REPUBLIC VRS TUTU (BR/SY/CT/515/2022) [2024] GHACC 122 (28 February 2024)

IN THE CIRCUIT COURT HELD AT GOASO IN THE AHAFO REGION ON WEDNESDAY THE 28TH DAY OF FEBRUARY 2024 BEFORE HIS HONOUR CHARLES KWASI ACHEAMPONG ESQ. CIRCUIT COURT JUDGE BR/SY/CT/515/2022 THE REPUBLIC VRS. ABDUL SADIQ ADU TUTU JUDGMENT From the facts, accused person and complainant own farms in the same vicinity. In order for accused person to access his farm however, he has to pass through the farm of complainant. Hence, according to Prosecution, there was an understanding between the two for a path to be created though the farm of complainant in order for accused person to access his farm. This path was created but soon became muddy and unmotorable prompting accused person to allegedly divert the path into portions of complainant’s farm in order to gain ingress to his farm. Prosecution alleges that the action of accused person caused damage to two cocoa trees belonging to complainant. Complainant was apparently not happy with the action of accused person and thus decided to confront him. This led to an altercation where Prosecution alleges that accused person assaulted complainant and further caused damage to complainant’s t-shirt and his cutlass, leading to the present charges against accused person. 1 Accused person pleaded not guilty to the offences preferred against him and as such Prosecution, by law, is enjoined to establish its case against accused person beyond reasonable doubt in accordance with Section 11(2) of the Evidence Act 1975 (NRCD 323) which provides as follows; “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 a reasonable doubt” The offence of Assault as prohibited under section 84 of Act 29/60 may be „assault and battery‟ or „assault without actual battery‟ and „imprisonment‟. (See: Section 85 of Act 29). Section 86(1) of the Act explains how the offence is founded as follows; “A person makes an assault and battery upon another person, if without the other person's consent, and with the intention of causing harm, pain, or fear, or annoyance to the other person, or of exciting him to anger, he forcibly touches the other person, or causes any person, animal, or matter to forcibly touch him.” It follows therefore that the elements which make up the offence which require proof are; a. b. c. The accused forcibly touches another person. The accused lacked the consent of the person to touch him The accused had the intention of causing the other harm, pain, fear or annoyance. According to the facts, the assault complained of was that, “accused…held complainant’s shirt…” when he attempted collecting the cutlass of complainant. However, in his evidence in chief complainant testified to the effect that when he confronted accused 2 person as to why he had created a new path in his farm thereby destroying his cocoa plants, the accused person, “suddenly became violent and grabbed the neck of my shirt”. Complainant further alleged that accused person attempted to grab the cutlass he was holding but he prevented that attempt, which resulted in a struggle between them. In cross examining complainant, accused person asked; Q. On the day of the incident while passing on the path you raised your cutlass at me preventing me from passing? A. I stopped you to question you as to why you had created a new path. I was not threatening you with my cutlass. You rather rushed on me unawares and attempted to snatch my cutlass from me. He further queried; Q. After you threatened me with the cutlass, I managed to escape by the help of one Kwaku Darko? A. Not true. From the above discourse, one observes no denial on the part of accused person with regards to him grabbing the neck of complainant’s t-shirt. Accused person rather attempts to offer an explanation for his action alleging that complainant had threatened him with his cutlass. This Court shall later in this judgment ascertain the veracity of that claim, however given accused person’s failure to deny or challenge complainant’s assertion, that accused person had grabbed the neck of his t- shirt, accused is deemed to have admitted the truth of same. In the case of Hammond vrs. Amuah and Anor [1991] 1 GLR 89, it was held that when a party had given evidence of a material fact and was not cross-examined upon it, he need not call further evidence of that fact as the party who failed to so cross examine is deemed to have admitted the truth of that assertion. [See: The Republic vrs. Kwame Amponsah & 6 ORS (2019) JELR 107122 3 (HC)]. This Court accordingly finds that, accused person indeed grabbed the neck of complainant’s t-shirt. Does the conduct of accused person amount to a touch within the meaning of the law? Certainly so. Grabbing the neck of complainant’s t-shirt even though not a touch to the body of complainant, was a touch to him personally as complainant was wearing the t- shirt in question at the time of the incident. Furthermore, there appears to have been a struggle following the grabbing of the neck of complainant’s t-shirt which came about when accused attempted collecting the cutlass from complainant. This fact was alluded to by both complainant and accused person in their respective evidence in chief which suggests a lack of consent on the part of complainant. Had complainant consented to his t-shirt being grabbed by accused person, no such struggle would have taken