REPUBLIC VRS. POMAA AND ANOTHER (B1/03/2023) [2024] GHACC 361 (8 October 2024)

IN THE CIRCUIT COURT ‘B’ KOFORIDUA IN THE EASTERN REGION OF THE REPUBLIC OF GHANA HELD ON TUESDAY THE 8TH DAY OF OCTOBER 2024 BEFORE HER HONOUR MRS. MATILDA RIBEIRO, CIRCUIT COURT JUDGE_____________________________ CC NO. B1/03/2023 THE REPUBLIC Versus. JANET POMAA 1ST ACCUSED PERSON JOSEPH ABANDOH 2ND ACCUSED PERSON —————————————————————————————————-------------- JUDGMENT —————————————————————————————————-------------- The two accused persons are before the court on two counts of conspiracy to commit crime to wit causing harm and causing harm contrary to sections 23(1) and 69 of the Criminal Offences Act 1960 (Act 29). The first and second accused persons are a married couple, and the complainant was a night security man at the Little Angel Preparatory school belonging to the Ark Foundation an NGO in New Akim at the time of the incident. It is alleged that on the 4th of August 2021 around 8:30pm, the accused persons assaulted the complainant during a melee and as a result he suffered a fracture in his right leg thigh. The brief facts in support of the charge are that the accused persons and their four children confronted the complainant over allegations of the 1st complainant and her daughters bringing men to the school compound where he worked as a night security man to have sex with them. That in the course of the melee, the complainant fell as a result of which he had a fractured thigh. That the accused persons left the complainant to his fate after the incident and the complainant managed to crawl to his room. That the following day the 5th of April 2021, the 1st accused person went to Page 1 of 14 ------------------------------------------------------------------------------------------------------- The Republic v. Pomaa Janet and Joseph Abandoh 08/10/24 the school compound and on seeing that the complainant was seriously hurt, arranged for a taxi to take him home. On the 7th of April 2021, the complainant in the company of one Joseph Sedzro went to the charge office and lodged a complaint following which he was issued with a police medical form to attend Hawa Memorial hospital, Osiem where he was transferred to St Joseph’s hospital in Koforidua who also transferred him to Korle Bu teaching Hospital, Accra where the complainant was operated upon and discharged on the 13th day of July 2021. The 1st and 2nd accused persons pleaded not guilty to the two charges against them when they were arraigned before the Court. It is trite that in a criminal matter the accused person has no burden to prove anything. Prosecution who brought the accused person before court bears the burden to lead credible evidence to prove that the accused person has indeed committed the offence he is charged with. It is only after the prosecution has established a prima facie case against the accused person that the accused person will be called upon to open his defence and at that stage, all the accused person has to do is to raise a reasonable doubt in the evidence presented by the prosecution. See sections 11, 13 and 15(1) of the Evidence Act 1975 (NRCD 323) and The Rep. v Francis Ike Uyanwune [2013] 58 GMJ 162. In Sowah v. Essel [1961] GLR (Pt II) 743 at page 747, the supreme Court held that “evidence for the prosecution merely displaces the presumption of innocence but the guilt of the accused is not put beyond reasonable doubt until the accused has given evidence”. Then in The Republic Vs. Francis Ike Uyanwune [2012] DLCA8143 the court of appeal presided over by Justice Marful Sau JA as he then was (of blessed memory) posited that, “The law is that the prosecution must prove all the ingredients of the offence charged in accordance with the standard burden of proof, that is to say the prosecution must Page 2 of 14 ------------------------------------------------------------------------------------------------------- The Republic v. Pomaa Janet and Joseph Abandoh 08/10/24 establish a prima facie case and the burden of proof would be shifted to the accused person to open his defence and in so doing he may run a risk of non-production of evidence and/or non persuasion to the required degree of belief else he may be convicted of the offence.” The accused persons were therefore called upon to open their defence after the Court found that a prima facie case had been made against them to answer in accordance with section 174 of the Criminal and Other Offences Procedure Act of 1960 (Act 30).Before we analyze the evidence by both sides to conclude whether the guilt of the accused persons have been proved beyond reasonable doubt, I would like to take a quick look at the relevant laws on the subject matter. THE LAW Conspiracy under section 23(1) of Act 29 is explained as; “Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without any previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence”. Meaning for conspiracy to be established, prosecution has to prove that there was an agreement between the accused persons charged, with a common purpose to commit or abet the criminal offence of causing harm to the complainant victim herein. This agreement could be direct or inferred from their subsequent overt acts. Whilst causing harm under section 69 of Act 29 of 1960 is explained as follows “Whoever intentionally and unlawfully causes harm to any person shall be guilty of second