S v Nyarko and Another (CR/0380/2016) [2025] GHAHC 143 (3 June 2025)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON THURSDAY THE 3RD DAY OF JUNE, 2025 BEFORE HER LADYSHIP JUSTICE MARY M.E YANZUH, JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SITTING AT CRIMINAL COURT THREE (3) SUIT NO: CR/0380/2016 THE REPUBLIC VRS 1. KOJO NYARKO 2. EBENZER BENYIN RULING The accused person and one another were committed to stand trial before this court. The accused person herein as A1 was charged with the offence of abetment of crime namely murder contrary to Section 20(1) of the Criminal Offences Act 1960, (Act 29) while the A2 Ebenezer Benyin was charged with the offence of murder contrary to Section 46 of the Criminal Offences Act, 1960, Act 29. The A2 in the course of the trial negotiated with the prosecution and pleaded guilty to manslaughter and since he was a juvenile, he was sentenced to three (3) years IHL. 1 This court commenced the trial against the A1 by empaneling the jury and at the close of the case of the prosecution on the 23rd of May 2025, counsel of the accused person submitted to the court that the prosecution has failed to prove a prima facie case against the accused person of which the accused could be lawfully convicted on the indictment on which the accused is being tried. FACTS OF THE CASE The brief facts as given by the prosecution in the opening address was that the deceased, Philip Kwame Oduro Acquaye was a National Security Operative attached to the Tema Port. The first accused person Kojo Nyarko alias Joe was the cousin of the deceased and was an unemployed person who lived at Mankessim. The 2nd accused, Ebenzer Benyin alias Abeiku, now a convict, was a friend of the 1st accused. Three months before the incident that led to the death of the deceased, the 1st accused went to the deceased at his workplace in Tema to ask for his help in getting employment. The deceased told him that he could not help him get a white-collar job because he was not educated. He suggested instead that he had a farm at Agona Amanfrom No. 2 near Mankrong in the Central Region and so if he did not mind he could work on the farm for him. The 1st accused accepted the offer and moved to stay in the farmhouse with his wife and the 2nd accused whom he invited without the knowledge of the deceased. When the deceased became aware that the 2nd accused was also on the farm he asked them to leave but they refused. Eventually the matter was resolved by Madam Elizabeth Owusu, the deceased’s landlady with whom he stayed whenever he went to the village. 2 On 21st June 2014, the deceased visited the farm and stayed in the house of Madam Elizabeth Owusu at Amanfrom. On 22nd June 2014, after the deceased had trained with a local football team, he decided to study at the farm. While at the farm, the deceased asked the 1st accused if they were ready to leave the farm. The 1st accused asked for their three month’s salary of GHC450 each for the work they had done on the farm before they would leave. This resulted in a misunderstanding which led to a fight between the deceased and the 1st accused. In the course of the fight, the 2nd accused hit the neck of the deceased from behind with a fufu pestle and he fell down and became unconscious. The accused persons abandoned him and ran away. They returned later and when they found the deceased unresponsive, they dug a shallow grave at the back of the farmhouse and buried the deceased in it. Then, in order to hide what they had done, the 1st accused went to the landlady of the deceased, Madam Elizabeth and enquired about the whereabouts of the deceased. Calls were made to both of the deceased’s two phones but the accused persons had switched of both phones and so they were unable to speak to the deceased. On the morning of the 23rd of June 2014, the 1st accused got money from Madam Elizabeth to travel to the deceased’s workplace in Accra to confirm that he had returned home and that he was safe and sound. Instead, the accused person travelled to Agona Swedru to see his wife off and returned to Amanfrom to inform Madam Elizabeth that he could not find the deceased. The 2nd accused pretending to be the deceased had, however, sent a message to Madam Elizabeth’s family from one of the deceased’s phones saying that he was sorry he left the village so abruptly and that he was busy with his exams and would get in touch when he had finished writing them. That same night, the accused persons packed their belongings and left the farm. 3 Meanwhile, in Accra friends of the deceased became alarmed due to his absence at work and school so they alerted the Police in Accra and in collaboration with the family of the deceased, they travelled to Amanfrom where they searched the farmhouse and found the body of the deceased buried in a shallow grave. The pestle used in injuring the deceased was also retrieved from one of the rooms on the farm. The body was exhumed and deposited at the Korle-Bu Hospital mortuary where a postmortem examination was conducted on the body of the deceased. The Pathologist gave the cause of death as (i) fracture of the larynx (ii) consistent with trauma to the anterior neck. A search was mounted by the police for the accused persons and on 30th June 2014, they were arrested at Bokazo near Nkroful in the Western Region were they were hiding. It is on the basis of these facts that the accused persons were arraigned before court. BURDEN OF PROOF It is trite learning that, in a criminal trial, the prosecution has a burden to prove the guilt of the accused person beyond