REPUBLIC VRS DZIDEFO & 2ORS. (CC4/06/2023) [2024] GHADC 346 (30 April 2024)

1 IN THE DISTRICT COURT HELD AT ADIDOME ON TUESDAY THE 30TH DAY OF APRIL, 2024 BEFORE HER WORSHIP MOLLY PORTIA ANAFO-SALIA (MRS) THE DISTRICT MAGISTRATE THE REPUBLIC VRS. 1 . ADUKPO DZIDEFO CC4/06/2023 2 . ADUKPO KEKELI 3 . ADIVOR SEYRAM ACCUSED PERSONS PRESENT. CHIEF INSPECTOR EMMANUEL DZAKU FOR THE REPUBLIC PRESENT. J U D G M E N T The Accused Persons were arraigned in court and charged with the following offences: (A)Assault Contrary to Section 84 of the Criminal Offences Act, 1960 (Act 29); and (B)Causing Unlawful Damage Contrary to Section 172 of the Criminal Offences Act, 1960 (Act 29). They pleaded NOT GUILTY to both Counts. The brief facts of the case are that, the Complainant, Akpalu Worlanyo is a teacher. Accused persons are farmers. They all reside at Mafi-Adzorkoe. On the 6th of December, 2022 about 1600 hours, the Complainant who live at the outskirts of Mafi- Adzokoe town, left his house and was heading towards the town. Few meters away from his 2 house, he was accosted by the accused persons. Without asking the Complainant anything, first Accused person held Complainant’s shirt by the chest whiles second and third Accused persons also seized him by both hands and started pushing him backwards and forward in an attempt to drag complainant to a place best known to them. In the process of the struggle with the Complainant, his Infinix Hot 5 mobile phone valued GH₵1,500.00 got damaged. The complainant lodged a complaint at the Mafi-Kumase Police Station where accused persons were arrested and cautioned to that effect. In their cautioned statement, accused persons stated that the Complainant fought with their uncle and they wanted to take him to their uncle’s house to know what happened between them. After investigation, accused persons were charged with the offence per the charge sheet and put before this honourable court. It is trite that, in all criminal cases, the burden of proof is always on the prosecution. This is backed by both statute and case laws. In the case of Commissioner of Police v. Antwi [1961] 1 GLR 408, the Supreme Court put the burden in this way in holding one (1) as follows: “(1) The fundamental principle underlying the rule of law are that the burden of proof remains throughout on the prosecution and the evidential burden shifts to the accused only if at the end of the case for the prosecution an explanation of the circumstances peculiarly within the knowledge of the accused is called for. The accused is not required to prove anything; if he can merely raise a reasonable doubt as to his guilt, he must be acquitted.” In the case of Woolmington v. DPP [1935] AC 462, where Lord Viscount Sankey held that “Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt................................No matter what the charge or where the trial, the principle that the prosecution must prove 3 the guilt of the prisoner is part of the Common Law of England and no attempts to whittle it down can be entertained.” Again, in the case of Oteng v. The State [1966] GLR 352 at 354, the Supreme Court took the view that: “One significant respect in which criminal law differs from our civil Law is that while in civil Law a plaintiff may win on a balance of probabilities, in a criminal case the prosecution cannot obtain a conviction upon mere probabilities.” Proof beyond reasonable doubt which is the core mandate of prosecution in all criminal cases has been codified by the Evidence Act, 1975 (NRCD 323) in at least three sections. These are sections 11 (2), 13 (1) and 22. Section 11 (2) states: “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 reasonable doubt.” Section 13 (1) states: “In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt.” Section 22 states: “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 a reasonable doubt, and thereupon, in the case of a rebuttable presumption, the accused need only to raise a reasonable doubt as to the existence of the presumed fact.” 4 In a bid to secure a conviction of the accused persons, prosecution filed three (3) witness statements and called all. They also tendered in evidence the following Exhibits, Investigation cautioned and charged statements of the accused persons and photographs of the scene of crime, the damaged phone. They were all admitted and marked as Exhibits ‘A’ ‘B’ ‘C’ ‘D’ ‘E’ ‘F’ and ‘G’ respectively. The accused persons filed their Witness Statements and that of their sole witness. They equally filed a photograph depicting a scene and same admitted and marked as Exhibit ‘I’. The First Prosecution Witness (PW1), Akpalu Worlanyo stated that he met accused persons at the