The Republic v Oppong and Another (CC NO.:89/2024) [2024] GHADC 799 (7 October 2024)

IN THE DISTRICT COURT SITTING AT WAMFIE ON THE 7TH DAY OF OCTOBER, 2024 BEFORE HIS WORSHIP EUGENE OBENG-NTIM, ESQ. CC NO.:89/2024 THE REPUBLIC VRS 1. DICKSOM OVAMASS KUSI OPPONG 2. NKETIAH VINCENT RULING Charge The accused persons Dickson Ovamass Kusi Oppong and Nketia Vincent were charged with the offences Conspiracy to commit office to with causing unlawful damage under section 23(1) and causing unlawful damage under section 172 of the Criminal And Other Offences Act, 1969, Act 29. They pleaded not guilty to the charges. Facts According to the prosecution, the complainant is the owner of plot number 2A block “A” situated at Asupra. He has been cultivating the land for several years without any challenge to his ownership. He gave a contract to a mason to put up a building and while construction was on going, the 1st accused went to take pictures without the consent of the complainant. Then on 22nd March, 2024, the accused persons went to the site to take pictures and when the mason questioned him, 1st accused replied that his lawyer had instructed them since there was a civil litigation over the land at the Wamfie District Court. 1 | Page Then the next day, 23rd March, 2024, at about 6:30 am the complainant detected that someone had caused damage to his ongoing building. Prosecution concluded that the complainant was highly suspicious of the accused persons, so he lodged a complaint at the police station after which the accused persons were arrested. The 1st accused person admitted taking pictures but denied causing damage to the building. Evidence of the prosecution The complainant, Oppong Kwadwo, testified that a boundary dispute arose between him and the accused persons while constructing a building on a plot with No. 2A block A belonging to his mother. He added that accused persons confronted masons working on his land over allegations that the masons had covered their road with sand. The accused persons have been taking pictures of the construction without his consent and did the same on the 22nd March, 2024 based on instructions from their lawyer. He continued that on 23rd March, 2024 at about 6:40 am, the masons informed him at home that someone had caused damage to the building and it was confirmed when he visited the site. Pw1 concluded that he highly suspected the accused persons and therefore lodged a complaint at the police station against them. The police investigator, General Lance Corporal Adjei Kodom Shadrack, Pw2, testified that on 23rd March, 2024, Pw1 reported that his three-bedroom project at Asupra had been damaged and he suspected the accused persons. He obtained a statement from him and visited the scene where he confirmed the damage to the building which was at window level. He also observed that the damage was not caused by a natural disaster since the debris showed that it was caused by human beings. He took photographs of the damage and thereafter effected the arrest of the accused persons and in their cautioned statement, they denied causing the damage. Pw2, tendered the cautioned statement of 1st and 2nd accused persons which were admitted without objection 2 | Page and marked Exhibit “A” and “A1”. The witness also tendered the charged statements of the accused persons which were also admitted without objection and marked Exhibit “B” and “B1”. The photographs taken by the investigator of the alleged damage of the building were also tendered and admitted without objection and marked Exhibits “C” and “C1”. Applicable Statutes and Case Laws The Burden of Proof- The Evidence Act, 1975 (NRCD 323) The prosecution, having charged the accused persons of committing the offences, has the burden to lead evidence to establish at the close of their case that the accused persons committed those offences. This position is supported by various provisions in the Evidence Act, 1975 (NRCD 323) S.10(1) provides that: (1) for the purposes of the Act, the burden of prosecution 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. Section 11(1) and (4) of the Evidence Act 1975 (NRCD 323) also provides as follows: ‘(1) for the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid ruling on the issue against that party. (4) In the other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that all the evidence a reasonable mind could conclude that the existence of the fact was more probable that its non- existence’ 3 | Page Further, section 14 of the Evidence Act, 1975 (NRCD 323) states as follows: Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is ascertain. In the case of COP v Antwi [1961] GLR 408, the Supreme Court reaffirmed the principle that throughout a criminal trial it is the prosecution that bears the burden of proof to prove a case made against the accused. This is what the court said at page 412: The fundamental principles underlying the rule of law that the burden of proof remains throughout on the prosecution and that the evidential burden rests on the accused where at the end of the case of the prosecution an explanation is required of him, are illustrated by a series of cases. In the case of Richard Banousin v The Republic criminal Appeal No. J3/2/2014 dated 18th March, 2014, Dotse JSC noted in the following words: The Prosecution has the burden to provide evidence to satisfy all the elements of the offence charged. The prosecution, in discharging the burden, must prove the charges beyond reasonable doubt as per section 13(1) thus: In a 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. From the above authorities, the combined effect of judicial decisions and statutory provisions supra is that the burden is on prosecution to lead sufficient evidence to persuade the Court beyond reasonable doubt that; 4 | Page i. the accused persons agreed and acted together to cause damage to the building of the complainant and ii. the accused persons did indeed cause damage to