Republic v Afena and Others (B10/08/2018) [2024] GHADC 791 (28 November 2024)

SITTINGINTHE DISTRICT COURT ATWENCHI IN THEBONO REGION ON THURSDAY THE28TH DAY OF NOVEMBER,2024,BEFOREHIS WORSHIP ISSAH ABDUL-WAHAB(MAGISTRATE) CASE NO. B10/08/2018 THEREPUBLIC VRS: 1. KOFI AFENA 2. KOFI AFENA PRINCE 3. KWAMEBROSAM 4. KOFI SREHA. 5. AFRIYIETAWIAH@ YAW TAWIAH 6. YAWFIRI @ IGP 7. ATTASAMUEL JUDGMENT The accused persons named herein were arraigned before this court on the 5th day of February,2018 for the offences Under Sections 207 and 75 of the criminal offences Act 1 1960 (Act 29), namely Offensive Conduct, condusive to the Breach of the Peace and ThreatofDeathrespectively. The accused pleaded not guilty to the said charges after same were read and explained tothemintwi. The court upon a careful examination of the particulars of the offences as stated on the charge sheet and the facts as presented by the prosecution, set the following issues downfor trial; (1) Whether or not the accused engaged in any conduct on the date and place stated; (2) Whetherthe said conduct oftheaccused was offensive; (3) Whether or not the conduct of the accused could potential occasion any breachofthe peace. (4) Whether or not the accused persons here spoke the words stated by the prosecutionto wit”we will kill you”. (5) Whetherornot thesaid wordsconstituteany threat; (6) Whetherornot thesaid wordswere directed at the complainant and (7) Whetherthe wordsput thecomplainant inany fear ofdeath The facts of the case as presented by the prosecution are that the complainant is one Ama Agyapomaa who is a farmer and resides at Techiman. The accused persons herein 2 are also live at Nwoase near Wenchi. That on the 17th day of November,2017 there was Yam Festival and Apor festival as well at Nwoase. That after the celebrations, the youth in the town comprising men and women, led by some elders were put into various groups and tasked to visit every home to thank them for their support during the festivals. That when the accused persons entered the house of the complainant, the complainant and a witness in the case advised the accused not to remove the stick used to block the gate in order not allow for animals to enter and eat the maize they dried in the house. That the accused persons became offended and rained insults on the complainant and the witness to wit “foolish women, prostitute and useless”. That they also threatened the complainant and the witness that they (accused) will kill them. Th at complainant and the witness for feat of their life reported the matter to the Nwoase police and same was forwardedtothe District C.IDfor investigation. That the 6thand 7thaccused persons ie Yaw Firi, and Atta Samuel went into hiding but were later on the 18th day of January,2018 they were served with accused summons to appear before this court on the5th day ofFebruary,1018. All accused were then put before this court on the said date after police investigations fortrial. 3 The overall evidence of the prosecution in prove of the charges consisted of the testimonies oftheir three(3) witnesses including the police investigatorofthe case. The first prosecution witness (P.W.1) who is also the complainant in the case told the court she is Ama Agyapomaa and that she is a farmer. P.W.1 said she knows the other prosecution witnesses as well as the accused persons. That on the 17th day of November,2017 she was in her house at Nwoase with a witness one Esther Asamoah (P.W.2). That she (P.W.1) had at the time dried some maize and cassava chips on the compound. That the house has no proper gate and so she used a stick to block the entrance to prevent animals like sheep and cows from entering the house to feed on the dried maize and cassava chips. Then suddenly she (P.W.1) saw A6 (Yaw Firi) forcing himself into the house. She (P.W.1) then asked A6 not to remove the stick used in blocking the entrance as she (P.W.1) and P.W.2 were about to go out to make a police call. P.W.1 said at thatpoint A7 thenasked who she (P.W.1) is? And asked if P.W.1 has any land. And that they were doing what will let them beat them to death. That if they had beatensome of them to death long time, the rest of them would have ran away from the town and leave their land. That there A7 then started removing thesticks used to blockthe gateand throwing same ather (P.W.1) andP.W.2. That the rest of the accused then started insulting them (P.W.1 and P.W.2) whiles throwing the stick used at the entrance at her (P.W.1) and P.W.2. That the accused then 4 threatened to beat her (P.W.1) and P.W.2. That the accused insulted them as prostitutes, useless women among other words. That the accused said they will beat them (P.W.1 and P.W.2) to death like rats. That the conduct of the accused drewa lot of people to the scene and which people joined the accused in hooting at