S v Agyapong (B3/21/23) [2025] GHADC 177 (16 June 2025)

IN THE DISTRICT COURT (1), MADINA, CORAM HER WORSHIP ROSEMARY ABENA GYIMAH HELD ON MONDAY, THE 16TH DAY OF JUNE 2025 SUIT NO: B3/21/23 THE REPUBLIC VRS. KWESI AGYAPONG …………………..…………………………………………………………………………… JUDGMENT ………………...……………………………………………………………………………… The Accused person has been arraigned before this Honourable Court in respect of two offences namely; Threat of Harm contrary to Section 74 of the Criminal Offences Act, 1960 (Act 29) and Stealing contrary to Section 124 (1) of the Criminal Offences Act, 1960 (Act 29). The Accused person pleaded not guilty to all the charges against him and the Prosecution on the 27 October 2023 opened its case. Prosecution filed six (6) witness statements however the Prosecution only called four (4) witnesses to give evidence in support of its case; PWI; the Complainant, PW2; Jemima Eugenia Oduro Donkor, a friend to the family of the Accused person and the Complainant, PW5; Mumuni Mukaila, a scrap dealer at Pantang and PW6; the Investigator in this matter. On 16 September 2024 Prosecution closed its case. Upon the Court ruling that there was a case for the Accused person to answer, the Accused person opened his defence on 24 February 2025. The Accused person gave evidence by himself and called two (2) witnesses and closed his case on 16 May 2025. 1 The case of the Prosecution as can be gleaned from the Prosecution's facts as contained in the brief facts attached to the charge sheet filed on the 17 February 2023 are that, the Complainant; Rhoda Appiah Mensah is an educationist and lives at Old Ashongman and owns a nursery school on her property. The Accused person is a vulcanizer and resides at Agbogba Assemblies. That both the Complainant and the Accused are siblings. According to the facts by the Prosecution, their mother upon her demise left them an apartment and that due to persistent quarrels between them, the property was shared between the Accused person and the Complainant, with the Complainant owning the nursery school. On 5 October 2022, the Complainant received a text message from the Accused person to wit; "if you don't want problem, don't step your foot on the land again.” Prosecution further states that, on 9 October 2022, Complainant went to the school and found out that the main entrance to the school's padlock was broken and the main gate was opened. A tricycle was packed in the school's compound which belonged to the Accused person and some items valued at Forty Two Thousand Ghana Cedis, One Hundred and Thirty Four Ghana Cedis (GHC42,134.00) were missing in the school. The incident was reported to the police and the Accused person was arrested and charged with the said offences for which he is standing trial. APPLICABLE LAWS In summary criminal trials of this nature at the end of an Accused Person’s case and in order to sustain a conviction of the Accused person, the Court has to make a determination as to whether the Prosecution has proved the offence(s) against the Accused beyond reasonable doubt. In the Republic v. Godwin Komla Amegbe & 15 Ors. (2017) JELR 107121 (HC) coram Justice Afia Asare- Botwe (Mrs.) the burden of proof in criminal trials was stated as below; THE BURDEN OF PROOF 2 THE LAW AND THE EVIDENCE REQUIRED The required standard of proof is codified under the Evidence Act (NRCD 323) in at least three sections; Sections 11(2), 13(1) and 22 which are reproduced below; “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) (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.” “22 In a criminal action a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond reasonable doubt, and thereupon, in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to the existence of the presumed fact.” In the book, Essentials Of The Ghana Law Of Evidence, S.A Brobbey deals extensively with the standard of proof required in criminal trials from pages 48 to 55. He states inter alia; “Proof beyond reasonable doubt does not mean that there should be no doubt whatsoever in the case presented by the prosecution. It means that by the end of the trial, the prosecution must prove every element of the offence or the charge (but not all the facts) and show that the defence is not reasonable…… The consideration for the principle of proof beyond reasonable doubt can be illustrated this way: If there is any element of the charge which is essential for 3 the accused to be convicted, that element should be established to the satisfaction of the trier of facts in such a manner that a reasonable mind could conclude that the accused is guilty of the offence or that the existence of the facts constituting the charge is more probable than its non- existence.” What does Proof Beyond Reasonable Doubt really