REPUBLIC VRS YAKUBU & 6 OTHERS (UE/BG/DC/B1/109/2023) [2025] GHADC 34 (22 January 2025)

*HWMNJ@DC/BG-22/01/2025* CORAM: HIS WORSHIP MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE), SITTING AT THE DISTRICT COURT, BOLGATANGA IN THE UPPER EAST REGION OF GHANA, ON WEDNESDAY, THE 22ND DAY OF JANUARY, 2025 CASE NO. UE/BG/DC/B1/109/2023 THE REPUBLIC VRS. 1. GALLIMHUG YAKUBU 2. TIMOTHY KURUG 3. KWABENA KODOUG 4. GOUZABIL NAOW 5. MAAN-MARE YINBIL 6. MARK BUKARI@BABA 7. KOLBIL NAABIU@KILLER TIME: 11:10AM ACCUSED PERSONS PRESENT INSPECTOR BONIFACE DUVOR FOR THE REPUBLIC ABDULAI JALADEEN, ESQ. FOR THE ACCUSED PERSONS JUDGMENT Introduction 1. The accused persons were brought or arraigned before this court on the 2nd day of May, 2023 for the offences of Conspiracy to commit crime to “wit” Causing Unlawful Damage and Assault contrary to sections 23(1), 172(1)(b) and 84 of the *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 1 of 30 *HWMNJ@DC/BG-22/01/2025* Criminal Offences Act, 1960 (Act 29) as amended. The Accused persons were also charged for the offences of Causing Unlawful Damage contrary to sections 172(1)(b) of Act 29. A3, A4, A5, and A7 were also charged for Assault contrary to section 84 of Act 29. A6 was also charged for Stealing to contrary to section 124(1) of Act 29. The accused persons pleaded not guilty to the charges against them. Facts of Prosecution’s Case 2. The facts of the prosecution’s case as presented to the court and attached to the charge sheet filed on 2nd May, 2023 is that Complainant Sule Zong is a farmer and a resident of Baare. The accused persons are all farmers and natives of Baare in the Talensi District. During the latter part of September 2019, the complainant and his family elders, leased part of their family land located within the Baare village to Ben Boka who wanted to build a school complex. On 03/04/2023 the developer, Ben Boka sent workers who are also witnesses in this case to the land to commence work. Whilst work was ongoing, A1 led his accomplices to the site and told the workers to stop work and later drove them away. The accused persons thereafter bend the erected iron rods into the foundation and refilled it with sand and further caused damage to a borehole water system at the site valued GH₵20,000.00, a wheel barrow valued GH₵1,500.00 and two plastic barrels also valued GH₵1,000.00 which they set on fire. The complainant who stays nearby and saw the accused persons at the scene, proceeded to the site to inquire why they were attacking the workers but A1, seeing the complainant, incited his accomplices against him, so A2, A3, A4, A5, A6 and A7 charged on the complainant and assaulted him whiles A6 snatched the complainant’s Tecno mobile phone during the attack. The complainant sustained bruises on his head and lodged a complaint to police and medical report form was issued to him for *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 2 of 30 *HWMNJ@DC/BG-22/01/2025* treatment. The scene was visited and photographs of the damaged bore-hole water system, the iron rods buried in the sand were taken whilst the burnt wheel barrow left at the scene was retained for evidential purposes. The accused persons were therefore charged for the above-mentioned offences. Burden of Proof 3. The accused persons herein pleaded not guilty to the charges against them; hence, the burden is on the prosecution to prove its case by admissible and credible evidence, every ingredient of the above stated offences beyond reasonable doubt. In the case of Republic vrs. Adu-Boahen and Another (1993–94) 2 GLR 324 -342, the Supreme Court per Kpegah JSC, stated as follows: A plea of not guilty is a general denial of the charge by an accused which makes it imperative that the prosecution proves its case against an accused person. Since no admissions are made or may be made, unlike civil cases, the prosecution, when a plea of not guilty is voluntarily entered by an accused or is entered for him by the trial court, assumes the burden to prove, by admissible and credible evidence, every ingredient of the offence beyond reasonable doubt. Thus, it is the duty of the prosecution to prove the guilt of the accused persons. Article 19 clause (2)(c) of the 1992 Constitution of Ghana provides that: “A person charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty.” The proof required is proof beyond reasonable doubt. The Evidence Act, 1975 (NRCD 323), outlines this in subsections 11(2) and 13(1) and Section 22 as follows: *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 3 of 30 *HWMNJ@DC/BG-22/01/2025* 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 a reasonable doubt. 13(1) In any … criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt. Section 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 a 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”. 4. The Supreme Court in a unanimous decision in the case of Abdulai Fuseini v The Republic, reported in [2020] Crim LR, page 331 reiterated and affirmed the basic philosophical principles underpinning criminal prosecution in our courts as follows:- “In criminal trials, the burden of proof against an accused person is on the prosecution. The standard of proof is proof beyond reasonable doubt. Proof beyond reasonable doubt actually means “proof of the essential ingredients of the offence charged and not mathematical proof.” Emphasis supplied 5. In the case of Miller Vrs Minister of Pensions [1947] 2 ALL ER 372 at 373 Lord Denning (as he then was) explained proof beyond reasonable doubt as follows: *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 4 of 30 *HWMNJ@DC/BG-22/01/2025* “It need not reach certainty but it must carry a high degree of probability, proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice … If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence ‘of course, it is possible but not in the least probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” Emphasis supplied 6. In the case of Dexter Eddie Johnson Vrs the Republic [2011] SCGLR 601 Dotse JSC discussed the principle of proof beyond reasonable doubt in