Republic Vrs Kumnipa and Others [2022] GHACC 169 (5 December 2022)

IN THE CIRCUIT COURT HELD AT MPRAESO ON MONDAY 5TH DECEMBER 2022 BEFORE HIS HONOUR STEPHEN KUMI ESQ CIRCUIT JUDGE. COURT CASE NO. B1/25/2020. THE REPUBLIC V NANA AGYAKWA KUMNIPAA AND OTHERS. JUDGMENT: BACKGROUND Some nine (9) accused persons were charged and arraigned before this court. They are Nana Agyakwa Kumnipaa, Kwabena Akuamoah, Stephen Okafor, Maxwell Nonso, Nana Ampedu Kissi III, Nana Agyei Frempong, Kweku Ntoni, Douglas Appiani, and Kwasi Jonathan as A1 to A9 respectively. It is important for me to state however that the A3 and A4- Stephen Okafor and Maxwell Nonso- who are Nigeria nationals have since the inception of the case been at large. Per the filed charge sheet, all the above-mentioned accused persons jointly face one count of conspiracy to commit crime; to wit offensive conduct conducive to the breach of the peace; contrary to sections 23 (1 ) and 84 of the Criminal Offences Act, 1960, Act 29; as well as a second count of assault contrary to section 84 of Act 29/1960. Meanwhile, the first Accused person ( A1 ) , Nana Agyakwa Kumnipaa alone faces some two different counts as follows: One (1 ) count of carrying offensive weapon, contrary to section 206; and causing harm contrary to section 69; Act 29/1960 ( supra). The accused persons- minus the two Nigerians- upon their arraignment before this court, all denied the charges against them by pleading not guilty on all the joint and separate counts against them. The legal effect of their pleas resulted in the prosecution assuming the burden of proving their guilt on all the counts beyond reasonable doubt in a criminal proceedings of this nature. This is due to the following Constitutional provision; which is Article 19 (2 ) ( c ) of the 1992 Constitution, thus; “Article (2) ( c ) A person charged with a criminal offence shall…. be presumed innocent until he is proved or has pleaded guilty”. BRIEF MATERIAL FACTS The brief material facts of this case as supplied per the prosecution and read to the court at the start of the trial may be stated as follows: The main Complainants in this case Maxwell Kofi Gyimah and Kwaku Omari, who are brothers and natives of Kwahu Atibie. The accused persons minus the A3 and A4 are also natives and residents of Kwahu Atibie. Although the A1, A5 and A6 double as sub-chiefs of Nana Kwame Asante Beteani, the Chief of Kwahu Atibie. It is must be said that there is a chieftaincy dispute with respect to the Kwahu Atibie stool, particularly by the family of the Complainants who do not recognize the Nana Kwame Asante Beteani as the legitimate chief of the town. It happened that on the dates in question- 29th and 30th September, 2018,- some funerals- including one involving the Complainant’s family- were held at the forecourt of the chief’s palace. Some persons close to the Nana Kwame Asante Beteani came to mount his umbrella at the funeral grounds, to signify his appearance as the chief of Atibie and by extension as the chief mourner customarily. That did not go down well with the Complainants and their family, which they resisted. The police however came in to resolve the dispute, leading to the umbrella being withdrawn from the funeral grounds. However, it is further alleged that on the following day of Sunday, 30th September, 2018, persons close to the chief went to mount the umbrella at the funeral grounds. That also caused the Complainants to oppose same; albeit this time round, it led to a pandemonium or confusion between the two factions, during which the 1st Complainant, Maxwell Asiedu Gyimah, who had principally opposed the mounting of the umbrella was assaulted. That caused the 2nd Complainant to rush to the rescue of the 1st Complainant. The prosecution alleges that the 2nd Complainant- Kwaku Omari- was similarly assaulted by the accused persons after which the A1 singularly used a sword to injure the 2nd Complainant on his head. After a report to the police was made, the two Complainants were issued with police medical forms to seek medical treatment, with the endorsed forms subsequently returned to the police. The accused persons were arrested after being identified by the Complainants. They denied the allegations in their cautioned statements; with the A5 to A9 pleading the defence of alibi. After police investigations, the named accused persons were charged and put before this court. EVIDENCE OF THE PROSECUTION: The prosecution called three ( 3 ) witnesses in their bid or attempt to proving the guilt of the accused persons following their pleas of not guilty. Specifically, the prosecution called the two complainants in addition to the police investigator as witnesses. At the close of the case of the prosecution, the court determined that the prosecution had, by their evidence, made out a prima facie case against all the accused persons on all the counts warranting them to open their defence to avoid a ruling of the court on the issues against them. See section 174 of the Criminal Procedure Act, 1960, Act 30. CASE/EVIDENCE OF THE ACCUSED PERSONS. The three accused persons in their defence vehemently denied the offences against them. They testified in turns. Obviously they were required to say something reasonable in their defence at that stage. They also called a number of witnesses to testify in support of their defence. EVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW: Before I evaluate the evidence as adduced by both the prosecution and the Accused persons so as to determine if the prosecution succeeded to prove their guilt beyond reasonable doubt on the above-mentioned charges or counts, I have found it necessary to discuss in some reasonable detail the burden of proof that the prosecution assumes in this case. Generally, in criminal proceedings, the received learning is that it is the prosecution- upon a plea of not guilty by an accused- that assumes the burden of proof, which they must establish beyond reasonable doubt. In the popular English case of Woolmington v DPP (1935) AC 462; where Lord Sankey (as he then was) held thus; “Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt subject to…. the defence of insanity and subject also to any statutory exception….. No matter