REPUBLIC VRS ISSAH & OR. (D1/49/2019) [2024] GHACC 224 (14 March 2024)

IN THE CIRCUIT COURT HELD AT AMASAMAN – ACCRA ON THURSDAY THE 14TH DAY OF MARCH, 2024 BEFORE HER HONOUR ENID MARFUL-SAU, CIRCUIT COURT JUDGE CASE NO. D1/49/2019 THE REPUBLIC VRS. 1.MOHAMMED AWAL ISSAH 2.OSMAN ISSAH ACCUSED PERSONS PRESENT PROSECUTION: ABSENT COUNSEL: EDEM AMADZOR ESQ. FOR ACCUSED PERSONS PRESENT JUDGMENT A1 and A2 are charged with one count of Conspiracy to wit Causing Unlawful Damage contrary to section 23(1) the Criminal Offences Act, 1960 (Act 29) and one count of Causing Unlawful Damage contrary to section 172 of Act 29. The facts as presented by Prosecution are that on 12th December, 2018, the complainant, Stephen Kwaku Asante was informed by his wife that the Accused Persons had been seen on their land which they bought from the Frafra Islamic foundation Association, Accra. Complainant made a report to the police. Prosecution says that on 30th January, 2019, complainant saw the accused persons on the land causing damage to his building foundation footings and immediately reported. According to prosecution, the Police proceeded to the land and found the Accused persons causing damage to the foundation footings. Based upon these facts, the Accused Persons were arraigned before this court. Page 1 of 11 Prosecution called three witnesses in support of its case. PW1 was Stephen Kwaku Asante, PW2 was Moses Bawa and PW3 was D/Cpl. Maxwell Asante, the Investigator. PW1 testified that he purchased a plot of land from the Frafra Muslin Association through one Bawa for his wife at a cost of GHȻ35,000.00 and was issued with a receipt and indenture. He stated that he constructed a four-bedroom storey footing on the land and on two occasions the footings were destroyed by unknown persons. According to him, on 28/01/2018, his wife met the accused persons causing damage to his four bedroom footing and he made a complaint against the accused persons. According to him the footings cost GHȻ40,000.00. He tendered Exhibit A which is an Indenture. PW2 testified that he is the Chairman of the Frafra Islamic Foundation and that the foundation sold land to PW1 and his wife at a cost of GHȻ30,000.00 and a receipt and documents were issued to them. He testified that the Accused persons were reported to the foundation as claiming the land sold to PW1 and they advised the Accused persons not to go on the land again but they did not adhere to the advice of the foundation. He stated the PW1 reported the accused persons again and he advised him to lodge a complaint at the police station. PW3 testified that on 13th December, 2018 PW1 made a report at the Amasaman District Police Station that he had received a phone call from his wife that some people were on his land at Nsakina, he therefore took a Statement from him. He stated that on 30/01/2019. PW1 informed police that some two persons were causing damage to his building footings and police proceeded to the land and met the accused persons causing damage to the footings with two block hammers and they were arrested to the police station. He stated that he visited the site on 30/01/2019 and saw that the footings had been damaged and took photographs. He took cautioned Statements from the Accused. He testified that his investigations revealed that the land of PW1 shares a boundary with Accused Persons family land and the building of PW1 was Page 2 of 11 destroyed by the Accused Persons because they claimed that PW1 had encroached on their family land. He tendered the following Exhibits: - Exhibit B: Receipt - Exhibit C: Statement of PW1 - Exhibit D: Statement of Mariama Kornakye - Exhibit E: Investigative Cautioned Statement of A1 - Exhibit E1: Charge Cautioned Statement of A1 - Exhibit F: Investigative Cautioned Statement of A2 - Exhibit F1: Charge Cautioned Statement of A2 - Exhibit G Series: Photographs - Exhibits H& H1: Charge Sheet and Brief Facts By a Ruling dated 22nd July, 2022, the Accused persons were acquitted on count one and called upon to open their defence on count 2. A1 testified by means of a witness statement filed on 26th September, 2022 and a supplementary witness statement 6th October, 2022. He testified that his father during his lifetime was a member of the Frafra Islamic Foundation which acquired a large tract of land at Oshiuman for the benefit of members of the group. He testified that the land was divided into plots and his father was allocated plot no. 34 which is about 90 feet by 120 feet more or less in the year 2001. He stated that the land allocated to their father shared boundary with Chief Yahaya on one side and bounded on the three other sides by proposed roads. He testified that his father took possession of the land with the entire family including himself and they started to put up a structure on the land and have been in quiet possession