REPUBLIC VRS OSMAN (UE/NA/DC/B3/2/2023) [2024] GHADC 514 (2 July 2024)

IN THE DISTRICT COURT HELD AT NAVRONGO IN THE UPPER EAST REGION ON TUESDAY THE 2ND DAY OF JULY, 2024 BEFORE H/W FAMOUS YAO AMANYO (DISTRICT MAGISTRATE) SUIT NO. UE/NA/DC/B3/2/2023 THE REPUBLIC VRS MARIAM OSMAN JUDGMENT [1]On 27th July, 2022, accused was arraigned before this court on a charge of causing harm contrary to section 69 of the Criminal Offences Act, 1960 (Act 29). She plead not guilty. [2]The facts are that PW1 is a baker resident at Balobia. Accused is unemployed resident at Namolo. On 9th June, 2022 at about 3: 30pm PW1 and accused met at grinding mill shop at Nogsenia, Navrongo. They were there to mix bread flour. There was argument between PW1 and accused as to who should mix the flour first. They exchanged unpalatable words and quarreled. The operator advised the accused to allow PW1 to grind first and she agreed and went outside. They were still exchanging words. PW1 went out of the shop and engaged accused in a fierce fight. [3]The case of prosecution as narrated under oath by PW1, Rebecca Kudule is that on 9th June, 2022 at about 4:30 pm she went to a grinding will located at Nogsenia condemn road to grind bread flour. She stood in the queue waiting for several hours. It got to her turn to grind her flour and in the process of putting her flour into the mill accused came and asked her to sop because it was her turn. Accused threatened to put her flour into 1 the mill should PW1 put her own. In spite of the threat she put her flour into the mill. Accused started insulting her. She also exchanged words with accused. Accused slapped her and she also slapped accused. The mills operator separated them and took accused out of the milling room. She was preparing to leave when accused entered the milling room and whipped her with a cable. Thereafter she picked a metal she found at the scene and hit her head and she sustained a deep cut. She rushed to the police station and reported the case. Medical form was issued and she attended hospital. [4]PW2, Dramani Mahamadu is the in investigator in the case. According to him PW1 came to the police station on 9th June, 2022 at 5:55 pm with blood oozing from her head. She reported that accused used metal to hit her head. He issued medical form for PW1 and she returned the form duly endorsed by the medical officer. He tendered the caution statement of Accused, charge statement of accused and the medical report marked as exhibits ‘A’, ‘B’, and ‘C’ respectively. [5]Prosecution filed witness statement of Diana Asumakai and Rebecca Aketie but failed to call them to testify in court. [6]The defence of accused is that in the early morning of 9th June, 2022 she went to the grinding mill shop to mix dough nut flour. When she was done, nobody came so she joined another queue to enable her comeback and mix another flour. She came back and saw PW1 outside the milling room whiles the operator was missing flour. When the operator finished what he was missing, PW1 entered the room and asked whether it was her turn to mix her flour. She also went into the room to check whether it was her turn. She asked the operator whose turn it was and PW1 answered that, that was how accused was living. If she (PW1) comes to mix she will also come to say that it was her turn. She never uttered a wood. The operator asked her to wait outsides and allow PW1 to mix her flour first. When she was living PW1 started insulting her that she is a fool, her mother has HIV AIDS and looks like she will not die today or tomorrow. She also replied that 2 PW1 should not insult her mother and that if she knows relationship between accused mother and PW1’s mother in law, PW1 would not be here and be insulting her. PW1 then held her corn role hair behind and pulled it. PW1 also beat her. The operator held PW1 and separated her from accused. She was then pregnant and was with her other child. [7]The court called the mills operator, Eugene Lugunia as its witness (CW1). According to CW1, he knows PW1 and accused. On 9th June, 2022 accused came to his shop. She mixed her bread flour and left some flour and said she would go and come later to mix the remaining flour. After she left, he was mixing other person’s flour. PW1 came with her flour to mix. He told PW1 to wait for him to finish what he was mixing. When he finished he was about to pour PW1’s flour into the mill when accused came and said she wanted to mix her remaining flour. This brought misunderstanding between PW1 and accused. He talked to them and accused understood to allow PW1 to mix her flour first. They were exchanging words so he asked accused to wait outside as he attends to PW1. Both understood and accused went outside. He was mixing the flour with the other mill. Suddenly he heard some noise outside. He rushed outside and found that accused and PW1 were fighting. The onlookers separated them. He also went and separated them. From there he closed the shop. [8]The duty of prosecution has always been to produce sufficiently evidence to prove the elements in the case for which accused is charged. It must do so beyond reasonable doubt. Section 11(2) of the evidence Act, 1975 (NRCD 323) provides “in a criminal action the burden of producing evidence, when it is on 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 existence of the fact beyond a reasonable doubt.” [9]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 3 applies to all material issues and matters which form the pivot of the case of the prosecution or the pillar 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.” [10]Although accused is not required to prove anything he has duty to raise doubt as to his guilt. In Commission of Police v Isaac Antwi [1961] GLR 408 at 412 Korsah CJ stated as follows: “ the law is well settled that there is no burden on the accused. If there is any burden at all on the accused, it is not to prove anything but to raise a reasonable doubt”. [11]Section 11(3) of the evidence Act, 1975 (NRCD 323) provides “in a criminal action the burden of producing evidence when it is on the accused as to any fact the converse of which is essential to guilt requires the accused to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt.’’ 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 the burden of proof. Thus although an accused person is not required to prove his innocence during the course 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.” [12]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. 