu Bepong as a station CID. That while on duty on the 28th of October, 2022, PW1 came with an extract of a threat of death case from the Mpraeso District Police Headquarters and same was referred to him for investigation. He obtained complainant and witness statements from PW1 and PW2 and visited the house of the accused persons and invited them to the Bepong police station to be cautioned on the case. On the 3rd of November, 2022, A1, A3 and A5 reported themselves at the charge office and they were arrested and detained and cautioned statements were taken from them on the same day after which they were granted bail. On the 4th of November, A2 and A4 also reported at the charge office, they were detained, cautioned and granted bail. He had instructions from his District Commander to charge the accused persons with stealing and threat of death and he obtained charge statements from them and they were arraigned before court on the 9th of November, 2022. PW3 tendered the cautioned statements and charge statements of the accused persons in evidence as Exhibit A series and Exhibit B series. The prosecution closed its case after all its witnesses have been duly cross examined. Section 173 of the Criminal and other Offences (Procedure) Act, 1960 (Act 30) provides that: P a g e 6 | 18 “Where at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the accused sufficiently to require him to make a defence, the court shall as to that particular charge acquit and discharge the accused” I shall therefore proceed to determine whether or not there is a case for the accused to answer. Section 23 of Act 29 (supra) under which the accused persons are charged on count one provides that: “Where two or more persons agree to act together with a common purpose for or committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence”. The above is the new formulation on the law of conspiracy brought about as a result of the work of the Statute Law Revision Commissioner. Thus in the case of Francis Yirenkyi v the Republic, Criminal Appeal No. J3/7/2015 the Supreme Court observed that under the old formulation the following ingredients of the offence had to be established to secure a conviction: 1. Prior agreement to the commission of a substantive crime, to commit or abet that crime 2. Must be found acting together in the commissioning of a crime in circumstances which show that there was a common criminal purpose 3. That there had been a previous concert even if there was evidence that there was no previous meeting to carry out the criminal conduct In the new formulation the only ingredient that has been preserved is ‘the agreement to act to commit a substantive crime, to commit or abet that crime. P a g e 7 | 18 The court further noted that the new formulation no doubt reinforces the view that conspiracy is an intentional conduct. The Supreme Court further noted that the essence of the changes brought about by the work of the Statute Law Review Commissioner is that, under the new formulation, a person could no longer be guilty of conspiracy in the absence of any prior agreement whereas under the old formulation a person could be guilty of conspiracy in the absence of any prior agreement. See also: Faisal Mohammed Akilu v The Republic [2016-2017] SCGLR 444 per Yaw Appau JSC Again in State v Otchere [1963] 2 GLR 463 the court held that: In order to prove conspiracy the evidence may be either direct or circumstantial but where it is sought to prove a conspiracy solely by circumstantial evidence, the evidence must be such that not only may an inference of conspiracy be drawn from it but also that no other inference can be drawn from it. Here, the accused persons are charged with conspiracy to commit crime to wit stealing however the prosecution did not lead any evidence at all to suggest or from which it could be inferred that the accused persons had a prior agreement to dishonestly appropriate anything from PW1. As aforementioned, in criminal cases it is the prosecution that has the burden to prove the guilt of the accused person. The prosecution thus has the obligation to introduce sufficient evidence to avoid a ruling against it. See section 11(1) of NRCD 323 (supra). Since the prosecution in the instant case failed to produce evidence in respect of the charge of conspiracy, same must fail. P a g e 8 | 18 On count two, which is ‘threat of death’, section 75 provides that: “A person who threatens any other person with death, with intent to put that person in fear of death, commits a second degree felony” The learned jurist Dennis Dominic Adjei in his book Contemporary Criminal Law at page 185 states that the first ingredient of threat of death is that there must be evidence of threat to kill issued by the suspect against the life of the victim. The second ingredient of the offence is the intent to put the victim in fear of death. P. K Twumasi in his book Criminal Law in Ghana at page 235 states that “In proving the offence therefore, it is not necessary to establish that the accused at the time he uttered the threat actually had in his hands or possession some visible means of carrying out his threat such as holding a cutlass, a gun or a knife. Mere words are sufficient provided the other ingredients of the offence are present. The next important element constituting the offence is the intent on the on the part of the threatener to put the other person in fear of death, that is, in fear of being murdered. The accused must have exhibited a real or wicked intention to put the other person in fear of death. Whether the victim of the threat was actually put in fear of death is immaterial. It is the intention to put him in fear of death by means of the threat that matters”. Here the words allegedly uttered by the accused persons are “we give you one week to vacate from your cottage and farm else what is fine would be nasty to you” The learned author Dennis Dominic Adjei in his book (supra) at page 186 states that: “to determine whether the words uttered constitute a threat of death, the court is required to look at the plain and ordinary meaning of the words uttered. Where the ordinary meaning P a g e 9 | 18 of the word constituted