S v Kartey and Others (B1/02/2021) [2025] GHADC 182 (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: B1/02/2021 THE REPUBLIC VRS 1. KARTEY TSAANAA 2. AARON NARTEY ADJOKEY 3. EMMANUEL ADJORKEY JUDGMENT The case is a part heard case which was first listed on the 3rd of June, 2021. The current court inherited the docket in 2024. Counsel for Accused filed a submission of no case at the close of prosecution case. The court ruled and dismissed the Application since the court believed the Accused person has question to answer. Accused persons opened their defence and the case was slated for judgment. The Accused persons herein- Kartey Tsaanaa, Aaron Nartey Adjokey, Emmanuel Adjokey together with some twenty five (25) others who are said to be at large, were charged with and arraigned before this court on the following offences: Which are one count each of conspiracy to commit crime, to wit: causing unlawful damage; contrary to sections 23 (1) and 172 of the Criminal Offences Act, 1960, Act 29; and unlawful damage contrary to section 172 of Act 29/1960. 1 Accused persons upon their arraignment before this court, denied both charges against them by pleading not guilty to the said charges. It is without doubt that the obvious legal effect of their pleas- which joined issues on the counts with the prosecution - resulted in the prosecution assuming the burden of proving their guilt on the counts against them beyond reasonable doubt in criminal proceedings of this nature. This is because under Article 19 (2) (c) of the 1992 Constitution, a presumption of innocence has been created in favour of the Accused upon pleading not guilty as follows; “Article (2) (c) A person charged with a criminal offence shall…. be presumed innocent until he is proved or has pleaded guilty”. 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 Donkor v The State [1964] GLR 598. It was held inter alia by the Supreme Court of Ghana that in criminal trials, the burden of proof in the sense of the burden of establishing the guilt of the accused is generally on the prosecution or The Republic. Ordinarily, in criminal proceedings the received learning is that, it is the prosecution- upon a plea of not guilty by an accused- that assumes the burden of proof, which they must establish beyond reasonable doubt. In the popular English case of Woolmington v DPP (1935) AC 462; where Lord Sankey (as he then was) held thus; “Throughout the web of the English Criminal Law one golden thread is always to be seen that, it is the duty of the prosecution to prove the prisoner’s guilt subject to…. the defence of insanity and subject also to any statutory exception ... No matter the charge or where the trial, the principle that the 2 prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained”. The above Common Law principle has enjoyed both statutory and case law blessings in Ghana. Under the statute, sections 11 ( 2 ) and 13 ( 2 ) of the Evidence Act, 1975, NRCD 323, state of the burden of proof on the prosecution as follows: “11(2) 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 could find the existence of the fact beyond reasonable doubt.” “13(1) In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt.” In proving their case prosecution called five witnesses who all filed their witness statement, cautioned statement, charged statements, photographs and pen drive. The Accused persons in opening their defense filed their witness statements and other documents obtained from the High Court in a pending which the court has granted an injunction on the disputed land. THE BRIEF FACTS: The complainant in this case is a Vulganizer living at Wokumagbe whilst A1 is a fisherman, A2 is a photographer and A3 is a mason. The three Accused persons are all residing at Wokumagbe near Dawa. On 31st of January, 2021 at about 12:00pm complainant and witnesses in this case were busily erecting vehicle tyres on the boundaries of their father’s parcel of land at the outskirts of Wokumagbe. Then A1 and A2 appeared from nowhere and confronted them to prevent the erection of the said vehicle tyres under the guise of being sent by Friday Siaw Adjorkey but complainants refused. This escalated to a fierce 3 confrontation and A1 invited a group of Adjorkey family members from Wokumagbe Township to the scene who joined the Accused persons to attack the complainant to stop the erections of the said vehicle tyres. A witness in this case intervened and calmed the situation. Later, they all made reports at Dawa police station for investigations. Thereafter, their statements were taken after which police told all to report at the station the following day to be paraded before the District officer at the District Headquarters/Sege for further directives. However, at about 1400 hours same day, Accused persons Kartey Tsaanah, Aaron Nartey Adjorkey who were not satisfied with the police advice, invited other Adjorkey family members including Masiki Adjorkey, Faustina Adjorkey, Tetteh Golie Adjorkey and several others (now at large) very shortly, the invited Adjorkey family folks arrived at the scene with matches, gallons of petrol and firewood and soon they set one hundred and thirty vehicle tyres valued GH¢63,500.00 ablaze in the presence of the