entail? In Osei v. The Republic [2009] 24 MLRG 203, C.A; it was held, confirming the long- held view that; “proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The Court would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence, ‘of course it is possible, but not at all probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” Also, in The Republic v. Eugene Baffoe Bonnie (2020) JELR 80375 (HC) on what proof beyond reasonable doubt entails the Court per Justice Eric Kyei Baffour stated as below; As far as the standard of reasonable doubt is concerned there is no room for an accused to be convicted on the basis that the charges or the allegations against him might be true. If there is such a possibility then what it means is that prosecution has not made out a case or has not proved its case beyond reasonable doubt. There could be a doubt only that the doubt should not affect a reasonable person’s belief regarding the guilt of an accused. It is on that score that Lord Denning notes in MILLER v. MINISTER OF PENSIONS [1947] ALL ER 372 @ 373 that it is needless for prosecution to attempt to proof the guilt of the accused beyond a shadow of doubt since that standard will be impossible to attain and were the law to allow that there will be the admission of fanciful 4 possibilities to deflect the course of justice. In effect and in simple language the standard expected of prosecution by reasonable doubt means that by the end of the trial prosecution must prove all the elements of the offences charged and the explanations offered by the accused must be one that is not reasonable probably. See Justice Brobbey in his work Essentials of Ghana Law of Evidence at pages 48-55. Lord Chief Justice of the King’s Bench from 1822 - 1841, Charles Kendal Bushe put what is reasonable doubt in a much more elegant language as follows: “... the doubt must not be light or capricious, such as timidity or passion prompts, and weakness or corruption readily adopts. It must be such a doubt as upon a calm view of the whole evidence a rational understanding will suggest to an honest heart the conscientious hesitation of minds that are not influenced by party, preoccupied by prejudice or subdued by fear.” See also OSEI v. THE REPUBLIC [2009] 24 MLRG 203, CA; ABODAKPI v. THE REPUBLIC [2008] 2 GMJ 33; REPUBLIC v. UYANWUNE [2013] 58 GMJ 162; TETTEH v. THE REPUBLIC [2001-2002] SCGLR 854; DEXTER JOHNSON v. THE REPUBLIC [2011] 2 SCGLR 601; FRIMPONG A.K.A IBOMAN v. REPUBLIC [2012] 1 SCGLR 297. The Accused person is however not under any obligation to prove his innocence as the burden of proof is on the Prosecution. All that an Accused is required to do when invited to open his defence is to raise reasonable doubt regarding his guilt. It is only when the defence raised is not reasonably probable that an Accused would be convicted. The Supreme Court aptly put it in the case of Mallam Ali Yusif v. The Republic [2003-2004] SCGLR 174 that: “the burden of producing evidence and the burden of persuasion are the components of 'the burden of proof.' Thus, although an accused person is not 5 required to prove his innocence, during the course of his trial, he may run a risk of non-production of evidence and/or non-persuasion to the required degree of belief, particularly when he is called upon to mount a defence” The Court of Appeal per Justice Dennis Adjei J. A. in the case of The Republic v. Francis Ike Uyanwune [2013] 58 GMJ 162, C.A, held that; “The law is that the prosecution must prove all the ingredients of the offence charged in accordance with the standard burden of proof; that is to say the prosecution must establish a prima facie case and the burden of proof would be shifted to the accused person to open his defence and in so doing, he may run the risk of non- production of evidence and/ or nonpersuasion to the required degree of belief else he may be convicted of the offence. The accused must give evidence if a prima facie case is established else he may be convicted and, if he opens his defence, the court is required to satisfy itself that the explanation of the accused is either acceptable or not. If it is acceptable, the accused should be acquitted, and if it is not acceptable, the court should probe further to see if it is reasonably probable. If it is reasonably probable, the accused should be acquitted, but if it is not, and the court is satisfied that in considering the entire evidence on record the accused is guilty of the offence, the court must convict him. This test is usually referred to as the three- tier test”. As noted the Court will fail to protect the community if it admits fanciful possibilities to defect the course of justice as proof beyond reasonable doubt does not mean proof beyond a shadow of doubt – see Osei v. The Republic and The Republic v. Eugene Baffoe Bonnie, supra. EVALUATION OF THE LAW AND ANALYSIS The Charge of Threat of Harm 6 The Accused person is before this Court on a charge of Threat of Harm contrary to Section 74 of the Criminal Offences Act, 1960 (Act 29). For ease of reference and study Sections 74 and 76 of the Criminal Offences Act, 1960 (Act 29) is as below; 74. Threat of harm A person who threatens any other person with unlawful harm, with intent to put that person in fear of unlawful harm commits a misdemeanour. 