outskirt of his house and without any word 1st Accused held his shirt to his chest while 2nd and 3rd Accused persons seized him by both hands and started pushing him. That in the process, his Infinix Hot 5 mobile phone valued GH₵1,500.00 got damaged. People came to his rescue and he lodged a complaint at the Mafi-Kumase Police Station. The Second Prosecution Witness, (PW2) Edinam Gogah evidence was that, she heard noise when she was at home on that fateful day. She came out and saw 1st Accused person holding PW1’s dress to his chest while 2nd and 3rd Accused persons were also holding his hand pushing him. That she attempted to separate them but accused persons were raining insults on her, eventually some people came to her rescue. The Third Prosecution Witness (PW3), General Lance Corporal Evans Anku evidence was to the effect that, a complaint lodged by First Prosecution Witness on the 6th of December, 2022 was referred to him for investigation. He obtained statements from First Prosecution Witness and Second Prosecution Witness as well as cautioned statements from the accused persons. That he visited the scene of crime took photographs and retrieved the damaged Infinix Hot 5 mobile phone. Later he was instructed to charge the accused persons. 5 Accused persons cross examined all prosecution witnesses after their evidence and Prosecution closed their case. The First Accused Person (A1), Dzidefo Adukpo in his defence stated that, on that fateful day Seyram Adivor, 3rd Accused person visited him and they were seated conversing with Adukpo Kekeli Thompson. That few minutes later, First Accused person had a call from one Yao Kamasa Adukpo that Worlanyo Akpalu, First Prosecution Witness was beating their elder brother, Cephas Agbedanu. Immediately they rushed there but met First Prosecution Witness near one Kuadzi Dzogolo’s room. That, he first Accused person was ahead of them by 12 yards away and stood infront of First Prosecution Witness and asked him why he was beating their brother. First Prosecution Witness said nothing and pushed him. He, first Accused person then held first prosecution witness’s hand but second and third accused persons intervened and advised they rather go to Cephas Agbedanu. That, he never saw first Prosecution Witness with any phone. The Second Accused Person (A2), Adukpo Kekeli stated that he was with first and third Accused Persons on that fateful day. While they were together, first Accused person had a call that, First Prosecution Witness was beating their elder brother, Cephas Agbedanu in his house. They rushed there and met first prosecution witness by the side of one Kuadzi Dzogolo’s room. That, first Accused person persuaded First Prosecution Witness to let them go to Cephas for his side of the story but first Prosecution Witness declined. Further, that he never saw First prosecution witness with any phone and nothing was seen at the scene. He did not hold First Prosecution Witness’s hand nor his shirt. First prosecution witness rather pushed first Accused person and in the cause of that first Accused person held first prosecution witness’s hand. 6 The Third Accused Person (A3), Adivor Seyram stated in his defence that he was with First and second Accused persons when Adukpo Kamara Yao called First Accused Person that, First Prosecution Witness was beating Cephas Agbedanu, their brother. They rushed there to rescue him. On their way, they met First Prosecution Witness by Kuadzi Dzogolo’s door in Gogah’s compound. That 1st accused person was ahead of them and he stood infront of first prosecution witness and asked that, they go to Cephas Agbedanu to find out the cause of PW1’s action but instead first Prosecution witness pushed first Accused person. It was there that first Accused person held PW1’s hand to find out the cause of his action but First Prosecution Witness pushed first Accused person away with force. Second and third Accused persons, then walked fast to joined first Accused person and asked him to leave First Prosecution Witness. That first prosecution witness was not holding any phone when first Accused person held his hand. The incident did not last at all, just for three (3) minutes and nobody shouted for witnesses to come to the scene to rescue First Prosecution Witness. The First Defence Witness (DW1), Cephas Agbedanu stated that in October 2022, three (3) of his goats got missing and were found in the custody of Akpalu Worlanyo, First Prosecution Witness. That on the 6th of December, 2022 around 0100 hours, the goats broke the fence where they were kept and run to his house. That his children arrested two (2) of them and kept. First Prosecution Witness upon realizing the goats