05:-6:2023

IN THE CIRCUIT COURT OF JUSTICE HELD AT DENU ON MONDAY THE 5TH DAY

OF JUNE, 2023 BEFORE HIS HONOUR JOSEPH OFOSU BEHOME, ESQUIRE – CIRCUIT

COURT JUDGE

COURT CASE NO. VR/CT/DE/CC.172/2023

THE REPUBLIC

VRS:

MAMA TOHAGBE

ACCUSED PERSON ………. … PRESENT.

C/INSPECTOR SETH APPAU FOR PROSECUTION … PRESENT.

NO LEGAL REPRESENTATION FOR THE ACCUSED PERSON

JUDGMENT

The Accused persons was arraigned before this Court, charged with the offence of

Threat of Death: Contrary to Section 75 of the Criminal and Other Offences Act 1960 (Act 29).

The Accused person pleaded not guilty to the charge after same was read and explained

to her.

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BRIEF FACTS OF THE CASE

The complainant in this case Charles Sarfohene Dontoh is a Clearing Agent and lives at

Adafienu. Accused Mama Tohagbe is a trader and lives at Avoeme. In 2017, the complainant

bought three and half plots of land situated at Agblekpui from Abede family and was issued

with the necessary document. Later, the accused also went and said that two plot of same

land was sold to her by one of the family members.

Investigation revealed that the family decided to relocate the accused but she refused and

said she will still take the two plots out of the complainant three and half acres’ land. On

09/01/2023, complainant went to work on his land with the witnesses in this case. Suddenly,

the accused surface and told the complainant not to step his feet on the land again. Accused

then threatened the complainant with word that she will kill him. Accused was cautioned by

a witness in this case that if she is aware her statement is criminal. The complainant came

and reported the case to the Police and accused was arrested. Accused admitted going to the

land on the said date and met the complainant and witnesses but denied the offence of threat

of death in his investigation cautioned statement. However, the complainant produced his

witness to buttress his case. After investigation, accused was charged with the offence as

contained in the charge sheet and now before this Honourable Court.

The prosecution called three (3) witnesses in support of its case.

PW1, Charles Sarfohene Dontoh told the Court that he bought three and half acres of

land located at Agblekpui off the Diamond Cement Factory Area in 2017 from the Abede

family and was issued with the requisite documents.

From PW1, he later got to know that two plots out of the land had been sold to a certain

man and a woman out of his plots. PW1, avers he then reported the issue to the family and

they assured him they would relocate them.

From PW1, whilst the man accepted the relocation, the woman herein, the accused refused

to accept the new plot.

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 PW1 avers on 09/01/2023 around one 1:00pm, he together with four (4) others together with

a surveyor went to the land to erect corner pillars and whilst working,

PW1 alleges, the accused came and asked why they were erecting the pillars on the land.

Complainant avers he retorted by telling accused that he has learnt she has been relocated

but has declined the offer.

PW1 contends, he asked accused to park her moulded cement blocks from the land in

dispute.

PW1 says, accused then told him that he is an Akan in Volta and afterwards threatened

him with the words “she will kill me” in the presence of witnesses.

PW2, Albert Kwame Owusu, told the Court that the threat by accused was issued in his

presence. He then confirmed the facts as presented by the prosecution.

Detective Chief Inspector Annor, investigated the case. He relied on his witness

statement and the attached Exhibits.

Prosecution afterwards closed its case.

THE CASE OF THE DEFENCE

In opening her defence, the Accused person testified herself and called one witness as

DW1. The accused persons told the Court that she is called Mama Tohagbe and she hails

from Avoeme-Aflao. She avers she is a businesswoman. She continues that once complainant

came to her and informed her that she has bought thirty-five (35) pieces of plots located beside

Torgbui Fitti’s palace.