complainant and the witnesses. Helplessly, the incident was captured on a video for evidential purposes by the witness with their mobile phones. The complainant further made a report to the police to that effect. Police immediately visited the scene for first-hand investigations. Police found several spots of burnt vehicle tyres remains and ashes to substantiate intentional vehicle tyres burns. Instantly, police took photographs of the scene for evidential purposes. On 22nd February, 2021 police invited suspects Masiki Adjorkey, Faustina Adjorkey, Tetteh Golie Adjorkey and several others (now at large) by serving them with invitation letters to report to the station on their respective dates to assist police investigation but they failed. Later, A1, A2 and A3 reported themselves and were re- arrested to assist investigation. Thereafter, they were charged with the offences before the court. In the brief facts Complainants were on their land when A1 and A2 appeared from nowhere and confronted them to prevent the erection of the vehicle tyres as boundary at about 12pm to stop the complainants from working A1 and A2 told them they were sent by FRIDAY SIAW ADJORKEY. Both COMPLAINANT and ACCUSED PERSONS made a report to the 4 Dawa Police Station for investigation. They were advised to report again for further investigations. However, at about 2pm same day accused persons Kartey Tsaanaa, Aaron Nartey Adjorkey who were not satisfied with the Police advice invited other Adorkey family members including Masiki Adorkey and others. The invited Adorkey family folks arrived at the scene with a gallon of petrol, matches and firewood and set the complainant’s tyres ablaze. The incident was captured on video. Photographs` were also taken of the burning of the tyres. The complainants made a report to the police. The police visited the crime scene. Invitations were extended to all the Adorkey family members who went on the land to the station for questioning. They all failed to honour the invitation except the three (3) Accused persons who reported and they were arrested and charged with the offences. WITNESS STATEMENT OF ABRAHAM SOWU (PW1) PW1 is Abraham Sowu, a vehicle tyres dealer and also a vulganizer who reside at Tema but a native of wokumagbe near Dawa. PW1 says he decided to set up a tyre business in the village at Wokumagbe. On 31st day of January, 2021, he loaded One Hundred and Thirty (130) pieces of home used tyres of different sizes from Accra to the village. His brothers Seth Sowu, Jacob Sowu assisted him send the tyres onto a land located at Wokumagbe which belongs to our father. They started preparing the place to start the business and off loaded all the tyres from the vehicle on the ground. At about 2:00pm same day, accused persons Kartey Tsaanah, Aaron Nartey Adjorkey and Emmanuel Adjorkey together with a group of people came to the site holding in their hand bottles of petrol, matches and fire wood. Accused and the group started heaping the tyres at different locations afterwards, Aaron Nartey Adjorkey and Emmanuel Adjorkey started pouring petrol they brought on the tyres and suddenly set the tyres ablaze. Kartey Tsaanaa and others were also seen transferring the fire from the ablaze tyres to another heaped group of tyres at different spots. Whilst burning the tyres Nene Teye Sowu suddenly appeared at 5 the scene and confronted them to stop but they refused and told him that, they were sent by one Nene Siaw Adjorkey Friday. PW1 added that he took video footage of the accused persons and others at the scene on his mobile phone and later transferred. PW1 reported the case to the police and statement was obtained from him. He also produced receipt covering the cost of the tyres. Police visited the scene and also took photographs of the scene. A SUMMARY OF THE EVIDENCE OF SETH SOWU (PW2) PW2 Seth Sowu, a mason also resides at Wokumgbe. He corroborated the story of PW. They reported the incident to the police and also gave a statement. EVIDENCE OF NENE TEYE SOWU III (PW3) PW3 Nene Teye Sowu is a traditional Ruler and reside at Segese. On the day of the incident at about 2:00pm, he was on his way from Segese heading towards Dawa on board a vehicle. Suddenly, he saw heavy smoke at the outskirts of Wokumagbe Township. On reaching a place close to the fire, he saw a group of people he can identify at the scene. PW3 added that he pleaded with a friend to stop and he did. When he got nearer to the scene, he also saw Emmanuel Adjorkey Tetteh @ TT holding a bottle of petrol. PW3 told court he saw Karteh Tsaanaa transferring fire from a heap of burning tyres to another heap of vehicle tyres. He saw Aaron Adjorkey, Emmanuel Adjorkey, Tetteh @ TT and others heaping and grouping the tyres at the scene at different points. Aaron Adjorkey and Emmanuel Adjorkey started pouring the petrol on the tyres and setting them ablaze. Whilst burning of the tyres were ongoing, another group at the scene pounced on Anai Sowu Narteh on the ground. PW3 managed to separate the fight after which he confronted one Lardie Sowu at the scene as to why they were burning the tyres. He told PW3 that it was one Nene Siaw Adjorkey who sent the accused to come and burn the tyres. “Cango” was among the group holding