them (P.W.1 and P.W.2). P.W.1 said the behavour of the accused put feat of death in her. P.W.1 said she and P.W.2 did not react and that her (P.W.1) uncle Kwaku Tannor (now late) who was sick at the time was also around. That her (P.W.1) mother who had gone out to buy Pepsodent was returning and saw the accused and then ran away into a nearby bush. That the mother (now late) did not return until the accused left the house. P.W.1 said she then went with P.W.2tothe Nwoase police station to lodgeacomplaint. That the people who came to the house to attack them (P.W.1 and P.W.2) were more than hundred (100) people but it was the seven (7) accused persons she was able to identify because they followed up to where they were sitting. P.W.1 said she gave a statementto thepolice. The second prosecution witness (P.W.2) told the court she is Esther Asamoah and that she is a farmer. P.W.2 said she knows the other prosecution witnesses as well as he accused persons. That on the 17th day of November,2017 she was in their house at Nwoase with P.W.1. 5 That they had dried maize and cassava chips on the compound. That because the house has no proper gate, they used stick to block the entrance to prevent sheep and cows from entering to feed on the maize and cassava they dried. That whiles there they suddenlysaw YawFri(A6) force himself intothe house. That there P.W.1 asked A6, not to remove the stick as they (P.W.1 and P.W.2) were going out to make a phone call. That A7 Atta Samuel then asked P.W.1, who are you? And asked if P.W.1 has any land. That they (P.W.1 and P.W.2) were doing what they will do so they will beat them to death. That if they (accused) had beaten them to death long time the rest of them would have run away from the town and leave their land. That A7 then started removing the sticks at the gate and throwing same at them (P.W.1 and P.W.2). That the rest of the accused started insulting them. That the accused threatened to beat them amidst insults. That the behavour of the accused put fear of deathin her(P.W.2). P.W.2 said they did not react to the actions of the accused for them to beat them to deathastheypromised. That their motherwho had gone outandwas returning saw the accused and raninto a nearby bush and did not return until the accused persons left the house. The witness (P.W.2) said she and P.W.1 then went to the Nwoase police station to lodge a complaint against the accused persons. That she later gave a statement to the police. 6 The third and final witness (P.W.3) for the prosecution was the police investigatorof the case. He said he is Detective Inspector Edmund T. Anzoli stationed at the Wenchi District Police CIDas aninvestigator. That he knows the accused and the prosecution witnesses herein. That he took over the case after the initial investigator D/C/Insp. Seth Sekou retired from the service. That on the 22nd day of November,2017 an extract of occurrence was received from the Nwoase police station that the accused persons went to the house of P.W.1 and verbally abused her (P.W.1) and threatened to kill her (P.W.1). That the accused were then invited and cautioned. The caution and charge statements of A1 were admitted and marked as ‘A’ and ‘A1’. Caution and charge statements of A2 marked ‘B’ and ‘B1’. Cautioned and charge statements of A3- marked ‘C’ and ‘C1’. Cautioned and charge statements of A4 marked- ‘D’ and ‘D1’, Caution and charge statements of A5- marked ‘E’ and E1’. Caution and charge statement of A6- marked ‘E’ and ‘E1’ and then Caution and charge statement of A7-markedas ‘G’and ‘G1 respectively. After the prosecution closed their case, the court called on the accused to open their defence. 7 In their evidence in chief the accused persons here (ie A1, A2, A3, A4, A6 and A7) with the exception of A5- Afriyie Tawiah (whose evidence was more of a claim of Alibi) gave same narration ofwhat happened onthe said 17thday ofNovember,2017. A summary of the testimonies of A1, A2, A3, A4, A6 and A7 is as follows. That they are natives of Nwoase and they know the complainant Ama Agyapomaa (P.W.1) who is also from Nwoase. They contended that it is not true that they threatened P.W.1 with death and also insulted her. That before the said 17th day of November,2017, Nana Kofi Drobo IV celebrated his annual yam festival. And that as the tradition in Nwoase the natives of Nwoase during the said festival present tubers of yams, fowls, sheep and variousitemsto Nana KofiDrobo IVforthe festival. That because of that after the festival each year, Nana Kofi Drobo IV, sends his servants who are selected and put into various groups to visit every household irrespective of whether they donated any item or not, to thank them. That so on the 17th day of November,2017 they went round various household. Until they got to the house of the complainant (P.W.1)to greetthemandtothank