of the land till the year 2018. He tendered Exhibit 1 being a picture of the structure on the land. He testified that his father was not given documents covering the land but he was in possession and enjoyed quiet Page 3 of 11 possession until he passed in the year 2004. He tendered as Exhibit 2 evidence of the death of his father. He testified that after the demise of this father, he together with his brother continued to build on the structure left behind by their father. In 2018, when they realized that complainant had entered their land he testified that they confronted him and he informed them that it was Bawa Moses who sold the land to him. He stated that being the secretary of the foundation, they went to PW2 to regularize the documentation covering the land but he refused. According to him, they took it upon themselves to prepare a site plan in the name of the surviving spouse and prepared a Deed of Assignment for the foundation to endorse but they again refused. The said document was tendered as Exhibit 3. He testified that they found that about half of their land had been sold to the complainant and the other half of complainant’s land was the road in front of their house. He testified that since complainant’s land was going to be such that he would build on the road in front of their house and block their access, they reported him to the District Assembly but though he was warned to stop work, he refused and continued to work. He testified that they then reported him to the Amasaman Divisional Police Station but that also did not deter complainant from building on their land and blocking their access to the house. He tendered as Exhibit 4 a Petition written to the Municipal Chief Executive of the Ga West Municipal Assembly. He testified that he together with A2 had to break the wall in defence of their property bequeath to them by their late father and to stop complainant from blocking access to the house. He also tendered Exhibit 5 which is a photograph of the proposed road on which complainant was building unto their land. A2 testified by means of a witness statement filed on 26th September, 2022. He testified that A1 is his brother and their late father is Issah Adazosah who in his lifetime was a member of the Frafra Islamic Foundation. He testified that the Foundation acquired a large tract of land at Oshuiman for the benefit of its members and divided same into plots. He testified that the land was divided into plots and his father was allocated plot no. 34 which is about 90 feet by 120 feet more or less in the year 2001. He stated Page 4 of 11 that the land allocated to their father shared boundary with Chief Yahaya on one side and bounded on the three other sides by proposed roads. He testified that his father took possession of the land with the entire family including himself and they started to put up a structure on the land and have been in quiet possession of the land till the year 2018. He testified that his father was not given documents covering the land but he was in possession and enjoyed quiet possession until he passed in the year 2004. He testified that after the demise of this father, he together with his brother continued to build on the structure left behind by their father. In 2018, when they realized that complainant had entered their land, he testified that they confronted him and he informed them that it was Bawa Moses who sold the land to him. He stated that being the secretary of the foundation, they went to PW2 to regularize the documentation covering the land, but he refused. According to him, they took it upon themselves to prepare a site plan in the name of the surviving spouse and prepared a Deed of Assignment for the foundation to endorse but they again refused. He testified that they found that about half of their land had been sold to the complainant and the other half of complainant’s land was the road in front of their house. He testified that since complainant’s land was going to be such that he would build on the road in front of their house and block their access, they reported him to the District Assembly but though he was warned to stop work, he refused and continued to work. He testified that they then reported him to the Amasaman Divisional Police Station but that also did not deter complainant from building on their land and blocking their access to the house. He tendered as Exhibit 4 a Petition written to the Municipal Chief Executive of the Ga West Municipal Assembly. He testified that he together with A2 had to break the wall in defence of their property bequeath to them by their late father and to stop complainant from blocking access to the house. Count 2 is a charge of causing unlawful damage contrary to section 172 of Act 29. Section 172 of Act 29 provides as follows: Page 5 of 11 “(1) A person who intentionally and unlawfully causes damage to property (a) To a value not exceeding one million cedis without a pecuniary value, commits a misdemeanour, (b) To a value exceeding one million cedis commits a second-degree felony. (2) A person who intentionally and unlawfully causes damage to property in a manner which causes, is likely to cause, danger to life commits a first-degree felony. (3) For the purposes of this section, “property” means movable or immovable property.” The two main ingredients that must be proved by Prosecution are: 1. That the Accused Person intentionally caused damage to the property. 