THE REPUBLIC VRS ADJUMANI AND ANOTHER (B1/24/2022) [2024] GHADC 278 (29 April 2024)

IN THE DISTRICT COURT HELD AT SEGE ON MONDAY THE 29TH DAY OF APRIL, 2024. BEFORE HER WORSHIP VICTORIA AKUA GHANSAH ESQ. AS MAGISTRATE. CASE NO. B1/24/2022 THE REPUBLIC VRS 1. SIMON TETTEH ADJUMANI 2. HOPE ADJUMANI JUDGMENT The accused person were arraigned before this Court on the 5th February, 2024. They were both charged with the Offence Count; Conspiracy to Commit Crime namely: causing unlawful harm contrary to section 23 (1) of Act 29/60. Count Two: Causing Harm contrary to section 69 of Act 69 of Act 29/60. Count Three: Assault contrary to section 84 of Act 29/60 and Count Four: Stealing contrary to section 124 (1) of Act 29/60 respectively. A1 pleaded Not Guilty to Count 1, 3, 4. 1 A2 pleaded Guilty Simplicitor to Count 1and 2. The Court convicted him and after his mitigation sentenced him to 18 months imprisonment without the option of a fine to Count Two. Since A1 pleaded Not Guilty the Court set the matter down for trial. A1 was therefore admitted to bail pending trial. The brief facts of the case were that, before this Court were that Complainant was a commercial motor rider whilst A1 and A2 are unemployed and salt producer respectively and also brothers all residing at Adjumanikope. On the 27th day of January, 2024 about 8:30pm a witness in this case collected the Complainant Momofly keypad phone at Bonikope to make a call. After the call A1 met the witness and collected the Complainant’s phone from her. The witness went to inform the Complainant and the Complainant went to A1 to called the phone and he told the him the friend has taken the phone to Adjumanikope. The Complainant asked A1 to take him to the friend at Adjumanikope for him to get his phone on their way on the Complainants motor bike the Complainant’s motor bike the Complainant realized that his phone was in A1’s pocket and he stopped and removed same from the pocket. A1 got offended and slapped the Complainant on the face and went to inform A2. On the 28th day of January, 2024 about 7:30pm A1 and A2 rang the Complainant and told him that anywhere they meet they will burn him. On same day about 8:30pm the Complainant was in his grandmother’s house when A1 and A2 came/went there with cutlasses and A2 used the cutlass to cut Complainant on his head and run away. Witnesses chased to arrest A2 and he escaped. The Complainant lodged complaint to the Police and he was issued with police medical report Form to attend hospital for treatment and was endorsed by the medical officer. On 29th day of January, 2024 at 8:30pm the Complainant with the help of the youth some youth arrested A1 to the station for investigation whiles on the 2nd day of February, 2024 at about 8:30pm the Complainant together with some youth arrested A2 to the Sege police station when he was about joining a passenger car to Ashaiman. On the 3rd day of February, 2024 A2 during investigations led police to the scene of crime in the Complainant’s grandmother’s house. A search was conducted in A2’s room 2 at Adjumanikope and the cutlass was retrieved under his bed and same was kept for evidential purpose. After investigation A1 and A2 were arraigned before the Court. In proving their case prosecution call three (3) witnesses. Prosecution bears the burden of persuasion in criminal cases the standard of proof being proof beyond reasonable doubt and this burden of persuasion on the party claiming that a person was guilty has been provided for in Sections 13 and 15 of the Evidence Act 1975 (NRCD 323). Significantly whereas the prosecution carries that burden to prove the guilt of the Accused beyond reasonable doubt there is no such burden on him to prove his innocence. At best he can only raise a doubt in the case of prosecution. PW1 IS GIFTY ADJUMANI – CHOP BAR ATTENDANT. PW1 in her evidence in chief stated that on the said day, she attended funeral at Songornya Bonikope when she was about to leave her friend Felicia was not around so she took the phone of Complainant to call her because the phone of PW1 was off. PW1 again added that when she did not get her friend, she crossed the street to go and look for her. It was then that A1 called her. PW1 went to listen to A1. A1 asked me to give him the phone. PW1 told A1 the phone belongs to the Complainant. While trying to move away A1 forcefully took the phone from her and refused to give the phone back to her. Further, PW1 stated she reported to the Complainant. A1 was nowhere to be found. Complainant and one Seth went looking for A1 who was heading towards