REPUBLIC VRS KPENDE (109/2023) [2024] GHACC 263 (29 April 2024)

IN THE CIRCUIT COURT HELD AT KPANDO ON THURSDAY 29TH DAY OF APRIL 2024, BEFORE HIS HONOUR FRANCIS ASONG OBUAJO, THE CIRCUIT COURT JUDGE. ================================================== NO.CC 109/2023 THE REPUBLIC VRS WISE KPENDE ACCUSED PERSON; PRESENT THE PROSECUTOR, D/INSPT. HENRY O. DOKU; PRESENT JUDGMENT On the 23/1/2023 accused was arraigned before this Court charged with the offence of threat of death contrary to section 75 of Criminal Offences Act 29 of 1960 of which accused pleaded not guilty. The summary of the facts of this case are that, accused who is a steel bender from Alavanyo Wudidi has been threatening to kill the complainant Grace Futse who is a trader and lives in the same vicinity with the accused for some time now. Complainant had not taken the death threats serious but will report the threat to the Assembly member of their area Hon. David Anku Boateng. On the 22/1/2023 at about 6:00pm complainant was at home when accused went there with a cutlass and broken bottle threatening to kill her without just cause. Complainant called the Page 1 of 8 Assemblyman to inform him and he rushed to the scene and with the help of Alavanyo police accused was arrested and charged with this offence. As the accused pleaded not guilty to the charge, the law enjoins the prosecution to lead credible evidence at the trial to establish the elements of the offence charged beyond reasonable doubt to secure the conviction of the accused; Sections 11 (2) and 13 (1) of Evidence Act 1975 (NRCD 323) referred. In the decided case of GLIGAH AND ATISO VRS THE REPUBLIC [2010] SCGLR 870 per DOTSE JSC it was held that; under article 19 (2) (c) of the 1992 Constitution, everyone charged with criminal offence was presumed innocent until the contrary is proven. That means whenever an accused person is arraigned before any court in a criminal trial, it is the duty of the prosecution to prove the essential ingredients of the offence charged against the accused beyond reasonable doubt. See. DOMENA VRS COMMISSIONER OF POLICE (1964) GLR 563 AT 568 At the hearing, the prosecution called three (3) witnesses including the investigator to adduce evidence against the accused. Grace Futse, the complainant gave evidence as PW1 that she was at home at about 6:00 pm on the 20/01/23 when accused came with a cutlass threatening to kill her. The people in the house advised her not to worry about that. She however called up the Assemblyman of the area and he came to the scene. When the Assemblyman came there accused said he will not let the Assemblyman enter the house by pointing a shovel at him. The chief of the town who saw what was going on advised that the police are called to arrest the accused. The Alavanyo Kpeme police were called and they came to arrest accused person. Under cross examination, PW1 maintained accused threatened to kill her with a cutlass and broken bottle. Page 2 of 8 David Anku Boateng of Avalanyo Senior High/Technical School who is also the Assemblyman of the area gave evidence as PW2. He said for more than ten times that he had gone to the rescue of PW1 from the accused upon her distress call. In all these instances he met accused with either cutlass; stones, sticks or broken bottles to cause harm to the complainant. On the 20 /1/23, PW1 called him to come to her aid and upon getting there accused was insulting the complainant with a cutlass and broken glass in his hands. All his attempt to calm accused down failed so he called the Kpeme Police officers who came and with the help of the Unit Committee members before accused was over powered and brought to Kpando. During cross examination, PW2 maintained that accused threatened and vowed to kill PW1 after they had gone. PW2 explained that accused made these threats in his presence to PW1 while he locked himself up in his room to avoid being apprehended by the PW2 and the Unit Committee members who came to the aid of PW1. The evidence of PW3, the investigator PW/Const. Augustina Addobea Afari of Kpando District police Headquarters was that, this case was referred to her for investigation on the 20/1/23. At that time accused had been brought to the station before the case was reported. PW3 added that she took PW1’s statement and caution statements from the accused. She paraded accused and the complainant before the District Commander for them to be heard. She later charged the accused with the offence as instructed by the District Commander. PW3 tendered caution and charged statements of accused into evidence as Exhibit ‘A’ and ‘B’ respectively without objection. Under cross examination from the accused PW3 stated that accused threatened to kill PW1. She also added that he saw bruises on accused’s body suggesting that he was beaten but the bruises were not severe to warrant immediate or instant medical attention at the time. Prosecution closed her case. Page 3 of 8 ACCUSED’S DEFENCE Accused elected to give evidence under oath in this defense in this offence. Accused said he is a steel bender at Alavanyo Kpeme. Accused said he was at home on the 20/1/23 when PW1 sent somebody who came to break his door open and got him arrested and tied with rope and taken to the road side about 500 meters away into a vehicle then to Kpando police station. There was a shovel in that vehicle where he was placed and trying to remove the shovel that was hurting him. Those in the vehicle mistook that to mean he was trying to attack them. Accused said he never threatened to kill PW1 or did he use any implement to do so. So PW1 told untruth to the court that he threatened to kill her. He added that he came to the police station with his bag containing GH¢400.00 with his digital camera which the police took from him. which are still with the police. Accused said he told the investigator how he was beaten with bruises on his body by those who arrested him but PW3 did not take him to the hospital. Under cross examination accused maintained that there was no misunderstanding between him and PW1 on the day of his arrest and that PW2 never witness any such incident as he reported to court. Exhibit ‘A’, accused caution statement taken on the 21/1/2023. Accused said he never threatened PW1 