2. That the Accused Person unlawfully caused the damage. The value of the property is also a vital element which needs to be established as the value of the property damaged changes the nature of the offence from a misdemeanour to a second-degree felony. The Particulars of offence placed a value of GHȻ40,000.00 on the foundation footings. The following ensued during cross examination of PW3 by counsel for Accused: “Q: You have told the court that the value of the damage was GHȻ40,000.00 am I right A: GHȻ35,000.00 Q: Who gave you this value A: The complainant Q: Did he give you any receipts to prove A: No … Q: How did you arrive at the value of the damage A: That is the amount complainant gave police.” Page 6 of 11 At the close of prosecution’s case, the value of the said footings was never substantiated by prosecution and remains uncertain. This notwithstanding, there is evidence of the damaged property before the court. Thus, in the absence of a certain value of the damage, the said damage shall be categorized as a misdemeanour. The evidence is that Police went unto the site and found the Accused Persons on the land causing the destruction with the hammers tendered as a photograph in Exhibit G3. From Cross examination, it was not disputed that it was the Accused persons who caused the said damage. The Cautioned Statements of the Accused persons are also admissions of the offence with the explanation that the said land belongs to their late father. The evidence of both Accused persons on oath is that they caused the said destruction in defence of the land of their father bequeath to them. The evidence of the Accused persons is indicative of the steps they sought to take to bring to the attention of authorities what they felt was an unauthorised construction on a road and on their land. I note that Exhibit 4 is evidence that A1 wrote to the MCE of the Ga West Municipal Assembly. During cross examination of A1 by prosecution the following ensued: “Q: Can you tell the court who instructed you to cause damage to the structure. A: Noone that half of the structure was sitting on our plot and when we reported to the police, they still went on building and when that was the only way we can stop them with the structure. I went to the police to report that the persons were still building, and the officer told me to allow them to build so that in future if the Assembly comes to demolish that part of the road we can have our land back. If the Assembly does not demolish it means we may lose our land, so we had to defend it.” I note that Exhibit 2 which is a letter emanating from the Frafra Islamic Foundation as well as the evidence of PW2 corroborate the fact that the father of the Accused persons, Page 7 of 11 Mallam Issah Frafra was an active member and elder of the said Association. The case put across by Prosecution is that the land was vacant and that was how come same was sold to the complainant. The evidence of Accused persons is that they had taken possession of the land and had a 5-bedroom structure on the land. During cross examination of PW2 by A1 the following ensued: “Q: The plot in question is bounded by a road on left and right it is plot No. 34 A: I do not know … Q: Can you tell the court the plot you sold to Steven which number is it A: I didn’t sell a plot to Steven I sold to Mariama Adama Q: Can you tell the court which number is the plot you sold to Mariama Adama A: No” Clearly, the said witness denies having sold the land to PW1 but rather one Mariama Adama who PW1 claims to be his wife. Again, the witness was unable to tell the court the land which had been sold to the said person after having admitted that some of the land was numbered whilst others were not. Section 174(5) of Act 29 provides as follows: “(5) Despite anything contained in Part One as to mistake of law, a person is not liable to punishment in respect of doing a thing which that person in good faith, believes to be entitled to do.” In order to determine whether or not the actions of the Accused persons were unlawful, the court must have regard to section 174(5) as set out above. As already indicated, Accused persons admit having caused the destruction because the land belonged to their late father which the entire family