degree felony”. Page 3 of 14 ------------------------------------------------------------------------------------------------------- The Republic v. Pomaa Janet and Joseph Abandoh 08/10/24 According to section 76 of Act 29, “Harm is unlawful which is intentionally or negligently caused without any of the justifications mentioned in Chapter I of this Part”. One may ask, what are the justifications mentioned under this part as indicated under section 76 of Act 29? These are the provisions on justifiable force and harm as provided under sections 30 to 45 of Act 29. For a charge of conspiracy to commit crime to wit causing harm and causing harm contrary to sections 23(1) and 69 of Act 29, the prosecution in this case bore the burden to prove that; 1. The accused persons herein agreed to act together to cause harm to the complainant 2. That harm has been caused to the complainant (PW1) 3. That it was the accused persons herein who intentionally caused the harm to the complainant and that 4. The harm was unlawful because the accused persons had no justification for inflicting the harm on the complainant. Prosecution in discharging the burden on them to prove the guilt of the accused persons called two witnesses being the complainant, Kwesi Sefah and Detective Policewoman Inspector Rosemond Odai, the investigator of the case. PROSECUTION’S CASE The first prosecution witness was the complainant Kwesi Sefah (hereinafter referred to as PW1). PW1 in his evidence relied on his witness statement filed on 20th September 2022 and testified that the 1st accused person and her daughters have been bringing men to the school to have sex with them and that he earlier reported this to the school’s headmistress. That on the 4th of April 2021 when he reported for work around 8:30pm he saw two plastic chairs in front of the door to the place he sleeps, and he started complaining because he didn’t know the person who brought the chairs to the school. He placed the chairs at a different place and later the 1st Page 4 of 14 ------------------------------------------------------------------------------------------------------- The Republic v. Pomaa Janet and Joseph Abandoh 08/10/24 accused person came enquiring about the chairs and he showed him where he placed them. According to PW1, the 1st accused person asked him to bring the plastic chairs to his house, but he refused. He said the 2nd accused person then held his shirt and called the 1st accused person who came and held his two legs and dragged him into the nearby bush. That the two accused persons and their four children came with sticks and hit his two legs with it whilst at the same time the 1st accused person held his neck whilst the 2nd accused person hit his chest with her legs. That after the beating they left him in the bush, and he managed to crawl to his room because his right thigh was broken, and he could not walk. That the following day on the 6th of April 2021 around 2pm, the 1st accused person came around and enquired whether his leg was broken, and she arranged a taxi to take him home on condition that when his family asked him, he tells them he fell. That on the 7th of April 2021 his brother arranged for one Joseph Sedro to take him to the police station and lodged a complaint. That he went to Hawa Memorial Hospital from where he was referred to St. Joseph Hospital in Koforidua. This evidence of PW1 is not much different from his statement to the police dated 21st April 2021 (Exhibit D). The second prosecution witness being the investigator of the case D/PW/Insp Rosemond Odai also relied on her witness statement filed on 20th September 2022 as her evidence in chief. According to her, she was on duty on the 7th of April when PW1 in the company of one Joseph Sedzro came to the police station and lodged a complaint of assault against the two accused persons and their two children whose names he said he didn’t know but could identify them when seen. He was issued with hospital form to attend hospital. That when she called PW1 the following day, he informed her that when he went to New Tafo Government Hospital, HE WAS referred to go to either Hawa Memorial Hospital at Osiem or St Joseph Hospital in Koforidua and so he was waiting for his employers. She said she didn’t hear from PW1 again Page 5 of 14 ------------------------------------------------------------------------------------------------------- The Republic v. Pomaa Janet and Joseph Abandoh 08/10/24 until 21st April 2021 when she had information that he was on admission at St Joseph’s Hospital in Koforidua. She went there and took a statement from him. In the statement, PW1 indicated that it was the accused persons and their four children who assaulted him. The accused persons and their three children were invited to the police, arrested and their statements taken. She testified further that the accused persons led the police to the crime scene and pointed a green grass in in front of the dining hall as the place where the 1st accused person saw PW1 sitting when she was leaving the crime scene, and this happened to be the same place PW1 pointed to her upon his discharge from the hospital. She said PW1 further identified all the four children of the accused persons as his assailants. That during her investigations it came out that one of the children of the accused person Debora Freeman Abandoh was on admission at Yesu Adom Nti Prayer Camp on the day of the incident. The police statements from the others showed that it was Esther Akua Abandoh who followed the accused persons to the school but none of them beat PW1 as alleged. Prosecution tendered through its witnesses the following exhibits in support of prosecution’s case; 1. Exhibit A being medical expenses incurred at Korle-Bu Teaching Hospital. 