The Republic Vrs Andoh & 2 Others [2022] GHADC 331 (14 November 2022)

IN THE DISTRICT COURT HELD IN THE WESTERN REGION ON MONDAY AT AGONA NKWANTA ON THE 14TH OF NOVEMBER 2022 BEFORE HIS WORSHIP SIDNEY BRAIMAH DISTRICT MAGISTRATE WR/AA/DC/B9/06/2020 THE REPUBLIC VRS 1. ROBERT ANDOH 2. JOHN ESSIEN 3. PROSPER QUAICOE ---------------------------------------------------------------------------------------------- JUDGMENT ---------------------------------------------------------------------------------------------- The first, second and third accused persons (hereinafter known as A1, A2 and A3) were arraigned before this court and charged conspiracy to commit crime; contrary to section 23(1) of Criminal and Other Offences Act, 1960 [Act 29] on count one and causing unlawful damage contrary to section 172(1) of Act 29. Upon their arraignment before this court, the accused persons pleaded not guilty to the charge preferred against them. Brief facts of the case as presented by prosecution. The complainant in the case is Ebususpayin Panyin Yena, a farmer and resident of Ellobankata. A1 is a priest. A2 is a farmer and A3 is a vulcanizer. The accused persons are all resident in Ellobankata. On the 20/02/20; the complainant engaged a mason to construct one bedroom apartment to operate his public address system. The accused persons herein claimed ownership of the land on which the building was being constructed went to the site of the building on 23/02/20 and forcibly expelled the mason and his workers from the site. Thereafter; accused persons caused extensive damage to the building which was then at the lintel level. The matter was reported to the police on the same day and the accused persons were arrested. They were subsequently processed and arraigned before this court for the present trial. The case for the prosecution The evidence adduced in support of the case for the prosecution is that; PW1 and PW2 engaged PW3, a mason, one Owuengyamebe to build one room apartment to be used to run information centre at Ellobankata. The building was constructed up to the lintel level. On the 23/02/20, PW3 was at the building site working when a group of people including the accused persons entered the building site and demanded to know the person who engaged him to build the house. PW3 mentioned PW1. The accused persons without provocation or warning started to demolish the walls of the building. PW3 proceeded to inform PW2 of the state of affairs at the site. PW2 went to the scene and witness that damage. On his way home he saw the accused persons standing in front of a store. The matter was subsequently reported to the police. PW4 was assigned to the case as an investigator. The investigator recorded the statements from the prosecution witnesses and proceeded to the scene and took photographs of the damage caused to the building. The photographs were admitted in evidence and marked exhibits A1, A2 and A3 respectively with objections. In the course of his investigations, PW4 took the investigation caution statements from A1, A2 and A3 after their arrest. The investigation caution statements were read and interpreted to the accused persons in court and same was admitted in evidence as exhibits B1, B2 and B3 for A1, A2 and A3 respectively after a voire dire on exhibits B2 and B3. On instructions to charge the accused persons with the preferred offence, charge caution statements volunteered by A1 and A3 were similarly read and interpreted to them and same were admitted in evidence and marked exhibits C1, C2 and C3 for A1, A2 and A3 respectively without objection. The accused persons were accordingly arraigned before this court for present trial. The case for the accused persons The evidence adduced by A1 in his defence is that the land on which PW1 is building the house belongs to his late uncle and that on notice of the construction, he was instructed by his family elders to accompanied A2, A3, one Kwesi to the scene and instructed PW3 to stop working on the land. In response, PW3 stated that he had bought the land from PW2. That led to heated exchanges of words between PW3 and Kwesi which resulted in PW3 pushing Kwesi to fall on packed cement blocks. According to A1, at that material time; there was a foundation dug at the scene and no cement blocks had been laid yet. A1 proceeds that there was a truck offloading cement blocks at the site. A1 denied causing damage to a wall. On his part, A2 submitted that the accused persons were summoned by their elders and instructed to go to the scene and invite PW3 to meet with them. On arrival at the scene; PW3 refused to accompany them to meet with their elders and declared that the land in issue had been sold to him. One Kwesi whom was in their party; began to exchange words with PW3 and in the course of the verbal altercation; PW3 pushed Kwesi and he fell into the dug foundation around which there were packed cement blocks. A2 denied causing damage to the wall. In his defence, A3 contended that on the day of the incident; the accused persons were at a family meeting when they were informed that somebody was working on the family land and that the accused persons, one Kwesi Nti and others present should go to the scene to investigate. At the scene, A3 noticed that a foundation for several rooms had been dug on the