S v Wahab and Another (39/25) [2025] GHADC 110 (30 April 2025)

IN THE DISTRICT COURT LA ACCRA HELD ON WEDNESDAY 30TH APRIL, 2025 BEFORE HER WORSHIP ADWOA BENASO ASUMADU- SAKYI SITTING AS MAGISTRATE CASE NO: 39/25 THE RPUBLIC VRS 1. WAHAB ABDUL 2. SAMED IDDRISU ___________________________________________________________ ACCUSED PERSONS present PROSECUTION: Chief Inspector Gladys Aikins Asare for the Republic ___________________________________________________________ JUDGMENT ___________________________________________________________ INTRODUCTION The accused persons were arraigned before this Court on the charges of Conspiracy to commit crime namely: Assault contrary to section 23(1) and section 84 of the Criminal Offences Act, 1960 (Act 29) and Assault contrary to section 84 of the Criminal Offences Act, 1960 (Act 29). On the 15th of October, 2024 both accused persons pleaded not guilty to the charges and prosecution was ordered to file their witness statements and make disclosures on the 4th of November, 2024. Case Management conference was conducted on the 21st of January, 2025 and hearing commenced on the 13th of March, 2025 and was completed on the 14th of April, 2025. FACTS OF THE CASE The facts leading to the institution of the instant criminal action were largely captured in the narration of the prosecutor to the Court after the plea of the accused persons was taken. The material facts are that on the 2nd of September, 2024 at about 12:30pm a misunderstanding led to a fight between the 1st Accused person and one Mathias who are both students of Orielly Senior High School ensued. The complainant, who is also a student of Orielly Senior High School in an attempt to separate the 1st Accused person and Mathias, pushed another student which led him to fall on the floor and which led the other students who were present to laugh at him. The student who was pushed then called the 1st Accused person and 2nd Accused person to beat the complainant and in the process the complainant used a scissors to stab the student who is now deceased. Both accused persons were then arrested and brought to the police station but they denied having assaulting the complainant. After investigations were completed the accused persons were charged before this Honorable Court. BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES It is trite law that in criminal cases, prosecution has the burden to proof the guilt of the accused person beyond reasonable doubt and this is enshrined in Article 19(2)(c) of the 1992 Constitution which provides as follows; A person charged with a criminal offence shall: Be presumed to be innocent until he is proved or has pleaded guilty. Section 11 of the Evidence Act, 1975 (NRCD 323) also provides as follows; 11. Burden of producing evidence defined (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. (2) In a criminal action, the burden of producing evidence, when it is on the prosecution as to a fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on the totality of the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt. (3) In a criminal action, the burden of producing evidence, when it is on the accused as to a fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on the totality of the evidence a reasonable mind could have a reasonable doubt as to guilt. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence. Section 15 of NRCD 323 also provided as follows; Unless it is shifted, (a) the party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue; (b) Also the burden of persuasion on prosecution is discharged when the ingredients essential to guilt are proved sufficiently to establish a prima facie case against the accused and it is only when the burden has been discharged that the accused person is called upon to open his defence and provide evidence that is converse to the elements essential to guilt and by doing so raise reasonable doubt in the prosecution’s case. In the case of Banousin v. The Reoublic [2015-2016] 2 SCGLR 1232, the Supreme Court per Dotse JSC held as follows;: “It is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt in all criminal cases. A corollary to the above rule is based on the fact that an accused is presumed innocent until he is proven guilty in a court of law. This the prosecution can only do if they proffer enough evidence to convince the judge or jury that the accused is guilty of the ingredients of the offence charged. The prosecution has the burden to provide evidence to satisfy all the elements of the offence charged… the burden the prosecution has to prove is the accused person’s guilt, and this is a proof beyond reasonable doubt…. What “beyond reasonable doubt” means is that, the prosecution must overcome all reasonable inferences favouring innocence of the accused… the doubts that must be resolved in favour of the accused must be based on evidence…. The rule beyond reasonable doubt can thus be formulated thus; - An accused person in a criminal trial or action, is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt, he is entitled to a verdict of not guilty.” (c) See the case of Woolmington v. DPP and Ali Kassena v. The State With the above