the property of the complainant. It is only when the prosecution has proved the charges beyond reasonable doubt at the close of his case that the burden would shift to the accused persons to raise reasonable doubt. Submission of no case to answer Submission of no case is a fundamental concept in criminal matters statutorily provided in the Criminal and Other Offences (Procedure) Act, 1960(Act 30). This is provided under sections 173 and 174 of Act 30. Section 173 of Act 30 provides that: where at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require him to make a defence, the Court shall, as to that particular charge, acquit him. Then Section 174(1) provides that: At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused sufficiently to require him to make a defence, the Court shall call upon him to enter into his defence and shall remind him of the charge and inform him that, if he so desires, he may give evidence himself on oath or may make a statement. The Court shall then hear the accused if he desires to be heard and any evidence, he may adduce in his defence." 5 | Page The combined effect of the above provisions is that if at the close of the prosecution’s case, the prosecution is unable to lead prima facie evidence to prove the elements of the offence, then the court is under a mandatory duty to relieve the accused persons from opening their defence. The accused persons shall accordingly be acquitted and discharged. The accused persons will only be called upon to open their defence if the evidence led by the prosecution at the close of its case, prima facie, proves all the elements of the offence. In a situation where the Court, in the absence of a prima facie evidence, still calls upon the accused persons to open their defence, that would occasion a substantial miscarriage of justice. What constitutes a submission of no case has received judicial pronouncements. The Supreme Court in the case of Asamoah and Another Vs Republic 2017 GHASC 13 succinctly summarised the principles in the following terms: The underlying factor behind the principle of submission of no case to answer is that an accused should be relieved of the responsibility of defending himself when there is no evidence upon which he may be convicted. The grounds under which a trial court may uphold a submission of no case as enunciated in many landmark cases whether under a summary trial or trial by indictment may be restated as follows: a. there had been no evidence to prove an essential element in the crime; b. the evidence adduced by the prosecution had been so discredited as a result of cross-examination; or c. The evidence was so manifestly unreliable that no reasonable tribunal could safely convict upon it. d. The evidence was evenly balanced in the sense that it was susceptibleto two likely explanations, one consistent with guilt, and one 6 | Page with innocence. To succeed with the submission of no case to answer by the accused persons, it should be established that either the evidence adduced by the prosecution had been so discredited as a result of cross-examination by counsel for the accused persons or that the it was so manifestly unreliable that the court could not safely convict the accused persons upon it or it was evenly balanced in the sense that it was susceptible to two likely explanations,one consistent with guilt of the accused persons, and the other their innocence. The court would therefore evaluate the evidence of the prosecution based on the test referred to supra to ascertain whether a prima facie case has been established against the accused persons to warrant them to be called upon to open their defence. The accused persons were charged with the offences of Conspiracy under section 23(1) and causing unlawful damage under section 172(1) of act 29. Count 1: Conspiracy to commit a crime to wit: Causing unlawful damage The law on conspiracy has undergone reformation as a result of the work of the Statute Law Review Commissioner. The old formulation under section 23 of Act 29 states as follows: - If two or more persons agree or act together with a common purpose for or in committing or abetting a crime, whether with or without any previous concert or deliberation, each of them is guilty of conspiracy to commit or abet that crime as the case may be. 7 | Page In the case of Yirenkyi Vrs Republic 2016 GHASC 5, the Supreme Court in evaluating the law on conspiracy as it existed under the old formulation and the new position had this to say; Under the old definition, the following ingredients of the offence of conspiracy had to be established to obtain a conviction. These were (1) Prior agreement to the commission of a substantive crime, to commit or abet that crime, (2) Must be found acting together in the commissioning of a crime in circumstances which show that there was a common criminal purpose. (3) That there had been a previous concert even if there was evidence that there was no previous meeting to carry out the criminal conduct. His lordship continued that The new formulation no doubt reinforces the view that conspiracy is an intentional conduct. Marful-Sau J.A, sitting as an additional High Court Judge in the case of Republic v Augustina Abu and others, (Unreported) Criminal Case No. ACC/15/2013 discussed the new formulation of conspiracy and held that the new formulation had changed the scope and nature of the law on conspiracy in our criminal law. Marful-Sau JA continued his analysis by stating thus: - the difference in the definition of conspiracy in the two statutes is in the opening sentence. While the new Criminal Offences Act uses the words agree to act, the old criminal code uses the words agree or act. The effect of conspiracy as defined by the Court of Appeal, is that the persons must not only agree or act, but must agree to act together for common purposes. The essence of the changes brought about by the work of the Statute Law Review Commissioner is that, under the new formulation, a person could no longer be guilty of conspiracy in the absence of any prior agreement, whereas under the old formulation a person could be guilty of conspiracy in the absence of any prior agreement. 