some detail and cited the case of Woolmington Vrs DPP [1934] AC 462 where Lord Sankey made the following statement: “Throughout the web of the English Criminal Law, the golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt – if at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner – the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the 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.” See the case of: Commissioner of Police Vrs Isaac Antwi [1961] GLR 408 where the Woolmington principle was applied. *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 5 of 30 *HWMNJ@DC/BG-22/01/2025* 7. See also the following cases on the burden of proof in criminal cases: Frimpong @Iboman v The Republic [2012] 1 SCGLR 297, Gligah & Anr v The Republic [2010] SCGLR 870, Tetteh v The Republic [2001-2002] SCGLR 854, Francis Yirenkyi v Republic [2017-2020] 1 SCGLR 433 at 457 and 464-466, just to mention a few. The Ingredients of the Offences of Conspiracy, Causing Unlawful Damage, Assault and Stealing 8. Section 23(1) of the Criminal Offences Act, 1960, Act 29) provides that: “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 the criminal offence.” Also, in the case of Francis Yirenkyi v The Republic [2017-2020] 1 SCGLR 433 at holding 1 at page 435 the court held as follows:- 1. Under the old formulation of the offence of conspiracy under section 23 (1) of Act 29, conviction could be obtained by the establishment of three ingredients, namely (i) prior agreement to the commission of a substantive crime, to commit or abet that crime, (ii) acting together in the commissioning of a crime in circumstances which showed that there was a common criminal purpose; and (iii) a previous concert even if there was evidence that there was no previous meeting to carry out the criminal conduct. However, under the new formulation, the offence of conspiracy could be established by only one ingredient namely (1) the agreement to act to commit a substantive crime, to commit or abet that *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 6 of 30 *HWMNJ@DC/BG-22/01/2025* crime. The effect therefore was that the persons must not only agree or act, but must agree to act together for common purposes. …. Dictum of Korbieh JA in Republic v Abu and others Criminal Case No. ACC/15/2013 (unreported) and Sgt. John Agyapong v The Republic, Criminal Appeal No. H2/1/2009, 12 February 2915 (unreported cited) Emphasis supplied See also the following current cases on conspiracy: The Republic Vrs. Ernest Thompson & 4 others [2021] DLSC 10174 (Criminal Appeal NO. J3/05/2020 delivered on 17th March, 2021), Kingsley Amankwah (a. k. a. Spider) Vs. The Republic [2021] DLSC 10793 (Criminal Appeal No. J3/04/2019 delivered on 21st July, 2021. From the above authorities, the offence of conspiracy could be established by the agreement to act to commit a substantive crime, to commit or abet that crime. Thus, the persons must not only agree or act, but must agree to act together for common purposes. 9. Section 172(1) of Act 29 which governs the offence of Causing unlawful damage provides as follows: 172(1) A person who intentionally and unlawfully causes damage to property (a) to a value not exceeding one million cedis or without a pecuniary value, commits a misdemeanour, (b) to a value exceeding one million cedis commits a second a degree felony. Also, in Homenya vrs. the Republic [1992] 2 GLR 305-319, the court said that: *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 7 of 30 *HWMNJ@DC/BG-22/01/2025* “Section 172(1) of Act 29 which creates the offence of unlawful damage requires that for a person to be liable under the said section, the accused must have caused the damage intentionally and unlawfully. The section reads: "whoever intentionally and unlawfully causes damage to any property by any means . . ." Each of the two words emphasized above is important and must be established before one can be called upon to open his defence in respect of this offence. For if the damage was intentionally but not unlawfully caused, the offence is not committed. Likewise if the damage was unlawfully but not intentionally caused, then it is not one of unlawful damage.” 10. In the case of Brobbey & Ors v. The Republic (1982-83) GLR 608, it was held as follows: ‘An essential element for the constitution of the crime.. of … causing damage contrary to section 172 of the Criminal Code, 1960 (Act 29), was that the …. damage must not only be intentional but also unlawful. Mere …. damage without more was insufficient.’ See also Okoe v. The Republic [1979] G.L.R. 137 and Asante v. The Republic [1972] 2 G.L.R. 177. From the above authorities, the ingredients to be proved by the prosecution in a charge of unlawful damage are: accused person intentionally caused damage to the complainant’s property and the accused person unlawfully caused the damage. In other words, the elements or ingredients that the prosecution must prove to succeed in this case are: *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 8 of 30 *HWMNJ@DC/BG-22/01/2025* a. That damage was caused to the Ben Boka’s properties (borehole water system, two water barrels and a wheel barrow). b. That it was the accused persons who caused damage to Ben Boka’s borehole water system, two water barrels and a wheel barrow. c. That the accused persons intentionally caused the damage to the borehole water system, two water barrels and a wheel barrow. d. That the damage the accused persons caused was unlawful. 