REPUBLIC VRS GYAMFI & ANOTHER (17/2021) [2024] GHACC 197 (12 February 2024)

IN THE CIRCUIT COURT OF GHANA HELD AT CAPE COAST CENTRAL REGION ON MONDAY 12TH DAY OF FEBRUARY, 2024 BEFORE H/H DORINDA SMITH ARTHUR, CIRCUIT COURT JUDGE. SUIT NO. 17/2021 THE REPUBLIC VRS 1. GABRIEL KWASI GYAMFI 2. TIMOTHY AKUMEY JUDGMENT “Walk with the wise and become wise for a companion of fools suffers harm.” Proverbs 13:20 I. INTRODUCTION [1] The Accused persons were arraigned before this Court on July 30, 2020 for the offences of Causing Unlawful Harm and Abetment of Crime Contrary to Sections 69 and 20(1) of Act 29, 1960. [2] The accused persons pleaded not guilty to the charges preferred against them for which reason the prosecution assumed the burden of proof and must prove the charges against the accused persons beyond reasonable doubt in accordance with Section 11(2) of the Evidence Act 1975 NRCD 323 which states that; Page 1 of 22 “In a criminal action the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind will find the existence of the facts beyond reasonable doubt.” Further, Section 13(1) of NRCD 323 provides that the standard of proof is nothing less than proof beyond reasonable doubt no matter the offence charged. See the case of Ampabeng Vrs Republic [1977] 2 GLR 171 CA The prosecution in order to discharge the burden placed upon them called three witnesses and tendered in evidence eleven exhibits. THE PROSECUTION CASE A summary of prosecution witnesses’ evidence are that Adongo Zong is the complainant and the victim (hereinafter after referred to as PW1) is a taxi driver living at Kakumdo a suburb of Cape Coast. On 24/07/2020, he was in charge of Toyota Carina E taxi cab and he dropped a passenger at the outskirt of Amamoma town, UCC. He then picked other passengers who were going to a restaurant. Immediately he picked the passengers 1st accused person (hereinafter referred to as A1) and 2nd accused person (hereinafter referred to as A2) confronted him and attempted to prevent him from taking the passengers away because they claim that place is their taxi station and A2 drove off his taxi can to block him from moving. Page 2 of 22 In the process his taxi cab ran into the passenger side of A2’s car and caused slight damage to it. He stated that misunderstanding ensued because of that and they they started fighting. A2 then went into his taxi cab and picked a sharp object and used it to slash his left hand and left palm when he tried to prevent him from further harming him with the object. According to PW1, he realised he had sustained serious injuries so he quickly rush to UCC police station and was issued with a medical form for him to go to hospital which he did right away and he was admitted for five days. He later submitted his statement to the police and the medical form duly endorsed was returned to the police. Nicholas Tawiah (hereinafter referred to as PW2) is a cleaner at UCC and resident at Kakumdo. He received a call on the 24/07/2020 around 6:45pm from PW1 to come to UCC hospital as he has been admitted there so he rushed to the hospital and saw him at the emergency unit. He saw fresh deep wounds on the left hand of PW1 and upon enquiry he was informed that it was A2 who used a sharp object to slash his left hand and the left palm. PW1 was referred to Cape Coast Teaching Hospital for plastic surgery so some few minutes later an ambulance came and took them to the teaching hospital. Insp Atta Owusu (herein referred to as PW3) is the detective police officer stationed at UCC and he investigated the case. He took statement from Page 3 of 22 PW1 and other witnesses and obtained investigation caution and charged statements of accused persons. He repeated the evidence of PW1 and tendered in evidence photographs of PW1 showing the deep wounds, medical report, investigation and charged statements of accused persons. THE DEFENCE A1 testified that he is a taxi driver and he operates a taxi Union and station by name Map Taxi Union stationed close to Round Palace at the University of Cape Coast. He stated that their rule is that drivers who pick passengers outside the station are made to alight them so on 24/07/2020 at about 7:30pm he was at the station with other drivers when PW1 came and alighted some passengers close to the station. After, he rushed to pick two passengers who were just about entering the station. He spotted them and being the station master he immediately blocked PW1 from leaving the station with a wooden bar. He said he received a call from A2 that a passenger has called him to inform A1 to unblock the road so A2 made an attempt to move his vehicle and in the process PW1 drove at top speed and hit the fender of A2. After hitting the vehicle, he reversed and at top speed hit A1 and threw him at a distance. He said he felt dizzy and when he regained consciousness he dragged himself to hide behind his taxi. He said at that point he saw PW1 charging towards him with a screw driver in his hand and when he got to where he was lying, he raised the screw driver in a an attempt to stab him Page 4 of 22 with it but the screw driver fell down. He said PW1 started punching him and it was at that time in order to save his life, he picked whatever his hand could fall on to defend himself. He said PW1 in a struggle made the attempt to take the saw from him and ended up injuring himself. He said it was after he injured himself that he left the scene. He