S v Seidu (CC No. 50/2024) [2024] GHACC 427 (4 December 2024)

INTHE CIRCUIT COURT HELDATKINTAMPOON WEDNESDAY,THE 4TH DAY OF DECEMBER, 2024,BEFORE HERHONOUR, LILYAMOAH- KANKAM ESQ, CIRCUIT COURT JUDGE. CCNo. 50/2024 THEREPUBLIC VRS MUGU SEIDU TIME: 8:38AM ACCUSEDPERSON PRESENT C/INSP JOHN MENSAHFORTHE REPUBLIC PRESENT THEACCUSEDPERSON IS NOT REPRESENTED 1 JUDGMENT The Accused person herein was arraigned before this Court charged with the offence of Use of Offensive Weapon contrary to Section 70 of the Criminal Offences Act, 1960, (Act 29),on24/5/2024. The Accused person pleaded not guilty after the charge had been read out and explained to him in Twi and Hausa. It required the Prosecution to adduce adequate and relevant evidence toestablish theguilt ofthe Accused personbeyond reasonable doubt. The Prosecutor called four witnesses in support of his case. The case for the Prosecution was that the Complainant is a cattle owner and the Accused person is a herdsman and they are both residents of Kadelso. According to evidence led by prosecution, some time back the Accused personstolea cellphone belonging tothe Complainant'sson and the Accused was warned by the Complainant never to step foot in his house again. Prosecution said this warning angered the Accused and as a result he has been harbouringanger and hatred forthe Complainant. According to Prosecution, on 18/05/2024 at about 9:30 pm, the Accused person armed himself with a sharp cutlass and went to the Complainant's house, and met the Complainant's landlord eating in front of his room in the compound of the house. He added that, the Accused person in an attempt to create a scene for the Complainant to 2 come out of his room dipped his hand into the landlord's food. This infuriated the landlord and it resulted in an argument. Prosecution stated further that the noise drew the Complainant's attention and he stepped out to find out what the problem was. According to prosecution, when the Complainant saw the Accused person he enquired from him as to what he was doing in the house and asked him if he was not warned neverto stepfootinthe house. The Accused personknowing hisreasonforbeing in the house drew his sharp cutlass and inflicted deep cut wounds on the Complainant's right arm, under his lower lip and chopped off his left hand in the presence of witnesses. Prosecution added that the Complainant shouted for help and the noise drew the attention of the neighbours and they managed and arrested the Accused and sent him to the Kadelso police station together with the exhibit cutlass where a complaint was lodged. A medical form was prepared and handed over to the Complainant to go to hospital for treatment and the case was later brought to Kintampo and after investigations, he was charged withoffence and is before this honourable court. The prosecution called four witnesses in support of its case, i.e. the Complainant, Complainant’s landlord, the Complainant’s wife and the Investigator. The Accused did notcall any witnessin support ofhis case, there was onecourt witness. 3 EVIDENCE OF PW1: According to KWESI ALHASSAN (PW1), the Victim Bukari is his tenant and they live inthe same house and he knowsthe Accused persontoo. He said that on that fateful day at about 8:30pm he was in the house with his friend called Kpleh, and they were about to eat when the Accused came and asked for water. He said they gave him the water, he drunk little and used the rest to wash his hands. He said again that as soon as he finished washing his hands, he dipped his hand into the bowl to eat the food but his friend deprived him of the food. And the Victim who was lying on his veranda heard the noise, came out and when he saw Accused, he questioned him as to what he was looking for. The Victim/Complainant Bukari Nyaaya again told Accused that he has warned him not to come to the house again because the Accused has stolenfromhim multiple times so he should leave. PW1 said Accused then started moving backwards slowly so they thought he was leaving but then before they realized, he drew cutlass and started attacking Victim by slashing him, so he told the Victim to get a long stick to defend himself because of the cutlass. According to PW1, it was at this point that the Accused fled. After which they realized that the Accused slashed the Victim three times, one on his chin, the right hand and chopped off his left hand and it waslying ontheground. 