REPUBLIC VRS. FRIMPONG AND OTHERS (CC/116/ /2024) [2024] GHADC 588 (30 December 2024)

IN THE DISTRICT COURT, NEW EDUBIASE HELD ON MONDAY 30TH DECEMBER, 2024 BEFORE HER WORSHIP ANASTACIA Y.A. KARIMU ESQ. CASE NO: CC116/ /2024 THE REPUBLIC VRS. 1. TIEKU FRIMPONG 2. THOMAS DANQUAH TIEKU 3. HERBERT TIEKU BOADU JUDGMENT 1. This judgment is in relation to the offence of assault. 2. The accused persons were first arraigned before this court differently constituted on 16th June, 2023. All three accused persons were charged with one count of assault contrary to section 84 of the Criminal Offences Act, 1960 (Act 29) while the first accused person was charged with an additional count of resisting lawful arrest contrary to section 226(1) of the Criminal Offences Act, 1960 (Act 29). They all pleaded not guilty. 3. The facts as presented by the prosecution are that on 30th May 2023, the first complainant Thomas Awusi and his family members including the accused persons met at their late mother Adwoa Donkor’s house to perform a customary rite known as “Afenhyiada.” As part of the rites, the clothes of the deceased were to be shared among her siblings. Job Asiamah, a brother of both the first accused person and the complainant, was in possession of the key to Page 1 of 16 their mother’s room but did not show up at the house. The first complainant passed a comment to the effect that Job Asiamah would have been at their mother’s house if the matter for discussion was the sale of a plot of land. The second accused person took exception to this statement and slapped the first complainant. The first and third accused person then pounced on the first complainant and beat him. The first complainant proceeded to the DOVVSU desk of the New Edubiase police station and reported the incident. He was issued with a medical form and instructed to attend a hospital for treatment and endorsement of the form. 4. On 10th June, 2023 the second complainants, policemen from the New Edubiase District police command accompanied the first complainant to Adansi Apagya to apprehend the accused persons. When they arrived, they met the first accused person in his house, and after explaining the reason for their presence there, the second complainant attempted to arrest the first accused person. The first accused person refused to be arrested and stated that the only circumstance under which he would be arrested is if he is dead. Just then, the second and third accused persons arrived at the house. The second complainant informed them of the reason for their presence and asked them to follow him to the police station and they agreed. However, the first accused person prevented them from accompanying the second complainant to the police station. The complainants left the house of the accused persons and returned to the police station. On 12th June, 2023 the accused persons reported to the DOVVSU desk of the New Edubiase police station where they were arrested. 5. After investigations all three accused persons were charged with the offence of assault contrary to section 84 of the Criminal Offences Act, 1960 (Act 29), while the first accused person was charged with an additional count of resisting Page 2 of 16 lawful arrest contrary to section 226(1) of the Criminal Offences Act, 1960 (act 29). At the close of the case for the prosecution, the court found a prima facie case had been established for the offence of assault but not for the offence of resisting lawful arrest. 6. It is a fundamental rule of our criminal practice that an accused is presumed to be innocent until proven guilty by a court of competent jurisdiction. This is enshrined in Article 19(2)(c) of the Constitution, 1992 as follows “(2) a person charged with a criminal offence shall… (c) be presumed innocent until he is proved guilty or has pleaded guilty.” Hence, in all criminal trials, the burden of proving crime lies with the Prosecution who have alleged that the accused person has committed the offence charged. 7. In the case of Woolmington v. DPP (1935) AC 462, Viscount Sankey LC stated the principle as follows: “Throughout the web of the English criminal law one golden thread is always seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject to any statutory exception.” 8. Also, in the case of Commissioner of Police v. Antwi [1961] 1 GLR 408, the Supreme Court held that “The fundamental principles underlying the rule of law are that the burden of proof remains throughout on the prosecution and the evidential burden shifts to the accused only if at the end of the case of the prosecution an explanation for circumstances particularly within the knowledge of the accused is called for. The accused is not required to prove anything, if he can merely raise reasonable doubt as to his guilt, he must be acquitted.” 9. The Evidence Act, 1975 (NRCD 323) provides for how this burden above ought to be discharged and that is by the production of sufficient evidence to establish Page 3 of 16 the guilt of the accused person beyond a reasonable doubt. Section 11 (2) of NRCD 323 provides that: “In a criminal action the burden of producing evidence when 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.” 10. Section 13 (1) of NRCD 323 also provides that: “In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.” 