8 | Page In the unreported case of Republic v Eugene Baffoe-Bonnie and 4 others, SUIT NO. CR/904/2017 dated 12th May 2020, Eric Kyei Baffour J.A sitting as an additional High Court judge set out the elements of the offence of conspiracy in the following terms: For prosecution to be deemed to have established a prima facie case, the evidence led without more, should prove that: i. that there were at least two or more persons; ii. that there was an agreement to act together and iii. that sole purpose for the agreement to act together was for a criminal enterprise. The prosecution, in order to succeed, must establish that there was an agreement between the accused persons to act together and the sole purpose for the agreement to act together was to engage in a criminal enterprise of causing unlawful damage to the property of the complainant, Oppong Kwadwo. The facts, which were confirmed by the evidence of the complainant, are that the accused persons have been taking pictures of the complainant's ongoing building due to an existing boundary dispute between them. Accused persons again took pictures on the 22nd March, 2024 in the presence of masons of Pw1. Then, the next morning, at about 6:40 am he had information from his masons that some had caused damage to his building and he confirmed the same when he visited the scene. He concluded that he suspected the accused person and therefore made a report to the police, leading to their arrest. Counsel for the accused persons challenged the testimony of the Pw1 when he cross examined him. The following ensued under cross examination. Que: you did not personally see the accused persons destroy the structure. 9 | Page Ans: No, but my contractor informed me that the boys had come to the site Que: You did not know the time the alleged destruction took place Ans: I know. Ques: Give me the time Ans: It was demolished at night but in the morning about 6:40 am, I saw it. Ques: You have admitted that you did not know the time the alleged damage took place Ans: while the contractor was working, boys came to take pictures. The next morning the structure was demolished. Ques: You are stating that they came to take pictures on the site so you are suggesting that the accused caused damage. Ans: Yes. Flowing from the testimony of Pw1 and the cross examination, it appears that the basis of the Pw1 alleging that accused persons have caused the damage to his building was that there had been a boundary dispute and that the accused had been taking pictures of the building under construction. For the offence of conspiracy to succeed, prosecution must prove that there was an agreement between the accused persons to act together to cause damage to the property of the Pw1, Oppong Kwadwo. In other words, prosecution must prove that the accused persons had prior to causing the damage, they have agreed to act together to commit that crime. From the facts, the evidence of the prosecution regarding the offence of conspiracy was boundary dispute between the parties and the accused persons subsequent taking of pictures of the construction. 10 | Page The court is of the view that it is not sufficient for the prosecution to conclude that the existence of a boundary dispute involving the parties and the subsequent taking of pictures by the accused persons, are ample evidence that accused persons conspired, within the meaning of section 23(1) of Act, 29, to cause damage to the property of Pw1. Count 2 Causing unlawful damage Section 172(1) of Act 29 provides that: a person who intentionally and unlawfully causes damage to property (a) to a value not exceeding one million cedis or without a pecuniary value, commits a Misdemeanour;(b) to a value exceeding one million cedis commits a second- degree felony. In Asante v. The Republic [1972] 2 GLR 177-197 His Lordship Anterkyi J, as he then was on the issue of causing unlawful damage stated at page 197 that: Within the provisions of section 174 (1), with regard to causing an event unlawfully, it is essential that the conduct of the actor should be capable of landing him in civil liability. Tersely, to secure conviction under section 172 of Act 29, not only must it be proved that the damage was caused intentionally within the provisions relating to intent in section 11 of Act 29, but also it must be proved beyond reasonable doubt that it was caused without just cause or excuse; the burden lay on the prosecution to prove conclusively the absence of any legal justification or excuse, but they failed to establish this by evidence. 11 | Page Furthermore, in the case of Homenya v. The Republic [1992] 2 GLR 305-319, Acquah J, as he then was stated at page 312 that Section 172(1) of Act 29 which creates the offence of unlawful damage requires that for a person to be liable under the said section, the accused must have caused the damage intentionally and unlawfully. The section reads: "whoever intentionally and unlawfully causes damage to any property by any means . . ." Each of the two words emphasised above is important and must be established before one can be called upon to open his defence in respect of this offence. For the prosecution to succeed, it must be established that; i. The accused persons have caused damage to the property of the complainant. ii. the damage was intentional and iii. the damage was caused unlawfully The evidence of the first prosecution witness, the complainant, was that a boundary dispute existed between the parties and the accused persons had been taking pictures of the ongoing construction of a building of the complainant. Accused took pictures of the building on 22nd March, 2024 and the next day at about 6:40 am, he was informed of the damage and confirmed it when he visited the scene. He suspected the accused persons and therefore reported the damage to the police. The investigator, in his testimony, confirmed the damage when he visited the scene. He tendered pictures, Exhibits “C” and “C1” which showed the damage. The testimony of Pw1 of the damage to his building was corroborated by Pw2, the investigator when he visited the scene. It was further confirmed by pictures taken by the investigator which were tendered. 