said he did not conspire or abet with anyone to cause harm to PW1 and that he is innocent of the charges against him. A2 testified that he is a taxi driver and he works at A1’s station. He said the complainant does not operate from that station but he came there to pick passengers, so when he was in the process of taking passengers A1 blocked him and PW1 drove into his car and damaged it. He continued that PW1 reversed and drove the car to hit A1 and he fell down. He further stated that PW1 came out of his car and attacked A1 and after fighting with A1, PW1 drove his car away. He said he went to the police station to report that PW1 had damaged his car and he was arrested as PW1 had earlier reported the matter. EVALUATION OF EVIDENCE, FINDING OF FACTS AND APPLICATION OF LAW Section 69 of Act 29, Criminal offences 1960 provides that: “a person who intentionally and unlawfully causes harm to any other person commits a second degree felony. Page 5 of 22 In order to ground a conviction, the prosecution would have to lead sufficient evidence beyond reasonable doubt that the accused person; ➢ Intentionally caused harm to PW1. ➢ That the act was unlawful Here, a burden is cast upon the prosecution to prove each and every one of the above two ingredients beyond a reasonable doubt that the accused person with intent to harm PW1, used a cutlass to cut the head and other body parts of PW1 without PW1’s consent and that the act was unlawful. The first element is intentionally causing harm to PW1 and here the court is to ascertain whether the act of accused person was intentional and if so whether the intentional act caused harm to PW1. It is noted that PW1 knows accused persons very well so there is no issue as to the identity of accused persons. The provisions relating to intent is given under Section 11 of Act 29/1960. Subsection (1) provides that: (1) If a person does an act for the purpose of thereby causing or contributing to cause an event, he intends to cause that event, within the meaning of this Code, although either in fact or in his belief, or both in fact and also in his belief, the act is unlikely to cause or to contribute to cause the event. Page 6 of 22 Also, the learned author P.K. Twumasi in his book Criminal Law in Ghana p77 stated that: “The general principle of our law is that intention, like many other states of mind, is incapable of direct proof; it is always inferred from proven facts. This is a principle of English common law which has been accepted as an important principle of our criminal law.” Here, intention can only be inferred from the proven facts where prosecution has to prove that the accused person’ actions caused harm to PW1 whether he believed or not that his actions would cause such harm. From the evidence of Prosecution, PW1 was in charge of Toyota Carina E taxi cab and he attempted to pick passengers after he had dropped some passengers and he was confronted by A1 who prevented him from taking the passengers away because they claim that place is their taxi station. He said A2 drove his taxi car to block him from moving and in the process his taxi cab ran into the passenger side of A2’s car and caused slight damage to it. He stated that misunderstanding ensued because of that and they started fighting. A1 then went into his taxi cab and picked a sharp object and used it to slash his left hand and left palm when he tried to prevent him from further harming him with the object. This evidence shows how A1 attacked PW1 with a sharp object cutting him on his arm and in his palm. According to PW1, A1 went to his car and pick a sharp object and returned to where he was and used it to harm him. Page 7 of 22 The photographs of the harm are so horrendous corroborating the evidence of Prosecution that A1 caused harm to PW1. Prosecution further corroborated the bodily harm with a medical report. The medical report provided that PW1 had a deep cut in his arm and palm. Medical report indicated that PW1 had; “laceration of about 12cm on left forearm and another 10cm long by 4cm deep into left palm and actively bleeding injuries were presented. Forearm laceration suttered close, palmar injury had more complication for tendon laceration and bony fragments.” The medical report and photograph of the harm corroborated the evidence of Prosecution that PW1 sustained deep and long lacerations from the sharp object used by A1 to slash PW1. The court can safely infer that A1 went to his car, picked the sharp object and used same on PW1, he intended to cause harm to him even if he did not in fact or in his belief, or both in fact and also in his belief, did not belief that his act is unlikely to cause such bodily harm on PW1. Accused persons could not discredit the evidence of Prosecution and hence the court finds as a fact that A1 intended to harm PW1 and he went ahead and harmed PW1 badly on his arm and palm. So was the harm reasonably foreseeable by the first accused person? Page 8 of 22 Any reasonable man can come to but one conclusion that if a saw or a sharp object which is is used on someone that person will sustain injury or harm. From Prosecution, A1used a sharp object to inflict long and deep lacerations on PW1’s arm and palm when PW1 even tried to stop him from harming him further causing him to bleed profusely. This presupposes that A1 knew that his actions can cause harm to PW1. From the entire evidence, the sharp object that was used on PW1 is a