11. Sufficient evidence is not limited to a fixed number of witnesses nor to certain types of evidence. What is required of the prosecution is to produce enough evidence from which the guilt of the accused can be inferred. Thus, in Boakye v. The Republic [1999-2000] 1 GLR 740 it was held that the evidence of just one credible witness if believed was enough to support a criminal conviction including murder. And so long as the rules of admissibility in NRCD 323 are complied with, evidence adduced by the prosecution will be deemed sufficient if it meets the standard of proof required by the law. 12. It is trite learning that the standard of proof of crime is proof beyond a reasonable doubt. In the oft cited case of Miller v. Minister of Pension (1947) 2 AER 372 Lord Denning J (as he then was) explained proof beyond reasonable doubt as follows: "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 strong against a man as to leave a remote possibility in his favour which can be dismissed with the sentence ‘of Page 4 of 16 course it is possible but not the least probable,’ the case is proved beyond reasonable doubt, but nothing short of that will suffice." 13. In the case of Abdulai Fuseini v. The Republic [2020] CRIM LR 331, Dotse, JSC (as he then was) stressed that the term ‘beyond a reasonable doubt’ means the prosecution must be sure that sufficient evidence has been shown to establish the ingredients of the offence for which an accused person has been charged so that on the whole of the evidence the court would be satisfied that the accused person has in fact committed the offence. 14. However, before the prosecution can be said to have proved a crime beyond a reasonable doubt and obtain conviction against the accused, they had to overcome the first hurdle, which was to establish a prima facie case against the accused persons. this hurdle they overcome on 30th July, 2024 when the court ruled that they had established a prima facie case against the accused persons on the charge of assault and called on them to open their defence. The court however acquitted and discharged the charge of resisting lawful arrest against the first accused person as no evidence was led in support of this charge. 15. The accused persons opened and closed their defence on 30th October, 2024. The court will not proceed to analysis their case against that of the prosecution. 16. The prosecution called three witnesses in support of its case. 17. The first prosecution witness Thomas Awusi relied on his witness statement filed on 1st September,2023 in which he stated that he is an aluminium fabricator living at Ahwia near Kumasi. The first accused person is his elder brother, while the second and third accused Herbert Tieku Boadu are the children of the first accused, hence his nephews. Page 5 of 16 18. According to him, on 30th May 2023, he went to Adansi Apagya to perform the customary rite known in Akan language as "Afenhyieda" for their late mother Adwoa Donkor. All his siblings including the three accused, as well as other family members were present. The family decided to open the door to their late mother's room and distribute her clothing to them. However, their brother Job Asiamah who had the keys to their late mother's room, was absent. They waited a while for his brother, but he did not show up. The family members then began to pass comments about his lateness. He also passed a comment to the effect that if the meeting was about the sale of a parcel of land Job would have been the first person to arrive at the house. The third accused on hearing this, responded that his statement was nonsense. The family members in response told the third accused to keep quiet because he is not a child of the deceased. The second accused then walked to where he was seated and slapped him. He felt severe pains in his face and put his face in his palm. The first and third accused also pounced on him and hit the back of his neck with their fists. His uncle Owusu, Baffour Kyei, and Amos Kwabena Nkansah (PW2) came to his aid, helped him to his feet, and took him from the scene. Baffour Kyei and uncle Owusu accompanied him to the New Edubiase Police Station where he lodged a formal complaint. He was issued with a Police medical report form to attend hospital for treatment and endorsement. 19. The second prosecution witness Amos Kwabena Nkansah relied on his statement filed on 1st September,2023 in which he stated that he is a farmer and lives at Adansi Dompoase. The first complainant and prosecution witness Thomas Awusi is their younger brother while the first accused is their elder brother. The second and third accused are the children of the first accused. Page 6 of 16 20. On 30th May,2023 he was at their late mother Adwoa Donkor's house with the complainant and the accused persons for her "afienhyieda" celebration. All his siblings were present except Job Asiamah. The family members began to complain about the tardiness of Job Asiamah who was in possession of the key to their late mother’s room. Thomas Awusi also added that if the meeting was about the sale of a parcel of land, Job Asiamah would have been the first person to arrive at the house. He heard the third accused reply to Thomas Awusi that he should put a stop to that nonsense comment. He responded to the third accused that he should keep quiet because he is a grandchild. He then saw the second accused walk to where the complainant was seated and slap him. The first and third accused then pounced on the complainant and beat him with their fists until he fell from the chair on which he was sitting. He together with Bafour Kyei rushed to the aid of the complainant and took him away from the house. Later the complainant went to New Edubiase Police Station and reported the matter after which he gave a statement to the Police. 