FORKUO AND OTHERS vs. THE REPUBLIC [1997-98] 1 GLR 1

CASES REFERRED TO

(1) Mante v Botwe [1980-90] 1 GLR 479, CA.

(2) Bediako v The State [1963]1 GLR 48, SC.

(3) Atiemo v Commissioner of Police [1963] 1 GLR 117, SC.

(4) Kono v The State [1965] GLR 112, SC.

NATURE OF PROCEEDINGS

APPEAL by the appellants to the Court of Appeal against their conviction and sentences by the High Court, Sunyani on a charge of rioting with weapons contrary to section 199 of the Criminal Code, 1960 (Act 29). The facts are sufficiently stated in the judgment of Forster JA.

COUNSEL

Baffour Awuah for the appellants.

C K Owoo, Chief State Attorney, for the respondent-Republic.

JUDGMENT OF FORSTER JA

Forster JA. delivered the first judgment at the invitation of Brobbey JA. On 25 November 1996 the appellants were convicted at the High Court, Sunyani on a charge of rioting with weapons contrary to section 199 of the Criminal Code, 1960 (Act 29). They were each sentenced to twelve months’ imprisonment with hard labour. It is from that conviction that they have appealed to this court on no fewer than eight grounds.

[p.5] of [1997-98] 1 GLR 1

The charge in this case arose out of a chieftaincy dispute between the people of Banda Kabronu and Banda Ahenkro in the Brong Ahafo Region which at the time of the incident was pending on appeal at the Supreme Court. On 18 August 1994 the people of Kabronu were attacked by a number of people. Properties, including houses, were burnt or destroyed and one Okyeame Borami of Kabronu was killed. Two others from Ahenkro also died. All the deceased persons had been shot at Kabronu. The distance between the two towns was a kilometre. The appellants, who had been identified as having participated in the riot, were arrested and charged.

Mr Baffour Akoto, counsel for the appellants, argued several grounds of appeal in respect of all the appellants. The most central issue that ran through his submission was the contention that the prosecution witnesses had mistakenly identified the appellants and that the alibi evidence adduced by the appellants was strong enough to have justified their acquittal.

The evidence of the first prosecution witness was that around 4 am on 19 August 1994, having been aroused from bed by shouts that the town had been attacked, he went out and saw several houses set on fire. He was later shot in the right leg and as he lay on the ground where he had fallen, he saw the first appellant and others armed with guns. After the armed men had passed, he ran to the police station and made a report. He later received treatment at the Wenchi Hospital. Other witnesses who saw the first appellant were the third and the fifth prosecution witnesses. The fifth prosecution witness saw the first appellant and others at about 6.45 am and they were all holding guns. He said that one of the three, Moro, fired and shot him in the eye. Eventually, the fifth prosecution witness ended up in hospital and was on admission for about two months. The third prosecution witness met the appellant at 9 am and at this stage he had a book into which he appeared to be recording something.

The first appellant denied the charge and pleaded an alibi. According to him, he lived at Ahenkro where he was employed as a teacher. On that day the second defence witness brought his three year old child to his room and told him of the trouble in town. He immediately went to the school and brought some national service persons into his house for safety. At 8 am he went

[p.6] of [1997-98] 1 GLR 1 to the office of the Ghana Education Service and asked the Director of Education to contact the Wenchi Police on his Motorola to come to the town. Again, he asked that the matter be reported to the regional office. He denied that he was at Kabronu that day.

The second defence witness, Yaa Nsowaah was his alibi witness. This seventeen year old pupil of the Presbyterian Primary School, told the court that she sent the three year old child to the appellant about 6.30 am that day and that she knocked at his door three times before he came out. She said that the appellant and his wife lived in separate houses and at the time the wife had left the child and gone to fetch water. The judge was not impressed by the alibi evidence and particularly the fact that the second defence witness said that she could not swear to where the appellant had been before 6.30 am when she met him in the house. The judge, as he was entitled to do, preferred the evidence of the first, second and fifth prosecution witnesses. I think the trial judge was right.

The evidence depicts a rather frightening picture of a village set on fire and indiscriminate shooting into homes and at persons by the invading mob. I cannot believe that the appellant could have been so soundly asleep that it took the young lady, who had braved the prevailing dangerous situation to reach him, no less that three persistent knocks to arouse him from the alleged slumber. It was not unreasonable therefore to infer that the alleged sleep must rather have been simulated to conceal his complicity in the criminal acts and to avoid detection, and that he came out only after reassuring himself that the caller was the second defence witness. I cannot conceive that the appellant could have been so soundly asleep at 6.30 am as to be only aroused by the persistent knocking at his door, and especially in the riotous condition that had engulfed the town. I am equally surprised that none of the alleged national service persons nor the officer at the Ghana Education Service could be called to lend support to the evidence of the appellant. In any case, and as the trial judge rightly concluded, even if the appellant was in his room at 6.30 am, that could not rule out his presence earlier at Kobronu as was testified to by the three prosecution witnesses.

