Republic Vrs Agbitor [2022] GHADC 293 (24 October 2022)

IN THE DISTRICT COURT, DZODZE HELD ON THURSDAY THE 24TH OF OCTOBER, 2022 BEFORE HIS WORSHIP NELSON DELASI AWUKU DISTRICT MAGISTRATE. Case No. B3/12/20 THE REPUBLIC VRS BELIEVER AGBITOR JUDGMENT PARTIES COMPLAINANT PRESENT ACCUSED PRESENT REPRESENTATION CHIEF INSPECTOR HAMID MOHAMMED FOR PROSECUTION PRESENT BACKGROUND The accused was arraigned before this Court on 30th April, 2020 on a charge of threat of death contrary to Section 75 of the Criminal Offences Act, 1960 (Act 29). BRIEF FACTS The brief facts as attached by the Prosecution stated that the complainant Hufordzi Tornyor’s Uncle is the accused person Believer Agbitor and that both are farmers. 1 | P a g e The Prosecution stated that on 10th April,2020 the accused who had been claiming to own the land on which the complainant farms, went to the farm. The Prosecution stated that the complainant who was working on her farm suddenly noticed that the accused was standing in front of her with a cutlass and when she asked the accused what the issue was between them to warrant such a display, the accused responded in similar manner. The Prosecution further stated that, the accused raised his cutlass and threatened the complainant with it but when she pretended to be making a phone call for help the accused bolted. The Prosecution stated the accused was arrested upon the receipt of a complaint against him and he denied the offence but a search was conducted in his room and two cutlasses were retrieved one of which was identified by the accused as the one the accused was wielding when he came to her farm. PLEA OF ACCUSED The accused pleaded not guilty to the offence when the charge and particulars of the statement of offence were read and interpreted to him and was admitted to bail. THE CASE OF PROSECUTION The prosecution called four witnesses, including the complainant, to prove his case. In her evidence to the Court, the first prosecution witness stated that the farm on which her farm is, is situated at Abor-Moepeme at Dalikorpe which bshe inherited from her late 2 | P a g e father Kwamivi Tornyo, who cultivated the land throughout his lifetime without any objection from anybody. PW1 stated that, after her father’s death she inherited the land and has also been farming on same since the year 2010. PW1 stated that sometime in 2019, she uprooted the cassava on the farm and placed the sticks under a black berry tree in the farm for replanting but realized few days after that someone had gone to plant at the area she cleared. PW1 stated that upon noticing that, she reported the matter to Torgbui Dali III, The Dufia of Dalikorpe who caused an announcement to be made but no one showed up to claim ownership and she was given the go ahead to continue with her farming activities on the land. PW1 stated further that she was on the farm cultivating cassava when the accused person surfaced there with a cutlass in hand and when he tried getting closer, she made the attempt to call people to her rescue but the accused warned her never to step her foot on the land again else he would butcher her and that the land belongs to his father. CASE OF ACCUSED In his evidence the accused stated that he cultivated maize on his late father’s land at Kporgi an upon hearing an announcement that the one who cultivated the maize on the land should come and disclose his ownership to the complainant, he approached the announcer and affirmed his ownership. 3 | P a g e The accused stated that the announcer failed to communicate his claim to the complainant and upon his visit to the farm met the complainant who had ploughed the maize he cultivated and was planting cassava in its place. The accused stated that, he returned home to deliberate on the action to take against the complainant but whiles he was at home deliberating, the police came with the complainant to arrest him and he was charged with the offence of threat of death. The accused stated that, he never threatened the complainant and did not carry a cutlass to the farm on that day. FACTS From the evidence of witnesses for prosecution and the accused, the court finds the following facts as not in dispute; a. That both the complainant and accused are relatives who live in the same community. b. That the complainant and accused are both claiming ownership over the land on which the complainant has her farm. c. That the accused confronted the complainant on the farm d. That the complainant allege that the accused was wielded a cutlass which he used to threaten to kill her during the confrontation on the farm. e. That the accused deny holding a cutlass and threatening to kill the complainant. 