broke his fence, picked a knife and unlawfully entered his fence and caught one (1) goat. First Defence Witness quickly approached him to find out why First Prosecution Witness did that. He insulted him and went away with the goat. That first prosecution witness came again 7 and caught another goat and when he asked him why that action, First Prosecution Witness drew nearer to him and pushed him down. First prosecution witness was beating him and they came to his rescue. First, Second and third Accused persons were part of those people. The Prosecution cross examined them after their evidence and this closed Accused persons case. The accused persons were charged with Assault and Causing Unlawful Damage Contrary to Section 84 and 172 of the Criminal Offences Act, 1960 (Act 29). Section 84 of Act 29 states: “A person who unlawfully assaults another person commits a misdemeanour. Assault is the act of intentionally creating a reasonable apprehension of harm towards another person. Battery is the act of intentionally touching or applying force to another person such that the person suffers harm or offence. While assault and battery are often treated as a single act, the two can be mutually exclusive. In other words, one can assault a person without committing a battery. Likewise, a person can commit a battery without assaulting that person. From the facts presented by the Prosecution, First Prosecution Witness never suffered any physical injury but there was assault. Section 85 of Act 29 states the different kinds of assault: (1) For the purposes of section 84, “assault” includes (a) assault and battery, (b)assault without actual battery, and (c)Imprisonment. 8 Section 87 of Act 29 states: (1) A person makes an assault without actual battery on another person, if by an act apparently done in commencement of an assault and battery, the person intentionally puts the other person in fear of an instant assault and battery”. The element of assault without battery is the intentional putting of fear in another person of an instant assault and battery. In Bruce-Konuah v. The Republic [1967] GLR 811, it was held that a person commits assault without actual battery where there is an apparent intention on the part of the person to cause harm and intending to put the other person in fear of danger. The legal issue for determination is whether or not the accused persons assaulted First Prosecution Witness. The court in determining the issue had to consider whether or not the accused persons touched First Prosecution Witness. First Prosecution Witness, Akpalu Worlanyo in his evidence in chief stated that on the 6th day of December, 2022 at about 1600 hours, he was leaving his house to Mafi- Adzokoe township when he met the accused persons at the outskirts of his house. That the accused persons without a word from him, first Accused person held his shirt to his chest while second and third accused person seized both hands and started pushing him backwards and forward. People around there came to his rescue. This assertion the accused persons all denied. That it was first accused person who stood infront of first prosecution witness to ascertain the cause of his action. Apparently, they had heard on phone that first prosecution witness was beating First Defence Witness, Cephas Agbedanu, their brother and rushed to the scene. 9 From their account, they never witnessed any beating of First Defence Witness. They met First Prosecution Witness though and asked him to join them to Cephas Agbedanu to know the truth of the matter but First Prosecution Witness refused and pushed first Accused person away. That was where first accused person held PW1’s hand and he was joined by second accused person and third accused person. Eventually, they left first prosecution witness and went to see first defence witness, Cephas Agbedanu to hear from him exactly what happened. A proper evaluation for the case of the defence should cover not only their evidence at the trial and that of their witness but also their statements given to the police. It is imperative for a court to do so not to render a judgment unsatisfactory and eventually lead to an acquittal of the accused on appeal, see Atta v. C.O.P [1963] 2 GLR, 460. Based on the provision above, the court considers their respective statements, Exhibits ‘A’ ‘B’ and ‘C’ Exhibit ‘A’: “On 6th December, 2022 about 3:00 pm, I was in my house eating with Seyram when we heard a noise in Agbedanu’s house. Da Kumah then called Kekeli’s wife and told her that Worlanyo pushed my brother Evitor onto the ground and we were told. We rushed towards Agbedanu’s house and met Worlanyo on the way and I held his hand that we should go