76. Definition of unlawful harm Harm is unlawful which is intentionally or negligently caused without any of the justi-fications mentioned in Chapter One of this Part. Sections 74 and 76 of Act 29 are under Chapter three of Part Two of Act 29. As such the justifications referred to under Section 76 of Act 29 are stated under Sections 30 and 31 of Chapter One of Part Two of Act 29 as follows; PART TWO Offences against the Person CHAPTER ONE Justifiable Force and Harm 30. Justification for force or harm (1) For the purposes of this Act force or harm iS justifiable which is used or Cansed in pursuance of a matter of justification, and within the limits that are provided for in this Chapter. (2) In the remainder of this Chapter, expressions applying to the use of force apply also to the causing of harm, although force only may be expressly mentioned. 31. Grounds on which force or harm is justified 7 Force may be justified in the case and in the manner, and subject to the conditions, provided for in this Chapter, on the grounds (a) of express authority given by an enactment; or (b) of authority to execute the lawful sentence or order of a Court; or (c) of the authority of an officer to keep the peace or of a Court to preserve order; or (d) of an authority to arrest and detain for felony; or (e) of an authority to arrest, detain, or search a person otherwise than for felony; or (f) of a necessity for the prevention of or defence against a criminal offence; or (g) of a necessity for defence of property or possession or for overcoming the obstruction to the exercise of lawful rights; or (h) of a necessity for preserving order on board a vessel,; or (i) of an authority to correct a child, servant. or other similar person, for mis-conduct: or (j) of the consent of the person against whom the force is used. It is the Prosecution's case that the Accused person did threaten the Complainant with words to wit “if you don't want problem, don't step your foot on the land again” with the intent to put the Complainant into fear of harm. To prove this, Prosecution tendered in Exhibit J; a picture purporting to be a whatsapp conversation between the Accused person and the Complainant. In Exhibit J under 5 Oct is stated as below; “I want to tell you that if you don’t want problem don’t swept foot on the land again.” Prosecution also tendered in Exhibit E; the investigation caution statement of the Accused dated 30 November 2022. In Exhibit E the Accused person stated the following from the last but sixth line of the second page; 8 “....I sent her a text message that should deceit from what she is doing to my tenant and that she should stepped a foot on my property again…..” Again, when the Accused was subjected to cross examination by Prosecution on the subject on 24 February 2025, the following ensued; Q. On the 5th of October 2022 you gave a message to your sister the Complainant that she should not step a foot on her own premises if she does not want any problem is that so? A. No this is not true. I had then come to Madina with my wife. When we returned home my daughter informed me that the Complainant had come into my room with the police. The document which they left behind which is in the company of my lawyer we followed it to headquarters. So when we returned from the police station I went to church and caused my church member to use my phone to send a message to the Complaint that the Complainant should not step a foot in my house any time she comes. Q. And why did you send the message? A. It is because the land had been shared. Previously, both of us were using one gate and this is the reason why I sent a message to her that anytime she comes unto the land she should not step into my house again because I do not have anything doing with her. From the evidence before this Court and the events chronicled by the Accused person leading up to the Accused person sending a message to the Complainant, the Accused person at all times has maintained that the message was sent to the Complainant to desist from stepping unto his portion of the property or premises that had been shared and allocated to him as in his own words; “I do not have anything doing with her.” I 