home. At the close of her case A1 cross-examined PW1 and she was discharged. PW2 IS AARON OSABUTEY- OKADA RIDER. PW2 in his evidence in-chief corroborated the story of PW1. He added that when he and his friend met A1, he told them the phone was with his friend. PW2 and his friend put A1 on their motorbike to go and collect the phone. However, whilst they were going, they searched the pocket of A1 and found the phone in his pocket. PW2 and his friend struggled to take the phone form A1 and came back to Sege. PW2 informed PW1 and her friend that he has found the phone. At Sege he had a call from the mother of A1 who insulted and 3 threatened PW2 on phone. A1also called and threatened him that he will murder him if he gets hold of PW2. A1 and A2 again went to my grandmother’s house with cutlass looking for me in Sege. A1 and A2 came to the house of PW2’s grandmother. A2 injured PW2 with cutlass inflicting cutlass wounds. PW2 became unconscious. He gained his consciousness at the hospital. After cross-examination by A1, PW2 was discharged. PW3 IS NO 45689 D/SGT NARZA NASHIRU STATIONED AT SEGE POLICE STATION. It was the case of PW3 that CID as investigator on duty on the 28th January, 2024 a case of conspiracy, causing harm, assault and stealing referred to him for investigation. Investigative cautioned statement was obtained from the two (2) Accused persons, both Accused persons were arrested later. The stolen phone was retrieved for evidential purposes. Cutlass was also retrieved and photographs and the medical form. PW3 tendered in evidence. They were admitted and marked EXHIBIT A, B, C, D respectively. At the close of the evidence in chief of PW3, A1 did not cross-examined him. The fundamental rule in all criminal cases has been stated in the 1992 constitution, Article 19(2) as follows: (2) A person charged with a criminal offence shall be presume innocent until he is proved guilty or has pleaded guilty. Sections 11(2) In Criminal action, the burden of producing evidence when it is on the prosecution as to any fact which 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 doubt. 4 The burden of proof in criminal trials in the sense of establishing the guilt of the Accused is generally on the prosecution, the failure of it should result in the acquittal of Accused as was held in the case of Donkor v The State (1964) GLR 598 SC. IN OPENING HIS DEFENCE A1. A1 stated he borrowed the phone from PW1 and was Accused of stealing when he told PW2 (Aaron) the phone was with his friend so we should go for the phone. At that time the phone was in his pocket but because he did not take the phone from PW2 he refused to give it to him. It was Larbi the motor rider who found the phone in my pocket. My brother Hope (2) asked for Aaron’s phone number. He also called Aaron. Hope called me that we should go and meet Aaron. Hope went alone and later he also followed with one Bridget but did not meet Aaron. Aaron called again when they went Aaron chased them with cutlass. Aaron cut my feet with the cutlass. When Hope (2) saw what Aaron has done he also used cutlass to inflict the wounds in the head of Aaron. ISSUES Whether or not A1 and A2 conspired to cause harm to the Complainant, conspiracy is established once an agreement to commit a crime is established without the need for the act to have taken place. The Ghanaian law on conspiracy is found under Section 23 and 24 of Act 29/60. Section 23(1). Where two or more persons agree or act together with a common purpose for committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime as the case may be. There must be more than one person for a charge of conspiracy Accused confirm the prosecution case that he agreed with A2 to go to the complainant’s grandmother’s house, A2 went with cutlass. The question this Court would like to ask is what has going to make enquiries got to do with a cutlass. PW3 in his evidence in chief confirmed that the cutlass A2 used to inflict wounds on PW2 (Aaron) was found under the bed of A2 during 5 investigation. Though A1 did not take part in the substantive offence of causing harm. He clearly planned with A2 to carry out the offence of causing harm. Excepts from cross-examination of PW2. “Hope called me that we should and meet Aaron. He went alone and later I followed with Bridget…. When Hope saw what Aaron has done to me, he also went home brought a cutlass and inflicted the wounds on the head of Aaron”. A2 stated in court; A1 went to attack PW1 because he insulted their mother. In the State v Yao Boahene (1963) 2 GLR 554 To Constitute an indictable. Conspiracy