Republic Vrs Adolph Tetteh Adjei [2022] GHACC 186 (3 November 2022)

IN THE CIRCUIT COURT ’10 OF GHANA, ACCRA, HELD THIS THURSDAY THE 3RD DAY OF NOVEMBER, 2022 BEFORE HER HONOUR EVELYN E. ASAMOAH (MRS) CASE NO. D9/11/2021 THE REPUBLIC V. ADOLPH TETTEH ADJEI CHIEF INSPR. BENSON BENNEH FOR THE REPUBLIC MR. BRIGHT ATOKOH FOR THE ACCUSED PERSON ================================================================ RULIN G ● Mr. Adolph Tetteh is accused of causing unlawful damage to a fence wall valued GHC 50,000, the property of the complainant. He was charged under section 172 of the Criminal and other offences Act 1960- Act 29. He pleaded not guilty. ●The legal burden is on the prosecution to prove its case beyond reasonable doubt. In the case Of Ekow Russel V. The Republic No: J3/5/2014 13th July Justice Akamba, JSC Stated: The strength of our criminal justice system over the years has not thrived on mere wishes and speculation but by the production of evidence that meets the standard of proof of crime in a court of justice. Without the necessary evidence, presented in accordance with the rules of law, all the prior efforts made in arresting a suspect would be brought to nought. ● The facts are as follows: In the year 2018, the complainant bought a parcel of land measuring 0.17 acres from the late Anthony H. T Eziem who also purchased same from the Sempe Alata James-Town stool on 31st July 1990 and transferred ownership of the land to the complainant. The road was un-motorable and the complainant spent over Ghc 300,000.00, about two years, to fix a temporal road on the land and fill the parcel of the land in question. In the latter part of May this year, the complainant began to construct a fence wall around the land and during the process of construction, the accused person went to Dansoman police station to lodge a complaint that the complainant and two others had encroached on his land which he claims to be the same land and two adjacent plots with building thereon. On 1st June 2021, the complainant and two witnesses as well as the accused were paraded before the Dansoman district crime officer who after listening to the parties asked them to submit for a search to be conducted to determine the rightful owner of the land in question. After the discussion, whilst the parties were leaving the office of the crime officer, the accused person made a statement in the Ga language in the presence of the complainant and the witnesses- “ I will make sure the fence wall under construction is pulled down.” Based on this, the complainant went back to the crime officer to alert them of the statement the accused made. On the 12th of June, the complainant had information that the fence wall had been pulled down. The complainant went to ascertain the damage and later lodged a complaint at the police station. ● The complainant in his testimony repeated the facts presented by the prosecution and added that at the police station, he heard what the accused told the Asafoatse - “let us go to the site and stop them from working and pull down whatever they have done.” Upon hearing these words, he went back and reported that to him. The officer then called the accused and the others and told them not to take such action and that they should allow his men to finish the day’s work. ● According to the complainant, the accused drove straight to the site to stop the work. There, he again said that they will pull the wall down. Three days later, he had a call that some men had pulled down his walls. The complainant during cross-examination admitted that he did not personally see the accused person in the alleged act. This is an excerpt of the cross-examination of PW1: Q: It’s true that you did not personally see the accused person in any act of pulling down your said wall? A: Yes. I did not see him in person. Q: Neither did those who alleged informed you of the collapse of your wall that they saw the accused person pulling down your said wall. A: Yes. Q: If you say yes, it means they did not see the accused pulling down your wall? A: Yes. Q: Those who informed you of the collapse of the wall live on the land around which you were constructing the said fence wall? A: It’s a neighbor in the area. In fact, I share a wall with him. Q: Does he live on the land around which the collapsed fence wall is being constructed? A: He does not live on my land if that is what you mean. Q: But he lives around the land? A: Correct. Q: He did not inform you that he saw the accused on the day the wall collapsed. A: He did not. ● Pw3, in his witness statement, averred that In May 2021, he saw the accused, wearing a white attire, on the land- in a white Lexus unregistered vehicle with a DV number plate. He also drove to the site to find out what was happening. That he saw the accused standing on the land with 7 guys who look like land guards. He went closer and asked what they were doing there and one of them told him that the land belongs to the accused. He called the complainant who said he had been invited to the police station. That he was on site waiting for their arrival when the accused and some men came to the land, threatened, and stopped the complainant’s workers from working. A few days after the incident, he was told that some men on motorbikes came to the site at dawn and broke the wall. Pw2 as well as PW3 indicated that they did not see the one who demolished the wall. During cross-examination, PW3 stated: “I was told that they came at dawn to collapse the wall. I did not see that myself. I was told they were on motorbikes with helmets and masks.” ● The investigator was asked: “The case against the accused is based on high suspicious?” He answered: “Per the complainant’s statement, he told us that he eavesdropped conversation between the accused and Asafoatse. He did not have any litigation with any other person than the accused in respect of the land in question. Based on that he stated that he highly suspected him behind the pulling down of the wall?” He was further asked, “So you took the complainant’s words to be facts?”. He answered in the affirmative. ● In this case, there is no doubt that the wall was demolished by some of men who undertook their operation at dawn and were in helmets to conceal their identity. Unfortunately, none of the prosecution witnesses saw the offenders. They were unable to identify the said people. They indicated that they suspect the accused because he said stated that he would pull down the wall. In the Supreme Court case of Ellis Tamakloe V. The Republic Criminal Appeal Number J3/2/2009 dated the 17th February 2010, Justice Ansah stated: “It is not always that there will be direct evidence to prove the commission of an offence and circumstantial evidence has often been used. In the leading case of The State v Anani Fiadzo [1961] 1 GLR 416-419 the Supreme Court held that: “A presumption from circumstantial evidence should be drawn against an accused person only when the presumption follows irresistibly from the circumstances proved in evidence; and in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt.” ● The prosecution could not establish that the accused was at the crime scene on the day of the incident and that he caused damage to the wall. Prosecution's case amount to no more than mere suspicion. In the case of Michael Asamoah & Anor V. The Republic Criminal Appeal No: J3/4/2017 Date: 26th July 2017, Justice Adinyira (Mrs.) stated: “Permit me to preface my opinion with the dictum of Lamer CJ in the Canadian case of R v. P(MB) (1994) I SCR 555 on submission of no case. “Perhaps the single most important organizing principle in criminal law is the right of the accused not to be forced into assisting in his or her own prosecution. This means, in effect, that an accused is under no obligation to respond until the state has succeeded in making out prima facie against him or her… “ A prima facie case has not been made out against the accused person to require him to open his defence. In the circumstance, the accused person is hereby acquitted and discharged. (SGD) H/H EVELYN E. ASAMOAH (MRS) CIRCUIT COURT JUDGE 6