REPUBLIC VRS ADUNIA (UE/NA/DC/B4/1/2023.) [2024] GHADC 512 (18 April 2024)

IN THE DISTRICT COURT HELD AT NAVRONGO IN THE UPPER EAST REGION ON THURSDAY THE 18TH DAY OF APRIL, 2024, BEFORE HIS WORSHIP FAMOUS YAO AMANYO (DISTRICT MAGISTRATE) SUIT NO: UE/NA/DC/B4/1/2023. THE REPUBLIC V ERIC ADUNIA JUDGMENT [1]Accused was arraigned before court on 14th January, 2022 on a charge of assault contrary to section 84 of the Criminal Offences Act, 1960 (Act 29). Accused pleaded not guilty. [2]The brief fact are that PW1 is a baker resident at Namolo. Accused is a carpenter and lives at Balobia. On the 9th June, 2022 accused wore helmet to disguise himself and whipped PW1 at Namolo/Navrongo with a wire. Accused however pleaded alibi. [3]The case of prosecution is contained in evidence adduced by PW1, PW2 and PW3. PW1, Mariam Osman is the complainant in the case, stated that on the 16th June, 2022 at about 8: 30pm she was with PW2 and younger sister at their bread joint at Namolo. Accused came wearing helmet and bought GH¢3.00 worth of cake. Accused told her that he was having GH¢10.00 so PW1 turned to take her money container for the change. Accused then whipped PW1 with an object. She sustained bruises on her neck and nearly fell down. Her younger sister shouted and accused ran away. In the course of bolting, an oncoming vehicle flashed light on accused and he was identified by PW2. [4]PW2, Dede Doragia stated she was sitting at where she sells bread together with PW1 and her younger sister on 16th June, 2022 at about 8:30 pm. Accused came wearing helmet 1 to buy cake and PW1 served him. She later heard unusual sound. Accused whipped PW1 twice and she shouted and fell down. Accused took to his heels towards Navrongo to Paga road. She raised alarm. Some young men stood to catch accused but he turned to the opposite side. A taxi flashed light on accused and she identified him. [5]PW3, D/Inspector Dramani Mahamadu also stated that PW1 reported the matter on 16th June, 2022 at 9:00 pm. After investigations he charged accused. He tendered exhibits A, B and C being investigation caution statement of accused, charge statement of accused and the medical form he issued to PW1 respectively. [6]Accused defence is that of alibi. According to him on 16th May, 2022 at about 8:30 pm he was at the grinding mill to help his sister to carry bread flour to the house. He tendered exhibit ‘1’which is the same as exhibit A. He stated the date of incident as 16th June, 2022. He added that after he took the bread flour home, he came out and met his friend Aguyire and some of Aguyire’s friends at Pungu road junction. They discussed some issues. Thereafter he went back home and slept. And that he has a motorbike and uses his big brothers helmet to ride it. [7]His only witness was disqualified on grounds of her presence in the court during proceedings. [8]Accused filed notice of alibi on 8th September, 2023. He repeated the date of incident as 16th May, 2022 at about 8:00 pm. According to him he was in Nogsenia with his sister Raheal packing bread flour whiles two of his friends Mr. Jeffery Adda and Mr. Tiddy Adda were sitting by. After packing the bread flour, they took it home. He then went out with his friends Mr. Jefrey Adda and Tiddy Adda to meet Aguyire at Pungu Junction. According to accused his wife called him to go to condemn road grinding mill “to help his younger brother Peter to carry bread dough to the house. He went with Mr. Jeffrey Adda’s motorbike to carry the bread dough to the house with the help of Mr. Eugene and Zugunia. He reached 2 house with the bread dough at about 9: 00 pm in the presence of his wife, sister and mother. Accused states that he was nowhere at or close to or involved in the incident alleged in his case. [9]I now proceed on the burden of proof. The burden on prosecution under section 11(2) of the Evidence Act, 1975 NRCD 323 is to produce sufficient evidence to prove its case beyond reasonable doubt. [10]The burden is satisfied if all the elements constituting the charged are proved. In Kugblenu v The Republic [1969] CC 160 CA Ollenu JA noted “It is trite law that the onus upon the prosecution is to prove their case beyond all reasonable doubt. This applies