the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained”. The above Common Law principle has enjoyed both statutory and case law blessings in Ghana. Under the statute, sections 11 ( 2 ) and 13 ( 2 ) of the Evidence Act, 1975, NRCD 323, state of the burden of proof on the prosecution as follows: “11(2) 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 could find the existence of the fact beyond reasonable doubt.” “13(1) In any 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 reasonable doubt.” It is also statutorily provided that; “Unless it is shifted, the party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue”. See section 15 of the Evidence Act, 1975, NRCD 323. Similarly, in the case of Donkor v The State [1964] GLR 598, SC, it was held inter alia by the Supreme Court of Ghana that in criminal trials, the burden of proof in the sense of the burden of establishing the guilt of the accused is generally on the prosecution or The Republic. But what does proof beyond reasonable doubt really mean? The answer would be found in the following authorities. Both local and foreign decisions would come in handy in that regard. In the case of Osei v The Republic [2009] 24 MLRG 203, C. A; it was held to endorse the established common law view that “proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The Court would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence, ‘of course it is possible, but not at all probable’, the case is proved beyond reasonable doubt, but nothing short of that will suffice”. See also the case of Miller v Minister of Pensions ( 1947) 2 ALL ER 372 at 373; per Denning J ( as he then was ). So that is the burden the prosecution assumes in the case. However, the law is generally that an accused person in a criminal trial does not assume any burden of proof. He has no duty to prove his innocence or disprove anything. At worst, an accused only has to lead evidence to raise a reasonable doubt as to his guilt. And even with that the standard is lower- on the balance of probabilities. See sections 11 ( 3 ) and 13 ( 2 ) of the NRCD 323 ( supra ). The above statutory provisions tie in with and are in undoubted fidelity to the requirement and duty of the courts to consider any explanations or defence that an accused gives and which favours his or her case on the contested issues. In the case of Attah v Commissioner of Police ( 1963 ) 2 GLR 460, SC, the judgment of the trial district court even though confirmed by the High Court, was however quashed on appeal to the Supreme Court because the judgment of the trial court failed to consider the defence fully in that it did not consider the accused statement on caution or even the evidence of his witnesses. Therefore in assessing or evaluating the evidence in this judgment, the Court would have to apply what is known as the three-tier test to each of the elements of a crime, which would involve the court giving full consideration to the defence of the three accused persons in terms of what they stated in their cautioned and charge statements to the police, their sworn evidence-in-chief in court and the evidence of their witnesses. Reference is thus appropriately made to the case of The Republic v Francis Ike Uyanwune [2013] 58 GMJ 162, C. A, where it was held per Dennis Adjei J. A that; “The law is that the prosecution must prove all the ingredients of the offence charged in accordance with the standard burden of proof; that is to say the prosecution must establish a prima facie case and the burden of proof would be shifted to the accused person to open his defence and in so doing, he may run the risk of non-production of evidence and/ or non-persuasion to the required degree of belief else he may be convicted of the offence. The accused must give evidence if a prima facie case is established else he may be convicted and, if he opens his defence, the court is required to satisfy itself that the explanation of the accused is either acceptable or not. If it is acceptable, the accused should be acquitted, and if it is not acceptable, the court should probe further to see if it is reasonably probable. If it is reasonably probable, the accused should be acquitted, but if it is not, and the court is satisfied that in considering the entire evidence on record the accused is guilty of the offence, the court must convict him. This test is usually referred to as the three- tier test”. In order to satisfy the Constitutional, statutory and Common Law threshold of proof beyond reasonable doubt, the law is that “the prosecution has a duty to prove the essential ingredients of the offence with which the appellant (accused) and the others have been charged…” See the case of Frempong alias Iboman v The Republic [2012] 1 SCGLR 297, SC per Dotse JSC. In the same vein, in the case of Homenya v The Republic (1992) 2 GLR 305, Acquah J ( as he then was ), sitting at the High Court, Ho, held and reiterated the position of the law thus; “…the first and mandatory duty of a trial judge in a criminal trial is to examine the case of the prosecution so as to determine whether the prosecution had established all the essential ingredients of the charge leveled against the accused person…”. In expressing his opinion on the foregoing discussion on the various burdens of proof that prosecution and accused assume in the course of criminal proceedings/trials as is the case in the instant case, the erudite Dotse JSC, in the case of Richard Banousin v. The Republic; No. J3/2/2014, dated 18th March 2014, S. C. (Unreported); in his inimitably lucid fashion, held as follows, which I find applicable to the instate case mutatis mutandis; “It is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt in all criminal cases. A corolary to the above rule is based on the fact that an accused is presumed innocent until he is proven guilty in a court of law. This the prosecution can only do if they proffer enough evidence to convince the Judge or jury that the accused is guilty of the ingredients of the offence charged. The Prosecution has the burden to provide evidence to satisfy all the elements of the offence charged – in this case rape. The burden the prosecution has to prove is the accused person’s guilt, and this is proof beyond a reasonable doubt. This is the highest burden