REPUBLIC VRS APATIBIRE & ANOTHER (UE/BG/DC/B4/21/2024) [2024] GHADC 648 (20 November 2024)

HWMNJ@DC/BLG-20/11/2024 CORAM: HIS WORSHIP MR. MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE), SITTING AT THE DISTRICT COURT, BOLGATANGA IN THE UPPER EAST REGION OF GHANA, ON WEDNESDAY, THE 20TH DAY OF NOVEMBER, 2024. CASE NO: UE/BG/DC/B4/21/2024 THE REPUBLIC VRS. 1. AWINPOKA APATIBIRE 2. AMOBIRE APATIBIRE TIME: 09:40AM ACCUSED PERSONS -PRESENT INSPECTOR DAVID DELALI OSAE FOR THE PROSECUTION - PRESENT NO LEGAL REPRESENTATION FOR THE ACCUSED PERSONS JUDGMENT Introduction 1. The accused persons herein were brought or arraigned before this court on the 16th April, 2024 and charged for the offence of Assault contrary to Section 84 of the Criminal Offences Act, 1960 (Act 29) as amended. The accused persons pleaded not guilty to the charge against them. 2. On the 17th day July, 2024 the court in consideration of the nature of the offence as not amounting to felony and not aggravated in degree referred the *JUDGMENT-THE REPUBLIC VRS. A. APATIBIRE & ANOR (CASE NO. B4/21/2024)* Page 1 of 17 HWMNJ@DC/BLG-20/11/2024 case to the Court Connected Alternative Dispute Resolution pursuant to section 73 of the Courts Act, 1993 (Act 459) as amended. The said section provides that: “Any court, with criminal jurisdiction may promote reconciliation, encourage and facilitate a settlement in an amicable manner of any offence not amounting to felony and not aggravated in degree, on payment cases of compensation or on other terms approved by the court before which the case is tried, and may during the pendency of the negotiations for a settlement stay the proceeding for a reasonable time and in the event of a settlement being effected shall dismiss the case and discharge the accused person.” 3. However, the complainant and the accused persons were unable to resolve the matter out of court, so the court proceeded to determine the case on its merit. Case of the Prosecution 4. The case of the prosecution as presented in court and attached to the charge sheet filed on 16th April, 2024 is that complainant, Anafo Linda is a hair- dresser whiles the 1st accused person is a farmer and 2nd accused person is unemployed. The complainant and the accused persons are residents of Dua- Yikene, Bongo. On 13/04/2024 at about 0800hours, complainant went to a borehole which is closer to the accused persons’ house to fetch water. She met A1 who was already at the borehole fetching water. A1 upon seeing the complainant started laughing at her as well as threatening her with the words *JUDGMENT-THE REPUBLIC VRS. A. APATIBIRE & ANOR (CASE NO. B4/21/2024)* Page 2 of 17 HWMNJ@DC/BLG-20/11/2024 to wit “You will give birth and we shall see. I will make sure you suffer with this pregnancy”. Complainant asked A1 why she used such words on her. A1 became offended and subjected complainant to severe beatings and in the process, she hit the complainant’s head with a stone. Thereafter, A2 appeared at the scene and started beating the complainant without any justification in the presence of witnesses who rescued the complainant. The complainant reported the case the same day and led police to arrest the accused persons. After investigations, accused persons were charged with the above mentioned-mentioned offence. Burden of Proof 5. In a criminal case where an accused person pleaded not guilty, it is the duty of the prosecution to prove the guilt of the accused person. 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. *JUDGMENT-THE REPUBLIC VRS. A. APATIBIRE & ANOR (CASE NO. B4/21/2024)* Page 3 of 17 HWMNJ@DC/BLG-20/11/2024 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 rebuttable presumption the accused need only raise a reasonable doubt as to the existence of the presumed fact”. 6. 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 7. 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 *JUDGMENT-THE REPUBLIC VRS. A. APATIBIRE & ANOR (CASE NO. B4/21/2024)* Page 4 of 17 HWMNJ@DC/BLG-20/11/2024 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 8. 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. 9. 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, *JUDGMENT-THE REPUBLIC VRS. A. APATIBIRE & ANOR (CASE NO. B4/21/2024)* Page 5 of 17 HWMNJ@DC/BLG-20/11/2024 Francis Yirenkyi v Republic [2017-2020] 1 SCGLR 433 at 457 and 464-466, just to mention a few. The Ingredients of the Offence of Assault, Evaluation of Evidence and Legal Analysis 10. Offence of Assault is governed by sections 84 to 88 of Act 29. Section 84 creates the offence of Assault and makes it a misdemeanor. Section 85 makes provision for different kinds of Assault whiles sections 86 to 88 provide for the definitions of the different kinds of Assault. Section 84, 85, 86(1) and 87(1) of Act 29 provides as follows: Section 84- “A person who unlawfully assaults another person commits a misdemeanor”. Section 85- (1) "Assault" includes—(a) assault and battery; (b) assault without actual battery; and (c) imprisonment. (2) Every assault is unlawful unless it is justified on one of the grounds mentioned in Chapter 1 of this Part. Section 86(1)- “A person makes an assault and battery upon another person, if without the other person's consent, and with the intention of causing harm, pain, or fear, or annoyance to the other person, or of exciting him to anger, he forcibly touches the other person, or causes any person, animal, or matter to forcibly touch him.” 87(1) A person makes an assault without actual battery on another person, if by an act apparently done in commencement of an assault and *JUDGMENT-THE REPUBLIC VRS. A. APATIBIRE & ANOR (CASE NO. B4/21/2024)* Page 6 of 17 HWMNJ@DC/BLG-20/11/2024 battery, the person intentionally puts the other person in fear of an instant assault and battery. 