REPUBLIC VRS NJOTI NAMUK & ANOTHER (NR/YD/CT/07/2024) [2024] GHACC 276 (1 August 2024)

IN THE CIRCUIT COURT, YENDI, BEFORE H/H EBENEZER KWEKU ANSAH SITTING ON THURSDAY, THE 1ST DAY OF AUGUST, 2024 CASE NO. NR/YD/CT/07/2024 THE REPUBLIC VRS 1. BINUGNOMI NJOTI NAMUK 2. NAMUK BINKALSUN RICHARD PROSECUTOR: DETECTIVE CHIEF INSPECTOR GARIBA KWESI JUDGMENT The accused persons were charged with one count of each of Assault and Causing unlawful Damage contrary to sections 84 and 172 of the Criminal & Other Offences Act, 1960, (Act 29), It is trite that a person charged with a criminal offence is presumed innocent until his guilt is proven beyond reasonable doubt and it is also the duty of the court to satisfy itself that all ingredients of the offence is proven. See article 19 (2) (c) of the 1992 Republican Constitution and the case of The Republic v Francis Ike Uyanwune (2013) 58 GMJ 162. The prosecution bears the burden of establishing the accused person's guilt, and the standard of proof required by the prosecution is proof beyond reasonable doubt as provided in the Evidence Act, 1975 (NRCD 323), per sections 11(2) and 13(1) and the case of Faisal Mohammed Akilu & 2 ors v The Republic criminal appeal no: H2/16/2012 dated 14/02/2013. The accused, on the other hand, is not required to prove anything; if he can merely raise a reasonable doubt as to his guilt, he must be acquitted. See the case of COP v. Antwi [1961] GLR 408. Brief Facts The complainant Galey Seth age 34years in this case is a farmer residing at Lungni in the Nanumba South District whiles accused person Binugnom Njoti Namuk 60years farmer also resides at Lungni in the Nanumba South District. On 26/02/2024 at about 7:00pm complainant arrested and brought one Kofi Nyimba a suspect who went and stole his 13 tubers of yam from his yam barn to chief Binyam’s palace. At the palace, Njinan Ntribey was sent to invite Kofi Nyimba’s parents. Njinam Ntribey left the suspects parents’ house but did not return again until they had information that he has been arrested and detained by relatives of the suspect. The complainant who also heard of the arrest and detention of Njinan Ntribey made a follow up to the scene. There he met accused person and pleaded for the release of Njinan Ntribey with an explanation that he is the owner of the stolen yam tubers and that Ntribey Njinan was only a messenger sent to invite the parents of suspect Kofi Nyimba. Accused person became offended, attacked and held complainant’s shirt to the neck amidst beatings from the youth at the scene. During the struggle with the accused person, complainant’s shirt got torn and remained in the hands of the accused person thereby enabling him to escape from further beatings leaving his motorbike with registration no. M-19-GR-8461 at the scene. Whiles receiving treatment at the Lungni health centre after being issued with police medical form, accused person Namuk Binkalsun Richard brought to the station a damaged motorbike belonging to complainant. The complainant on his return to the station with his endorsed medical form identified his motorbike but stated that this was not the state of the motorbike at the time he rode it to the scene. After thorough investigation accused person was charged with the offence as contained in the charge sheet and now before the honourable court. Prosecution Case The prosecution called two witnesses in the person PW1- Galey Seth and PW2 - D/L CPL Alagbe Zakaria. PW1 testified that he reported a stealing case at the Binyam palace involving one Kofi Nyimba and one Ntribey Njinan was sent to go and invite Kofi Nyimba’s father by name Epigmoh. According to him he heard that Ntribey Njinan was arrested at Epigmoh’s house so he followed up there. He continued that he met accused on his arrival and pleaded for the release of Ntribey as he was the owner of the stolen tubers of yam and Ntribey Njinan was only a messenger sent to invite Epigmoh. But accused became offended and attacked and held his shirt and allowed the youth at the scene to beat him up. He further added that he struggled with the accused to free himself and in the process his shirt got torn enabling him to escape from further beatings and he had to abandon his Apsonic motorbike with registration number M-19-GR 8461 at the scene. He concluded his story that he went to report the matter at the police station and he was issued a medical form and he did attend the hospital for treatment and sent same to the police, there he saw his motorbike damaged at the charge office upon inquiring he was told that A2 brought the damaged motorbike to the police station. He finally said he told the police that was not the state in which his motorbike was in when he rode to the scene. PW2 also testified that on 26/02/24, a case of assault and causing unlawful damage was handed to him for investigations from the Lungni police station. He indicated to