the law can impose and it is in contra distinction to the burden a plaintiff has in a civil case which is proof on a preponderance of the evidence. What “beyond a reasonable doubt” means is that, the prosecution must overcome all reasonable inferences favouring innocence of the accused. Discharging this burden is a serious business and should not be taken lightly. The doubts that must be resolved in favour of the accused must be based on the evidence, in other words, the prosecution should not be called upon to disprove all imaginary explanations that established the innocence of the accused. The rule beyond a reasonable doubt, can thus be formulated thus:- “An accused person in a criminal trial or action, is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt, he is entitled to a verdict of not guilty.” See article 19 (2) (c) of the Constitution, 1992 See cases like the following: 1. Frimpong @ Iboman v. Republic [2012] 1 SCGLR 297 2. Gligah&Anr. v. The Republic [2010] SCGLR 870 3. Amartey v. The State [1964] GLR 256 S. C 4. Darko v. The Republic [1968] GLR 203, especially holding 2 This presumption therefore places upon the prosecution the burden of proving accused/appellant guilty beyond a reasonable doubt. Reasonable doubt is not a mere possible doubt, because everything relating to human affairs and depending on moral evidence, is open to some possible or imaginary doubt”. As a necessary corollary to the above discussion- in terms of the need for and the bounden duty of the court or judge to do justice by taking a fair and holistic assessment of the evidence before them- in the case of Dabla v The Republic ( 1980 ) GLR 501, Taylor J ( as he then was ) held that in a criminal trial, there are generally three types of facts that may emerge at various stages of the proceedings. There are; a. The facts which the prosecution may give before the commencement of the actual trial, indicating the material they intend to prove by admissible evidence. b. The facts which the accused person, may, if he chooses, lead in evidence in his defence; and c. The facts which on the consideration of the respective facts of the prosecution and accused/defence mentioned above, the presiding judge or magistrate finds as representing in his opinion the actual facts ( emphasis mine ). My understanding of Taylor J ( as he then was ) in the Dabla v The Republic is that as a judge in criminal proceedings, I should not be fixated with and be swayed just based on the facts of the case given by the prosecution; and vice versa. But that to do justice, I should judiciously sift through thoroughly the competing facts and positions from the prosecution and the defence to arrive at the actual or even reasonably probable facts of the case before me. In fidelity to the above guidelines, in resolving the instant charges, I will accordingly discuss what the elements of the offences are and then determine whether on the evidence as adduced by the prosecution as well as on the competing facts, the respective charges have been established or proven against the accused persons. Consequently, in resolving or determining the counts, I propose to do that in the following order or sequence: I will resolve the counts 1 and 2 jointly and simultaneously as one as they are inextricably linked; although I would do well to pay attention to and look out for their distinctive elements. After that, I will resolve the counts 3 and 4 in turns to bring the curtains down on this all important judicial exercise. COUNT ONE: WHETHER OR NOT THE ACCUSED PERSONS CONSPIRED TO COMMIT A CRIME; TO WIT ASSAULT. COUNT 2: WHETHER OR NOT THE ACCUSED PERSONS ASSAULTED THE COMPLAINANTS. The offence of conspiracy is provided for under section 23(1) of Act 29/1960 (supra) as amended by the Statute Law Review Commissioner per the Revised Edition Act, 1998, Act 562, as follows: “Where two or more persons agree to act together with a common purpose for or in abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence”. See also the case of Republic v Augustina Abu and Others, (Unreported) Criminal Case No. ACC/15/2013; per Marful-Sau J. A, (as he then was). This definition is admittedly different from the old definition of conspiracy which was defined in section 23(1) of the old Criminal Code 1960 (Act 29) 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 might be.” In the case of Francis Yirenkyi v The Republic, (Unreported) Criminal Appeal No. J3/7/2015, Dotse JSC held inter alia that the new formulation no doubt reinforces the view that conspiracy is an intentional conduct; observing that under the new formulation, a person could no longer be guilty of conspiracy in the absence of any prior agreement. In other words, it can be said that the mere acting together of two or more persons in a criminal enterprise is not enough to sustain conviction. Beyond that, there must be proof that the accused persons agreed to act together to commit or abet the crime. In effect, the definitions of and positions on conspiracy based on previous decisions have failed to be good law. A case of conspiracy without proving that the persons involved agreed to act together to commit the offence shall fail. It is however not a defence for an accused person who is charged for conspiracy to state that he did not have prior or previous concert or deliberation with the other accused persons to commit the offence where there is evidence that they agreed to act together to commit the offence. See Dennis Dominic Adjei: “Contemporary Criminal Law in Ghana” at page 89; as well as the case of The Republic v Kwame Amponsah and 6 Ors; Unreported; CC. No. FT/0066/2016; delivered on 18th April, 2019; per Asare-Botwe J. In terms of this assault charge, section 84 of the Act 29, 1960 (supra) creates the offence of assault as “a person who unlawfully assaults another person commits a misdemeanor”. Section 85 of Act 29/1960, with the heading “different kinds of assault”, states that for the purposes of section 84 of Act 29/1960 ( supra ), “assault” includes; a. Assault and battery. b. Assault without actual battery. c. Imprisonment. Flowing from the above, section 86 of the same Act 29/1960 (supra) defines assault together with battery as follows: “A person makes an assault and battery on another person if, without the other one’s consent, and with the intention of causing harm, pain or fear, or annoyance to the other person, or of exciting the other person to anger, that person forcibly touches the other person”. I have found it also appropriate to refer to section 87 ( 1 ) of Act 29/1960 which reads that; “A person makes an assault without actual battery on another person, if by any act apparently done in commencement of an assault and battery, he intentionaly puts the other person in fear of an instant assault and battery.”