REPUBLIC VRS ADAMS 6 OTHERS (62/2023) [2024] GHACC 326 (17 October 2024)

CORAM: HER HONOUR LILY AMOAH-KANKAM SITTING AT THE CIRCUIT COURT, KINTAMPO, ON THURSDAY, 17TH OCTOBER, 2024. CC NO: 62/2023 THE REPUBLIC VRS JINCHE ADAM AND SIX OTHERS TIME: 10:05AM ACCUSED PERSONS (A5 and A6) PRESENT COMPLAINANT PRESENT CHIEF INSPECTOR JOHN MENSAH FOR THE REPUBLIC PRESENT NANA SEKYERE BOATENG COUNSEL FOR THE ACCUSED PERSONS PRESENT JUDGMENT The Accused persons herein have been charged with the offences of abetment of a criminal offence, Assault and causing unlawful damage contrary to Sections 20 (1), 84 and 172(1)(a) of the Criminal Offences Act, 1960 (Act 29). They were arraigned before the court on 16/4/2023. The Accused persons pleaded not guilty to the charges after it was read out and explained to them in the Twi language. The facts of the case are that, the complainants are trader and farmer and residents of Kintampo and Portor respectively. Whilst all the accused persons are farmers and reside at Portor. The complainants and the accused persons are relatives and for some time now there has been farmland litigation among them. According to prosecution, on 3rd day of April, 2023, the complainant Safura Adam attended a funeral at Portor and when she arrived at 1 Portor she visited her younger sister, Afishatu Adam in her house. According to the prosecution again, the accused persons on hearing the arrival of the complainant Safura Adam at Portor, quickly sent A4 to go to Afishatu’s house and informed her that A3, A2 and A1 wanted to see her for a short discussion. Complainant Safura Adam was at first not happy on that invitation so she called her son one Mohammed who was at the time at Kintampo on phone and told him. Mohammed who also did not know what the accused persons had planned to do, advised his mother to attend to the call from the elders. Prosecution said both complainants went to A3’s house and met A1 and A2 already in position. The prosecution stated that as A1, A2 and A3 offered the complainants seats, they sent for A5, A6 and A7. When A5, A6 and A7 came, A1 A2 and A3 told the complainants that they invited complainant Safura Adam because of the land that she was farming on and before she could open her mouth to talk, A5 got up from her seat and pounced on her and subjected her to beating. He added that A6 and A7 got up and joined A5 to beat complainant Safura Adam. At this point, complainant Afishatu Adam got up with the intent to rescue her senior sister from the hands of A5, A6 and A7 and whilst holding her and trying to send her away, A5, A6 and A7 turned on her and subjected her also to beatings and as a result torn her dress she was wearing. With much effort from Afishatu Adam, she was able to send her senior sister away. After that both went to portor Police Station and reported the case and police medical forms were issued to them to attend hospital for treatment. Complainants returned from the hospital with the medical forms. Prosecution stated that the accused persons were arrested by Police when they were identified to Police by the complainants. In the cause of Police investigations, A5 gave GH¢500.00 to Police to be given to the complainants to defray their medical bills but the complainants refused to take the money. After Police investigations A1, A2, A3, A4, A5, A6 and A7 were charged with the offences stated on the charge sheet and brought before this honorable court. 2 CASE FOR THE PROSECUTION: The Prosecutor called three (3) witnesses in support of his case, the two complainants and the investigator in the case. EVIDENCE OF PW1 SAFURA ADAM: According to PW1, all the accused persons are her family members. She said that, for some time now, the accused persons have been litigating with her over her farmland claiming that the land belongs to them, and this claim has brought some misunderstanding between them and per that she is not in good talking terms with her own sisters A1 and A7 because they have teamed up with A5 and A6 to take the land from her. She stated that on 03/04/2023, she attended a funeral at Portor and she arrived there around 1:00pm, and upon her arrival she visited her younger sister PW2. She said that, she was with PW2 when A4 came to call her that A1, A2 and A3 wanted to see her in A3’s house. According to her, she decided not to go because she did not know why the accused persons had sent for her, but she later called her son Mohammed on the phone and informed him and he advised her to go and listen to them because they are her elders. She said she went with her younger sister Afishatu Adam, (PW2) to the 3rd accused person’s house, and when they got there, they met A1 and A2. They were offered