2. Medical expenses from St Joseph’s hospital Koforidua 3. Exhibit C Series (C, and C1) being expenses of meals during PW1’s stay at Korle- Bu Teaching hospital. 4. Exhibit D being the police statement of Kwesi Sefa dated 21st April 2021 5. Exhibit E being investigation cautioned statement of Pomaa Janet dated 30th April 2021. 6. Exhibit F being the investigation cautioned statement of Joseph Abandoh dated 30th April 2020. 7. Exhibit G, being photographs of crime scene. 8. Exhibit H being photographs of Kwesi Sefa in hospital bed with his injury Page 6 of 14 ------------------------------------------------------------------------------------------------------- The Republic v. Pomaa Janet and Joseph Abandoh 08/10/24 9. Exhibit J being Police medical form issued to New Tafo Government Hospital on 7th April 2021 but endorsed by St. Joseph Hospital, Koforidua on 20th April 2021 10. Exhibit K being Police General Medical form. Issued to Korle-Bu Teaching Hospital on 7th May 2021 and endorsed by the medical officer on 12th May 2021 11. Exhibit L being the charged statement of Pomaa Janet dated 3rd August 2022 12. Exhibit M, being the charged statement of Joseph Abandoh dated 3rd August 2022. DEFENCE’S CASE In their defence, the 1st accused person stated in her evidence on oath on the 23rd day of April 2024 that on the day in issue they overheard PW1 speaking on top of his voice about some chairs that someone had placed in the school which made the 2nd accused person to go there. That she overheard PW1 telling the 2nd accused person that she the 1st accused person and her daughters have been bringing men to the school and this made her to follow up to the school where PW1 and the 1st accused person were standing under the shed and indicated to them that it was not true. There was an exchange of words between them and PW1 spat on her face (forehead). She alleged that PW1 descended the stairs and when she was going home, she saw that PW1 had slipped and fallen on the grass on the school compound. That she went home to wash her face and her husband followed later. The next day she went to the school to get her sheep home and when PW1 heard of her, he pleaded with her for forgiveness, asked for water and a vehicle to send him to a certain man at Tafo for treatment of an injury he had and that he PW1 slipped when defending the stairs, the previous day. She got the 2nd accused person to get a taxi for PW1, they put him inside and the driver drove off. Few days after, the police informed them of a complaint lodged against them by PW1. Page 7 of 14 ------------------------------------------------------------------------------------------------------- The Republic v. Pomaa Janet and Joseph Abandoh 08/10/24 On the part of 2nd accused person, he testified on oath that on the day of incident he overheard PW1 making insinuations against some fornicators who brought plastic chairs to the school and left them there after having sex. He heard PW1 mention the name of the 1st accused person and their children. So, he went to the school to explain to PW1 that he was the one who brought the chairs there. But PW1 continued in his allegations that the 1st accused person and his children have been bringing men to the school. That because of the loudness of his voice, the 1st accused person heard and followed up to the scene. There was an exchange of words between her (1st accused person) and PW1 and the complainant being drunk, spat on the 1st accused person’s face. That PW1 afraid that A1 will come after him tried to escape and in the process, he fell whilst climbing the stairs to open the door to his room. That A1 left to go and wash the saliva off her face but he (2nd accused person) was still in the school premises. According to him, PW1 went and sat on the grass and was still raining insults so he A2 did not know that he was injured. The next day around 3pm, A1 called him that PW1 is injured so I should get a vehicle to convey him from the school The court therefore has to critically examine the defence put up by the accused persons vis a vis the law on the subject matter to ascertain whether prosecution has proved the guilt of the two accused persons beyond reasonable doubt. In doing do, the Court is guided by the principle laid down in the case of R. v. Abisa Grunshie (1955) 1 W.A.L.R 36 which was also applied in the Francis Ike Uyanwune case supra, where the court of appeal further posited that, “The accused person must give evidence if prima facie case is established else he may be convicted and if he opens his defence the court is required to satisfy itself that the explanation of the accused person is either acceptable or not. If it is acceptable the accused person should be acquitted and if it is not acceptable the court should probe further to see if it is reasonably probable. If it is reasonably probable, the accused person should be Page 8 of 14 ------------------------------------------------------------------------------------------------------- The Republic v. Pomaa