them. That they did same and after which they left for their respective houses. A1 stated that even on that day, the 5th and 7th accused persons, ie Afriyie Tawiah and Atta Samuel, were not part of the group that went to the house of the complainant. The accused stated that it is not true that they went to the complainant’s (P.W.1) house to insult her 8 and also threatened to beat her to death. The accused noted that it came to them as a surprise when the complainant (P.W.1) reported to the police that they the insulted and threatened her(P.W.1). In his evidence in chief A5, Afriyie Tawiah told the court he never insulted or threatened the complainant (P.W.1). That on the said 17th day of November,2017, the very day that the complainant claimed he (A5) insulted her, he (A5) was sent by Nana Kofi Drobo IV to Kintampo-Nwoase to represent him at their annual Krurubi festival. That he went with, Nana Dwatuahene, Okyeame Nkokwabour and 3otherpersons. A5 tendered a photograph he took on the said day in Kintampo for the people mentioned which photograph was admitted and marked as Exhibit ‘1’. That on the said day they left Nwoase at about 8am and came back at about 8pm after the Krurubi festival. Then on the 26th of November,2017 he (A5) was informed by the Assembly man of Nwoase that he is needed by the police at Wenchi. When he (A5) enquired from the Assembly man why he was needed he told him (A5) that P.W.1 had lodged a complaint against him (A5) and the others. That he then went to the police station in the company of the Assembly man. They took his statement and granted him bail. He was later charged and broughttocourt. The sole witness of the accused persons, (D.W.1) told the court he is KofiAfena and that he lives at Nwoase and is also the Sanahene of Nana Kofi Drobo IV. That he knows the 9 accused who are all servants of the Nana Kweku Friri shrine and by extension of Nana Kofi Drobo IV. That he also knows the complainant (P.W.1) who is a native of Nwoase. That in the month of November, each year the people of Nwoase celebrate the yam festivaland whichis presided overby the KwakuFriri shrine. D.W.1 said prior to the celebrations, the indigenes of Nwoase present fowls, sheep, tubers of yam, etc to the chief priest in support of the celebrations. That in November,2017, that is on the 17th day, the annual yam festival was celebrated as usual and same presided over by the current priest, Nana Kofi Drobo IV. That after the successful celebration, D.W.1 said he as the chairman of Planning Committee selected some servants (men of the shrine) including the accused persons and put them into two (2) groups to go and greet and thank all the households in Nwoase for their kind support during the celebration of the festival. That the first group was assigned Dadease ( a community at Nwoase) and in that group was A1, A2, A3, A4 and A6 to go and greet the Dedease households. That the second group was suppose to go to Krotial Ampayoo to greet the households as well and the 7th Accused person (A7) was among, those assigned to Krotia/Ampayoo D.W.1 said around the same time the festival was celebrated, Nana Kofi Drobo IV received an invitation from Kintampo Nwoase to attend their Krurubi festival. That as a result, he (D.W.1) instructed the Dwantuafouhene, Nana Anto Harrison to go and represent Nana Kofi Drobo IV at the Krurubifestivalat Kintampo since Nana KofiDrobo IVwasunable to attend personally. 10 D.W.1 said he consequently assigned Afriyie Tawiah (A5) and others to accompany the Dwantuafouhene to Kintampo. That they went to Kintampo in the morning and returned the same day in the evening (ie 17/11/2017) D.W.1 said everything was successful doneas directed. The witness said he was therefore surprise to hear the following day that the police had invited the accused persons to the Wenchi police station for interrogation after a complaint against themby P.W.1. That A5 who was assigned to a different role and also A7 was assigned to a different place ie Krotia/Ampayoo on the said day in question were also made part of the accused persons. D.W.1 said it is not true that the accused personsthreatened and insulted the complainant inthe instant case. That the complainant against the accused persons is borne out of malice and hatred for thembecause theyare servantsofNana KofiDroboIV. Having examined the evidence, as adduced before this court,it is importantto state that the law generally in criminal trials is that the burden of proof in the sense of the burden of establishing the guilt of the accused is on the prosecution and failure on the part of theprosecution to dischargethat burdenmust lead tothe acquittalofthe accused. This statement of the general law is a succinct restatement of the provisions of Section 11 (2) of the Evidence Act of 1975 (NRCD 323) by the Supreme Court of Ghana in the case