Counsel submitted further that the evidence of the fifth prosecution witness was in conflict with that of the third prosecution

[p.7] of [1997-98] 1 GLR 1 witness because while the former said he saw the appellant armed with a gun, the latter said the appellant was holding a book when he saw him. Counsel therefore submitted that in view of this conflict the trial judge should have rejected their evidence as unreliable. It is quite clear from the evidence that the riot which had commenced at about 4 am continued into late afternoon. The first prosecution witness and the fifth prosecution witness met the appellant at about 5 am armed with a gun. So that if the third prosecution witness saw him holding a book at 9 am, some four hours after the encounter with the first prosecution witness and the fifth prosecution witness, I do not think a conflict thus arose. From the evidence of these witnesses it is clear that they met the appellant at different times and in different circumstances at Kabronu. This could not admit of such contradictions or inconsistencies that could destroy their credibility. The submission of counsel that the appellant who was at one stage seen with a book and should have been acquitted, is most naive. Whether he merely stood aloof or was found in a superintending posture recording the details of the proceedings or otherwise, could not on the evidence exonerate him. He was proved to have been a participant and his subsequent posture did not disprove his involvement in the riot.

The second appellant was seen by the third and fourth prosecution witnesses at Kabronu on that day. At about 5 am the house of the third prosecution witness had been set on fire and shots had been fired into the house. Later an intruder had threatened to shoot them in the room from which they, however, managed to escape and fled to Ahenkro for safety. While they were being brought back to Kabronu at about 9 am, they met the second appellant armed with a gun. There were others who also had guns and were burning houses. The fourth prosecution witness had seen his father gunned down and their house set ablaze. He saw the appellant and others armed with guns and a gallon of petrol. The appellant’s alibi witness was the sixth defence witness, the Omanhene and one of the two parties then contesting the candidature of the traditional stool. The second appellant was the Omanhene’s linguist at the time of the incident. The second defence witness said he saw the second appellant at about 8 am at Ahenkro. He had come to inform the chief, the sixth defence witness, about the death of a subject who had been shot in the riot.

[p.8] of [1997-98] 1 GLR 1

He agreed that he would not know where the appellant had been before coming to him at 8 am.

The trial judge obviously did not believe him. Recognising that the witness was an interested party in the dispute that generated the riot; that some citizens of both towns lost their lives and that the second appellant was a subject and linguist of the witness, it would not be surprising that the witness could concoct or doctor his evidence to protect the appellant. In any case, the whereabouts of the appellant before 8 am was not known by the witness. Between 4 am and 8 am, he could have been at Kabronu, a trifle distance of a kilometre, where he was seen by the third prosecution witness and the fourth prosecution witness. The finding of the trial judge showed that the alibi witness was not believed.

The third appellant was seen by the third, seventh and ninth prosecution witnesses at Kabronu during the riot. He was seen in the company of nine others by the third prosecution witness. They had kerosene and matches and were burning houses, while others were shooting. The seventh prosecution witness saw the appellant and others breaking down the doors of the Presbyterian Church at about 5 am. The witness whose room had been set on fire and who had thereby been forced out of his room, was shot in the leg. It was as he ran to the safety of the police station that he saw the appellant and others. The appellant’s case was that he was all the time at Ahenkro and never went to Kabronu. He denied having been seen by the seventh prosecution witness damaging the doors of the church. His alibi witness was the first defence witness. She said she saw the appellant at the Ahenkro mosque and told him that she had heard that her son had been shot. The first defence witness was not cross-examined. Counsel therefore submitted that the trial judge should have accepted and relied on her testimony.

The trial judge obviously did not believe her. Though the principle is that the unchallenged testimony of a witness must be deemed to have been accepted by the adverse party, there is also the rule that uncontradicted evidence is not necessarily conclusive of the fact. If there is no evidence from the opponent party on the issue then the rule as to conclusiveness applies. Where, however, as was in the instant case, there was evidence from prosecution witnesses challenging or contradicting the evidence of the witness,

[p.9] of [1997-98] 1 GLR 1 then a court in evaluating the evidence as a whole is perfectly entitled to reject the testimony of the witness who was not cross-examined, if it is of the view that the unchallenged evidence is inherently weak and improbable. As was held by the Court of Appeal in Mante v Botwe [1989-90] 1 GLR 479, CA holding (2):

“(2) A strict application of the rule of evidence that failure to challenge in cross-examination evidence of material fact on oath would amount to its admission, might work injustice if accepted without caution or safeguards such as that the evidence so given must have been within the personal knowledge of the party against whom it was offered or that the personal make-up of the person expected to deny the allegation, eg being illiterate … might disable him from appreciating the act of cross-examination.

