REPUBLIC VRS SALAW AND 2 OTHRRS (NO: NR/KPA/DC/B4/7/24) [2024] GHADC 446 (6 September 2024)

IN THE DISTRICT COURT SIITING AT KPANDAI NOTHERN REGION ON 6TH DAY OF SEPTEMBER, 2024 BEFORE HIS WORSHIP GODSON ETSE KUMADO, THE DISTRICT MAGISTRATE CASE NO: NR/KPA/DC/B4/7/24 THE REPUBLIC VRS KWASI SALAW AND 2 ORS __________________________________________________________________ _________________________________________________________________ JUDGMENT INTRODUCTION The accused persons in the instant case were jointly charged with three (3) counts of offences to wit: conspiracy to commit assault by imprisonment; assault and abetment of threat of death. The first accused person was charged with the additional count of threat of death. At the close of the case for the Prosecution however, counsel for the accused persons with leave of the court filed a submission of no case to answer on the grounds that the Prosecution has not made out any case against the accused persons to warrant them to be called upon to open their defence. The court in its ruling on 02/05/24 upheld the submission of no case to answer filed by counsel in part and dismissed counts 4 against all the accused persons and also dismissed count 3 as against the 1st accused person. Consequently, the charges that remained against the accused persons are counts 1 and 2 which read as per the charge sheet as follows: COUNT ONE STATEMENT OF OFFENCE CONSPIRACY TO COMMIT OFFENCE TO WIT ASSAULT BY IMPRISONMENT: CONTRARY TO SECTIONS 23(1) AND 85(1)(C) OF THE CRIMNAL OFFENCES ACT, 1960 (ACT 29) PARTICULARS OF OFFENCE 1. KWASI SALAW AGED 66 YEARS, FARMER 2. ATTAH PAPANKO AGED 35 FARMER 3. KPANJI ALI AGED 38 YEARS FARMER: You on the 12th day of September 2023 at Buya village near Kpandai in the Northern Region and within the jurisdiction of this court, you agreed and acted together with a common purpose to commit crime to wit, assault by imprisonment. COUNT TWO STATEMENT OF OFFENCE ASSAULT BY IMPRISONMENT: CONTRARY TO SECTION 85(1)(C) OF THE CRIMNAL OFFENCES ACT, 1960 (ACT 29) PARTICULARS OF OFFENCE 1. KWASI SALAW AGED 66 YEARS, FARMER 2. ATTAH PAPANKO AGED 35 FARMER 3. KPANJI ALI AGED 38 YEARS FARMER: You on the 12th day of September 2023 at Buya village near Kpandai in the Northern Region and within the jurisdiction of this court, you intentionally detained Yaw Brukum and Prosper Yaw in an uncompleted room without their consent. FACTS OF THE CASE The facts relied on by the Prosecution relevant to the remaining charges against the accused persons are that upon a report of destruction of farm crops to the Wiae Chief, the said chief sent PW1- Yaw Brukum and PW2- Prosper Yaw to go and summon one Tarlom Seidu, a resident of Buya to his palace. On their arrival Talorm received them at his residence but left to call the accused persons. Accused persons then forcefully took the victims to their palace and ordered them to submit their respective mobile phones and SIM cards. Thereafter accused persons led the victims to an uncompleted room at the palace and detained them without their consent. The accused persons later warned the victims not to come to invite any person from their town and were escorted to the Banda chief palace. BURDEN OF PROOF All accused persons pleaded not guilty to the offences with which they were charged hence the burden laid on the Prosecution to prove the guilt of the accused persons beyond reasonable doubt. Article 19 (2) (c) of the 1992 Constitution of the Republic of Ghana requires that any person charged with a criminal offence is presumed innocent until he or she is proven guilty. Consequently, it is the duty of the Prosecution to adduce sufficient evidence to prove that the accused persons indeed committed the offences with which they are charged. In GLIGAH AND ANOR v THE REPUBLIC [2010] SCGLR 297, the Supreme Court summarized the burden of proof required in criminal proceedings in the following words: “…It is important for this Court to bear in mind that the Constitution 1992 article 19 (2) (c) presumes everyone innocent until the contrary is proved. In other words, whenever an accused person is arraigned before any court in any criminal trial it is the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond any reasonable doubt. The burden of proof is therefore on the Prosecution and it is only after a prima facie case has been established by the Prosecution that the accused person is called upon to give his side of the story.” Proof beyond reasonable doubt has been defined by the Ghanaian courts to mean proof of the essential ingredients of the offence charged. See the case of ABDULAI FUSEINI v THE REPUBLIC [2018] 122 GMJ 12 SC where the court held that: “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.” The Prosecution must therefore lead evidence to establish all the essential ingredients of the offences with which the accused persons are standing trial, which in the instant case are conspiracy to commit assault by imprisonment and assault by imprisonment. It is in light of these principles that the case of the Prosecution will be analysed and examined to determine whether it has been able to discharge the burden required of it. ANALYSIS OF THE LAW AND EVIDENCE OF THE PROSECUTION The accused persons are standing trial for the offences of conspiracy to commit assault and assault. Section 23 