11. Offence of Assault is governed by sections 84 to 88 of Act 29. Section 84 creates the offence of Assault and makes it a misdemeanor. Section 85 makes provision for different kinds of Assault whiles sections 86 to 88 provide for the definitions of the different kinds of Assault. Section 84, 85, 86(1) and 87(1) of Act 29 provides as follows: Section 84- “A person who unlawfully assaults another person commits a misdemeanor”. Section 85- (1) "Assault" includes—(a) assault and battery; (b) assault without actual battery; and (c) imprisonment. (2) Every assault is unlawful unless it is justified on one of the grounds mentioned in Chapter 1 of this Part. Section 85 (2)- “An assault is unlawful unless it is justified on one of the grounds mentioned in Chapter One of this part” *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 9 of 30 *HWMNJ@DC/BG-22/01/2025* Section 86(1)- “A person makes an assault and battery upon 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 him to anger, he forcibly touches the other person, or causes any person, animal, or matter to forcibly touch him.” 87(1) Assault without actual battery (1) A person makes an assault without actual battery on another person, if by an act apparently done in commencement of an assault and battery, the person intentionally puts the other person in fear of an instant assault and battery. 12. In the case of Asante vrs. The Republic [1972] 2 GLR 177, it was held that Proof of the assault must be established by evidence of conduct of the accused as falling within one or other of the definitions of assault in sections 86, 87 and 88 of Act 29. From the above-mentioned authorities on assault, the following elements of the offence must be established: a. Wrongful Act/Actus Reus -The wrongful act or prohibited physical act is unpermitted contact without consent. In other words, once the contact is unpermitted, there is notional forcibility. The requirement of “forcible touching” in section 86(1) does not mean that the contact should have been done vigorously or violently. “Forcible touching” looks to the lack of consent. *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 10 of 30 *HWMNJ@DC/BG-22/01/2025* b. Mental Element/Mens Rea- The required mental element, mens rea, is intentional conduct. In the case of assault of battery, the conduct must be with the intention of causing harm, pain, or fear, or annoyance to the person assaulted or exciting him to anger. Thus, the intentional conduct was done without the consent of the complainant. c. Conduct complained about should be unjustifiable under law: From section 85 (2) of Act 29 the prosecution ought to adduce evidence to establish that the conduct of the accused person is not justified under law. The forcible touching complained about should be unlawful in the sense that the conduct did not fall within one of the grounds recognized under the law as justifying the use of force. The chapter one referred in section 85 (2) is made up of Section 30 to Section 45 as the grounds for the justification of the use of force. See the case of Asante v. The Republic [1972] 2 GLR 177. 13. The Offence of Stealing is governed by sections 124 (1) and 125 of the Criminal Offences act, 1960, (Act 29). Section 124(1) and 125 of Act 29 provides that: Stealing 124(1) A person who steals commits a second degree felony. 125. Definition of stealing A person steals who dishonestly appropriates a thing of which that person is not the owner. In Anang Vs. The Republic {CA} [1984-86] 1 GLR 458, The Supreme Court per Taylor J.S.C, said: “… the ingredients of the offence of stealing are stated in section 125 of Act 29, and these ingredients have been authoritatively expounded *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 11 of 30 *HWMNJ@DC/BG-22/01/2025* by the full bench of the Court of Appeal in the case of Republic v. Halm, Court of Appeal (full bench), 7 August 1969; digested in (1969) C.C. 155 which is binding on this court. There Amissah J.A. in his inimitably lucid and impeccable manner delivering the unanimous and illuminating judgment of the full bench strongly constituted said as stated in the headnote at 263: “The preliminary relationship for consideration in a charge of stealing is not so much a relationship between the person charged and some other, identified as owner, as a relationship between the person charged and the thing alleged stolen . . . For the offence of stealing to be constituted, therefore, the relations, act and intention to be proved in connection with ‘the thing’ are: (i) that the person charged must not be the owner of it; (ii) that he must have appropriated it; and (iii) that the appropriation must have been dishonest.” Abban, J as he then was in the case of Ampah and Another v The Republic (1976) 1 GLR 403 @ 412 stated as follows: "... the basic ingredients which ought to be proved in a charge of stealing by the prosecution are, firstly, that the accused was not the owner of the subject-matter of the charge; secondly, that he appropriated the subject-matter of the charge and, thirdly, that the appropriation was dishonest. If these three essential elements are proved to the satisfaction of the court, the court will be bound to convict unless the accused is able to put forward some defence or explanation which "can cast a reasonable doubt" on the case for the prosecution." *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 12 of 30 *HWMNJ@DC/BG-22/01/2025* See also the following authorities on the elements of the offence of stealing: the book entitled “Contemporary Criminal Law in Ghana, 3rd edition by Dennis Dominic Adjei (JA), 2021 pages 339 to 340, Mensah vrs. The Republic 1978 GLR 404, Ali & Others vrs the Republic (1992) 1 GLR 570, just mention a few. From the above authorities, the elements that prosecution must prove in order to succeed in this case are that the 6th accused person (Mark Bukari) dishonestly appropriate Techno mobile phone valued GHC1,000.00 belonging to Sulley Zong. Evidence of the Prosecution 14. In instant case, prosecution in an attempt to prove its case called five (5) witnesses. PW1-Benjamin Baba Macboka testified that “during September 2019, the Naroog family released a piece of land to me as I intended to build a school. I went through all the traditional processes of acquiring the land together with seeing the chief of Baare and the Lakum Tindana of the community as custom demands. I thereafter dug a borehole and moulded blocks to commence my project but the Lakum Tindana told me to stop due to a dispute on the land which I obliged. The matter was sent to the Paramount Chief for resolution after which the Naroog family gave the permission to continue my project. On the 3/04/2023, I sent workers to commence work of which they dug foundations and erected pillars but the accused persons attacked my workers and caused damage to my properties at the site. I later visited the site and saw the damage cause to my properties at the site which includes iron rods, bore-hole water system, water *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 13 of 30 *HWMNJ@DC/BG-22/01/2025* barrels, cement, the foundations dug and other materials invested on the land all valued GH₵28,700.00." 