REPUBLIC VRS NYAABA & 5 OTHERS (UE/BLG/DC/B1/45/2024) [2024] GHADC 652 (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. NYAABA ELIZABETH 2. AWUNI COMFORT AZIMI 3. ANABA AGUSTINA 4. MAAMA NBAA 5. ESI AWUNI 6. MAAME PETER TIME: 11:07AM ACCUSED PERSONS PRESENT EXCEPT A3 INSPECTOR BONIFACE DUVOR 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 25th day of September, 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. In addition, the 3rd, 4th, 5th, and 6th accused persons were charged for the offence of Assault contrary to section 84 of the Criminal Offences Act, 1960 (Act 29). The accused persons pleaded not guilty to the charges against them. *JUDGMENT-THE REPUBLIC VRS. NYAABA ELIZABETH & 5 ORS (CASE NO. B1/23/2024)* Page 1 of 20 *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 25/09/2023 is that the complainants- Abaa Tua Adajabia and Lardi Azangbe, and the accused persons are residents of Pwalugu near Tongo in the Talensi District. The complainants are traders having their summer huts at the Pwalugu market where they sell food or provisions. On 30/05/2023 at about 0800 hours the complainant Abaa Tua Adajabia was selling food at the market when the accused persons (A3, A4, A5 and A6) attacked and subjected her to severe beatings and in the process poured away her Bambara beans valued GH₵250.00 which she was selling. The complainant (Abaa Tua Adajabia) took to her heels and ran to Pwalugu police station and lodged a complaint. She was issued with a police medical report form to seek medical attention and report. She went to the hospital for treatment and thereafter proceeded to her house. 3. Subsequently, complainant Lardi Azangbe also went to the scene and saw all the accused persons destroying two (2) summer huts (wooden and zinc) belonging to her and complainant Abaa Tua Adajabia. They therefore lodged a complaint to the police. The accused persons were arrested and charged for the above-mentioned offenses. Burden of Proof 4. 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: *JUDGMENT-THE REPUBLIC VRS. NYAABA ELIZABETH & 5 ORS (CASE NO. B1/23/2024)* Page 2 of 20 *HWMNJ@DC/BLG-27/11/2024* 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: 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 *JUDGMENT-THE REPUBLIC VRS. NYAABA ELIZABETH & 5 ORS (CASE NO. B1/23/2024)* Page 3 of 20 *HWMNJ@DC/BLG-27/11/2024* 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”. 5. 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 6. 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 *JUDGMENT-THE REPUBLIC VRS. NYAABA ELIZABETH & 5 ORS (CASE NO. B1/23/2024)* Page 4 of 20 *HWMNJ@DC/BLG-27/11/2024* 7. 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. 8. 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 and Assault, Evaluation of Evidence and Legal Analysis 9. 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 *JUDGMENT-THE REPUBLIC VRS. NYAABA ELIZABETH & 5 ORS (CASE NO. B1/23/2024)* Page 5 of 20 *HWMNJ@DC/BLG-27/11/2024* 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 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. *JUDGMENT-THE REPUBLIC VRS. NYAABA ELIZABETH & 5 ORS (CASE NO. B1/23/2024)* Page 6 of 20 *HWMNJ@DC/BLG-27/11/2024* 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. 10. 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.” 11. In the case of Brobbey & Ors v. The Republic (1982-83) GLR 608, it was held as follows: *JUDGMENT-THE REPUBLIC VRS. NYAABA ELIZABETH & 5 ORS (CASE NO. B1/23/2024)* Page 7 of 20 *HWMNJ@DC/BLG-27/11/2024* ‘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: a. That damage was caused to the complainants’ properties (zinc and wooden summer huts). b. That it was the accused persons who caused damage to the complainants’ zinc and wooden summer huts. c. That the accused person intentionally caused the damage to the complainants’ properties. d. That the damage the accused persons caused was unlawful. 12. 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 *JUDGMENT-THE REPUBLIC VRS. NYAABA ELIZABETH & 5 ORS (CASE NO. B1/23/2024)* Page 8 of 20 *HWMNJ@DC/BLG-27/11/2024* of the different kinds of Assault. Section 84, 85 and 86(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” 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.” 13. 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 *JUDGMENT-THE REPUBLIC VRS. NYAABA ELIZABETH & 5 ORS (CASE NO. B1/23/2024)* Page 9 of 20 *HWMNJ@DC/BLG-27/11/2024* 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. 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. 