of the Criminal and Other Offences Act, 1960 (Act 29) provides that: If two or more persons agree to act together with a common purpose for or in 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. The old position of the law was recently reformed and same was affirmed by the Supreme Court in the case of FRANCIS YIRENKYI v THE REPUBLIC [2016] DLSC 3148. Under the old law, two or more persons could be liable for conspiracy to commit crime with or without a prior deliberation or agreement. This is because of the operative part of the section which read as “agree or act together with a common purpose”. By the reformation, the conjunction “or” was substituted with “to” which now makes it necessary for the Prosecution to prove that the accused persons agreed to act together. Commenting on the new formulation of the law, the Supreme Court in the above-cited case noted in the following words: The essence of the changes brought about by the work of the Statute Law Review Commissioner is that, under the new formulation, a person could no longer be guilty of conspiracy in the absence of any prior agreement, whereas under the old formulation a person could be guilty of conspiracy in the absence of any prior agreement. In the instant case, to succeed on the charge of conspiracy, the Prosecution must therefore prove that the accused persons agreed to act together for the purpose of committing the offence of assault by imprisonment. Section 84 of Act 29 provides that: Section 84—Assault. Whoever unlawfully assaults any person is guilty of a misdemeanour. Sections 85 and 88 specifically deal with the kind of assault in question in the instant case which is assault by imprisonment. Section 88 defines what constitutes assault by imprisonment: Section 88—Definition of and Provisions Relating to Imprisonment. (1) A person imprisons another person if, intentionally and without the other person's consent, he detains the other person in a particular place, of whatever extent or character and whether enclosed or not, or compels him to move or be carried in any particular direction. (2) This definition is subject to the following provision, namely, that detention or compulsion may be constituted, within the meaning of this section, either by force or by any physical obstruction to a person's escape, or by causing him to believe that he cannot depart from a place, or refuse to move or be carried in a particular direction, without overcoming force or incurring danger of harm, pain, or annoyance, or by causing him to believe that he is under legal arrest, or by causing him to believe that he will immediately be imprisoned if he does not consent to do, or to abstain from doing, any act. By the provisions of Section 88 (1), a person commits the offence of assault by imprisonment in two main ways: when he detains the victim in place without his consent; or when he compels the victim to move or be carried in a particular direction without his consent. Where there is a detention in a place, it does not matter the duration of the imprisonment. It is also not essential whether the place is enclosed or open. By subsection 2 of Section 88, a person is said to have detained the other where he forcefully or physically obstructs the other’s escape from the place; or by causing the victim to believe that he cannot depart from the place without overcoming force or danger of harm, pain or annoyance; or by causing the victim to believe that he is under a legal arrest; or causing the victim to believe that he will be imprisoned if he does or fails to do the particular act required of him. It is the case of the Prosecution in the instant case that the victims, PW1 and PW2 were led by the accused persons to an uncompleted building within their palace where they were detained by them without their consent. To succeed therefore on this charge, Prosecution must lead evidence to establish that PW1 and PW2 were detained within the meaning of Section 88 of Act 29. In support of its case, Prosecution called PW1, Yaw Brukum to testify. He stated that the Wiae chief sent him and PW2, Prosper Yaw to go and summon Talorm Seidu to his palace. On their arrival the said Talorm excused them to go and call his brothers. Talorm returned with the accused persons and A1 instructed that they follow them to their palace. On reaching the palace A1 ordered them to submit their mobile phones and the SIM cards in them and they were thereafter taken into an uncompleted building where A1 told them to say their last prayers for he was going to hang them with ropes while they sat on the floor. One woman to whom he supplies fish then intervened and told the accused persons to release them. A1 then handed them over to A2 and one other person to escort them to the Banda chief palace. PW2 Prosper Yaw was also called by the Prosecution to testify. He also testified that on 13/09/2023 the Wiae chief sent him and PW1 to summon Talorm Seidu to his palace. On reaching his home, the said Talorm Seidu excused them for a while and returned with the accused persons and some others numbering about ten (10). Accused persons instructed that they follow them to their chief palace at Buya. There their phones and SIM cards were collected from them and they were locked up in an uncompleted room. A1 then told them to say their last prayers because he was