15. PW2-Sule Zong testified that during the early part of September 2019, his family leased part of their family land close to his house to Mr. Benjamin Baba Macboka who had intended to build a school. He testified that on the day of the incident, at about 1100 hours, he was at home and heard a loud noise outside so he went out and saw the accused persons led by A1 at the site in a heated argument with the workers to leave the site. On seeing this, he went to the site to engage the accused persons; suddenly A1 on seeing him incited his accomplices to beat him up for encouraging the project. He testified that A3, A4, A5 and A7 attacked him and assaulted him as A3 used a shovel to heat his head. He testified that as he was being assaulted, A6 snatched his Tecno mobile phone valued GH₵1,000.00 from him and took same away. He thereafter lodged a complaint to the police and a medical report form was issued to him for treatment. Upon his return home, he noticed that the foundation has been refilled and the erected iron rods buried in the foundations, damage was also caused to the bore-hole water system and a burnt wheel barrow was left at the scene. 16. PW3-Tindaan Emmanuel testified that on 3/04/2023 about 1120 hours, he was at a building site at Baare working and whilst there, the 1st accused person led his accomplices to the site and ordered them to stop work and that the land is under litigation. The accused persons who were in the company of a large crowd of people bend the erected iron rods into the foundation and refilled it. The complainant who stays nearby came to the scene and confronted the accused persons but he was attacked and assaulted by Kwabena, Bouzabil, Yinbil and *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 14 of 30 *HWMNJ@DC/BG-22/01/2025* Killer whiles Baba also snatched the complainant’s mobile phone. On seeing this, he rushed in and rescued the complainant and later took him to the police station to lodge a complaint. 17. PW4- Naow Zouleb testified that “on 03/04/2023 about 1120 hours, I was at a building site at Baare working with other witnesses. Whist there, the accused person Gallimhug Yakubu arrived in the company of accused Timothy Kurug and confronted me saying am I aware the land is under litigation of which replied him yes. Accused Gaalimhug Yakubu and Timothy Kurug then told us to stop work, park our tools and leave the site. Few minutes later, I saw a large crowd of people among which were the other accused persons welding pick axes, spades, cutlasses and sticks massing up to the site. The mob on reaching the scene, bend the erected iron rods into the foundations and started refilling it. Due to the accused persons actions, I and the other workers left the scene and stood at a distance whilst watching them. The accused persons further caused damage to the bore-hole water system at the site and also burned a wheel barrow and two plastic barrels we were using to work. The complainant who stays nearby came to the scene and confronted the accused persons but he was attacked and assaulted by Kwabena, Bouzabil, Yinbil and Killer whiles Baba also snatched the complainant’s mobile phone.” 18. PW5- No. 47195 D/CPL Wisdom Bansah testified that on 03/04/2023 the complainant Sule Zong reported to police having been assaulted by the accused persons as he sustained some bruise to his head. He testified he obtained statement from the complainant and police medical report form was issued to him for treatment. He also obtained witness statement from prosecution *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 15 of 30 *HWMNJ@DC/BG-22/01/2025* witnesses and thereafter visited the crime scene together with the complainant who pointed out to him a land which he stated belonged to his family of which they leased part to witness Benjamin Macboka-PW1 to develop same. He testified that at the scene, he found a burnt wheel barrow, bore-hole water system damaged and saw a foundation which has been refilled. He dug out the foundation and detected that some iron rods had been buried within and took photograph of it. He also took photograph of the scene and retained the burnt wheel barrow for evidence purpose. He testified that investigations disclosed that the accused persons went to the scene assaulted the complainant and caused damage to properties at the scene. He tendered in evidence the following documents: Investigation Caution Statements of the accused persons as Exhibits A1, A2, A3, A4, A5, A6 and A7 respectively; Charged Statements of the accused persons as Exhibits B1, B2, B3, B4, B5, B6, and B7 respectively; Photograph of the complainant’s injury, Police extract from the dairy of action indicating complaint lodged by the complainant dated 03/042023, and medical report of the complainant as Exhibit C, C1 and C2 respectively; photograph of erected iron rods in the foundation as Exhibit D1, photograph of the refilling foundation as Exhibit D2, photograph of burnt wheel barrow as Exhibit D3, photograph of police officers digging the refilling as Exhibit D4, photograph of iron rods buried in the foundation as Exhibit D5, photograph of damage caused to the bore-hole water system as Exhibit D6, and photograph of mixed and abandoned concrete at the scene as Exhibit D7. 