REPUBLIC VRS DAMOAH & ANOTHER (B10/05/23) [2024] GHADC 252 (17 April 2024)

SITTING IN THE DISTRICT COURT AT WENCHI IN THE BONO REGION ON WEDNESDAY THE 17TH DAY OF APRIL, 2024 BEFORE HIS WORSHIP ISSAH ABDUL-WAHAB ESQ. (MAGISTRATE) SUIT NO B10/05/23 THE REPUBLIC VRS 1. MAVIS DAMOAH (1ST ACCUSED) 2. AGNES POKUAA (2ND ACCUSED) JUDGMENT The accused persons herein were arraigned before this court on two (2) counts of Offensive Conduct Condusive to Breaches of the Peace: Contrary to section 207 of the Criminal and other Offences Act, 1960 (Act 29). The second accused person, Agnes Pokuaa (A2) pleaded guilty simpliciter to the charge and was convicted on her plea and sentenced to a fine of 80 penalty units or in default six (6) months imprisonment. The first accused person (A1) Mavis Damoah however pleaded not guilty and was tried. The court upon an examination of the particulars of the offence and the facts presented set the following issues down for the trial; 1) Whether or not the first accused (A1)went to the workshop of the complainant Esther Gyamaa; 2) Whether or not whiles at the shop of the said complainant, 1st accused invoked any spirits of ancestors (curses) to deal with the complainant. 3) Whether or not the said conduct of the accused was offensive and had the potential of breaching the peace in the area; 4) Whether or not the said conduct of the accused (A1) was unlawful. 1 The facts of the case as presented by the prosecution are that the complainant in the case is one Esther Gyamaa aged 29 years and is a seamstress and lives in Wenchi. That 1st accused, Mavis Damoah aged 38 years is a trader and lives in Wenchi. 2nd accused, Agnes Pokuaa is also the mother of the complainant and the aunt of the 1st accused and is 56 years and a farmer and lives at Beposo near Wenchi. That on the 20th day of November, 2022, 1st accused had an altercation with the complainant and so 1st accused went and put the matter before elderly man for him to talk to the complainant. That the said elderly man then tasked 2nd accused to talk to the complainant and which 2nd accused agreed to do. That notwithstanding that, on the 21st day of November 2022, 1st accused took matters into her own hands and went to complainant’s work place with herbs, cowries and eggs where she met her with other witnesses and to complainant that “you Esther, I hate you, I invoke the spirit of my ancestors to deal with you”. That with these statements, 1st accused threw the herb, locally called and known as “Tameawu” as well as the cowries on the complainant and then smashed the eggs on the ground in the presence of witnesses but the complainant did not utter a word. That instead complainant called 2nd accused on phone and informed 2nd accused about the incident. That 2nd accused hurriedly went to the shop of 1st accused and confronted 1st accused for what 1st accused did to the complainant. That 2nd accused rained insults on 1st accused to wit, “witch and senseless woman”. “You have used your witchcraft to kill your parents and now want to do same to my daughter”. That this was in the presence of witnesses. 1st accused lodged a complaint with the police in Wenchi and 2nd accused was arrested and cautioned. After police investigations the two (2) accused persons were charged and put before the court. 2 The evidence of the prosecution adduced in proof of the charge against 1st accused, consisted of the testimonies of their four (4) witnesses. The first prosecution witness who was the complainant (pw1) told the court she is Esther Gyamaa, a seamstress and also a revenue collector with the Zoom lion Company. That she knows the accused persons. That 2nd accused is her (pw1) mother. Pw1 said she knows the other prosecution witnesses. That she (pw1) has a colleague worker at the Zoom lion Company called Innocent who happens to be a friend to 1st accused (Mavis Damoah). That Innocent (pw3) often visits 1st accused at her (A1) shop and each time she (pw1) passes and sees 1st accused and pw3, she (pw1) greets them. That this was because she (pw1) was in charge of the collection of the fees for the garbage collected in the area where 1st accused lives. That pw3 one day asked her (pw1) if she had any issues with 1st accused and she (pw1) said no. That pw3 then told her (pw1) 1st accused often insults her (pw1) in his (pw3) presence. Pw1 said she was surprised to hear that and so she (pw1) stopped going to 1st accused to collect the refuse money/fees. Then on the 20th day of November 2022, 2nd accused told her (pw1) that 1st accuses came