9 find that the Accused person’s evidence on the subject is indicative of an act of a necessity for defence of his property or possession or for overcoming the obstruction to the exercise of his lawful rights as stated under Section 31(g) of Chapter One of Part Two of Act 29. In the circumstance I find that in respect of Count 1, the Prosecution has not proved its case against the Accused person beyond reasonable doubt. The Accused is hereby found Not Guilty on Count 1 and accordingly acquitted and discharged in respect of Count 1. The Charge of Stealing The Accused person is again before this Court in respect of a charge of Stealing contrary to Section 124 (1) of the Criminal Offences Act, 1960 (Act 29). It is Prosecution’s case from its statement of offence as stated on the charge sheet before this Court that on 5 October 2022 at Madina in the Greater Accra Circuit and within the jurisdiction of this Court, the Accused did steal some items from the school premises of Rhoda Appiah Mensah including seventy (70) metal/hard plastic chairs and eighty (80) metal/fibre tables. In proving its case against the Accused person the Prosecution tendered in Exhibit G which is a picture of the three (3) chairs which were in the Complainant’s school and found at the shop of PW4. Also, PWI, PW2, PW5 and PW6 all gave corroborative evidence that PW1 and PW2 went to PW5's shop where they found the said chairs in Exhibit G. I find the testimony of PW5 in this case to be very vital as in his evidence before this Court PW5 indeed admits that the chairs in Exhibit G were found in his shop and that same were sold to one of his boys in his absence. PW5 stated on oath that after PW1 and PW2 had on one (1) occasion come to his shop to find the chairs and left their contact and after the police had also on another occasion invited him to the police 10 station to give his statement he, PW5, took it upon himself to find out who sold the chairs to his boy and for how much. PW5 states that he was informed by his boy that a vulcanizer sold the chairs to him. As a result PW5 states that he visited the Accused person on the subject of the chairs in Exhibit G and the Accused person confirmed to him (PW5) that he (Accused person) was the one who sold the three (3) chairs to PW5’s boy. PW5’s testimony therefore beyond corroborating that the said chairs in Exhibit G were found in his shop, confirms that the Accused person indeed admitted to PW5 that he sold the three (3) chairs to PW5’s boy. I find that the evidence of PW5 was not in any way contradicted or controverted or tainted by way of cross examination. As earlier noted by this Court in its ruling on 9 December 2024, that there was a case for the Accused person to answer, the Accused person in his statement to the police dated 19 January 2023; Exhibit E1 on record, at lines six (6) to ten (10) of the second page stated as below; “....I was clearing the gutter infront of my house when the scrap dealers came to pass and saw three chairs and that time I saw them taking it away but they dashed me GHC10.00 which I took and they also pick some plastic chairs, plastic rubbers and metallic plast….” Again, the Accused person called his wife DW1 to give evidence on his behalf. On 4 April 2025 during cross examination of DW1 by Prosecution the following ensued; Q. Will you also be surprised to hear that the Accused person mentioned in his statement to the police that the scrap dealers dashed him GHS10.00 for the chairs? A. Yes I heard that and it is true. 11 Q. You heard it from where? A. My husband, the Accused person informed me. In an attempt to raise doubt in the mind of the Court, the Accused person with leave of the Court, also subpoenaed one Elder Emmanuel Yeboah; DW2, to give evidence on his behalf on the basis that at one point in time the Complainant caused the said Elder to pick up some chairs from the Complainant’s school and that the said chairs in Exhibit G were amongst those chairs. On 12 May 2025 during the evidence in chief of DW2 on the subject, DW2 answered as below; Q. Respectfully. if the witness could be shown Exhibit G. Now are the chairs in Exhibit G part of the chairs that Complainant instructed you to move from the school's premises? A. These were not part. As I said earlier it was an office table and a chair. Q. Now did you see the chairs as contained in Exhibit G in the school's premises when you went there to pick the table and the chair as you have told this Honourable Court? A. Yes. The case of the Accused person dealt a heavier blow when DW2 further gave evidence on the said date as follows; Q. Now if you say the place was scattered, do you mean to say that it was scattered as an attempt by the Complainant; Rhoda Appiah Mensah, to move the items from the premises of the school? 