REPUBLIC VRS. NIMO (CC /50/2024) [2024] GHADC 581 (14 November 2024)

IN THE DISTRICT COURT, NEW EDUBIASE HELD ON THURSDAY 14TH NOVEMBER, 2024 BEFORE HER WORSHIP ANASTACIA Y.A. KARIMU ESQ. CC 50/2024 THE REPUBLIC VRS. KOJO NIMO JUDGMENT 1. This is a case of threat of death. 2. The accused person was on 12th March, 2024 arraigned before this court differently constituted for the offence of threat of death contrary to section 75 of the Criminal Offences Act, 1960 (Act 29). He pleaded not guilty, and the case proceeded to trial. 3. The facts of the case are that on 18th January, 2024, Thomas Bosompem, the complainant herein came to this court concerning a civil action he had instituted against his aunt, Obaapanin Afia Ketewa. After court he met his lawyer under the mango tree behind the court. While talking to his lawyer and a friend, the accused person came out of the court, walked over to the complainant and said, “step foot on the disputed land and I will kill you.” Terrified, the complainant reported the incident at the New Edubiase police station. After investigations, the accused person was charged with the offence of threat of death. 4. It is a cardinal rule of our criminal jurisprudence that an accused person is presumed to be innocent until proven guilty by a court of competent jurisdiction. This is enshrined in Article 19(2)(c) of the Constitution, 1992 as follows: “(2) a person charged with a criminal offence shall… (c) be presumed innocent until he is proved guilty or has pleaded guilty.” Page 1 of 14 5. The presumption of innocence has been interpreted to mean that a person accused of a crime does not bear the burden of proving his innocence. Rather it is the responsibility of the prosecution to prove his guilt. In the case of Bruce-Kouah v. The Republic [1967] GLR 611, the court held that: “…An accused is under no obligation to prove his innocence. The burden of the accused person’s guilt is on the prosecution…” 6. Thus, the burden of proving the commission of a crime in every criminal trial lies on the prosecution. This burden remains on the prosecution throughout the trial. The only burden the accused would assume is the evidential burden, which shifts from the prosecution to the accused if at the end of the case of the prosecution an explanation is required of him. In the case of Commissioner of Police v. Isaac Antwi [1961] GLR 408, the court held thus: “The fundamental principles underlying the rule of law are that the burden of proof remains throughout on the prosecution and the evidential burden shifts to the accused only if at the end of the case of the prosecution an explanation for circumstances particularly within the knowledge of the accused is called for. The accused is not required to prove anything, if he can merely raise reasonable doubt as to his guilt, he must be acquitted.” 7. The Evidence Act, 1975 (NRCD 323) provides the manner in which the above burden ought to be discharged, and that is by the production of sufficient evidence to establish the guilt of the accused person beyond a reasonable doubt. Section 11(2) of NRCD 323 provides that: “In a criminal action the burden of producing evidence when on the prosecution as to any fact which is essential to guilt requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt.” Page 2 of 14 8. Sufficient evidence has been defined to mean evidence from which the guilt of the accused can be inferred. Thus, the evidence of one credible witness is enough to convict an accused person: Boakye v. The Republic [1999-2000] 1 GLR 740. So long as the rules of admissibility in NRCD 323 are complied with, evidence adduced by the prosecution will be deemed sufficient if it meets the standard of proof required by the law. 9. The standard of proof required in all criminal cases is proof beyond a reasonable doubt. Section 13(1) of NRCD 323 provides that: “In any civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.” In the case of Miller v. Minister of Pension (1947) 2 AER 372 Lord Denning J (as he then was) explained proof beyond reasonable doubt as follows: "Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is strong against a man as to leave a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible but not the least probable,’ the case is proved beyond reasonable doubt, but nothing short of that will suffice." 10. Reasonable doubt has been defined to mean the duty of the prosecution to ensure that sufficient evidence has been adduced to establish the ingredients of the offence for which an accused person has been charged so that on the totality of the evidence the court would be satisfied that the accused person has in fact committed the offence with which he has been charged. 