REPUBLIC VRS APIIBILA & 5 OTHERS (UE/BLG/DC/B1/45/2024) [2024] GHADC 651 (27 November 2024)

*HWMNJ@DC/BLG-27/11/2024* CORAM: HIS WORSHIP MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE), SITTING AT THE DISTRICT COURT, BOLGATANGA IN THE UPPER EAST REGION OF GHANA, ON WEDNESDAY, THE 27TH DAY OF NOVEMBER, 2024 CASE NO: UE/BLG/DC/B1/45/2024 THE REPUBLIC VRS. 1. APIIBILA SIMON 2. ATOBIGA MATHEW 3. AWUNI COMFORT AZIMI 4. TENI AMALOUG 5. NYAABA ELIZABETH 6. ACHAA MARK (AT LARGE) TIME: 11:58AM ACCUSED PERSONS PRESENT EXCEPT A6 INSPECTOR BALIKI ISSAKA FOR THE REPUBLIC PRESENT RICHARD ADAZABRA, ESQ. FOR THE ACCUSED PERSONS PRESENT JUDGMENT Introduction 1. The accused persons were brought or arraigned before this court on the 8th day of December, 2023 and charged for the offences of Conspiracy to commit crime, namely Causing Unlawful Damage and Causing Unlawful Damage contrary to sections 23(1) and 172 of the Criminal Offences Act, 1960 (Act 29) as amended. The accused persons pleaded not guilty to the charges against them. *JUDGMENT-THE REPUBLIC VRS. APIBILA SIMON & 5 OTHRS (CASE NO. B1/45/2024)* Page 1 of 19 *HWMNJ@DC/BLG-27/11/2024* Facts of Prosecution’s Case 2. The facts of the case as presented to the court by the prosecution and attached to the charge sheet filed on 29/11/2023 is that the complainant and the accused persons are natives and residents of Pwalugu. On 30/05/2023 at about 07:30 hours the complainant was in his farm when he received a call from his wife, Baatieyam Akolbila (PW2) indicating that the accused persons came and attacked her and others in the house amidst pelting of stones. The complainant on receipt of the information, rushed to the house. On reaching home, he saw all the accused in the company of a group of people numbering about hundred at the frontage of his house pelting stones on his roof. The complainant however managed and went into the house and rescued his wife and two children to a different house for safety. The complainant thereafter rushed back to his house to reuse his aged mother but the accused persons intensified their actions and caused grievous damages to his aluminum roofing sheet valued GH₵2,500.00, one VRA Electric meter, six louver blades valued GH₵200.00 and PVC pipe also valued GH₵150.00. The complainant later lodged a complaint to police and the accused persons were arrested and after investigations 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. *JUDGMENT-THE REPUBLIC VRS. APIBILA SIMON & 5 OTHRS (CASE NO. B1/45/2024)* Page 2 of 19 *HWMNJ@DC/BLG-27/11/2024* 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: 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 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. 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 *JUDGMENT-THE REPUBLIC VRS. APIBILA SIMON & 5 OTHRS (CASE NO. B1/45/2024)* Page 3 of 19 *HWMNJ@DC/BLG-27/11/2024* 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: “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 *JUDGMENT-THE REPUBLIC VRS. APIBILA SIMON & 5 OTHRS (CASE NO. B1/45/2024)* Page 4 of 19 *HWMNJ@DC/BLG-27/11/2024* 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. 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 and Causing Unlawful Damage, Evaluation of Evidence and Legal Analysis 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.” *JUDGMENT-THE REPUBLIC VRS. APIBILA SIMON & 5 OTHRS (CASE NO. B1/45/2024)* Page 5 of 19 *HWMNJ@DC/BLG-27/11/2024* 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 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 *JUDGMENT-THE REPUBLIC VRS. APIBILA SIMON & 5 OTHRS (CASE NO. B1/45/2024)* Page 6 of 19 *HWMNJ@DC/BLG-27/11/2024* 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: “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 …. *JUDGMENT-THE REPUBLIC VRS. APIBILA SIMON & 5 OTHRS (CASE NO. B1/45/2024)* Page 7 of 19 *HWMNJ@DC/BLG-27/11/2024* 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: a. That damage was caused to the complainant’s properties (aluminum roofing sheet, one VRA Electric meter, six louver blades and a PVC pipe) b. That it was the accused persons who caused damage to the complainant‘s properties. c. That the accused person intentionally caused the damage to the complainant’s properties. d. That the damage the accused persons caused was unlawful. 11. In the instant case, the prosecution in an attempt to prove its case called three witnesses. PW1-Akolbilla Azindoug testified as follows that: “On 30/05/2023 at about 0730 hours I was at the farm when I received a call from the witness (PW2) indicating that they have been attacked by some group of people in the house. On receipt of the information, I returned to the house. On reaching home, I saw all the accused persons leading a group of people numbering about *JUDGMENT-THE REPUBLIC VRS. APIBILA SIMON & 5 OTHRS (CASE NO. B1/45/2024)* Page 8 of 19 *HWMNJ@DC/BLG-27/11/2024* hundred wielding cutlasses and sticks at the front of my house whilst pelting stones on my roofing. The accused persons were also agitating to attack me and my wife so I ask them why they were here and A4 told me that someone from my house attacked and assaulted one Adawuni from their clan. On reaching home, I also saw the witness (PW2) together with my children and other family members who run out of house and were standing few meters away. I later proceeded to rescue my aged mother who was left in the house but the accused persons intensified their actions and I got stranded inside one of the room with my mother. The accused persons during the attack, caused damage to my rooms roofing valued GH₵2,500, one VRA electricity meter, six louver blades valued GH₵200.00 and one PVC pipe valued GH₵150.00. On seeing the damage caused in my house due to accused persons’ action, I decided to lodge a complaint to police. I know all the accused persons very well because we all stay in the same vicinity at Pwalugu community” 12. PW2-Baatieyam Azindoug testified as follows: “On 30/5/2023 at about 0600 hours I was in the house together with my mother in-law- Nboo Anamonsi, George Anamonsi and my children when the complainant told me he was going to the farm at Arigu to work. Whilst in the house at about 1730 hours my five years old child Lord Azindoug who was at the frontage of the house playing came and told me to come out and see something. I later rushed out but to my dismay I saw all the accused persons leading a group of people numbering about hundred wielding cutlasses and wooden sticks and surrounded the house. Suddenly the accused persons on seeing me started pelting stones on the house roofing. On seeing that, I picked my child and run to a nearby house few meters away for safety after which I called and informed the complainant. I later returned home and saw that, one VRA electricity meter, *JUDGMENT-THE REPUBLIC VRS. APIBILA SIMON & 5 OTHRS (CASE NO. B1/45/2024)* Page 9 of 19 *HWMNJ@DC/BLG-27/11/2024* A PVC Pipe and some of the roofing were damaged out of the accused persons’ actions.” 13. PW3-No. 11511 PW/Constable Freda Apawor testified that on 31/05/2023 she was the available investigator on duty when an extract of occurrence of causing unlawful damage case dated 30/5/2023 was brought from Pwalugu Police Station and she was asked to investigate. She stated she visited the crime scene located at Pwalugu where the complainant’s one Electricity meter, PVC pipe, five louver blades and room roofing’s were destroyed. She took photographs of the scene for evidential purposes. She tendered in evidence the following documents: Investigation Caution Statements of accused persons as Exhibits A, B, C, D and E respectively; Charged Statements of accused persons as Exhibit F, G, H, J and K respectively, and Photographs of the items damaged as Exhibit L Series (L1, L2, L3, L4, L5, L6, L7, L8 and L9 respectively). 14. The prosecution witnesses maintained during cross examination by the accused persons and their counsel that the accused persons conspired and caused damage to complainant’s properties such as roofing sheet valued GH₵2,500, one VRA electricity meter, six louver blades valued GH₵200.00 and one PVC pipe valued GH₵150.00. 15. Upon the close of prosecution’s case the court found that there was a prima facie or sufficient case against the accused persons 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 *JUDGMENT-THE REPUBLIC VRS. APIBILA SIMON & 5 OTHRS (CASE NO. B1/45/2024)* Page 10 of 19 *HWMNJ@DC/BLG-27/11/2024* concerning their guilt. Thus, Sankey LC noted in the case of Woolmington vrs. Director of Public Prosecutions [1935] AC 462 at 481 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. 16. 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’. See also the case of Lutterodt vs. Commissioner of Police [1963]2 GLR 429. 17. 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 *JUDGMENT-THE REPUBLIC VRS. APIBILA SIMON & 5 OTHRS (CASE NO. B1/45/2024)* Page 11 of 19 *HWMNJ@DC/BLG-27/11/2024* 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 Defence or Explanation of Accused Persons and Legal Analysis 18. 1st Accused Person-Apiibila Simon testified as follows: “It was my elder who was enskinned as a chief of our community and we accompanied him to the Tongo chief palace. On our return using the road that passes by the old chief’s palace, when we got to the old chief palace, they had dug a trench to cross the road. I was part of those leading the chief’s car on foot, so we were trying to remove what they used to block the road and one young man from the old chief palace called Roger Nvone came and pushed me to down, scaffold ensued between us. In the course of the confrontation that was taking palace somebody held my shirt at the back. When I turned to look, one Agaliongo Alamisi slapped me, they also destroyed Mathew’s (A2's) motor bike and that escalated the whole issue. That same night I was at the police station and a medical form was giving to me to go to the hospital. Other people also came to make the same complaints. I got to know that people from the old chief palace had ambush and was attacking those from the new chief’s side. On that *JUDGMENT-THE REPUBLIC VRS. APIBILA SIMON & 5 OTHRS (CASE NO. B1/45/2024)* Page 12 of 19 *HWMNJ@DC/BLG-27/11/2024* day, I spent the night at the hospital as I was afraid of being attacked. The following morning on my way home I saw a crowd along the road by the old chief palace and I went and passed by. I do not know whether the destruction of the complainant’s