threat of death, the court is not required to look for the secondary meaning or any less obvious meaning” Both PW1 and PW2 allege that A2 uttered the words in question in the presence of all the accused persons. In her cautioned statement Exhibit A, A1 denied that she was at the scene and indeed A2, A3, A4 and A5 did not mention A1 as being present at PW1’s cottage at the time the alleged incident took place in their respective cautioned statements. Again from the respective cautioned statements of A2, A3 and A5, they said that even though A4, Daniel Owusu accompanied them to PW1’s cottage, he did not enter the premises with them so he did not witness what went on at PW1’s cottage. Unfortunately, PW3 the investigator, did not conduct any investigations whatsoever into all these assertions made by the accused persons in Exhibit A series as can be gleaned from his witness statement which was adopted by the court as his evidence in chief. During cross-examination of PW3 on the fact that he did not conduct any investigation into the matter, the following transpired: Q: The complainants in this case made a complaint to Mpraeso police station initially not so A: Yes Q: And he came to you with an extract from Mpraeso police station is that correct A: Yes Q: And per your witness statement and the supplementary one, that is all you know about the case is that correct A: Yes Q: I suggest to you that you did not conduct any investigation on your own in this matter A: I did P a g e 10 | 18 Q: And you did not tell the court what your investigation established per your witness statement is that the case A: I did Q: Which paragraph of your witness statement indicates your findings against the accused persons? A: I think that might have skipped me And so from the evidence, it is clear that even if the investigator conducted investigation into the case at all, he did not make his findings known to the court. This therefore leaves the court to require further evidence as to whether or not A1 and A4 were even present because if they were not present when those words were uttered, then they could not have been charged with the offence of threat of death. Again, even in respect of A2, A3 and A4 who were no doubt present at the scene, the evidence on record so far shows that the words were uttered by A2 and not all of them. If PW3 had conducted a thorough investigation into the matter, then probably A3 and A5 could have been charged with some other offence. Be that as it may, assuming that all the accused persons were present at the scene and allegedly uttered the words complained of to PW1, the question is whether the words in their plain and ordinary english meaning, amounts to threat of death. In my view, to say that “we are giving you one week to vacate from this cottage and land else what is fine to you will be nasty soon” can mean a lot of things but certainly not death because the person must be alive to see the nasty thing that the fine thing will turn into. The words could mean a legal action being taken against PW1, forceful ejectment, causing P a g e 11 | 18 damage to property etc. It is therefore my view that the alleged words uttered even if at all, do not constitute a threat to kill. The next ingredient to be proved is the intent on the part of the author of the words to put the fear of death in the victim. The general principle of our law is that intention, like many other states of mind, is incapable of direct proof; it is always inferred from proven facts. This is a principle of English common Law which has been accepted as an important principle of our criminal law. See: Bruce v Commissioner of Police [1963] 1GLR State v. Baba Gariba [1963] GLR During cross-examination of PW1, he confirmed that prior to the alleged incident of threat of death, he did not have any issue with the accused persons. When it was further suggested to him that the accused persons entered the cottage in a peaceful manner he responded in the negative and even went on to say that, the accused persons entered the cottage with weapons. The following are excerpts of cross examination of PW1: Q: Before the alleged incident of threat, did you have any issue with the accused persons A: No Q: Confirm to the court that on that date, they entered your cottage in a peaceful manner A: No Q: When they came to your house they greeted you. I suggest that to you A: Yes they greeted me P a g e 12 | 18 Q:I put it to you that per their conduct, they also exchanged pleasantries with you and you offered them chairs A: Yes Q: When you asked them of their mission to your house they told you about it A:Yes Q: The purpose of their visit was about the ownership of the land you are in possession of A: Yes Q: I strongly suggest to you that none of the accused persons was holding or had a weapon A: They held weapons Q: I suggest to you that you never stated anywhere in your witness statement that they had weapons A: Yes I did not state that but when they came to the farm they held weapons Furthermore during cross examination of PW2 the following transpired Q; I put it to you that the atmosphere was a peaceful one A: It is correct Even though PW1 sought to suggest that the accused persons had weapons on them, it is obvious that he was not being truthful to the court and this dented his credibility because he never said so in his evidence in chief and there was no evidence to corroborate his assertion. What the evidence suggests is that the accused persons entered PW1’s cottage in a peaceful manner and there is no evidence of aggression on their part when they went P a g e 13 | 18 to PW1. From the above excerpts of cross examination, a conversation went on between the parties however the prosecution did not say anything about what PW1 said during the conversation or the reaction of PW1 when A2 told him of their mission which led A2 to utter those words that the prosecution construe as threat of death. As discussed above, the plain ordinary meaning of the alleged words uttered does not constitute a threat to kill and from all the circumstances of the case and the conduct of the accused persons on the material date, I infer that they did not exhibit any