The Republic v Hakim and Others (B4/13/24) [2025] GHADC 240 (27 May 2025)

SITTINGINTHE JUVENILECOURT ATWENCHI IN THEBONO REGION ON TUESDAY THE27TH DAYOF MAY,2025BEFORE THE PANELCONSTITUTEDBY HIS WORSHIP ISSAHABDULWAHAB (CHAIRMAN), REV.DR. JOHN KWADWO MENSAH(PANEL MEMBER)ANDABDULAIJIMBA IBRAHIM (SOCIAL WELFARE OFFICER/PANELMEMBER) CASE NO: B4/13/24 THEREPUBLIC VRS 1.WAHIDHAKIM 2.HAKIMKABIRU 3.CLETUS BANKUMA JUDGEMENT The offenders herein were arraigned before this court charged with the offence of assault, contrary to section 84 of the Criminal and Other Offences Act 1960 (Act 29). The offenders pleaded notguilty tothe chargeafter same was readand explained tothemin twi. 1 From the particulars of the offence and facts as presented by the prosecution, the following legalissues were setdown fortrial; 1. Whetherornot theoffenders/accused forcibly touched the complainant. 2. Whetherornot theoffenderstouched thecomplainant without hisconsent. 3. Whetherornot theconduct ofthe offenderswere unlawful. 4. Whetherornot theactionofthe accused constituted anassault. The facts of the case as presented by the prosecution are that, the complainant is one Takyi Abeam Emmanuel, aged 27yeaars and is a banker and lives at Asuogya in Wenchi. That the accused persons are Wahid Hakim (A1), 17years; Kabiru Hakim (A2), 17years and Cletus Bankuma (A3), a mason and 17years. That the accused live at Bepotrim near Wenchi. That on the 29th day of February, 2024 at about 5:30pm, complainant visited his father’s parcel of land at Beposo near Wenchi and met the accused working on the land. He then tried to find out from the accused why they were on the land but the accused ignored the complainant. That the complainant then asked the accused to stop the work. That the accused went on rampage, attacked and assaulted him (complainant). He then lodged a complaint with the police against the accused. That the police arrested the accused and cautioned them but they denied the offence in their caution statements. They were however charged with the offence after police investigations. The evidence of the prosecution in establishing the charge consisted of the testimonies of their three(3)witnesses including thepolice prosecutorofthecase. 2 The first prosecution witness (pw1) said he is Takyi Abeam Emmanuel and he is from Beposo inWenchi and is abanker. That he knowsthe accused persons. Pw1 said his father Nana Takyi Abeam has some building plots at Beposo and he visited one of the plots on the 29th day of February, 2024 and met the accused persons were in the process of putting up a building on it. That he greeted them and tried to find out who asked them to work on the land. That the accused ignored him (pw1) and so he asked them to stop the work and call he one who asked them to work. That the accused did not stop and one of them pulled a cutlass and pointed at him (pw1) and said; “if you do not go away, I will cut you”. Pw1 said he called the father on phone and informed him and the father told him (pw1) he also visited the land earlier and saw the situation and when he asked them to stop they insulted him. Pw1 said the father came to the scene and when they saw him, they insulted the father. That the accused also assaulted him (pw1) and caused damage to his Huawei phone. That one of them pushed a wheelbarrow and hit him hardwith it and said he should clear offfor themto dotheir work. The second prosecution witness (pw2) was one Nana Takyi Abeam, a native of Beposo near Wenchi who said he is afarmer. That he knows the complainant as well asthe accused persons herein. That the complainant (pw1) is his son. Pw2 said on the 29th day of February, 2024, he visited his land at Beposo and met the accused working on the land. That he explained to the accused that the land belongs to him and so they should stop work but they did not listen and insultedhim (pw2). That the accused told him to contact one Charles if he has any problem with them working on the land. That Charles sold the land to them. Pw2 said he once litigated with the said Charles 3 over the land and the land was given to him (pw2). Pw2 said the accused still worked on the land. Pw2 said on his way home pw1 called him on phone and said he saw some people working on the land and that they were attacking him (pw1). Pw2 said he returned to the land and when they saw him they started insulting him (pw2) and pw1. That they pulled a knife at them and pounced on pw1 and beat him up and also caused damage to his (pw1) phone. That they intentionally pushed a wheelbarrow to hit pw1 and said he should clear off for them to do their work. The third and final witness for the prosecution (pw3) was No. 11626 PW/Constable Maureen Dabuoofthe Wenchi District CID. That she knowsthe accused aswell as theotherprosecution witnesses. That onthe 29th day of February, 2024, this