However, if a person’s total response in the witness-box added up to a clear-cut denial of what his opponent had alleged either against him or to bolster up his case, the rule of implied admission for failure to deny by cross-examination would not be applicable.”

(The emphasis is mine.) In the instant case, there was evidence from the prosecution witnesses, who knew the third appellant well, that he was the person they saw committing the criminal acts charged against him. I think in these circumstances the trial judge was entitled to disbelieve the alibi evidence and prefer the evidence of the prosecution witnesses.

The fourth appellant is Kwaku Manu alias Abadze. According to the second prosecution witness at about 1.00 am on the day of the incident he saw that a house next to his had been set on fire and went out to help put out the fire. At the scene he was shot in the hand and he fell down. It was from that position that he saw the fourth appellant who was loading a gun with fresh cartridges. The witness then ran away from the spot but was shot again in the left arm and thigh by the sixth appellant, Kwabena Ofori. In cross-examination, he was merely questioned as to the relative distances between where he was shot and the burning house. The evidence was not in any way challenged by the cross-examiner. In his evidence, the fourth appellant denied having been at Kabronu

[p.10] of [1997-98] 1 GLR 1 or the scene that day. He called the fourth defence witness who testified that she saw the appellant at about 6.00 am that day at Banda Ahenkro. She said the appellant was in a woman’s cover cloth and that he told her that his wife was in labour. She agreed in cross-examination that she would not know where the appellant had been before she saw him at 6.00 am. I think that the trial judge was right in rejecting the alibi evidence. In any case, it was quite obvious that the fact that he was seen at Ahenkro at 6.00 am could not destroy the prosecution’s evidence that he was seen again at Kabronu and at the scene of the crime at about 1.00 am that day. He could very well have traversed the one kilometre between the two towns in five hours, ie between 1.00 am and 6.00 am. It is equally significant that until the fourth prosecution witness came to give evidence, the appellant never mentioned any conversation between him and the first prosecution witness, either in his statement to the police on 10 October 1984 or in his evidence on 2 July 1996.

The sixth appellant, Ofori, denied any involvement in the riot. He told the court that on the day of the incident he was at Banda Ahenkro and never went to Kabronu. He said that he heard one Afua Isah (Afua Krab) crying that her son Bediako had been killed at Kabronu. The woman who testified as the first defence witness never mentioned the appellant as one of the persons she saw at Banda when news reached her of the death of the son. I do not think that the trial court erred in rejecting the appellant’s defence of alibi.

The evidence against Kumah, the fifth appellant, came from the third prosecution witness. The witness said that at about 5.00 am some men fired shots into their room and that one of the men called Eric, entered the room and threatened to shoot one of the women. She said that she saw the fifth appellant with several others shooting and burning houses at Kabronu that day, and specifically, that the appellant had a gun while the others had kerosene and were burning houses. The appellant denied having been at Kabronu at all. He said that he was at the relevant time in his cottage with his labourer, Dagarti, and that it was upon his return to Ahenkro that he heard of the death of Bediako. He never [p.11] of [1997-98] 1 GLR 1 mentioned any alibi witness. On 16 July 1996, one Kwame Legya was called by the appellant to give evidence as the third defence witness. The witness said he saw the appellant on 18 July 1994 when he brought his farm labourer to the cottage. He, however, would not say that the appellant could not have returned to Kabronu on the day of the incident. The trial judge accepted the evidence of the third prosecution witness and obviously rejected that of the third defence witness. Because for an alibi evidence to be of any weight, it should cover and account for the whole of the time of the riot or so much of it as to render it impossible that the accused could have committed the act charged against him during the period. The third defence witness having concluded that he could not rule out the fact that the appellant could have also been at Kabronu that day, his evidence failed to establish or prove the alibi defence of the appellant.

Additionally, and common to all the alibi defences, was the debilitating circumstance of delay in notifying the court and the prosecution of the respective alibi defences. By its very nature a defence of alibi is especially easy of fabrication. It is in the light of this potentially adverse counterweight that in terms of section 131 of the Criminal Procedure Code, 1960 (Act 30), an accused person in a summary trial, as was the case here, is required to give notice of such defence before the examination of the first prosecution witness. Much as a failure or omission to comply with that requirement may not necessarily exclude such evidence, the court is perfectly justified in taking it into account when considering the credibility of the alibi evidence. The credibility of an alibi is greatly enhanced or strengthened if it is set up at the moment the accusation is first made and if it is consistently maintained throughout the subsequent proceedings. But if it is not resorted to at the very first opportunity and it is raised rather belatedly during the trial, then this is a potential circumstance to lessen the weight and force of the defence.