Janet and Joseph Abandoh 08/10/24 acquitted but if it is not and the court is satisfied that in considering the entire evidence on record the accused person is guilty of the offence, the court must convict him. This test is what is usually, referred to as ‘three tier test’. See also the case of Lutterodt vs. Commissioner of Police [1963]2 GLR 429. ANALYSIS OF THE EVIDENCE From the evidence before the court, it is not in contention that the accused persons were attracted to the Little Angel school on the 4th day of April 2021 at about 8:30pm because of insinuations and allegations by the complainant of the 1st accused person and the daughters of the accused persons bringing men to the school to have sex and also because of complaints of someone having left two plastic chairs in the school. It is also not in contention that there was an altercation between PW1 and the 1st accused person as a result of the allegations by PW1. PW1 was found the next day, 5th April 2021 sometime in the afternoon injured. It is again not in contention that PW1 suffered injury to his right thigh. The medical report by St Joseph’s Hospital (Exhibit J) and Korle Bu Teaching Hospital in Accra (Exhibit K) confirm fracture of the right femur of PW1 which had to be operated upon. In contention however is whether it was the two accused persons before the Court who caused this injury (the unlawful harm) to PW1 since the two accused persons have denied beating PW1 with sticks as alleged by him and that they are not responsible for any injury suffered by PW1. The burden is therefore on prosecution to proof that it is the accused persons who caused the harm in issue to PW1. PW1 alleged that it was the accused persons and their children who assaulted him, hit his legs with sticks and abandoned him in the cold. Later upon investigations, the children of the accused persons were not charged, it was the two accused persons who were charged before the court. Page 9 of 14 ------------------------------------------------------------------------------------------------------- The Republic v. Pomaa Janet and Joseph Abandoh 08/10/24 In Exhibit D (complainant’s statement to the police dated 21st April 2021) which is essentially the same as the complainant’s evidence in chief given under oath on the 20th of November 2023, he alleged that when the 2nd accused person came and enquired about the two plastic chairs, the former asked him to send the two plastic chairs to his house which he refused. Then the 2nd accused person held his shirt, called the 1st accused person and she came and held his legs, and they dragged him to a nearby bush and their four children came holding sticks and started hitting his two legs with the sticks whilst at the same time the 1st accused person was holding his neck and the 2nd accused person hit his (the complainant’s) chest with his legs. That after the beating, they left him in the bush, and he managed to crawl to his room. So, from PWI (the complainant)’s own evidence, it was the four children of the accused persons who hit his two legs with sticks after the two accused persons had allegedly dragged him to a nearby bush. According to the investigator, it was upon the advice of the Attorney General that only the two accused persons were charged. The investigator testified further that her investigations revealed that one of the daughters of the accused persons, Deborah Abandoh had been on admission at a prayer center from 27th March 2021 and discharged 32 days after. Meaning Deborah could not have been part of the four children of the accused persons who the complainant alleges hit his legs with sticks. She testified further that it was only Esther Abandoh who was present at the crime scene on the day of the incident. This confirms the testimony by the accused persons that it was Esther Abandoh who was present together with some two young children aged about 3years. The accused persons have maintained that it was rather PW1 who spat on the 1st accused person’s face and, in a bit to escape from the 1st accused person, he fell. And that they saw him sitting on the floor still insulting them when they were leaving the school compound unknown to them that he was injured. Page 10 of 14 ------------------------------------------------------------------------------------------------------- The Republic v. Pomaa Janet and Joseph Abandoh 08/10/24 Exhibit G which is a photograph of the crime scene shows the room of PW1 on the left and the adjoining shed serving as the dining hall (on the right) with some grass in front of the dining hall where the complainant alleges that he was beaten. There are two staircases, one leading to PW1’’s room and another leading to the dining hall. Whereas the 1st accused person testified that PW1 fell whilst descending the stairs to enter his room, the 2nd accused person testified that PW1 slipped and fell whilst climbing the stairs leading to his room in a bid to escape from the 1st accused person after he spat on her face. If he slipped on the stairs (whether climbing or descending, be it on the stairs to PW1’s room or the stairs to the dining hall), how did he get to the grass in front of the dining hall? According to PW2 (the investigator), both accused persons and the Complainant (PW1) pointed the same spot, that is, the grass in front of the dining hall as the place where the accused person was sitting and raining