cutlass, he collected the cutlass from him and retained same until PW3 realized that, the tension has gone down before he left the scene to 6 Dawa Police Station and gave statement to the police. PW3 also advised the complainant to proceed to the police station to lodge a report. WITNESS STATEMENT OF JOHNSON AKWETEY SOWU (PW4 PW4 was not present when the accused persons came to the scene. According to him at about 2:00pm on the day of the incident he had call again from Jacob Sowu that, accused persons and others attacked them on the land and set all the tyres ablaze. PW4 quickly proceeded to the scene and saw burning tyres and ashes. All his evidence was what was reported to him but not an eye witness account of how the tyres were set ablaze. WITNESS STATEMENT OF G/CONST. ERNEST OWUSU ANSAH (PW5) PW5 is No. 56011 G/CONST Ernest Owusu Ansah station CID at Dawa police station and also residing at Dawa Police Barracks. According to PW5 on 31st day of January, 2021, one Abraham Sowu and his three other Brothers Seth Sowu, Jacob Sowu and Nene Teye Sowu III all of Sowu family at Wokumagbe reported a case of causing damage which was referred to him for investigations. The case was lodged against Kartey Tsaanah, Aaron Nartey Adjorkeyy, Emmanuel Adjorkey and several others at large. Earlier in the day, parties reported counter case against each other and police obtained statements from both parties after which they were advised to report again the following day to be paraded before the District Officer for further directives. However at about 2:00pm the same day, accused persons Kartey Tsaanah, Aaron Nartey Adjorkey, Emmanuel Adjorkey refused to report back as instructed to be paraded before the District Commander at Sege but rather organized several others now at large, proceeded to the site at Wokumagbe again and set 130 vehicle tyres belonging to the Complainant Abraham Sowu ablaze in the presence of the said Abraham Sowu and his three brothers. Statements were obtained from the complainant and the witnesses by the police. Police also 7 visited the scene and found several spots of burnt vehicle tyres remains and ashes. Photographs were taken at the scene. On 22 / 02/2021, police invited suspects Masiko Adjorkey, Faustina Adjorkey, Tetteh Golie Adjorkey, Kartey Tsaanah, Aaron Nartey Adjorkey, Emmanuel Adjorkey and several others by serving them with invitation letters to report at the station to assist police investigations but failed. Later, the three (3) accused persons Kartey Tsaanah, Aaron Nartey Adjorkey and Emmanuel Adjorkey reported themselves and were re-arrested to assist investigation. Accused persons were cautioned and charged after investigations. At the close of Prosecutions case Counsel for the Accused persons filed for submission of no case on behalf of the Accused and was overruled. Accused persons were therefore called upon to open their defence if they had any since a prima facie case has been made by Prosecution against the Accused persons. EVIDENCE OF KARTEY TSAANAA (A1) A1 lives at Wokumgbe, near Sege and is a fisherman. He is also a stool father, a traditional position under Adjorkey Siaw stool at Wokumagbe. He belongs to the Adjorkey family of Wokumagbe, alongside the 2nd and 3rd accused persons A1 indicated to Court he knows complainant as well as the prosecution witness in this case are all from the same town and belong to the Sowu family of Wokumagbe, who are also our brothers. A1 denied causing damage to any property. Consequently, A2 and AI who is also the stool father were sent by the Chief to stop the ongoing work and invite the persons involved to the palace. Our brothers from the Sowu family did not stop what they were doing. We reported the case to the police who advised them to come the following day to meet the commander. However, for whatever reason, our brothers from the Sowu family, returned to the land to continue demarcating the land, by this time, tension had built up between members of the two factions in the town and it was so much so that when Sowu family people went back to the land, it attracted large number of people from the town who went to the land for various reasons, to support or oppose the demarcation work. 8 A1 also followed up to the land ... At some point, a fierce confrontation ensued and led to a fight, resulting in burning of the discarded tyres on the land by the mob that had gathered on the land. Also, pictures of A1 filed in evidence in this case showed me standing helplessly while members of Sowu family brandished weapons and threatened to cause harm and injury. It is worth nothing that the entire confusion leading to the burning of tyres by rioting youth was essentially a land dispute between two factions, the Adjorkey and Sowu families. As for the burning of the tyres, A1 can’t say who started neither does he know who organized it. All he knows is that, he did not start nor organized the fire on that faithful day. CAUTION STATEMENT of A1 … NENE Siaw Adjorkey engaged me and Aaron to go and gather vehicle tyres erected on his land that were reportedly to have been erected by Sowu family. I and Aron went to the site to gather some of the tyres…. EVIDENCE OF AARON NARTEY ADJORKEY (A2) A2 is a native of Wokumagbe but