Republic Vrs Susubiribi [2022] GHACC 189 (10 November 2022)

IN THE CIRCUIT COURT ’10 OF GHANA, ACCRA, HELD THIS THURSDAY THE 10TH DAY OF NOVEMBER, 2022 BEFORE HER HONOUR EVELYN E. ASAMOAH (MRS) CASE NO. D7/42/2017 THE REPUBLIC V. NII KOTEY SUSUBIRIBI CHIEF INSPR. BENSON BENNEH FOR THE REPUBLIC MR. GEORGE ESHUN FOR THE ACCUSED ================================================================ RULIN G ● The accused was charged with the offence of threat of death contrary to section 75 of the Criminal and Other Offences Act, 1960- Act 29 and the offence of fraudulent transaction contrary to section 34 of the Land Registry Act -Act 122 of 1962. He pleaded not guilty. In the case of Uyuanwunw V. the Republic, (2010 – 2012) GLR 15, the Court held that: Under section 13(1) of the Evidence Act, 1975 (NRCD 323) and article 19(2)(c) of the 1992 constitution, a criminal offence required proof beyond reasonable doubt. Consequently, the prosecution must prove all the ingredients of the offence charged and n accordance with the burden of proof, by establishing a prima facie case after which the burden of proof would be shifted to the accused person to open his defence. In the event, the accused person must give evidence that was acceptable to the court otherwise he might be convicted. ● The facts presented by the prosecution are as follows: in the year 2003, the 1st complainant acquired 1.869 acres of land situated at Abeheanease from the Amah Asor family, then lawfully represented by the accused senior brother, Kotey Nii Kwei. The 1st complainant subsequently obtained land title certificate No. Ga 22047 dated 30th December 2005 covering the land. The 1st complainant further put up a two single-room building on a portion of the land, occupied by his caretaker, Korsi Tondey. 1st complainant has been in undisturbed possession of the land until February 2015 when the accused prevented him from further developing the land. The accused person has continuously interfered with the 1st complainant's peaceful enjoyment of the property claiming ownership of same. During the month of March 2015, the accused person and his group of thugs consistently threatened the caretaker, Korsi Tondey, to vacate the land or face death. The caretaker for the fear of his life packed his belongings and left the land. The accused person then fraudulently sold portions of the land to the unsuspecting public including the 2nd complainant, Freeman Kofi Owusu at GHC 42,000. A search obtained from the Land Registration Division of the Lands Commission, Accra, confirmed the 1st complainant's title to the land. After investigations, the accused was charged. ● The 1st complainant-PW1 contended that: In January 2004, he put up two single rooms at the ends of the land and placed two caretakers there. He subsequently obtained land title certificate numbers - GA 21691 and GA 22047 dated September 2005 and 30th December 2005 covering the land. His sister-in- law built a chop bar in front of the land and was operating it. On 21st February 2015, he asked his contractor to clear the land for him to build a fence but whilst work was ongoing, the accused went to the site with his thugs and stopped him which caused damage to his bulldozer but they managed to clear the land. Thereafter, the accused went to construct a foundation on one part of the land and started concrete works with thugs fully armed to the teeth giving protection to the workers. That the accused then fraudulently sold portions of the land to the unsuspecting public, including the 2nd complainant. That the accused threatened his caretakers on the land. ● The 2nd complainant alleged that in January 2017, he bought a piece of land from Matilda Turkson and Emmanuel Quaye at the cost of GHC 28,000. He paid GHC 14,000 and was given an indenture. On 2nd January 2017, he realized that another person was working on the land so he confronted the landowners but they could not give him any proper explanation. Upon further investigation, he was told that the land was being developed by the accused so he approached the accused who claimed ownership of the land and informed him that those who sold the land are his family members. That he will relocate him to another place. Upon negotiations, it was agreed that the balance should be paid to the accused so he started making payment from 1st March 2017 and finished payment on 31st May 2017. The accused gave him a receipt and documents covering the land. According to the 2nd complainant, on 12th June 2017, he went to the land with his workers but the Police from CID headquarters came to stop them from working on the land. He was later informed that the land belongs to the 1st complainant. Section 34 of the Land Registry Act, 1962 Act 122 states: A person who knowingly (a) purports to make a grant of a piece of land to which that person does not have title, or (b) purports to make a grant of a piece of land without authority, or (c) makes conflicting grants in respect of the same piece of land to more than one person, commits the offence of a second-degree felony and is liable in addition to any other punishment that may be imposed, to pay an amount of money equivalent to twice the value of the aggregate consideration received by that person. ● In the case of Edmound Addo V. The Republic Criminal Appeal No: H2/2021 dated 17th February 2022, Court of Appeal- Justice Wood stated: “... In respect of section 34(1)(e) of Act 792, the law is that where an enactment is repealed, it would not affect any investigations, a legal proceeding or a remedy in respect of a right, privilege, an obligation, a liability, a penalty, a forfeiture or a punishment under the repealed Act. Any investigation, legal proceedings or remedy in respect of the Act should be in accordance with the repealed law. Any penalty or punishment for a future obligation and/or liability should also be in accordance with the repealed legislation…. Our position is buttressed by the words of the Supreme Court speaking through Dotse JSC in the case of The Republic V, HC Ex parte Environs solution- J5/20/2019 dated April 2021 “it must be emphasized clearly that from the principles of interpretation of statues dealt with supra…. A repealed statute does not lose all of its effect and operating provision simply because a new statute had been enacted. …” It is important to state that the investigation and trial of this case began before the statute was repealed. ● In this case, the facts so far presented show that per Exhibit A- indenture, the complainant acquired his land in 2003 from the Amah Asor family of Abehenase represented by the Kotey Nii Kwei- the head and lawful representative of the family. The land certificate indicates that the complainant acquired “that piece or parcel of land in extent of 0.764 hectares (1.888 acres) more or less situate at Abehenase…” Exhibit J series- which are pictures of the land disclose that the complainant was in possession of the land before the incident. The 2nd complainant- Pw2 indicated that in the year 2017, he paid monies to the accused who gave him documents covering the land. Exhibit H is a receipt that an amount of GHC 56,000 was paid. ● The accused in his further caution statement- Exhibit M stated that the entire land belongs to him and that he granted a portion of the land to the 2nd complainant. However, the search report – Exhibit G, tendered in evidence by the 2nd complainant, indicates that “…the parcel of land is affected by Land Certificate No. GA.22047 issued to Alfred Agoju.” The land certificates and search report disclose that the land was acquired, at a point, by the 1st complainant. In the case of Tsatsu Tsikata V. The Republic (2003-2004) 2 SCGLR 294, the Court held: “On a submission of no case, the judge’s function was essentially to determine whether there was a genuine case for trial i.e. whether there were any genuine factual issues that could properly be resolved only by a finder of facts because they might reasonably be resolved in favour of either party. The inquiry had to focus on the threshold question whether the evidence presented a sufficient disagreement to require submission for a full trial...” ● It is the view of the court that there is a genuine case for trial; a case is made out against the accused person in respect of count 2. The accused is alleged to have threatened one Korsi Tondey with the word “vacate this land or face death” with the intention of putting the said Korsi Tondey into fear of death. The said Korsi Tondey did not testify in this matter. Moreover, the prosecution did not lead evidence to establish that the accused threatened him. In the circumstance, the accused is acquitted in respect of count 1. He is called upon to open his defence in respect of count 2. (SGD) H/H EVELYN E. ASAMOAH (MRS) CIRCUIT COURT JUDGE 6