Republic Vrs Agbavitor and Another [2022] GHADC 304 (17 November 2022)

IN THE DISTRICT COURT, DZODZE HELD ON THURSDAY THE 17TH OF NOVEMBER, 2022 BEFORE HIS WORSHIP NELSON DELASI AWUKU DISTRICT MAGISTRATE. Case No. B13/1/22 THE REPUBLIC VRS YAOTSE AGBAVITOR & ANOTHER JUDGMENT PARTIES COMPLAINANT PRESENT ACCUSED PRESENT REPRESENTATION CHIEF INSPECTOR HAMID MOHAMMED FOR PROSECUTION PRESENT BACKGROUND The accused persons were arraigned before this Court on 28th March, 2022 on a charge of engaging in an act tending to disturb the peace in a public place contrary to section 298 of the Criminal Offences Act, 1960 (Act 29). 1 | P a g e From the facts arising from the same incident, A1 was separately charged with an additional offence of causing harm contrary to section 69 of the Criminal Offences Act, 1960 (Act 29) in case number B3/17/22. BRIEF FACTS The Prosecution stated that on 28th May,2021, the accused persons met in the morning and quarreled at an open place over a piece of firewood which both parties claimed ownership to. The Prosecution stated that on the same day at about 9:00am the accused persons met again at a place about 20 meters from the house of A1 and fought following a misunderstanding that ensued between them. The Prosecution further stated that, A1 attacked and subjected A2 to severe beatings until some neighbours went to her aid and rescued her from him. The prosecution stated that A2 reported at the police station with blood oozing from a cut on her head to make a complaint against A1. She was issued with a police medical form to attend hospital for treatment and endorsement. The prosecution stated that the accused who also came to make a complaint was arrested on 30th May, 2021 and in his caution statement, stated that A2 initially attacked him by using a broken piece of an earthen wear pot to hit his head four times. The prosecution stated that, A1 indicated that out of provocation he collected the object from A2 and also used it to hit her head six times. Both parties were charged and arraigned before the court after investigations. 2 | P a g e PLEA OF ACCUSED The first accused person pleaded guilty to the offence of disturbing the peace in a public place and not guilty to the offence of causing harm when the charge and particulars of the statement of offence were read and interpreted to him. The second accused person however pleaded not guilty to the offence of disturbing the peace. CASE OF THE FIRST ACCUSED In his evidence, A1 stated that sometime in February, 2021 he gathered some firewood in his farm but later realized the firewood were missing from the farm. A1 stated that on 7th May, he saw the firewood around the kitchen of A2 so he decided to take one as evidence in her absence but upon her return, A2 was informed by her daughter that he had come for the firewood and A2 came to his house but only met his wife and the son. A1 stated that A2 ridiculed him in his absence before his wife and son and asked them to inform him when he return. A1 stated that upon his return A2 came back to his house when he was clearing some weeds on the compound and insulted him but he refused to react. He stated further that A2 hit his head with a broken gari frying pan four times and while trying to escape he pursued her and retrieved the object which he also used to hit her in retaliation. 3 | P a g e A1 stated that A2 used her two hands to hold and pull his manhood as a result of which he still feels some pains. CASE OF SECOND ACCUSED In his evidence the second accused stated that on the day of the incident she returned from her farm and realized that someone had cut her tree. The accused stated that she collected the trimmed branches and took them to the house but A1 came for them. The accused stated that, when she confronted A1, he refused to give the fire wood to her so she followed him to a distance close to his house where the accused stopped and kicked her to the ground and beat her mercilessly until some neighbours came to her rescue. The accused stated that she did not fight nor hit A1. THE LAW Burden of Proof 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 will find the existence of the facts beyond reasonable doubt. See Section 11(2) of the Evidence Act, 1975 (NRCD 323) and Frimpong alias Iboman v. The Republic [2012] 1 SCGLR 297. Section 13(1) of the Evidence Act 1975 (NRCD 323) provides the extent of proof or the burden on the prosecution in a criminal action thus; 4 | P a g e “In 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”. Disturbing the peace in a public place Under section 298 (a) of the Criminal Offences Act, 1960 (Act 29), “a person commits a criminal offence and is liable to a fine not exceeding ten penalty units who in any public place, or in a place within sight or hearing of persons who are in that place disturbs the peace by fighting or quarrelling with any other person, or by making a loud or an unseemly noise”. Under section 298 of Act 29, there must be proof that the accused actually disturbed the peace in a public place or within sight or hearing of persons then being in a public