11. In the instant case, the prosecution called three witnesses to prove its case. The first prosecution witness is the complainant. The second is an eyewitness, and the third is the police officer who investigated the case. Page 3 of 14 12. According to the first prosecution witness, on 18th January, 2024 he attended this court differently constituted concerning a civil matter he had instituted against his aunt. After court, he met his lawyer and Kwabena Boadi (the second prosecution witness) under a mango tree at the parking lot of the court. While talking to these two, the accused person, in the company of another cousin came to pass by them. Upon seeing them, the accused person rained insults on his lawyer by calling same foolish and an idiot. The accused person then added that if he dares step foot on the farm, he will kill him. He felt threatened and was advised by his lawyer and Kwabena Boadi to report the incident to the police, which he did. 13. During cross-examination of the first prosecution witness by the accused person, the complainant was emphatic that he had been threatened by the accused person while the accused person was categorical that he did not so much as utter a word to the complainant on that day. This is what ensued: “Q: I insist you are my brother and have not threatened to kill you. A: That is not true. You threatened to kill me. You have threatened to kill me on several occasions. Q: On the said date, I did not say anything to you. Therefore, what you said in your statement is not true. A: That is not true. I was standing under the mango tree behind the court when you came and told me that if I set my foot on the said land, you will kill me.” 14. The evidence of the second prosecution witness Kwabena Boadi corroborated that of the first prosecution witness. In his evidence he stated that on 18th January, 2024 he together with the first prosecution witness and his lawyer Joe Mensah Obuor, esq. were under the mango tree outside this court when the accused person passed by and angrily told the first prosecution witness that the matter was now going to Page 4 of 14 be critical and added that if the second prosecution witness dared to step foot on the farm, he would kill him. 15. Under cross-examination, the witness was emphatic that the accused person threatened to kill the complainant (the first prosecution witness) in his presence. According to him, he was the one who advised the complainant to report the matter to the police. The accused person on his part, again insisted that he did not threaten the complainant on that day. This is what transpired: “Q: I am putting it to you that PW1 is my cousin, so I cannot kill him. I did not threaten to kill him. A: You told him that if he steps foot on the farm, you will kill him. I then advised PW1 to report you to the police. Q: I am putting it to you that all that you have said is not true. A: It is true.” 16. The third prosecution witness, Detective Sergeant Joseph Tengey stated that he was the officer assigned to investigate this case. He took statements from the witnesses as well as an investigation cautioned statement from the accused. After investigations, he was instructed to charge the accused with the offence of threat of death. He tendered the following two documents into evidence: a. Exhibit A - The investigation cautioned statement dated 12th February, 2024 b. Exhibit B - The charged statement of the accused dated 26th February, 2024. 17. After the close of the case for the prosecution, this court called upon the accused person on 9th August, 2024 to open his case after finding that a prima facie case had been established against him. The accused person elected to mount the witness box Page 5 of 14 and give evidence on oath and called one witness, Dina Attah to support his case. Below is a summary of their respective evidence. 18. The accused person stated that the complainant is his cousin. On 18th February, 2024 this court struck out a suit between Obaapanin Afia Ketewa and the complainant. Opanin Kwaku Marboah was the attorney for Obaapnin Afia Ketewa. The suit was struck out because Opanin Kwaku Marboah did not have a Power of Attorney from Obaapanin Afia Ketewa. After court, he together with two (2) other members of his family gathered a few meters from the court to have a discussion on how to acquire the Power of Attorney in order to commence another suit. During the said meeting, none of those who took part in the meeting confronted or provoked the complainant. They left the court after the meeting. The following day, he was invited by the New Edubiase police on the basis that that the complainant had lodged a complaint against him, claiming he threatened to kill him with the following words "I will kill you if you venture on the land under litigation." He honoured the invitation of the police who took an investigation cautioned statement from him. After investigations, he was arraigned before this court. According to him, the complainant has on three occasions accused him of threatening to kill him. These allegations were adjudicated by the Nananom of New Edubiase who exonerated him. He denied the allegation and said same was done out of sheer hatred. 