11. In the case of Asante vrs. The Republic [1972] 2 GLR 177, it was held that Proof of the assault must be established by evidence of conduct of the accused as falling within one or other of the definitions of assault in sections 86, 87 and 88 of Act 29. From the above-mentioned authorities on assault, the following elements of the offence must be established: a. Wrongful Act/ Actus Reus -The wrongful act or prohibited physical act is unpermitted contact without consent. In other words, once the contact is unpermitted, there is notional forcibility. The requirement of “forcible touching” in section 86(1) does not mean that the contact should have been done vigorously or violently. “Forcible touching” looks to the lack of consent. 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. Section 85 (2) of Act 29 provides that: *JUDGMENT-THE REPUBLIC VRS. A. APATIBIRE & ANOR (CASE NO. B4/21/2024)* Page 7 of 17 HWMNJ@DC/BLG-20/11/2024 “An assault is unlawful unless it is justified on one of the grounds mentioned in Chapter One of this part” From this provision or section 85 (2) of Act 29 the prosecution ought to adduce evidence to establish that the conduct of the accused persons are 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 also the case of Asante v. The Republic [1972] 2 GLR 177. 12. Sections 38 of Chapter one of Part two of Act 29 provides as follows: 38. Unlawful fights- (1) A force used in an unlawful fight cannot be justified under a provision of this Act. (2) A fight is an unlawful fight in which a person engages, or maintains, otherwise than solely in pursuance of a matter of justification specified in this Chapter. 13. In the instant case, it is the prosecution's case that the accused persons on 13/04/2024 assaulted the complainant by beating her. Prosecution in bid to prove its case beyond reasonable doubt called three witnesses. PW1-Anafo Linda testified that on the 13/04/2024 about 8:00am she went to a borehole near the accused persons’ house to fetch water and met 1st accused person who was already at the borehole fetching water. She stated that when the 1st accused person saw her, she started laughing at her but she did not say anything. She stated that 1st accused threatened her with the words to wit *JUDGMENT-THE REPUBLIC VRS. A. APATIBIRE & ANOR (CASE NO. B4/21/2024)* Page 8 of 17 HWMNJ@DC/BLG-20/11/2024 “You will give birth and we shall see, I will make you suffer with this pregnancy”. PW1 testified further that she asked A1 why she used such words against her but she became offended and hit her head with a stone. This generated into heated argument between them, 2nd accused person appeared at the scene and subjected her to beatings. Later, PW2-Anabila Abane and PW3-Ayamga Yaw came to rescue her. 14. PW2- Anabila Abane testified as follows: On 13/04/2024, I went to the borehole to fetch water for my animals. On my arrival at the borehole, I saw the accused persons assaulting the complainant. I quickly rushed on them and one Yaw who was also around that area helped me to rescue the complainant. Later, 1st accused person became offended and started raining insults on me with words to wit “My mother is witchcraft and she gave me some; that is why my hands are small, I should stay away from their fight….” 15. PW3-Ayamga Yaw Aduwa testified as follows: “On 13/04/2024 about 8:00 am I went to my friend, Moro’s house to pay him a visit but met his absence. I sat under a tree closer to the borehole waiting for him and I saw the accused persons attacking the complainant and one Anabila [PW1] was separating them. I also rushed there and helped him rescue the complainant.” 16. PW4- No. 59623 G/Const Emmanuel Nagbija testified that on the 13/04/2024, this case was referred to him to investigate. He tendered in evidence Investigation cautioned statement and charged statement of the 1st accused person as Exhibit A and A1 respectively, Investigation Caution Statement *JUDGMENT-THE REPUBLIC VRS. A. APATIBIRE & ANOR (CASE NO. B4/21/2024)* Page 9 of 17 HWMNJ@DC/BLG-20/11/2024 and Charged Statement of the 2nd accused person as Exhibit B and B1 respectively, and a Medical Report dated 13/04/2024 as Exhibit C. 17. The prosecution’s witnesses maintained during cross examination by accused persons that accused persons attacked and assaulted the complainant by beating her but were separated by PW2 and PW3. After 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 them of the charge against them. The court also informed the accused of their right to give evidence personally on oath or to make a statement. It must be noted that at this juncture, the duty of the accused persons