provisions in mind it is clear that unless and until the burden of producing evidence and burden of persuasion is shifted this burden is on prosecution. ANALYSIS OF THE EVIDENCE OF ADDUCED AGAINST THE ACCUSED PERSONS I will reproduce the statement of offence of Assault and particulars of claim as follows; COUNT ONE Conspiracy to Commit Crime Namely:- ASSAULT CONTRARY TO SECTION 23(1) AND 84 OF THE CRIMINAL OFFENCES ACT, 1960 (ACT 29) PARTICULARS OF OFFENCE 1. WAHAB ABDUL, AGE 20 YRS, STUDENT 2. SAMED IDDRSU AGE 17 YRS, STUDENT:- For that on 2nd day of September, 2024 at Opoi-Gono, in the Greater Accra Region and within the jurisdiction of this court, did agree to act together within the jurisdiction of this court, did agree to act together with a common purpose to commit crime namely; Assault. The offence of conspiracy to commit a crime has been provided for under section The charge of conspiracy has been defined in Section 23(1) of the Criminal Offences Act, 1960 (Act 29) as amended by the Criminal Code (Amendment) Act 2003, Act 646 is defined as follows; Where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet that crime. Marful Sua J.A (as he then was), sitting as an additional High Court in the case of Republic v Augustina Abu and Others, (Unreported) Criminal Case No. ACC/15/2013 discussed the new formulation of conspiracy and stated as follows: “The difference in the definition of conspiracy in the two statues is in the opening sentence. While the new criminal offences act uses the words agree to act, the old criminal code uses the words agree or act. The effect of the new definition of conspiracy is that for the offence of conspiracy to be established the persons involved must not only agree or act together, but they must agree to act together for common criminal purposes. The sole ingredient of conspiracy retained now is the existence of an agreement between two or more persons to act together to commit a criminal offence. The prosecution has to prove one thing: that the accused persons agreed to act together and it is obligatory for prosecution to prove that there was a prior agreement to act together in furtherance of the commission of a crime. Thus, prosecution must go further and prove that there was a prior agreement between or among the accused persons to act together. It is incumbent upon prosecution to establish evidence of the act(s) of the 1st Accused person and the 2nd Accused person was in furtherance of that agreement to commit or abet the criminal offence charged which was assault. Prosecution called two prosecution witnesses in support of its case namely; Godwin Mawuli Kwetey (PW1) and Detective/Chief Inspector Foster Dorgbadzi (PW2). The 1st prosecution witness entered the witness box and relied on his witness statement on the 13th of March, 2025. I will reproduce the relevant portions of his witness statement which was adopted as his evidence in chief; 2. On 2 September 2024, at about 12p.m, a final year student called Mathias and Wahab were fighting because of a misunderstanding in which A1 has given Mathias’ name to some people at Malik town a suburb of Okpoi Gono to beat him anytime they see him. 3. Some of the boys know Mathias so they informed him about the plot. Mathias confronted A1 which resulted into a fight. I was then standing at the canteen with my visual art students. 4. Edward Sackey now deceased was standing at the place where Mathias and A1 were fighting. I together with a student called Samuel went there to separate them. 5. Mathias stamped Edward Sackey now deceased with his leg on the stomach. I then stepped in to separate the fight. When Edward Sackey threw his hand, I then stopped him, which he fell and students around laughed at him. 6. Edward Sackey then extended his anger towards me. One of his friends held him and he started throwing his hands into the face of his friend and he said to me that he will do something to me. 8. I went with Samuel and Daniel to the car park and upon opening the car, I saw Edward, A1 and A2 coming towards me. There Edward repeated the treat he issued to me that he will be back and do something to me. 9. I gave the car key to Daniel and run to the school. They followed me to the school and started beating me whilst Edward Sackey used belt on me. A1 was fighting me and A2 came behind me trying to put me on the ground. A scissors was in my pocket that showed up. 10. Accused persons tried to remove the scissors from my pocket whilst I resist but eventually it came out and the three of us held it together struggling but I managed to take it from them. 11. Samed started pushing my head down so I started throwing my hands whilst dizzy. When they saw the teachers coming, they took to their heels. 