currently lives at Kasoa, he belongs to the Adjorkey family of Wokumagbe. It was the case of A2 that Complainant and his brothers attempted to take part of Adjorkey family land in Wokumagbe, which resulted in a mob action leading to the burning of discarded tyres that were used to demarcate the land in dispute. After the mob action between the youth of Wokumagbe on 31/1/2021, complainant fabricated stories to blame him for causing damage to tyres that he claims he was going to use to set up business. Consequently, A2 and A1, Kartey Tsaanah, who is also the stool father were sent to stop the ongoing work and invite the persons involved to the palace. However, complainant and his brothers did not stop the erection of the tyres as when we demanded them to stop. They 9 rather became confrontational and we had no choice but report their attitude back to Nene Adjorkey Siaw. In view of their refusal to stop the work and report to the palace as requested, Nene Adjorkey advised that formal report of the matter be made to police. I therefore reported the conduct of complainant and his people to Dawa police for assistance to stop the trespass to our family land. At the police station, the investigator requested that we go home and return later to meet the commander for his directives. While waiting to meet the commander, complainant and a large number of people massed up on the land again armed with machetes and other implements and tried to use force to continue the demarcation of the land. The people who went back to the land to support the erection of the tires were largely Sowu family members and their conduct attracted people from the village. In the ensuing confrontation, the heap of tyres that were arranged as means of demarcation of the alleged boundaries on the land, was set ablaze by the mob. The testimony of PW3, Nene Teye Sowu III, confirmed the fact that there was a mob on the land which attracted him to go closer to find out what was happening. A2 continued that he knew nothing about how or who started the fire. Therefore, it was not true that he organized or instructed the burning of the tyres. Video footage recording by complainant and admitted in evidence as EXHIBIT B, which was played in open court during the trial, only showed me standing helpless and holding a mobile phone to my ear. Attached is a picture of A2 taken from the scene on the day in question marked as EXHIBIT “ANA 4”. … CAUTIONED STATEMENT of A2 I and Kartey Tsaanaa gathered vehicle tyres in heaps to be sent home…the vehicle tyres were set ablaze. 10 EVIDENCE OF A3 EMMANUEL ADJORKE A3 is a member of Adjorke family of Wokumagbe and a mason. According to A3 he informed police categorically that he arrived late at the scene of the incident on that faithful day when the burning of the tyres had already started. Therefore, he does not know who or how the tyre burning started. A3 also added that he joined several other youths from Wokumagbe at the scene and our purpose was only to remove the tyres that had been used to demarcate the land which is under dispute between our two families. He did not take part in any burning of tyres. When Exhibit B, the video recording of the burning and rioting incident was played in open court during trial of prosecution’s case, A3 did not see himself in it. He was not captured in the video because he arrived at the scene of the tyre burning incident when the burning had started. Therefore, it is not true that he conspired or participated in the burning of the tyres. When he arrived at the disputed land, he saw several Sowu and Adjorkey family members including complainant, Jacob Sowu and Seth Sowu among others. A3 also saw A1 and A2 and after a while, he left the scene. A3 stated he does not know how things ended after he left the scene. CAUTIONED STATEMENT OF A3 In his caution statement A3 informed police that Nene Ajorkey Siaw, Chief of Wokumgbe asked us to stop the erection of the tyres on the land by the Sowu family. He did not ask us to damage or harm anyone or anything. 11 ….Nene Siaw Adjorkey engaged me and several others from the Adjorkey family to go on the land and gather all vehicle tyres erected on the land…I performed my task by gathering some vehicle tyres but I did not carry them home. Nene Adjorke Siaw asked us to halt the demarcation because the Sowu family people were demarcating a boundary on the disputed land even though it was subject of dispute before the High Court, Tema. In addition, police had earlier on requested both sides to report back later to meet the commander to deal with the issues. It was the case of A3 that this burning happened long before he even got to the scene. EVIDENCE OF NENE ADJORKEY SIAW FOR ACCUSED PERSONS DW1 DW1 is NENE ADJORKEY SIAW a traditional ruler and native of Wokumagbe. The only witness for all the three Accused persons. According to DW1 on 31/1/2021, at about 6.am one of his subjects informed him that some people had come to a section of his family land and were digging the ground and planting tyres. DW1 joined A1 and A2 to report to the Dawa Police the trespass on the land. They were later asked to go home and report later to meet the Commander. Later, he heard the youth were fighting on the land and there was some burning going on in the bush. The confrontation on the land led to the burning of the used tyres. DW1 stated because he didn’t go to the scene, DW1 doesn’t know how the fire started. After taking down our complaint, police asked us to return later to meet the commander himself. The confrontation between the youth groups of Sowu and Adjorkey families could have been thwarted had the police acted on the complaints a counter complaint lodged by representatives of the two families. 