REPUBLIC VRS. MIEZAH AND ANOTHER (B11/04/2024) [2024] GHADC 564 (17 October 2024)

IN THE DISTRICT COURT, PRESTEA, HELD ON THURSDAY THE 17TH DAY OF OCTOBER, 2024 BEFORE HIS WORSHIP IDDI ADAMA, ESQ. SITTING AS THE DISTRICT MAGISTRATE CASE NO. B11/04/2024 THE REPUBLIC VRS: 1. AUGUSTINE MIEZAH 2. GLADYS CUDJOE - DEALT WITH JUDGEMENT The accused persons were charged and arraigned before this Court per a charge sheet filed on the 25/6/2024 of the following charges: STATEMENT OF OFFENCE Failure to Maintain a Child; Contrary to Section 47(1) and 59(b) of the Children’s Act 1998, Act 560. PARTICULARS OF OFFENCE Augustine Miezah, Labour, for about a year now at Prestea in the Western Magisterial District and within the jurisdiction of this Court, you did fail to supply the necessaries of health, life, education etc. to Lordina Miezah aged, 6 years, when legally liable to do so. COUNT 2 STATEMENT OF OFFENCE 1 Forcible Entry; Contrary to Section 202 A(1) of the Criminal Offence Act 1960, Act 29. PARTICULARS OF OFFENCE Gladys Cudjoe, Seamstress Apprentice. On the 18th day of June, 2024, at Prestea in the Western Magisterial District and within the jurisdiction of this Court, did violently make entry into the room of Augustine Miezah without authority. The facts of the matter as presented by the Prosecution are that, the Complainant, Prestea Police District Command informs the Court that the accused persons, Augustine Miezah (A1) and Gladys Cudjoe are ex- lovers and have a 6 years old daughter, Lordina Miezah and the victim and mother are neighbours to A1 and all live at Asompa /Prestea. The fact as presented is that, A1 has refused and neglected to provide necessaries of life, health, education among others for the victim per Section 79 of Act 29 for over a year. This has persisted in spite of several demands on the 1st Accused person. On 18/6/2024 at about 7: 30 am, A2 with fury went to A1’s house, entered his room and ransacked it in search of money for the upkeep their daughter in the full glare of A1’s wife. A complaint was lodged with the police upon which A1 and A2 were arrested after investigations they were charged with the offence as stated supra and arraigned before this Court. On the 25/6/2024, the pleas of the Accused persons were taken. A1 pleaded not guilty to count 1 and A2 pleaded guilty to count 2 respectively. A2 was convicted on her own plea of guilty but before sentence was imposed, she pleaded with the court for leniency as she acknowledge with regrets that such acts was reprehensible. The prosecution also indicated to the Court that, there are no records pertaining to any deviant behaviour of A2. A2 was therefore convicted and ordered to sign a bond of good behavior for one (1) year or in default serve three (3) months in prison custody. A1 was served with disclosure on the 16/6/2024 as he pleaded not guilty to count 1 and trial commenced on the 1/8/2024. 2 Pursuant to Section 47(1) of Act 560 a parent or any other person who is legally liable to maintain a child or contribute towards the maintenance of the child is under a duty to supply the necessaries of health, life, education and reasonable shelter for the child. Failure on the part of a parent or such person legally bond to do so, pursuant to Section 59 commits an offence and is liable on summary conviction to a fine not exceeding ₵2M or a term of imprisonment not exceeding 6 months or to both. A plea of not guilty puts the accused person in charge of the court after the Prosecution has made a prima facie case against the accused person for the accused to open his defence. It is trite law that a person is presumed innocent until he is proved or has pleaded guilty. See Act 19(2) (c) of the 1992 constitution. Having pleaded not guilty, the onus fells on the prosecution to prove the case against the accused person beyond reasonable doubt. The evidence Act NRCD 323 at Sections 11 and 17 states as follows: “(2) In a criminal action, the burden of producing evidence when it is on the Prosecution as a fact which is essential to guilty requires the Prosecution to produce sufficient evidence so that on the totality of the evidence a reasonable mind find the existence of the fact beyond reasonable doubt. (4) in other circumstance the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence leads a reasonable mind to conclude that the existence of the fact was more probable than its non- existence.” On the allocation of burden of producing evidence, Section 17 of NRCD and Section 10(1) and (2)(b) of NRCD 323 defines burden of persuasion as 3 “(10) for the purpose of this Decree the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. (2) The burden of persuasion may require a party: (b) To establish the existence or non-existence of a fact by a preponderance of probabilities or beyond reasonable doubt.” As general rule evidence from the defence is not taken until the Court has held that the Prosecution has established a prima facie case. The well known principle is that the Prosecution has the onus to prove the guilt of the person they accused of an offence and not an accused to establish his innocence. The