19. The prosecution witnesses maintained during cross examination that the accused persons refilled the foundation, conspired and caused damage to the borehole water system, two water barrels and a wheel barrow. They also maintained that *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 16 of 30 *HWMNJ@DC/BG-22/01/2025* A3, A4 A5 and A7 attacked and assaulted the complainant, Sule Zong. They also maintained that A6 dishonestly appropriate complainant’s Techno mobile phone. PW2, PW3 and PW4 maintained that they live in the same community and know each other; and as a result they were able to identify the accused persons as those who came to the site to refill the foundation and caused damage to the properties listed above. 20. Upon the close of prosecution’s case the court found that there was a prima facie or sufficient case against the accused persons for the offences of Conspiracy to commit the crime of unlawful damage and unlawful damage; Assault (against A3, A4, A5 and A7) and stealing ( against A6) for them to be called upon to open their defence. The court therefore called on the accused persons to make a defence and reminded the accused of the charges against them. The court also informed the accused of their right to give evidence personally on oath or to make a statement. It must be noted that at this juncture, the duty of the accused persons is not to prove their innocence but to raise a reasonable doubt concerning their guilt. Sections 11(3) and 13(2) of the Evidence Act 1975, (NRCD 323) provides as follows: “Section 11(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. Section 13(2) Except as provided in section 15 (c), in a criminal action, the burden of persuasion, when it is on the accused as to a fact the *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 17 of 30 *HWMNJ@DC/BG-22/01/2025* converse of which is essential to guilt, requires only that the accused raise a reasonable doubt as to guilt.” See also the case of Woolmington vrs. Director of Public Prosecutions [1935] AC 462 at 481, where Sankey LC noted in as follows: …while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the Prisoner to prove his innocence, and it is sufficient for him to raise a doubt as to his guilt; he is not to satisfy the jury of his innocence. 21. Also, this court is mandated to examine the defence or explanation of the accused in three stages or apply what is usually referred to as the “three tier test” principle. Thus in the Republic vs. Francis Ike Uyanwune [2012]DLCA8143, Dennis Adjei, J.A.: The accused person must give evidence if 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 person is either acceptable or not. If it is acceptable the accused person 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 person should be acquitted but if it is not and the court is satisfied that in considering the entire evidence on record the accused person is guilty of the offence, the court must convict him. This test is what is usually, referred to as ‘three tier test’. *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 18 of 30 *HWMNJ@DC/BG-22/01/2025* See also the case of Lutterodt vs. Commissioner of Police [1963]2 GLR 429. 22. Moreover, under section 80 of the Evidence Act, 1975 (NRCD 323), matters which the court may take into consideration in determining the credibility of a witness include a statement or conduct which is consistent or inconsistent with the testimony of the witness at the trial. The law is well settled that a person whose evidence on oath is contradictory of a previous statement made by him, whether sworn or unsworn, is not worthy of credit. Thus, in the case of Odupong v Republic [1992-93] GBR 1038 the Court of Appeal held on this principle as follows:- “The law was well settled that a person whose evidence on oath was contradictory of a previous statement made by him, whether sworn or unsworn, was not worthy of credit and his evidence would be of no probative value unless he gave a reasonable explanation for the contradiction.” See also Gyabaah v Republic [1984-86] 2 GLR 416 and Kuo-den alias Sobti v Republic [1989-90] 2 GLR 203 SC were referred to Explanation of the Accused Persons and Legal Analysis 23. 1st accused person -Galimhug Yakubu testified as follows: “… I am … the acting Tindana of the Baare Community. I say that there is a portion of land located at Kuntallibtong which belongs to our great grandfather Lakum. I say that our great grandfathers gave birth to five children who form five different families of the Lakum section. I say that all the families have a share in the land, but not *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 19 of 30 *HWMNJ@DC/BG-22/01/2025* owned by one person. I say that about three years ago I heard that part of the land has been leased out to one Baba to build a private school so I and the other remaining families called the said Baba Bokiya and asked why he was trespassing into the land and told him to stop working on the land because the land has some issues so the said Baba Bokiya replied okay and left promising not to work on the land. I say that during the latter part of March 2023, I saw the said Baba Bokiya working on the land so I called him again and asked him to stop working on the land and since that time I did not see him at the site but saw other people working on the land. I say that on seeing this I reported to the DCE and also informed the police. I say that on the 3/4/2023, I together with some people from the Lakum clan went to the scene on seeing some people working at the site. I say that on reaching there, we met some people working on the land so we asked them to leave and they left and we also left. I say that nobody was assaulted at the scene and I did not see the complainant at the scene because the people were many. I say that it was later I saw the complainant riding a motorbike from his house heading to the Tongo township and I heard some of the people saying that the complainant was going to the police station. I say that I did not assault anybody and I did not see anybody causing damage to any item at the site neither did I see anybody setting fire to anything at the scene. I say that the complainant and his family are also part of the Lakum clan and ought to be working towards protecting the land for posterity.” 24. 