land. A1, A2 and A3 engaged in exchange of heated words with PW3 and they returned home. A3 denied causing damage to the walls. In criminal trials, the prosecution has the burden of proof of the charge preferred against the accused persons, and same is discharged by establishing the essential ingredients of the offence beyond reasonable doubt. [See sections 11(3) and 13 of the Evidence Act, 1975. (NRCD 323)]. In evaluating the evidence, the court is enjoined to apply what is known as the three-tier test to the elements of the crime preferred. The three tier test as espoused by Dennis Adjei J. A in the case of The Republic v. Francis Ike Uyanwune [2013] 58 GMJ 171 held that under the law, the prosecution must prove all the essential ingredients of the offence charged in accordance with the required standard of proof. Accordingly, at the end of the case for the prosecution, a prima facie case must be established against the accused person and the burden would be shifted on the accused person to open his defence and in doing so, he may run the risk of not producing evidence to the required degree of belief else he may be convicted of the offence preferred against him. The accused person must adduce 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 person is either accepted or not. If the court finds the explanation of the accused person acceptable, the accused person should be acquitted, and if not acceptable, the court owes him a duty to find if the explanation is reasonably probable. If the explanation is reasonably probable, the accused person should be acquitted, but if the court after evaluating the totality of the evidence on the record and find the accused person guilty of the offence, the court must convict him. In evaluating the evidence adduced against A1 and A3, the court refers to the relevant law grounding count one as stated in section 23(1) of Criminal and Other Offences Act 1960 [Act 29] as follows: “Where two or more persons agree to 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 commits a conspiracy to commit or abet the criminal offence.” Accordingly; to succeed on a charge of conspiracy to commit a crime, the prosecution is required to establish that the persons charged agreed to act together with a common purpose for or in committing or abetting a crime or that the accused persons acted together with a common purpose for or in committing or abetting a crime. The prosecution is not required to establish whether or not there was a previous agreement to act in concert to commit or abet a crime. The agreement to commit a crime may be proved by inference from the conduct of the accused persons in furtherance of that criminal conduct. Having set out the essential ingredients for the offence of conspiracy to commit crime; the court is reminded of settled judicial opinion that recognizes that prosecution rarely offer direct evidence to prove the charge of conspiracy. Often, and the most common and reliable method of proof is for the prosecution to establish by cogent evidence overt acts done by accused persons pursuant to their criminal enterprise. In C. O. P v Afari and Addo [1962] GLR 483 at 486 it was held that: “It is rare in conspiracy cases for there to be direct evidence of the agreement which is the gist of the crime. This usually has to be proved by evidence of subsequent acts, done in concert, and so indicating a previous agreement.” Logically and sequentially, the court will proceed to evaluate the evidence adduced on count one, by first, determining charge preferred on count two, to wit: causing unlawful damage. On count two, the court reproduces section 172 (1) of Act 29 that sustain the charge: “A person who intentionally and unlawfully causes damage to property (a) to a value not exceeding One Million cedis, or without pecuniary value, commits a misdemeanour. (b) to a value exceeding One Million, commits a second degree felony” The particulars of offence did not disclose any controversy that the value of the damage to be over Ghc100.00, and as such the charges preferred a second degree felony in the absence of any evidence to the contrary on the record. For the prosecution to secure conviction against accused persons on the charges preferred, it must be established beyond reasonable doubt the accused persons herein caused the damage to the farms and that the damage was intentional and unlawful. It can be construed from the totality of the evidence on record, that the issue of whether the accused persons conspired to cause unlawful damage and caused unlawful damage is essentially oath against oath. The court is therefore reminded of settled judicial opinion that where the evidence on a material issues is oath against oath in a criminal trial, the court shall apply the legal principles governing the credibility and veracity of the witnesses enunciated in Amartey v State [1964] GLR 256 at 259 SC and Gligah & Atiso v The Republic [2010] SCGLR 870. The test for the credibility criteria in the afore- mentioned cases is for the court to first consider the case put forward by the prosecution by applying all the principles governing the credibility of witnesses and if the court is convinced that the witnesses are believable, the court should proceed to consider the credibility of the evidence adduced by the accused