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 4 | P a g e reasonable doubt. See Section 11(2) of the Evidence Act, 1975 (NRCD 323) and the cases of Kingsley Amankwah (a.k.a Spider) v. The Republic [2021] DLSC10793 at pages 25-26 per Dotse JSC 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; “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”. The extent of the onus on the defence on the other hand is provided by section 13(2) of the evidence Act 1975 which states; “Except as provided in section 15(c), in a criminal action, the burden of persuasion, when it is on the accused as to a fact the converse of which is essential to guilt, requires only that the accused raise a reasonable doubt as to guilt”. See also the case of COP v. Antwi [1961] GLR 408. Threat of death A person who threatens any other person with death, with intent to put that person in fear of death commits a second degree felony under section 75 of the Criminal Offences Act, 1960 (Act 29). In the case of Behome v The Republic [1979] GLR 112, it was held that, “in the offence of threat of death, the actus reus would consist in the expectation of death which the offender creates in the mind of the person threatened whilst the mens rea would also consist in the realization by the offender that his threats would produce that expectation”. ANALYSIS AND EVALUATION OF EVIDENCE 5 | P a g e The issues to be resolved in this case are as follows; i) Whether the accused committed the act being alleged by the complainant? ii) Whether the accused intended to put the complainant in fear of death? Section 17 of the Criminal Offences Act, 1960 (Act 29) makes it clear that unless the context otherwise requires, threat means any threat of criminal force or harm. To constitute a threat of death therefore, the threat must be criminal and in respect of unlawful harm. i) Whether the accused committed the act being alleged by the complainant? The complainant states in paragraph 10 of her witness statement that, the accused came to her farm with a cutlass and whiles she attempted calling someone on her phone, he warned her never to step her foot on the farm again else he will slash her into pieces. The accused person although admitted to visiting the farm stated that, he met the complainant on the farm and upon noticing that the complainant had ploughed the maize he cultivated and planted cassava in its place, he returned home to deliberate on the action to take against the complainant. It is difficult to believe the claim by the accused that he actually noticed that the produce he cultivated had been destroyed but he did not even utter a word but quietly retreated to ponder over the possible actions to take. It becomes even more curious considering the fact that the accused did not report this incident to anyone and did not also file a complaint about it with any institution. 6 | P a g e However, the issue as it stands remain as the version of the complainant as against the accused. All witnesses called by the prosecution according to their witness statements only relied on the story as narrated to them by the complainant. Under cross examination by the accused on 1st April, 2022, the complainant stated that she was unable to call a witness to testify to the incident because the accused absconded before a witness arrived. Q. On the day you alleged I threatened you with the cutlass, who witnessed it? A. I shouted for help but you absconded before the witness arrived. ii) Whether the accused intended to put the complainant in fear of death? One of the important elements to prove in an offence of threat of death is the intent of the threatener to put the other person in fear of death. To prove the intention on the part of the accused to put the complainant in fear of death, it is important to establish that he exhibited a real or wicked intention to put the other person in fear of death. Under section 11 of the Criminal Offences Act, 1960 (Act 29), where a person does an act for the purpose of causing or contributing to cause an event, that person intends to cause the event although in fact, or in the belief of that person or both in fact and also in belief, the act is unlikely to cause or contribute to cause the event. It is trite in law that, intention like any other state of mind may be inferred from proven facts. 7 | P a g e In his evidence to the Court, PW1 stated that the accused upon noticing that she was attempting to call someone warned her never to step her foot on the farm again else he would slash her into pieces. Beyond the conditional statement the accused is alleged to have made which he denied, much evidence was not adduced before the court for a conclusion on the facts that the accused exhibited a real or wicked intent to put the complainant in the fear of death. CONCLUSION In the circumstance, the court holds that the burden of proof as pertains to the elements of the offence under section 75 of the Criminal Offences Act, 1960 (Act 29) have not been sufficiently discharged. The accused is acquitted and accordingly discharged. Considering the facts of this case and the matters in relation to the land over which the issues arose, the accused is restrained from interfering with the complainants use of the land and consider bringing an action for determination of ownership if he has a claim to same. (sgd.) NELSON DELASI AWUKU MAGISTRATE 8 | P a g e