Ahumata v The Republic (BON/SYN/HC2/F15/013/25) [2025] GHAHC 189 (13 March 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, SITTING AT SUNYANI, COURT ‘2’ ON THURSDAY THE 13TH DAY OF MARCH 2025 BEFORE HER LADYSHIP JUSTICE WINNIE AMOATEY-OWUSU, JUSTICE OF THE HIGH COURT CASE NO: BON/SYN/HC2/F15/013/25 NOAH AHUMATA APPELLANT VRS. THE REPUBLIC RESPONDENT JUDGMENT This appeal hinges on the decision of the Circuit Court, Techiman. The Appellant was arraigned before the trial court on 18th November 2024 on four counts of various offences under the Human Trafficking Act, 2005 (Act 694) and the Children’s Act, 1998 (Act 560). He pleaded guilty to count one, two, and three, but not guilty to count 4. He was convicted on count one to five years’ imprisonment IHL; count two, to two years’ imprisonment IHL and count three, to two years’ imprisonment IHL. The sentences were to run concurrently. Following the Appellant’s conviction and sentencing on the three counts, the prosecution withdrew count four and the same was struck out as withdrawn. Page 1 of 15 Being aggrieved by the conviction and sentence, the Appellant filed the instant Amended Notice of Appeal on 12th December 2024 pursuant to leave granted the same day by this Court. The grounds of appeal are that: i. The Court erred when it failed to get an Ayegbe interpreter when the accused was asked the language he speaks and he said Ayegbe as the ewe interpreter who did the interpretation could not explain the charges to the understanding of the accused in his Ayegbe language and this has occasioned a miscarriage of justice. ii. The Court erred for not entering a plea of not guilty for the accused when the Court asked the accused why he pleaded guilty to count 1 and in answering said he has explanation for all counts and this has occasioned a miscarriage of justice. A summary of the prosecution’s facts as contained in the Amended Notice of Appeal is that the Appellant, aged 37, is a fisherman and resident at Nakpei Beposo, a fishing community near Prang in the Pru West District. He owns a boat, fishing nets and outboard engine. The victim, Sylas Mawunedi Ahumata, is aged 10. Due to financial hardship, in or around 2023, the Appellant went for the victim from the victim’s maternal grandmother, Veronica Ahumata at Yeji who is also the Appellant’s mother, with the false representation of enrolling him in school and taking care of him. The Appellant transported the victim to Nakpei Beposo and instead of enrolling the victim in school and taking good care of him as he promised, took advantage of the victim’s vulnerability and coerced him to Page 2 of 15 engage in fishing on the Pru River for the Appellant’s benefit. The Appellant forced the victim to go on fishing expeditions on the river between 0600 hours and 1400 hours on weekdays, and in most cases, throughout the night. Although the victim was generating lots of income for the Appellant, the Appellant cruelly treated him and barely fed him two meals daily, thereby affecting the victim’s health, development and most importantly, his education. The exploitation continued until 28th June 2024 when the Yeji Police had information about the victim’s ordeal and in an intelligence-led operation with some staff of the International Justice Mission (hereinafter “IJM”), a Non-Governmental Organization (NGO) operating in Ghana and the Social Welfare Officer of the Pru East District, later arrested the Appellant after he had run and dived into the river in an attempt to escape. The Police also rescued the victim and in collaboration with IJM and the Department of Social Welfare accommodated the victim in a secure shelter and currently, in school under the auspices of IJM and the Department of Social Welfare. After investigations, the Appellant was charged with the offences and arraigned before the trial court. It is provided in Article 19(2) (c) of the 1992 Constitution that an accused is presumed innocent until he is proved guilty or he pleads guilty. Where an accused pleads not guilty to the charge, the burden rests with the prosecution to prove the charge against the accused beyond reasonable doubt. Page 3 of 15 The law is settled that an appeal is by way of rehearing. As such, my duty in this appeal is to evaluate the entire evidence on record to determine if the accused’s conviction and sentence are supported by the facts and law. In Amankwah v. The Republic (J3/04/2019) (2021) GHASC 27 dated 21st July 2021 (unreported), the Supreme Court through Dotse JSC explained the principle as pertains to criminal cases as follows: “… applying the above principle in a Criminal Appeal might result in the Court embarking upon the following, to analyze the entire Record of Appeal and this must include the charge sheet, the Bill of Indictment (where applicable), the witness statements of all witnesses, all documents and exhibits tendered and relied on during the trial, as well as the evidence during testimony and cross examination. To satisfy itself that the Prosecution has succeeded in establishing the key ingredients of the offence charged against the Appellant beyond reasonable doubt. And that the entire trial conformed to settled procedures under the Criminal and Other Offences Procedure Act, (Act 30) and that the acceptable rules of evidence under the Evidence Act (NRCD 323) have been complied with including the Practice Directions issued following the decision in the Republic vs. Bafffoe–Bonnie and 4 Others (2017-2020) 1 SCGLR 327 case.” I begin with the first ground of appeal by which the Appellant states: “The Court erred when it failed to get an Ayegbe interpreter when the