reasonable doubt and whether that burden has been established is made by the court after the entire case. However, after the close of the prosecution case, the law is clear that the prosecution is to establish a case worthy of submission to the jury. It is thus provided by section 271 of the Criminal and other offences Procedure Act, 1960 (Act 30) that: 4 “The Justice may consider at the conclusion of the case for the prosecution whether there is a case for submission to the jury, and if of the opinion that a case has not been made that the accused has committed an offence of which the accused could be lawfully convicted on the indictment on which the accused is being tried, the Justice shall direct the jury to enter a verdict of not guilty and shall acquit the accused.” The requirement that a case be made against the accused is also referred to as establishing a prima facie case. This implies that, the prosecution by the close of its case should have been able to introduce credible and sufficient evidence on all the essential elements of the offence charged so as to rebut the presumption of innocence of the accused granted to him by Article 19 (2) (c) Constitution 1992. This is in line with section 19 of Evidence Act, 1975, Act 323 which provides that “an enactment providing that a fact or group of facts is prima facie evidence of another fact creates a rebuttable presumption”. Thus, it is only when by the evidence introduced at the end of the case of the prosecution, it can be said that, an offence is made out against the accused person that the accused person can be called upon to open his defence. The Supreme Court per KPEGAH, J.S.C. in OSEI KWADWO II V THE REPUBLIC (2007-2008) 2 SCGLR 1148 thus stated as follows, “I am firmly of the view that the appellant ought not to have been called upon to enter his defence since he has no obligation to prove his innocence because the burden of proof is on the prosecution throughout a criminal trial. This time-honoured principle or rule of evidence has now been restated in section 15(1) of the Evidence Decree (1975) NRCD 323 as follows:- “Unless and until it is shifted the party claiming that a person is guilty of a crime or wrong doing has the burden of persuasion on that issue”. The implication of this provision is 5 that, if an accused is either wrongly called upon by the court or decided himself to enter a defence, the subsequent evidence cannot be used against him when, in law no prima facie case has actually been made against him. This should be so because unless and until a prima facie case has first been made out against an accused the burden of persuasion on his guilt could not be said to have shifted.” See also Zortovie vrs The Republic [1984/86] 2 GLR 1 and Tsinowope vrs The Republic [1989/90] 1 GLR 114. What is required at this stage however is not for the prosecution to have established the elements of the offence and by extension, the guilt of the accused beyond reasonable doubt. That is only required at the end of the entire trial after the accused had been given the opportunity to put up his defence of raising a doubt in the case of the prosecution. For it would be preposterous to require the prosecution to establish the guilt of the accused at the close of its case beyond reasonable doubt and then call upon the accused person to open his defence and raise a reasonable doubt in respect of something that is already established beyond a reasonable doubt. Prima facie standard is thus lesser and lighter than proof beyond reasonable doubt and only creates a rebuttable presumption against the accused which presumption he can rebut by introducing evidence that raises a reasonable doubt in the essential elements of the offence charged. This is the effect of section 22 of the Evidence Act, 1975 (Act 323) which provides that “in a criminal action a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond a reasonable doubt, and thereupon, in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to the existence of the presumed fact.” 6 It was accordingly held in the case of Gligah & Anr. v The Republic [2010] SCGLR 870 holding 1 by the Supreme Court per his Lordship Justice Dotse that whenever an accused person is arraigned before any court in any criminal trial it is the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond any reasonable doubt. The burden of proof is therefore on the Prosecution, and it is only after a prima facie case has been established by the Prosecution that the accused person is called upon to give his side of the story. The issue as to whether the prosecution has proved a prima facie case against the accused person is a determination to be made by the court and not the jury as per section 271 of Act 29/60 afore quoted. The trial judge is to do that on the basis of the evidence led at the close of the prosecution’s case and if after assessing the evidence is of the opinion that a case has not been made that the accused has committed an offence of which the accused could be lawfully convicted on the indictment on which the accused is being tried, he shall then direct the jury to enter a verdict of not guilty and shall acquit the accused. See Tsatsu Tsikata vrs The Republic [2003/04] 2 SCGLR 1068. As regards how the Court examines the evidence at that stage and come to the decision, the authorities are legion. In the case of GYABAAH v. THE REPUBLIC [1984-86] 2 GLR 46 it was held that “Under section 271 of the Criminal Procedure Code, 1960 (Act 30), the judge should not leave a case to the jury if he was of opinion that (a) there had been no evidence to prove an essential element in the crime; 7 (b) the evidence adduced by the prosecution had been so discredited as a result of cross- examination; or (c) the evidence was so manifestly unreliable that no reasonable tribunal could safely convict upon it”. see also STATE VRS ANNAN [1965] GLR 600 AND APALOO VRS THE REPUBLIC [1975] 1 GLR 156, CA. Any of these grounds if established leads to the acquittal of the person charged. The Supreme Court in the case of Michael Asamoah & Anor v the Republic (2017) SCGLR at page 4 per Adinyira (Mrs) JSC outlined these grounds as: a). There had been no evidence to prove an essential element in the crime. b). The evidence adduced by the prosecution had been so discredited as a result of cross- examination. c). The evidence was so manifestly unreliable that no tribunal of fact could reasonably convict upon it. d). The evidence was evenly balanced in the sense that it was susceptible to two (2) likely explanations, one consistent with guilt and one with innocence. The Court’s duty is not to find that all of these grounds exist before holding that, there is no prima facie case. On the contrary, even if one of these or like grounds is established, the Court is to come to the conclusion that there is no case to answer. It is against this background and standard that I proceed to examine the evidence led by the prosecution in respect of the charge against the accused person to ascertain whether a case has been made that the accused has committed an offence of which the accused could be lawfully convicted on the indictment on which the accused is being tried. 8 ABETMENT OF MURDER The particulars of the Charge of abetment against the accused person, Kojo Nyarko is “Kojo Nyarko, unemployed, on or about 22nd June, 2014 at Agono Amanfrom No.2 near Mankrong in the Central Region aided Ebenezer Benyin to intentionally cause the death of Philip Kwame Oduro Aquaye by unlawful harm.” Section 20(1) of Act 29 provides the law on abetment of crime. It states that: “(1) A person who, directly or indirectly, instigates, commands, counsels, procures, solicits, or in any other manner purposely aids, facilities, encourages, or promotes, whether by a personal act or presence or otherwise, and a person who does an act for the purposes of aiding, facilitating, encouraging, or promoting the commission of a criminal offence by any other person, whether known or unknown, certain, or uncertain, commits the criminal offence of abetting that criminal offence, and of abetting the other person in respect of that criminal offence.” Section 46 of the Criminal Offenses Act 1960 Act 29 provides that: “A person who commits murder is liable to suffer death.” Murder is defined in Section 47 of Act 30 as “A person who intentionally causes the death of another person by an unlawful harm commits murder, unless the murder is reduced to 9 manslaughter by reason of an extreme provocation, or any other matter of partial excuse, as is mentioned in section 52.” In this trial therefore, the prosecution bears the burden of proving that That the victim is dead That the victim died out of harm that the harm was intentionally and unlawfully caused that the accused person aided the commission of the death of the victim In the case of Commissioner of Police vs. Sarpey and Anor (1961) GLR 756 at 758 it was held that: “In order to convict a person for aiding and abetting, it is incumbent on the prosecution to prove that the accused did any one of the acts mentioned in subsection (1) of section 20. Under subsection (2) a person who abets a crime shall be guilty of the crime if the crime is actually committed (a) in pursuance of abetment, that is to say, before the commission and in the presence or absence of the abettor and (b) during the continuance of the abetment, that is to say, the abetment must be contemporaneous in place, time and circumstance with the commission of the offence. In our view, an act constituting an abetment in law must precede or it must be done at the very time when the offence is committed.” It was also held in the case of Effah and Another vs. the Republic (1999-2000) 2 GLR 722 @ 731 that 10 “The act of the abettor must precede, or be contemporaneous with, the crime abetted and the abettor must know some essential facts constituting the crime…” The court must therefore find some evidence on record that shows that the A1 did something either before or at the very time of the commission of the offence of the murder of the victim. The prosecution has charged the A2 with murder and has alleged that the A2 intentionally caused the death of the deceased Philip Kwame Oduro by unlawful harm. Having charged the A2 with the commission of the offence, then the evidence on record by the prosecution should demonstrate that the A1 did something either before or at the very time of the commission of the offence. In this trial, certain matters were not disputed. For instance, the fact that the deceased is dead, that he died out of harm, that the harm was unlawful, that the harm was intentionally caused were matters which were not disputed. The contention of counsel for the A1 is that the A1 did not abet the A2 in committing the offence. The prosecution however did not rest on their oars but proceeded to call witnesses in support of these matters. PW2 Dr. Robert Kumoji a pathologist testified that he conducted postmortem examination on the body of the deceased and gave the cause of death as fracture of the larynx and blunt trauma to the anterior neck. He stated the cause of death as unnatural and added in his evidence in chief that there was fracture of the right thyroid cartilage. He concluded that the manner of death was unnatural meaning that the deceased did not die a natural death. 