21. The third prosecution witness, D/Pw/ Inspector Ernestina Awanu relied on her witness statement filed on 1st September, 2023 in which she stated that she is policewoman stationed at the DOVVSU desk, New Edubiase police station. She knows all the witnesses in this case. She also knows the accused persons. On 30th May, 2023 at 8:30pm, a case of assault reported by the first complainant against the three accused persons was referred to her for investigation. She took a statement from the complainant and issued him with a police medical report form to attend Hospital for examination and endorsement. She also took statements from Amos Kwabena Nkansah, Baffour Kyei, Chief Inspector Charles Acheampong, Inspector Maxwell Nyadanu, and Sergeant Joseph Tengey. Page 7 of 16 22. On 12th June, 2023 she arrested the three accused persons after the first complainant identified them as his assailants and after informing them of the reason for their arrest. She took investigation caution statements from the accused persons. After close of her investigations, she was instructed to charge the accused persons with the offence of assault and resisting lawful arrest. 23. She tendered the following into evidence: a. Exhibit A - the investigation cautioned statement of the first accused person dated 12th June, 2023 b. Exhibit B - the investigation caution statement of the second accused person dated 13th June, 2023 c. Exhibit C - the investigation caution statement of the third accused person dated 12th June, 2023. d. Exhibit D - the charge statement of the first accused person dated 12th June, 2023. e. Exhibit E - the charge statement of the second accused person dated 13th June, 2023. f. Exhibit F - the charge statement of the third accused person dated 12th June, 2023. g. Exhibit G - the endorsed Police medical report form issued to the first complainant dated 30th May, 2023. 24. When the accused persons were ordered to open their defence, they elected not to say anything but called Mercy Frimpomaah to testify on their behalf. According to the witness, she knows the complainant and the accused persons. The complainant and the first accused person are her late sister Adwoa Donkor's children. The second and third accused persons are the children of the first accused person. The complainant is the last born of the late Adwoa Page 8 of 16 Donkor while the first accused person is the eldest. Sometime in 2014 the complainant beat his mother Adwoa Donkor. He was consequently arrested and remanded by this. court, differently constituted. After this incident, the complainant stopped talking to his mother. 25. In 2018, the complainant’s mother fell sick, but the complainant never visited her until she died on the 15th of January, 2020. Since it was COVID-19 time, the family buried her late sister on the 4th of May, 2020 without organizing her funeral. The family met several times to discuss plans to organize the final funeral rites of her late sister. The complainant never showed up at any of these meetings. The complainant always rained insults on the first accused person. He is a troublesome person and always wants to call for a fight when there is no issue. 26. Kwabena Aboagye, her late sister's son, also died in September 2022 and the family decided to organize both funerals together. The family fixed both funerals on the 27th and 28th May, 2023. During the funeral, anytime the complainant saw the first accused person, he will insult him for no reason. This continued until the second day of the funeral. She called the first accused as mother to calm him down, told him to tolerate the complainant's insults and take it as the complainant is young and does not know what he is doing. On the second day, that is Sunday 28th May, 2024, Kwame Kyei, the complainant's friend took the microphone and announced that Amos Kwabena Nkansah is the successor of the late Kwabena Aboagye and the complainant is the successor of her late sister, Adwoa Donkor. The first accused person then countered that Kwame Kyei is not a family member and cannot appoint a successor to her late sister. The first accused person said according to the norms of our family, the family will be celebrating the one year anniversary of her late sister and their mother on Tuesday, 30th May, 2023. It is at this celebration that Page 9 of 16 the family will appoint a successor to her late sister. This statement angered the complainant, and he again insulted on the first accused person. On 30th May, 2023, the complainant again insulted the first accused person in his absence when the family gathered to celebrate the one year anniversary of her late sister. The second accused person was not happy about it and confronted the complainant and asked him why he disliked the first accused person so much. She did not see the accused persons raise their hands on the complainant despite the complainant insulting the first accused person on many occasions. After the insults, the complainant took away all the monies they got at the funeral and anytime they raised that issue up, the complainant will insult them. 27. Section 84 of the Criminal Offences Act, 1960 (Act 29) provides as follows: “A person who unlawfully assaults another person commits a misdemeanour.” Section 86(1) of Act 29 defines assault and battery as follow: “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.” From the above provision, the prosecution is required to prove that: a. the accused persons forcibly touched the first complainant b. That the touch was without his consent, and c. That the accused persons touched him with intent to cause him harm, pain, fear, or annoyance. 28. Section 86(2)(c) and (d) of Act 29 defines touch as follows: “(c) the slightest actual touch suffices for assault and battery, if the intention is an intention as is required by this section. (d) a person is touched, within the meaning of this section, if the body is touched, or if the clothes or any other thing in contact with the body or with the clothes on the body are or is touched, although the body is not actually touched...” Page 10 of 16 29. It is inconsequential whether by their touch, the accused persons intended to cause harm, pain, fear or annoyance to the complainant. What matters is the outcome of the touch. Section 86(2)(e) of Act 29 defines intention as follows “ for the purpose of this section, with respect to intention to cause harm, pain, or fear or annoyance, it is immaterial whether the intention is to cause the harm, pain, fear, or annoyance by the force or manner of the touch itself or to forcibly expose the person, or cause that person to be exposed, to harm, pain, fear, or annoyance from any other cause.” 