S v Asamani (GR/SG/DC/B4/01/2025) [2025] GHADC 183 (22 July 2025)

IN THE DISTRICT COURT HELD AT SEGE ON TUESDAY, THE 22ND DAY OF JULY, 2025. BEFORE HER WORSHIPVICTORIA AKUA GHANSAH ESQ. AS MAGISTRATE. CC: GR/SG/DC/B4/01/2025 THE REPUBLIC VRS KELVIN ASAMANI JUDGMENT The accused person herein has been arraigned before this Court charged with the offence of Assault Contrary To Section 84 And Causing Unlawful Damage Contrary To Section 172 of The Criminal Offences Act 1960 (Act 29) respectively. Accused persons pleaded not guilty to the charge. The court therefore set the matter down for trial. By this plea it means that their guilt has to be proved by Prosecution beyond reasonable doubt. That common law rule that a person was presumed innocent until the contrary was proved or he pleaded guilty is reinforced by Article 19(2) (c) of the 1992 Constitution which enacts: (2) “A person charged with a criminal offence shall ------- (c) be presumed to be innocent until he is proved or has pleaded guilty.” The mandatory requirement that the guilt of the person charged ought to be established beyond reasonable doubt and the burden of persuasion on the party claiming that a person 1 was guilty, has been provided for in Ss. 13 and 15 of the Evidence Act, 1975 (NRCD 323). Significantly, whereas the Prosecution carries that burden to prove the guilt of the Accused beyond reasonable doubt, there is no such burden on him to prove his innocence. At best he can only raise a doubt in the case of the Prosecution. But the doubt must be real and not fanciful. Prosecution in proving their case called two witnesses including the investigator. The statements of these witnesses including other documents for Case Management Conference (CMC) were filed on the 21/12/2023. Hearing commenced on the 29/1/2024. In Republic v. Adu-Boahen & Another [1993-94] 2 GLR 324-342, per Kpegah JSC, the Supreme Court held that: “A plea of not guilty is a general denial of the charge by an accused which makes it imperative that the prosecution proves its case against an accused person ……….. When a plea of not guilty is voluntarily entered by an accused or is entered for him by the trial court, the prosecution assumes the burden to prove, by admissible and credible evidence, every ingredient of the offence beyond reasonable doubt”. Section 84 of the Criminal Offences Act 1960 (Act 29) “A person who unlawfully assault another person commits a misdemeanor.” From the facts as given by prosecution, the charge of assault against the accused is that of assault and battery. Section 85 (1) (a) of Act 29/60. Assault is intentional conduct in the case of assault and battery, it must be with the intention of causing harm, pain, or fear, or annoyance to the person assaulted or exciting him to anger as per sec 86(1). THE CASE OF THE PROSECUTION The complainant in this case is a commercial rider whiles the accused person is a painter both residing at Anyamam. On the 17th day of September, 2024 about 7:30pm the complainant was at Sege-Wonya junction when the accused person approached the complainant from behind 2 and gave him a blow on his face and his iphone 6 fell and the screen got damaged that the complainant is dating his wife. The damaged iphone 6 was retained for evidential purpose. On 18th day of September, 2024 at 9:30am the complainant came to the Sege police station and lodged a complaint. The complainant was issued with police medical report form to attend hospital for treatment and he returned same duly endorsed by his medical officer and same kept for evidential purpose. On 21st day of September, 2024 at 12:25pm the complainant led police to the arrest of the accused person for investigation, after investigations the accused person was charged with the offences stated on the charge sheet and now before this honorable court. EVIDENCE OF PW1- AYIKU PROSPER PW1 is a farmer, native of Anyamam who resides at Sornkope. In his evidence-in-chief before court, PW1 stated that on the 17th day of September, 2024 about 7:30pm, he was standing with a witness in this case at Wonya junction and without any reasonable cause the Accused person came from behind and hit his neck and face with his hand. He sustained bruises on his face and pain in the neck. When he confronted the Accused person, Accused said he was sent by someone to beat him and henceforth anywhere he meets PW1, he will beat him. PW1 stated further that he rang the person he alleged has sent him to beat him but this person denied the allegation, the person encouraged him to report the case to the station to that effect. The action of Accused made his iphone 6 valued GH¢1,500.00 fell in the gutter and got spoilt. EVIDENCE OF PW2- CHRISTIAN TETTEH OBUOR In the testimony of PW2, both the complainant Prosper and the accused person are his friends. On the day of the incident he was standing at Wonya junction with the complainant and without any provocation the accused person Kelvin Asamani alias Dignity came from behind 3 and hit the head of PW1 with the hand. The complainant was then holding his iphone 6 and same fell on the ground and we rescued the complainant. EVIDENCE OF PW3- NO. 45684 D/SGT/NAAZAH NASHIRU According to PW3 on the 18th day of September, 2024 a case of causing damage and assault was referred to him for investigation. The complainant statement was taken and issued with police medical form to attend hospital. He returned with same endorsed by his medical officer. The complainant damaged iphone 6 was retrieved and same kept for evidential purpose. He also led police to the arrest of the accused person for investigation. After investigation the accused person was charged with the offences and now before this court. BY ACCUSED According to Accused he live with his wife and child in the same room about three to four years now. He has seen that the wife was taking some steps which he was not happy with so he decided to investigate her. Accused stated further that, his own investigation revealed that the wife was going out with one Prosper Ayiku whom he did not know. Accused said he looked for Prosper Ayiku so that we talk man to man to know what he heard was true. When he approached complainant, he denied. Accused one day caught the two of them at 4:00am. Complainant was seeing her off. Accused indicated to court all efforts to let complainant know that the woman was his child’s mother and the family are aware of their relations landed on deaf years because Complainant claimed the woman was his passenger. This did not sit well with the Accused. Accused then reported the case to the Police. It was from the Police station he saw the complainant at the motor station so he approached him to ask him why he is still going out with his wife. A confrontation ensued and the accused assaulted the complainant because the complainant attacked him and pushed him. 4 The legal issues that fall for determination after the end of the trial are as follows: 1. Whether or not the Accused person assaulted the complainant. 