REPUBLIC VRS NYAABA (UE/BO/DC/B3/04/2024) [2024] GHADC 650 (18 October 2024)

*HWMNJ@DC/BO-18/10/2024* CORAM: HIS WORSHIP MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE), SITTING AT THE DISTRICT COURT, BONGO IN THE UPPER EAST REGION OF GHANA, ON FRIDAY, THE 18TH DAY OF OCTOBER, 2024 CASE NO: UE/BO/DC/B3/04/2024 THE REPUBLIC VRS. APANA NYAABA TIME: 09:05AM ACCUSED PERSON PRESENT CHIEF INSPECTOR VICTOR QUARSHIE FOR THE REPUBLIC PRESENT NO LEGAL REPRESENTATION FOR THE ACCUSED PERSON JUDGMENT Introduction 1. The accused person was brought or arraigned before this court on the 11th day of June, 2024 and charged for the offence of Causing Harm contrary to Section 69 of the Criminal Offences Act, 1960 (Act 29) as amended. The accused person pleaded not guilty to the charge against him. 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 26/06/2024 is that the Complainant and accused *JUDGMENT-THE REPUBLIC VRS. APANA NYAABA (CASE NO. B3/04/2024)* Page 1 of 16 *HWMNJ@DC/BO-18/10/2024* person are farmers residing at Lungu community, Bongo. For some time now, accused person has been calling the complainant with offensive names without any cause to wit: ‘you are a wizard’. On the 11/06/2024 at about 3:30pm, the complainant went to a provision shop to buy some items, and whiles at the shop, the accused person saw the complainant in the shop. The accused person went closer to the complainant and without any provocation he started raining insults on him to wit: you are a useless man among other abusive words. A witness in this case calmed the complainant and asked him to go home. Complainant left the shop to his house. Accused person later went to the house of the complainant and attacked him with a cutlass inflicting wounds on his head and bolted away. Complainant cried for help and he was rushed to Bongo District Hospital where he was admitted and treated. Accused went into hiding after committing the offence. On 26/06/2024 upon tip off accused was arrested from his hideout. According to the prosecution, accused admitted the offence of causing harm in his caution statement, but stated that he hit the head of the complainant multiple times with a wood. He was therefore charged for the offence of causing harm. Burden of Proof 3. 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.” *JUDGMENT-THE REPUBLIC VRS. APANA NYAABA (CASE NO. B3/04/2024)* Page 2 of 16 *HWMNJ@DC/BO-18/10/2024* 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 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 *JUDGMENT-THE REPUBLIC VRS. APANA NYAABA (CASE NO. B3/04/2024)* Page 3 of 16 *HWMNJ@DC/BO-18/10/2024* 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 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 *JUDGMENT-THE REPUBLIC VRS. APANA NYAABA (CASE NO. B3/04/2024)* Page 4 of 16 *HWMNJ@DC/BO-18/10/2024* 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 Offence of Causing Harm, Evaluation of Evidence and Legal Analysis 8. The statute governing criminal law in Ghana defines what constitute causing harm and grounds on which harm caused to another person may be justified. Thus, Sections 69, 76, 30, 31 and 32 of the Criminal Offences Act, 1960 (Act 29) as amended provides as follows: “Section 69—Causing Harm - Whoever intentionally and unlawfully causes harm to any person shall be guilty of second degree felony.” 76. Definition of unlawful harm- Harm is unlawful which is intentionally or negligently caused without any of the justifications mentioned in Chapter One of this Part. 30. Justification for force or harm- (1) For the purposes of this Act, force or harm is justifiable which is used or caused in pursuance of a matter of justification, and within the limits that are provided for in this Chapter. (2) In *JUDGMENT-THE REPUBLIC VRS. APANA NYAABA (CASE NO. B3/04/2024)* Page 5 of 16 *HWMNJ@DC/BO-18/10/2024* the remainder of this Chapter, expressions applying to the use of force apply also to the causing of harm, although force only may be expressly mentioned. 31. Grounds on which force or harm is justified- Force may be justified in the case and in the manner, and subject to the conditions, provided for in this Chapter, on the grounds (a) of express authority given by an enactment; or (b) of authority to execute the lawful sentence or order of a Court; or (c) of the authority of an officer to keep the peace or of a Court to preserve order; or (d) of an authority to arrest and detain for felony; or (e) of an authority to arrest, detain, or search a person otherwise than for felony; or (f) of a necessity for the prevention of or defence against a criminal offence; or (g) of a necessity for defence of property or possession or for overcoming the obstruction to the exercise of lawful rights; or (h) of a necessity for preserving order on board a vessel; or (i) of an authority to correct a child, servant, or other similar person, for misconduct; or (j) of the consent of the person against whom the force is used. 32. General limits of justifiable force or harm- Although there may exist a matter of justification for its use, force cannot be justified as having been used in pursuance of that matter (a) which is in excess of the limits prescribed in the section of this Chapter relating to that matter, or (b) which extends beyond the amount and kind of force reasonably necessary for the purpose for which force is permitted to be used. 9. Harm is defined under Section 1 of Act 29 as “a bodily hurt, disease or disorder whether permanent or temporary” 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 crimes of causing harm contrary to section 69 and causing damage contrary to section 172 of the *JUDGMENT-THE REPUBLIC VRS. APANA NYAABA (CASE NO. B3/04/2024)* Page 6 of 16 *HWMNJ@DC/BO-18/10/2024* Criminal Code, 1960 (Act 29), was that the harm or damage must not only be intentional but also unlawful. Mere harm or damage without more was insufficient.’ 