the court that PW1 came to the police station with blood oozing from his elbow and reported that A1 had attacked and beaten him with his people. He continued that he issued a medical form to PW1 to visit the hospital, and the same was returned the next day. He further added that A2 brought an Apsonic motorbike with registration number M-19-GR 8461, which was damaged that it was abandoned by PW1. He concluded that PW1 identified the motorbike as his; subsequently both A1 and A2 were arrested, and investigation caution statements and charge statement obtained from them these were tendered and marked as exhibit A, A1- investigation caution statements, B – charge statement of A1 and exhibit C - photograph of the motorbike, finally, he added that investigations revealed that PW1 was assaulted and sustained assault wounds on his elbow as well as damage to his motorbike. Defense The accused opted to speak from the dock and indicated to the court that he did not damage the complainant's motorbike. After the people who came to the scene left, he saw the motorbike and asked that it be sent to the police station. He concluded that he did not assault the one who was sent to come and kill him; thus, why would he cause harm to the complainant. Section 84 of Act 29/60 states that “a person who unlawfully assaults another person commits a misdemeanor.” Section 85 mentions the types of assault recognised under the laws of Ghana as: (a) Assault and battery; (b) Assault without actual battery; and (c) Imprisonment. Whiles section 86 (1) of Act 29/60 defines assault and battery as: “A person makes an assault and battery on 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 the other person to anger, that person forcibly touches the other person”. P. K. Twumasi in his book Criminal Law in Ghana at p265 and section 87 (2) b of Act 29/60, to constitute assault and battery, it is sufficient if the prosecution proves that without the consent of the other person, and with the intention of causing harm, pain, or fear or annoyance to the other person or exciting him to anger the accused forcibly touched him or caused any person, animal or matter to forcibly touch him. The prosecution will therefore have to prove beyond reasonable doubt that indeed the first accused forcibly touched the complainant, this touch was without the consent of the complainant and the touch or assault was intentional and unlawful. From the evidence adduced before the court, PW1 said that A1 accosted him and even held him by his shirt neck. In cross examination PW1 again responded that A1 did assault him and also destroyed his motorbike as he had to run away and leave his dress behind. In the case of Bruce-Konuah v. The Republic [1967] GLR 611 a man chased a neighbour during a quarrel in an effort to beat her up and was convicted of assault. On appeal he contended that he did not touch her. The court held that “the mere act of chasing her with the intention of committing a battery on her and thus causing an apprehension in her was sufficient for the purposes of proving assault.” Thus, in the instant matter before me the first accused does not deny holding or confronting the complainant, this is sufficient to prove that he assaulted PW1, in his investigation caution statement – exhibit A, he said “…I then walked towards the complainant and held his shirt whiles struggling with him his shirt got torn and he managed to escape leaving his motorbike.” per accused own statement he accosted the complaint and did touch him, this touch was without PW1 permission and hence unlawful. However, there is nothing on record that he caused damage to the motorbike of the complainant as no evidence was led to that effect. Indeed, he himself said that after PW1 had run away, and then he saw the motorbike and asked A2 to send to the police station. It must be noted that A2 was acquitted discharged at the end of the prosecution’s case as no prima facia case was made against him. The court accepts that the prosecution has been able to prove that the first accused assaulted the complainant. Accordingly, he is found guilty of one count 1 - charge of assault and will be sentenced. However, he is acquitted and discharged on count 2 - causing unlawful damage as no evidence was led to show that he was the one who damaged the motorbike of the complainant; his only role with regards to the motorbike was to direct that A2, who has been discharged to send it to the police station. The accused is sentenced to a fine of 100 penalty units in default 12 months in prison. He is also to sign a bond to be of good behaviour and keep the peace for a period of 12 months in default one year in prison IHL. Restitution order: the accused is also to pay an amount of GHS1000.00 to PW1 for the pain and suffering within three months from today. ................................................... EBENEZER KWEKU ANSAH CIRCUIT COURT JUDGE