back to my uncle so that we understand the issue. Kekeli was stopping me I refused so Kekeli held his shirt at the neck and pulled him. Seyram asked me to stop so I left him to go”. Exhibit ‘B’: “About three months ago, one evening about 2:30 pm, I was in my house when my wife Atsufe had a call that Worlanyo went to my brother Cephas Agbedanu’s house and assaulted him. My wife told me so I rushed out and met Seyram and Dzidefo also going to my 10 brother’s house. Whiles going we met Worlanyo in Kuadzi’s house and asked him to stop. Dzidefo then held Worlanyo’s hands and asked him to follow us to our brother’s house for explanation. Worlanyo was resisting so Dzidefo was pulling him so I walked and was separating them. Dzidefo refused to leave Worlanyo’s hand so I held the two of them and pushed them apart. People then came around and helped in the separation and we all left to our various houses”. Exhibit ‘C’: “On 6th December, 2022 about 4:00 pm, I visited Adukpo Dzidefo and we were eating when we heard a noise that Worlanyo was harassing Evitor in the Mafi- Adzokoe township so we rushed there and saw Worlanyo coming out of Evitor’s house. Dzidefo and Kekeli held his hand to go with them to Evitor and understand the issue. Worlanyo was resisting so I asked them to leave him which they did and he left to his house”. The accused persons Cautioned Statements as stated above was obtained from them two days after the occurrence of the incident. Therefore, very fresh in their mind yet they gave different accounts. The accused persons acted on hearsay as they were not at the scene of crime. First Accused person stated that he was with third accused in his house on that fateful eating when they heard noise from DW1’s house. Da Kumah then called Kekeli’s wife that first prosecution witness pushed first defence witness onto the ground. Another account from second accused person, was that his wife Atsufe had a call that first prosecution witness went to DW1’s house and assaulted him. That he, Second Accused was in his house and rushed out and met first and third Accused persons. Third Accused person’s account was that he visited first Accused person and while they were eating, they heard noise and rushed out and saw First Prosecution Witness coming from DW1’s house. 11 Again, the accused persons from their cautioned statements admitted to the offence of Assault. First Accused person stated that he held first prosecution witness’s hand that they should go to first defence witness’s house. Second accused person also stated that first accused person held first prosecution witness’s hand and first prosecution witness was resisting, so Dzidefo (A1) was pulling him. Third accused person that first and second accused person held first prosecution witness’s hand to go with them. That they did not assault First prosecution witness. The accused persons stated that their conduct did not constitute an assault, but what? Their contention is that they did not beat First Prosecution Witness per their lay mind of the offence of assault. They least expect that per their action, they intentionally put fear in First Prosecution Witness for imminent assault and battery. But for the people who came around, they could have caused more than the assault without battery. This is what ensued under cross examination. Q: You said I held your hand, is that correct? A: That is correct. Q: Are we quarreling? A: We are not. Q: Before now have we quarreled? A: It was an attack on me. Q: Why do I attack you for? A: I don’t know. Q: So you must know that you have done something that is why I held you like that? A: I did not do anything. 12 The sole witness of the accused persons evidence was as if first prosecution witness was standing trial, except to state that the accused persons were among the people who heard of the incident and came to his rescue. Cross examination between Prosecution and First Accused Person. Q: Upon receiving the complaint from Yaw Adukpo that first prosecution witness was beating First Defence Witness, you rushed to first Defence witness’s house, is that correct? A: Yes, it is correct. Q: So where did you meet First Prosecution Witness? A: We met him in the house. Q: I am putting it to you that you never met him in the house, rather you met him on the way per your own statement? A: It is not true. Q: In paragraph 5 you stated that when you met first prosecution witness on the way you held his hand to go back to the house to know what happened? A: It is not true. We met him in the house but not on the way. Q: Do you agree with me that you held First Prosecution Witness’s hand to follow you to your brother Cephas? A: Yes I agree. Q: In the same