4 PW1 said again that, he and some other people took the Victim to the hospital but they passed by the police station and reported the matter before proceeding to the hospital. According to PW1, the Accused was later arrested by some good Samaritans when he wastrying toescape toBuipe and was handed tothe police. EVIDENCE OF BUKARI NYAAYA(PW2): PW2, the Complainant/Victim said, on the day in question, he was on his veranda when he heard his landlord and his friend talking with someone so he came out to see what was happening, and upon coming out, he met the Accused arguing with his landlord over food. According to him, he asked the Accused what he was doing there and that haven’t he warned him not to come to his house again, because he stole from him several times. So he told him to leave and immediately the Accused started moving backwards slowly and suddenly removed a cutlass from his side and tried to slash his head but he moved his head back so he cut the left side of his chin, slashed his right hand and finally chopped off his left hand. He added that all these happened in the presence of his wife, landlord and the landlord’s friend. He also averred that, the Accused afterinflicting the cutlass wounds onhimfled. 5 EVIDENCE OF PW3: PW3 is the wife of the Victim/Complainant and according to her on that fateful day, at about 8:30pm, she was lying under a shed in front of the house, and she overheard their landlord talking to someone so she got up and saw Accused standing. According to her heard the landlord's friend telling the Accused person that he will not allow him to eat their food. She said the husband that is the Victim, then came out and when he saw the Accused, he questioned him as to what he was looking for and also asked Accused again that hasn’t he warned him not to come to the house because he previously came to the house and stole from him, and so he should leave. PW3 aver at this point the Accused started moving backwards slowly, and drew a cutlass from his side and slashed the victim three times. The first was on his chin, then his left hand and finally chopped off his left hand and fled afterwards. She said they then took the Victim to the hospital. EVIDENCE OF D/INSPR.IMORO ALHASSAN(PW4): PW4, the Investigator, informed the Court that on 19/04/2024, the Complainant brought in Victim Bukari Nyaaya with his left wrist chopped off and deep cut wounds on his right hand and under his left chin and he obtained statement from Complainant Kwesi Alhassan(PW1). 6 According to him, he arrested the Accused person on same day and obtained investigation cautioned statement from him. He also said he visited Bukari Nyaaya, the Victim at the CentralGonja Hospital and obtained statement from him. And also visited the scene and took witness statement from Barikisu Hassan. The Accused person was charged with the offence as stated on the charge sheet and is before the honourable court.Prosecutionclosed his case thereafter. WITNESS STATEMENTOF MUGU SEIDU(ACCUSEDPERSON): When the Accused person opened his defence, he informed the court that, he is a Herdsman residing at Kadelso, and he knows the Complainant, the Victim and the Victim’s wife. According to him on that fateful day, at about 10:00pm he left home to visit his kraal which is located at the outskirt of the town, and he was holding two onions and machete hanging onhis shoulder. He said he met his brother Mariwa and his friend Gariya on his way and they told him to go back home because it was late in the night and everybody in the town is asleep. According tohim, he refused totaketheir advice and continued his journeytowardsthe kraal. He said on his way to the kraal, the Police arrested him and kept him in their custody till the next day, and showed him the photograph of the Victim and asked whether he knows him or not. He said he answered yes, and immediately the police 7 accused him that he is the one who had chopped off the hand of the Victim. According to him, he denied and told the police that he has not done what they are accusing him of. The police then took his statement, and brought him before the court. The Accused did not call any witness in support of his case, though the court gave him several opportunities todo so. EVIDENCE OF THE COURT WITNESS (CW): According to the court witness, the day the incident happened, he and PW1 were eating. The Accused just entered and said he will eat some of the food. So he told him they will not allow him to eat some of the food, and he prevented him from eating the food. He added again that as they were arguing over the food, the Victim came out of his room and asked him (Accused) what he wants, they then told him to leave the house. According to him the Accused then pulled a cutlass and it fell. He then picked the cutlass to cut him and he dodged, then he took it to PW1 and he also dodged. Then PW1 told him to run away, and before they realized the Accused had slashed the Victim. 