12. I eventually fell down and water was poured on me whilst Deboy was coming to beat me. I got up and run to the teachers. Later I was informed that the scissors stabbed Edward Sackey. PW1 was cross examined by the 1st Accused person on the 13th of March, 2025 and a careful perusal of his testimony clearly indicates that the 1st accused person was present while the fight was going on. This is what transpired; Q. You have stated in your witness statement that I beat you up, can you tell this court whether or not I came to where the fight was happening before or after. A. You were present whiles the fight was going on This answer by PW1 only indicates that the 1st accused person was present during the fight but is silent on whether he conspired with the 2nd accused person to assault him. The answer given by PW2 during his cross examination by the 2nd accused person was geared towards the 2nd accused person as the one who held him when the fight was going on. Cross examination by the 2nd accused person. This is what transpired on the 13th of March, 2025; Q. Can you tell this Honorable Court whether or not whiles you were fighting with Edward I held you or I also fought with you? A. You held me but the way you held me I took it as if you were part of those who were fighting me. This testimony only goes to prove that the 2nd accused person held the complainant while the fight was going on but there was no evidence to the effect that there was a prior agreement by both accused persons to assault the complainant. Cross examination of PW1 by the 2nd accused person continued on the 17th of March, 2025 and he changed his testimony. This is what transpired; Q. You have stated in your witness statement that my friend called us to come and join the fight, can you tell this Honourable Court whether you saw my friend coming to call us A. I did not see your friend coming to call you guys but you were running towards me. It is trite law that when a statement or conduct which is inconsistent with the testimony of the witness at the trial may be relevant in determining the credibility of that witness. See section 80 of the Evidence Act, 1975 (NRCD 323). In the case of Gyabaah v. The Republic [1984-86] 2 GLR 461 the Court of Appeal held as follows: “The law is that a witness whose evidence on oath is contradictory of a previous statement made by him, whether sworn or unsworn, is not worthy of credit and his evidence cannot be regarded as being of any importance in the light of his previous contradictory statement unless he is able to give a reasonable explanation for the contradiction… With the above case in mind it is clear that there are inconsistencies in the testimony of the 1st prosecution witness and as a result his testimony is not worthy of credit and I will not attach any probative value to it. The testimony adduced prosecution witness clearly shows that prosecution failed in proving that there was a prior agreement between he accused persons to act together in furtherance of the commission of a crime of assault. All the 1st prosecution witness did was to enter the witness box and repeat his assertions against the accused persons which did not meet the burden placed on it. The case of Klah v. Phoenix Insurance Company Limited [2012] SCGLR 1139, the Supreme Court held as follows: “Where a party makes an averment capable of proof in some positive way in some positive way e.g. by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the Court can be satisfied that what he avers is true.” On the 17th of March, 2025 the 2nd prosecution witness testified but a careful consideration of his testimony only indicates that he was not present when the incident occurred. This is what was said during his cross examination by 1st accused person; Q. Was I present when the fight ensued? A. No because I was not there when the incident happened but investigations revealed that you were part of the group that assaulted the complainant. A careful perusal of the evidence adduced by the 2nd prosecution witness also indicates that although there were other people present during the alleged incident, prosecution failed to call these material witnesses. This is what ensued during cross examination on the 24th of March, 2025; Q. Was there a teacher or an elderly person who was present during the incident who can testify that I assaulted the complainant? A. Yes Q. Does the person have evidence to prove that I assaulted Godwin? A. Yes Prosecution failure to call any of the people who were around during the fight to corroborate their story did not help the case of the prosecution. See the case of Manu v. Nsiah [2005-06] SCGLR 25. A careful perusal of the testimony adduced by prosecution witnesses clearly shows that prosecution failed to meet the burden of proving beyond all reasonable doubt that there was a prior agreement by both accused persons to assault the complainant. I will now discuss the second charge of assault and produce the statement of offence and particulars of claim as it appeared on the charge sheet as follows; COUNT TWO ASSAULT: CONTRARY TO SECTION 84 OF THE CRIMINAL OFFENCES ACT, 1960 (ACT 29) PARTICULARS OF OFFENCE 1. WAHAB ABDUL, AGE 20 YRS, STUDENT 2. SAMED IDDRSU AGE 17 YRS, STUDENT:- For that on 2nd day of September, 2024 at Opoi-Gono, in the Greater Accra Region and within the jurisdiction of this court, without the consent of Godwin Mawuli Kwetey and with the intention of causing harm, pain or fear, or annoyance to him or of exciting him to anger, did forcibly touch the said Godwin Mawuli Kwetey without his consent. Section 86(1) of Act 29 provides the definition