30. In the case of Comfort and Another v. The Republic [1974] 2 GLR 1, the court held that “By section 86(1) of the Criminal Code, 1960 (Act 29), a person commits an assault and battery when, essentially, there does not exist the other person’s consent. Consent, therefore, generally negatives any offence of assault.” 31. Proof of physical harm is not a requirement for the offence of assault and battery. In the case of Asante v. The Republic [1972] 2 GLR 177, the court held that “Proof of assault is established by evidence of conduct of the accused falling within one or the other of the definitions of assault in sections 86, 87, and 88 of Act 29; but proof of any act of the accused indicating an intention to use violence…would suffice.” 32. The first prosecution witness stated that he was first slapped by the second accused person. Shortly thereafter, the first and third accused persons joined the second accused person to beat him without provocation. This is what he stated in paragraphs 10 to 13 of his witness statement: “I passed a comment that if it were to be a parcel of land to be sold Job would have been the first person to arrive here. A3 on hearing my comment replied to me that my statement was nonsense. The family members responded to A3 to keep quiet because he is not part of the siblings. A2 walked to where I was seated and slapped my face. Instantly I felt severe pains in my Page 11 of 16 face and rest it on my palm. A1 and A3 also pounced on me, and they hit the back of my neck with their fist.” 33. The evidence of the first prosecution witness that the accused persons beat him was amply corroborated by the second prosecution witness. His evidence is as follows: “I saw A2 walk to where Thomas Awusi was seated and slapped his face. Our elder brother A1 and A3 also pounced on Thomas Awusi and beat him with his fist, and he fell from his chair. Bafour Kyei and I rushed into the aid of the complainant, took him away from the scene.” Section 7(1) of the Evidence Decree, 1975 (NRCD 323) defines corroboration as “Corroboration consists of evidence from which a reasonable inference can be drawn which confirms in some material particular the evidence to be corroborated and connects the relevant person with the crime, claim or defence.” While the law does not mandate corroboration for the offence of threat of death, the law is that where the identity of an accused is in issue, there can be no better proof of his identity than the evidence of a witness who mounts the witness- box and swears that the man in the dock is the one he saw committing the offence the subject-matter of the charge before the court: Adu Boahene v. The Republic [1972] 1 GLR 70. 34. During cross examination by the accused persons, the first prosecution witness maintained that he was beaten without provocation. When it was the turn of the second prosecution witness, he like the first prosecution witness, was emphatic that all three accused persons, contrary to the assertion of the first accused person, were present at the house of the late Adwoa Donkor and beat the first prosecution witness without provocation. There can be no better evidence than a witness who insists he was present at the time a crime was committed. Page 12 of 16 35. The above evidence supports the assertion of the prosecution that the accused persons herein forcibly touched the complainant on 30th May, 2023 by slapping and beating him without his consent with intent to cause him harm, pain, fear or annoyance. This assertion is however denied by the accused persons who insist they did not beat the complainant. The response of the accused persons is a complete denial of the offence. This position was supported by their witness Mercy Frimpomaah who stated in her evidence that it was rather the complainant who insulted the first accused person in his absence on 30th May, 2023. She also stated that the first accused person was not at the house at the time the complainant insulted him. However, the second accused person was present. Thus, the decision of this court is going to be based on the evidence on oath of the prosecution witnesses against the evidence on oath of the accused persons. 36. The law is settled that where a decision of a court depends on the oath of the prosecution’s witness against that of the accused, the trial court must carefully examine the evidence of all the witnesses as well as other evidence on record before deciding which of the two versions of the event is reasonable. In Lutterodt v. Commissioner of Police [1963] 2 GLR 429, the court held that, “Where, as in this case, the decision turns upon the oath of one prosecution witness against that of a witness for the defence, it is incumbent upon the trial court to examine the evidence of each of those two witnesses carefully along with other evidence to the other; and where his preference is for the prosecution he must make it appear from his judgment that his said preference is reasonable, for the principle of law is that if the court could not find reasonable grounds for preferring the evidence of the prosecution witness to contradictory evidence given by a defence witness, the prosecution has failed, because there would, at least, be reasonable doubt as to which of the two conflicting versions of the story is true, and the benefit of that doubt must be given to the defence.” Page 13 of 16 37. The law is equally settled that a court cannot