12 A: No but to my knowledge, there was this issue between the Complainant and the Accused Person and the Complainant so I believe that the Accused Person went to the school premises to scatter the school items. Q: Is it the Complainant who told you that the Accused Person went to the school premises to scatter the said school items or you saw the Accused Person enter the school premises and in your own words "scatter school items"? A. It was not the Complainant who informed me about the issue of scattering school items but on a regular basis I used to visit the school and because I am an elder of the Church of Pentecost I tried to engage in amicable settlement between the Complainant and the Accused Person. At a point the Accused Person because of misunderstanding decided to scatter the place to discontinue school progress. The Accused Person confirmed to me that because he was not agreeing to the arrangement made by the kinsmen who at a point came to demarcate the place so he decided to make the place uncomfortable for school progress. DW2 beyond clearing the doubt the Accused person sought to create on the nature of the items he (DW2) was asked by the Complainant to pick up from the Complainant’s school also gave evidence to this Court that the Accused confirmed to him that he had decided to make the Complainant's school uncomfortable for school progress because he was not agreeing to the arrangement made by the kinsmen who at a point came to demarcate the place. DW2 may best be described as an adverse witness to the Accused person’s case but one whose testimony is considered favourable to the Court as I find that DW2 greatly aided this Court in its findings on Count 2. Finally, in another failed attempt to cast doubt on Prosecution’s case against him, the Accused person during final cross examination on 4 April 2025 stated as follows; 13 Q. Have a look at Exhibit G and tell the Court whether the chairs in the picture; Exhibit G are broken chairs. A. No please, these are not the chairs that were picked up by the scrap dealers. The chairs the scrap dealers took were three (3) broken plastic chairs and these were chairs for little children. The Complainant intentionally hid somewhere and took these pictures. After the Accused person had clearly admitted in Exhibit E that the scrap dealers picked up three (3) chairs, dashed him Ten Ghana cedis (GHC10.00) and that the scrap dealers also picked some plastic chairs, plastic rubbers and metallic plast, clearly distinguishing between the three (3) chairs and other plastic chairs which were picked up by the scrap dealers, I find the testimony of Accused person as stated above to be an afterthought. It is important to note that the Accused person in respect of Count 2 is before this Court for stealing some items from the school premises of the Complainant including seventy (70) metal/hard plastic chairs and eighty (80) metal/fibre tables. However I find that Prosecution was able to adduce evidence to establish beyond reasonable doubt that the Accused person stole the three (3) chairs in Exhibit G, nothing more, nothing less. As such even though Count 2 is in respect of Stealing some items from the school premises of the Complainant including seventy (70) metal/hard plastic chairs and eighty (80) metal/fibre tables, the Accused person is hereby found Guilty in respect of stealing the three (3) chairs in Exhibit G in accordance with Section 154 of the Criminal Offences Procedure Act, 1960 (Act 30). CONVICTION AND SENTENCE In conclusion on the totality of the evidence before this Honourable Court, I find that Prosecution has indeed proved beyond reasonable doubt the Accused person stole the 14 three (3) chairs in Exhibit G, the Accused person is accordingly convicted in respect of same. I have considered the fact that the Accused person is a first time offender, the nature of the items stolen and the fact that the items stolen were retrieved by the police and I hereby sentence the Accused person to one (1) day imprisonment and to pay a fine of four hundred (400) penalty units, in default, one (1) month imprisonment. The Accused person is also ordered to compensate the Complainant with an amount equivalent to one hundred (100) penalty units in accordance with Section 148 of the Criminal Offences Procedure Act, 1960 (Act 30). The Accused person and the Complainant being siblings who appear to be estranged over the property of their deceased mother and both parties also being Christians, I will like to end this judgment with the admonishment in Romans 12:18 of the New King James Version of the Bible as follows; “If it is possible, as much as depends on you, live peaceably with all men.” SGD H/W ROSEMARY ABENA GYIMAH 15