is not to prove their innocence but to raise a reasonable doubt concerning their guilt. Sections 11(3) and 13(2) of the Evidence Act 1975, (NRCD 323) provides as follows: “Section 11(3) In a criminal action, the burden of producing evidence, when it is on the accused as to a fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on the totality of the evidence a reasonable mind could have a reasonable doubt as to guilt. Section 13(2) Except as provided in section 15 (c), in a criminal action, the burden of persuasion, when it is on the accused as to a fact the converse of which is essential to guilt, requires only that the accused raise a reasonable doubt as to guilt.” *JUDGMENT-THE REPUBLIC VRS. A. APATIBIRE & ANOR (CASE NO. B4/21/2024)* Page 10 of 17 HWMNJ@DC/BLG-20/11/2024 See also the case of Woolmington vrs. Director of Public Prosecutions [1935] AC 462 at 481, where Sankey LC noted in as follows: …while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the Prisoner to prove his innocence, and it is sufficient for him to raise a doubt as to his guilt; he is not to satisfy the jury of his innocence. 18. 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. Explanation of the Accused Persons and Legal Analysis *JUDGMENT-THE REPUBLIC VRS. A. APATIBIRE & ANOR (CASE NO. B4/21/2024)* Page 11 of 17 HWMNJ@DC/BLG-20/11/2024 19. The 1st accused person testified as follows: “One day, I was in the house with my husband and complainant cried and came into the house. She claims that her husband is befriending my daughter called Alahre and because of that he has not been maintaining her. She asked me whether I was aware of it or not and I said no and she said okay. Subsequently, on another day, my daughter went out and met the complainant and she invited my daughter to her house and started questioning her about the relationship with the complainant’s husband. The complainant beat up my daughter and her husband was not happy so the complainant’s husband beat the complainant. After the fight, my daughter left complainant’s house with her friend and came home. The complainant followed up and came to my house and started talking about the relationship again, so my son also beat her sister. The following day, my daughter went to the borehole to fetch water and met the complainant. The complainant started insulting my daughter and following her to my house. I met them and asked what was happing and the complainant said my daughter and her husband are still in relationship. I told her my daughter said she is not in any relationship with the complainant’s husband. The complainant became angry and started insulting me that I am a mad woman. So it resulted into verbal confrontation and the complainant went to report the matter to the police and they came to arrest me. The land owners who settled my family and the complainant’s family at the community there told the complainant that if she had any issue, she should report to them first and she said that we did not beat her but my son beat her husband in the past that was why she went to report. What she said was recorded. The following day, our uncle came to bail us. The complainant later said because we beat her, she *JUDGMENT-THE REPUBLIC VRS. A. APATIBIRE & ANOR (CASE NO. B4/21/2024)* Page 12 of 17 HWMNJ@DC/BLG-20/11/2024 incurred the cost of GHC2,000.00 but change later to GHC1,500.00 then to GHC700 and GHC500 for which we paid GHC400. It remains GHC100. It is after payment that the 2nd fight happened. I was at the borehole with one deaf and dump person when the complainant came and met us there claiming I was talking about her to the deaf and dump person. She also said I paid GHC400 leaving GHC100 for the 1st incident, whether she should take me to police station again. So the complainant said I was making fun of her pregnancy but I denied and told her that we were not talking about her but the complainant continued insulting me. Then my son (2nd accused) came in and said my mother said she is not taking about you, why are you insulting her? The complainant became angry and held my son’s shirt and they were struggling. People came in and separate them. She later poured water on my son and they started quarreling again. They were separated again and complainant left and went home. When she got home she reported the matter to her husband and they came to our house. The husband insulted us and went to the police station to make a report. Thereafter we were arrested. That is all I have to say.” 20. The 2nd accused person however chose to make a statement rather than testifying on oath. He stated as follows: “The complainant is not truthful because we were not fighting. The complainant said she was hit with a stone on her head but we did not see that. The complainant told me that she gave GHC200 to police for them to do her case for her so I should pay her the money. There is no truth in prosecution’s case because the police were not there when the incident took place. The police are here because the complainant claims she incurred some cost which is not true. The first case, *JUDGMENT-THE REPUBLIC VRS. A. APATIBIRE & ANOR (CASE NO. B4/21/2024)* Page 13 of 17 HWMNJ@DC/BLG-20/11/2024 there was a recording; how