REPUBLIC VRS BAYIGMA (NR/WUL/DC/B4/7/2023) [2024] GHADC 450 (22 July 2024)

IN THE DISTRICT COURT OF GHANA WULENSI-N/R DATE: 22ND JULY, 2024 CASE NO: NR/WUL/DC/B4/7/2023 THE REPUBLIC VRS TIGNABE BAYIGMA ________________________________________________________ JUDGMENT ________________________________________________________ INTRODUCTION The accused person is standing trial on the charge of threat of death contrary to Section 75 of the Criminal and Other Offences Act, 1960 (Act 29) which provides that: “Section 75—Threat of Death. Whoever threatens any other person with death, with intent to put that person in fear of death, is guilty of a second degree felony.” THE FACTS OF THE CASE The brief facts of the case are that the accused person and complainant, Kwabena Waja (PW1) are both farmers living at Ketiejeli and Kachelende respectively. It is the case of the prosecution that on 3/10/2022 the complainant and his son (PW2) visited the land in dispute and met the accused person busily spraying weedicide on the land. Complainant approached Page | 1 accused person and demanded that he cease spraying but accused disregarded him. Complainant told accused that he has trespassed onto his land but the accused became infuriated and threatened PW1 to leave the place else he will bury him alive. PW2 intervened and asked accused person whether he did not see parts of complainant’s harvested cassava trees on the said land but accused yelled at him to keep mute. PW1 became gripped with fear and left the scene together with his son, PW2 and reported the matter to the police. THE BURDEN OF PROOF It is now not disputed that in criminal proceedings such as the instant case, the burden is on the prosecution to proof the guilt of the accused person beyond reasonable doubt. Section 15(a) of the Evidence Act, 1975 (NRCD 323) provides that the burden of persuasion is on the party claiming that the other has committed a crime or wrongdoing. The burden of persuasion has been defined under Section 10 of NRCD 323 as follows: 10. Burden of persuasion defined (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. (2) The burden of persuasion may require a party (a) to raise a reasonable doubt concerning the existence or non-existence of a fact, or (b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Page | 2 The prosecution thus has the burden to proof the guilt of the accused person by introducing sufficient and admissible evidence to establish the guilt of the accused person. The standard of proof required of the prosecution is proof beyond reasonable doubt which means that the prosecution must be able to establish all the essential ingredients of the offence with which the accused person is charged, short of which the charge will fail. In ABDULAI FUSEINI v THE REPUBLIC (2018) 122 GMJ 12 SC, the Supreme Court reiterated the philosophical principles underpinning criminal proceedings in the following words: In criminal trials, the burden of proof against an accused person is on the prosecution. The standard of proof is proof beyond reasonable doubt. Proof beyond reasonable doubt actually means “proof of the essential ingredients of the offence charged and not mathematical proof.” To secure a conviction, the evidence against the accused person must be so strong that a reasonable mind should come to a conclusion that the accused person has committed the crime. In MILLER v PENSIONS [1972] 2 ALL ER 372, the eminent Lord Denning explained the standard of proof beyond reasonable doubt as follows: “Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law will fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is strong against a man as to leave him a remote possibility in his favour which can be dismissed with the sentence, “of course, it is possible but not the least probable”, the case is proved beyond reasonable doubt, but nothing short of that will suffice”. Emphasis mine. It is against these principles that the case and evidence of the prosecution will be evaluated. Page | 3 EVALUATION OF THE CASE AND EVIDENCE OF THE PROSECUTIOIN It is the case of the prosecution as per the facts relied on by them that the accused person threatened the complainant (PW1) on the farm on the day of the event that if he did not leave the scene, he will bury him alive. PW1 testified in support of the case of the prosecution. In his evidence in chief PW1 stated that on 2/10/22 he visited his farmland near Kachelende village where he recently harvested cassava. He went together with his son, Ntaja (PW2) to prepare the land for spraying. On their arrival they met the accused person spraying the land while his wife was supplying him water for the spraying. He confronted accused person on why he was spraying his land but the accused shouted at him that he will spray the land because his father gave him the said land. Accused thereafter told them to immediately leave the place else he will bury him alive. PW2 intervened and asked the accused person whether he did not see his cassava stumps on the land while spraying but the accused shouted at him to keep mute. He then left the scene with PW2 out of fear and reported the issue to the police. Waja Ntaja (PW2) also testified in support of the case of the prosecution. He stated that on 2/10/22 at about 7am he accompanied PW1 to his farm at Kachelende village to assist him prepare the land for spraying. On their arrival they met the accused person spraying the land and so PW1 confronted him on why he was spraying the land and accused replied that the land was given to him by his father. While at it the accused person became furious and told them to leave the