REPUBLIC VRS AZA - PEE (B9/01/2021) [2024] GHADC 315 (1 March 2024)

SITTING IN THE DISTRICT COURT HELD AT VE-GOLOKUATI ON TUESDAY THE 1ST DAY OF MARCH, 2024 BEFORE H/W COMFORT A. APALAYINE. (DISTRICT MAGISTRATE). CC NO. B9/01/2021 THE REPUBLIC VERSUS WILLIAM AZA - PEE JUDGMENT No legal representation. The accused person was arrested and arraigned in Court on the 20th March, 2021 on a charge of causing unlawful damage contrary to Section 172 of the criminal and other offences Act 29 (1960) by spraying two nursery beds of tobacco property of the complainant (Julius Ankude). The complaint was that Julius Ankude has a farmland between Gbefi and Golokuati on which he nursed tobacco seedlings near the accused person’s portion of land. The complainant visited the farm on 11th June, 2021 and saw his tobacco nursery beds sprayed with chemicals and through enquiries made, he suspected the accused person and thus lodged a complaint for his arrest and further investigations to ascertain the one who committed the act. On his part, the accused person denied sending someone on the farmland to spray chemicals on tobacco seedling. According to him, he asked his father to permit him cultivate some food crops on a portion of land his uncle farmed on for years. Then one day in 2017, his father went onto the farm and saw that plants on the land were ploughed by some persons who were later identified as Julius Ankude and one Eric. When they were interrogated they said, Togbui Akom, Chief of Gbefi leased that portion of land to them so the matter was lodged with the Police while Togbui Akom was contacted in respect of the said lease which resulted in a civil suit on the subject matter at the Hohoe High Court. Prosecution invited two witnesses to establish his case against the accused person. According to PW1 (Julius Ankude), the land in dispute was rented by his brother Raymond Afrim from Togbui Akom VIII for farming. And planted maize then this particular year he raised two beds and planted seedlings of tobacco. But shortly after planting the seedlings they were sprayed. So he suspected the person who sprayed initially to plant maize. Nevertheless, in June, 2020 at about 9am, he realized the nursery with the weeds were dying but he saw an unknown person who could be identified spraying some portion of the land and when asked he said the wind blew the weedicide to that direction of the tobacco seedlings. After confronting that person, he was subsequently not found but the items and equipment used were hidden in the bush by someone. PW2 (D/C/INSPECTOR HENRY MIFETU) testified and tendered in exhibits ‘A’; ‘B’ being investigative caution statement and charge statement of the accused. PW1 then later identified accused as the suspect who committed the act. However. Also said a man whose identity is not known told him accused was connected with the damage caused to the seedlings. Though accused admitted sending someone to the farm to spray, the instruction was not to spray tobacco seedlings as alleged by the complainant. The determinable issues the Court is confronted with are: Whether or not the accused person caused unlawful damage to complainant’s tobacco seedlings. Whether prosecution proved his case against the accused person to warrant his conviction. Having regard to issue one, the complainant said the accused person sent someone to deliberately spray his tobacco seedlings whereas accused denies the deliberate act he said he sent someone though but not to spray any seedlings. But complainant could not procure the presence of that person to confirm his statement. Under section 10 of the Evidence Act NRCD 323, it is provided that he who alleges must prove. Therefore, if the complainant said someone he saw in broad day light spraying the tobacco seedlings should have led evidence to corroborate his statement in Court yet failed. How can the Court decipher the truth from an alleged fact. The duty of establishing the claim of causing damage and subsequently confirming any facts in respect of the alleged offence lies on prosecution until that burden shifts. Section 11 of the Evidence Act NRCD states that, It is evident from both sides that these claims of committing acts in breach of the criminal and other offences Act arises from a land dispute which is pending at the Hohoe High Court. DW1 (Samuel Azaa) admitted being in occupation of the land for so many years. He said, accused land is near that portion where the tobacco seedlings have been nursed but those seedlings if they were destroyed as claimed could not be potent for transplanting. Because, they are the very seedlings that was transplanted. Hence the allegation is vexatious and