. This definition is made subject to the provision that; “a person can make an assault, within the meaning of this section, by moving, or by causing a person, animal, or matter to move, towards another person, although that person , or the other person, animal, or matter, is not yet within a distance from the other person that an assault and battery can be made”. With the benefit of the above discussion on the definition of conspiracy and assault, the question to be asked at this juncture is whether the prosecution succeeded to prove the counts 1 and 2 against the accused persons. But before that, I must indicate clearly that while from the facts, there appear to be two different commotion between the parties at the same funeral grounds on Saturday, 29th September, 2018 and Sunday, 30th September, 2018, the prosecution in terms of the counts 1 and 2, only charged the accused persons for the events of Sunday, 30th September, 2018, as shown from the respective particulars of offence. Of course, it cannot be considered or accepted that the counts 1 and 2 were to deal with the events of 29th and 30th September, 2018, as same is not warranted by the criminal procedure rules- to wit, bad for duplicity. The reasonable inference is that the accused persons were not to answer for anything with respect to the alleged assault or events of Saturday, 29th September, 2018. Therefore in the evaluation of the evidence before me, I would not pay attention to the facts and evidence adduced in respect to 29th September, 2018, especially for the purposes of using them against the accused persons. If the prosecution wanted them to answer to anything that occurred on the 29th September, there should have been separate and distinctive counts with their statement of offence and particulars of offence. With this clarification or understanding, I will now determine the issues. In making determination, I have found it expedient and instructive to refer to the following ipsissima verba of Kanyoke J. A ( as he then was ) in the case of Isaac Anim v The Republic; Criminal Appeal No. H2/5/2015; delivered on 15th December, 2016. The retired Justice of Appeal, in making an attempt to differentiate between the old and new formulations of the conspiracy charge, also held as follows to state the nature and quality of evidence that the prosecution must lead or adduce and what a court must look out at trial in a conspiracy charge; “The difference in the two definitions of conspiracy is the removal or deletion of the word “or” between “agree” and “act” from the old definition of conspiracy and also the removal or deletion of the phrase “as the case might be” from the old definition. Simply put the old definition of conspiracy has been modified and reworded in the new definition of conspiracy. In my view, however, the definition of conspiracy under the old definition and the new definition of conspiracy is a difference without any distinction. This is because both under the old definition and the new definition the mode of proving conspiracy remains the same. Under the old definition of conspiracy it was always difficult and rare for the prosecution to prove an actual agreement amongst the conspirators for a common purpose for or in committing or abetting a crime. Proof of the offence of conspiracy had almost always depended on producing circumstantial evidence of the agreement amongst the conspirators. The same difficulty under the new definition of conspiracy pertains in proving that two or more persons have actually agreed to act together for a common purpose for or in committing or abetting a crime. Now, proof that two or more persons have agreed to act together for that common purpose has in my opinion become even more difficult under the new definition of conspiracy. Thus in the absence of direct evidence by or from perhaps one of the conspirators, the prosecution will still have to rely on circumstantial evidence to prove the offence of conspiracy under the new definition of conspiracy under section 23(1) of Act 29 as amended”. In applying the above ipsissima verba of Kanyoke J. A ( as he then was ) to the facts of this case, it is seen that the prosecution could not adduce any direct evidence of the three accused persons meeting, planning or deliberating to go to the funeral grounds on the date in question for the sole purpose of assaulting the PW1 and PW2. In the end the prosecution had to rely on and the court was left with the only alternative of circumstantial evidence to prove and arrive at the commission of the conspiracy charge by the accused persons. If it may be asked “what is circumstantial evidence”? In the case of P. L. Taylor and Others v R 21Crim App Rep 20 at 21, Lord Hewart LCJ (as he then was) explained the nature of circumstantial evidence as follows: “It has been said that the evidence against the applicants is circumstantial: so it is but circumstantial evidence is very often the best. It is evidence of the surrounding circumstances which by undersigned co-incidence is capable of proving a proposition with the accuracy of mathematics”. See the also the case of Duah v The Republic [1987-88] 1GLR 343. Similarly, in the case of State v. Anane Fiadzo [1961] GLR 416 at 417, Sarkodee-Adoo, JSC (as he then was ) in delivering the judgment of the Supreme Court said that: “Presumptive or circumstantial evidence is quite usual, as it is rare to prove an offence by evidence of eye-witnesses, and inferences from the facts proved may prove the guilt of the appellant. A presumption from circumstantial evidence should be drawn against the appellant only when that 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 appellant, and incapable of explanation upon any other reasonable