accused therefore should not show his hand or open his defence until the need arises. See Atsu V the Republic (1988) GLR 717 at page 719. The Prosecution is therefore obliged to provide evidence pursuant to Section 11(2) of Act 323 to the extent that the evidence is capable of convicting the accused person if he does not offer any explanation. Not only should all the element of the offence be proved by the Prosecution but also the evidence adduced should be reliable and should not have been so discredited through cross examination that no reasonable tribunal can safely convict on it. The evidence should be equally balanced at this stage or to open to two likely explanations one consistent with guilt and one consistent with innocence. The Prosecution in adducing evidence in support of its case called two (2) witnesses, Gladys Cudjoe (Complainant/PW1) and No. 51904 D/Cpl Naah Tasii. Prosecution additionally tendered in evidence the following: 1. Charge sheet, marked as Exhibit ‘A’. 2. Facts of Prosecution’s case marked as Exhibit ‘B’. 4 3. Investigation caution statement of Accused Augustine Miezah marked as Exhibit ‘C’. 4. Charge caution statement marked as Exhibit ‘D’. The Prosecution’s evidence as adduced is that A1 has failed to supply the necessaries of health, life, education etc for the victim for about a year as stated in Section 79 of Act 29 which stipulates that a parent is under a duty to give access to the necessaries of health and life to the parent’s child under the control of that parent of which that child is not of an age and capacity to obtain those necessaries. As a result, PW1 (Gladys Cudjoe) has on countless occasions according to the Prosecution made efforts to seek support from A1 but to no avail. PW1 asserted in her witness statement that A1 is the father of her daughter aged 6 years and for about a year now A1 has refused to support with the basic needs of the child. That on the 18/6/2024 at about 7:30am, PW1 went to the A1’s house to demand for money for the upkeep of his daughter, A1 pushed her out of the room. During cross examination of PW1, when suggested by A1 that he gives child maintenance to PW1, PW1 denied same. PW1 further stated in paragraph 4 of record of proceedings that maintenance fee for the upkeep of the child was done at the whim and caprices of A1. PW1 further indicated in Court that A1 threw her and the child’s personal belongings outside with the accompanying words that he does not need them in his life. This is what transpired and I quote. Q. When I gave money to my mother or any elderly person to be given to you, why do you return it after taking the money? A. You give me money whenever you like. Q. Do you take it when I buy clothes and shoes for our child? 5 A. When I was staying with you, you threw I and the child’s personal belongings outside that you don’t need us in your life. That is why when you bring it I don’t take it? Q. Am I the one that threw you personal belonging from the room or you packed it yourself? A. It is you who threw them out. The above interactions lay credence to the fact that A1 has neglected providing shelter for the child, which is cardinal in providing necessaries of life. The neglect of A1 with regards to his legally mandated duty to provide necessaries of life to the child inspired the Complainant/PW1 to change the name of the child to Lordina Cudjoe instead of maintaining the name of the father Lordina Miezah. This is deduced per the interaction between PW1 and A1 on page 5 of records of proceeding and I quote Q. Why did you change the name of our daughter from Lordina Miezah to Lordina Cudjoe. A. Because you stopped your responsibility towards the child, that is why I changed her name. It is evidential that A1 has breached his duty of providing the necessaries of life toward his daughter. PW2, No. 51904 D/CPL Naah Tasii who investigated the case indicated that A1 was charged with the offence of failure to maintain a child after investigation was concluded when a complaint was lodged by PW1. PW2 further indicated that before A1 was charged, he obtained investigation witness statement from PW1 and further obtained investigation statement from A1. When given the opportunity to cross examination PW2, A1 waived his rights to do so as such admit all the averment as made by PW2. 6 In opening his defence, A1 called three (3) witnesses namely Francis Quao, Andrew Fodjo and Agya Assuah. In testifying for himself, A1 was given the option by the Court to either make his statement in the dock without taking any oath or stand in the witness box and take an oath and be cross examined as such. A1 opted to give statement in the docket which is not subject to cross examination as to its effect. A1 acknowledged the fact that he entered into an amorous relationship with DW1 which resulted in a child called Lordina Meizah and that it was through a misunderstanding that they got separated. That elders of both families sat down at a meeting and agreed for him to pay maintenance fee of GH₵150.00 until about 6 months ago when he ceased to pay same due to some misunderstandings. DW1, Charles Assuah Ediyaw, indicated