a seat and they again sent for A5, A6 and A7. When A5, A6 and A7 came, A2 told her that her sister in the person of A1 has summon her before them that she has taken their brother’s farmland and given same to her children. According to her she told A2 that she has not taken the brother’s farmland, and all of a sudden, A4 interrupted that if anything happens at the place he will go to the police station and bear witness. According to her she told them that she is the person whom they have done something against, since they have asked her to demolish her building on their land and that the farmland and building which one is important. She said after saying this suddenly A5 got up 3 from where she was sitting and pounced on her and A7 also insulted her that she was ugly and again hit her with her hands and in the process A5, A6 and A7 subjected her to beatings. She said the sister Afishatu Adam got up and held her and pulled her away from them and after that she detected that her dress had been torn by A5, A6 and A7. She said they went to Portor Police Station and reported the case and they were both issued medical forms to attend hospital. EVIDENCE OF AFISHATU ADAM (PW2): PW2 said that the Complainant Safura Adam (PW1) is the elder sister, and on 03/04/2023 at about 1:00pm, she visited her in her home. According to her, A4 came to her house and told PW1 that A1, A2 and A3 wanted to see her. At first she did not want to go but after calling her son Mohammed, she decided to go. She said she accompanied her to A3’s house and met A1 and A2 already in position with A3, and A1. A2 and A3 again sent A4 to go and call A5, A6 and A7. According to her A1, A2 and A3 told her sister Safura Adam that they called her because of the land she was farming on. She said the sister at this point told them that they should rather talk about her building that they are ordering her to demolish instead. A5 then told the complainant that it was the farmland they are talking about and not the building and A4 also said that what complainant was saying, if anything happens and any of them go and report to the police, they will not support that particular person. This brought a quarrel between them and in the process A7 insulted the complainant and A5 got up and hit the complainant. A6 and A7 also got up and joined A5 and they subjected the complainant to beatings. She said she got up with the intent to rescue the complainant, so she held her with the intent to send her away and by doing so, A5, A6 and A7 turned on her and beat her also and also tore the dress she was wearing but she managed and sent complainant away. After that they went and reported the case to Portor Police and medical forms were issued to them to attend hospital. 4 EVIDENCE OF No 47659 D/CPL. GABRIEL EYISON THE INVESTIGATOR IN THE CASE (PW3): According to the investigator, on 03/04/2023 Safura Adam reported a case of assault and same was referred to him for investigations and Police medical form was given to the complainant to attend hospital and return for further action. Complainant’s statement was obtained after she returned with the medical form endorsed. Suspects were arrested and cautioned and they denied having assaulted the complainant. Both parties were asked to produce their witnesses. Suspects produced their witnesses in the persons of Jinche Adam, Kwabena Nkwanta and Kojo Alhassan. Witness statements were obtained from them and they also denied suspects having assaulted the complainant. Complainant produced her witness in the person of Afishatu Adam. Witness statement was obtained and she confirmed suspects having assaulted the complainant and even torn her dress as she went to separate them. After the close of the prosecution’s case, prosecution was not able to establish a prima facie case against A1- A4, on count one, so the court accordingly discharge them and called upon A5 and A6 to open their defence. It should be noted that in the course of the trial A7 passed on. WITNESS STATEMENT OF HAWA IDDRISU (A5): A5 stated that their father died leaving a land for them. However, the family pleaded that their father’s mother was old and weak so they should give her the cashew farm on a portion of the land to survive on. According to her, Jinche Adam A1 put the matter before some elders in the family to see how they can settle it. She said herself, Jinche Adam and the complainant stated their cases and the elders found the complainant liable, and the 5 complainant alleged that her husband took bribe from one Iddrisu Nana and allowed Iddrisu Nana to be victorious at the settlement. She said she then asked her a question that “if I have my own dress, can someone bribe me to say that I am not