11 PW3 ASP Samuel Agyarkwa the investigator testified and relied on his witness statement filed for him. As part of his evidence, he tendered the caution and charge statements of the A1 and A2 (convicted). It is evident from his evidence that the only narration of how the incident occurred was from particularly the caution and charge statements of the A1 and A2. The said evidence was that on the day of the incident, the A1 and the deceased entered into an argument whereby the deceased rushed to hold the shirt of the A1 by his chest and during the struggle the, A2 picked a stick and hit the deceased and the deceased fell. This story runs through the caution and charge statements of the A1 and A2 that is exhibits B, C, D and E. In the witness statement of the PW3 ASP Samuel Agyarkwa, aside the narration of the events on the day of the incident as detailed in the statements of the accused persons, his evidence focused on how the accused persons were arrested and matters that occurred thereafter. With regards to the events leading to the death of the deceased, he stated at paragraph 12 of his witness statement that “the accused persons admitted that there was a fight between them and the deceased and in the course of the fight, the 2nd accused used a fufu pestle to hit the deceased on the back of his neck. The deceased fell unconscious and later died.” He therefore admitted the pestle as exhibit G and a picture of same as exhibit G1. It seems to me that the investigation team relied solely on the story of the two accused persons who from the facts and evidence presented, were the only persons present with the deceased on the farm on the day of the incident. That being the case then, the said narration in the statements of the two accused persons which the prosecution has presented as the events leading to the death of the deceased, must contain some evidence of acts of the A1 herein that would lead the court to conclude on the fact that 12 the A1 abetted the A2 to cause the death of the deceased. The court will therefore peruse the evidence to determine the case of the prosecution. Firstly, in the caution statement of the A1 dated the 30th June 2014, in recounting the events of the day, he stated that “Sunday 22/6/14 in the morning we met him again at the village playing soccer. After that he washed down and took his bag that he was going to learn at the farm. Abeiku took the bag from him and we all walked to the farm. But before then, he had written the food items we would need and promised to give money to his woman to buy for us. When we reached the farm my wife had gone to the village. Philip asked me whether we have prepared to leave the village and I told him to pay us our due which stood at GHC450 before we left. (sic) this generated into a hot argument, and he rushed to hold my shirt on my chest. During the struggle, Abeiku picked a stick and hit him and he fell down Abeiku after hitting him run away and I also run from the farm. We all met somewhere on the road and whilst I was rebuking him some people were coming towards us so we returned to the farm, took him and wrapped him in a cloth. We took the body to a nearby bush and buried it” In the caution statement of the A2 Ebenezer Benyin dated the 30th of June 2014 exhibit D, the A2 told the police among others that on the day of the incident, “After the match the deceased remained at Madam Elizabeth house where he took his bath and told me to carry his bag to the farm land that he was coming to study at the farmland. He came to the farmland and I saw him talking to Kojo Nyarko close to the where the pigs are kept and I was also about to pound fufu and I was holding the pistol bar for the fufu.(sic) I saw that Kojo Nyarko and the deceased Philip Oduro Acquaye were discussing about our payment. For the past 3 months we had not received any payment from the deceased. I heard Kojo Nyarko and the deceased started quarrelling. I heard the deceased telling Kojo Nyarko that he asked me to leave the farm but why that I was still in the farm. Kojo Nyarko told him to settle us so that both of us will leave the 13 farm. Kojo Nyarko told him to pay us the 3 months outstanding amounting to GHC450. I saw them holding each other and about to start a fight. The deceased held Kojo Nyarko by the shirt. I saw that Kojo Nyarko and the deceased were pushing one another. I stood up from where I was pounding the fufu and hit the deceased with the stick I was holding. I saw him on the ground so i run to the houses close to where Madam Elizabeth was leaving.