saw blade and this confirms that A1 knew or anticipated the harm he can cause to PW1 if he used that on him. Hence, the harm was reasonably foreseeable by A1 when he picked the sharp object and used it on PW1. What then is harm? Harm is defined under the interpretation Section of Act 29, 1960 Section 1 to be; "harm” means any bodily hurt, disease, or disorder, whether permanent or temporary.” Here, prosecution is to prove beyond reasonable doubt that whatever happened to PW1 was harm which can be any bodily hurt, disease, disorder whether permanent or temporary. The photographs, medical record, and evidence of all prosecution witnesses corroborate the evidence that PW1 was harmed badly. The Page 9 of 22 extent of harm can even be ascertained from the medical report and the photographs. We see a big long cut through the arm of PW1 with a bowl containing blood under his arm and also a deep slash through his palm. It is safe for the court to infer that the harm caused to PW1 was unreasonable and intentional on the part of accused person. I therefore find as a fact that accused person intended to cause harm to PW1 and he reasonably foresaw the harm he caused to PW1. The next issue is whether or not the act was unlawful. This indicates the availability of defences of justification such as self-defence and consent of the complainant of that harm. Section 76 of Act 29 Criminal offences Act 1960 defines unlawful harm as: “Harm is unlawful which is intentionally or negligently caused without any of the justifications mentioned in Chapter one of this part.” At this stage, the evidence of accused person is determined by the court to see whether it satisfies any of the justifications mentioned in the Act or whether the evidence adduced by accused person raise a reasonable doubt in prosecution’s case. Under the Evidence Act supra what is generally called the burden of proof, it has two elements. They are the burden of persuasion and the Page 10 of 22 burden of producing evidence. Here, the two are not the same. The burden of persuasion as provided in Section 10 of the Act involves the establishment of a requisite degree of belief concerning a fact in the mind of the court; or that the party raises a reasonable doubt concerning the existence or non-existence of a fact, or that the party establishes the existence or non-existence of a fact. This burden is on both the prosecution and the defence. Here, it is for accused person to adduce credible corroborative evidence to either discredit or raise a doubt in prosecution’s evidence. A1 stated that he operates a taxi Union and station by name Map Taxi Union stationed close to Round Palace at the University of Cape Coast. He stated that their rule is that drivers who pick passengers outside the station are made to alight them so on 24/07/2020 at about 7:30pm he was at the station with other drivers when PW1 came and alighted some passengers close to the station. After, he rushed to pick two passengers who were just about entering the station. He spotted them and being the station master he immediately blocked PW1 from leaving the station with a wooden bar. A1 did not tender in evidence any proof of his operating a taxi union or any permit or license for him to operate a taxi station at that place. As to whether that place can be deemed to be a station was not established credibly through his evidence. Page 11 of 22 When he was asked as to the documents covering the said station, he could not produce so even though he had a lawyer and filed his witness statement. He mentioned a receipt from the municipality but he did not tender that in evidence. He was questioned about the rules he mentioned under cross examination and he mentioned those rules are GPRTU ones but when asked whether he belongs to GPRTU he answered negatively. From the evidence of A1 the court could not find as a fact that A1 has a taxi station and even if he was attempting to have one, did not have any permit or license to operate a taxi union at the place. The court further finds as a fact that he was not a member of GPRTU and hence could not have relied on their supposed rules. However, the court finds as a fact that A1 without any justifiable cause, blocked PW1 from leaving with his passengers and prevented him from moving unlawfully. A1 continued that A2 made an attempt to move his vehicle and in the process PW1 drove at top speed and hit the fender of A2. This evidence corroborates the evidence of PW1 that A2 tried to prevent him from leaving by using his car to block him and in the process he hit the passenger side of A2 car. Page 12 of 22 A1 further mentioned that after hitting the vehicle, PW1 reversed and at top speed hit A1 and threw him at a distance. He said he felt dizzy and when he regained consciousness he dragged himself to hide behind his taxi. He said at that point he saw PW1 charging towards him with a screw driver in his hand and when he got to where he was lying, he raised the screw driver in a an attempt to stab him with it but the screw driver fell down. He said PW1 started punching him and it was at that time in order to save his life, he picked whatever his hand could fall on to defend himself. The evidence of A1 that PW1 at top speed hit him and threw him at a distance cannot be correct. He could have been so badly hurt and as he had other drivers with him, there is no way they would have allowed him to get up. They would have attended to