14. In the instant case, the prosecution in an attempt to prove its case called three witnesses. PW1-Abaa Atua Adajabia testified as follows: “I am a trader. I reside at Pwalugu near Tongo. I own a zinc summer hut at the Pwalugu market where I sell food. On 30/5/2023 at about 0700 hours I was at the market selling when A3, A4, A5 and A6 came in and started raining insults on me that I am a foolish woman without any just cause. Then suddenly they pounds on me and subjected me to severe beatings and in the process poured away my cooked Bambara beans valued GH₵250.00. In the course of the attack, A3 used a stick *JUDGMENT-THE REPUBLIC VRS. NYAABA ELIZABETH & 5 ORS (CASE NO. B1/23/2024)* Page 10 of 20 *HWMNJ@DC/BLG-27/11/2024* and hit my left wrist and A6 also insulted me that my goiter. The accused person’s whiles beating me also told me that they will cause damage to my summer hut. I however managed and run to Pwalugu police Station and lodged a complaint to Police and I was issued with a medical report form to seek medical attention and report. Someday after visiting the hospital, I proceeded to the house and whiles there, complainant Lardi Azangbe came and informed me that, she visited the market and saw all the accused persons destroying my zinc summer hut together with her own. On receipt of the information I rushed back to the scene and saw that, my summer hut valued GH₵1500.00 was truly destroyed. I thereafter lodged a complaint to the Police.” 15. PW1-Lardi Azangbe testified that: “I am a trader. I reside at Pwalugu near Tongo. I own a wooden summer hut at the Pwalugu market where I sell food. On 29/05/2023 at about 1900 hours I was in the house when I heard there was a fight between the supporters of the old and new chiefs. In the course of the fight A1 and A2 came to my house to attack me and in the process they threatened to go and cause damage to my wooden summer hut at the market the following day. On 30/5/2023 at about 1200 hours I was on my way to the grinding mill but on reaching the Pwalugu market where my summer hut is located I saw all the accused persons destroying my summer hut. I also saw the accused persons destroying complainant Abaa Atua Adajabia zinc summer hut. On seeing the accused persons, I did not go close to them because I was afraid they might attack me. I later went back to the house and inform complainant Abaa Tua Adajabia about the incident. After which I lodged a complaint to Police.” 16. PW3-No. 11511 PW/Constable Apawor Freda testified that on 31/05/2023 she was the available investigator when an extract of occurrence of a causing unlawful damage case dated 30/05/2023 was brought from the Pwalugu Police *JUDGMENT-THE REPUBLIC VRS. NYAABA ELIZABETH & 5 ORS (CASE NO. B1/23/2024)* Page 11 of 20 *HWMNJ@DC/BLG-27/11/2024* Station and she was tasked to investigate. She stated that she visited the crime scene located at the Pwalugu market where the complainants’ wooden and zinc summer huts were destroyed. She took photograph of the scene of crime for evidential purposes. She tendered in evidence the following documents: Investigation Caution Statements of accused persons as Exhibits A, B, C, D, E and F respectively; Charged Statement of accused persons as Exhibit G, H, J, K, L and M respectively, and Photographs of the zinc and wooden huts damaged as Exhibit N Series (N1, N2, N3, N4, N5, and N6 respectively) and a Medical Report as Exhibit P. 17. The prosecution witnesses maintained during cross examination by the accused persons and their counsel that the accused persons caused damage to the complainants’ zinc and wooden summer huts, and that in addition, A3, A4, A5 and A6 assaulted Abaa Tuaa by beating her amidst insults. 18. 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 persons of the charges against them. The court also informed the accused persons 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. 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. *JUDGMENT-THE REPUBLIC VRS. NYAABA ELIZABETH & 5 ORS (CASE NO. B1/23/2024)* Page 12 of 20 *HWMNJ@DC/BLG-27/11/2024* 19. 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. 20. 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:- *JUDGMENT-THE REPUBLIC VRS. NYAABA ELIZABETH & 5 ORS (CASE NO. B1/23/2024)* Page 13 of 20 *HWMNJ@DC/BLG-27/11/2024* “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 21. 1st Accused Person- Nyaaba Elizabeth testified as follows: “It is not true that I conspired and caused damage to any summer hut. It was false allegation against me. I do not know anything about this matter. I was only there when they invited me to come to court. That is all I have say.” 22. From the explanation or defence of the 1st accused person, she denies knowing anything about this particular matter. A mere denial is not enough. For an 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. A1 called two witnesses but none of the witnesses were at the scene of crime and cannot tell who caused the damage. It is worthy of note that A1 2nd Witness testified as follows: “I sell food in the market so the following morning after we went to Tongo, I went and tell the 1st Accused that I wanted to buy vegetables so we both went to where 1st Accused farms her vegetables. We returned in the afternoon so I do not know what transpired that morning in the town.” *JUDGMENT-THE REPUBLIC VRS. NYAABA ELIZABETH & 5 ORS (CASE NO. B1/23/2024)* Page 14 of 20 *HWMNJ@DC/BLG-27/11/2024* 23. This court is of the view that if A1 and her witness were to be in a farm on the day of the incident, A1 would have told the court. The inference that could be drawn is that it is not likely that Al and her witness were in a farm but at the Pwalugu where A1 and other accused persons caused damage to the summer huts. A1 explanation is therefore unacceptable to this court. 