10. Also, in the book entitled “Contemporary Criminal Law in Ghana, 3rd edition by Dennis Dominic Adjei (JA) Page 218, the learned author on the offence of causing harm stated as follows: “There are three types or situations under which a person may be said to have caused harm to another person. … The first ground under which harm is said to have been caused by an accused person to another person is where the act that caused the harm was intentionally caused by the accused person without justification. Under such circumstances, the prosecution is required to prove that the accused person intentionally caused unlawful harm to the victim without any justification in law…The defence available to accused person who is said to have caused harm unlawfully are the ones specifically provided for in Part Two Chapter One of Act 29” From the above authorities on causing harm, the prosecution is required to prove that the accused person intentionally caused unlawful harm to the victim or complainant without any justification in law. In other words, the elements or ingredients that the prosecution must prove to succeed in this case are: a. That harm was caused to the victim or complainant, Agana Ayamba. b. That it was the accused person who caused harm to the victim or complainant. *JUDGMENT-THE REPUBLIC VRS. APANA NYAABA (CASE NO. B3/04/2024)* Page 7 of 16 *HWMNJ@DC/BO-18/10/2024* c. That the accused person intentionally caused the harm to the Victim or complainant. d. That the harm the accused person caused was unlawful. 11. In the instant case, the prosecution in an attempt to lead evidence to the effect that the accused person intentionally and unlawfully caused harm to the complainant by cutting his head with a cutlass called four witnesses. PW1- James Agana Ayamba testified as follows: “On 11-06-2024, at about 3:30pm, I was going to a provision shop to buy some items and to my dismay, the accused from nowhere came and blocked me and started raining insults on me without any provocation. He called me useless man and also said my mother is a prostitute in the presence of Azure Aguah and Godwin Atinga. My brothers calmed me down and advised me not to mind him. My brothers, Azure Aguah and Godwin Atinga escorted me to the house in order to avoid his troubles. I was in my house backyard and without his notice, the accused person followed me up and attacked me with a cutlass. He bolted before people will come to help. I went and reported the case to police for assistance.” 12. PW2- Azure Aguah testified as follows: “On 11-06-2024, at about 3:30pm, I was on a motorbike with a brother one Godwin Atinga while the complainant was also riding his own motorbike and we were all in the direction to provision store to get some items. The complainant stopped on the way to have conversation with one woman. We all stopped waiting for him to finish. The accused person from nowhere came and started insulting the complainant calling him some abusive names. We calmed the complainant down and advised him to ignore the accused person. He insulted the complainant and his *JUDGMENT-THE REPUBLIC VRS. APANA NYAABA (CASE NO. B3/04/2024)* Page 8 of 16 *HWMNJ@DC/BO-18/10/2024* mother in our presence to wit: useless man, your mother is prostitute. We escorted the complainant home to avoid further troubles. I was in the room few minutes later and overheard the complainant wailing. I came out from the room and saw the complainant in a pool of blood while the accused person was seriously running from the scene to his house. I assisted the complainant to go to police station for assistance.” 13. PW3- Godwin Atinga testified as follows: “On 11-06-2024, at about 3:30pm, I was with the complainant and one of our brothers Azure Aguah. We were going to a provision shop to get some items. The Complainant stopped on the way to have conversation with one woman. We all stopped waiting for him to finish. The accused person from nowhere came and started insulting the complainant without any provocation. We calmed the complainant down and told him to ignore the accused person. He insulted the complainant and his mother in our presence to wit: useless man, your mother is prostitute. We escorted the complainant home to avoid further troubles.” 