there must be an agreement between conspirators to do some common thing. The effect of admission of a conspiracy, the act or statement of a conspirator sought to bind his co-conspirator. Lu Nkoah & others v the Republic (1997-1998) 2 GLR 746. The confession of a conspirator is non-binding on the non-confessing conspirator however in the instant case A1 admitted in his evidence. A2 asked that the go to the house of Aaron PW2 together. He told the court he later followed up to PW2’s house with Bridget. He stood outside and only A2 went to attack PW2. ISSUES TWO (2) Whether or not A1 caused Harm to complainant. Causing harm under section 69 of Act 29 defined as; “a person who intentionally and unlawfully causes harm to any other person commits a second-degree felony. In all the evidence produced by the prosecution witnesses, as well as the brief facts attached to the charge sheet no where was the A1 incriminated to have caused harm to PW2. The 6 substantive harm was intentionally and unlawfully caused by A2. In criminal proceedings section 177 of Act 30 enjoins a court after to pronounce the Accused not guilty since the Charge has not been proved. ISSUE THREE (3) Whether or not A1 assaulted Aaron Osabutey by slapping him. Section 85 (1) (a) of Act 29 stipulates that Assault includes; Assault with Battery whilst section 85(2) states that assault in unlawful unless it is justified. 586 (1) A person makes an assault and battery on another person if without the other person’s consent and with intention of causing harm pain or fear or annoyance to the other person or of exciting the other person to anger that person forcibly touches the other person. During cross-examination A1; Q. When you collected the phone, you slapped me from Bonikope to Agbedrafo. A. PW2, it is not true. When I collected the phone from you, you first hit me and I hit you back. PW2 admitting to have hit A1 back will pass as tit for tat which refers to a situation in which an action or retaliation is equivalent to the action that, It is done in response. The Court would like to have a different look at this offence. The Complainant took his pound of fresh by hitting A1 back. He did not wait for the law to take its course. The Court at this juncture will not admit it as a change will require proof beyond reasonable doubt. ISSUE FOUR (4) 7 Whether prosecution proved A1 stole the phone of Complainant. It was the case of PW1 that A1 forcefully took the phone from her but refused to give it back to her. Upon persistence left the scene. PW2 had to use a motorbike to chase A1 for the phone. Section 125 (1) of Act 29 a person steals who dishonestly appropriates a thing of which that person is not the owner, Ampah v The Republic (1977) 2 GLR 171 CA. The element of stealing was identified as dishonesty (2) Appropriation and property belonging to another person. A1 initially did not dishonestly appropriated the phone in question. He called PW1 and forcefully took the phone from her. PW1 did not consent to A1 taken the phone away. PW2 has to chase A1 for the phone on a motor bike. A1 denied the phone was in his possession. Both A1 and PW2 agreed to go and take the phone from the friend of A1 but the phone was found in his pocket. A1 should not lose sight of the fact that it was PW1 who told PW2 that A1 has taken the phone from her. It therefore cannot be true that A1 was looking for PW1 across the road when he was heading towards home. The court finds that the prosecution has adduced sufficient evidence which has proved the case of A1 on count four (4). BY COURT The court is of the view that Prosecution has succeeded in proving the charge against A1 on conspiracy and stealing beyond reasonable and convicted A1 on same. Prosecution failed to proof the guilt of Accused on Count two (2) which is causing Harm Contrary to section 69 of Act 29 and Count three (3), A1 is therefore not guilty on Count two (2) and three (3). He is hereby acquitted and discharged on count 2 and 3. A1 is found guilty on count 1 and 4 and is convicted. Mitigation before sentence. PLEA IN MITIGATION A1 pleaded for leniency in his mitigation. 8 BY COURT Is A1 known. Prosecution – A1 is a first-time offender. BY COURT The co-conspirator was sentenced on C1 to 6 months prison terms without the option of a fine. The punishment is the same for A1. A1 is therefore sentenced to 6 months prison terms without the option of a fine. The Court has cautioned and discharged A1 on count 4. The decision of the court is to serve as a determent of after prospective offenders. (SGD) H/W VICTORIA AKUA GHANSAH MAGISTRATE 9