1st accused person in his statement to the police dated 06/04/2023 (Exhibit A1) stated as follows: on 03/04/2023 about 1200hours I togetheir with some people from the Lakum clan went to the scene on seeing some people working at the site. On reaching *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 20 of 30 *HWMNJ@DC/BG-22/01/2025* there we met some people working on the land so we asked them to leave and they left and we also leveled the foundation which was dug.” 25. 2nd accused person-Timothy Kurug testified as follows: “…. I say that on the 3/4/2023, I was at the Tindana’s house when he asked that we should go and inform Baba Bokiya and his workers to stop the construction of their building at a portion of the land which is under the care of the Tindana. That upon that information we left to the site to inform the workers to stop the construction of the building. I say that on reaching there, we asked the workers to stop work and refill the foundation they dug because the land is under some litigation so the workers started filling the foundation. I say that the people were many and I did not see anybody destroying another thing at the site neither did I see anybody burning any item. I say that I did not also see the complainant at the scene but it was later I saw him riding his motorbike from his house towards the Tongo township but I did not see him at the site because of the many people that gathered at the scene. I say that I did not assault anybody and did not also burn or see anybody set fire on anything at the site and I also did not carry any item to the site. I say that the land in question is over seen by the Tindana for and on behalf of the five royal families of Lakum which the complainant’s family is part. I say that after the complainant leased the land to one Baba to work on, he was called to the Tindana’s house and told to desist from working on the land which he agreed to but still sent people to work on the land that was why we went there to stop them from working. I say that when the said Baba Bokiya started the foundation he was invited to the Tindana’s house and later the matter was also reported to the DCE who also indicated that he will inform the said Baba Bokiya to stop working on the *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 21 of 30 *HWMNJ@DC/BG-22/01/2025* land. I say that we also drew the attention of the police who also said we should seek redress from the court but the said Baba went ahead to send workers to the land.” 26. 2nd accused person in his statement to the police dated 06/04/2023 (Exhibit A2) stated as follows: “on the 03/04/2023, I was at the Tindana’s house when he directed us to go and stop the said Baba Bokiya who was building at a portion of the land which is overseen by the Tindaana who doubles as my step father. Upon his direction the acting Timdana, Gallimhug Yakubu led I and a large crowd of people to the site to stop the people from working on the land. On reaching there we ordered the workers to stop work and refill the foundation they dug because the land is under … litigation, so the workers started filling the foundation and the people jointly filled the foundation…” 27. 3rd accused person-Kwabena Kodoug testified that “…. I say that on the day of the said incident, I was not in the house because I had gone to assist my sister to build her house. I say that I even left, for my sister’s house before the incident and I stayed there for a month because of the work. I say that I was not at the scene and I did not assault the complainant or see anybody assault him. I say that I did not know anything about the said incident.” 28. 4th accused person-Guazabil Naoh testified as follows: “..I say that on the 3/4/2023, I went to the scene where the construction was going with the Tindana of Baare community. I say that on reaching there, we informed the workers to stop the construction and fill the foundation that was dug. I say that I did not assault anybody at the scene neither did I cause damage to any *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 22 of 30 *HWMNJ@DC/BG-22/01/2025* property. I say that I did not even see the complainant at the scene but it was later that I saw him riding towards Tongo township.” 29. 4th accused person in his statement to the police (Exhibit A4) stated as follows: “On 03/04/2023 about 1030 hours, I went to the scene together with suspect Gallimhug, the Tindana. On reaching there we only filled the foundation that was dug…” 30. 5th accused person-Maan-Mare Yinbil testified as follows: “…I say that on the 3/4/23, I together with the Tindana and a group of people numbering about hundred from the Lakum clan of the Baare village went to the building site of Baba to stop him from working. I say that the Tindana called and informed him to stop the work since the land on which he was working is under some dispute but he refused. I say that upon reaching the scene we asked the workers to stop work and cover the foundations which they did. I say that I did not assault the complainant neither did I cause damaged to anything at the site. I say that I did not also see the complainant anywhere near the scene.” 31. 5th accused person in her statement to the police dated 07/04/2023 (Exhibit A5) stated as follows: “On 3/04/2023 about 10:30 hours, I together with the Tindana and a group of people numbering about hundred from the Lakum clan of the Baare village went to one Baba Bakiya building site to stop him from working since he disrespected our Tindana who called and informed to stop work since the land on which he was working is under some dispute but he refused abide by the directives. I was part of the people who leveled the foundation which was dug by some workers at the scene….” *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 23 of 30 *HWMNJ@DC/BG-22/01/2025* 32. 6th accused person-Mark Bukari testified as follows: ”…I say that on the 3/4/23, I saw a group of people moving towards a building site. I say that I also decided to follow the group to the scene. I say that at the time I got to the scene, I saw some people filling up some foundations. I say that by the time I finally got to the scene, they had finished filling up foundations so I did not even participate in the activity. I say that I did not see the complainant at the scene and I did not steal his mobile phone. I did not also assault anybody at the scene and I did not also cause any damage to any property at the scene.” 