hypothesis than that of guilt. A conviction must not be based on probabilities or mere suspicion…” The case of the prosecution on the conspiracy through their witnesses is that on the date and place in question, the said accused persons came to the scene of the alleged crime and eventually assaulted the PW1 and PW2. For example, the PW1, Maxwell Asiedu Gyimah, had testified- as per the witness statement- to have been attacked by the A3 and A4, who dragged him on the ground, after which one of them hit him on the left shoulder and he fell down. He had also seen the A1, Nana Agyakwa Kumnipaa, come there with the sword in a sheath with which he attempted to hit him but avoided being hit because he succeeded to dodge. He had also seen the A5 and one Forster joined in to beat him up. This has been met with a stout denial by the accused persons to the charge of conspiracy as well as the assault. The essence of their defence is in two versions. For example, in the case of the A5 to A9, they denied being present at the scene by pleading the defence of alibi. For the A1 and A4, they admitted being present and hitting the PW1 and PW2, but their defence was that they did so to prevent the destruction to the umbrella of the Nana Kwame Asante Beteani and also to defend themselves from the PW1 who initially hit the A1. The A1 and A2 on the one hand and the A5 to A9 on the other hand offer separate or different defence. I will first deal with the alibi defence by the A5 to A9. By that defence, all that the A5 to A9 are saying is that they were not present at the funeral grounds at the time of the incident and thus could not have agreed with the others to have committed the offence of assault and also could not have been present to assault the PW1 and PW2. What at all is alibi and what does it entail? Alibi is a Latin adverb meaning ‘elsewhere’ or ‘at another place’ and if evidence for an accused that he was not present at a place at the time an offence was committed is accepted by a court or jury, he is said to have established an alibi. The Black’s Law Dictionary defines alibi as; ‘a defence based on the physical impossibility of a defendant’s guilt by placing the defendant in a location other than the scene of crime at the relevant time’ . Indeed E. Jowitt, in “Dictionary of English Law”; Vol 1 (London, Sweet and Maxwell 1959) at page 156 defined alibi as; “a prisoner or accused person is said to set up an alibi when he alleges that at the time when the offence with which he was charged was committed, he was elsewhere that is at a place so far distant from that at which it was committed that he could not have been guilty”. In Bediako v The State ( 1963 ) 1 GLR 48, SC, it was held inter alia that in criminal law and procedure, if an accused puts forward an alibi as an answer to a criminal charge, he is simply saying that whoever might have committed the offence, if it was committed at all, it was not he; and to support this he leads evidence that he was elsewhere at the material time. It may safely be said that invariably all definitions on what constitutes alibi start from the standpoint of the Accused who is making the positive assertion that he was not at the crime scene at the time of the commission of the offence. Thus the law is also that the onus of making good the plea of alibi was on the person asserting it, in this case the second appellant. This he may discharge on the balance of probabilities. Where an accused sets up an alibi as a defence, the mere allegation that he was not at the scene of crime is not enough. See Yanor vs. State (1965) 1 All NLR. 193, Salami vs. State (1988) 3 NWLR (Pt.85) 670 at 677. Once the evidence of an eye witness to any crime fixes an accused/Appellant at the scene of crime and identifies him/her as the perpetrator of the crime, there can be no defence of alibi in the circumstances. See Nigerian case of Aliyu vs. The State (2013) 54 NSCQR 509 page 515-516. Per NWOSUIHEME, JCA. read in context A successful plea of the defence of alibi is a good defence that completely exonerates the accused as it establishes his innocence. The essence of the defence is that at the material time the accused, incapable of omnipresence as a human being, was at a location other than the scene of crime or locus criminis, and that the prosecution is proceeding against a wrong person. The defence, if successfully pleaded and sustained, renders the prosecution’s case incredible, as it casts serious doubt on the integrity of the prosecution’s case. See the Nigerian Court of Appeal case of Uzevie Otumbere v The State; (2013 ) LCN/6596 ( CA ); delivered on 5th day of December, 2013, per Ejembi Eko JCA ( as he then was ). However it is instructive to state that the defence of alibi is not sacrosanct nor unimpeachable. It is not unquestioningly or slavishly accepted and used by the courts due to its own peculiar frailties. The rationale is not far fetched. This is due to the ease with which an alibi can be fabricated, thus rendering such defense largely unreliable. Alibi is susceptible to bias; especially when such corroborating testimonies come from friends, relatives and supporters, and are marred by discrepancies. It is difficult to ascertain the accuracy or truthfulness of the alibi in order to rebut it. In this case, the A5 to A9 appeared to have given that alibi defence in their respective cautioned statements to the police on 27th November, 2019, which was some more than one year after the events of 30th September, 2018. Section 131 of Act 30, of the Criminal and other offences (Procedure) Act, 1960, (Act 30), governs the practice and procedure in alibi, and provided that: “131 Alibi (1) Where an accused intends to put forward as a defence a plea of alibi, the accused shall give notice to the prosecutor or counsel with particulars as to the time and place and of the witnesses by whom it is proposed to prove, (a) Prior, in the case of a summary trial, to the examination of the first witness for the prosecution, and ..” In the case of Razak and Yamoah v The Republic ( infra ), Ansah JSC ( as he then was ) had to say to show that a defence of alibi can be raised and notice thereof given even in a cautioned statement as follows; “There is no prescribed form for the notice to the