2ND ACCUSED My lord, events leading to the burning of the discarded tyres that were used to erect a boundary line over the land in dispute started at about 7am on 31/1/2021, when I first saw 12 complainant and some members of Sowu family erecting the discarded tyres on Adjorke family land. The complainants and all three Accused persons confirmed that they were instructed to meet the District Police Commander for further directives the following day. According to the Accused persons the complainants went back to the land to continue their demarcation on the land with the vehicle tyres so their chief Nene engaged them to go and collect all the tyres and bring them to the palace. In the mind of the Court, it was not the Police who failed to act timeously. It was rather the parties who failed to abide by the police instructions. The order to meet the commander they flouted but to listen to the instruction of their Chief. The story of DW1 is hearsay evidence since he did not witness the event to have first-hand knowledge of the unlawful damage that occurred at the crime scene. He only gave evidence on what was reported to him. ANALYSIS OF THE EVIDENCE The above is in line with the requirement and duty of the Courts to consider any explanations or defence that an accused give and which favors his or her case on the contested issues. In the case of Attah v Commissioner of Police (1963) 2 GLR 460, SC, the judgment of the trial District Court even though confirmed by the High Court, was however quashed on appeal to the Supreme Court because the judgment of the trial Court failed to consider the defence fully in that it did not consider the accused statement on caution or even the evidence of his witnesses. Therefore in assessing or evaluating the evidence in this judgment, the Court would have to apply what is known as the three-tier test to each of the elements of a crime, which would involve the court giving full consideration to the defence of the accused person in terms of what he stated in his cautioned and charged statements to the police; as well as his sworn evidence-in-chief in Court. In the case of Dabla v The Republic (1980) GLR 501, Taylor J (as 13 he then was) held that in a criminal trial, there are generally three types of facts that may emerge at various stages of the proceedings that a judge has to consider. There are; a. The facts which the prosecution may give before the commencement of the actual trial, indicating the material they intend to prove by admissible evidence. b. The facts which the accused person, may, if he chooses, lead in evidence in his defence; and c. The facts which on the consideration of the respective facts of the prosecution and accused/defence mentioned above, the presiding judge or magistrate finds as representing in his opinion the actual facts (emphasis mine). ISSUES FOR DETERMINATION The main issues for determination in this judgment: 1. Whether or not the A1, A2 and A3 conspired with some others at large to cause unlawful damage to the property of the Complainant. 2. Whether or not the accused person together with some other accomplices at large were the ones who caused unlawful damage to the vehicle tyres of the complainant. ISSUE ONE Whether or not the A1, A2 and A3 conspired with some others at large to cause unlawful damage to the property of the Complainant. The Ghanaian law on conspiracy is found under sections 23 & 24 of Act 29: Section 23 (1): “If two or more persons agree or act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime, as the case may be”. 14 There must be more than one person for a charge of conspiracy to succeed. The persons must be natural persons or even artificial persons as a human being is deemed incapable of conspiring with spirits. Conspiracy is established once an agreement to commit a crime is established without the need for the act to have taken place. Once an agreement is reached for the commission of a crime at a date in the future the mens rea needed for the establishment of the offence has been created. One must have knowingly taken part in planning or plotting or the agreement to commit the crime to be liable for the charge. The offence of conspiracy is provided for under section 23 (1) of Act 29/1960 (supra) as amended by the Statute Law Review Commissioner per the Revised Edition Act, 1998, Act 562, as follows: “Where two or more persons agree to act together with a common purpose for or in abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence”. See also the case of Republic v Augustina Abu and Others, (Unreported) Criminal Case No. ACC/15/2013; per Marful-Sau J.A, (as he then was). This definition is admittedly different from the old definition of conspiracy which was defined in section 23(1) of the old