paragraph 5, is it true that first prosecution witness pushed you and you held his hand kindly? A: He did not push me. 13 Q: That the three of you went to the rescue of your brother Cephas and accosted first prosecution witness, is that correct? A: We accosted first prosecution witness in the house. Q: That it was Dakuma, Kekeli’s wife who said First Prosecution Witness assaulted Cephas A: Yes, it is true. Q: I am putting it to you that you are not being truthful. In your cautioned statement you said Kekeli’s wife and in your witness statement you stated Kamara, which is the truth? A: I am being truthful. Second Accused Person Q: Are you aware that after the incident you volunteered a statement to the police? A: Yes. Q: You also filed your witness statement, is that correct? A: Yes I did. Q: In your witness statement you stated that you were having a conversation with accused persons at Adukpo Dzidefo’s house, is that correct? A: Yes. Q: In paragraph 3 of your witness statement you said whiles having the conversation with first and third accused persons, first Accused person had a call that first prosecution witness was beating your brother but in your cautioned statement you said your wife called and informed you, you are not being truthful? A: It is correct. We are all in the same house so when my wife said it we heard it 14 Q: So you heard that information, what did you do? A: I went to find out whether what I heard is true. Q: Did you meet first prosecution witness assaulting your brother as alleged A: Yes. Q: When you met him beating him what did you do? A: I told him to stop. Q: Are you saying that you met first prosecution witness beating your brother? A: Yes. Q: In paragraph 4 of your witness statement you said you met first prosecution witness in Kudjogi’s room and you accosted him? A: I got there before first and third accused persons came there and first prosecution witness was assaulting him. Q: In that regard, your own witness statement and cautioned statement is not correct? A: It is correct. Third Accused Person Q: You have just said that you filed witness statement in respect of this case, is it correct? A: Yes. 15 Q: So why the controversy. You are not consistent. In your witness statement you said you were eating and in your cautioned statement that you were conversing A: It is correct. We were eating and chatting. Q: In your witness statement you said you were having conversation and heard noise and when you rushed there it was that first prosecution witness was assaulting your brother, is it correct? A: It is true. We heard the noise and the call also came in. When we got there first accused person held first prosecution witness’s hand. Q: In paragraph 6 of your witness statement you said first accused person held first prosecution witness’s hand lovely, is it correct? A: Yes it is. Q: What do you mean by holding lovely? A: Because there is no grudge, he held him in that lovely way. Q: I am putting it to you that if you hold someone’s hand without the person’s consent, it is an assault A: I don’t agree Q: I am putting it to you that he never held him lovely, he heckled him and you joined him A: It is not true. From the dialogue, these conflicting and contradictions in accused persons statements cast doubt for the court to believe them. The accused persons never gave any explanation under cross examination that would clear the doubt created in the mind of the court. On the second court, that is Causing Unlawful Damage Contrary to Section 172 (1) (b) of the Criminal Offences Act, 1960 (Act 29). 16 From the facts presented by prosecution, it makes the accused person liable to Section 172 (1) (b) as the value of the damaged phone cost GH₵1,500.00. Section 172 (1) (b) of Act 29 states: “A person who intentionally and unlawfully causes damage to property to a value exceeding GH₵100.00, shall be guilty of a second depress felony”. Section 173 of Act 29 states: “For the purposes of this Act “Damage” includes not only damage to the matter of a thing but also an interruption of the use of that thing, or an interference with that thing by which the thing becomes permanent or temporarily useless, or by which the expense is rendered necessary in order to render the thing fit for the purposes for which it was used or maintained”. Section 172 (1) of Act 29 which creates the offence of unlawful damage requires that for a person to be liable, the accused person must have caused the damage intentionally and unlawfully. Each of the two words emphasized above is important and must be established before one can be called upon to open his defence in respect of this offence. See: Homenya v. The Republic [1992] 2 GLR 312. In the instant case, the prosecution’s case is that the accused persons caused damage to first prosecution witness’s Infinix Hot 5 mobile phone, valued GH₵1,500.00. The prosecution tendered in evidence, Exhibit ‘H’ which was the photograph of the alleged damage mobile phone. The prosecution in its own case demonstrated by the photograph how the mobile phone they tendered, that the damage caused to it rendered it permanently or temporarily useless. The accused persons denied sighting any mobile phone in first prosecution witness’s possession but that they struggled with him. That caused its damage. It was in his possession but never fell on the ground. 