case was referred toher for investigation. She then issued police medical form to the complainant to attend hospital. She also obtained a statement from complainant and the available witness. She then arrested the accused persons and took investigation caution statements from them. She was later instructed to charge the accused with the offence after investigation. The caution and charge statement for A1 (Wahid Hakim) was admitted and marked as ‘A’ and ‘A1”, that of A2 (Hakim Kabiru) was admitted and marked ‘B’ and ‘B1”, then the caution and charge statements of A3 (Cletus Bankuma) was admitted and marked ‘C’ and ‘C1” respectively. Pw3 said her investigation revealed that the complainant’s father (pw2) and one Charles had a dispute over land and which was resolved with pw2 given a different land and that it included the portion of the land that is in contentionhere. 4 At the close of the case for the prosecution, the accused were call upon to open their defence. The first accused person (A1) said he is Hakim Wahid and is a farmer and lives at Bepotrim. That he (A1) got to know the complainant the day he came and met them (accused) on their plot. That onthe said day he (A1) working with A2 and A3 when the father of the complainant (pw2) came to the site. That pw2 upon reaching there started shouting that; “who are those”? That pw2 rained insults and curses at them (accused). That pw2 fetch the sand and used same to invoke curses on them. When they asked pw2 why he was doing that, pw2 said the land belongstohim (pw2). That pw2 then went and called the son who is the complainant (pw1) and pw1 also came on a motor bike. That when pw1 got there he then confronted them (accused) and said what his (pw1) father (pw2) told them they did not listen. That pw1 started shouting but they (accused) did not say anything to pw1. A1 said he at the time was pushing the wheelbarrow with concrete in it. Pw1 then rushed on him (A1) and tried to forcefully take the wheelbarrow from him (A1). A1 said he also refused to give the wheelbarrow to pw1. That in the struggle with pw1,pw1 tripped ontothe ground and some ofthe concretepoured onhis leg. A1 said he then toldA2 tolet them goand inform thesaid Charlesabout what pw1 was doing. They thenwent and informed the said Charles and he said it was late and so they should go home. A1 said they went back to pack their things and met pw1 there again and he started insulting them again. A1 said pw1 destroyed their water container and their water hoose. The next day A2 and one man went and reported the matter to the police that pw1 destroyed their things. The CID then came and took pictures, and told them to go on with their (accused) work. A1 said 5 whiles they were there, pw1 also came with a police woman and pointed at them and they werearrested. That atthe police station, they gave statementstothepolice. The second accused (A2) person said he is Hakim Kabiru and that he lives at Bepotrim near Wenchi and is a farmer. A2 said his father bought a building plot and engaged some masons to work for him. The father then asked them to go and help the masons. That they were then working on the plot when pw2 came and started cursing them, and said they should stop the work. A2 said they told pw2 they will not stop and that he (pw2) should go and see their father.That pw2 thenmade aphone calland notlong the son(pw1) came tothescene. That when pw1 came there, he did not greet them and rather asked who engaged them to work onthe land. That pw1 said they should stop the work and they told pw1 his father (pw2) had been there and said the same thing but that they (accused) had mixed some concrete and were going to use same. That A1 had the wheelbarrow which he was pushing with concrete in it. There pw1 said he will not allow A1 and held the wheelbarrow. That pw1 then started struggling with A1 and in the process pw1 tripped and fell and the water in the wheelbarrow pouredonhis (pw1) leg. That pw1 then caused damage to their water container and thee hoose. They then went and informed the one who sold the land to their father. He then took them to the Divisional Police Station toreport thecase. The police went withthem tothe scene andsaid they should dotheir work.Thenlater,pw1 also came therewithpolice to arrest them. 6 The third accused (A3) was Bankuma Cletus. He said he lives at Tromeso near Wenchi and is a mason. That he never assaulted anyone. That they were on the plot working when pw2 came and told themto stopwork. That pw2 insulted them and invoked curses onthem. A3said they did not say anything to pw2. That pw2 then made a phone call to someone and not long pw1 who is the complainant and son of pw2 came to the scene. That pw1 asked them to stop the work. They then told pw1 they had mixed the concrete already and so he should let them use it before as it would go