prosecutor for an alibi and an accused person may give the required notice and particulars in his investigative cautioned statement to the police. That was Exhibit ‘G’ at the trial dated (sic) 9-9-200. That was long before the PW1 gave evidence on 18th November 2005…”. So there is no procedural defect in how the A5 to A9 in this case sought to give his defence of alibi and notice of same as per their separate cautioned statements. Even in thus case, they went beyond the cautioned statements and caused their Counsel to file formal notice of alibi before the start of the trial. During the trial, the A5 to A9 called respective witnesses to testify in support of the alibi. For example, Vida Boakye, the wife of the A5, Nana Ampedu Kissi III, testified to have been present with the A5 at a meeting at Atibie at around 12 o’clock noon and that around 2 o’clock pm, they heard about the commotion at the funeral grounds and the arrest of some persons including her church pastor, which caused her and the A5 to go to the police station to verify. To her, the A5 was not and could not have been at the scene. Similarly, one Samuel Ofosu, had testified for the A6, Nana Agyei Frempong, saying that on the 30th of September, 2018, he was with the A6 and other family members as they were making arrangements for the funeral of the late head of family and that it was until after they had returned from the cemetery at about 3 o’clock pm when they learnt of the commotion at the funeral grounds. Yaw Ampadu, Ofosu George and Opanyin Yaw Kumah also testified to support the alibi defence of the A7, A8 and A9 respectively. I must clearly indicate that I have fully evaluated the evidence led by the A5 to A9 and their witnesses on the defence of alibi and I found them to be credible to prove the alibi defence on the balance of probabilities. I found them to be reasonably probable. They were convincing. They appeared convincing and credible not only because in my duty or role as the trial judge, I had found them credible in terms of section 80 ( 2 ) of the NRCD 323, but more because the facts on record- adduced by the prosecution themselves- appeared to corroborate the alibi of the accused persons. It is that from the facts- mainly because of the diary of action from the Mpraeso Central Police Station- which was filed as part of the disclosures of the prosecution in the trial- the A1 to A4 were the only ones arrested by some plain clothed police men at the funeral grounds on 30th September, 2018, and taken to the police station on the allegation that they had assaulted the PW1 and PW2. Still, the facts show that it was only the A1 to A4 who were investigated, cautioned and originally charged before the court in early October, 2018. It happened that it was only in November, 2019, when the PW2, Kwaku Omari, in open court informed the then trial judge that the A5 to A9 were part of those who had assaulted them at the funeral grounds, which caused the then trial judge to order the police to investigate the A5 to A9, leading to their inclusion on the present charge sheet. In the opinion of the court, apart from its difficulty with the PW2 informing the then trial judge of the complicity or involvement of the A5 to A9 in open court rather than to have made an original complaint to the police all that while as they stay in the same Atibie town, the court also finds it curious and suspicious why it took the PW2 more than one year to mention the names of the A5 to A9 as co-conspirators or accomplices if indeed the A5 to A9 were at the scene and took part in the assault, especially as there is no evidence that either of the PW2 or the A5 to A9, travelled out of Atibie between 30th September, 2018 and November, 2019. The court finds the allegation of the PW2 against the A5 to A9 as co-conspirators or accomplices as convenient afterthought. Besides, the police investigator in the case, during his cross-examination by the learned Counsel for the accused persons answered that between the statement of the arresting officers who stated that it was only the A1 to A4 who had been found and arrested at the scene assaulting the PW1 and PW2 on the one hand and the statement or evidence of the PW2 on the other hand, he would believe and accept the words of the plain clothed police officers. That is tellingly significant, especially coming from the prosecution witness, which should go in favour of the A5 to A9, reasonably showing that they were not at the scene of the crime at that time, as has been their cumulative defence. It is the considered opinion of the court that the explanation given in the commentary to section 11 ( 4 ) of the Evidence Act ( NRCD 323 ) in respect of the burden of producing evidence appears to entitle the A5- A9 to benefit from the evidence of the police investigator in discharging the legal burden of raising a reasonable doubt as to the guilt of the A5 to A9 ; “A party with the burden of producing evidence is entitled to rely on all the evidence in the case and need not rest entirely on evidence introduced by him. The party with the burden of producing evidence on the issue may point to evidence introduced by another party which meets or helps the test of sufficiency. It is for this reason that the phrase “ on all the evidence” is included in each of the tests of sufficiency”. Upon a careful evaluation of the evidence as a whole before the court, the court is not satisfied that the prosecution succeeded to prove beyond reasonable doubt that the A5 to A9 were at the scene of the crime and participated in the alleged assault of the PW1 and PW2. By extension there is a reasonable doubt that they conspired among themselves or with the others to go to the scene to assault the PW1 and PW2. persons had any prior agreement before they came to the funeral grounds or any agreement at the funeral grounds to throw stones, and/or insult and abuse or threaten the PW1 and his entourage. In the premises, the A5 and A9 acquitted and discharged on the one count each of conspiracy to commit the crime of assault and assault of the PW1 and PW2. They are found NOT GUILTY on the counts 1 and 2 respectively. In terms of the fate or defence of the A1 and A2 ( as the A3 and A4 did not participate in the trial), the court finds that on