17 Assuming that the mobile phone had been damaged intentionally, the next element to consider is whether or not the damage was unlawfully caused. If the assault without actually battery established was lawfully caused, an offence under Section 172 (1) of Act 29 does not arise. As Anterkyi J. (as he then was) held in Asante v. The Republic [1972] 2 GLR 197, that the damage was caused intentionally within the provision relating to intent in Section 11 of Act 29. The accused persons Cautioned Statements and their evidence in court were in conflict and same cannot be considered by the court. From the facts of the case which led to the accused persons being charged with the offence of Causing Unlawful Damage after conclusion of investigations is that, the accused persons caused damage to PW1’s Infinix Hot 5 mobile phone valued GH₵1,500.00. The law is that where a case boils down to facts and credibility of witnesses, if the court takes the view that one side or the other side is the truth then the accounts are mutually exclusive of each other. Once the court decides to believe one side of the story, it means the other side is a fabrication, the case of Ansah Sasraku v. The State [1966] GLR 297 at 298 SC. The Law is well settled that, a party or witness whose evidence on oath contradicts a previous statement is not worthy of credit and his evidence should not be regarded. Unless he is able to explain the contradictions between the statements and the evidence. See: Gyabaah v. The Republic [1984-86] 2 GLR 461 CA. Unfortunately, the accused persons were not able to explain to the court the contradictions in their evidence on oath, cautioned statements, thus Exhibit ‘A’ ‘B’ and C and even answers under cross examination. 18 The court considered the three stages set out in the case of Lutterodt v. Commissioner or of Police [1963] 2 GLR 429 at holding 3 to examine the case of the accused person. Holding 3. In all criminal cases where the determination of a case depends upon facts and it forms the opinion that a prima facie case has been made, the court should proceed to examine the case for the defence in three stages: (a) If the explanation of the defence is acceptable, then the accused should be acquitted; (b)If the explanation of the defence is not acceptable but reasonably probable, the accused should be acquitted; (c) If quite apart from the defence explanation, the court is satisfied on a consideration of this whole evidence that accused is guilty, it must convict”. From the foregoing, I am satisfied that the standard burden of proof as well as the evidence of the accused persons before me and I have come to the conclusion that the defence put up by the accused persons was neither acceptable nor reasonably probable and must be punished. As I find as a fact that accused persons conduct has been linked to the offences charged within the offence of Assault and Causing Unlawful Damage Contrary to Section 84 and 172 (1) (b) of the Criminal Offences Act, 1960 (Act29) and I hereby find the accused persons GUILTY and accordingly they are CONVICTED. MITIGATION Accused Persons pleaded for leniency. SENTENCE 19 The court considered the accused persons plea, their ages and as bread winners of their respective families and also first offenders, accused persons are sentenced to a fine of Eighty penalty units, in default 8 months imprisonment each on Count One. On Count two, accused persons are sentenced to a fine of hundred penalty units, in default 12 months imprisonment each. Sentences to run concurrent. In addition, the accused persons shall sign a bond to be of good behaviour for 6 months in default 12 months imprisonment each. The accused persons shall also settle the value of the Infinix Hot 5 mobile phone an amount of GH₵1,500.00 by the 30th of May, 2024 to First Prosecution Witness, Akpalu Worlanyo. RESTITUTION ORDER The damaged Infinix Hot 5 mobile phone be placed in Police Exhibit room at Mafi- Kumase Police station. H/W MOLLY PORTIA ANAFO-SALIA (MRS) (SGD) (DISTRICT MAGISTRATE) 30TH APRIL, 2024