Criminal Code 1960 (Act 29) as follows: “If two or more persons agree or act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation each of them is guilty of conspiracy to commit or abet that crime as the case might be.” In the case of Francis Yirenkyi v The Republic, (Unreported) Criminal Appeal No. J3/7/2015, Dotse JSC held inter alia that the new formulation no doubt reinforces the view that 15 conspiracy is an intentional conduct; observing that under the new formulation, a person could no longer be guilty of conspiracy in the absence of any prior agreement. So that the mere acting together of two or more persons in a criminal enterprise is not enough to sustain conviction. Beyond that, there must be proof that the accused person agreed to act together to commit the crime with at least another person. In effect, the definitions of and positions on conspiracy based on previous decisions have failed to be good law. For example in the case of Commissioner of Police v Afari and Addo (1962) 1 GLR 483, it was held inter alia that law on conspiracy in Ghana was wider in scope and content than the English law on that subject; consisting not only in the criminal agreement between two minds but also acting together in furtherance of a common criminal objective. In simple terms, a Court could convict and punish an accused person just on the evidence that he and some co-accused persons acted to commit a criminal offence. Suffice it to say that, evidence of prior or previous agreement by the accused persons to commit the offence was not required to be proved to obtain conviction. Therefore, in the case of State v Otchere and Others (1963) 2 GLR 463, the position of the law was that; “A person who joins or participates in the execution of a conspiracy which had been previously planned would be equally as guilty as the planners even though he did not take part in the formulation of the plan or did not know when or who originated the conspiracy…” However, as has been stated above, there is a new formulation on the law of conspiracy in Ghana now. It is now an intentional conduct, and that there must be evidence that the accused persons had a prior agreement to commit the crime or offence. See the Francis Yirenkyi v The Republic case (supra). The prevailing position of the law is thus that a charge of conspiracy without proving that the accused persons involved agreed to act together to commit the offence shall fail. It is however not a defence for an accused person who is charged for conspiracy to state that he 16 did not have prior or previous concert or deliberation with the other accused persons to commit the offence where there is evidence that they agreed to act together to commit the offence, even if just before the commission of the substantive offences. The Republic v Kwame Amponsah and 6 Ors; Unreported; CC. No. FT/0066/2016; delivered on 18th April, 2019; per Asare-Botwe J. It is instructive to state also that, even on the authorities that applied the old formulation of conspiracy- where they agreed or acted together to commit the substantive offence- the law still required separate and independent evidence of conspiracy which constituted and concerned with conspiracy from the main and actual substantive offence in question. In the case of The State v Agyekum and Amofa (1962) 1 GLR 442, Djabanor J (as he then was), in acquitting and discharging the accused persons on the conspiracy charge, quoted and applied the following dictum of Van Lare, Ag. CJ in the case of C.O.P v Dimbie (1959) GLR 202 @ 203 thus; “…. conspiracy to commit a criminal offence is by itself a criminal offence, whether the offence contemplated is or is not committed. It follows, therefore, that where there is a specific charge of conspiracy, that is to say in addition to the offence itself, there must be some evidence directed and confined to the facts which constitute or are concerned with the conspiracy…”. Therefore, the prosecution in order to prove the guilt of the accused persons before the Court on the allegation that they conspired agreed with or aided the said persons at large to cause damage to the property (vehicle tyres) of the complainant would only succeed if there is evidence of not only that they acted together but more importantly evidence that prior to acting together, they had an agreement to cause damage to the property of complainant. All three accused persons stated that they were instructed/engaged by Nene Siaw Adjorkey… to go and gather the tyres and bring to him at the palace. And they all went on 17 the land to perform so as per their witness and investigative cautioned statements. This amounts to a previous agreement to act together which is an essential element for prosecution to prove in the offence of Conspiracy. All the identified Accused persons were engaged and acted on the advice of Nene Siaw Adjorkey. ISSUE 2 Whether or not the accused person together with some other accomplices at large caused unlawful damage to the vehicle tyres of the complainant. In terms of the offence of causing unlawful damage, which is the sole substantive offence in this case, under the Act 29/1960 (supra), is committed where a person intentionally and unlawfully causes damage to a property. This