to all material issues and matters which form the pivot of the case of the prosecution or the pillars or foundation of the case upon which the case rests. If the prosecution leads evidence which creates uncertainty, they have failed and the accused should acquitted”. [11]In Richard Kwabena Asiamah v the Republic [2019] JELR 67945 CA it was noted that under section 13(1) of the Evidence Act, 1975 NRCD 323 and Article 19(2)(c) of the 1992 constitution, a criminal offence requires proof beyond a reasonable doubt. The burden is on prosecution to prove all the ingredients of the offence charged. Failure to discharge this duty shall lead to the acquittal and discharge of the accused person. However, when this duty is discharged and a prima facie case is made, then an accused person may have to give an answer or explanation which raises a reasonable doubt as to his guilt. [12]Accused has no burden of proof of his guilt but has burden to raise doubt as to his guilt. This is contained in section 11(3) of the evidence Act, 1975 (NRCD 323). In Mallam Ali Yussif v The Republic [2003-2004] SCGLR 174 the Supreme Court noted that “the burden of producing evidence and the burden of persuasion are components of burden of proof. Thus although an accused person is not required to prove his innocence during the course 3 of his trial, he may run a risk of non-production of evidence and/or non production to the required degree of belief particularly when he is called upon to mount a defence.” [13]To prove assault, prosecution must first identify the type of assault it was dealing with. Section 85(1) of the Criminal Offences Act, 1960 (Act 29 provides for types of assault as follows:- “For the purpose of section 84 “assault’ includes. (a) Assault and battery (b)Assault without actual battery and (c)Imprisonment. [14]It was alleged that the accused whipped PW1 with an object. This amounts to forcible touching and clearly assault and battery. The elements under this type were provided for in section 86 (1) of the criminal offences act 1960 (Act 29) as (a) occurring without the victims consent, (b) with intention of causing harm, pain or fear or annoyance to the victim or exciting victim to anger and (c) by forcibly touching the victim. [15]In comfort v The Rep [1974] 2 GLR 1 at pages 3 -4 Osei Hwere J (as he then was) noted “by section 86 (1) of the criminal offences code, 1960 (Act 29), a person commits an assault and battery when, essentially, there does not exist the other person’s consent. Consent therefore, generally negatives any offence of assault. I say “generally” because I concede that the victim’s consent cannot be a defence for an assault if the blows inflicted are, in the opinion of the court likely to cause bodily harm…” [16]In this case it was established by prosecution that PW1 was whipped. This became clear through the evidence of PW1 which was corroborated by PW2 and a medical report 4 tendered by PW3. According to PW1 and PW2 they know accused because they usually meet at the grinding mill. So there was no difficulty in identifying accused although he wore helmet. Besides, the helmet finally fell off when accused was finding it difficult to escape. [17]At the inception of this case, accused vehemently denied the offence of assault and put forward defence at alibi. He went further and complied with section 131 of the criminal and other offences (Procedure) Act, 1960 (Act 29) by filing notice of alibi on 8th September, 2023. [18]The findings of prosecution as contained in its report filed on 18th October, 2023 show that accused was actually at the crime scene on 16th June, 2022 at about 8:30pm. But the accused and his witnesses were using 16th May, 2022 as the date of incident. Prosecution concluded that on 16th June, 2022 at about 8:30 pm accused assaulted PW1 in the presence of PW2. Since these adverse findings were made by prosecution against accused plea of alibi, he assumes the burden of proof of his alibi by producing evidence through witnesses who knew about his movement on 16th June, 2022 [19]In Bediako v The State [1963] 1 GLR 48 SC at 50 it was held that “if an accused put forward an alibi as an answer to a criminal charge, he is simply saying that whoever