accused was asked the language he speaks and he said Ayegbe as the ewe interpreter who did the interpretation could not explain the charges to the Page 4 of 15 understanding of the accused in his Ayegbe language and this has occasioned a miscarriage of justice.” Counsel for the Appellant submits that at page 1 of the Record of Appeal (hereinafter “ROA”), the interpreter could not explain the charges properly in Ayigbe language to the Appellant who is an Ayigbe. As a result, the Appellant pleaded guilty simpliciter. He submits that at some point in the proceedings, the Appellant pleaded guilty and at another, he said he had explanation for all the counts. He argues that had the charges been properly explained to the Appellant in the Ayigbe language, his plea and the reason he pleaded guilty would have been uniform. He said the interpretation occasioned a miscarriage of justice. Contrarily, counsel for the Respondent submits that although court proceedings are generally conducted in the English language, an accused who cannot read and write the English language must be asked the particular language he is comfortable with and understands before being called upon to plead. He said in the instant case, at page 1 of the ROA, the record shows the charges were read and explained to the Appellant in the Ewe language, from which could be inferred the Appellant offered to plead in the Ewe language. That, the Appellant understood the Ewe language which explained the reason he was able to plead without any difficulty. That, had the Appellant any difficulty, he would not have pleaded to the charges and proceeded to tell the trial court he had explanations for all the Page 5 of 15 said charges. Counsel submits thus, that the trial court did not err and there has not been any miscarriage of justice to the Appellant. Further, he submits that the fact that the Appellant is Ayigbe is not borne by the record and that the assertion was introduced in this appeal by counsel for the Appellant without seeking the leave of the Court as required under Section 333 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30). Thus, ground one should fail and be dismissed. Section 171(1) of Act 30 provides that, “Where the accused appears personally or by counsel as provided under section 70, the substance of the charge contained in the charge sheet or complaint shall be stated and explained to the accused or if the accused is not personally present to the counsel of the accused, and the accused or counsel of the accused shall be asked to plead guilty or not guilty.” Article 19(2)(h) of the 1992 Constitution also provides that a person charged with a criminal offence shall be permitted to have, without payment by him, the assistance of an interpreter where he cannot understand the language used at the trial. The language used in the courts is the English language. To ensure the accused’s active participation in the criminal proceedings and in furtherance of his right to fair trial, the plea of the accused is taken in the accused’s preferred language, that is, the language the accused can speak well and comfortably as well as understand. The practice of the courts is to find out from the accused his preferred language and not his ethnic group or tribe or the language of his tribe or ethnic group. In this case, the record shows Page 6 of 15 decidedly that the charges were read and explained to the accused in the Ewe language. Based on the record, the only reasonable inference to be drawn is that the accused, when asked prior to the reading out of the charges to him, told the trial court he would speak the Ewe language. Counsel for the Appellant’s assertion that the Appellant informed the trial court he would speak Ayigbe when he was asked what language he would speak is not borne out of the record. I take judicial notice that the history of Ghana as taught and passed on over the years does not have Ayigbe or Ayegbe as a recognized formal language of any ethnic group. The language of the Ewe ethnic group, including Battor where the Appellant informed the Court on 5th December 2024 that he hails from is Ewe with its various dialects. I take further judicial notice that in Ghana, Ewes are sometimes called “Ayigbefour” in the Akan language or “Ayigbe-tsemein” in the Ga language and the Ewe language called “Ayigbe”. Counsel for the Appellant having failed to demonstrate that Ayigbe is a distinct language spoken or formally recognized in Ghana, and his claim that the Appellant informed the trial court he would speak Ayigbe not being patent on the face of the record, his ground one fails. The second ground of appeal is that, “The Court erred for not entering a plea of not guilty for the accused when the Court asked the accused why he Page 7 of 15 pleaded guilty to count 1 and in answering said he has explanation for all counts and this has occasioned a miscarriage of justice.” Count one, two and three on the Charge Sheet are reproduced below: COUNT ONE STATEMENT OF OFFENCE HUMAN TRAFFICKING: CONTRARY TO SECTION 2(2) OF HUMAN TRAFFICKING ACT, 2005 (ACT 694), AS AMENDED BY THE HUMAN TRAFFICKING ACT, 2009 (ACT 784). PARTICULARS OF OFFENCE NOAH AHUMATA: AGE: 38, FISHERMAN: For that you, in the year, 2023 to 28th June, 2024 at Nakpei Beposo a fishing community near Prang in the Bono East Circuit and within the jurisdiction of this Court, did get the guardianship of victim Sylas Mawunedi Ahumata age 10 years by the use of deception and exploitation of the vulnerability of the said victim by engaging him in fishing on the Pru River, an act which constitutes an offence of child trafficking. COUNT TWO STATEMENT