is what is usually referred to as arson, and it is committed in relation to movable or immovable property. According to Section 172(1), causing damage to property the value of which damage does not exceed GH¢100 or without a pecuniary value is a misdemeanor. Causing damage to property the value of which damage exceeds GH¢100 is a second degree felony. The law is concerned with the value of the damage and not the value of the property damaged – that is – the amount needed to put the property to its former use, and unless the damage to the property is proved to be irreparable the value of the damage cannot be said to be the value of the property in question. The explanation of the damage under this Act was set in sec 173 of Act 29, damage includes any of the following factors damage to the matter of the thing; - interruption in the use of the thing - interference with the thing by which it becomes permanently or temporarily useless 18 - interference with the thing by which some expense is necessitated to render it fit for the purpose to which it is used or maintained. 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” In ASANTE v THE REPUBLIC it was held that; “The provisions of section 172 of Act 29 deal with the value of the damage and not the value of the property damaged and unless the damage to the property is proved to be irreparable, the value of the damage cannot be said to be the value of the property. 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. By the above definition of causing unlawful damage under section 173 of Act 29 and applying the law to the instant case then the heaping of the tyres as well as the removal of the erected tyres as contained in the evidence of the prosecution witnesses and the Accused persons, there was interruption and interference in the use of the tyres by the Complainant, and also to prevent complainant from erecting same tyres this was unlawful damage to the complainant’s property. The big question this court wants to be answered is the authority on which the accused persons acted, as well as those said to be at large and their Chief to boldly collect the tyres of the Complainant to the palace or to prevent his activity on the land on that day. Section 173 of Act defines causing damage by interference interruption…. The acts of the ACCUSED 19 persons to have gathered and heaped the tyres both erected and others to prevent the demarcation as in their following assertions. WITNESS STATEMENT OF A3 … That he joined several other youths from Wokumagbe at the scene and our purpose was only to remove the tyres that had been used to demarcate the land which is under dispute between our two families. I did not take part in any burning of tyres. CAUTIONED STATEMENT OF A1….. “The chief of Wokumagbe Nene Adjorkey Siaw engaged me and Aaron to go to the land and gather all the erected tyres we went and did as the chief said…” …I and Aaron went to the site to gather some of the tyres…. Cautioned statements of A2 …I therefore decided to gather the erected tyres since that was the root of the matter. I kept gathering until I realized the tyres were set ablaze… “…I and Kartey Tsaanaa also gathered vehicle tyres in heaps to be sent home very suddenly the vehicle tyres were set ablaze …. I was able to retrieve two unburnt vehicle tyres and carried to Nene” Cautioned Statement A3 ….. Chief of Wokumagbe engaged me several others from Adjorkey family to go on his land and gather all vehicle tyres erected on the land… I performed my task by gathering some of the vehicle tyres but I did not carry some home. The Accused persons ought to have known that the complainant would resist their actions since he has not consented to the gathering of the tyres by them. Therefore, the outcome of their action was much anticipated. 20 It is a question of fact whether an event was reasonably and fairly caused by the ACCUSED ACT; The presence of the Accused persons and the Adjorkey family on the land on the day of the confrontation was needless. Reasons are that they have attached an injunction order from a previous High Court decision meaning an already existing injunction on the land. If the Sowu family have defied the orders of the High Court it does not lie in the powers of the Adjorkey family to confront them in this manner as though the Complainant has defied their orders. The remedy available to them was to cite the complainant for contempt of the Court. It was not the orders of the Nene Sowu that has been defied by the complainant by going on the land. The accused persons were engaged to gather the tyres on the land. Their presence and activities on the land that day were unlawful. 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. Prosecution must therefore establish that the unlawful damage was done intentionally. Section 11(1): Where a person does an act to cause an event or contribute to cause it, he intends to cause that event, even if he believed that event will not occur. If a person does an act for the purpose of causing an event or contributing to cause an event, then he/she intends to cause that event although in fact or in his belief or both, the act is unlikely to cause or contribute to cause the event. Section 11(2): 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. Section 11(3): Where a person did not take reasonable care in his act, such that an event wouldn’t have occurred if he had, is deemed to have intended to cause that event unless he did not intend to cause that event. 