with a cutlass on the 20/1/23 at about 10: 00p.m. He said he was cooking at the kitchen when PW1’s friend by name Korkor came to attack him with broken bottle and beat him up severely and tied him with a rope. He later put him in a vehicle and brought him to the station. He added that he had no problem with PW1 and knows nothing about the offence charged. APPLICABLE LAWS AND ANALYSIS Section 75 of Act 29/60 on the threat of death provides: Page 4 of 8 ‘A person who threatens any other person with death, with intent to put that person in fear of death, commits a second degree felony’. It was held in BEHOME BRS THE REPUBLIC [1979] GLR 112 that: “In the offence of threat of death, the actus reus would consist in the expectation of death which the offender creates in the mind of the person threatened whilst the mens rea would also consist in the realization by the offender that his threats would produce that expectation” By the principle stated in the decided case, that will require that there must be an intention of the accused who issued the threat to be proven that he did so intentionally for the purpose of putting the victim into fear of death. Therefore for the prosecution to secure the conviction of the accused in this offence. The essential ingredients of that offence to be proven beyond reasonable doubt are: I. That accused issued the threat against the victim. II. The accused intended to put the victim into the fear of eminent death. III. That the victim has been affected or frightened by the death threat issued. It must however be stated that the evidence of the prosecution must show that accused know that his threat of death will produce the needed effect on the victim. There should also be credible evidence adduced that the victim was so affected with the threat of death. It is possible that death threat could be issued and directed at somebody that may not be affected by the death threat and so was not in expectation of eminent death. Should that be established at the trial that means the offence has not been fully proven. Prosecution’s evidence at the hearing shows that accused threatened to kill PW1 on the said 20/1/23 at about 6: 00pm that made her to call for assistance from PW2. PW2 said when he got there accused was insulting PW1 holding cutlass and broken glass. Page 5 of 8 All attempt to calm accused down from his insult of PW1 failed and it took the unit committee member who over powered accused person as accused had ran and locked himself up in his room still threatening to kill PW1 after they had gone. That made them to break open his door through Korkor before accused was apprehended. These piece of evidence were not controverted or suffer any credibility at the hearing howsoever. In Exhibit ‘A’ accused said PW1’s friend attacked him while he was cooking at the kitchen and tied him. In his defense, accused said PW1 sent somebody who came to break his door and arrested and tied him with a rope. Accused under cross examination from the prosecution, accused then said the people came to meet him at the kitchen and started beating him. He therefore ran into his room and locked himself up before they came to break the door and arrested him. These exchanges and the explanation of the accused that his room was broken into and then arrested instead of his kitchen that he was arrested from in Exhibit A, rather lends credence to PW2’s evidence that accused locked himself up in his room after he met accused with cutlass threatening to kill PW1. It is my finding from the foregoing as a fact that, accused threatened to kill PW1 on the day with a cutlass which caused PW1 to call for protection from PW2 who and me and met the accused in the act of threatening to kill PW1. All effort to calm accused down failed and when he saw other people came to the complainant, accused went to take cover by locking himself up in his room still threatening to kill PW1. Accused’s room was then forced opened and apprehended and was subjected to beating by those unit committee members and tied him with a rope; which is inhuman to say the least. It is my candid opinion at this stage that accused who threatened to kill PW1 on the day and she was shaken and in fear of eminent death from the accused and in her Page 6 of 8 desperation reached out to PW2 for protection from that threat. Accused for whatever reason he may have with PW1 had intended to put her into that stage of fear of death as stated in the particulars of the offence charged. I hereby found accused guilty of the offence charged as the prosecution has proven the essential elements of the offence beyond reasonable doubt as required. Accused is hereby convicted as charged. BY COURT: At the hearing both PW1 and PW2 just as PW3 told the Court that accused was arrested to the police station by PW2 and the unit committee members tied him with a rope then into a vehicle. Accused was not arrested by the Kpando police directly, neither did accused personally reported to the police before he was arrested. In Exhibit A, accused did not mention that he handed over or was any such money or digital camera given to the police. In all of these events where could accused possibly be holding a bag containing GH¢400.00 with a digital camera. Accused in his cross examination of PW3 said he was in the cell when PW3 came the next day to take Exh. ‘A’ from him and he showed the bruises on his body to PW3 and wanted to be taken to the hospital. No where did the accused give any indication that he was forcibly arrested, had a bag and digital camera on him. I hereby reject accused’s intimation and indication at hearing that he came to police station with his bag containing GH¢400.00 with a digital camera. As same indications are considered as unfounded and same rejected by this Court. BY COURT: Do you have anything to say before sentence is passed. Accused prays for the mercy of this court BY COURT: In sentencing the accused, the plea on mitigation has been taken into account and the fact that accused has spent one year three months in prison custody as he could not meet the bail term granted him. Accused is hereby sentenced to one year in prison on the offence charged. Page 7 of 8 FRANCIS A. OBUAJO ESQ. CIRCUIT COURT JUGDE 29/4/2024 Page 8 of 8