place else he will bury PW1 alive and further warned them never to step foot on the land again. PW2 stated that he came in and asked accused person whether he did not see PW1’s cassava stumps on the land while spraying but the accused shouted at him to keep quiet and threatened to slap him. They thereafter left the scene and reported the matter to police. The police investigator who investigated the case was also called to testify in support of the case of the prosecution. He tendered in evidence Exhibits A and B which are the caution statement and charge statement he obtained from the accused person upon his arrest. He Page | 4 further testified that both parties led him to the scene of the crime where he observed that land had been sprayed up to where the accused owned and his investigations revealed that the accused who had just returned from Yeji and had no place to farm decided to prevent PW1 from accessing his land by putting fear in him. The essential ingredients of the offence of threat of death as could be gleaned from the provisions of section 75 of Act 29 are: that there is in fact a threat of death; and that same was made with intent to put the victim in fear of death. In BEHOME v THE REPUBLIC [1979] GLR 112, the court held (obiter) that: In the offence of threat of death the actus reus would consist in the expectation of death which the offender creates in the mind of the person he threatened while the mens rea would also consist in the realisation by the offender that his threat would produce that expectation. It mattered not, therefore, whether the threats were related to the present or the future. To secure a conviction in the instant case, the prosecution must prove that the conduct of the accused person, in this case, the words amounted to a threat of death, and that same were indeed uttered by the accused person to the complainant. If these two elements are established, then it is irrelevant to the charge whether the threat related to the present (to be carried out immediately) or the future (at a later date). In Exhibits A and B which are the caution statement and charge statement obtained from the accused person and tendered in evidence by PW3, the accused person denied the offence. The accused person in the said Exhibit A stated that on the day of the incident he went to the farm with his wife. While working on the land he spotted the complainant and his two sons wielding cutlasses and talking to his wife. The complainant stated that he came to report a case of trespass to his grandfather but he (accused) pleaded with him to calm down. Complainant Page | 5 then instructed one of his sons to call a policeman to cause his arrest. One of the sons of PW1 started insulting him but he told him his father has not insulted him so he the son could not insult him. His wife then advised that they are all wielding cutlasses but he had nothing on him so they should go home. The accused person concluded by stating that he never threatened to shoot the complainant because he never owned a gun. The accused person having denied uttering the said threat of death to the complainant in his caution statement, the burden remains on the prosecution to adduce further evidence in proof of their case. The further evidence must establish that that the accused indeed said that he would bury the complainant alive, and that the words amounted to a threat of death. Without doubt, the second leg needs no further evidence in proof. To say that you will bury a person alive, in my opinion constitutes a threat of death. Any reasonable person hearing such words would be in fear of death. The main ingredient then to be established is whether the accused person uttered the said words. From the evidence, the persons on the farm were the accused person and his wife on the one part, and the complainant and his two sons on the other part. I must be quick to say that the accused person, when called upon to open his defence called his son, Bayigma Mananjah (DW1) to testify in support of his case. He stated that he was at the scene and witnessed the incident that occurred on the said day. The accused in all his statement to the police upon his arrest and in his evidence before the court, did not mention that he was on the farm with DW1. The accused person all along maintained that he was on the farm with his wife who was assisting him fetch water for the spraying activity. The wife of the accused person, Bichori Bayigma offered a witness statement in support of the case of the accused person but was unavailable to testify as accused said she was not well. In his desperate attempt to provide evidence in his defence, the accused person then called his son, DW1 to testify in support of his case. Page | 6 I find that the claim by DW1 that he was on the farm and witnessed the incident on the said day is false and an afterthought. The accused person gave a statement to the Police (Exhibit A) upon his arrest and further testified in his defence. In all of these, the accused person only maintained that he was on the farm with his wife when the incident happened. He did not mention the name of DW1 or any of his sons as being present, even though he stated that PW1 came to the scene with his two sons. I find that the testimony of DW1 that he was present at the farm on the day of the incident is false and not believable. Does the attempt by the accused person to call false witness in support of his case absolve the prosecution of its duty to proof the guilt of the accused person beyond reasonable doubt? The answer is no. The reason is that a criminal case is not proved on the balance