33. 6th accused person in his statement to the police dated 07/04/2023 (Exhibit 6) stated as follows: “On 03/04/2023, about 1030 hours I saw a group of people led by suspect Gallimhug, the Tindana moving towards a building site so I also followed the group to the scene and saw them filling up some foundations but on reaching there they have finished filling up the foundations so I did not even partake in the activity.” 34. 7th accused person -Kolbil Nabio testified as follows: “… I say that on the 3/4/2023, I went to the disputed land site with the Acting Tindana of the Baare Community. I went there because the under takers of the project were informed to stop work by the Tindana but they refused. The people from the Lakum clan and other people form the communities came to the site in their numbers to ask the workers to stop the work once there was a problem with regards to the land. I say that when we went there we met some people so we asked them to stop and thereafter we left the scene of the construction once they were given the information to stop the work. I say that I did not assault the complainant and I did not even see the complainant at the scene. I again say that *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 24 of 30 *HWMNJ@DC/BG-22/01/2025* I did not cause damage to anything and I did not see anybody causing damage to any property at the site because of the large number of people at the scene.” 35. 7th accused person in his statement to the police dated 06/04/2023 (Exhibit A7) stated as follows: “On 03/04/2023 about 1130hours I together with suspect Gallimhug who doubles as the Tindana in Baare Community went to the said building site since the under takers of the project was informed to stop by the Tindana but refused so we the people from the Lakum clan massed up and went to the site where we met some people working so we asked them to stop and thereafter we leveled the foundations.” 36. From the above explanations of the accused persons, all the accused persons except 3rd accused person confirmed visiting or going to the site on the day of the incident on 03/04/2023 to stop the workers from working on the land they claim is in dispute. While A6 denied participating in filling of the foundation, the others confirmed participating in filling the foundation as can be gleaned from their respective statements they gave to the police. However, all of them denied causing damage to any property. A3, A4, A5 and A7 denied assaulting the complainant while A6 denied dishonestly appropriating complainant’s Techno mobile phone. 37. From the evidence or explanation of 1st, 2nd 4th, 5th, and 7th accused persons, there is inconsistency between the statements they gave to the police and their evidence in court regarding refilling of the foundation or who filled the foundation at the site which affects their credibility. In other words, the *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 25 of 30 *HWMNJ@DC/BG-22/01/2025* contradictions in their evidence in court and statements they gave to the police make them not worthy of credit and their evidence is of no probative value. 38. The accused persons claim the land which was being developed is in dispute. This court is of the view that what the accused persons could have done was to institute an action in court restraining Ben Boka or the complaints from building on the land and not to take the law into their own hands to move to the site to stopped the workers and filled the foundation. 39. They also claim the workers filled the foundation themselves. Assuming without holding that it was the workers who filled the foundation, the foundation was filed on the instructions of the accused persons and as such it was not done deliberately. Indeed A2 specifically stated “we asked the workers to stop work and refill the foundation he dug because the land is under some litigations the workers started filling the foundation.” A4 testified that that “…on reaching there, we informed the workers to stop the construction and fill the foundation that was dug” even though in his statement to the police, he sated “we only filled the foundation and left”. A5 testified that “…upon reaching the scene we asked the workers to stop work and cover the foundations which they did.” even though in his statement to the police he stated that “I was part of the people who leveled the foundation which was dug by some workers at the scene..” 40. So even if the workers did the filling they accused persons are deemed to have done so. This court is of the view that if the accused persons had just gone to the site and left as they claim they would not have been reported to the police for *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 26 of 30 *HWMNJ@DC/BG-22/01/2025* causing damage among others. This court therefore found as a fact that the accused persons went to the site to stop the workers and refilled the foundation as well as buried the iron rods on the ground. There is enough evidence on record that shows that damage was caused to the borehole water system, two water barrels and a wheel barrow. The inference that could be drawn from the whole evidence is that the accused persons after refilling the foundation caused damage to borehole system, two (2) water barrels and a wheel barrow. This court therefore finds the explanation of the accused persons as unacceptable. 41. A3 denies going to the site on the day of the incident. The prosecution witnesses PW2 and PW3 maintained during cross examination by counsel for accused persons that A3 was present at scene. When A3 was called to open his defence, he could have called his sister he allegedly went to assist to build her house. The said A3's sister is a critical or material witness for A3 and failure to call her as a witness affects the weight to be attached to A3’s explanation. This court therefore finds A3 explanation unacceptable and holds that he was part of the other accused persons who caused damage to the properties in question. 