property had taking place before I got there or it was after I had passed. Sometime people can hate you for no reason, so I believe my name was mentioned as a result of that. The police claim I organised the mob but that is not true as I have no capacity to do organise a mob. If it was a crowd that attacked complainant property, how come only we the accused person’s names have been mentioned? I therefore know nothing about the destruction of the property of the complainants. If I have any issue with the complainant I would have approach him face to face and not to destroy his property including government property. I have good relationship with the complainant in this case, I even visit him on the last adjourned date, If I had problem with him I would not have visited him, I know nothing about the destruction of the properties. That is all I have to say.” 19. From the explanation or defence of the 1st accused person, he denied causing damage to complainant properties (aluminum roofing sheet, one VRA Electric meter, six louver blades and a PVC pipe). He testified that “On that day, I spent the night at the hospital as I was afraid of being attacked. The following morning on my way home I saw a crowd along the road by the old chief palace and I went and passed by. I do not know whether the destruction of the complainant’s properties had taking place before I got there or it was after I had passed.” He however stated in his statement to the police on 12/06/2023 (Exhibit A) that he was part of the mob who three the stones at complainant’s house but he did not threw stones. *JUDGMENT-THE REPUBLIC VRS. APIBILA SIMON & 5 OTHRS (CASE NO. B1/45/2024)* Page 13 of 19 *HWMNJ@DC/BLG-27/11/2024* “It was a mob who started throwing stones at each other but closer to the complainant’s house but I did not throw stones into the complainant’s house even though I was part of the mob….” 20. PW1 testified that he saw the accused persons throwing stones at the complainant’s house which led to the damage of the complainant’s properties. She emphasized that even though the people were many, those he mentioned to the police are the people who threw the stones. The inference that could be drawn is that 1st accused person threw stones at the complainant’s house thereby causing damage to the items listed otherwise his name would not have been mentioned. I therefore find the explanation of the 1st accused person unacceptable. 21. The 2nd Accused Person-Atubiga Ayine Matthew testified as follows: “The truth is that we went to Tongo and our brother was enskinned as a chief. In our way back from Tongo, I was riding a big motorbike leading the convoy. On reaching the house of the old chief, I was attacked and my motorbike was destroyed. On the following day, I was on my way to our chief’s palace to greet him and inform him about how my motorbike was destroyed. The road leading to the new chief’s palace passes by the old chief’s palace. I do not know anything about the destruction of the property, because I am not a royal to be involved in chieftaincy fight. On the day we want to Tongo, I went there because I was also a resident of the community but not that I was from one of the fractions or chiefs side. When my motor was destroyed, I went to make complaint at the police station. Since I reported the matter to police, no action has been taken but I have been brought to court for what I do not know about.” *JUDGMENT-THE REPUBLIC VRS. APIBILA SIMON & 5 OTHRS (CASE NO. B1/45/2024)* Page 14 of 19 *HWMNJ@DC/BLG-27/11/2024* 22. A2 also claims he was just passing by the road to the new chief’s palace to greet him and inform him about how his motorbike was destroyed the previous night. Indeed in his statement to the police on 14/06/2023 (Exhibit B) he stated as follows: “On 30/05/2023 at about 0700 hours I only passed through a road by the complainant house to the newly enskinned chief palace. I did not know anything about the damage caused to complainant roofing and electric meters.” 23. It is worth noting that PW1 and PW2 testified that even though the people were many the accused persons were the ones they saw throwing the stones at the complainant’s house. This court is of the view that if A2 was just passing by the road to the new chief’s palace without throwing a stone his name would not have been mentioned as part of the accused persons. This court therefore finds the explanation of the A2 unacceptable. 24. The 3rd Accused Person- Awuni Comfort Azimi testified as follows: “I know nothing about this particular matter. I am surprised at the accusation leveled against me. I never heard of the destruction of the items in this case. I only heard there was a fight in the community. What I heard was that because my uncle was enskinned the chief, people on the side of the old chief were not happy and that brought the fight. That is all I know.” 25. From her explanation, A3 denies causing damage to the complainant properties. In her evidence in court she claims she knows the complainant but in her statement to the police on 14/06/2023 (Exhibit C) she claims she does not know the complainant. In Exhibit C she also claims on the day of the incident *JUDGMENT-THE REPUBLIC VRS. APIBILA SIMON & 5 OTHRS (CASE NO. B1/45/2024)* Page 15 of 19 *HWMNJ@DC/BLG-27/11/2024* she was in Kumasi to buy some hairs and creams for her work but in her evidence before the court she stated she was in her house when the incident happened on 30/0525 and that she heard people talking about the incident on the street. The contradiction in her statement to the police and evidence in court leads to the conclusion that she is not worthy of credit. This court therefore finds explanation of A3 which merely denies the offence unacceptable. 