the owner”. According to her the question infuriated the complainant and she slapped her. She added that Nafisah Iddrisu A6 held her and pulled her to leave but Afishatu the complainant also slapped her. She added that the elders advised her and Nafisah to leave but on their way out, the complainant again attacked her until she was rescued by Alhassan Rafik. . WITNESS STATEMENT OF NAFISAH IDDRISU (A6): According to A6, their father died leaving a land for them, and the family pleaded with them that their father’s mother was old and weak so they should allow her to feed on some cashew farm on a portion of the land. She stated that the complainant has instituted a civil action at the District court- Kintampo in respect of the land against she and her siblings. She stated that Jinche Adam A1 put the matter before some elders in the family to see how best they can settle it. That Jinche Adam, Hawa Iddrisu and the complainant stated their case and the elders found the complainant liable. She said again that, the complainant then alleged that her husband took bribe from one Iddrisu Nana and allowed Iddrisu Nana to be victorious at the first settlement. Then Hawa Iddrisu then posed a question to wit “if I have my own dress, can someone bribe me to say that I am not the owner”?. She stated that the question infuriated the complainant and she slapped Hawa Iddrisu and she held Hawa for them to leave but Afishatu also slapped her. Then the elders advised she and Hawa to leave but on their way out, the complainant again attacked Hawa until she was rescued by Alhassan Rafik. EVIDENCE OF ALLHASSAN RAFIK (DW1) According to DW1, he knows prosecution witnesses and all the accused persons. 6 He said that their family has land issues which involves her mother Atawa an aunty to Hawa and Nafisa Iddrisu. She said that a family meeting was held as a result of a complaint made to the elders by Jinche Adam. He added that in the course of settling the matter before the elders in the family, Jinche Adam, the complainant and some of the accused persons stated their respective cases and the elders found the complainant liable. He again said that the complainant then alleged that her husband took bribe from one Iddrisu Nana and allowed Iddrisu Nana to be victorious at the first settlement. Hawa then asked her a question that “if I have my own dress, can someone bribe me to say that I am not the owner”?. That question enraged the complainant and she slapped Hawa and Nafisa A6 pull Hawa to go out with her. He added that the complainant again pursued Hawa Iddrisu and slapped her again. He said that he rushed and pull Hawa Iddrisu from the house to outside. Then he held Safura Adam and Afishatu Adam to their house. He added that it is never correct that any of the accused persons attack the complainant and her witness. The accused persons closed their case thereafter. The issue to be determined by the Court is whether or not the Prosecution has sufficiently proved the guilt of the Accused persons beyond reasonable doubt in order to warrant their conviction. Before proceeding to resolve the issues in this matter it is important to state the principles that guide our criminal procedure in Ghana. Our criminal procedure which provides that a person is deemed innocent until proven guilty or has pleaded guilty to an offence. Owing to the strict adherence to this principle, which is enshrined in our 1992 Constitution, the law requires the Prosecution which is responsible for bringing the charges against that person to prove the guilt of the Accused person beyond reasonable doubt. This principle finds expression under Section 11(3) of the Evidence Act, 1975 (NRCD 323) which provides that: 7 (3) In a criminal action the burden of producing evidence, when it is on the accused as to any fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt.” Therefore, in every criminal prosecution, the burden of proof lies on the Prosecution only to prove the guilt of the Accused person(s) and he on the other hand bears no burden to prove his innocence. This the Prosecution does by providing evidence that lead to the conclusive fact that it is the Accused person(s) and no other who committed the offence he has been charged with. COUNT ONE: ABETMENT OF A CRIMINAL OFFENCE Prosecution having charged the accused persons A1 – A4 with abetment of a criminal offence under section 20 (1) of Act 29 is to prove that the accused persons directly or indirectly instigates, commands, counsels, procures, solicits or in any other manner purposely aids, facilitates, encourages or promotes the commission of a criminal offence. At the end of case of the prosecution, the prosecution couldn’t provide any evidence to