42. From the evidence, this court found as a fact that after the foundation was refilled by the accused persons there was a confrontation between them and complainant regarding the refilling of the foundation and as a result the accused persons assaulted the complainant. Assault is not necessarily causing harm to the person being assaulted. As soon as the person is touched without his consent an assault is deemed to have been committed. Also, putting the victim in apprehension of fear of being assaulted constitutes an assault or intentionally putting the other person in fear of an instant assault and battery constitutes an *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 27 of 30 *HWMNJ@DC/BG-22/01/2025* assault. In the instant case, the complainant sustained bruises on his head from the attack as can be gleaned from Exhibits C and C2. This court therefore holds that A3, A4, A5 and A7 assaulted the complainant. 43. The complainant claims A6 snatched his phone from him but A6 denies doing so. This court is however convinced by the evidence on record that A6 snatched the phone from the complainant; and A6 having failed to return the phone to the complainant, he is deemed to have dishonestly appropriated it. 44. Finally, it must be noted that even though this is a criminal case, the court is mandated to award compensation to victims of crime in addition to any punishment imposed on accused person(s). See section 148 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30). The prosecution is therefore expected to lead evidence in that regard especially when expenses like medical expenses have been incurred by the victim or the complainant, which could form the basis of award of any compensation if the court wishes to award any compensation in favour of the victim or the complainant. Conclusion 45. Having examined the whole evidence of the prosecution and Defence on record, this court is of the considered opinion that the prosecution has discharged its burden of proof beyond reasonable doubt regarding the charges of Conspiracy to commit the crime of unlawful damage and unlawful damage against the accused persons; Assault (against A3, A4, A5 and A7) and stealing (against A6). Thus, the ingredients of these offences were proved beyond reasonable doubt. In other words, apart from *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 28 of 30 *HWMNJ@DC/BG-22/01/2025* the defence’s explanation, this court is satisfied on a consideration of the whole evidence that the accused persons are guilty of Conspiracy to commit the crime of Unlawful Damage and Unlawful Damage; A3, A4, A5 and A7 are also guilty of Assault; and A6 is also guilty of Stealing. The accused persons are therefore found guilty and convicted for the respective crimes accordingly. Mitigation of Sentence and Sentence 46. The counsel of the Accused Persons pleaded for leniency or mercy and that the court should temper justice with mercy. He submitted that the accused persons are first time offenders. See the submissions of the counsel for accused persons at pages 46 to 49 of volume 36 of the criminal record book on 22/01/2025. 47. The punishment for conspiracy to commit the crime of causing unlawful damage is the same as the punishment for substantive crime of causing unlawful damage. This means in the instant case the offence for conspiracy to cause unlawful damage and causing unlawful damage carry the same punishment. 48. Some of the principles that govern sentencing are: the seriousness of the offence, the premeditation with which the criminal plan was executed, the prevalence of the crime within the locality in particular and the country in general, the degree of revulsion felt by the law abiding citizens of the society, mitigating circumstances such as extreme youth, first offender and good character. See the cases of Kwashie v The Republic [1971]1 GLR 488, Adu Boahene v The Republic [1972]1 GLR 70, and Kamil v The Republic [2011] SCGLR 300. *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 29 of 30 *HWMNJ@DC/BG-22/01/2025* 49. This court also recalls the purpose of sentencing to be punitive, calculated to deter others, to reform the offender, to appease the society and to be a safeguard to this country. The rate at which people take the law into their own hands and cause damage to other people’s properties as in the instant case must not be countenanced. To this end, a sentence or punishment that will deter other likeminded individuals from engaging in similar acts must be imposed. And now therefore, considering the circumstances of this case, plea of the learned counsel for accused persons for mercy or leniency, the fact that the accused persons are first time offenders, the general overcrowding in the prisons; prevalence of crime in this district, and being guided by Ghana Sentencing Guidelines as well as principles governing sentencing; the accused persons are hereby sentenced to twelve (12) months imprisonment with hard labour for each counts. The sentence is to run concurrently. 50. OR In The Alternative, and in accordance with section 148 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), the accused persons are to make outright payment of compensation in the sum of Two Thousand Six Hundred Ghana Cedis (GHC2,600.00) each amounting to Eighteen Thousand two hundred Ghana Cedis (GHC18,200.00) to the complainant or Ben Boka as well as pay a fine of Two hundred (200) penalty units each totaling one thousand four hundred (1,400) penalty units and in default of the fine the accused persons shall spend eight (8) months each in prison with hard labour for each counts. In addition, they shall sign a bond to be of good behavior to be of good behavior for twelve (12) months and in default six (6) months imprisonment. The sentence is to run concurrently. (SGD.) H/W MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE) *JUDGMENT-THE REPUBLIC VRS. GALLIMHUG YAKUBU & 6 OTHERS (CASE NO. B1/109/2023)* Page 30 of 30