19. During cross-examination by the prosecution, the accused person was adamant that while he saw the complainant after court on 18th February, 2024, he did not threaten to kill him. This is what he said: “Q: I am suggesting to you that when you exited the court premises you saw PW1 and PW2 at the parking lot of the court. A: Yes I saw them. Page 6 of 14 Q: I am suggesting to you that you threatened PW1 at the sight and in the hearing of PW2. A” It is not true.” 20. The first defence witness Dina Attah testified that she is a trader by profession. The accused person and the complainant are her nephews. Obaapanin Afia Ketewa is her biological mother and the late aunt of the complainant and the accused person. Obaapanin Afia Ketewa was the sister of both the complainant’s late father and the father of the accused person. After the demise of his father, the complainant was made the customary successor to his father. Obaapanin Afia Ketewa then granted the complainant permission to farm on a piece of land in his capacity as the customary successor. The said land is located at Kwame Adjei on the New Edubiase Stool land. To show appreciation to her mother for allowing him to farm on the land, the complainant used to bring some of the produce at harvest time from the aforesaid farmland to her mother. After some time, however, he stopped bringing the produce to her mother and rather made adverse claim to the land. Her mother then summoned the complainant before the Queen Mother's Arbitration Committee at Oman Hemaa's Palace at New Edubiase, who gave judgment in favour of her mother. Notwithstanding the decision of the arbitration committee, the complainant continued to make adverse claims to the land, compelling her mother to institute a civil action for declaration of title to the land in this court. However, the court dismissed the suit when it was informed that Opanin Kwaku Marboah did not have a Power of Attorney from her mother to represent her in court. After the case was dismissed, she together with the accused person and Opanin Kwaku Marboah met a few metres from the court premises to discuss how to acquire a Power of Attorney from Obaapanin Afia Ketewa for Opanin Kwaku Marboah to pursue the suit against the complainant. This was done without any provocation or confrontation between them and the complainant. The following day, she received a phone call from the accused that he has been invited Page 7 of 14 by the New Edubiase police concerning a complaint made by the complainant alleging that the accused threatened to kill him with the words "If you venture onto the land in dispute, I will kill you." According to her, the complainant’s allegation against the accused person is not true because the meeting they held was to deliberate on how to acquire a Power of Attorney for Opanin Kwaku Marboah to pursue the suit against the complainant. The complainant was not provoked nor confronted by the accused person during this meeting. 21. During cross-examination, the witness admitted that while she, the accused person and Opanin Kwaku Marboah were not happy about the civil suit being struck out, the accused did not confront the complainant after court, neither did he speak to him. They rather held a meeting to discuss how to raise money to institute afresh action against the defendant. She stated that she did not see the first and second prosecution witness at the parking lot when they exited the court. 22. The offence of threat of death is provided for in Section 75 of the Criminal Offences Act, 1960 (Act 29) which states that, “a person who threatens any other person with death, with intent to put that person in fear of death, commits a second degree felony.” 23. From this provision, the prosecution is required to prove the following elements: a. That the accused person threatened another person, and b. That the threat by the accused person was done with intent to put fear of death in that other person 24. Commenting on the elements of the offence of threat of death, Osei-Hwere, J. (as he then was) in the case of Behome v. The Republic [1979] GLR 112 stated thus “In the offence of threat of death the acteus reus will consist in the expectation of death which the offender creates in the mind of the person he threatens whilst the mens rea will Page 8 of 14 consist in the realisation by the offender that his threats will produce that expectation. It matters not, therefore, whether the threats were related to the present or the future.” 25. The evidence adduced to support the charge of threat of death were provided by the first and second prosecution witnesses. The first prosecution witness testified that the accused person threatened to kill him on 18th January, 2024 in the presence of two eyewitnesses, both of whom advised him to report the matter to the police. One of the eyewitnesses is the second prosecution witness who in his evidence also testified that the accused person threatened to kill the complainant. As a result, he advised the complainant to report the matter to the police, which he did. The evidence of these two witnesses was vehemently denied by the accused person and his witness. The accused person denied speaking to the complainant after court on 18th January, 2024. This was corroborated by his witness, an eyewitness to the events, who also testified that on that day, the accused person did not speak to the complainant after court. Rather, she together with the accused person and Opanin Kwaku Marboah met a few metres from the court to deliberate on how to obtain a power of attorney for Opanin Kwaku Marboah to commence another action. Hence, the evidence before this court is the evidence on oath of the complainant and the first prosecution witness against that of the accused person and the first defence witness. 