the satisfaction of this court that A1-A4 committed the offence, no prima facie case was establish against A1-A4 on abetment of a criminal offence, so they were accordingly discharged by the court. COUNT TWO: ASSAULT In this instant case, the Prosecution again having charged the Accused person with the offence of “assault” under Section 84 of Act 29 ought to prove either one of the types of assault provided under our criminal procedure and same is stated under Section 85 of Act 29 as follows: “For the purposes of Section 84, ‘assault’ includes: (a) assault and battery”; 8 (b) assault without actual battery and (c) imprisonment” However in this instant case, it is apparent to me that the Prosecution’s case is founded primarily on Section 85 (a). This category of “assault” is explained under Section 86 as: “(1) 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.” Following from the above stated definition, the essential ingredients which need to be established by the Prosecution are as follows: 1. That the Accused person did not have consent to touch that person; 2. That the Accused had an intention to cause harm, pain, fear, annoyance or exciting that person to anger; and 3. That the Accused person in fact forcibly touched the other person. In this case, PW1 stated in her evidence that the Accused persons A5- A7 had slapped her and subjected her and PW2 to severe beatings, emanating from a settlement they were undertaking by the elders of their family with respect to land litigation between her and the accused persons. PW2 stated in her evidence-in-chief that in the process of settling a quarrel ensued and A5 got up and hit the complainant, A6 and A7 also joined and subjected the complainant to beatings. He got up to rescue the complainant and to send her away and the accused persons turned on her and beat her as well. Counsel for the Accused tried to refute their testimony. PW2 in her testimony to the court also said that there was a fight between A5 and the complainant and A6 and A7 went to separate them. This transpired during cross examination on PW2 by the accused counsel Q. When the matter was reported to the police, you voluntary gave your statement to the police? 9 A. Yes that is so. Q. In that statement, you alleged you saw Hawa Iddrisu and the complainant fighting? A. Yes, my lady. Q. So you agree with me that, the complainant and Hawa fought? A. Yes, my lady. Q. And during the fight, it was Hafisatu Iddrisu (A6) and Ama Adam (A7) who went to separate them? A. Yes, my lady. It can be deduced from this dialogue that there was a fight between A5 and the complainant, and A6 and A7 went to separate them. The Accused persons in their evidence denied that there had been any incident as described by PW1 and PW2 and stated that when the incident occurred one person, Alhassan Raffik DW1, was present the whole time when it occurred. So during the testimony of DW1, he also stated as follows: CROSS EXAMINATION BETWEEN PROSECUTION AND DW1: Q. Tell the court who rescued the complainant on the day of the assault? A. I separated them on that day. Q. It is clear from your answer that the accused persons assaulted the complainant? A. That is not so, when the complainant beat Hawa Iddurisu (A5), my uncle told me to take A5 and A6 home. At that time, the complainant was still following them so I took the complainant to Ama Adam’s house. Q. Are you aware that Ama Adam was part of the accused persons? A. Yes, my lady. Q. So I am putting it to you that what you are saying is not correct. A. I am speaking the truth. 10 DW1 also stated in both his evidence and during cross examination that it was the complainant who slapped A5 and he went to separate them. This evidence of the accused and their witnesses was corroborated by the investigator who stated during cross examination that it was the complainant who rather assaulted A5. The testimony of the accused persons and their witness remained throughout the trial that it was PW1 who slapped A5. This was confirmed by PW3. Q. During your investigation, you visited the place where the assault allegedly took place, is that not the case? A. Yes, that is so. Q. And you spoke with elders who initiated the mediation? A. Yes, my lady. Q. And the elders told you that, it was the complainant who rather assaulted A5? A. Yes, my lady. Q. And the accused persons mentioned Jinche Adam, Kwabena Nkwanta and Kwadwo Alhassan as their witnesses. A. Yes, my lady. Q. So Jinche Adam, Kwadwo Alhassan and Kwabena Nkwanta were invited as witnesses and not as suspects as indicated in paragraph 7 of your witness statement? A. Yes, my lady. Q. Other person around who are not family members of the accused person also told you that