person. After considering the evidence adduced by the accused person and his witnesses and the court finds that the evidence is not believable, the court owes a duty to further determine if the evidence is reasonably probable. If the court finds it reasonably probable, then the crime is not established beyond reasonable doubt. Section 80(2) of NRCD 323 set out the general principles in assessing the credibility of parties and their witnesses by considering traits of honesty or truthfulness or their opposites as well as statements or conducts which is consistent or inconsistent with the testimonies of the parties and their witnesses. The evidence adduced by prosecution is that on the 23/2/20 at about 3:00pm; the accused persons went to the land on which PW3 was working on as a mason and instructed him to stop working on their family land and that the ensuing confrontation generated into heated verbal exchanges which resulted in the falling on cement blocks on the ground. These conclusive facts were admitted in the oral evidence adduced by the accused persons on oath and in their previous statements to the police and as such corroborate the case for the prosecution to a large extent. The points of divergence of evidence adduced by the accused persons and the prosecution are the assertions by the defence that the scene as depicted in exhibit A series are inaccurate in the sense that they are not of the scene of the incident; that if exhibits A series were of the scene of the incident; the photographs would have captured a electricity transformer and a house situate nearby; that PW3 had only dug foundation and packed cement blocks along the dug foundation and that there were no cement block wall laid yet at the site; that at the scene, PW3 pushed the said Kwesi Ntim and he fell on the packed cement blocks which scattered and that they did not pushed a wall down at the scene at the time of the incident. Evaluating the areas of divergence of evidence between the parties, the record reveals that A1 stated in exhibit B1 that he went to the scene with A2, A3, one Kwesi, one Kwabena and another person. A1 however departed from his early documentary evidence to restrict the persons who accompanied him to the scene to only the accused persons and Kwesi. On his part; A2 stated in exhibit B2 that he accompanied A3, one Nyamekye and Kwesi Ntim to the scene. A2 thereafter expanded the list of names of the people who accompanied him to include A1. In his evidence; A3 stated in exhibit B3 that he was accompanied his whole family including the accused persons to the scene and that they were led by one Kwabena Kakra. With the intention to impeach the veracity and credibility of the accused persons; the prosecution interrogated the evidence adduced by A2 in respect of the conduct and identity of the persons who accompanied him to the scene. I reproduce the relevant portion of his cross-examination: Q. How many of you were sent to the land? A. Four. Q. Name them. A. A1, A3, Kwesi and I Q. So the four of you left the Chief’s palace to the scene together. A. Yes Q. So it is never the case that the accused persons met Kwesi already on the land. A. Yes. He did not go with us. Q. You just told the court that Kwesi accompanied you and the other accused persons to the scene. A. I have said so A2 made these further responses to questions posed to him. Q. Did you ask the mason to stop work? A. Yes. He refused to stop work so we left the scene. Q. It is not correct that you returned from the scene. There was a confrontation. A. It is not true. Q. And that the confrontation was between the four of you and the mason. A. It is not true. The evidence adduced by A2 under cross-examination quoted above that he did not accompany the said Kwesi to the scene is at variance with portions of his statement contained in exhibit B2. A2 did not object to that part of his statement contained in exhibit B2 before same was admitted in evidence. The portion of A2’s cross-examination quoted above is also in conflict with the evidence adduced by A1 in his oral and previous statement to the police, exhibit B1. In the same vein, A3 stated in his exhibit B3 that he went with the whole family to the scene; however. He resiled from that material evidence to adduce in his evidence-in-chief that he accompanied one uncle Kwaw and uncle Kwamina to the scene and met A1, A2 and Kwesi Ntim already engaged in heated verbal exchanges with PW3. The apparent conflict in the evidence adduced by A2 to that of A1 and A3 prompted the prosecution to interrogate the issue under cross- examination. I refer to the relevant portion of the cross-examination of A3. Q. Is it your case that you set off from the palace to the land in issue without A1 and A2? A. Yes. Q. I am suggesting to you that A1 and A2 testified that you accompanied them from the palace to the scene. A. I was not in their party when they set off to the land. Q. A1 and A2 did not testify that you accompanied the people you alleged you accompanied to the land in their evidence. A. It is not true. The court also refers to other relevant portion of the cross-examination of A3. Q. Did you ask the mason to stop work? A. No. Q. I am suggesting to you that it is not correct that you arrived at the scene after the incident. A. It is not correct. Q. There