21 The Accused from their evidence on record set out to heap the tyres used for demarcation on the disputed land to stop the demarcation by complainant. They did so intentionally because they acted upon the instruction of Nene Siaw Adjorkey. The heaped tyres were seen in the video being set ablaze…how would Accused persons heaped the tyres but failed to ensure or take responsibility for the safety of these tyres. Their conduct made it easier for setting ablaze the tyres. That the act was unlawful was apparent from the explanation of unlawful damage in section 173 (1) of Act 29. This is because it should have been within their contemplation of the possible consequences of their actions. The Complainant insisted the Accused persons were directly involved in the burning of the tyres. They came to the land holding petrol sticks and matches to set the tyres they gathered ablaze. The Accused persons vehemently denied setting ablaze the tyres after they heaped or were still heaping. They asserted it was the mob who set the tyres they heaped ablaze and because they were many, they could not identify which of them specifically burnt the tyres. The accused pointed out to the Court that they were not captured in the video which was played in open Court among those setting the tyres ablaze. This evidence has now become prove of oath against oath with no other conclusive evidence to support either side. However, A2 directed the Court to the evidence of PW3 who confirmed he saw a mob on the land which attracted him to the scene. BY 2ND ACCUSED “The testimony of PW3, Nene Teye Sowu III, confirmed the fact that there was a mob on the land which attracted him to go closer to find out what was happening. “ If A2 wants to rely on this testimony of PW3 that means whatever PW3 saw happened on the land can be accepted as the true picture of the incident. 22 PW3. CROSS-EXAMINATION 1. “That all of a sudden, I saw heavy smoke at outskirts of Wokumagbe Township. On reaching a place close to the fire, I saw a group of people I can identify when seen. 2. That, I pleaded with my friend to stop and he did. When I got nearer to the scene, I saw Emmanuel Adjorkey bottle of petro and one Tetteh @ TT also with bottle of petro. 3.That I also saw Karteh Tsaanaa transferring fire from a heap of burning tyres to another heap of vehicle tyres. 4. I saw Aaron Adjorkey, Emmanuel Adjorkey, Tetteh @ TT and others heaping and grouping the tyres at the scene at different points. 5. After, they had finished heaping the tyres the said Aaron Adjorkey and Emmanuel Adjorkey started. Pouring the petro on the tyres and setting them ablaze. Q. The accused persons who are here did not burn any tyres. A. I saw the two gathering tyres and burning them. If A2 corroborated the evidence of PW3 which confirms that there was a mob on the land it goes to the fact that the evidence of PW3 is credible for the Court. Hitherto the Court will therefore admit that the evidence of PW3 is the true picture of what he actually witnessed. A2 at this juncture cannot approbate and reprobate the same evidence. He cannot accept the evidence and reject the unfavorable aspect to him. Since A2 believes the story of PW3, same is admitted by the Court of all the evidence adduced by PW. That was where the Court also was convinced all accused persons took part in the burning of the tyres as narrated by PW3 in his evidence. CONCLUSION 23 In applying the above authorities to the instant case, I find and hold that the prosecution succeeded to prove the guilt of the accused persons, KAATEY TSAANAA, AARON, NARTEY ADJORKEY and EMMAUEL ADJORKEY on the counts 1 and 2 beyond reasonable doubt. The Accused are thus convicted on the one count each of conspiracy to commit crime to wit causing unlawful damage and causing unlawful damage respectively. They are found guilty on both counts accordingly. The Accused persons are remanded into police custody to reappear on the 22nd July, 2025 for sentencing. MITIGATION Counsel for Accused prayed the Court for a plea of mitigation. That the Accused person and the Complainants are from the same family and are in laws to each other. That the incident was more of chieftaincy coupled with land dispute. A1 is the stool father of the Wokumagbe. A1 and A2 are between 30 years who the Court gave them opportunity to reform. Accused persons voluntary submitted to the prosecution and are remorseful for their actions. Counsel submitted the Court considers a lenient sentence. BY COURT After considering the plea of mitigating Counsel for Accused persons and for the fact that the Accused person are not known to the law and are also remorseful. Accused person are hereby sentenced to pay a fine of 150 penalty units each to C1 and C2 in default serve 6 months in prison terms I.H.L. Sentenced are to run concurrently. Complainant can lay claims in civil liability against the Accused if he is mindful for the amount involved in the unlawful damage. (SGD) VICTORIA A. GHANSAH (MAGISTRATE) 24 25