of probabilities, but beyond reasonable doubt. Consequently, in R v DJOMOH [1960] GLR 193, CA the court held that “a finding that an accused person has told lies in his own defence, does not absolve the prosecution from the duty of affirmatively proving the prisoner’s guilt beyond reasonable doubt”. During the cross examination of the prosecution’s key witness, PW1 the accused stated that he did not quarrel with him when they met on the farm and that it was rather his son (PW2) who was fighting with him. The accused also insisted that the land was fallow when he went to spray same. This is what transpired during the short cross examination of PW1 by the accused person: Q. Did I ever say I will kill you and bury you alive? A. You said it. Q. I did not quarrel with you when you came to the farm. Page | 7 A. If you say you will bury somebody alive how can you bury somebody without killing him? Q. Is it not your son who was fighting with me? A. It is not true. Q. I only told you to go home and you left. A. I told my children to let us go home and I made a report to the police. Q. The land is a fallow land and no one farms there. A. This is not true. My cassava was on the land. The accused person maintained his case that it was PW2 who insulted him during his cross examination of PW2. The short cross examination of PW2 by the accused person was this: Q. I did not say I will kill your father. A. It is not true. Q. You were the one insulting me. Your father did not even say anything. A. When we got there and asked you why you were spraying the land you picked a quarrel with my father and when I asked you if you did not see our cassava stumps you told me to shut up and not talk when elders are talking. Page | 8 PW3, the police investigator in charge of the case was called upon to testify in support of the case of the prosecution. In his brief cross examination by the accused person, PW3 admitted that he did not see any cassava on the land when he visited same during his investigations. He stated: Q. Did you see cassava on the land when you came? A. No. Q. I did not tell PW1 I will kill and bury him alive. A. You threatened him because you wanted to take over his portion of the land. The accused person was eventually called upon to open his defence after the close of the case of the prosecution. In his evidence the accused person stated that complainant met him spraying the land in dispute and claimed ownership of same but he told complainant the land belongs to his father. Complainant’s son (PW2) then begun insulting him but he told him to stop as his father, the complainant had not insulted him so he the son could not insult him. PW2 asked whether he did not see cassava stumps on the land but he answered and said no. Complainant and his two sons then left the scene and his wife advised that they go home as Complainant and his sons may return to the farm but he answered and said they would not come back as he did not fight with them. Accused person concluded his testimony and stated that he did not tell the complainant he will kill or bury him alive. During his cross examination by the prosecution, the accused person maintained that he did not quarrel with the complainant when they met on the farm but rather, it was PW2 who insulted him. He also denied that any misunderstanding ensued or that he was angry and uttered the threating words to bury the complainant alive. Excerpts of the cross examination of the accused person by the prosecution reads: Page | 9 Q. But on that day, there was a misunderstanding between you and PW1 on the farm. Is that not the case? A. My Lord there was no misunderstanding between me and PW1. Q. I am putting it to you that on that day, 3/10/2022, there was a misunderstanding between you and PW1 over the piece of land on which you were spraying weedicide. A. When I was on the farm, PW1 came and asked me not to spray the land. I told him that I had already sprayed and therefore we should go home to meet the elders of the family to resolve the issue. Q. When the complainant asked you to stop spraying the land, you were not happy about that. A. No. I was not angry with him. The questioning continued: Q. I am therefore suggesting to you that you were angry over that statement. A. No. I was not angry with him. Q. And that led to the exchange of words between you and PW1 and his son on one side. Page | 10 A. What I saw was that, it was rather the son of PW1 who was insulting me. So I told him that he is too young to insult me and that it is his father who has the right to insult me. Q. In your anger you went ahead and told PW1 that “I will bury you alive” A. I did not say anything. As earlier stated, the accused filed a witness statement for his said wife to testify in support of his case. The accused person informed the court that his said wife was taken ill and was not available to testify in support of his case. The court thereupon permitted the accused person to tender the said witness statement offered by his wife in support of his case as hearsay evidence and same was marked as EXHIBIT 1. In the said Exhibit 1, the wife of the accused essentially corroborated the case of the accused person that she was on the farm on the day of the event together with the accused person. She further stated that the complainant and his two sons confronted the accused person on who gave him the land but the accused stated that the land belongs to his father who asked him to spray same. She also stated that it was the complainant’s son, Ntaja who began insulting the accused person whereupon accused told him his father did not insult him so he the child