going to hang them with ropes while they sat on the floor. One person who he knows very well intervened and told accused persons to free them and A1 instructed A2 and some other person to lead them to the Banda Chief palace. Prosecution also called PW3, Nana Ayuriyie to testify. He stated that he sent PW1 and PW2 to go and summon Talorm Seidu upon reports to him that he is suspected to have caused damage to some coconut plantation. On the arrival of PW1 and PW2 at the house of the said Talorm, he excused them and returned with the accused persons and some others who took PW1 and PW2 to the Buya Basare palace. At the palace the phones and SIM cards of PW1 and PW2 were taken by the accused persons and A1 brought out a rope and threatened to hang them but for the intervention of one of the accused person’s relatives who knew his elders. PW4, No. 58434 G/Const. Johnson Galley, the Police Investigator in charge of case was also called upon to testify for the prosecution. He tendered in evidence Exhibits A to F which are the respective caution and charged statements he obtained from the accused persons upon their arrest. He also tendered in evidence Exhibit G and G1 which are pictures of the uncompleted building within which PW1 and PW2 were detained by the accused persons. In their respective statements, the accused persons denied the offence. A1 in his investigation caution statement essentially stated that when he got to Talorm’s house, he asked PW1 and PW2 of their mission but they would not speak to him so he told them to go with them to their chief palace but they still would not state their mission. He asked them to call their chief but they said they did not have the contact of their chief. He delegated two of his people to accompany PW1 and PW2 to Banda where they were handed over to the Banda chief. On his part, A2 stated in his investigation caution statement that A1 asked him to escort him to the house of Tarlom. When they got there A1 told PW1 and PW2 to come with them to their palace. On reaching their palace their chief told them it was wrong for the people of Wiae to embark on traditional cleansing exercise at Buya so the chief delegated some two persons to send the two to the Banda chief. Moments later he took his motorbike and left. A3 on his part stated that on the day of the incident he went to Nandi village to buy some tubers of yam and returned in the evening around 5pm. He later went to their palace and he was told of the incident that took place while he was away. He concluded that he never took part in the events. I have stated that to constitute the offence of assault by imprisonment, there need not be a total enclosure of the place of detention. In ASANTE v THE REPUBLIC [1972] 2 GLR 177, it was held that the seizure of the ignition key of the accused person by the police officer constituted imprisonment even though the incident took place in an open place. Thus, in the instant case, it is unnecessary for counsel for the accused persons to posit during his cross-examination of PW4 that the room in which the victims were kept had no doors or windows and that the victims had a room for escape. Imprisonment could be constituted if it is found that the accused persons physically obstructed the escape of the victims, or placed them under the impression that they will be harmed if they escape. I must at this point deal with the alibi pleaded by the third accused person. In both his investigation caution statement and in his witness statement, A3 stated that he was not present when the whole incident occurred. According to him he had gone to Nandi village to get some yam tubers. He was told of the incident when he returned and went to the palace later that day. A1 and A2 and DW1 supported this assertion by A3. The plea of A3 on his first appearance in court is however contradictory to his allegation of alibi. On their arraignment before the court, the respective pleas of the accused persons were taken. The accused persons pleaded as follows: Count one A1: – My Lord we did that but our reason for doing so is that the two named person came to the community to defraud our people and they were reported to the police and we ought to look for them and when we got them, we sent them to the uncompleted house. (Court has entered a plea of NOT GUILTY for A1 on count 1) A2: Yes, A1 called me to join him find some strangers in our community (court enters a plea of NOT GUILTY for A2 on count 1 A3 – Yes, I knew what we were going to do. I was only sent by my community chief. Count 2 A1 – NOT GUILTY A2 – NOT GUILTY I was not part A3 – NOT GUILTY Having stated that he knew what they were going to do and that he was sent by the chief of his community, it is surprising for A3 to allege he was not present at the scene at the time. In his witness statement, A1 stated that A3 was not present as he had gone to Nandi village. However during his cross-examination by the Prosecution, A1 admitted he went to meet PW1 and PW3 in Talorm’s house with A2 and A3. This is what transpired during the cross-examination of A1 by the prosecution: Q. You and many others including A2 and A3 returned with Talorm to his house. A. I only returned with A2 and A3. In fact, counsel for the accused persons in his cross-examination of PW1 and PW2 insisted that that the Talorm did not return with