ofDonkorVs The State {1964}GLR, 598SC. 11 Section 11 (2) of the Evidence Act 1975 (NRCD 323) provides the standard burden required of the prosecution in a charge against an accused person. The section 11 (2) provides that; “ In a criminal action, the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence ofthefact beyondreasonable doubt”. It is also the law as per the burden on the prosecution that the guilt of the accused must be proved beyond every doubt as required by law. The court held in the case of Yeboah Vs The Republic {1972} 2 GLR, 289, that the guilt of the accused in criminal trial must be proved withthe degreeofcertainty thatis required by law. Upon a careful evaluation of all the evidence it is instructive to make the following observations. Firstly that the prosecution contended that the accused persons conducted themselves in the house of the complainant and in a manner that had the potential of breaching the peace as same was offensive. This was the testimonies of the 1st and 2nd prosecution witnesses, ie Ama Agyapomaa and Esther Asamoah respectively. The witnesses both told the court there were in their home on the said 17th day of November,2017 when the accused persons herein came to their house. They witnesses both told the court on that day the accused came to the house and were entering. They then told the accused not to 12 remove a certain stick they had used to block the entrance to their house to prevent stray animals from eating some maize and cassava they dried in their compound. So from these rendition by the complainant (P.W.1) and P.W2, as gleaned from their testimonies, there was no expressed instructions from them to the accused not to enter their house. The instruction or communication they gave was to the extent that the accused showed not remove the stick. That in my view is different from any instruction to the accused nottoenterorcome intothe house. This means that the accused was required even after entering the house to still keep the stick in place to prevent the animals from coming in as noted by the prosecution witnesses. However the defence in their evidence stated that the chief priest of the Kweku Fri shrine, Nana Kofi Drobo IV sent them in groups after a successful celebration of the yam festival, to thank every household for their support during the festivities. This according to the accused was their mission on that fateful day in the house of the complainant (P.W.1). Whereas this strong ascertion by the accused was not controverted by the prosecution, same was however corroborated by the sole witness of the accused (D.W.1) one Kofi Afena, who also testified before the court. The witness, Kofi Afena told the court he is the Sanahene of Nana Kofi Drobo IV. D.W.1 told the court the people of Nwoase each year celebrate the yam festival under the supervision 13 of Nana Kofi IV. He noted that he (D.W.1) was chairman of the 2017 celebration planning committee and that after the said celebrations, they selected some of the servants of the Kweku Firi shrine to go round every household in Nwoase to thank the subject for their support during the celebrations. That these servants included the accused persons herein who were in a group that went to the house of the complainant. So clearly the evidence has established the fact that the presence of the accused in the house of the complainant (P.W.1) could not have been for any other reason either than forpeace. And it did not matter as suggested by the prosecution during cross-examination that the complainant (P.W.1) and her household did not donate any items for the celebration to warrant any thanks giving from the accused. Indeed both the accused and their witness Kofi Afena told the court the visit as always done each is not only for those household that donated items. That even those households that could not donate are equally visited and thanked forsuccessful celebration. Again, it is important to also observe that both P.W.1 and P.W.2 told the court that only Yaw Firi (A6) forced himself into the house. Granted that it was only Yaw Firi (A6) that enteredand eventhat he forced himself into the house as the entrance was blocked with sticks, did the complainant tell the said A6 not to enter house? Certainty not. No said evidence exist in the testimony of both P.W.1 and P.W.2. What they both said was for 14 the stick (s) not to be removed which means after entering they should keep the stick in place in other to prevent animal from coming in because of the maize and cassava they dried in the compound. This can be gleaned from paragraphs 6 and 7 of Ama Agyapomaa’s evidence and also inparagraphs6and 7ofEstherAsamoah’s testimony respectively. Indeed the defence contended that the ascertion by the prosecution that all 7 accused personswent tothe house of the complainant (P.W.1) and tothe