reject the defence of an accused person simply because it does not believe it. The court is under obligation to consider whether or not the defence of the accused is reasonably probable. It is only after consideration of the explanation of the accused that the court can conclude the guilt or otherwise of the accused person. In the case Lutterodt v. Commissioner of Police (supra), the court further held that where a trial court “… forms the opinion that a prima facie case has been made, the court should examine the case for the defence in three stages: a. Firstly, it should consider whether the explanation of the defence is acceptable, if it is, that provides complete answer, and the court should acquit the defendant; b. If the court should find itself unable to accept, or if it should consider the explanation to be not true, it should then proceed to consider whether the explanation is nevertheless reasonably probable, if it should find it to be, the court should acquit the defendant; and c. Finally, apart from the defendant’s explanation or the defence taken by itself, the court should consider the defence such as it is together with the whole case, i.e. prosecution and defence together, and be satisfied of the guilt of the defendant beyond reasonable doubt before it should convict, if not, it should acquit.” 38. In The Republic v. Victor Selormey [2001-2002] 2 GLR 424, the court affirmed the above principle as follows, “Even if the court does not believe the defence the court must still go further and consider whether the explanation being offered by the accused person is reasonably probable. It is only when the defence has been considered in this light, that the court could come to a conclusion as to the guilt of the accused person.” 39. What other evidence is there on record? The exhibits tendered by the third prosecution witness which were admitted without objections from all three Page 14 of 16 accused persons. These are filled with inconsistencies vis-a-vie the cross- examination by the accused persons of the prosecution witnesses. In Exhibits A and D, the first accused person told the investigator that on 30th May, 2023 when it was time to pour libation, some of the family members, namely the complainant, Kyei Kwame, Uncle Asiamah, the second and third accused persons were absent. He together with Opanin Yaw Boafo poured libation after which he returned to his own house. Hence the complainant, the second and the third accused persons were absent from the family meeting. Therefore, the incident in question did not occur. However, in exhibits B and E, the second accused person places himself and the third accused person at the crime scene but states that his father was the one who was not present. He insists that it was rather the complainant who slapped him when he confronted him about his incessant insult of his father. In exhibits C and F, the third accused person places himself and the second accused person at the crime scene and also states that it was rather the first accused person who was not present when the complainant insulted them. However, the first accused person came to the scene to witness the scuffle between the complainant and the second accused person. He helped him to pull the second accused person away from the complainant. Th first accused person claims the complainant was not present at the crime scene. Yet his children, the second and third accused persons place the complainant at the crime scene. They admit a scuffle ensued after the complainant allegedly insulted the first accused in their presence. This was confirmed by the defence witness. 40. Throughout the trial the first accused person stated that the complainant was not at the crime scene on 30th May,2023 and therefore the incident the subject matter of this case did not take place. He also attempted, unsuccessfully, as is to be expected of a loving father to create the impression his children were also not present on that day. Unfortunately for him, his children thwarted his efforts Page 15 of 16 when they cross-examined the prosecution witnesses and in Exhibits B, C, E, and F. The first accused person also stated that on the day of the incident, the only activity that took place was the pouring of libation. Yet again, his children thwarted his efforts to protect them when they stated that the goal of the family meeting of 30th May, 2023 was to share the properties of their grandmother, the first accused person and the complainant’s mother. Neither the second nor the third accused persons mentioned libation ceremony on that day, neither did the defence witness. 41. The second accused person claimed in exhibits B and E that he confronted the complainant after he insulted him, the first and third accused persons. Yet in cross- examination, he stated that the complainant rather accused him, together with the second accused persons of selling family lands. This is what he said on 23rd April, 2024 “I put it to you that you made a statement to the effect that if we were stealing lands, my father would have been there already.” 42. I find as a fact that no libation was poured on 30th May, 2023. The family of the late Adwoa Donkor met to share her properties. Present at the meeting was the complainant, all three accused persons and other family members. I also find as a fact that all three accused persons, the complainant, the siblings of the first accused person and the complainant, and other family members were present at the said meeting. I equally find as a fact that the complainant uttered words which the accused persons found offensive. They reacted to the said utterance by assaulting the complainant. I thus find the accused persons guilty of assault. They are accordingly convicted. H/W ANASTACIA Y.A. KARIMU ESQ. [MAGISTRATE] Page 16 of 16