of 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, pain, or fear, or annoyance to the other person, or of exciting the other person to anger, that person forcibly touches the other person. Prosecution must therefore prove that the accused persons without the consent of the complainant forcibly touched the complainant with the intention of causing harm, pain, or fear, or annoyance to him. I will reproduce the relevant portions of PW1’s testimony as follows; 8. I went with Samuel and Daniel to the car park and upon opening the car, I saw Edward, A1 and A2 coming towards me. There Edward repeated the treat he issued to me that he will be back and do something to me. 9. I gave the car key to Daniel and run to the school. They followed me to the school and started beating me whilst Edward Sackey used belt on me. A1 was fighting me and A2 came behind me trying to put me on the ground. A scissors was in my pocket that showed up. 10. Accused persons tried to remove the scissors from my pocket whilst I resist but eventually it came out and the three of us held it together struggling but I managed to take it from them. 11. Samed started pushing my head down so I started throwing my hands whilst dizzy. When they saw the teachers coming, they took to their heels. 12. I eventually fell down and water was poured on me whilst Deboy was coming to beat me. I got up and run to the teachers. Later I was informed that the scissors stabbed Edward Sackey. PW1 was cross examined by the 1st accused person and this is what transpired; Q. You have stated in your witness statement that I beat you up, can you tell this court whether or not I came to where the fight was happening before or after. A. You were present whiles the fight was going on This testimony clearly indicates that the 1st accused person was present during the fight but is silent on whether the 1st accused person was forcibly touched him to cause harm, pain, or fear, or annoyance without his consent. The burden on prosecution is proof beyond a reasonable doubt which it failed to do in this instant case. PW1 was more emphatic in his answers about what the actions of the 2nd accused person when the fight was going on. PW1 maintained that the 2nd accused person held him and pushed his head down while the fight went on. This is what transpired; Q. Can you tell this Honourable Court whether or not whiles you were fighting with Edward I held you or I also fought with you? A. You held me but the way you held me I took it as if you were part with those who were fighting me. Q. I put it to you that the medical report does not reflect the true events that day because we did not beat you up. A. They beat me, the deceased used a belt on me while you pushed my neck down From the above it is clear that the 2nd accused person pushed his neck down while the deceased used a belt on him. His answer is however silent on what the 1st accused person did during the fight. Accordingly, I hereby conclude that prosecution has been able to prove beyond a reasonable doubt that the 2nd accused person forcibly touched the complainant with the intention of causing harm, pain, or fear, or annoyance to him. The investigator who was also called failed woefully in his duty as an investigator as he failed to call the other students who witnesses the fight that occurred on the said day. All his answers were from the insufficient investigations he conducted in this case. His failure to call all the material witnesses to corroborate prosecution’s case was fatal in proving the guilt of the 1st accused person. The burden on accused persons is to raise a reasonable doubt as to their guilt. I will now analyze the evidence adduced by the accused persons. The first accused person entered the witness box on the 17th of April, 2025 by relying on his witness statement and he denied the allegations leveled against him. I will reproduce the relevant portions of the witness statement as follows; 6. When I came out, Edward had already left. I noticed a crowd of students gathered at the school gate and approached them to see what was happening. 7. I encountered Mathias again and asked him why he had tried to provoke me earlier. Suddenly, I heard a commotion behind me, coming from the mango tree area where some teachers usually sit. 7. Upon turning, I saw Edward fall to the ground. I rushed to his side and discovered that he had been stabbed and he was bleeding. One of the students who was at the scene stopped a passing private car, and they took Edward to the hospital. The 1st Accused Person was cross examined by prosecution on the 17th of April, 2025 and all he did was to deny the allegations leveled against him. This is what transpired; Q. I put it to you that it was you and the 2nd Accused Person who held the complainant for the deceased to whip the complainant with a belt A. That is not correct Q. I put it to you that you were right beside Edward and the complainant when the struggling happened A. That is not correct. I was not anywhere close Q. Finally I put it to you that it was you and second accused person and the deceased who beat the complainant and in defending himself stabbed the deceased A. That