26. The law is clear that where a decision of a court depends on the oath of the prosecution’s witnesses against those of the accused, the trial court must carefully examine the evidence of all the witnesses as well as other evidence on record before deciding which of the two versions of the event is reasonable. In Lutterodt v. Commissioner of Police [1963] 2 GLR 429, the court held that, “Where, as in this case, the decision turns upon the oath of one prosecution witness against that of a witness for the defence, it is incumbent upon the trial court to examine the evidence of each of those two witnesses carefully along with Page 9 of 14 other evidence to the other; and where his preference is for the prosecution he must make it appear from his judgment that his said preference is reasonable, for the principle of law is that if the court could not find reasonable grounds for preferring the evidence of the prosecution witness to contradictory evidence given by a defence witness, the prosecution has failed, because there would, at least, be reasonable doubt as to which of the two conflicting versions of the story is true, and the benefit of that doubt must be given to the defence.” 27. The law is equally clear that a court cannot reject the defence of an accused person simply because it does not believe it. The court is under obligation to consider whether or not the defence of the accused is reasonably probable. It is only after consideration of the explanation of the accused that the court can conclude the guilt or otherwise of the accused person. In the case of In Lutterodt v. Commissioner of Police (supra), the court further held that where a trial court “… forms the opinion that a prima facie case has been made, the court should examine the case for the defence in three stages: a. Firstly, it should consider whether the explanation of the defence is acceptable, if it is, that provides complete answer, and the court should acquit the defendant; b. If the court should find itself unable to accept, or if it should consider the explanation to be not true, it should then proceed to consider whether the explanation is nevertheless reasonably probable, if it should find it to be, the court should acquit the defendant; and c. Finally, apart from the defendant’s explanation or the defence taken by itself, the court should consider the defence such as it is together with the whole case, i.e. prosecution and defence together, and be satisfied of the guilt of the defendant beyond reasonable doubt before it should convict, if not, it should acquit.” 28. This principle in Lutterodt v. Commissioner of Police(supra) was affirmed in The Republic v. Victor Selormey [2001-2002] 2 GLR 424, where the court affirmed the Page 10 of 14 above principle as follows, “Even if the court does not believe the defence the court must still go further and consider whether the explanation being offered by the accused person is reasonably probable. It is only when the defence has been considered in this light, that the court could come to a conclusion as to the guilt of the accused person.” 29. In his statements to the police, the accused person stated that the complainant was his brother. However, in his evidence during trial, he said the complainant was his cousin. This inconsistency was resolved by the evidence of the first defence witness, Dina Attah who in her evidence stated that the fathers of the complainant and the accused person were brothers, making them cousins. There being no equivalent word for cousin in the Twi language, it is understandable why the accused person would refer to the complainant as his brother. 30. The complainant, just before his witness statement was adopted, amended same in open court by cancelling paragraph 5 which stated his relation to the accused person. He went on during cross-examination to deny that he was related to the accused person, which denial was opposed by the accused person and his witness. Unlike the complainant, the accused person was categorical that he and the complainant are siblings. The first prosecution witness was supported in this denial by the second prosecution witness, who although he admitted to trying to help the complainant and Obaapain Afia Ketewa resolve the civil suit at home, denied knowing how the complainant and the accused person are related. 