insults when they were leaving the scene and where PW1 alleged that the accused persons and their children assaulted him. Although I do not believe the narration by the two accused persons as to how PW1 possibly got injured because of the differences in their narration, it is trite that the weaknesses in the accused persons case are not to be used to strengthen prosecution’s case. Prosecution bears the full burden to prove the guilt of the accused persons beyond reasonable doubt. It is therefore for Prosecution to lead credible evidence to prove that harm had been caused to the victim and that it was the accused persons who caused the harm to the victim. The medical report from Korle Bu Teaching Hospital (Exhibit J) indicated the diagnosis as “Supracondylar right femur fracture” whilst the medical report from St. Joseph’s Hospital, Koforidua indicated a diagnosis of “right femur fracture”. The femur is the thigh bone. The only harm established by the prosecution is the fracture of the right femur (thigh bone) of PW1.The two medical reports however did not indicate what could have caused this condition. Page 11 of 14 ------------------------------------------------------------------------------------------------------- The Republic v. Pomaa Janet and Joseph Abandoh 08/10/24 Question is, could it be the alleged holding of the neck by the 2nd accused person and the holding of the legs by the 1st accused person and they allegedly dragging PW1 to a nearby bush that caused the fracture of PW1’s right thigh? Or is it the alleged beating of the two legs of PW1 by the children of the accused persons with sticks as alleged by PW1? Or the stepping on his chest by the 2nd accused person? Or could it also be because of a fall as alleged by the two accused persons? These unanswered questions leave me with doubt as to the actual cause of the fractured right femur (thigh bone) of PW1 that being the only harm established by prosecution in this case and who caused it. The femur being the thigh bone, an inference could be made that for any external violence or trauma to cause a fracture to it, it should be very severe or high energy trauma. Such external violence or trauma in the view of the Court should ordinarily leave some lacerations or markings on the external body or skin of the victim. Also, for a person to be beaten with sticks by multiple people as alleged by PW1 severe enough to cause a fracture of the thigh bone, it is reasonable to expect that there would be lacerations, markings, or scares on other parts of the body of the victim aside the fractured femur. The two medical reports however did not give any indication of lacerations on PWI’s right thigh let alone other parts of his body which in the considered view of the Court, is inconsistent with physical hitting or even dragging someone to the point of causing harm to the person. Can it then be said with certainty that it was the two accused persons before the Court who caused the harm to PW1? I will answer in the negative. Had prosecution been able to prove the cause of the fractured right femur of PW1, which they have failed to do, then it would have led us to the next level of enquiry as to whether it is the two Page 12 of 14 ------------------------------------------------------------------------------------------------------- The Republic v. Pomaa Janet and Joseph Abandoh 08/10/24 accused persons who caused the harm in the face of the evidence by the material witness, PW1 that it was the four children of the accused persons who hit his legs with sticks as discussed above. As earlier indicated, these children were not charged but rather it was the 1st and 2nd accused persons who were charged with the offence of causing harm to PW1. PW1 is said to have identified all the four children of the accused persons as his assailants. Meanwhile the evidence before the Court shows that not all the four children of the accused person were present at the crime scene on the day of the incident. At this point I am left with a doubt that it was the two accused persons before the Court today who caused the harm established by prosecution. That is, the fracture of the right femur. Could the fracture have resulted from a fall as alleged by the two accused persons? This in the view of the court, is reasonably probable. In conclusion, having evaluated the entire evidence before the Court, it is the considered view of the Court that Prosecution has not been able to discharge the statutory obligation placed on them in criminal cases to prove beyond reasonable doubt that it was the two accused persons before the Court who conspired and caused the alleged unlawful harm to PW1 on the 4th day of April 2021. It is trite that the accused person bears no burden to prove anything save to raise a doubt as to his (their) guilt (see Section 13(2) of Act 323) and this I believe they have been able to do in the instant case. Accordingly, the 1st and 2nd accused persons are acquitted and discharged of both charges against them. H/H MATILDA RIBEIRO (MRS) CIRCUIT COURT JUDGE Page 13 of 14 ------------------------------------------------------------------------------------------------------- The Republic v. Pomaa Janet and Joseph Abandoh 08/10/24 Page 14 of 14 ------------------------------------------------------------------------------------------------------- The Republic v. Pomaa Janet and Joseph Abandoh 08/10/24