place. See Bosuo v. the Republic [1975] 1 GLR 379. Causing Harm Harm within the meaning of Section 1 of the Criminal Offences Act is “any bodily hurt, disease or disorder whether permanent or temporary”. A person who intentionally and unlawfully causes harm to any other person commits a second degree felony. Section 69 of the Criminal Offences Act, 1960 (Act 29). Under Section 76 of Act 29, harm is stated to be unlawful which is intentionally or negligently caused without any of the justifications mentioned in chapter one of the Act. ANALYSIS AND EVALUATION OF EVIDENCE Count One (1) For the purposes of Count one in respect of the offence of disturbing the peace in a public place, the burden on the prosecution is to prove that the accused persons engaged in a fight or quarrel within the sight or hearing of persons who are in that place. 5 | P a g e However, the principle in law is that a genuine plea of guilty to a charge amounts to a judicial confession to having committed the offence. Such a plea obviates the necessity for a trial or proof of the charge by the prosecution. The first accused person pleaded guilty to the offence in count one but stated that it was the second accused who first hit him and he retaliated. The second accused pleaded not guilty to count one. However, by her own admission in paragraph 13 of her witness statement filed on 28th March, 2022 in case number B3/17/22, there was an exchange of words with A1. In paragraph 13 of her witness statement, A2 stated as follows; “That he became offended and we both exchanged words” In Billa Moshie v. the Republic [1977] 2 GLR 418, it was held that, “a conviction could quite properly be based entirely on the evidence of a confession by a prisoner and such evidence was sufficient as long as the trial judge inquired most carefully into the circumstances in which the alleged confession was made and was satisfied of its genuineness”. The admissions in the witness statement of the second accused amount to a confession to the extent that it did not contradict the allegation against her. Count Two In respect of Count two, the evidence of A2 was that A1 kicked her to the ground, jumped on her and beat her mercilessly. 6 | P a g e The prosecution also called as a witness PW2, Esi Deku who gave evidence as an eye witness. Paragraphs 3 to 11 of the evidence – in – chief of Pw2 are thus restated below; “3. That, on that faithful day, it was in the morning like 8:00am 4. That I was sitting down with one Favi and one other whom I ca identify when seen. 5. That we were just having conversation 6. That just some 50 metres away I saw the complainant on the ground and the suspect sitting on top of her. 7. That he was using a stick to hit her severally. 8. That I stood up to go and rescue her but observed the accused abandoned the stick and was using his hand to beat the complainant mercilessly. 9. That on reaching the place, I held the accused but he landed a blow on my forehead. 10. That I retreated and started shouting for help. 11. That some neighbours including Efo Kofi arrived there and with their help we rescued the complainant”. The prosecution also attached to their evidence, copies of photographs showing the injured state of A2. 7 | P a g e The first accused did not call any witness despite indicating that he wanted to call one but later decided otherwise. In his evidence to the court he admitted the incident but maintained his position that he only retaliated after A2 first assaulted him. The issue as to whether a force used against another can be justified in an unlawful fight is addressed under section 38(1) of Act 29 which states that, “a force used in an unlawful fight cannot be justified under any provision of the Act”. The first accused however pleaded guilty and his reasons cannot be justified under section 38 of Act 29. The claim of provocation can only amount to a defence in our laws under sections 53 and 54 of the Criminal Offences Act in a murder case to reduce the offence to manslaughter if the conditions required in such situation are met. CONCLUSION In the circumstance, A1 is convicted on his own plea and admissions on both charges and sentenced in respect of the charge of disturbing the peace in a public place to a fine of five penalty units. In respect of the charge of causing harm, the effect of section 296 of the Criminal and Other Offences Procedure Act, 1960 (Act 30) is that a person convicted of an offence of causing harm is liable to a term of conviction of not exceeding ten (10) years. The court observes that A2 suffered medium injuries attributed to the attack by A1 and mindful of its jurisdiction under section 48 of the Courts Act,1993 (Act 459) as well as the 8 | P a g e provisions under section 297 of Act 30, sentences A1 to a fine of sixty penalty units on count two and in default to imprisonment for six months. Sentences to run concurrently on all counts. A2 is convicted on her own admission in respect of the charge of disturbing the peace in a public place and sentenced to a fine of five penalty units. (sgd.) NELSON DELASI AWUKU MAGISTRATE 9 | P a g e