26. 4th Accused Person-Teni Amaloug testified as follows: I am trader. I operate a provision store. I usually leave the house at Pwalugu Soe before 6am to come to Pwalugu to open my shop. On that fateful day, I was in shop. I did not go to the scene of incident. When day break, I am always in my shop. “ 27. From her explanation, A4 claims she was in her shop and was not at the scene of crime on the day of the incident. PW1 testified that A4 was present on the day of the incident and PW2 asked her as an elderly woman what she was doing there, but she rather encouraged others accused persons to cause damage to the complainant properties. PW1 and PW2 also confirmed that even though the people were many the accused person are the ones they saw throwing the stones at the complainant’s house. PW2 testified that the accused persons were also agitating to attack him and his wife so he asked them why they were there and A4 told him that someone from his house attacked and assaulted one Adawuni from their clan. A4, in her evidence also claims she knows the complainant but in her statement to the police on 14/06/2023 (Exhibit D) she stated she does not know him. This court is of the view that A4 is not worthy of credit due to the contradictions in her statement he gave to police and evidence in court. This court therefore finds the explanation of the A4 unacceptable. *JUDGMENT-THE REPUBLIC VRS. APIBILA SIMON & 5 OTHRS (CASE NO. B1/45/2024)* Page 16 of 19 *HWMNJ@DC/BLG-27/11/2024* 28. 5th Accused Person-Nyaaba Elizabeth testified as follows “It is a false accusation against me. I never set foot in his house and let alone damage his properties. It is false accusation against me. I never threw anything at his house. That is all I can say in this matter.” 29. From her explanation, A5 denies knowing anything about this particular matter. A mere denial is not enough. For the explanation of an accused to be acceptable or reasonably probable after a prima facie case is found against him or her, the explanation must be convincing. It is worthy of note that all the accused persons claims the house of the old chief palace is closer to the road leading to the new chief palace and that they went to Tongo using that road a day before the incident in the instant case. In other words, the evidence on record shows that the road leading to the new chief’s palace passes by the old chief’s palace. According to A5 she does not know the old chief palace. A5 denial of knowing the old chief palace cast doubts on her credibility and her evidence is to be taken with a pinch of salt. A5 explanation is therefore unacceptable to this court. Conclusion 30. So, having examined the whole evidence of the prosecution and Defence on record, the court is of the considered opinion that the prosecution has discharged its burden of proof beyond reasonable doubt with regards to counts 1 and 2. Thus, the ingredients of these offences were proved beyond reasonable doubt. In other words, apart from the defence’s explanation, this court is satisfied on a consideration of the whole evidence that the accused persons are guilty of conspiracy as well as causing unlawful damage to complainant’s aluminum roofing sheet, one VRA Electric meter, six louver blades and one PVC pipe. Accordingly, the accused persons are hereby found guilty of *JUDGMENT-THE REPUBLIC VRS. APIBILA SIMON & 5 OTHRS (CASE NO. B1/45/2024)* Page 17 of 19 *HWMNJ@DC/BLG-27/11/2024* conspiracy to commit crime, namely-causing unlawful damage and causing unlawful damage contrary to sections 23(1) and 172(1)(b) of the Criminal Offences Act, 1960 (Act 29) respectively. The accused persons are therefore convicted for the crime of conspiracy to commit crime and causing unlawful damage. Mitigation of Sentence and Sentence 31. Counsel for the accused persons pleaded with the court to temper justice with mercy and be lenient to them. He submitted that accused persons are first time offenders. 32. 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. 33. Now therefore, considering the circumstances of this case, plea of the counsel for accused persons for mercy or leniency, the fact that the accused persons are first time offenders, the general overcrowding in the prisons as well as principles governing sentencing, the Accused persons are hereby sentenced to pay a fine of one hundred (100) penalty units (GHC1,200.00) each and in default three (3) months imprisonment with hard labour for each counts. The sentence is to run concurrently. (SGD.) *JUDGMENT-THE REPUBLIC VRS. APIBILA SIMON & 5 OTHRS (CASE NO. B1/45/2024)* Page 18 of 19 *HWMNJ@DC/BLG-27/11/2024* H/W MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE) *JUDGMENT-THE REPUBLIC VRS. APIBILA SIMON & 5 OTHRS (CASE NO. B1/45/2024)* Page 19 of 19