In the instant case, none of the appellants served any notice before the first prosecution witness gave evidence as required by section 131 of Act 30. The prosecution’s case started on 13 May 1996 and concluded on 18 June 1996 with the examination of the tenth witness. It was on 27 July 1996, some two months after the trial had commenced, that counsel for the appellants filed the

[p.12] of [1997-98] 1 GLR 1 required notices of alibi. It is equally relevant to observe that none of the appellants indicated in their statements to the police the possibility of relying on the defence of alibi. It is also significant that even in the notice belatedly filed, there were no sufficient particulars which could have assisted the police, had they intended to check on the genuineness of the defence of alibi. I think that the delay in serving the required notice and the inadequate particulars belatedly given, are circumstances which were capable of denying the alibi evidence of any reliability or cogency. It seems to me that the trial judge rightly accepted the evidence of the prosecution witnesses as to the identities of the appellants and rejected the inherently unreliable evidence adduced by the appellants in support of their defence of alibi.

The failure of the defence of alibi did not, of course, relieve the prosecution of its duty to prove the guilt of the appellants. But I must observe that if a defence of alibi fails for lack of credible and sufficient evidence, short of leading to a conviction, it saps the alibi evidence of any weight or reliability. It is a factor that must necessarily be considered by the trial judge in determining the merit of the defence of the accused person.

In this case, the proof of the prosecution’s case was not dependent solely on the failure of the defence of alibi. There was evidence of a concerted violent attack on the people of Kabronu by the appellants and others who were natives of the contiguous town of Banda Ahenkro, a mere kilometre separating them. The rioters set houses ablaze; some were armed with firearms which they viciously fired in Kabronu town, and at times into the homes of the people. Some residents of Kabronu, including some of the prosecution witnesses, sustained gunshot wounds. Properties were destroyed. And places of worship were not spared either. The fact that some only of the appellants were in possession of fire-arms or any incendiary devices are irrelevant. In a riot where violence is used and the participants are aware of their ultimate common criminal objective as demonstrated by the callous and criminal violence actually caused by them, it is no defence that a particular collaborator had not or did not use a firearm or an incendiary device, which on the evidence was employed in committing the offence. The common intent was manifest. They intended to visit mayhem on their opponents in the chieftaincy dispute. There

[p.13] of [1997-98] 1 GLR 1 were relentless acts of savagery. I am satisfied that on the evidence before the court the conviction of the appellants ought not to be disturbed.

As to the sentence, I must confess my discomfiture. The sentence of twelve months’ imprisonment with hard labour, in a case where the maximum sentence is ten years, was woefully inadequate. Having regard to the acts of savagery that were caused by the appellants in the riot and particularly with the resultant deaths of some of the people shot, and the notorious prevalence of violent confrontation in chieftaincy disputes, I think that the sentence in this case should have been severe or exemplary. For a sentence such as was imposed in this case would in the eyes of law-abiding members of society amount to a tacit encouragement of crimes of this nature. But the respondent is content and has not shown the least disapprobation, and I thus fret in utter futility. I am compelled therefore to allow the sentence to stand.

In the result the appeal is dismissed and the conviction and sentence are accordingly affirmed.

JUDGMENT OF AFREH JA.

I also agree that the appeals of the appellants should be dismissed. In this case, as the trial judge found, the incident took place at dawn to the early hours of the day when daylight had broken out and the witnesses had the opportunity of seeing those who attacked them that morning.

This fact distinguishes this case from Bediako v The State [1963] 1 GLR 48, SC where all the incident took place in a village around 3.00 am when there was no light as the Court of Appeal found. The prosecution witnesses and the appellants lived in villages only one kilometre apart. The prosecution witnesses knew the accused well—and the accused also appeared to know the witnesses—so the judge was entitled to say, if there was evidence to support it, that there is no question of mistaken identity. And there was evidence upon which he could base his statement.

I do not think we would disturb the findings made by the trial judge. It is a long established practice of this court (and other appellate courts) that if there was evidence before the trial judge which he accepted to found a conviction, an appellate court would not interfere with that conviction: see for instance Atiemo v

[p.14] of [1997-98] 1 GLR 1 Commissioner of Police [1963] 1 GLR 117, SC; and Kono v The State [1965] GLR 112, SC. There is no reason why we should deviate from this rule in this case.

JUDGMENT OF BROBBEY JA.

I agree that the appeal fails and should be dismissed for the reasons given by my brother Forster JA. What I find disquieting were the sentences imposed. This was a case in which one person died, several people were injured, houses were burnt and substantial properties destroyed. The sentence of twelve months, to say the least is on the low side.

I would, however, allow sleeping dogs to lie because of the fact that five of the appellants are not in court, and it appears the prosecution would be in more trouble if the sentences are overturned. DECISION Appeal dismissed.

LSNA