24. 2nd Accused Person- Awuni Comfort Azimi testified as follows: “It is my uncle, my mother’s brother who was enskinned as the chief of Pwalugu. It was because of this occasion that I came down from south. It was the 3rd month after he attained the tittle that I came home. The chief was going to pay homage to the Tongo chief, so I followed them to the Tongo Ranan palace and on our return, there was a vehicle leading us and upon reaching the old chief’s palace people started pelting stones at our vehicle. In the course of pelting stones, they damaged the windscreen of the vehicle. At that time, we were only two women among the men in the vehicle. So our vehicle stopped and we the women alighted and run somewhere to hide. We later heard that the police had come to block the road. The Police offered to escort all those who wanted to get home. So when the police escorted us and I entered my house I never came out again because my house is very far from the old chief’s palace. The following day, I was going to my work place and I was informed that many people were fighting, only to be invited to the police station later on with the claim that I took part in damaging some summer huts. So at the Tongo police station I stated that I did not know anything about the summer hut. People were even surprised to see me because I have been away for a long time. That is all I know. 25. From her explanation, 2nd accused person claims “the following day [the day of the incident] I was going to my work place and I was informed that many people were *JUDGMENT-THE REPUBLIC VRS. NYAABA ELIZABETH & 5 ORS (CASE NO. B1/23/2024)* Page 15 of 20 *HWMNJ@DC/BLG-27/11/2024* fighting, only to be invited to the police station later on with the claim that I took part in damaging some summer huts.” However, her witnesses claim 2nd accused person was in indoors or at home throughout on the day of the incident. Also the 2nd accused person claims in her Investigation Caution Statement (Exhibit B and H) that she does not know the complainants. However, in her evidence before this court she admitted that she knows the complainants. The inconsistencies in the evidence of the accused person and her witnesses on one hand, and the statements accused gave to the police and her evidence in court on the other hand affect the credibility of the 2nd accused person which rendered her explanation unacceptable to this court. 26. The 3rd Accused Person-Anaba Agustina did not participate in the trial. 27. The 4th Accused Person-Maama Nbaa testified as follows: “I did not assault Abaa Tua Adajabra. I know nothing about this case. It was my mother’s brother who was enskinned as the chief. So we accompanied him to chief palace and I did not come back to the house. I visited the Hospital because my child was sick. That is all I know” 28. From 4th Accused Person’s explanation, she claims that she did not cause damage to complainant summer huts. She also claims on the day of the incident she was in the Hospital to attend to her child who was sick. Accused person gave statements to the police on 24/06/2023 (Exhibits D and J) but there is no where it is stated that A4 was in the Hospital on the day of the incident. This court is of the view that if A4 were to be in the Hospital she would have informed the police. The claim of the A4 that she was in a Hospital is an afterthought and the court finds her explanation unacceptable. *JUDGMENT-THE REPUBLIC VRS. NYAABA ELIZABETH & 5 ORS (CASE NO. B1/23/2024)* Page 16 of 20 *HWMNJ@DC/BLG-27/11/2024* 29. 5th Accused Person-Esi Awuni testified as follows “I did not commit any offence as alleged. I was part of the people who went to Tongo but I never took part in assaulting anyone or destroying anybody’s summer huts. When we returned from Tongo chief’s palace, I went straight to home-that is the chief’s place. Later in the night, I heard they were fighting but I did not go out. The following day, I and some other people were going to my husband brother’s house to greet them because we were told his son was wounded during the night fight. It was in our way going that I set my eyes on the said Abaa Tua Adajabra because her place of business is just by the main road and my husband brother’s house is at the opposite side of that road. It was later I heard she said we threw her Bambara beans away as well as destroyed her summer hut. But that is not true. That is my case.” 30. From the explanation of the 5th Accused Person, she claims she knows the complainants and that it was on her way to her brother’s house that they say Abaa Tua selling beans on the road side. However, in her statement to the police she claims she does not know the complainants and that on the day of the incident she was in the house whole day. The explanation or defence of the 6th accused person is not convincing as well as inconsistent. This court therefore finds the explanation of the 5th accused person unacceptable. 