waste. That pw1 said he will not allow them. That pw1 then held the wheelbarrowwhich A1 waspushing. In the process of trying to stop A1, pw1 fell down. Then the concrete in the wheelbarrow poured away. That they toldpw1 to let themcall the owner ofthe plot. They left and went back the next day to take their things but saw that pw1 broke their water container and hoose. They were then taken to the Wenchi police station to report the matter. Then the complainant (pw1) broughtthe police toarrest them. The sole witness for the accused was one Katu Jiwa (dw1). He said he lives at Nsuta and is a mason. That he knows the accused persons. On the day of the incident, they were on the land working when pw1 came and said the land belong to them. Dw1 said they had mixed some concrete at the time so they pleaded with pw1 to let them use it. There A1 had the wheelbarrow which contained the concrete. That pw1 then stood in front of the wheelbarrow and held same to take it from A1. That the two of them (A1 and pw1) then started pulling the wheelbarrow. In the process pw1 tripped and fell to the ground and the concrete poured on him (pw1). That the complainant (pw1) then reported to the police that they beat him (pw1). 7 The police then arrested his (dw1) brothers. Dw1 said pw1 came there to pour their water away. The law imposes the burden of proof in criminal trials on the prosecution. This burden of proof in the sense of the burden of establishing the guilt of the accused is on the prosecution and failure on the part of the prosecution to discharge that, that must lead to the acquittal of theaccused. This principle of the law was espoused by the Supreme Court in the case of Donkor Vs The State [1964] 2 GLR, 598 SC. This standard burden of proof required of the prosecution is provided by section 11 (2) of the Evidence Act 1975 (NRCD 323). The section 11 (2) provides that; “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”. Having therefore evaluated the evidence of the prosecution in proof of the charge and in the light of the legal burden imposed on the prosecution, it is instructive to make the following observations; Firstly, that the prosecution stated that the accused persons were on a plot of land doing some construction work when the complainant went there and the alleged assault happened. Whiles the evidence before this court indeed shows that pw1 (who is the complainant) when to meet the accused on the said plot working, what on the contrary has been established by the 8 evidence is that the complainant’s (pw1) presence on the plot where the accused were doing their work was rather a follow-up visit by the complainant (pw1) after his father (pw2) had earlier gone to the land and confronted the accused over the work on the land. The evidence showed that after the complainant’s father (pw2) went and failed to stop the accused from working on the land, he (pw2) then informed the son (pw1), who is the complainant and that waswhen the complainant (pw1) also went tothe land andequally confronted the accused. Secondly,it must be noted that,the complainant (pw1), when he gottothe scene instructed the accused to stop work but the accused refused to do so and rather directed the complainant (pw1) to see their father who had engaged them to work. This was the testimony of A1 and which was corroborated by the other accused persons (A2 and A3) as well as the sole witness of the accused, Katu Jiwa (dw1). They all testified that they told the complainant (pw1) just as they earlier toldhis father (pw2) to go and see their father who engaged them towork orto see one Charles they said sold the plot to their father. This the complainant (pw1) did not listen and insisted thatthe accused stopthe workbut the accused also refused tostopwork. It is again instructive to observe that the complainant (pw1) after he failed to get the accused stop work then tried to physically and violently restrain the accused from working, when he (pw1) held the wheelbarrow which A1 was pushing at the time with concrete in same. This action by the complainant (pw1) was completely unwarranted and unnecessary. The evidence clearly showed that when the complainant (pw1) held the wheelbarrow, A1 also resisted the attempt by pw1 to take the wheelbarrow and that resulted in some struggle for the control of the wheelbarrow resulting in pw1 falling to the ground. Having already described this action 9 of pw1 as unwarranted, I must also state without any fear of contradiction that pw1 on that occasion was the aggressor as he was the one who held the wheelbarrow. So I do not see how he could be theone assaulted again. Also, this court is of the view that if the complainant (pw1) tried to talk to the accused to stop work without success, there are other legal means to have explored to get them stop but certainly not to engage in a physical