(sic) Later I decided to come back to the farmland to see what was happening. I saw Kojo Nyarko also approaching he confronted me and said there is a case so we should do something to the body. He told me we should do something to the body. He told me we should bury him in the house” The A1 and A2 relied on these statements in their charged statements dated the 29th of April 2015 and 27th of April 2019 and as such gave no new information to the police. If the above narration of the events by the accused persons and which the prosecution has accepted and run with it as their evidence is what occurred on the day of the incident, then it is difficult for this court to find a scintilla of evidence to suggest, that before the A2 allegedly hit the back of the deceased’s neck with the fufu pestle or while A2 was in the process of doing same A1 did anything contemporaneous in place, time and circumstance with the commission of the offence. There is also no evidence in the view of the court preceding or done at the very time when the offence is committed. What I find on record as proved by the prosecution is that while the deceased and A1 held each other about to fight and were pushing each other and the deceased held the A1’s shirt, A2 hit the back of the deceased’s head with the pestle and the deceased fell down. This act of the A1 is not enough to conclude that he aided the A2 to commit the offence murder. That is so because in the caution statement of the A1 which is part of the case of the prosecution, he said that he rebuked the A2 for hitting the back of the neck of the deceased. The story as narrated by both A1 and A2 which the prosecution accepted shows the A2 acting on his own while the A1 and the deceased bantered over 14 the payment of the money. The evidence provided by the prosecution does not also prove an intent on the part of the A1 to abet the A2 in the commission of the offence. In our criminal jurisprudence, proof of intention to commit an offence known as mens rea and the actual act of commission, the actus reus are both required before an allegation of crime is successfully proved by the prosecution unless a law provides otherwise. For a person to be found guilty of a crime, their actions must coincide with a criminal intent, or mens rea. This is reflected in the latin maxim actus non facit reum nisi mens sit rea which literally translates as “an act does not render a man guilty of a crime unless his mind is equally guilty”. SEE TAMAKLOE VRS REPUBLIC (2011) 1 SCGLR 29), BONSU @ BENJILO VRS THE REPUBLIC [2000] SCGLR 112. In National Coal Board vs. Gamble (1959) 1 QB 11 the court held that: “The offence of abetment requires proof of mens rea of the accused person. The position of the law has been that the offence of abetment of crime requires proof of mens rea. It means intention to aid as well as knowledge of the circumstances and the proof of the intent of the accused involves proof of a positive act of assistance voluntarily done.” Aside the evidence being insufficient to prove the offence of abetment of murder, the case of the prosecution is also wrought with inconsistencies. At the opening address of the jury, the learned State Attorney informed the court and the jury that the A2 hit the back of the head of the deceased with the pestle causing his death. The PW3, police investigator also gave the same narration. The PW2 pathologist however gave a cause of death completely at variance with the narration given. In fact, nowhere in the autopsy report exhibit A and his evidence does he state that, there was any injury to the 15 back of the neck of the deceased. The cause of death was in his opinion fracture of the larynx. He testified further that there was a fracture of the thyroid cartilage and that the voice box was broken. In fact when asked during cross examination that: “Q: According to your opinion as stated in exhibit A, the deceased was hit by a blunt object? A: Not exactly. He suffered blunt trauma to the anterior neck. Blunt trauma refers to non- penetrating injury in other words injuries that do not break through the skin though they damage organs beneath the skin. He added that there were marks of violence on the ulnar aspect of the right forearm and the left wrist. I believe that if indeed the story of the prosecution that the A2 hit the deceased at the back of his neck with a pestle is anything to go by, then there should have been some form of evidence in the nature of bruises at the back of the neck of the deceased considering the fact that according to the prosecution the blow was intense causing the deceased to fall down to his death. This court therefore finds it very surprising that the investigator chose to accept the version of the accused persons as to what actually occurred on the day of the incident and did not conduct any independent investigations as to what actually occurred in the farm on the day of the incident. I must say that even though the autopsy report indicates the cause of death was from fracture of the larynx and blunt trauma to the anterior neck contrary to the story of the prosecution, I am unable to find that the A1 abetted A1 to cause that harm to the deceased resulting in his death. 16 On the basis of the above, I hold that in terms of Section 271 of Act 30, a case has not been made that the A1 has committed an offence of which the accused could be lawfully convicted on the indictment on which the accused person is being tried. I therefore direct the jury to enter a verdict of not guilty for the accused to stand acquitted. JURORS RETURN TO THE COURTROOM. B/C TO JURY: This court has found that the prosecution has not been able to prove a prima facie case against the accused person. I now direct you to return a verdict of not guilty for the accused to stand acquitted. FOREMAN: The members of the jury hereby return a verdict of not guilty for the accused person. B/C: The court having found that the prosecution has not been able to prove a prima facie against the accused person requiring him to open his defence and the jury upon the orders of the court having returned a verdict of not guilty, the first accused person is hereby acquitted and discharged. The jury is hereby discharged. PARTIES: A1 PRESENT COUNSEL: AUGUSTINES OBUOR WITH CLAUDIA COLEMAN FOR THE A1 PRESENT 17 AMELEY AGYEMAN FOR THE REPUBLIC PRESENT MARY M.E YANZUH J. HIGH COURT JUDGE 18