it was the complainant who attacked A5? A. Yes, my lady. Q. And you became aware that there is a land dispute between the complainant and the 5th, 6th and 7th accused persons? A. Yes, my lady. 11 Per these pieces of evidence I am of the view that, there was a fight between the complainant and A5, and it was the complainant who initiated the fight by first attacking A5. And that was why PW2, A6 and DW1 all said in their evidence that they went to separate them. If there was no fight there wouldn’t be any separation. From the evidence before the court, I find as a fact that PW1 and A5 fought, and if they fought then it means they were hitting each other. So to me A5 hit PW1. If she never touched PW1, how could she explain being separated off PW1?. PW2 also said she went to separate PW1 and A5 and she was also beaten so the question is who subjected PW2 to the beatings, because other people were also there separating the fight, per the evidence before the court. The evidence before me clearly shows that the Accused person A5 forcibly touch PW1 during the fight. From the Prosecution’s case, there is ample evidence to support the charge of assault against A5 and the defence mounted by the Accused person was inadequate not to find against her. From the evidence adduced by the Prosecution, the Accused person (A5) had in fact forcibly touched PW1 and that touch had caused her pain. This is evidenced by exhibit ‘C’ endorsed by a medical doctor. The case of assault has been adequately proved and in the absence of any reasonable defence by the Accused person, the Accused person (A5) is found guilty of the offence of assault against PW1, and is accordingly convicted. I am convinced by the evidence before me that A6 was one of the people who went to separate the fight between A5 and complainant Safura Adam. There is therefore no ample evidence to the satisfaction of this court that A6 has forcibly touched PW1 and PW2 as to secure a conviction against her. A6 is acquitted and discharged. COUNT 3 : CAUSING UNLAWFUL DAMAGE: Section 174 of Act 29 also provides as follows: 12 “(1) A person does an act or causes an event unlawfully, within the meaning of the provisions of this Code relating to unlawful damage, in any case in which he is liable to any civil action or proceeding, or to a fine or other punishment under any enactment, (a) in respect of his doing such act causing such event, (b) in respect of the consequences of the act or event, (c) in which he would be so liable if he caused the event directly by his own act, or (d) in which he is liable to be restrained by injunction or any other proceeding from doing such act or causing such event.” In the case of Yeboah & Anor v The Republic (1999 – 2000) 1 GLR 149, the Court of Appeal in dismissing an appeal stated inter alia that: “(I) 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.” Per the evidence before this court, no evidence was led to the effect that any of the prosecution witnesses saw the accused persons tearing PW2’s dress. PW1 said she was on the floor and so she didn’t see everything. In other evidence she also said that it was later after PW2 pulled her away that she realized her dress was torn. And from the evidence before the court, it wasn’t only A5 and A6 who separated the fight. I am also not able to fathom this. How can three people hold a person’s dress at the same time and tear it. Since none of prosecution witnesses stated in this court that they saw the accused persons tearing PW2’s dress at the same time, and also that prosecution never tendered the said torn or damaged dress in court, the charge of unlawful damage cannot stand against them. They are therefore acquitted and discharged on count three. 13 I will not comment on the accused persons and the complainant taking a civil suit to resolve the land litigation that resulted in this case, since they have already indicated to the court that the matter is before the district court. SENTENCING (A5): Q. Is the Accused person a first-time offender? A. yes my lady Q. Do you have any dependents? A. yes, I have children Q. What work does the Accused person do? A. I am a farmer Q. Any plea in mitigation before sentence is passed? A. I am pleading with the Court for forgiveness and mercy. It will not happen again. By Court: The convict A5 is a first time offender, she has pleaded the court for mercy and leniency, the court in sentencing will consider the circumstances surrounding the commission of the crime. The Court sentences convict to sign a bond to be of good behaviour for a period of 6 months or in default serve a prison term of 30 days …............................................ LILY AMOAH-KANKAM (CIRCUIT COURT JUDGE) 14