2. Whether or not Accused caused damage to the phone of Complainant. The cardinal rule in all criminal proceedings as I have stated earlier in this judgment is that the burden of establishing the guilt of the accused person is on the prosecution; and the standard of proof required by the prosecution should be proof beyond reasonable doubt as provided in the Evidence Act, 1975 (NRCD 323), sections 11(2) and 13 (1), and also as was stated in the case of Faulkner v Tolbot [1981] 3ALL ER 440 CA: ISSUE 1 “An assault is an intentional touching another without the consent of that person and without lawful excuse. It need not be necessarily be hostile, or rude, or aggressive, as some of the case seem to indicate.” 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. From the evidence on the record and also noting the endorsement of the medical reports issued to the Complainant…. I find as a fact and hold that accused intended to cause pain or fear or annoyance or incite complainant to anger by forcibly touching the person of the Complainant without his consent. I therefore hold that the prosecution led sufficient evidence beyond reasonable doubt to prove that the accused intended to cause pain or fear or annoyance to the complainant. The last ingredient for Prosecution to prove is whether or not the assault was unlawful 5 Assault is lawful if it is justified on any of the grounds in Chapter 1 of Part II of the Act – Section 85(2). Can the justification for the use force under section 31 of Act 29/60 avail the Accused person? Section 31 sets the grounds on which Force or harm may be justified. Force may be justified in the cases and manner subject to the conditions in this section of the Act. The bodily contact made by Accused on the person of PW1 was without consent and unpermitted. This made the conduct of the Accused unlawful. None of the conditions under section 31 was satisfied. From the evidence, Accused attacked PW1 on grounds he was having amorous and intimate relationship with a woman he has a four (4) year old child with whom he describes as his wife. All efforts to stop PW1 has not yielded any results hence the attack on his person on the said day at Wonya Junction. The Accused indeed admitted he assaulted PW1. The reason for his misconduct by the assault was unjustified and unreasonable. Whether or not Accused caused damage to the phone of Complainant. In terms of the offence of causing unlawful damage under the Act 29/1960 is committed where a person intentionally and unlawfully causes damage to a property. In OKOE v The Republic, Section 172 (1) of Act 29 under which the charge was laid against the appellant reads; “whoever intentionally and unlawfully causes damage to any property by any means whatsoever… shall be guilty of second degree felony “in my view the ingredients to be proved are that of intention and unlawful. I have no doubt from the proceedings before us” 6 To secure a conviction under this section it is necessary for the prosecution to prove beyond reasonable doubt that the damage was caused intentionally within section 11 (2) of Act 29, and also without just cause or excuse. SECTION 11(2) states where a person does an act intending to cause an event, but causes a different event is deemed to have intended to cause the second event. Accused did not intend causing damage to the phone. Once accused assaulted PW1 voluntarily and the act led to a certain event (damage of the phone), he would be held to have intended to cause the event which was the consequence of his unlawful act. In this instance assaulting PW1 on grounds that he was into an amorous relationship with his wife. The law does not prescribe assault on such a person in the instant case. In all the evidence before the court, accused was found to have directly or indirectly caused damage to the property of PW1 this is because accused person was not even aware of the phone but his action on that day led to an event have connection with the phone of PW1. The damage was as a result of his voluntary act (ie) assaulting the complainant and the phone falling off the hands of the complainant. It was the impart of the assault which resulted in the damage of the phone. Excerpts from cross examination Q. I further put it to you that because of the blow you gave him on his head, he fell down and the iphone he was holding also fell down and got broken. A. on that day, I did not see him holding phone. He was sitting on his motorbike. Q. I am also putting it to you that because you are angry, you did not see him holding phone. A He was not holding phone; he was sitting on his motorbike. 7 Q. Finally, I am putting it to you that on 18/09/2024 you assaulted complainant, Prosper Ayiku and in the course of the assault his IPhone fell down and damaged. A. I don’t know anything about that. By COURT I have considered the evidence adduced by both the prosecution and defence and the applicable law and I am satisfied that the prosecution per the evidence led proved beyond reasonable doubt the offence of assault against the accused person. Prosecution in their evidence to prove that Accused person intentionally caused unlawful damage to the iphone of the Complainant could not prove a direct intent but the consequence of the action led to the damage of the complainant’s phone. Accused has anger issues. I therefore find accused guilty of the offence of Assault and causing unlawful damage to a phone and is convicted. After his plea of mitigation accused was sentenced to pay a fine of 80 penalty units in default serve 6 months prison terms to the count of assault and causing unlawful damage to the property. The sentences are to run concurrently. (SGD) VICTORIA A. GHANSAH (MAGISTRATE) 8