14. PW4- NO.54275 G/L/CPL. Soale Adams testified that on 11/06/2024 at about 4:30pm, he was the available investigator and this case was referred to him for investigation. He stated that in the course of investigation, he took photographs of the injured head of the complainant for evidential purposes. He issued the complainant a medical report form to be sent to hospital immediately for treatment. He visited the crime scene to ascertain the possible cause of the problem. He interviewed some eyewitnesses who volunteered written statement to that effect. He tendered in evidence the Investigation Caution Statement of accused person as Exhibit A, Charged Cautioned Statement of accused person as Exhibit B, Photograph of injured head of the complainant as Exhibit C, and a Medical report dated 06/06/2024 as Exhibit D. *JUDGMENT-THE REPUBLIC VRS. APANA NYAABA (CASE NO. B3/04/2024)* Page 9 of 16 *HWMNJ@DC/BO-18/10/2024* 15. The prosecution witnesses maintained during cross examination by the accused person that the accused used cutlass to cut the head of the complainant or wounded him. 16. Upon the close of prosecution’s case the court found that there was a prima facie or sufficient case against the accused person for him to be called upon to open his Defence. The court therefore called on the accused to make a defence and reminded the accused of the charge against him. The court also informed the accused of his 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 is not to prove his innocence but to raise a reasonable doubt concerning his 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. 17. It is noteworthy that the court is to examine the defence 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 *JUDGMENT-THE REPUBLIC VRS. APANA NYAABA (CASE NO. B3/04/2024)* Page 10 of 16 *HWMNJ@DC/BO-18/10/2024* 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. 18. Accused person in the instant case testified as follows: “I share a boundary with the complainant on my farmland and sometime ago a misunderstanding over the boundary demarcation occurred between the complainant and I. That I placed logs of mango tree to safeguard the boundary between my land and that of complainant. That complainant told me to remove the mango tree logs on the boundary to enable water to flow into his farmland, which assertion is not true because the logs I placed on the boundary is to safeguard the boundary in order to avoid further misunderstanding. That sometime later, I was going to a different farmland of mine and suddenly I noticed that complainant was pursuing me with a piece of wood and shouting and insulting at me to wit. “Mad man did I not tell you to remove the logs you placed on the boundary?” That upon realizing that complainant was chasing me with the piece of wood amidst the verbal assault, I also started running for safety. That Complainant eventually, caught up with me and started hitting me several times with the piece of wood in his hand. That I also found a piece of stick and started to defend myself with it. That complainant eventually overpowered me I fell down. Complainant held me to the ground, grabbed my testicles and pulled it. That I started crying for help as a result of the pain caused by complainant’s pulling of my testicles and eventually Jacob from Nyariga came to my rescue. That after the rescue by Jacob, I went home because I was in pain. That later one of my children who had earlier gone to fetch water around my farmland *JUDGMENT-THE REPUBLIC VRS. APANA NYAABA (CASE NO. B3/04/2024)* Page 11 of 16 *HWMNJ@DC/BO-18/10/2024* where I share boundary with complainant, noticed complainant crushing my phone with a stone and picked the broken pieces to me in the house. That I finally wish to state that after I was rescued I went home and never went to complainant’s house neither did I use cutlass to inflict wounds on complainant in the cause of the fight between complainant and I on the way to my farmland. Complainant hit me with a piece of wood and I also retaliated with the stick I took from the ground and each person got wounded/injured as a result of the fight. That the incidence as reported in the facts presented to this court is strange to me because there had never been any altercation between complainant and I in the market or in front of any provision shop and that I never went to complainant’s house with a cutlass to inflict wounds on him as reported to the police by complainant which same has been captured in the facts of this case. Finally, I wish to state that the only altercation between complainant and I happened on the way to my farmland … and in that particular instance I was not holding a cutlass and that I am innocent of the allegation and charge leveled against me.” 19. From the explanation or defence of the accused person, the accused admitted beating the complainant with a stick and but added that he was defending himself. Indeed during cross examination of the Accused person by prosecution on 19/09/2024, the following transpired: Q. You stated in your paragraph 10 of your witness statement that you found a piece of stick and started defending yourself. Tell the court how you defended yourself? A. When he was beating me with a stick I also pick a stick on the floor and beat him. Q. I am putting it to you that you caused harm to the complainant? A. He also caused harm to me by pulling my testicles. *JUDGMENT-THE REPUBLIC VRS. APANA NYAABA (CASE NO. B3/04/2024)* Page 12 of 16 *HWMNJ@DC/BO-18/10/2024* 20. Also, accused person in his Investigation Caution Statement to the police dated 25/06/2024 (Exhibit A) relied on in Exhibit B stated as follows: … “My farm land and that of the complainant’s farmland shared boundaries, so anytime it rains the flood water from the complainant’s farm runs directly to my farm to become flooded. So in order to solve the issue, I blocked where the water is passing through my farm. The complainant came and saw what happened and he became angry and started insulting me for blocking the water. This resulted in a serious struggle between the complainant and myself. We fought over the issue and the complainant hit me with a stick on my head and I also hit him with a stick I was holding.” 