frivolous and unfounded. The complainant’s claim is out of the mischieve of their pending claims at the High Court. The Law on causing unlawful damage; under Section 174 (1) Unlawful damage is explained as follows: A person does an Act relating to unlawful damage, where that person is liable to a civil action or proceeding, or to a fine or any other punishment under an enactment, (a) in respect of the doing of the act causing an event, or (b) in respect of the consequences of the act or event, or (c) in which that person would be so liable if that person caused the event directly by a personal act, There is no substantial evidence to reveal the fact that accused committed the offence even though he did not dispute engaging someone to spray his farm. The evidence of the unidentified man who did not appear to confirm PW1’s evidence remains moot. Under Section 22 of the Evidence Act, it is provided that; “In a Criminal action a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond reasonable doubt, and thereupon in the case of a rebuttable presumption the accused need only raise a reasonable doubt as to the existence of the presumed fact”. Therefore, since prosecution is tasked by the law to prove accused guilt, it remains until that doubt is cleared. Also, the complainant mentioned recovering some items and equipment used in committing the offence which were not tendered as exhibits to complete the alleged acts. These included a Nabsac sprayer, silver bucket and herbicide. Though these pieces of evidence are on record, there is no confirmation to enable the court to examine and evaluate the probative weight of facts to draw a reasonable conclusion. Most importantly, the identity and subsequent appearance of the labourer engaged to spray the seedlings was not done. The Court cannot rely on facts not substantiated. Complainant further submitted, the equipment and items was later collected by accused from the Police. This is dicey, in the sense that; prosecution could not destroy their evidence by conniving with the accused whose guilt laid with him to prove. The complainant alleged, accused engaged someone to spray his farm with chemicals with the intention to destroy his farm crops. However, he could not challenge him on the identity of the alleged person who was engaged to spray the farm and insisted, he was engaged to cause the damage. Similarly, though he asserted meeting this person personally on the farm, he failed to procure his presence to corroborate his evidence. Corroborative evidence is intended to provide material details to confirm or substantiate all or part of the relevant facts given by a witness or party in a matter to convince the Court of the asserted views or facts regarding the disputed issues. Where the Court is unable to draw a clear line in respect of the evidence given the doubts created enures to the accused person’s benefit. Relating this examination of facts with issue two, I have observed that, though PW1 said the person he saw, he had no knowledge of his identity confirms his inability to prove that indeed, he was sent by the accused person. There was not inference made to connect the commission of the offence with a person without an identity who could have been co-charged with the accused person or used as a witness to support prosecution’s case. Since the law given under Section 11 (3) of the Evidence Act, states that accused is only to raise doubt on prosecution’s case and not prove his guilt, I find it plausible to state that prosecution failed to discharge his burden to prove his guilt. The established rule as stipulated under article 19 (2) (c) of the 1992 Constitution is that the presumption of innocence rest on prosecution to prove his case beyond reasonable doubt. This principle gained expression in a celebrated case of Hobson [1823] 1 Lew CC 261 as cutled in his book: Essentials of the, Ghana Law of Evidence by S. A Brobbey that; “It is a maximum of English Law that then guilty men should escape rather than one innocent man should suffer”. This confirms the fact that no one should be unjustly punished where there is insufficient evidence adduced to warrant any conviction subject to finding accused person’s guilt. In the circumstances, the evidence on record is not probatively relevant particularly with prosecution’s burden to ground the decision of this forum to find him culpable. On the basis of the reasoning made, I deem it appropriate to acquit and discharge the accused person due to prosecution’s lack of substantial evidence to support the allegation made against the accused person. Accused is thus accordingly discharged. (SGD.) H/W COMFORT A. APALAYINE DISTRICT MAGISTRATE