31. 6th Accused Person-Maame Peter testified as follows: “The truth is that it is my brother who won the chieftaincy contest and was enskinned as a chief and three month after he went to pay homage to the Tongo chief. When we were returning form Tongo chief’s palace, some people could not get seat in the OA bus so we entered boat of the bus. When we arrived at our Chiefs palace, there was merry making. I greeted them and proceeded home. The following morning around 6am I called my people in Pwalugu to find out how they *JUDGMENT-THE REPUBLIC VRS. NYAABA ELIZABETH & 5 ORS (CASE NO. B1/23/2024)* Page 17 of 20 *HWMNJ@DC/BLG-27/11/2024* were faring after the visit to Tongo. I heard a lot of noise at the background and I was informed there was a fight so I quickly rush and came to Pwalugu. When I got to the chief palace I realised that my brother Samuel Aduwuni was butchered on the heard with cutlass. I leant A3 was also wounded with a stone and she was on admission at the Hospital. I went to A3’s house and we were on our way to Amaloo Teni’s house, then we were passing by Abaa Tua who was selling beans on the roadside, it was there Abaa Tua insulted A3 and I intervened and said it was not right because A3 is equally her daughter. Abaaa Tua went further to say if we go to Tongo to get chieftaincy tittle why don’t we stay in Tongo. I also responded whether it was her fuel we used to carry ourselves there. We started insulting each other, so it was there someone advised me that I should stop and go away. So I took the advice and went home at Arigu. On the next Market day of the Pwalugu community, I came to the market to see my goods and around 4pm I received a message that I was being invited to the Tongo police station and since it was late, I went to the police station the following day. At the police station, I was told the complainant says I poured her beans away. I told the investigator that it was not true. I told the police I will invite the girl who was selling the beans. That is my case.” 32. From the explanation of 6th accused person, she was moving with A3 when they saw Abaa Tua selling beans. There was misunderstanding between them and they insulted each other. This court is of the view that at the time they were insulting each other, if they had not assaulted Abaa Tua she would not have reported them to the police. The inference that could be made is that due to this incident A6 and A3 joined the other accused persons to cause damage to the summer huts. This court therefore finds the explanation of A6 unacceptable. *JUDGMENT-THE REPUBLIC VRS. NYAABA ELIZABETH & 5 ORS (CASE NO. B1/23/2024)* Page 18 of 20 *HWMNJ@DC/BLG-27/11/2024* 33. Finally, from the evidence, A4, A5 and A6 admitted seeing Abaa Tua on the day of incident selling beans on the road side. This court is of the view that if they had not attacked her, she would not have reported them to the police. This court therefore holds that A4, A5 and A6 assaulted Abaa Tua by beating or touching her during the exchange of words among them without her consent or any justification in law. Conclusion 34. 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 regarding the charges against the accused persons. 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 complainants wooden and zinc summer huts. Accordingly, the accused persons are hereby found guilty of 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 4th, 5th and 6th accused persons are also found guilty of assaulting Abaa Tua, one of the complainants. The accused persons are therefore convicted for the crime of conspiracy to commit crime and causing unlawful damage as well as Assault accordingly. Mitigation of Sentence and Sentence 35. Counsel for the accused persons pleaded with the court to temper justice with mercy and be lenient to the accused persons. He submitted that the accused persons are first time offenders. *JUDGMENT-THE REPUBLIC VRS. NYAABA ELIZABETH & 5 ORS (CASE NO. B1/23/2024)* Page 19 of 20 *HWMNJ@DC/BLG-27/11/2024* 36. 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. 37. 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 1st and 2nd Accused persons are hereby sentenced to pay a fine of One hundred (100) penalty units (GHC1,200.00) each and in default four (4) months imprisonment with hard labour for each counts. The 4th, 5th and 6th Accused persons are also sentenced to pay a fine of One hundred and fifty (150) penalty units (GHC1,800.00) each and in default four (4) months imprisonment with hard labour for each counts. The sentence is to run concurrently. (SGD.) H/W MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE) *JUDGMENT-THE REPUBLIC VRS. NYAABA ELIZABETH & 5 ORS (CASE NO. B1/23/2024)* Page 20 of 20