to the Court that 7 years ago he was invited by one Mr. Appiah to settle some differences between complainant/PW1 and A1. This was in respect of the pregnancy of PW1 and for A1 agreed to marry PW1 after the delivery of the child. DW1 indicated further that two (2) years after the birth of the child, the victim PW1 had misunderstanding with A1 and PW1 was assaulted by A1 and it was agreed that A1 pay child support of GH₵150.00. DW1 acknowledges that Complainant at times comes to him to complain about A1’s failure to maintain the child. This lay further credence to the effect that A1 has failed in his legally obliged duty of providing necessaries for the upkeep of the child. When cross examined by the Prosecution, DW1 acknowledged the fact that A1 was to pay a monthly maintenance of GH₵150.00 of which an accumulated payment of four (4) months arrears was made. This can be found on page 10 of record of proceeding, DW1, with regards to the cross examination as found on page 7 10 and 11 records of proceedings is not aware as to whether the agreed maintenance of GH₵150.00 has subsequently been paid regularly. DW2 Francis Quao Miezah, father of A1 corroborated the story of DW1. DW1 further added in his evidence-in-chief that due to hardship A1 was unable to pay maintenance for over four (4) months. There are instances during cross examination of DW2 that A1 fails as a duty to provide maintenance as such fails in due duty to provide necessaries of life for the child. In paragraph 14 of record of proceedings this was what transpired and I quote “Q. I put it to you that you have not been truthful to this Court, the last statement given in Court it is captured that the two (2) months that he was unable to maintain the child for the past two (2) months, the ex–wife has come to the house to create problems that is why the police came in. A. I said that my son, the accused told me the lady came to him that very day to collect maintenance fee which the accused didn’t get the money for her, so the Complainant went into the room to see if she can get something in the room which resulted in the misunderstanding between them” DW3, Andrew Arthur gave further corroboration to the effect that it was agreed that A1 maintain the child at GH₵150.00 every month and that four (4) months was paid initially. In analysing the facts as deduced above and aligning it as to its legal effect, it is my understanding of Section 47 of the Children’s Act with regards to the element of the duty to maintain a child that; 1. Maintenance shall be provided by a parent or other person legally liable to maintain a child or contribute to its maintenance. 8 2. That it’s a duty legally placed on such individual. 3. Such individual is duty bound legally to supply the necessaries of life including health, life, education and shelter. Similar provisions are as stated in Section 79 of Act 29 as amended by Act 554, Section 6 for a parent under the duty to ensure the necessaries of life are accorded to a child not of an age and capacity as to be able to obtain the necessaries of life including health and life. Having perused the facts of the case and evidence deduced so far, I am of the view that and as has been established, though uncontroverted that A1 is the father of the child and thus a parent. It is also of the view of the Court that PW1 has on countless occasions prevailed upon the A1 to pay maintenance so as the necessaries of life can be accessed by the child, but this was to no avail for an extended period. This culminated in, and out of frustration made PW1 confront A1 at his home on 18/6/2024 at 7:30 am. It is further the deduction of this Court that in instances where A1 tends to pay maintenance, it was done at his whim and caprices and as such not guaranteeing the necessaries to be provided the child and this amount to a dereliction of duty as impose by law. I take notice of the fact that evidence adduced points to the fact that A1 in one instance threw the child and the mother (PW1) out of his house and as such putting the child in harms way and neglecting the duty to provide the necessaries of life that is shelter. From the analysis of the facts as presented by the Prosecution and the defence, there is incontrovertible evidence that A1 has breached his legally mandated duty of providing 9 necessaries life and shelter to a child being 6 years who is not of an age and capacity as to be able to obtain the necessaries of life. I hereby finds A1 guilty as charged and A1 is convicted accordingly. For the avoidance of doubt, A1 is guilty and convicted for the offence of failure to maintain a child contrary to Section 47(1) and 59(b) of the Children’s Act 1998, Act 560. A1 is hereby sentenced as follows: A1 is sentenced to a fine of GH₵200.00 or in default serve four (4) months in prison custody. A1 is further ordered to pay monthly maintenance fee of GH₵400.00 each month and in default of paying the monthly maintenance of GH₵400.00, serve six (6) months in prison custody. A1 is further ordered to ensure to provide a reasonable shelter for the child and the mother. H/W. IDDI ADAMA, ESQ (DISTRICT MAGISTRATE) 10