12 | Page The testimony of the damage to the property was not challenged when counsel for the accused person cross examined witnesses of the prosecution. The court would therefore conclude that the property belonging to Pw1 was damaged when it was demolished. After the prosecution has established that damage has been caused to the property of the complainant, the prosecution must further establish that the accused persons caused the damage. In other words, the prosecution must establish a causal link between the damage to the property and the accused person. If the prosecution succeeds in establishing the causal link between the accused persons and the damage to the property, the prosecution must also establish that the damage caused by the accused persons was unlawful. The accused persons vehemently denied causing the damage. Counsel for the accused persons, when cross examining the Pw1, sought to establish that the basis for the charge against the accused persons for causing unlawful damage to the property of Pw1 was merely on suspicion. The following transpired when counsel for the accused cross examined Pw1: Que: You did not personally see accused destroy the structure Ans: No, but my contractor informed me that the boys had come to the site Que: You did not know the time the alleged destruction took place Ans: I know. Ques: You are stating that they came to take pictures on the site so you are suggesting that the accused caused damage. Ans: Yes. 13 | Page Ques: So all you are basing your allegation on is the taking of the picture; is that correct Ans; Yes. Ques: I suggest to you that the accused persons never caused any destruction to the structure as alleged by you Ans: they caused it. From the testimony and the cross examination, there is no direct evidence linking the accused persons to the damage to the property of Pw1. The basis of Pw1 reporting the accused persons as having caused damage to his building under construction was the existing boundary dispute and numerous pictures taken by them. Therefore, that being the reason for the report made to the police, leading to the charges against the accused persons, the court would hold that the basis for charges and the evidence led are not factual but on account of mere suspicion. Can suspicion form the basis of a conviction? The Supreme Court in The State v. Ali Kassena [1962] 1 GLR 144-154 stated that: Where one has a case where the evidence is purely circumstantial then I must satisfy myself, in my judgement, that there is some piece of evidence that is more than mere suspicion, that there is some piece of evidence which would justify me in saying that points to the accused. You cannot put a multitude of suspicions together and make proof of it. Similarly, in State v. Otchere And Others [1963] 2 GLR 463-531 14 | Page It was held that there is hardly any one of the circumstances and incidents in the lives of the three accused persons, about which evidence was given, to which some sort of suspicion cannot be made to attach, but it is a cardinal principle of justice that no man is ever convicted on suspicion. A string of suspicions, however numerous and however grave, can never be multiplied together to produce proof of guilt. The court further stated that When it is sought to prove by circumstantial evidence that a person has committed a crime, the evidence of collateral circumstances and facts from which the prosecution seek to infer the guilt of the accused person must be such as leads uniquely to the conclusion that the accused person has committed the crime, in other words, the collateral circumstances and facts proved must be capable of explanation on no other hypothesis than that the accused person committed the crime. If there is more than one inference to be drawn from such circumstances and facts, or if the only inference is merely one of suspicion, the prosecution must fail. What the cases referred to supra state is that where prosecution seeks to prove the guilt of the accused by circumstantial evidence, the facts from which the prosecution seek to infer, must be such as leads to the conclusion that the accused person has committed the crime. If the inference made from the evidence before the court amounts to a mere suspicion, prosecution must fail since a multitude of suspicions together would not lead to a conviction. The court has earlier stated that the basis for the charges and the evidence led by prosecution are not factual but on account of mere suspicion. Therefore, based on the cases referred to supra, a multitude of such suspicions against the accused persons put together by the prosecution would not be sufficient to require the court to call upon the accused persons to open their defence. 15 | Page Conclusion The court, after evaluation of the evidence and the applicable laws, is of the view that the prosecution has failed to prove the charges of conspiracy to commit crime and causing unlawful damage, thereby failing to establish prima facie case to require the court to call the accused persons to open their defence in line with section 174 of Act 30/60. Consequently, the court, in line with section 173 of Act 3O/60 shall acquit and discharge the accused persons. Order The accused persons, Dickson Ovamass Kusi Oppong and Nketiah Vincent are accordingly acquitted and discharged of the offences of conspiracy to defraud and causing unlawful damage under sections 23 and 172(1) of the Criminal Offence Act,1960, Act 29. Eugene Obeng-Ntim (District Magistrate) 16 | Page