According to accused herein, PW1 stated further that he has heard the former’s two (2) pieces

of plots is within his land. Accused alleges PW1, told him he is not interested in litigation

and Police issues and therefore when she is ready, she should call him and he would release

her two plots of land out to her to build. Accused said she had Deposited two trips of sand

on her plot and when she visited her plot after some time she realized PW1 had come to

deposit a trip of sand beside hers on the land she went to PW1 and told him that he should

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agree to a refund of his money but PW1 told her it okay for when he is about to do the entire

fencing of the land then he would come for same. According to accused herein, somewhere

this year she went to the land and saw complainant breaking her corner pillars and she asked

whether complainant was not the very person who told her earlier on that he is not interested

in litigation and Police issues. According to accused she greeted complainant but never

responded for two times. She avers she further asked PW1 whether he is not the very person

who informed her that whenever she is ready to build, she should come for him to show her,

her land? She contends she did not threaten PW1 as he was alleging.

Accused states further that whilst her questions were on-going, PW2 sprinkled water on her

face and she emphatically stated she has no qualms with PW1 but PW2.

DW1, Agorsu Kudanya, told the Court that he and his younger brother were passing by

and they saw accused at the Torku police station, she asked where they were going to and he,

DW1, told accused that they were going to Denu and accused further asked the route that

they will be using and the accused stated she is about going to Torgbui Fitti area. According

to DW1, they then walked together and when they got to accused person’s land there was a

man there who had broken a corner pillar of accused herein. She saw accused then questioned

the said man why she broke the pillar and the answer is, he was instructed by his master

being PW1. DW1, contends, the man then went to some two gentlemen and they also

followed up. DW1, says then there ensued a misunderstanding between them and he told

the man that he should not beat the woman. DW1, avers one fat man sprinkled water on

accused herein but he DW1, managed to separate them and from there they went away.

The legal issue for determination after the end of the trial is whether the Accused person

threatened Charles Sarfohene Dontoh with fear of death.

The common law rule that a person was presumed innocent until the contrary was

proved or he pleaded guilty is reinforced by Article 19 (2) © of the 1992 constitution which

reads:

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“A person charged with a criminal offence shall…….

(c) be presumed to be innocent until he is proved or has pleaded guilty”.

The mandatory requirement that the guilt of the person charged ought to be established

beyond reasonable doubt and the burden of persuation on the party claiming that a person

was guilty, has been provided for in sections 13 and 15 of the Evidence Act, 1975 (NRCD 323).

Significantly, whereas the prosecution carries that burden to prove the

guilt of the Accused beyond reasonable doubt, there is no such burden on him to prove his

innocence. At best he can only raise a doubt in the case of the prosecution. But the doubt

must be real and not fanciful.

In the Republic v. Adu Boahen and Another (1993 – 94) 2 GLR 324 -342, per Kpegah JSC, the

Supreme Court held that:

“A plea of not guilty is a general denial of the charge by an accused which makes it imperative

that the prosecution proves its case against an accused person …. When a plea of not guilty

is voluntarily entered by an accused or is entered for him by the trial court, the prosecution

assumes the burden to prove, by admissible and credible evidence, every ingredient of the

offence beyond reasonable doubt”.

Section 75 of Act 29 provides that:

“A person who threatens any other person with death, with intent to put that person in fear of death,

commits a second degree felony.”

The ingredients the prosecution has to prove to succeed on the charge of Threat of Death are

that:

1. That the accused must have threatened the victim with criminal force or harm.

2. That the harm if visited on the victim will result in murder and:

3. That the accused person must have intended to put the other person in fear of death

or for that matter murder.

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Justice Dennis Dominic Adjei in his book ‘Contemporary Criminal Law in Ghana’at pages

185 to 186 stated the following as the ingredients of the offence of threat of death:

“The first ingredient of the offence of threat of death is that there must be evidence of threat

to kill issued by the suspect against the life of the victim. The second ingredient

of the offence is the intent to put the victim in fear of death. Threat has been defined under

section 17 of Act 29 to include any threat of criminal force or harm. The law

under section 17 (3) of Act 29 notes that it is immaterial whether a threat would be executed

by the person issuing it or not. The determining factor is whether the victim of the crime

feared death when the threat was communicated to him or her or was brought to his or her

notice.