him being the station master as he claims and either sent him to a hospital or to the police station. It is noted that A1 never reported to the police station and he never went to any hospital because he was not hit or hurt by PW1. The scene as described by A1 leaves so many doubts and holes in his evidence that the court could not accept his evidence as credible. He said PW1 charged towards him with a screw driver but it fell down and this is supposed to have happened after PW1 had allegedly hit him with a car at top speed throwing him at a distance. Where was A2 and other drivers he claimed were around? Page 13 of 22 From his evidence in chief A1 said he tried to find something when PW1 charged on him and it was then that he got something and used it on PW1. This was according to his evidence after he had been hit and was lying down. But under cross examination he answered that he went to the boot of his car and took the saw blade. His answer means that it was not correct he was on the floor and took whatever his hands got but rather he walked to his car, to his boot, opened it and took the saw blade. He knew he had a saw blade at the back of his car and he knew he could use it to harm PW1 and that is exactly what he did. If PW1 was attacking him with a screw driver, that object according to A1 fell meaning he had nothing in his hands to have attacked A1 such that A1 had to go to his car boot for the saw blade. He contradicted his own evidence under cross examination that it was difficult for the court to put weight in his evidence. At one point, he said PW1 was holding a bamboo stick and at one point a screw driver but he never mentioned any bamboo stick in his witness statement. A1 was attempting to use self defence but it did not go well for him as his evidence was discredited under cross examination. He started the entire mayhem by blocking PW1 with a wooden gate. When he was asked what they are supposed to do when a taxi driver picks passengers at a place designated as a taxi station without permit, he Page 14 of 22 answered that that person is made to alight the passengers and if the driver refuses he is reported to the authorities. Yet, he did not comply with his own assertions of their rules. He was only to ask PW1 to alight the passengers but not to block him, prevent him from leaving, assaulted or intimidated much more harmed with a saw blade. From the entire evidence, there is no mention of the passengers in PW1’s car meaning that the passengers had alighted. The evidence of accused person did not provide any justification as to why he used the saw blade on PW1. Even though he tried to give excuses, the court finds that he acted in extreme anger and used the saw blade on PW1 without any justifiable cause only trying to show PW1 where power lies. Section 31(e) Act 29,(1960) states: “Force may be justified in the case and in the manner, and subject to the conditions, provided for on the grounds; (e) of necessity for the prevention of or defence against a criminal offence(See also section 37 of Act 29, (1960).” Section 174(5) of Act 29, (1960) also states: “Despite anything contained in Part One as to mistake of law, a person is not liable to punishment in respect of doing a thing which that person in good faith, believes to be entitled to.” Page 15 of 22 The combined effect of Sections 31(e) and 174(5) of Act 29 (1960) is that if the accused person can show that he acted with just cause and in good faith, he would not be liable for punishment and would not have then acted unlawfully. A2 testified that he is a taxi driver and he works at A1’s station. He said the complainant does not operate from that station but he came there to pick passengers, so when he was in the process of taking passengers A1 blocked him and PW1 drove into his car and damaged it. He continued that PW1 reversed and drove the car to hit A1 and he fell down. He further stated that PW1 came out of his car and attacked A1 and after fighting with A1, PW1 drove his car away. The evidence of A2 shows clearly that PW1 was in the process of taking passengers and not that he took the passengers. It also shows that A1 blocked him making PW1 drive into his car. His evidence did not mention that PW1 was injured by A1 or that A1 went to his car and took a saw blade. Under cross examination A2 answered among others the following questions: Q: You have told this court that when PW1 picked passengers, he was blocked by A1. Is that so? A. Yes. Page 16 of 22 Q. You agree with me that someone who has been blocked with a wooden gate cannot move until the gate is removed. A. Yes, that is so. Q. So at what point in time did PW1 moved his car and hit your car? A. PW1 did not pass the right way but passed where we have parked our car and hit mine. A2 was inconsistent with his testimony as earlier he never mentioned PW1 passed a different way. All along he had maintained that his car was parked and PW1 drove into his car and damaged it. Yet from his cross examination it was clear that he moved his car to go to a place called science and PW1 hit his car. This piece of evidence is also contrary to his caution statement. He also admitted that A1 blocked PW1 from moving hence it was not possible for him to have driven into his car. It is rather possible that PW1 tried to use another way and he quickly used his car to block him making PW1 to hit his car. The evidence of A2 further corroborated the evidence