Takyi v The Republic (BE/TN/HC/F15/05/2025) [2025] GHAHC 195 (18 July 2025)

1 INTHESUPERIOR COURT OF JUDICATURE. INTHE HIGHCOURT OF JUSTICE HELDAT TECHIMAN INTHEBONO EAST REGIONON FRIDAY THE18th DAY OF JULY2025BEFOREHIS LORDSHIP JUSTICEKWAMEGYAMFIOSEI CASENO BE/TN/HC/F15/05/2025 KWABENATAKYI :APPELLANT VRS THEREPUBLIC :RESPONDENT ========================================================================== JUDGMENT The Appellant was charged with the offence of causing damage contrary to Section 172 of the Criminal Offences Act 1960 [Act 29]. The Appellant pleaded not guilty to the offence and at the end of the trail was convicted by the Circuit Court, Techiman and sentenced to a fine of 1000 P. U. or in default 6 months imprisonment, which said fine has been paid. It is from this judgment that the Appellant has appealed to this court on thefollowing grounds; “i.That the convictionis against the evidence onrecord 1 2 ii.That the prosecution failed to prove the essential ingredients of the offence of unlawfuldamages levelledagainst the convict.” Before examining the grounds canvassed by counsel for the Appellant I would briefly relate why the appeal was launched against the said judgment. The Appellant was charged with the offence of causing unlawful damage contrary to Section 172 of the Criminal Offences Act 1960 [Act 29/60] for the demolition of a two apartment uncompleted structure belonging to the complainant, which was on a plot of land which was under litigation between the Appellant’s father and the Complainant. None of the Prosecution witnesses saw the Appellant pulling down the building. Their evidence was purely circumstantial because the prosecution witnesses testified that the Appellant had earlier issued threats to demolish the said structure. The Learned Judge in his Judgment fixed the Appellant with guilt because the threats issued by him were corroborative ofhisinvolvement in thatcriminal act. Counsel for the Appellant, arguing ground one submitted that none of the prosecution witnesses testified that they saw the Appellant causing that damage to the building. It was further submitted that the learned judge erred when he found that the evidence of PW1 to the effect that the Appellant issued those threats were corroborated by the other Prosecution witnesses merely because they repeated those claims, where in fact, there was no credible evidence that the Appellant issued those threats on those occasions. In counsel’s view the prosecution did not discharge the evidential burden on 2 3 it and the court asking the Appellant to open his defence occasioned a substantial miscarriageofjustice onhim. On the second ground it was also submitted that the prosecution failed to proof the essential ingredientsoftheoffence ofcausing unlawful damage. Ground “ii” of the grounds of appeal shall be subsumed under ground “I” because ground “I” is capable of covering same. Per the grounds of appeal I am supposed to review the entire evidence with the view to ascertaining whether the conviction and sentence were reasonable having regard to the evidence on record. From the evidence adduced by the prosecution it is not in dispute that damage within the contemplation of Section 173 of the Criminal Offences Act 1960 has occurred. It is also apparent from the evidence that none of the Prosecution witnesses saw the Appellant causing damage to the structures. The germane issue in this appeal is whether the trial Judge’s conviction and sentence of the Appellant based on circumstantial evidence was reasonable and is borneout fromthe evidence. The learned Judge at page77ofthe record stated “ in this case the witnesses for the prosecution particularly PW2 and PW3 testified that the accused told them he was going to demolish the structure the complainant has caused to be erected on the land. They did not say that they saw the accused committing the alleged demolishing. This piece of evidence that there is no direct evidence if the identity 3 4 of the accused as the one who committed the crime, is what the accused is taking inspiration from to say his identity cannot be made out. The testimony of the 2nd prosecution witness that the accused told him whileson the land that he will demolish the building which had been put up on the land by the complainant was corroborated by the testimony of PW3 on the same issue. There is therefore evidence beyond reasonable doubt that the accused did threaten to demolish the complainant’s building. What the accused person appears to be saying is that despite his threats to demolish the complainant’s building the specific or actual act is that of another person not him. Is there evidence from particularly from the accused person to show that there is someone other than himself that committed the act complained of. As earlier noted in the judgment the accused person appears by hisstatement to be raising the defenceof alibi tothe charge againsthim. He says despite his threat to demolish the complainant’s building he was not responsible for the demolishing. The evidence from the prosecution has established that accused threatened to do some act which eventually gets done. The court is entitled to assumed from the facts established that the accused person carried out his threat. Section 18(2) of NRCD 323 provides that an inference may be reasonably drawn from a fact or group of facts found or otherwise established in an action. The court also presumes that the accused intended the ordinary consequences of his threats. See Section 38 of the same NRCD 323 which provides on the presumption of the ordinary consequences of ones voluntary action. The demolishing is the direct consequences of the threat issued by the 4 5 accused person to demolish the building. The burden falls on the accused person to now provide evidenceto the contrary…” From this narrative the learned judge claimed the Appellant put his identity in issue for saying that he was not the one who committed the offence or was not seen committing the offence. The learned Judge went further to say that even though he was not seen, that was not a valid defence because ones identity could be proven by