was a confrontation between the accused persons on one side and the mason on the other side. A. No Clearly, the disparities between and within the oral and documentary evidence adduced by accused persons and the conflict between the evidence adduced by accused persons are material and critical in proving or disproving the allegations against them. The material conflicts in exhibits B series and the oral evidence adduced by the accused persons affected the veracity of their evidence and the credibility of the accused persons. Accordingly, the evidence attracted less weight in the eyes of the court. The court further takes notice that the record does not provide any explanation for the material conflicts in the evidence adduced by the accused persons. The only logical conclusion in the absence of any explanation for the conflict is an afterthought. The conflict identified goes against the credit of the accused persons. (See also Gyabaah v The Republic (1984-86) 2 GLR 461, The Republic v Adekura [1984-86] 2 GLR 345, C, Egbetorwokpor v The Republic [1975] 1 GLR 585 and section 80(2) of NRCD 323). In Kuo-Den Alias Sobti v The Republic (1989-90) 2 GLR 213 SC, it was held that inconsistent account given by the accused persons in respect of what took place on the day the incident is sufficient justification for the court to reject their evidence. In evaluating the evidence adduced by the prosecution, the court considered the materiality of exhibit A series to the case for the prosecution. Exhibit A series shows PW1, A1 and PW4 were at a scene where cement blocks have been scattered and discarded on the ground. Exhibit A series show the cement blocks are not packed but appear to have been forcibly moved from a wall and displaced on the ground. It can also be noted from the photographs that there are dry mortar on the remaining wall and the discarded cement blocks on the ground suggesting that they were previously attached to the wall. The conclusion of the court is based on the facts that it would not be reasonably probable that a reasonable mason would apply mortar on cement blocks laid on a wall or cement blocks on the ground without mounting it on a existing wall. The court finds that the only plausible explanation for the presence of cement mortar on the sides of the scattered and discarded cement blocks is that they were previously attached to a wall before they were detached. In his denial that exhibit A series does not show the scene of the incident; A1 gave this response under cross-examination. Q. Take a look at exhibit A2 By court A1 takes the photograph. Sgn Do you see a lot of cement blocks scattered where the mason was working? A. There are cement blocks but the place is not the scene of the crime. It is a photograph of a building on a land in dispute before this court. In that matter, the court directed the parties to take photographs of the building. It is those photographs that the prosecution is using in this case. The explanation offered by A1 to the question posed to him is not logically plausible. If indeed, exhibit A2 was taking by an order of a court in a different case, why is PW4, the investigator in this case captured in the photograph?. Is that case also a criminal case in which PW4 is the assigned investigation? The court also finds the allegation by A1 that a court directed the parties to take photographs to be taken to be highly unlikely. The general rule of evidence is for prosecution or plaintiff in a case to adduce or present their own evidence to establish the required standard of proof without the direction of the court as to how to prove their case. In respect of the denial by accused persons to the contents of exhibit A series; the court take cognizance of the response of A3 under cross-examination. I reproduce the relevant portion: Q. On the land, you saw the mason had raised the wall to a certain level. A. No. I saw a wall scattered. I did not see whether there was mortar on the blocks or not. My brother Kwesi Ntim was injured. Kwesi Ntim is also known as Kwesi. The response by A3 to the question posed to him makes it an admission to the material facts asserted by the prosecution that there was a wall at the scene at the time of the incident. The admission corroborates the case for the prosecution and the confession statements contained in exhibits B series. Having scrutinized the evidence offered by the prosecution and apply all the test of veracity therewith, the courts finds the case put forward by prosecution to be consistent, corroborative, credible and reasonable against the accused persons. On the converse, the evidence adduced by the accused persons is conflicted, not believable and not reasonably probable. The court finds that prosecution has established beyond reasonable doubt that accused persons herein caused unlawful damage to the wall in issue. The conclusion of the court further goes to established that prior to the unlawful damage; accused persons agreed to act together with a common purpose for committing unlawful damage. Accordingly, the court convicts A1, A2 and A3 of conspiracy to commit crime; contrary to section 23(1) of Act 29 on count one. The court further convict A1, A2 and A3 of causing unlawful damage, contrary to section 172(1)(b) of Act 29 on count two. Pre-sentencing hearing 13