is false Q. I put it to you that you were right beside Edward and the complainant when the struggling happened A. That is not correct. I was not anywhere close Q. Finally I put it to you that it was you and 2nd Accused Person and the deceased who beat the complainant and in defending himself stabbed the deceased. A. That is false The 2nd accused person also testified by relying on his witness statement and this is what he had to say; 2. We were standing in front of the canteen when Edward left our group. Shortly after, I witnesses Godwin (the Complainant), also a final year student, engaging in a fight with Edward under the mango tree. 3. The mango tree is an area where some teachers usually sit, but none were present at the time. I quickly intervened to separate the fight, noticing Godwin’s stronger physique compared to Edward. 4. Upon reaching the scene, I saw that Edward had already been stabbed and was bleeding. 5. One of the students flagged down a passing private car, and I assisted my friends in carrying Edward into the vehicle to rush him to the hospital. He was then cross examined on the 17th of April, 2025 by prosecution and he admitted that he held the complainant when the fight was going on. This is what he said; Q. I put it to that because the deceased was your friend you deliberately held the complainant for the deceased to beat him A. That is not correct. Godwin was stronger than the deceased so I had to hold Edward and prevent him from beating the deceased. Q. I put it to you that because Godwin was stronger than the deceased you prevented him from defending himself A. That is not correct. Since Godwin was stronger than Edward, on reaching there I saw the deceased was running away so the best I could do was to hold Godwin. It is trite that where an opponent admits a fact in issue the other party need not proof that fact. Admission is defined by the 7th edition of the Black’s Law Dictionary as a voluntary acknowledgment of the existence of facts relevant to an adversary’s case. Justice Brobbey in his book, Essentials of Ghana Law of Evidence at page 112 explained admissions to mean the fact or issue which has been conceded and is no longer in contention. Also in the case of In Re Asere Stool; Nikoi Olai Amontai IV (Substituted by) Tafo Amon II v. Akotia Owirsika III (Substituted by) Laryea Ayiku III [2005- 2006] SCGLR 637 at 656, which was quoted with approval in Fynn v. Fynn [2013-2014] SCGLR 727 at 738 the court held as follows; “Where an adversary has admitted a fact advantageous to the cause of a party, that party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct.” See the case of Samuel Okudzeto Ablakwa and Another v. Jake Obetsebi Lamptey and Another [2013-2014] 1 SCGLR. From the above it is clear that prosecution therefore does not need to prove this fact due to the admission of the 2nd accused person. When he was pressed further by prosecution he tried to find an explanation which this court does not find believable. This is what he had to say; Q. How can somebody who has been beaten and is tired run away A. The fight ended within seconds and since Godwin was stronger, Edward was acting with adrenaline and run away as the punches given to him was serious Q. In paragraph 3 of your witness statement you said you said you quickly intervened to separate the fight, noticing Godwin’s stronger physique compared to Edward and in paragraph 4 you said Edward had already been stabbed so at what point did you separate the fight A. When I got there the fight had already ended as it lasted for a few seconds and I saw Edward running away from Godwin, I held Godwin to prevent him from beating the deceased further. There was so much noise in the school so I saw my friend was bleeding so I left Edward and rushed to Godwin and he told me we should rush him to the hospital as he was unable to talk. Q. So you did not see Godwin stabbing Edward with the scissors A. No I did not but it can be presumed that it was Godwin who fought with him and thus since he was stabbed it was Godwin who stabbed him. Q. Did you actually hold the complainant from not fighting the deceased? A. Yes I did. I stood behind Godwin and held him so he would no longer fight with Edward since I did not want to be involved in the fight It must be noted that just denying allegations during cross examination does not raise any reasonable doubt as to their guilt. From the evidence adduced by prosecution is it clear that prosecution has been able to prove that the 2nd accused person forcibly touched the complainant by holding him without his consent and this caused him harm, fear and pain without his consent. Prosecution having failed to prove the guilt of the 1st accused person is accordingly acquitted and discharged. Prosecution has been able to prove the guilt of the 2nd accused person and thus is convicted on count two. He was however 17 years as at the time the offence was committed is a juvenile and as a result I hereby remit the case to the Juvenile Court for him to be sentenced. The 2nd accused person is to remain on his bail conditions until he is sentenced by the Juvenile Court. SGD H/W ADWOA BENASO ASUMADU-SAKYI MAGISTRATE