to complain to her (A2) that when she (pw1) sees her (A1), pw1 shakes her buttocks which she (A1) does not like and pw1 also invited pw3 who is her (A1) sales boy for lunch. Pw1 said she told 2nd accused that was not true and that she (pw1) as no issues with 1st accused. Then on the 21st day of April, 2023, whiles she (pw1) was at her (pw1) tailoring shop, 1st accused came there with some local herbs commonly called “tameawu” as well as some cowries and eggs. And that without any provocation 1st accused said the following; “since you denied what I told your mother, I am here to curse you”. That 1st accused again said; “I invoke the spirit of the ancestors to deal with you”. Then 1st accused threw the cowries and the herbs in front of her (pw1) and smashed or broke the eggs on the floor. Pw1 said the actions of 1st accused drew people to the scene, whiles 1st accused called her (pw1) names to wit; “useless woman, stupid woman” etc. 3 That the people who came around intervened and 1st accused left the place. Pw1 said she called 2nd accused on phone and told her what 1st accused had done. She (pw1) then filed a complaint with the Wenchi Traditional Council but 1st accused refused to appear. This was because of the curses. That when the Traditional Council served 1st accused, she rather went to report to the police against 2nd accused. The second prosecution witness (pw2) was one Rose Tierenye, a seamstress apprentice and resident in Wenchi. That she knows the complainant (pw1) and 1st accused. That she (pw2) works in the tailoring shop of pw1. Pw2 said on the 21st day of November 2022 at about 2:30pm whiles they were at the shop 1st accused came there. That 1st accused without greeting anyone of them started saying to pw1 that she lied about one Kwabena Alabi (pw3) eating in her (pw1) house. That 1st accused also said she hates pw1. Pw2 said they all sat quietly and watched 1st accused. That 1st accused had in her hand some local herb called commonly as “tameawu”, some eggs and cowries. That 1st accused then threw the cowries and herbs in front of them and smashed the eggs on the ground. After that 1st accused rained insults on pw1. She called pw1 hopeless woman etc. that she (pw2) sat and watched till 1st accused was tired and left. The third prosecution witness (pw3) was one Kwabena Alabi Innocent and he lives in Wenchi. That complainant (pw1) is my friend and a co-worker at Zoom lion Ltd. That 1st accused used to be his (pw3) friend and whom he (pw3) visited occasionally at her (A1) shop. That in the later part of the year 2021, whiles he (pw3) was in the shop of 1st accused pw1 came to pass and saw him (pw3) there. That pw1 stopped and greeted them and he (pw3) introduced pw1 to 1st accused. That pw1 has been assigned by zoom lion to that area for the collection of garbage fees. 4 Pw3 said one day complainant (pw1) met him (pw3) at 1st accused’s shop and he told pw1 that he will like to come and eat in her (pw1) house and pw1 agreed. That pw1 later prepared food and invited him (pw3) to her house. The witness said when he returned from pw1’s house, 1st accused questioned him (pw3) why he went to the house of pw1. That 1st accused asked him (pw3) if he is aware pw1 is possessed. And that 1st accused told him to find a way to sack pw1 from the job and she (A1) has someone she can bring to replace pw1. Pw3 said he did not like what 1st accused was saying and so he stopped visiting 1st accused. Pw3 said it is not true that he (pw3) is the sales boy of 1st accused. That he is fully employed by the Wenchi District Assembly and attached to the Zoom lion. That he only visited 1st accused. The fourth and final witness of the prosecution (pw4) was the police investigator of the case. No. 5953 D/PW/Sgt. Helena Agyeman stationed at Wenchi District Police DOVVSU. That she knows the complainant (pw1) and the other witnesses. That she also knows the accused persons. Pw4 said on the 21st day of November, 2022, she was on duty on the station CID when a case of offensive conduct was reported against the accused persons. That 1st accused reported against 2nd accused whiles complainant also reported against 1st accused. She (pw4) then took statements from the complainants and witnesses. That the accused were then released on police bail. That the investigations revealed that 1st accused went to the shop of pw1 cursed pw1. That pw1 then called to inform 2nd accused who is her (pw1) mother and 2nd accused also confronted 1st accused and rained insults on 1st accused. The accused were both arrested and cautioned. Then statements were taken from witnesses as well. After investigations the accused were charged with the offences. The caution and charge statements of 1st accused, Mavis Damoah were tendered and marked as exhibits ‘A’ and ‘B” respectively. After the prosecution closed their case, 1st accused was called upon to open her defence. 