place. This Court accordingly finds as established the first two element of the offence. The last element of the charge of assault seeks to ascertain whether or not accused person had the intention of causing complainant any harm, pain, fear or annoyance. This issue is resolved when one considers the purpose for which accused person grabbed the neck of complainant’s t-shirt. If the purpose or reason is founded, one can rightly assume that there was no such intention on the part of accused person to cause complainant any harm, pain, fear or annoyance and even if that was the case, same was justified. Accordingly, accused person attempted to offer a reason for his action and this was to the effect that complainant threatened to harm him with a cutlass. This assertion was first alluded to by accused person during the cross examination of complainant (Pw1) as noted earlier. Again, accused person repeated this assertion in his Caution Statement which was tendered and marked as Exhibit A by which he stated as follows; 4 “…I was on the way to…(my farm) when complainant (stopped me once again) that (I have no right to pass through his farm). He started insulting me and threatened to hurt me with his cutlass…” Furthermore, in his evidence in chief accused person rehashes the alleged threat made against him by complainant by testifying to the effect that on the day of the incident he when met complainant, the latter started abusing him and raised a sharpened cutlass to hurt him (accused) for which reason he jumped off his aboboyaa (tricycle) and got hold of the handle of complainant’s cutlass in a bid to take same from him. This assertion was however challenged by Prosecution during the cross examination of accused person which led accused person to allege that the complainant had previously threatened him with a cutlass on three occasions. This is what transpired; Q. The complainant humbly told you to stop the destruction to his farm but you got angry leading to the altercation? A. Not true. The complainant had previously threatened me with a cutlass on three occasions. Clearly this was an afterthought. Never had accused person alleged, whether in his caution statement or witness statement that he had been threatened three times previously by the Complainant. It thus appears that in a bid to bolster his assertion regarding the alleged threat to him, accused person makes the assertion of a previous threat for the first time. This however makes the Court doubt the veracity of accused person‟s claims. In any case, no witnesses were called by accused person to corroborate the alleged threat to him even though he suggested to complainant during the latter’s cross examination, that one Kwaku Darko was present. Consequently, this Court finds the alleged threat to accused person unsubstantiated. It follows therefore that accused person had no reasonable cause to have held the neck of complainant’s t-shirt. In fact, 5 according to his own evidence, when complainant stopped him, accused person was seated in his tricycle hence, if such a threat did take place, the only reasonable action was for him to have driven off. Strangely, accused rather got down from his tricycle to go and prevent an alleged threat which in fact never existed. What then was the true purpose for which accused person grabbed the neck of complainant’s t-shirt? According to Complainant accused person’s aim was to collect the cutlass he (complainant) was holding and use same to harm him. It was his attempt to prevent that which resulted in the struggle between the two. Accused person conceded struggling with complainant and indicated that he wanted to retrieve the cutlass from complainant. He however denied that he intended to use same to harm complainant. As to what accused person had in mind at that material moment, same is unknown since his thoughts cannot be known unless revealed by way of evidence. In this case the following are established; i. ii. Accused person was riding his tricycle on the day of the incident. Accused person was stopped by complainant and questioned as to why he was plying that particular path. iii. Accused person got up from his tricycle and grabbed the neck of complainant’s shirt. It seems to the Court that, the action of accused person in the very least was to cause complainant some level of discomfort or annoyance which he managed to achieve. This Court therefore finds as established the last element of the offence. Prosecution has therefore managed to establish Count One beyond reasonable doubt. Accused is found guilty on Count One and hereby convicted on same. 6 With regards to Count Two accused person is charged with the offence of causing unlawful damage contrary to Section 172 (1)(b) of Act 29/1960. That section provides as follows; “A person who intentionally and unlawfully causes damage to property (a) to a value not exceeding one million cedis or without a pecuniary value, commits a misdemeanour; (b) to a value exceeding once million cedis commits a second degree felony” By this offence, the ingredients necessary to be established by the Prosecution are that; a. Damage was caused to property intentionally by accused person and no other. b. That the damage caused was not lawful. This is the position of the law as stated in a myriad case law pertaining to the subject. In Yeboah & Anor. v The Republic [1999-2000] I GLR 