other means and went ahead to cite the case of RAZAK & YAMOAH V THE REPUBLIC [2012] 2 SCGLR750and the case ofADUBOAHENE V THE REPUBLIC[1972]1GLR. I think the learned Judge misdirected himself or fell into error when he raised those propositions of the law because the facts of this case does not lend itself to same. This case is not a case of mistaken identity, where someone saw a figure causing the said damage and attributing it to the Appellant. The Appellant only said that he was not the one who committed the offence and that does not put his identity into question. Hence it was wrong on the part of the learned Trial Judge to bring on board those principles onproof ofidentity. Secondly, the Learned Judge erred when he applied Section 38 of the Evidence Act 1975 [NRCD 323] to say that by issuing the threats the Appellant intended the ordinary consequences of action, which was the destruction of the said structures. In the first place that logic is flawed because if oneissues athreat tocause damage thatthreatalone 5 6 would not result in the actual damage . More importantly section38 ofthe Evidence Act 1960 is not applicable in criminal offences where intent is an ingredient of the offence charged. Foremphasis thesectionstates “Section38—Ordinary Consequences ofVoluntaryAct. (1) A person is presumed to intend the ordinary consequences of his voluntaryact. (2) This section is not applicable in a criminal action to establish specific intent where specific intent is an element of the crime charged. (emphasissupplied) Now to the main issue, that is, whether the Learned Trial Judge properly applied circumstantial evidence in convicting the Appellant. The learned Judge relied on the evidence of PW2 and PW3 to convict and sentence the Appellant. They said the Appellant on different occasions told them that he would pull down the structure. He found PW3’s evidence on that threat as corroborative of the earlier issued in the presence of PW2. He therefore formed the opinion that even though no one saw the Appellant pulling down the structure, his involvement was proven by that circumstantial evidence. I fail to see how mere words , without more, could ground a conviction if the object of the threat is destroyed subsequently. The repetitive evidence of the prosecution witnesses to the effect that the Appellant issued those threats cannot amount to 6 7 circumstantial evidence. Circumstantial evidence by itself is drawn from other evidence which put together is capable of proving a crime as direct evidence could do. if there was evidence that someone saw the Appellant coming from the direction where the structure stood deepin the night, sweating orwith a groupofpeople at an odd hour, on the day of the destruction, that could have amounted to circumstantial evidence. But to say that someone issued a threat and because that threat materialized later, it is the one who issued the threat, and no one else in the world who did it, is far-fetched. The offence could have been committed by the father of the Appellant. No wonder the said father was initially charged together with the Appellant. It could also have been demolished by the Complainant himself to put the Appellant and his father in trouble due to the dispute over the land. It could possibly have been caused by someone who has issues with the Appellant and wanted to put him trouble for after all it was the Appellant who had openly issued those threats. As I have indicated supra, if there were other independent evidence showing the involvement or possible involvement of the Appellant that would have been corroborative evidence and in that sense the guilt of the Appellant could have been proven by circumstantial evidence. In the case of DUAH v. THE REPUBLIC [1987-88] 1 GLR343-360(holding 3) sums up theposition ofthe law “(3) Circumstantial evidence was evidence of surrounding circumstances which by undesigned coincidence was capable of proving a proposition with the 7 8 accuracy of mathematics. In criminal cases, it was sometimes not possible to prove the crime charged by direct or positive evidence of persons present at the time the crime was committed. So where the testimony of eye-witnesses was not available, the jury was entitled and indeed permitted to infer from those facts which the prosecution had proved other facts necessary either to complete the elements of guilt or establish innocence. However before drawing the inference of the guilt of an accused from circumstantial evidence, it was very important to make sure that there was no other co-existing circumstances which would destroy or weaken the inference. Thus circumstantial evidence had to be closely examined and acted upon only when the circumstances were such that the guilt of the accused had of necessity to be inferred and that the facts led to no other conclusion.” From the evidence led the fact that the Appellant issued those threats only made him a person of interest or suspect when the damage occurred. However to proceed against him in a criminal court the prosecution needed more evidence than those mere words. One thing about circumstantial evidence is that any inference drawn from the established facts should lead to one irresistible conclusion that it was the Accused alone who committed the offence with no possibility of any other person committing the offence. In this case the offence could have been committed by any of those mentioned supra. Hence there was the need for a different evidence or corroborative evidence 8 9 against the Appellant before drawing that inference. Many innocent people would be incarceratedif thatposition takenby the trialJudge is upheld bythis court. In my view this error on the part of the Learned Judge has led to a substantial miscarriage of justice and the said conviction and sentence are accordingly set aside. The Appellant is acquitted and discharged of the offence. The fine paid shall be refunded tothe Appellant afterthe time limited for appeallapses. (SGD) KWAMEGYAMFIOSEI JUSTICEOF THE HIGH COURT TECHIMAN-BER COUNSEL: FELIX AKOSAH YEBOAH H/B FOR FREMPONG BOAMAH FOR THE APPELLANT. DEREKASANTE OBENG(SA) FORTHE RESPONDENT 9