Dadease area could not be true as A5- Afriyie Tawiah was part of a delegation Nana Kofi Drobo IV sent to Kintampo to represent him at the Krurubi festival on that same day. And that the delegation left in the morning of that 17th November,2017 and came back later in the evening same day. It was therefore not possible for A5 to still be part of the group that went tothe Dadease area. The accused tendered Exhibit ‘1’, which is a group photograph taken on the said 17th day of November,2017 in Kintampo. The 5th Accused, Afriyie Tawiah was indeed part ofthe delegationas shown in thesaid Exhibit ‘1’. The defence again argued that contrary to the claim by the prosecution that A7, Atta Samuel was part of the accused that A7 was assigned to a different group which also went to the Krotia/Ampayoo area and was nowhere near Dadease as claimed by the prosecution. 15 This was the testimony of A7 and which was also corroborated in maternal detail by D.W.1, Kofi Afena who chaired the Planning Committee and said he did the groupings of the servants for the area visits. This was not controverted by the prosecution in any way in their evidence and notevenwhenthey cross-examined A7. Finally, it must be noted that the prosecution told the court the accused threatened P.W.1and withdeathand therebyput P.W.1in some eminent fear ofdeath. The complainant stated in paragraph 13 of her evidence the following; “ we will beat you to death as rats”. The witness did not state which of the accused person uttered the said words. And was it the case that 7 accused persons used the same and exact words of threat; as they were all charged with the said offence of threat of death. Clearly this leaves this court with serious doubts as to the veracity of the prosecutions ascertions relativeto thealleged use ofthe said wordsofthreatby theaccused. From the evidence and the above observations sterming from the evaluation of same, I found the following asfacts; (1) That the accused persons and the complainant are natives of Nwoase and knowsthemselveswell. (2) That in the said 17th day of November,2017 the accused were part of other persons sent by Nana Kofi Drobo IV to visit the households in Nwoase to thank themfor asuccessful celebrationofthe yamfestival thatyear. 16 (3) That the accused as part of the errands also visited the house of the complainant hereintothank them. (4) That in the house of the complainant (P.W.1) the accused were never told not toenterthe house. (5) That the alleged words of threat of death have not been escribed to any other accused by the prosecution witnesses. The offence of offensive conduct condusive to the breach to the breach of Peace is createdby Section207.The Section207States; “ Any person whom a public place or at any public meeting uses threatening, abusive or insulting words or behavour with intent to provoke a breach of the peace or where by a breach of the peace is likely to be occasioned shall be guilty of a misdemeanor”. From the provision of Section 207 quoted above for the prosecution to succeed in a charge of offensive conduct condusive to the breach of peace, the prosecution must provethe essential ingredientsofthe offence; That is (a) That theaccused conducted themselves in amanner that wasoffensive; (b) That thesaid conduct was directed at the complainant herein. (c) That theconduct was at apublic place, and (d)That theconduct ofthe accused had the potentialtobreach the peace. 17 Before I deal with the legal question of whether or not the house of the complainant herein Ama Agyapomaa is a public place, I wish to state first that nothing in the evidence of the prosecution supports the position that the accused persons herein went tothe house ofthe complainant forthe purposes ofanymisconduct. Indeed the point has been forcefully made that the visit to the house of the complainant on that fateful day was just one several visits to all the households in the town of Nwoase after the celebration of the yam festival that year. And so the evidence of the prosecution has not established any misconduct or any deliberate effort on the part of theaccused tobreach anypeace. Having therefore stated that, the next issue to resolve is whether or not the house of Ama Agyapomaa (P.W.1) isapublic place? Section 1 of the first chapter of the criminal offences Act 1960 (Act 29) defines a public place to include a public way, and a building place or conveyance to which the public areentitled orpermitted tohave access; Then the Public Order Act, 1994 (Act 491) Section 10 explaining a “ public place” to mean a place to which at the maternal time the public have or are permitted to have accesswhether orpayment orotherwise”. 