could not. The complainant and his sons then left and she also advised they should go home as complainant and his sons may return to disturb them. She finally stated that she did not hear the accused person threatening to kill or bury complainant alive. Even though Exhibit 1 was tendered in evidence as hearsay evidence, the presence of the author of same, that is, the wife of the complainant on the farm on the day in question was not denied by the prosecution’s witnesses. PW1 stated at paragraph 4 of his evidence in chief that they met the accused person spraying the land while his wife was supplying him the water for Page | 11 the spraying. Her said evidence therefore, even though not subjected to cross examination, is of some value and could assist the court in the final determination of the case. I have referred to the evidence of the prosecution in details, including excerpts of the respective cross examinations in my task to find whether the prosecution has been able to establish that the accused person threatened to bury the complainant alive. In considering the defence of the accused person, three possibilities are available to the court. The court may either accept the explanation put up by the accused person in which case he is entitled to a verdict of not guilty; or to disbelieve the defence of the accused person and accept the case of the prosecution, in which case the accused person would be pronounced guilty of the offence charged. The third possibility is where, after a consideration of the defence put up by the accused person, the court is still in doubt whether the offence was committed by him. The eminent author and retired Justice of the Supreme Court, S. A. Brobbey in his book PRACTICE AND PROCEDURE IN THE TRIAL COURTS AND TRIBUNALS OF GHANA, Second Edition stated at page 153 as follows: “325. After the case for the prosecution, if the accused is called upon to open his defence, the court may proceed with a consideration of the defence thus: i. By accepting the accused’s explanation. If the court accepts the explanation of the accused, he must be acquitted: see State v Sowah and Essel (supra). The explanation should be such as will negative criminality. ii. Where the court is in doubt, the accused must be acquitted: see State v Sowah and Essel (supra). The doubt must be a reasonable one. For as long as some doubt exits in the mind of the court, the position of the trial court is not very different from that of the Appellate court which, as described by Page | 12 Byrne J in R v Patel [1951] 2 ALL ER 29 at 31, CCA, has to make a choice between: “The Scylla of releasing to the world unpunished an obviously guilty man and the Charybdis of upholding the conviction of a possibly innocent one. In such a case the court [should] lean to the more merciful course, since it is better to release the guilty than to run the risk of convicting the innocent.” iii. The third consideration is where the court disbelieves the defence but accepts the case of the prosecution.” I have considered extensively the evidence of the prosecution as well as the defence of the accused person and I must say that I am in doubt whether the accused person uttered the words of threat death to the complainant. PW1 and PW2 insisted that the accused person said he will bury PW1 alive. In both Exhibit A which is the statement he gave to the police on his arrest and in his defence, as well as in his cross examination of the prosecution’s witnesses, the accused person maintained that he did not utter those words to the complainant. He stated that no quarrel ensued between him and the complainant and that it was rather PW2 who began insulting him. There is no evidence proving affirmatively that a quarrel ensued between the accused person and PW1 on the farm so as to suggest that in the heat of anger, the accused person uttered the threatening words to the complainant. When same was put to him by the prosecution during his cross examination, the accused person denied same and stated that there was neither a misunderstanding nor was he angry by the statement made by the complainant that he should stop spraying the land. Any reasonable man looking at the evidence led could come to the conclusion “maybe he did it, or maybe he did not.” In such a case, the court cannot convict as the evidence creates a doubt on the guilt or otherwise of the accused person. As noted by Lord Denning in the MILLER v PENSIONS (supra), the evidence to secure a conviction must be so “strong against Page | 13 the accused person to leave him with only a remote possibility in his favour…” In the instant case I find the evidence of the prosecution not strong enough against the accused person. I find myself squarely within the second scenario described by Brobbey in his above cited book as there is doubt as to the guilt or otherwise of the accused person. Consequently, the accused person must be acquitted since “it is better to release the guilty than to run the risk of convicting the innocent.” CONCLUSION After a thorough consideration of the case and evidence of the prosecution as well as the defence by the accused person, I am of the view that the evidence does not lead affirmatively to the guilt of the accused person. The evidence led leaves the court in a dilemma as to the guilt or otherwise of the accused person. That being the case and lacking any further evidence to clear the doubt in the mind of the court, the accused person is entitled to the verdict of not guilty of the charge of threat of death brought against him. I hereby acquit and discharge the accused person. SGD H/W GODSON ETSE KUMADO Page | 14