149, the Court of Appeal in that case held as follows; “on a charge of causing unlawful damage under section 172 of the Criminal Code, 1960 (Act 29), the ingredients to be proved by the prosecution were intention and unlawful damage…” Furthermore, in the case of HOMENYA v. THE REPUBLIC [1992] 2 GLR 305, the Court held; “…an accused could only be liable on a charge of unlawful damage to property under section 172(1) of the Criminal Code, 1960 (Act 29) where the prosecution was 7 able to establish not only that the accused caused the damage intentionally but also that the damage was caused unlawfully…” In this case accused person is alleged to have caused damage to a T-shirt, cutlass and two cocoa trees belonging to complainant. With regards to the T-shirt, Pw1 indicated that accused person grabbed the neck of his shirt. Nowhere did he indicate that the T-shirt got damaged as a result. In fact, none of Prosecution’s witnesses led any evidence to suggest that any damage was caused by accused person to the T-shirt of complainant. It was only Pw3 the investigator who tendered Exhibit C which is a picture of complainant in a torn t-shirt. The connection of Exhibit C to accused person was however not brought to bare by any of Prosecution’s witnesses during the respective testimonies. It is thus no wonder that accused person felt no need to cross examine the witnesses on same. This Court accordingly finds that, Prosecution had failed to lead any evidence to link accused person to the damage caused to complainant’s T-shirt. With regards to the cocoa trees, complainant alleged that the different route which accused person created through his farm resulted in the destruction of his cocoa plants. However, Pw3 Constable Anastasia Agbemordzi had a different perspective. Upon enquiry by the Court Pw3 indicated that the path in question was a path already being used by the public thus it was not the case that accused person had created a different route. She however alleged that despite the path being a public way, “…by the fact that accused placed planks on the path, it destroyed some cocoa”. This appeared a bit ambiguous so she later attempted to clarify but in so doing she literally provided accused person with plausible deniability. She was asked by the Court as follows; Q. On your visit did you see any cocoa tree or seedling that had been destroyed or damaged? 8 A. Yes I did. I noticed that some cocoa trees had been damaged by certain tricycle that ply that route. Q. is it only accused person who plies this route with a tricycle? A. I cannot tell. The answers given by Pw3 during her cross examination reveals two critical facts; i. ii. The path in question is a public way which passes through the farm of complainant. Accused person is not the only person who may have used a tricycle to ply the path in question. This suggests that the damage caused to the cocoa trees/plants of complainant could have been caused by any of the number of persons who ply that path with a tricycle. To that extent, the damage to the cocoa tree cannot be attributed solely to accused person. This is enough reasonable doubt which must enure to the benefit of accused person. Lastly, accused person is alleged to have caused damage to a cutlass however the picture of the cutlass which was tendered revealed no such damage. This came up during the testimony of the Investigator (Pw3) when she was asked; Q. You tendered Exhibit E alleging it was damaged. Can you show how the cutlass belonging to complainant was damaged? A. During the struggle between complainant and accused the cutlass got bent. This cannot be seen in the picture but can be seen on the actual cutlass still in our possession. 9 Clearly, no damage could be perceived from the picture of the cutlass, Exhibit E. If there was any damage, this could have been revealed if the actual cutlass had been tendered into evidence which was not done. Consequently, this Court finds that Prosecution failed to establish any damage to complainant’s cutlass as well. Prosecution’s failure to establish any damage caused by accused person to complainant’s T-shirt, cocoa trees/plants and cutlass indicates that Count Two must fail. On a more serious note, since the damage caused to the cocoa trees/plants occurred on a different date from the date on which the t-shirt and cutlass were allegedly damaged, Prosecution ought to have proffered two separate charges of unlawful damage, since they were two distinct offences which took place on different dates. By fusing all the items allegedly damaged under one omnibus charge, Prosecution’s charge was bad for duplicity. (See: Commissioner of Police v. Sencherey [1959] GLR 225). From the foregoing, Count Two must accordingly fail. Accused person is acquitted and discharged on Count Two. It follows therefore that accused person is only liable under Count One having been found guilty and duly convicted earlier. Given the fact that assault complained of can best be described as trivial as it entailed the holding of the neck of complainant’s t-shirt, this Court deems it just not to impose a custodial sentence. Moreover, the assault in this case is a mere misdemeanour. Consequently, accused person is sentenced to pay a fine of 50 penalty units and in default five (5) months imprisonment in hard labour. SGD H/H CHARLES KWASI ACHEAMPONG ESQ. CIRCUIT COURT JUDGE - GOASO 10 11