of prosecution and also brought to light the inconsistencies, contradictions, and afterthought answers of accused persons. Page 17 of 22 Under cross examination A2 answered this question: Q. Then you agree with me that someone who had been hit at top speed with a car will have been injured. A. There are some people who do not get injured when they are hit by a car. It is however difficult though for the court to accept his assertion that there are some people who will not be injured if a car hits them at top speed. His answer only goes to show how he will say anything to cover up their actions It is noted that A1 could not produce credible evidence to prove that he owns a taxi station which is registered, licensed, or accepted by the local authorities. He did not also produce any bye laws or rules that according to him have to be complied with by all taxi drivers whether the person works at his station or not. He did not provide any evidence to show that he as a station master has a right to block taxi drivers and prevent them from leaving when they pick passengers at the disputed area. He admitted that he is not a member of GPRTU and as such he cannot even resort to the use of their bye laws if that rule even exists. Page 18 of 22 He could not provide credible evidence to show why he went to his car boot and took a saw blade to harm PW1 when his life was not threatened in any way by PW1. He did not explain why after slashing PW1’s arm with the saw blade he raised it again to harm him which made PW1 tried to prevent him making PW1’s palm to be slashed with the saw blade as well. In the light of the above the accused did offend Section 172 of Act 29. This is because A1 could not provide any credible evidence to show that he had a right to use the saw blade to inflict wounds on PW1. The accused persons set out on criminal show of force. In the process, A1 caused terrible harm to PW1. That force used or harm caused was something that should have been reasonably foreseeable by A1. The court therefore does not put much weight on the evidence of A1 and find his evidence not credible because of all the inconsistencies and contradictions as shown above. Hence, A1 was not able to raise a doubt in prosecution’s case and could not also discredit the evidence of prosecution. I have considered accused person’s caution statement, charge statement and his evidence and find that accused person failed to discharge the burden of persuasion placed on him and he was not able to raise a Page 19 of 22 reasonable doubt as to his guilt as required of him under Section 13(2) and 14 of NRCD 323 supra. I then move to the charge of Abetment of Crime Contrary to Sections 69 and 20(1) of Act 29, 1960. 2. ABETMENT Section 20(1) of Act 29, 1960 provides that: 1) Every person who, directly or indirectly, instigates, commands, counsels, procures, solicits, or in any manner purposely aids, facilitates, encourages, or promotes, whether by his act or presence or otherwise, and every person who does any act for the purpose of aiding, facilitating, encouraging or promoting the commission of a crime by any other person, whether known or unknown, certain or uncertain, is guilty of abetting that crime, and of abetting the other person in respect of that crime. From the proven facts as above, A2 was with A1 and he saw A1 blocking PW1 from leaving the place. He tried also to use his car to block PW1 from using alternative route and that was when PW1 hit the passenger side of A2’s car. He aided A1 in blocking PW1 and his action further encouraged A1 to think that he has the right to prevent PW1 from leaving. I have already found as a fact that prosecution witnesses were credible and the court had no doubt accepting their evidence as cogent. It was for Page 20 of 22 the accused persons to raise a doubt or discredit the evidence of prosecution witnesses and yet they failed to raise a doubt, failed to provide evidence to justify their unlawful acts, and failed to discredit the evidence of prosecution. Hence, I find that A2 was not able to raise a doubt or discredit the evidence of prosecution witnesses. DISPOSITION/HOLDING I therefore find as a fact that A1 caused unlawful harm to PW1 without any justifiable cause and A1 abetted A1 in causing unlawful harm to PW1. The Accused Persons are thus found guilty of the offences of causing unlawful harm and abetment Contrary to Section 69 and 20(1) of Act 29, 1960 and I hereby convict them. PRESENTENCING HEARING I have considered that accused persons are unknown and that they are having their first brush of the law. I have noted also the gravity of the harm A1 caused to PW1 whilst A2 looked on and abetted. I have considered also that accused persons have not contributed to the cost of the medical bills of the complainant. I hereby sentence A1 to three (3) years IHL for the offence of causing unlawful harm. Page 21 of 22 Additionally, A1 to pay Ghc 10,000 to PW1 as compensation for the damages caused to his arm and palm and towards his medical bills. A2 is sentenced to pay a fine of Four Hundred and Fifty Penalty Units in default serve eighteen months imprisonment. Additionally, A2 is bonded to be of good behaviour for two (2) years in default serve two (2) years imprisonment. H/H DORINDA SMITH ARTHUR (MRS.) CIRCUIT COURT JUDGE ACCUSED PERSONS PRESENT. PROSECUTOR: C/INSP. SAMUEL AMOAKO PRESENT. MAAME ABENA DARTEY LAMPTEY ESQ FOR ACCUSED PERSONS ABSENT. Page 22 of 22