confrontation. This even against the back drop of the complainant’s (pw1) father’s (pw2) earlier visit to the scene and when he also tried to stop the accused but failed. Clearly, the obvious and more logical conclusion to be drawn from the visit by the complainant (pw1) and his subsequent confrontational conduct is that he was angry that the accused did not heed to his father’s instructions. So he (pw1) came to show them where powerlies. This wasunwarranted and was only arecipe ofchaos. Finally, it is important to observe that, the accused were the ones on the land and constructing their foundation as even noted by the prosecution. So if it was the case of the complainant (pw1) that the accused should not continue the work, a civil action against them could have been commenced and if possible request the court to injunct the accused in the interim from continuing with the work. However, seeking to physically stop them by trying to take their wheelbarrowfromthemwas anact whichin itselfwas unlawful. Fromthe evidence asadduced before this court therefore,I found the following asfacts; 1. That the accused herein were on a plot of land doing their construction work when the complainant hereinwent and told themtostopthe workbut the accused refused. 10 2. That this was after the complainant’s father (pw2) earlier went and told the accused to stopbut theydidnot stop. 3. That the complainant’s father (pw2) then informed the complainant and he went there angrily and told the accused to stop but they refused. The complainant tried to physically and violently stopthe accused by holding the wheelbarrowA1was pushing. 4. That it was in the process of trying to take the wheelbarrow that the complainant tripped and fellandnot thathe was assaulted by anyone. 5. That the actionof A1 was a resistance to the attempt by the complainant totake his (A1) wheelbarrow. Havingalso stated the lawregarding tothe burdenontheprosecution toprove the charge,it is equally important to state that in a criminal trial such as this, the law is also that the prosecution in any criminal trial must prove h guilt of the accused with the degree of certainty thatis required by law. This principle oflaw was statedinthe case ofYeboahVs The Republic [1972] 2GLR 289. It is also instructive to state that the offence of assault is created by section 84 of the Criminal Offences Act1960(Act 29). Section84 states; “A person who unlawfully assaults another person commits a misdemeanor”. Then section 86 defines assault and battery as; “A person makes an assault and battery on another person, if without the other person’s consent and with the intention of causing harm, 11 pain, or fear, or annoyance to the other person, or of exciting the other person to anger, that personforcibly touches theotherperson”. From the provisions of section 86 (1) therefore, the prosecution ought to have proved the essential elements of the offence of assault. These are the accused touched the complainant forcibly; that they touched the complainant without his consent; and that the accused did that withthe intentionofcausing painto the complainant orto excite him toanger. However, on the contrary, the evidence before his court showed it was the complainant who held the wheelbarrow that A1 was pushing and tried to take it from A1. That A1 resisted the attempt by the complainant and held onto the wheelbarrow which resulted in the two struggling for control of the said wheelbarrow. It was in the said struggle that the complainant tripped and fell. Ido not see howthis could be anassault onthe complainant by A1. From the evidence as adduced and the law as stated above, it is the valued conclusion of the court that the prosecution has failed to prove the charge against the accused and as required by law.The accused personsaretherefore notguiltyofthe offence. The reasonsfor theaboveconclusion are; 1. That the accused were on a land they claimed their father bought and were working on same. 2. That the complainant came and told them to stop work but they refused and this was afterthe complainant’s fatherearlier also failed to stoptheaccused. 12 3. That the complainant (pw1) then tried to physically restrained the accused by trying to taketheir wheelbarrowwhichwas inpossessionofA1at the time. 4. That A1 also refused to let pw1 take the wheelbarrow and the two started pulling it and pw1tripped in the process and fell. 5. That the evidence showed the complainant (pw1) as the aggressor and there was no act ofassault fromA1. 6. That the prosecution failed to prove the charge beyond reasonable doubt and as required by law. The accused personsherein are accordinglyacquitted and discharged. ………………..………. ISSAHABDUL –WAHAB (CHAIRMAN/MAGISTRATE) ……………….......................... ………………………….. REV. DR. JOHNKWADWO MENSAH ABDULAIJIMBA IBRAHIM (PANEL MEMBER) (PANEL MEMBER) 13