4 [13]Again in Tamakloe v The Republic [2011] SCGLR 29 at page 46 it was held that “where a statute creates an offence, it is the duty of the prosecution to prove each and every element of the offence which is sine qua non to securing a conviction unless the same statute places a particular burden on accused”. [14]To be able to succeed on the issue of causing harm as charged against accused, prosecution must establish elements such as unlawful harm, intentional harm and harm caused by accused. [15]In Brobbey and others v The Republic [1982-1983] GLR 608 the court held that an essential element for the constitution of the crime of causing harm contrary to section 69 …of Act 29, was that the harm…must not only be intentional but also unlawful. Mere harm without more is insufficient. Harm is unlawful if it is not justified under section 31 of the criminal offences Act 1960 (Act 29). However harm cannot be justified if it is in excess of the limits provided for in section 31 or if it extends beyond the amount and kind of force reasonably necessary for the purpose for which force is permitted to be used. See section 32 of the criminal offences Act, 1960 (Act 29). [16]Section 31 provides “force may be justified in the case and in the matter and subject to the conditions, provided for in this chapter on the grounds …(f) of a necessity for the prevention of or defence against a criminal offence;…” [17]In Palmer v Republic [1971] AC 814 it was held that “it is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do and may only do, what is reasonably necessary”. [18]In Nartey v The Republic [1982-1983] GLR 788 AC it was held that “the measure of force required to repulse an attack, on the totality of the evidence, was what hard to be assessed. The courts should not examine the fight blow for blow in order to determine which blow was excessive.” 5 [19]In this case, PW1 told the court that accused slapped her and she also slapped accused. Accused did not challenge the fact that she slapped PW1 and PW1 also slapped her. Cross examination of PW1 by accused revealed that accused and PW1 fought on 9th June, 2022 as follows:- Q. When you held my hair from behind and the people came to my rescue and I was dizzy, the people sat me down. Is that correct. A. We all fought and the people came and separated us. After the separation you came with a wire and whipped me. [20]Since PW1 also slapped accused by way of retardation, it is my belief that she wanted to engage in a fight and actually fought accused. It is a fact that in every fight there could be some degree of injury to the participants. But what is not dear in this case is whether accused hit PW1’s head with a metal. Accused stated that the operator asked her to wait outside and allow PW1 to mix her flour and she obliged. When she was leaving, PW1 started insulting her. PW1 held her corn role hair and pulled it and also beat her and the operator separated them. PW1 alluded to the fact that accused paid heed to the operator’s advice for her to go out and allow her to mix her flour first in cross examination of PW1 by accused as follows: Q. I put it to you that you are my elder sister that was why on the said date I stepped out when the operator advised me to do so to allow you to grind. A. You allowed me to grind but you went outside and planned, came inside, picked a wire and whipped me with it. 6 [21]What is intriguing was why would accused whip PW1 since she decided to allow PW1 to mix her flour first. In my opinion the answer to this question cannot be clear unless there is further evidence to corroborate same. Since PW1 alleged to have been whipped and hit with wire and metal and accused denied same and also alleged her hair was held behind by PW1 prosecution assumes burden to establish through eye witnesses that indeed PW1 was hit by accused with wire and metal. Prosecution filed witness statement of Diana Asumakai and Rebecca Aketie but failed to call them to testify. The medical officer was also not called to testify. Result of this failure is that the issue turns on oath of accused against the oath at PW1. [22]In Amartey v The State [1964] GLR 256 AT 259 Supreme Court stated “where a question boils down to oath against oath, its solution does not depend upon the whim and caprice of the judge; this is particularly so in a criminal case where the decision rejects the version of the defence. To do justice, the court is under a duty to consider firstly, the version of the persecution, applying to it all the tests and principles governing the credibility and veracity of a witness; and it is only when it is satisfied that the particular prosecution witness is worthy of belief that it should move on to the second stage; ie the credibility of the defendant’s story; and if having so tested the defence story it should disbelieve it, move on to the third stage ie whether short of believing it, the defence story is reasonably probable”. See also Poku v The State [1966] GLR 262 and Ansah sasraku v The State [1966] GLR 294 at 298 SC. [23]Applying the principle to this case, it is noted that PW1’s evidence was that she was preparing to leave the mills shop when accused entered the shop and whiped her with a cable, and thereafter hit her with a metal she found at the scene and she sustained a deep cut. PW2 tendered exhibit C which is the report of the medical Doctor. According to the report, on examination PW1 was stable and had abrasions on the scalp. She was managed 7 on outpatient basis. What PW1 called deep cut turned out to be abrasions on the scalp in the report. So the issue whether it is deep cut or abrasion is also doubtful. CW1 stated that he separated the fight between PW1 and accused but he did not witness the hitting and whipping of PW1 by accused. He also locked the shop and left to his house. [24]So it is my opinion that if there is anything at all done by accused to PW1, there is presumption that accused acted in self defence to extricate herself from the grip of PW1. Because there is doubt as to veracity of the allegations of PW1. Since prosecution did not prove its case beyond reasonable doubt, it side of the case is difficult to believe. Accused’s version of the story is reasonably probable and has raised doubt in the whole case. I am minded to resolve the doubts in favour of accused. [25]On the totality of evidence before me I hold that prosecution failed to discharge its burden of proving the case beyond reasonable doubt. I therefore resolve all doubts created in favour of accused. [26]In the result, the case of prosecution fails and is hereby dismissed. Accused is hereby acquitted and discharged. (SGD.) H/W FAMOUS YAO AMANYO (DISTRICT MAGISTRATE) 8