come there is no recording for the instant case? The complainant is accusing us falsely. We did not do anything to her. All that I can say is that we were not engaged in a fight and the police were not there. So they cannot say we were fighting. They police did not do any investigation that shows we fought. I and complainant had no fight between us. I only met them quarreling and I separated them. That is all I have” 21. It is a settled principle in criminal law that an accused person has a choice to either testify or to remain dumb. No matter which way he chooses, it is still incumbent on the prosecution to prove any charge levelled against him beyond reasonable doubt. That assessment could only be made by considering both the factual and legal substance of case led by the prosecution without necessarily looking at what the defence or accused had said or intends to say. See the case of Kwabena Amaning @ Tagor v. The Republic [2009] 23 MLRG 78 at 130. Considering both the factual and legal substance of the case led by the prosecution in the instant case without looking at what the defence or accused had said, can it be concluded that the prosecution has succeeded in proving the guilt of the accused persons? 22. From the evidence of the prosecution and the defence on record, even though the accused persons denied the offence of Assault, this court found as a fact as follows: there was a previous fight or quarrel between the complainant and accused persons prior to the date of the incident in the instant case. That on the day of the incident this case, there was a misunderstanding between the complainant and the accused persons. The complainant and the accused persons exchanged words or insulted each other and in the process the *JUDGMENT-THE REPUBLIC VRS. A. APATIBIRE & ANOR (CASE NO. B4/21/2024)* Page 14 of 17 HWMNJ@DC/BLG-20/11/2024 accused persons touched or beat the complainant and they were separated by PW2 and PW3. The court also found as a fact that 1st accused person hit the complainant’s head with a stone. 23. The inference that can be made is that the hitting of the complainant with a stone and touching or beating the complainant was done intentionally without consent of the complainant. The law is that a person who without the consent of another person and with the intention of causing harm, pain or fear or annoyance to the person or exciting the person to anger or that person forcibly touches the other person commits an assault and battery. See section 86(1) of Act 29. The least touch of a person in anger to cause pain, harm, fear, or annoyance to that person or of exciting the other person to anger that person forcibly touches the person amounts to Assault and battery. The conduct of Accused persons in touching or beating the complainant as well as hitting the head of the complainant with a stone in the instant case is intended to cause harm, pain, or fear, or annoyance to the complainant or exciting her to anger. In other words, the accused by their conduct unlawfully assaulted the complainant. 24. Besides, it is noteworthy that the accused persons and the complainant were engaged in unlawful fight. The law is that a force used in an unlawful fight cannot be justified under the provisions of Act 29. See section 38 of Act 29 supra. 25. Accordingly, the explanation of the accused persons is unacceptable to this court. The prosecution has therefore proved to the satisfaction of this court or *JUDGMENT-THE REPUBLIC VRS. A. APATIBIRE & ANOR (CASE NO. B4/21/2024)* Page 15 of 17 HWMNJ@DC/BLG-20/11/2024 beyond reasonable doubt that the accused persons assaulted the complainant without her consent or any justification in law. Conclusion 26. Having examined the whole evidence of the prosecution and Defence on record, this court is of the considered opinion that the prosecution has discharged its burden of proof beyond reasonable doubt regarding the charge of Assault against the accused persons. Thus, the ingredients of the offence of Assault 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 unlawfully assaulting the complainant. Accordingly, the accused persons are hereby found guilty of Assault contrary to section 84 of the Criminal Offences Act, 1960 (Act 29). The accused persons are convicted for the crime of Assault contrary to section 84 of Act 29. Mitigation of sentence and Sentence 27. The accused persons pleaded for leniency and that the court should temper justice with mercy. They submitted that they are first time offenders. 28. 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 *JUDGMENT-THE REPUBLIC VRS. A. APATIBIRE & ANOR (CASE NO. B4/21/2024)* Page 16 of 17 HWMNJ@DC/BLG-20/11/2024 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. 29. Now therefore, considering the nature or facts of this case, the plea of the accused persons for mercy or leniency, the fact that the accused persons are first time offenders, the accused persons are hereby sentenced to pay a fine of one hundred penalty units (GHC1,200.00) each and in default four (4) months imprisonment with hard labour. (SGD.) H/W MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE) *JUDGMENT-THE REPUBLIC VRS. A. APATIBIRE & ANOR (CASE NO. B4/21/2024)* Page 17 of 17