the date in question at the funeral grounds near the Atibie chief palace, the PW1 took offence to the mounting of the umbrella by some persons close to the Nana Kwame Asante Beteani, and that caused the PW1 to initially attack or hit the A1, Nana Agyakwa Kumnipaa, which compelled the A1 to also hit the PW1 in turn. The court further finds that it was at that point that the PW2, went in to rescue the PW1 but ended up attacking or hitting the A1, which caused the A1, Kwabena Akuamoah, to come in to protect the A1, which led to an altercation, during which the A2 pushed or hit the PW2. From the above facts or evidence, it is clear that the PW1 was the aggressor. See the case of Torto v The Republic ( 1971 ) 2 GLR 342, CA. PW2 also went to attack the A1 and cannot be said to be an innocent victim. Flowing from the above, it is my considered opinion that the act of the A1 and A2 in hitting the PW1 and PW2 at the scene was necessary and justified. The law supports that as their acts were done to protect the destruction to the umbrella of the Nana Kwame Asante Beteani- a customary symbol of his authority or position- as well as to protect or defend himself ( as in the case of the A1 ) or to protect or defend the assault on the A1 by the PW1 and PW2 ( as in the case of the A2 ) no crime was committed. Why do I say so? Now, sections 31 and 37 of the Act 29/1960, contain provisions under which a person may justify the use of force; which include “of a necessity for the prevention of a defence against a criminal offence”. Specifically per section 37, the law is that “For the prevention of, or for the defence of himself or any other person against any crime, or for the suppression or dispersion of a riotous or an unlawful assembly, a person may justify the use of force or harm which is reasonably necessary extending in case of extreme necessity even to killing”. Similarly, at section 31 ( g ) of the Act 29/1960, force or harm is justified on the grounds of necessity for defence of property or possession or for overcoming the obstruction to the exercise of lawful rights. On the basis of the above positive finding from the record or evidence, the court finds and holds that so long as it took place during the destruction to the umbrella of the principal of the A1 and A2, and in response to the attacks on the A1 by the PW1 and PW2, the assault on the PW1 and PW2 was necessary to defend themselves and others with them or to prevent or end the criminal act of the PW1 towards the property of the Nana Kwame Asante Beteani. The A1 and A2 thus could not have unlawfully and intentionally assaulted the PW2, especially as the court does not find the force used even excessive. The A1 and A2 are therefore acquitted and discharged on the counts 1 and 2. COUNT 3: CARRYING OF OFFENSIVE WEAPON: From the provision of section 206 ( 1 ) of Act 29/1960 ( supra ), the offence is committed when the evidence prove that the person charged without lawful authority- the proof of which lies on that person- has in a public place an offensive weapon. The offence is committed is misdemeanour. Offensive weapon has been defined in the provision to mean “an article made or adapted for use for causing injury to the person or intended by the person having it for that use by that person”. See section 206 ( 3 ) ( b ) of Act 29. From the above provision and on the authorities, there appears to be three different kinds of offensive weapon. First, is an article or weapon made specifically to use to cause harm or injury. That is an article that is offensive weapon per se. This will include cutlass or blade. Second is an article adapted to cause harm or injury; which will include a baseball bat with a nail fixed into it by the user to cause harm. Third, items not made or adapted, but merely intended to be used as an offensive weapon even if they have some other legitimate use; which will include a pen that is used to cause harm or a cup of acid which is intended to be thrown in someone's face to harm the victim. Meanwhile “ public place” has been defined or described to mean or include a place or premises that the public has a right of access or where the public can and do have access. See the cases of Regina v Kane 1965] 1 All ER 705 per Barry J; and Gaba v The Republic ( 1984-86) 1 GLR 694. When the above authorities are related to the facts in the instant case, the court finds and hold that the sword that the A1 had with him was an offensive weapon per se. In other words, the sword he had on him at the funeral grounds was an article made to cause harm or injury. In addition, the court finds that the funeral grounds was a public place as it was ordinarily accessible to members of the public and residents of Atibie without any known restrictions. On the basis of this finding, it is the finding of the court that the evidential burden was on the A1 to have adduced satisfactory evidence of the lawful authority he had to have carried the sword on him at the funeral grounds- a public place on the date in question. The court has evaluated the explanations of the A1 and has determined that he failed to discharge that burden- that is to show that he had any lawful authority to have carried the sword to the funeral grounds. The evidence adduced by and on behalf of the A1 was that he is a pastor or prophet who uses the sword traditionally to pray for and heal people and thus carries it with him everywhere he goes to. Although the court found credible evidence that the A1 is also a prophet or pastor who normally carries the sword with him for spiritual or religious reasons, the court did not find it excusable or exculpatory. From my research, there are some jurisdictions- particularly in England and Wales as per their Prevention of Crime Act, 1953- that allow or excuses the possession of a weapon in a public place if they had lawful authority or had reasonable excuse for carrying it. For example, in England and New Zealand, their laws allow one to carry or use an offensive weapon in public if it was used in the lawful pursuit of one’s occupation or employment or for genuine religious purposes. As an illustration, in England Sikhs are permitted to carry and use a curved knife called kirpan in public for religious purposes. However, while Ghana’s