5 In her evidence in chief, the first accused (A1) told the court she is Mavis Damoah. That she lives in Wenchi and is a business woman. That she knows the prosecution witnesses. 1st accused said prior to the day she (A1) curded or invoked the curses on pw1, that pw1 had come to her (A1) shop on a way that looked like pw1 was coming to take away her (A1) sales boy (pw3) away. That pw1 then threw sand into her (A1) shop. That the sales boy (pw3) then left with the complainant (pw1). 1st accused said she reported the issue to one police Chief Leticia Obeng who was the one in charge of the DOVVSU of the police in Wenchi the next day. That the police then advised her to look for the parents of pw1 and tell them. 1st accused said she then went to pw1’s mother (A2). 1st accused said after that she consulted her spiritual’s who told her (A1) the sand pw1 threw in her (A1) shop was to stop her (A1) salesman from coming to her (A1). That the spiritualist then directed her (A1) to give pw1 a certain leaf called “tameawu” so that pw1 will stop coming to her (A1) shop. So she (A1) went to pw1 and asked what she (pw1) comes to do at her (A1) shop. That pw1 said she does not come to her (A1) shop. That 2nd accused who is pw1’s mother came to her (A1) whiles she (A1) was on phone, 2nd accused hit the phone and it fell. 2nd accused then rained insults on her (A1). That pw1 then summoned her (A1) before the Wenchi Traditional Council. 1st accused said same day too the police invited them. 1st accused said the police later told her (A1) to come to court. That pw1 said if she (A1) will not leave her (A1) case with her mother (A2) then she (pw1) too will not leave her case. 1st accused did not call any witness. Having carefully evaluated the evidence, it is important to observe that the prosecution argued that the accused person herein, Mavis Damoah (A1) went to the shop of the complainant (pw1) and in the presence of witnesses invoked curses on the complainant (pw1). That the accused threw some items including cowries and smashed eggs on the 6 ground in front of pw1 in her shop whiles invoking the spirits of her (A1) ancestors to come and deal with the complainant. This was the testimony of the first prosecution witness (pw1) who is also the complainant in the case, Esther Gyamaa, and that was corroborated by the other prosecution witnesses including one Rose Tierenye (pw2) who was one of the witnesses present. She (pw2) told the court she is a seamstress apprentice with the complainant (pw1) and that they were in the shop with the accused (A1) and without greeting them, started curses pw1 and then threw the items she came with which included cowries and eggs. That 1st accused smashed the eggs on the ground in front of the complainant (pw1) and spoke curses on the complainant (pw1) in their presence. It is important to state that the accused (A1) herself confirmed and corroborated the case of the prosecution when she (A1) stated emphatically that she consulted her (A1) spiritualist or soothsayer after the complainant (pw1) Esther Gyamaa came to her shop earlier to see her sales boys and in the process threw some sand into her (A1) store. So clearly the accused (A1) in her own evidence never denied that she went to the shop of pw1 and rained curses on pw1. This conduct of the accused (A1) is however what has been deemed offensive and same had the potential of breaching the peace in the area where the complainant has her shop. This court also takes the view on the basis of the evidence adduced that the accused (A1) clearly engaged in an action that was provocative and completely unnecessary. If it was even the case that the complainant herein (pw1) was the first to go to the store of the accused (A1) and where the complainant threw sand into the store of the accused as alleged, the accused (A1) should not have taken the law into her (A1) hands and also run to the shop of the complainant (pw1) in the way that she (A1) did it. Obviously the facts before this court have shown that the accused (A1) when she (A1) went to the shop 7 of the complainant was very angry and was why she did not greet anyone at the shop. She (A1) just started cursing and invoking the spirit of her ancestors. That was extremely offensive, and very provocative and utterly wrong. Finally, it must be noted that given the fact that the charge brought the accused (A1) is offensive conduct condusive to breaches of the peace, that said conduct of the accused directed at the complainant (pw1) was the curses and this the accused herself admitted has not denied in her evidence. So from the evidence I found the following as facts; 1. That the complainant (pw1) and the accused (A1) have had some issues over one Innocent Kwabena Alabi (pw3). 