8 At the end of the trial the issue that fell to be determined by the Court is whether or not the Prosecution had adequately proved its case against the Accused person herein to warranthisconviction. This being a criminal case, the Prosecution bears the burden of proof to establish the guilt ofthe Accused personsbeyond reasonable doubt asprovided under Sections11(2) and 13(1) of the Evidence Act, 1975 (NRCD 323). It was also stated in the case of BRUCE-KONUAH V THE REPUBLIC (1967) GLR 611 – 617, where Amissah J.A. statedas follows: “Barring the well-known exceptions, an Accused is under no obligation to prove his innocence. Theburden ofproofoftheAccused person'sguilt ison theprosecution I now proceed to state the provision in respect of the offence with which the Accused person has been charged. Section 70 of the Criminal Offences Act, 1960 (Act 29), provides: “A person who intentionally and unlawfully causes harm to any other person by the use of an offensiveweapon commits afirstdegree felony.” From the above-quoted provision, the prosecution must be able to prove that the Accused person made use of an offensive weapon intentionally to cause unlawful harm to the other person. It must be noted that this offence is made a first degree felony which indicates the legislature’s intention to view such an act with greater seriousness. 9 It is essential also for the prosecution to prove that the weapon used by the Accused personis offensive. In the case of STATE VRS. YAW PRAMANG [1963] 2 GLR 457, where the Prosecution sought to prove the use of an offensive weapon in causing harm, the learned judge statedas follows: “One test for determining whether an object is offensive or not is whether it can be used foran aggressive purpose.” Fromthe above, the ingredientsofthe offence use ofoffensive weapon are as 1. That the Accused person committed the act or the offence and it was done withoutany justification; 2. That the Accused person caused bodily hurt, disease or disorder and it was done intentional and unlawful; 3. That the Accused persondid use such anoffensive weapon tocause the unlawful harmtothe other person. PW1 narrated the story as presented by the prosecution; PW2 corroborated the story of PW3. I am not sure if the investigator conducted any investigations in this matter. He 10 informed the court that, he arrested the Accused same day and took statements from the witnesses. I am not able to fathom this. There are lot of errors and defects in the investigators evidence to the court. An incident that happened on 18th May, 2024 and the Accused was arraigned before this court on 23/5/2024 was reported to him on 19th April, 2024. I don’t know if it’s a typographical error, if it is what prevented him from going through the witness statement and ensuring that the proper thing is done. That aside, from the facts ofprosecution and the evidence ofthe other witnesses, the incident happened at Kadelso the neighbours assisted in arresting the Accused to the Kadelso police station, and the matter according to prosecution was transferred to Kintampo. The investigator said he arrested the Accused. So when the investigator stationed at Kintampo did arrested the Accused. The investigator lazed around the investigations and did not do any work. Per the investigators evidence before this court, there are no findings forthe courtto relyon. According to prosecution’s witnesses, PW1, PW2 and PW3 they were all present when the incident happened, and as I indicated earlier on PW1 stated the facts as presented by prosecution, PW2 corroborated the story of PW3. The Accused person also stated in his evidence that he knows these witnesses. And during cross examination he said that, he has even been smoking tobacco with PW1 and that, the day the incident happened he was at the victim’s house that is the crime scene, was given tobacco by PW1 and he 11 left, those same was denied by PW1. This suggests to me that the witnesses and the Accused personknowseachotherverywell. This ensued during crossexamination onPW1by the Accused person. Q.Do youknowthe personwho chopped thehand ofthe Victim? A.yes, youarethe one. I knowyou. Q. We all take tobacco, do you recall that, that day I came there, you gave me tobacco and I left. A.That is not true. Q.I amputting it toyouthat, Ineverchopped offthe Victim’swrist. A.It is you, youdid it. I was present It can be deduced from this dialogue that PW1 and the Accused knows each other very well, they havebeensmoking tobacco together. This piece of evidence was also never challenged by the Accused person. The evidence that PW2 the Complainant (Victim) has warned the Accused person not to step foot in their house again, because he hasbeenstealing fromthe Complainant. This transpired during crossexamination by PW3onthe Accused person. Q. Do you know the person who came to cause harm to your husband and chopped off his hand. 12 A.Yes, youarethe one. Q.The firsttime I came tothe house, what did Icame there todo? A.Youcame tosteal. Q.When Icame toyourhouse, whom didI talkto? A.Youwere