law allows one to carry am offensive weapon in a public place with lawful authority- for example by a police man carrying gun in public as same is necessary to his lawful duty- no provision is expressly made for the defence of ‘ reasonable excuse”; which could extend to a pastor or religious leader using the equivalent of kirpan in public in Ghana. The reasonable inference or conclusion is that if the lawmaker or Parliament of Ghana had meant or intended to include that defence under section 206, it would have added or referred to it expressly in the law; showing that the defence of reasonable excuse to have or carry offensive weapon in Ghana was deliberately excluded; especially when it is seen that the Act 29/1960 was enacted after the Prevention of Crime Act in England in 1953- This is termed as expressio unius est exclusio alterius in the law of interpretation. If the A1 needs to carry or use the sword for religious purposes, then he would be required to register and obtain permission from the Ghana Police Service as sword as an offensive weapon is part of “arms” under the Public Order Act of 1994 and the Arms and Ammunition Decree, 1972, NRCD 9 as amended. The court will accordingly find and hold that the A1 failed to prove lawful authority for having or carrying the sword at the funeral grounds on the 30th of September, 2018. He is accordingly convicted and found guilty on the count 3. COUNT 4: CAUSING HARM: On this count of causing harm, statutorily, this offence is provided for under section 69 of the Act 29/1960 (supra ). The said provision reads as follows: “A person who intentionally and unlawfully causes harm to any other person causes a second degree felony”. From the above plain definition of the offence of causing harm, the following are the constituent elements or ingredients of the offence: That the harm caused must not only be intentional but also unlawful. In the case of Brobbey and Others v The Republic (1982-83) GLR 608, when Twumasi J (as he then was ) was confronted with a case involving offences of causing harm and causing unlawful damage, he held that thus; “An essential ingredient element for the constitution of the crimes of causing harm contrary to section 69 and causing damage contrary to section 172 of the Criminal Code, 1960 ( Act 29 ), was that the harm or damage must not only be intentional but unlawful. Mere harm or damage without more was insufficient…”. As I stated above, the offence of causing harm has two legs; it must be intentional and it must also be unlawful. So that if the act in question was intentional but lawful, then the offence would not have been made out. On the evidence, while the prosecution alleges that the A1 used the sword to strike the back of the head of the PW2 to harm him during the commotion at the funeral grounds, the A1 denies that, saying that the PW2 only got injured when the A2, Kwabena Akuamoah, forcefully pushed the PW2, who went to hit his head at the metal part of one of the canopies mounted at the funeral grounds. This has occurred following the intervention of the A2 to save the A1 from his assault by the PW1 and PW2. The PW1 testified to corroborate the evidence of the PW2 that the A1 took out the sword to harm the PW2; while the A2 testified to corroborate the version of the A1 that he ( A2 ) pushed the PW2 when he came in to defend the A1, which caused the PW2 to hit his head to the metal canopy, injuring him in the process. One Kwame Atta Bamfo Isaac, was also called by the A1 and he testified to support the version of the A1. On the whole of the evidence before me on this count, the court finds the version of the A1 more credible and more reasonably probable. The version of the A1 was made more reasonably probable or reasonably true because per the Exhibit K- which is the endorsed medical form on the PW2- the medical officer who had seen and treated the PW2 wrote that the PW2 had come to him on 1st October, 2018- which was a day after the incident- to report to the hospital “with a bleeding laceration on the scalp following an alleged physical assault”. Further, in his own impression of the report, the medical officer wrote that” scalp laceration following physical assault”. In the opinion of the court, the endorsement on the endorsed medical form- admitted without objection and as an exception to the hearsay rule- were tellingly significant and instructive. This is because the court finds that if indeed it was the case of the A1 who took out the sword to intentionally cause harm the PW2, the PW2 would have mentioned that to the medical officer and considering the possible medical complications that can arise from an injury caused by such a weapon, the medical officer would have expressly indicated that he was seeing and treating the PW2 for injury caused by the use of no mean an article like a sword! The court thus rejects the version of the PW2 and the prosecution for that matter and finds and holds that the PW2 got injured on the head when he went to hit his head on the metal canopy at the funeral grounds caused by the A2 pushing him during the commotion in order to and for the purpose of defending the A1 who was being attacked by the PW2. In that regard, and in the light of what the court has already found to be a necessary and justifiable use of force by the A2 to defend the A1 and the umbrella of their principal, Nana Kwame Asante Beteani, the court will accordingly hold that the harm to the PW2, apart from being caused by the action of the A2 rather than the A1, was reasonably necessary and lawful. To that affect, the court finds and holds that the A2 acted within reasonable, justifiable and legally accepted bounds when he pushed the body of the PW2, Kwaku Omari, in order to defend or prevent the assault of the A1 by the PW2 and from any unlawful interference with and destruction to the umbrella mounted at the funeral grounds. In the case of Palmer v R ( 1971 ) AC 814, the law was held that it is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do and may only do, what is reasonably necessary. The law is equally that a person who is assaulted is entitled to strike back, even to death if in self-defence. See the case of The State v Ampomah (1960 ) GLR 262. SGD: STEPHEN KUMI, ESQ CIRCUIT JUDGE. s.k.