31. In exhibits A and B, he stated that the complainant is his brother. These exhibits were tendered by the prosecution, not the accused. However, in paragraph 9 of his witness statement, the complainant stated that he saw the accused person in the company of “one other cousin,” the first defence witness. Who is this other cousin? According to the accused person and the first defence witness, on the day in question, the two of them held a meeting with their uncle Opanin Kwaku Marboah after their suit was struck out for lack of capacity on the part of Opanin Kwaku Page 11 of 14 Marboah. The first defence witness testified that the fathers of the complainant and the accused person were brothers while her mother was their sister. She also testified that Opanin Kwaku Marboah was their uncle. All this evidence was not denied by the prosecution during cross-examination of the witness. If Opanin Kwaku Marboah is their uncle, and Dina Attah is the “one other cousin,” in the company of the accused, then the accused is the cousin of the complainant. His last minute attempt to deceive this court fails. 32. Unlike the complainant, the accused person has maintained the same story throughout, which is that on 18th January, 2024 after court, he did not threaten to kill him the complainant. The accused person was given several opportunities by the prosecution when he was under cross-examination to, if he so wished, destroy the character of the complainant(PW1) but he did not take them. While the complainant was quick to deny his relations to the accused person, the accused on his part admitted they were family right from the beginning of this case. When asked how long he had known the complainant his answer was “Since he was born. He is my brother.” When asked whether he agrees that the complainant always stand for the truth, his answer was “I do not agree. When it comes to land matters, he does not tell the truth.” When the prosecution made the suggestion that because the complainant often stands for the truth, he would not wrongly accuse him before this court, this is what the accused person said in response: “He has not wronged anyone in his lifetime. It is the land my aunt left us which has caused PW1 to behave this way.” Equally strange was the demeanour of the accused person when answering the above question. He looked genuinely perplexed by the behaviour of the complainant. These are not the responses and behaviour of someone who harbours ill feelings toward the complainant so as to wish him dead. I did not observe any animosity or anger from the accused person throughout the trial. I find the accused person and his witness to be credible witnesses. And I find the explanation of the accused person to be reasonably probable. Page 12 of 14 33. The impressions formed by a court about a witness is crucial in evaluating his evidence. Section 80(2) of NRCD 323 provides that “Matters that may be relevant to the determination of the credibility of the witness include, but are not limited to the following: (a) The demeanour of the witness (b) The substance of the testimony; (c) The existence or non-existence of any fact testified to by the witness; (d) The capacity and opportunity of the witness to perceive, recollect or relate any matter about which he testifies; (e) The existence or non-existence of bias, interest or other motive; (f) The character of the witness as to traits of honesty or truthfulness or their opposites; (g) A statement or conduct which is consistent or inconsistent with the testimony of the witness at the trial; (h) The statement of a witness admitting untruthfulness or asserting truthfulness” 34. In the case of Mensah v Donkor [1980] GLR 825 at 830, it was held that “The demeanour which actuated the impression must be expressed. It must be stated whether the witness was over-zealous on behalf of his party; exaggerating the circumstances; assuming an air of bluster and defiance; answering without waiting to hear the question; forgetting facts where he would be open to contradictions; minutely remembering others which he knows cannot be disputed; reluctant in giving adverse testimony; replying evasively; pretending not to hear the question for the purposes of gaining time to consider the effect of his answer, etc.” 35. The second prosecution witness was evasive during cross-examination, especially when he was questioned about the relationship between the complainant and the accused person. The witness denied going to the house of the accused person to hold settlement talks with the complainant, the accused person, and Obaapanin Afia Ketewaa over the civil suit. He insisted that he went rather to the house of Page 13 of 14 Obaapanin Afia Ketewaa to help resolve the matter. However, during cross- examination of the accused person by the prosecution on this issue, the accused person stated when the second prosecution witness proposed an out of court settlement, he agreed but he did not hear from the witness until he came to testify on behalf of the complainant. The second prosecution witness was obviously telling lies to this court, just like the first prosecution witness. A witness who takes refuge in telling lies before a trial court is not worthy of believe. The first and second prosecution witnesses are not worthy of believe. 36. I find the explanation of the accused person to be reasonably probable. Accordingly, he is acquitted and discharged. H/W ANASTACIA Y.A. KARIMU ESQ. [MAGISTRATE] Page 14 of 14