intention to put PW1 in fear of death. It is therefore my view that the prosecution failed to prove the 2nd element of threat of death the consequence of which is that the prosecution failed to prove count two against the accused persons. The accused persons have further been charged with stealing contrary to section 124 of Act 29 which provides that: “whoever steals commits a second degree felony” In Arthur v The Republic [2021] GHASC 100 the Supreme Court stated that it is a cardinal principle of law that the statute creating and defining an offence determines the ingredients of the offence which are to be proved. In this respect, the Criminal Offences Act, 1960 (Act 29) defines the offence of stealing at section 125 as follows: “A person steals if he dishonestly appropriates a thing which he is not the owner” The ingredients of stealing has thus been expounded in a number of cases as follows: 1. That the person charged must not be the owner of the thing allegedly stolen 2. That he must have appropriated the thing P a g e 14 | 18 3. That the appropriation must have been dishonest See: Ampah v. the Republic [1977] 2 GLR 171 Section 122 of Act 29 defines acts which will constitute appropriation as follows: 1) An appropriation of a thing by a trustee means dealing with the thing by the trustee with the intent of depriving a beneficiary of the benefit of the right or interest in the thing or in its value or proceeds or a part of that thing. 2) an appropriation of a thing in any other case means any moving, taking obtaining, carrying away or dealing with a thing with intent that a person may be deprived of the benefit of the ownership of that thing or of the benefit of the right or interest in the thing or in its value or proceeds or part of that thing” Section 120 of Act 29, also stipulates that an appropriation of a thing is dishonest, (a) If it is made with an intent to defraud or (b) If it is made by a person without claim of right and with a knowledge or belief that the appropriation is without the consent of a person for whom that person is a trustee or who is owner of the thing or that the appropriation would, if known to the other person, be without the consent of the other person. With the law on stealing thus laid down, the question is whether the prosecution was able to establish the above ingredients of stealing against the accused persons. Here, apart from PW1 merely alleging that the accused persons started visiting and harvesting his farm produce from the month of August, 2022, no other evidence was led by the prosecution to establish whether indeed PW1 has cultivated such crops and that P a g e 15 | 18 the accused persons have been harvesting his farm produce. PW1’s assertion thus remained unsubstantiated. In this sense, the charge of stealing completely fails. At the close of the case for the prosecution, the prosecution is required to have established a prima facie case against the accused person and not to have proved its case beyond reasonable doubt. Thus in the case of Tsatsu Tsikata v. The Republic [2003-2004] 1 SCGLR 1068 it was stated that: “The standard of proof at this stage of the trial is a prima facie case and not reasonable doubt since the court has not had the opportunity to hear the defence...” Furthermore in explaining what prima facie evidence is, the court in the case of Kwabena Amaning alias Tagor and Anor v. The Republic [200] 23 MRLG 78 held that: “Prima facie evidence is evidence which on its face or first appearance, without more, could lead to conviction if the accused fails to give a reasonable explanation to rebut it. It is evidence that the prosecution is obliged to lead if it hopes to secure conviction of the person charged. At this stage, the trial court is not supposed to make findings of facts since the other side has not yet spoken to determine who is being factual. What the trial court has to find out at this stage that the prosecution has closed its case is whether or not the evidence led has established all the ingredients of the offence charged for which the accused person could be convicted if he failed to offer an explanation to raise doubts in the said evidence” The Supreme Court in the case of Tsatsu Tsikata v. The Republic [2003-2004] SCGLR 1068 has thus reiterated the circumstances under which a submission of no case will be upheld thus: “A submission that there is no case to answer may properly be made and upheld when: P a g e 16 | 18 1. The prosecution failed to provide evidence to prove an essential element of the alleged offence; or 2. When the witnesses called by the prosecution were discredited by the accused through cross examination; or 3. The evidence adduced by the prosecution is so manifestly unreliable that no reasonable tribunal could safely convict upon it; or 4. The evidence adduced by the prosecution is evenly balanced, that is, the evidence on record is susceptible to two likely explanations and while one is consistent with guilt, the other is consistent with innocence See also: State v Ali Kassena [1962] 1GLR 144 S.C Apaloo v. The Republic [1975] 1 GLR 156, C.A, Moshie alias Adama v. The Republic [1977] 1 GLR Gyabaah v. The Republic [1984-86] 2 GLR C.A Aaron Kwesi Kaitoo v. The Republic [2018] DLCA 4485 The underlying factor behind the principle of submission of no case to answer therefore is that an accused should be relieved of the responsibility of defending himself when there is no evidence upon which he may be convicted...” See: Michael Asamoah & Anor v. The Republic [2017] DLSC 2628, P a g e 17 | 18 In the instant case as has been demonstrated, the prosecution failed woefully to prove any of the ingredients constituting the three charges against the accused persons such that the accused persons cannot be convicted upon same if they do not offer any reasonable explanation. The prosecution thus failed to establish a prima facie case against the accused persons and as a matter of law, they ought to be relieved of the responsibility of defending themselves. Consequently pursuant to section 173 of Act 30 (supra), the accused persons are acquitted and discharged. H/H ADWOA AKYAAMAA OFOSU (MRS) CIRCUIT COURT JUDGE P a g e 18 | 18