18 Then the Ganging Act, 2006 (Act 721) Section 72 defines a public place as an area which isgenerallyaccessible toallmanner ofpersons”. It is again instructive to note that the meaning of a public place has further been explained in the case of GABA Vs The Republic {1984-86} 1 GLR, 694, where the court held that “An essential ingredient of the offence Under Section 207 is that if must be committed in a public place. No offence is committed in a private house in which the public has no access. This quarrel in a house is not sufficient to support prosecutions Under the Section 207 because aprivate house is notapublic place”. Then on the offence of Threat of Death contrary to Section 75 of Act 29 of 1960, the Section provides that; “ whoever threatens any other person with death, with intent to put thatpersonin fear ofdeath, is guiltyofasecond degreefelony”. Sotosucceed onacharge UnderSection 75,theprosecution must show that; (a) There wasathreat; (b) That the threat was by the accused and which was directed at the complainant; (c) That thesaid threatput the complainant into aneminent fear ofdeath. 19 Here, it must be noted that the prosecution even though charge all the accused person with the offence Under Section 75, the evidence led by the prosecution fails shout of establishing thecharge against the accused persons. With the exception of A7, Atta Samuel whom both P.W.1, Ama Agyapomaa and P.W.2 Esther Asamoah mentioned as having uttered the alleged words of threat’ to wit you people are just doing what you will do for us to beat you to death”. None of the remaining 6 accused persons. It has been named by the prosecution us having issued any such threats. Even, with that claim against A7 Atta Samuel, the said accused (A7) denied the allegation and contended that on the said 17th day of November,2017 he was not with the group that went to the houses in Dadease and so could not have been with the other accused persons at the time they visited the house of P.W.1. This was heavily corroborated by the testimony of D.W.1, Kofi Afena, who said he is the Sanahene of Nwoase and the chairman ofthePlanning Committee atthe time. D.W.1 in his testimony told the court he did the groupings ofthe servantsfor the thanks giving and that A7, Atta Samuel was put in the group that went to the Krotia area which means A7 was not with the other accused persons when they went to the house ofP.W.1, and so could nothave usedthose wordsstated bythe prosecution. Finally, it is curious to observe that there is some inconsistency in the words alleged used byA7 whichthe prosecution saidconstitute wordsofthreatofdeath. 20 It is important to point out that in the particular of the offence Under Section 75 as captured on the charge sheet, the prosecution said the accused persons (All 7 of them) threatened oneAma Agyapomaa withwordstowit “We will killyou”. Then in the evidence of Ama Agyapomaa herself as contained in her witness statement adopted as her testimony before this court Ama Agyapomaa told the court A7, Atta Samuel said the following to her (P.W.1) “ who are you? Do you have land here? You people arejustdoing what youwill doforus tobeat youtodeath”. Then P.W.2, Esther Asamoah also stated exactly what Ama Agyapomaa said A7 told her. The consistency is therefore is what is said were the words used by A1 the accused persons as captured in the charge sheet as per the particulars of the offence, and what P.W.1and P.W.2 said A7 alone said. The question therefore is who threatened, P.W.1, the complainant, was it all the accused persons or only A7? Clearly there are still more questions in the mind of this court than answers. And this is even after the prosecution has put forward all their evidence in proving the charge against the accused. And the law as already stated is trite that the guilt of the accused must be proved with the degree of certainty that is required by law. And this is proofbeyond allreasonabledoubt. SeeYeboahVs The Republic(Supra). 21 Having considered all the evidence and the law as stated it is my considered conclusion that the prosecution has failed to prove the charges against the accused persons beyond reasonable doubt and as required by law. The accused are therefore not guilty of the charges. The reasonsfor theaboveconclusions include; (1) That the day the accused went to the house of the complainant (P.W.1) was forthanksgiving which waspart ofthe customoftheplace aftertheir festival. (2) That theaccused were notinthe for anymisconduct. (3) That the house of the complainant (P.W.1) is not a public place properly so called ordesignated by law. (4) That the claim that the accused persons threatened P.W.1 with death is not supportedby the evidence. (5) That the prosecution failed to prove the charges beyond reasonable doubt and as required by law. The accused personsherein are accordinglyacquitted and discharged. 22 COUNSEL MR.SIMONABLEDU, ESQ FORTHE ACCUSED PERSONS D/INSPJOHNAGAYRE FOR THE PROSECUTION ……………SGD………… H/W/ ISSAH ABDUL- WAHAB (MAGISTRATE) 23