many people as alleged by them, but that he only returned with three (3) persons. This is evident in Counsel’s cross-examination of PW2, excerpts of which are reproduced below: Q. I put it to you that while at Talorm Seidu’s house, Talorm invited only these 3 accused persons to come and meet with you. A. Yes Q. Per Paragraph 6 of your own witness statement you said accused persons and many others, about 10 in a tricycle came to Talorm Seidu’s house. Do you still stand by this statement? A. Yes, these three came but later the people in the tricycle came there too. From a consideration of all the evidence, I find the story of A3 that he was not present at the scene on the day of the incident not worthy of believe. Apart from A1, A2 and DW1, A3 called no other witness to testify on his behalf that he was indeed at Nandi village on the day of the incident. Since A3 is the one pleading alibi, the burden laid on him to proof same. He could therefore have called the person from whom he went to buy the tubers of yam to testify on his behalf but he failed to do so. Be that as it may, I find from his own plea on count 1 and the admission by A1 that A3 was present and took part in the events on the day of the incidence. From the evidence it is not in doubt that PW1 and PW2 went to meet Talorm in his house to summon him to the Wiae palace. It is also not in doubt that Talorm informed the accused persons who in turn went to meet PW1 and PW2 and led them to their palace at Buya. During his cross-examination, A1 admitted they led PW1 and PW2 to the uncompleted building but added that the said uncompleted building is their palace. He stated: Q. Instead of your palace, you ended up with them in an uncompleted storey building. A. Yes. The uncompleted storey building is the palace. Q. You will also agree with me that there was no occupant in the said building at the time of the incident. A. Yes my Lord. It was uncompleted and work is not yet done on it. Q. And there is no signage describing the said building as a palace. A. Yes there is no sign because we are not done or completed works on it. A2 on his part also admitted that even though they asked PW1 and PW2 to follow them to their palace, they took them to an uncompleted building without occupants and their chief was also not in the said uncompleted building. He stated during his cross-examination by the Prosecution as follows: Q. And you were part of those who led them to an uncompleted building. A. Yes, my Lord. Q. You told them, you were taking them to your chief at your palace for them to state their mission. A. Yes, my Lord. Q. But your chief was not at the said uncompleted building where you took them. A. That is true. From the evidence, the accused persons instructed the victims, PW1 and PW2 to follow them to their chief palace. They instead led them to the uncompleted building without their chief. According to the testimony of PW1 and PW2, the accused persons seized their phones and the SIM cards in their said phones. This piece of evidence was however denied by A1 during his cross-examination by the Prosecution. When he was asked whether he has any evidence of the seizure of their phones by the accused persons, PW2 answered that they were only two persons and they took their phones from them. He stated during his cross-examination by Counsel for the accused persons as follows: Q. You do not have any videos, any pictures, any audio recording of the accused persons threatening to kill you, is that correct? A. They took all our phones and so we had nothing to use to record. Q. You do not also have any evidence showing that these 3 persons seized your phones. A. We were the only two, Yaw Brukum and I, and they took our phones from us. THE CASE FOR THE DEFENCE The accused persons were ordered to open their defence at the close of the case for the Prosecution. A1 filed a witness statement for himself and stated that he is an elder at the Buya palace. He went with A2 to meet PW1 and PW2 at Talorm’s house. He asked them of their mission but they were not ready to tell them their mission. He then invited them to go with him to their palace but PW1 and PW2 did not utter any word when they got to the palace. He asked them to call their chief but they told him they do not have his contact. He then called the chief of Banda who is the overlord of both communities and the Banda chief asked that they come to his palace. Two persons were thereafter made to accompany PW1 and PW2 to the Banda palace. A2 essentially repeated the testimony of A1. He also stated that he went with his brother, A1 to Talorm’s house to go and meet PW1 and PW2. They then invited them to go with them to their palace. A1 told PW1 and PW2 that it is not customarily right for a chief of a community to deal with the subjects of another community without notice to the chiefs and elders of that community. At their palace their chief asked PW1 and PW2 of their mission but they refused to tell him their mission. The chief then delegated two persons to go with PW1 and PW2 to the Banda chief for amicable resolution of the matter. On his part, A3 denied he was present on the day of the incident. He stated that he had gone to Nandi village to buy some yams for his supplies and returned in the evening and was informed of all that transpired while he was away. In support of