had taken possession of and the Page 8 of 11 said construction of PW1 blocked their access. PW1 relies upon an indenture as evidence of ownership of the said land. I note that the said indenture tendered as Exhibit A is not a registered document. Therefore, the said indenture is incapable of conveying any legal rights in the land to PW1. Likewise, Accused persons have no documents covering the said land hence they cannot also be said to have a legal right to the land. The equities are therefore equal between PW1 and the Accused persons. The evidence however is that the Accused persons family have been in possession of the land since the year 2001 and have been in quiet enjoyment until somewhere 2018 when PW1 entered the land. This evidence is supported by Exhibit 1 which is a photograph of the structure on the land. Indeed PW1’s evidence is indicative of the fact that he purchased the said land in 2018 for his wife, hence this evidence confirms the evidence that the complainant first came unto the land in 2018. During cross examination of A1 by Prosecution the following ensued: “Q: Your father never paid any money for any land and that is why the Association never issued a receipt neither did they sign an indenture to that effect A: That is not true. The Association did not provide receipt because our late father contributed his dues together with other members which formed part of the initial payment of the land. When the land owners said the amount was too small for the size of the land they were given so other persons who were not members of the association but were interested in the land and ready to pay for it were invited and they were given receipt for the payment of money and allocation of land. On the part of the indenture, the Association agreed to provide each member with indenture but later they asked each member to have his own indenture prepared for signing. Nobody has ever disputed our occupation on the land, if our late father was occupying the land illegally.” Page 9 of 11 In fact, it was never the evidence of PW2 that the Accused person’s father was never allocated or took occupation of the said land. It was also not his evidence that the family of he said deceased member were trespassers on the land. It is a trite principle of law that where a party has been in long undisturbed possession and occupation of land, he is entitled to the protection of the law against all who cannot affirmatively prove a better title. See. ABAKAM EFFIANA FAMILY & ORS. v. MBIBADO EFFIANA FAMILY & ORS. [1959] GLR 362. I consider that the equities favour the Accused persons claim of long undisturbed possession of the said land as opposed to PW1’s grant which as already indicated confers no legal rights to the land. Having failed to prove a better title to the land by Prosecution, I consider that the principle of possession avails the Accused persons. In the case of ASANTE v. THE REPUBLIC [1972] 2 GLR 177 it was held as follows: “Tersely, to secure conviction under section 172 of Act 29, not only must it be proved that the damage was caused intentionally within the provisions relating to intent in section 11 of Act 29, but also it must be proved beyond reasonable doubt that it was caused without just cause or excuse; the burden lay on the prosecution to prove conclusively the absence of any legal justification or excuse, but they failed to establish this by evidence.” Also, in OKOE v. THE REPUBLIC [1979] GLR 137 it was held as follows: “By Act 29, s. 174 (1) and (5) which explained the offence of unlawful damage in Act 29, s. 172 (1) (b), the appellant's act could only be punishable if it was done intentionally and unlawfully and he did not believe in good faith that he was entitled to demolish the building. To succeed in a prosecution it was first necessary to establish that the building was lawfully on the land, for if it was not lawfully there (as in the instant case), removing it would be lawful.” Page 10 of 11 From the evidence, it is apparent that Accused persons believed to be acting in good faith to defend the land which was allocated to their father which they took possession of since 2001. It is apparent from the evidence that they took steps to report to the lawful authorities in charge of maintaining law and order the recent developments by the complainant, being the Police and the Municipal Assembly, yet no action was taken by either institution. I consider also that Prosecution has failed to establish that the said building foundation footings which was destroyed was lawfully on the land. I find that the Accused persons cannot be liable to punishment in respect of doing that which they in good faith, believed to be entitled to do as borne out by the evidence on record. The Accused persons are therefore acquitted on Count 2. H/H ENID MARFUL-SAU CIRCUIT JUDGE AMASAMAN Page 11 of 11