21. It is the accused person’s explanation that he was protecting his land from being flooded and which the complainant asked him to remove logs he used to block water from passing through his land. This resulted in a fight between them. It is the accused person’s case that the complainant beat or attacked him with a stick as well as held his testicles. Hence, he also retaliated or defended himself by using a stick to hit or beat the complainant. The accused person however failed to satisfy the court the harm or injuries he sustained as a result of the complainant attacking or beating him. 22. This court has examined the Exhibit C which is the photograph of the harm caused to the complainant as well as the Medical Report dated 11/06/2024 (Exhibit D). Even though force or harm may be justified in the case of a necessity for defence of property or possession or for overcoming the obstruction to the exercise of lawful rights, this court is of the view that the extent of the harm caused to the complainant herein is unjustifiable under any provision in part two of chapter one of Act 29. Also, the explanation of the *JUDGMENT-THE REPUBLIC VRS. APANA NYAABA (CASE NO. B3/04/2024)* Page 13 of 16 *HWMNJ@DC/BO-18/10/2024* accused person does not falls within the grounds on which force or harm is justified or the general limit of justifiable harm provided for under Act 29. In other words, the harm caused to the complainant by the accused person is beyond the limit of justifiable harm provided for under Act 29. This court therefore holds that the explanation of the accused person is unacceptable. The prosecution has therefore proved to the satisfaction of this court that the accused person intentionally caused harm to the victim, Agana Ayamba without any justification in law. 23. Finally, it must be noted that even though this is a criminal case, the court is mandated to award compensation to victims of crime in addition to any punishment imposed on accused persons. See section 148 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30). Hence, prosecution is expected to lead evidence in that regard especially when expenses like medical expenses have been incurred by the victim or the complainant. The prosecution in instant case has not provided any evidence as to how much the Victim spent in treating himself to form the basis of award of any compensation in his favour if the court wishes to award any compensation. Nevertheless, from the evidence the victim was admitted at Bongo District Hospital where he was treated and discharged. Accordingly, this court will award a sum of money in favour of the victim as compensation for part payment of medical bills incurred by the victim. Conclusion 24. 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 *JUDGMENT-THE REPUBLIC VRS. APANA NYAABA (CASE NO. B3/04/2024)* Page 14 of 16 *HWMNJ@DC/BO-18/10/2024* of causing harm against the accused person. Thus, the ingredients of the offence of causing harm 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 is guilty of causing harm to the victim or complainant, Agana Ayamba. Accordingly, the accused person is hereby found guilty of causing harm contrary to section 69 of the Criminal Offences Act, 1960 (Act 29). The accused person is therefore convicted for the crime of causing harm. Mitigation of Sentence and Sentence 25. The Accused Person pleaded for leniency or mercy and that the court should temper justice with mercy. He submitted that he is a first time offender. 26. 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. 27. Considering the circumstances of this case, plea of the accused person for mercy or leniency, the fact that the accused person is a first time offender, the age of the accused person who is 55 years old, the general overcrowding in the prisons as well as principles governing sentencing, the Accused person is hereby sentenced to pay a fine of One hundred and twenty-five (125) penalty units (GHC1,500.00) and in default three (3) months imprisonment with hard *JUDGMENT-THE REPUBLIC VRS. APANA NYAABA (CASE NO. B3/04/2024)* Page 15 of 16 *HWMNJ@DC/BO-18/10/2024* labour. It is further ordered that the accused person shall pay the sum of One Thousand Ghana Cedis (GHC1,000.00) to the victim or the complainant herein as compensation to pay part of the medical bills incurred by him. (SGD.) H/W MAWUKOENYA NUTEKPOR (DISTRICT MAGISTRATE) *JUDGMENT-THE REPUBLIC VRS. APANA NYAABA (CASE NO. B3/04/2024)* Page 16 of 16