their case, the accused persons called Talorm Kweku to testify. He testified that on the day of the incident the messengers from Wiae came to summon him to appear before the Wiae chief. He informed A1 about it who also came with A2 to go to his house to ask the messengers of their mission. The messengers refused to tell A1 their mission so A1 asked them to follow him to their palace for them to narrate their mission to the chief but at the chief palace the messengers still refused to tell the chief of their mission. He told the chief they came to invite him to Wiae but the chief then told them that was not right according to custom and tradition since subjects of one land could not be invited by the chief of another land without permission. The chief then called the Banda chief who asked that they all appear before him for amicable resolution of the matter. I must state that DW1 admitted during his cross-examination that he did not know what transpired afterwards after handing over PW1 and PW2 to A1 at his house. He stated: Q. I am also putting it to you that you did not see or witnessed what happened to PW1 and PW2 after they had been taken away from your house. A. I only put them into the care of 1st accused. What happened afterwards, I do not know. Q. So, you cannot tell whatever happened after handing them over to Kwasi Salaw. A. Yes I do not know what happened afterwards. DW1 is therefore not in the position to testify whether PW1 and PW2 were indeed imprisoned by the accused persons or not. This is because after he handed them over to the accused persons in his house, he did not know what transpired further. He could not tell what took place when PW1 and PW2 were led by the accused persons to the Buya palace. On a consideration of all the evidence, I find that the Prosecution has been able to discharge the burden on them. I find that the accused persons told PW1 and PW2 to follow them to the chief palace. One would expect, at the chief palace to meet the chief or his elders so they could state their mission. The evidence however indicates that the accused persons instead led PW1 and PW2 to an uncompleted building. The said uncompleted building or room where PW1 and PW2 were kept had no doors neither was their chief in the said room. The accused persons kept them there without their freewill of movement until they escorted them to the Banda chief. In my opinion, this is a clear case of detention within the meaning of Section 88 of Act 29. The place of detention need not be enclosed with doors and windows. The mere fact that the victims were physically prevented from escaping or were made to believe that they could not leave the said building constitutes detention. Consequently, I find A1, A2 and A3 guilty of the offence of assault by imprisonment and I hereby convict them. On count one which is conspiracy to commit assault by imprisonment; I have stated that the law now requires proof of an agreement to act together for a common purpose. The proof of such an agreement usually does not come by direct evidence. The court may infer the existence of an agreement to act together from the conduct of the parties. In the instant case, the evidence indicates that Talorm on receipt of the visitors from Wiae palace, that is, PW1 and PW2, informed the accused persons about it who went with him to his house to meet PW1 and PW2. The accused persons then instructed them to follow them to their palace where they unlawfully detained them in the said uncompleted building. The accused persons acted in concert from the time they left their palace to meet PW1 and PW2 in Talorm’s house. Their unanimity of minds continued when they led PW1 and PW2 from Talorm’s house to their palace and ending up in the uncompleted building where their goal to detain them was finally executed. I find from the conduct of the accused persons that they agreed to act together for a common purpose which is, to go and lead PW1 and PW2 to their palace and to detain them in the said uncompleted building. I therefore find the accused persons guilty of conspiracy to commit assault by imprisonment and I hereby convict them. SENTENCE I have considered the plea of mitigation put in by counsel for the accused persons and also that the accused persons are first time offenders. I have also taken into consideration the submission by the Prosecution. The right to liberty is so treasured by the laws of Ghana that it forms part of the entrenched provisions of the 1992 Constitution of the Republic of Ghana. By the provisions of article 14 (1) of the 1992 Constitution, no person shall be deprived of his or personal liberty except under the listed exceptions provided. It is therefore totally unacceptable for the accused persons to unlawfully detain PW1 and PW2 in flagrant of the Constitution of the land. I hereby impose a deterrent sentence and the purpose is to keep the accused persons from committing the same or similar offences in the future. The sentence is also create an awareness to the general public on the need to safeguard each other’s rights as enshrined under the 1992 Constitution of the Republic of Ghana. I hereby sentence each of the accused persons to a fine of one hundred (100) penalty units on counts 1 and 2 to run concurrently or in default one month imprisonment with hard labour. SGD H/W GODSON ETSE KUMADO