In the case of The Republic vrs. Amadu Bello (14/08/2007) CASE NO.F16/7/07, the Court held

that:

“In a charge under section 75 of Act 29, therefore the prosecution must prove that the accused person

said or did something which put the other person in immediate fear of being killed: threat of death means

threat of murder”.

In the Amadu Bello case (supra), the court noted that the question of whether a person

did experience fear of immediate death is to be based on an objective test. The actus reus of

the offence of threat of death consists in the expectation of death which the offender creates

in the mind of the person he threatens while the mens rea will also consist in the realization

by the offender that his threats will produce that expectation.

Also in Behome vrs. The Republic (1979) GLR 112 @ 123, the Court stated that:

“If there is no evidence that he threatened that other person with death, or as the case may

be with harm, and that where the appellants is therefore charged with threat of harm, the

threat must be of harm and of nothing else.”

The following transpired between prosecution and DW1:

Q. In your evidence in chief you stated that you and your brother were going to

Denu.
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A. Yes.

Q. At what time did you accompany accused to this said land.

A. Morning from 10 0’clock going.

Q. I put it to you that this incident happened around 01 o’clock going.

A. What I said is the truth.

Q. What is the name of the area that you went to.

A. Agblekpui.

Q. On the land you said you met one person.

A. Yes.

Q. I am putting it to you that 4 men went together with the complainant to the

land.

A. That is why I said we met one man and we followed him to the master.

Q. If I get you right, then you and your brother declined to go to Denu as

planned and followed the woman.

A. Following the narration from accused we stopped visiting our sister at Denu

and followed accused to the land.

Q. I put it to you that on the day of the incident accused threatened complainant

with the words “I will kill you”.

A. She did not say that.

Q. During the day of the incident you tell the Court what you heard Mama

saying.

A. Accused told complainant not to step on her land again and should he step

there or see and meets her there again there will be a struggle between

them.

Q. I am putting it to you that you are not truthful to the Court.

A. I am the truth.

Q. Finally you were not present at the scene at all.

A. I was present.
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The evidence on record is the testimony of PW1 (Complainant) against that of the accused

person. The evidence is oath against oath.

In Lutterodt v. Commissioner of Police [1963] 2 GLR 429, the Supreme per holding 2 stated

that:

“Where a decision of a trial Court turns upon the oath of a prosecution witness against that of a

defence witness, it is incumbent on the trial Court to examine the evidence of the said witnesses

carefully along with other evidence adduced at the trial before preferring one to the other. If the

Court prefers the evidence of the prosecution, then it must give reasons for the preference, but if it

is unable to give any reasons for the preference, then that means that there is a reasonable doubt as

to which of the versions of the story is true, in which case, the benefit of the doubt must be given to

the defence………”

The following is discernable: Whilst accused avers they got to the land around one

o’clock, DW1, on the other hand avers it was around 10 o’clock am.

From the facts of the case, we are told went together with 4 other people. Accused says

they met complainant and PW1, DW1 also says they met only the servant, that is one

person and when pushed further he then says the servant followed up to the master.

Importantly, accused avers she did not author a word aside the greetings and the

question as to the fact that complainant is said to about police case. DW1, contradicts

accused by telling the Court that, accused cautioned complainant not to set foot on the

land again else there would be struggle between them.

In Dogbe vrs. The Republic (1975) 1 GLR 118, the Court held that:

“In criminal trials, the identity of the accused person who committed the crime might

be proved either by direct testimony or by circumstantial evidence of other relevant fact from

which it might be inferred thus opportunity on the part of the accused to do the act and his

knowledge of circumstances enabling it to be done were admissible to prove identity”.

Relying on the case of Lutterodt vrs. Commissioner of Police, I prefer the case of the

prosecution to that of the defence as a find that the prosecution has proved it case beyond

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reasonable doubt. There overwhelming material inconsistencies in the defence and their

credibility also questionable.

H/H JOSEPH OFOSU BEHOME

CIRCUIT COURT JUDGE