might have committed the offence, if it was committed at all, it was not he; and to support this he leads evidence that he was elsewhere at the material time”. [20]In Ibrahim Razak & 1or v The Republic Crim. Appeal No. J3/6/2011 dated 25th April, 2012 Ansah JSC speaking for the Supreme Court noted. “the onus of making good the plea at alibi was on the person asserting it, in this case the second appellant. This he may discharge on the balance of probabilities”. [21]In his notice of alibi, accused mentioned the following persons as those who knew about his movement on16th June, 2022: 5 (1)Raheal, (2)Mr. Jeffery Adda, (3)Mr. Tiddy Adda, (4)Aguyire, (5)Rebecca Kudule, (6)Peter, (7)Eugene Lugunia and (8)Mother [22]Inspite of all these eight persons alleged knowledge about the alibi of accused, he selected only three people as witnesses who prosecution said could not prove accused’s alibi plea. To worsen matters, accused called one witness at the trial who was disqualified because she was always in the court room watching proceedings in this case. In effect, accused could not call his witnesses to testify on oath and prove his alibi. He was unable to mention all the people whose names he put in the notice of alibi under cross examination as follows: Q. You filed an alibi on 8th September, 2023 is that correct? A. Yes. Q. In the said document you mentioned some people who you claimed you were with. Can you mention them? A. Jeffery Adda and Rebecca Kudule. [23]Apart from accused’s failure to prove his plea of alibi, there are material inconsistencies in his evidence in chief, notice of alibi and cross examination as against exhibit A. In exhibit A accused alleged that on 16th June, 2022 at 8:30 pm he was with his sister to pick bread flour at Nogsenia. After that he came out of his house and met Aguyire. Under cross examination accused stated as follows:- 6 Q. On 16th June, 2022 at about 8:30 pm where were you? A. At home. [24]In his notice of alibi accused stated that he was with Mr. Jeffery Adda and Mr. Tiddy Adda at the grinding mill and even went with them and met Aguyire contrary to what he stated in exhibit A that he alone met Aguyire and Aguyire’s friends. [25]Again in exhibit A accused stated that after he assisted his sister Raheal, he met Aguyire and Aguyire’s friend for some issues and thereafter he went and slept. This is also contrary to what he stated in the notice of alibi that his wife called him to help his younger brother Peter to carry bread dough which happened at 9:00pm in the presence of his wife, sister and mother. Meanwhile accused forgot that it was his very wife who called him to go and assist Peter at “condemn road”. [26]In Odupong v The Republic [1992 – 1993] 3 GBR 1028 it was held that “the law is now settled that a person whose evidence on oath is contradictory of a previous statement made by him whether sworn or unsworn, is not worthy of credit and this evidence cannot be regarded as being of any probative value in the light of his previous contradictory statement unless he is able to give reasonable explanation for the contradiction.” [27]In the light of the foregoing I find as a fact that prosecution has proven its case beyond reasonable doubt as required of it. Accused has not been able to prove his plea of alibi on the preponderance of probabilities. To further worsen matters his entire defence was full of inconsistencies. [28]In the result I found the accused guilty of assault and he is convicted accordingly. 7 [29]In sentencing accused I have taken into consideration the fact that he is a first time offender. He is married with children. However the manner he committed the assault to my mind is quite grave. I am however inclined to be lenient with accused although I do not lose sight of the fact of rampant assault cases coming before this court. [30]In view of above, I sentence accused to pay a fine of 150 penalty units or four months imprisonment in hard labour. [31]Accused is ordered to compensate PW1 with GH¢400.00 for expenses incurred at the hospital. (SGD.) H/W FAMOUS YAO AMANYO (DISTRICT MAGISTRATE) Representation 1. Chief Inspector Emmanuel Darko Nimako for prosecution. 2. No legal representation for Accused person. 8