talking toPW1. Q.What was the conversation withPW1about? A.Youtold him youwanted water. Q.Did youhearme chatting withthe Victim your husband? A. Yes, I heard my husband saying that he told you not to set foot in the house again, because youhave beenstealing, and thatwhat did youcome theretodo? Q.I amputting it toyouthat, Ineverchopped ofyour husband wrist. A.Youare theone. From this dialogue too it can be inferred that indeed the Accused has been going to the Complainant’s house and he has been warned not to step foot there, because he has beenstealing fromthem. I am convinced by the evidence before me that, PW1, PW2, PW3 and CW who were present when the incidence happened knows the Accused person very well, and they saying it was the Accused who committed the crime, is notamistakenidentitytome. The Accused person is not a credible witness, during cross examination on PW1, he stated that the day the incident happened he went to PW1’s house that is the scene of 13 crime, and PW1 gave him tobacco and he left and during cross examination on PW2, he statedthat the daythe incident happened he was notat hishouse (crime scene). This ensued between theAccused andPW2. Q.The daythe incident happened I was notinyourhouse? A.That is not correct. Youcame tomy house onthatday. The Accused person again electing to speak different languages during the trial also suggeststome that he isnot acredible witness. Section 80(2) of the Evidence Act, 1975 (NRCD 323) which outlines some of the facts in determining the credibility of a witness explains that in a determination of the credibility of a witness, one must take in cognizance the demeanour of the witness, the substance of the testimony, the existence or non –existence of any fact testified by the witness. The Accused when he mounted the witness box stated that on that fateful day at about 10:00pm he left home to visit his kraal, and he was holding a machete and onion. He met his brother and friend, who told him to go home because it is late but he didn’t mind them, and he continued his journey towards the kraal and the police arrested him for chopping off the Complainant’s wrist. Meanwhile in exhibit ‘A’, even though he denied the offence, he stated that, that fateful day around 9:00pm he was visiting his kraal, which is at the bush far from Kadelso, and upon reaching the Complainant’s 14 house he saw two boys running out of the house with a cutlass, and after they have run away he continued his journey to town and he was arrested by the police and some other people. If indeed on that fateful day the Accused upon reaching the Complainant’s house saw two boys with a cutlass running out of the Complainant’s house, why did he left out this vital information in his evidence to the court, and why didn’t he also continued his journey to the kraal, but went to town after seeing those boys he allegedly met in front of the Complainant’s house. In his defence to the court, he stated that it was the police that arrested him, and in other evidence before this court, he said thepolice and some otherpeoplearrested him, and during crossexamination on him by the prosecution, he admitted that it was the community members that arrested him and handed him over to the Kadelso police. The Accused to me is not a credible witness as I have already indicated. What I am not able to understand again is that, why should the Accused visit his kraal at that odd time. To me the Accused want to throwdust in theeyesofthe court,his evidence tothis courtis self-narration. Even though there are discrepancies in parts of prosecution’s evidence. Those discrepancies to me are not fatal to the prosecution’s case. A discrepancy in the case of prosecution is fatal only when it cannot be reconciled with the rest of the evidence or when it is immaterial or goes to the very root of the matter in issue. See page 129 of criminallaw inGhana by P.K. TWUMASI. 15 On the totality of the evidence before this court, the prosecution’s case is more probable than that of the defence, the Accused person’s explanation (defence) is untruthful. He intentionally and unlawfully caused harm to the Victim (PW1) with the use of offensive weapon. He is therefore guilty of the offence he is charged with and is convicted accordingly. PRE SENTENCEHEARING: Q.How oldare you A.I don’tknow Q.Are youmarried A. No my lady Q.Do youhavechildren A.No my lady Q.Prosecutionis he known A.No my lady Q.Any plea in mitigation A.I have nothing tosay 16 SENTENCE: Even though the convict is a first time offender, the court in sentencing is minded about the permanent injury and deformity caused to the Victim. The Accused person is also not remorseful. The Accused is accordingly sentenced to 7 years imprisonment in hard labour. LILYAMOAH–KANKAM ESQ. ……….…………………………… CIRCUITCOURTJUDGE 17