2. That the accused (A1) became offended that the complainant (pw1) came to the said gentleman (pw3) at the store of the accused. 3. That accused (A1) alleged that complainant (A1) came to her store and threw sand into the store. 4. That the accused (A1) then angrily went to the shop of the complainant (pw1) and invoked curses and the spirit of her (A1) ancestors on the complainant (pw1) in the presence of witnesses. The law is that in a trial of an accused person, the burden of proof in the sense of the burden of establishing the guilt of the accused is on the prosecution and failure on the part of the prosecution to discharge that burden must lead to the acquittal of the accused. See: Donkor Vs the State [1964] 2 GLR, 598 SC. It is also the law as set out in the case of Yeboah Vs The Republic [1972] 2 GLR, 289, that the guilt of the accused in a criminal trial must be proved with the degree of certainty that is required by law. 8 On the standard burden of proof requires of the prosecution, section 11 (2) of the Evidence Act, 1975 (NRCD 323) states that; “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”. On the offence of offensive conduct condusive to the breaches of the peace as created by section 207 of Act 29 of 1960, the prosecution in proving the charge must show or establish the ingredients of the offence. These are; 1. The prosecution must show that the accused by words or actions conducted herself in a manner that was offensive’ 2. That where the said conduct took place is a public place; 3. That the said conduct was directed at the complainant; and 4. That the said conduct had the potential of breaching the peace in the place. Here it is important to determine where or what a public place is, I must state that in section 10 of the Public Order Act, 1994 (Act 491) and section 72 of the Gaming Act, 2006 (Act 721) and the decision of the court in the case of Gaba Vs The Republic [1984-86] 1 GLR, 694, it has been settled that no offence is committed under section 207 of Act 29 if the place is a private place and not a public place. A public place is therefore defined in the sections referenced above as a place is defined to mean a place where the public is permitted to have access. In relating the evidence to the law as stated above it is important to stat that the shop of the complainant where she does her work as a seamstress is a public palace as it is opened to all her customers and the general public who want to do business with her (pw1). Then was the conduct of the accused (A1) offensive? The answer is yes. The 9 accused clearly had no right to go to the shop of the complainant for the sole purpose of cursing the complainant. This said conduct obviously had the potential of breaching the peace if the complainant (pw1) had not restrained herself in the wake of the said extreme provocation by the accused (A1). That conduct of the accused was wrong and unlawful. From the evidence and the law therefore it is the conclusion of the court that the prosecution has proved the charge against the accused (A1) and she has been found guilty as charged. Accused is convicted of the offence. The reasons for the above conclusion include; 1. That accused had some issues with the complainant which they could not resolve; 2. That accused angrily went to the shop of the complainant and rained curses on the complainant in the presence of witnesses. 3. That the place is a public place and the peace could have been breached but for the inaction on the part of the complainant. 4. That accused conduct was offensive and unlawful. 5. That the prosecution proved the guilt of the accused beyond reasonable doubt. Mitigation- On mitigation 1st accused pleaded with the court to temper justice with mercy. That her action was precipitated by what the complainant (pw1) came to do in her shop. 1st accused, Mavis Damoah is hereby sentenced to a fine of ninety (90) penalty units or in default six (6) months imprisonment. …………SGD.………. ISSAH ABDUL-WAHAB (MAGISTRATE) 10 11