OF OFFENCE ENGAGING A CHILD IN EXPLOITATIVE LABOR: CONTRARY TO SECTION 87 & 94(1) OF THE CHILDREN’S ACT, 1998 (ACT 560) Page 8 of 15 PARTICULARS OF OFFENCE NOAH AHUMATA: AGE 38 YEARS, FISHERMAN: For that between the year 2023 to 28th June, 2024 at Nakpei Beposo, a fishing community near Prang in the Bono East Circuit and within the jurisdiction of this court, did exploit Sylas Mawunedi Ahumata age 10, into fishing on the Pru River, an act which constitutes an offence. COUNT THREE STATEMENT OF OFFENCE ENGAGING A CHILD IN HAZARDOUS WORK: CONTRARY TO SECTION 91(2) & 94(1) OF THE CHILDREN’S ACT, 1998 (ACT 560) PARTICULARS OF OFFENCE NOAH AHUMATA: AGE 38 YEARS, FISHERMAN: For that between the year, 2023 to 28th June, 2024 at Nakpei Beposo a fishing community near Prang in the Bono East Circuit and within the jurisdiction of this court, did engage Sylas Mawunedi Ahumata age 10 years, into a hazardous work to wit: fishing on the Pru River, an act which constitutes an offence. In his submission, counsel for the Appellant referred to the proceedings on page 1 and 2 of the ROA where the trial judge asked the Appellant why he pleaded guilty to count one, and the Appellant answered: “I did as the Police alleged. I wanted to send victim to school but admission had closed. The victim has been with me for only three months. I have explanation for Page 9 of 15 all counts.” Based on this answer, counsel submits that although the Appellant pleaded guilty simpliciter, it can be inferred that his plea of guilty was not a genuine plea of guilty to the charges because he indicated he had explanation for all of them. He submits that the trial judge should have changed the accused’s plea from guilty to not guilty and proceeded to hear the matter. In response, counsel for the Respondent submits that the Appellant’s second ground of appeal invokes Section 171(3) of Act 30. He refers to the question and answer on page 1 and 2 of the ROA as referred to by Appellant’s counsel but submits that the Appellant’s explanation was consistent with his guilty plea on the said count. However, he concedes that since the Appellant indicated to the trial judge he had explanation for all the other counts, the trial judge should have patiently listened to the explanation in order to make a determination whether the Appellant was truly guilty or not. That, the trial judge’s failure to listen to the explanation of the Appellant on count two and three occasioned a miscarriage of justice as the explanation could have negated the guilty plea. He thus, shares counsel for the Appellant’s position to the extent that the conviction on count two and three are wrong. In agreeing with counsel for the Appellant in part, he cites the case of Yirenkyi v. The Republic [2016] GMJ 1SC 8 where it was held inter alia that it is not uncommon for parties in a case to sometimes support the case of the opponents or adversaries because it is even considered unethical to defend the indefensible when it is apparent Page 10 of 15 that the position defended is either not supported by law or evidence on record. Counsel for the Respondent submits that in order to do substantial justice and not countenance wrongdoing, this Court should order a retrial of the Appellant on count two and three. Thus, the appeal on ground two should succeed in part, specifically, in respect of count two and three. It is provided in Section 171(3) of Act 30 that: “A plea of guilty shall be recorded as nearly as possible in the words used, or if there is an admission of guilt by letter under section 70 (1), the letter shall be placed on the record and the Court shall convict the accused and pass sentence or make an order against the accused unless there appears to it sufficient cause to the contrary. [Emphasis on the underlined] In the light of the above provision, the trial judge should not have proceeded to sentence the Appellant on count two and three when in giving his response to the question about the reason he pleaded guilty to count one, the Appellant answered among others that he had explanation for all the counts. The trial judge should have given the Appellant the opportunity to provide his explanation on count two and three in order to determine if he had a reasonable defence or not. The trial judge failed to do so and proceeded to pass sentence on the Appellant, thereby resulting in a miscarriage of justice to the Appellant. Page 11 of 15 Section 2(2) of Act 694 which creates the offence of trafficking provides that a person who contravenes subsection (1) commits an offence and is liable on summary conviction to imprisonment for a term of not less than five years. Section 2(1) of Act 694 states that a person shall not traffic another person within the meaning of Section 1 of the Act or act as an intermediary for the trafficking of a person. Human trafficking is defined in Section 1 of Act 694 as amended by Act 784 to mean “the recruitment, transportation, transfer, habouring, trading or receipt of persons for the purpose of exploitation within and across national borders by (a) the use of threats, force or other forms of coercion, abduction, fraud, deception, the abuse of power or exploitation of vulnerability, or (b) giving or receiving payments and benefits to achieve consent. “ Under Section 1(2) of the Act, exploitation shall include at the minimum, induced prostitution and other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. Where a child is trafficked, it is provided under Section 1(4) of the Act that the consent of the child, parents or guardian of the child cannot be used as a defence in prosecution under the Act, regardless of whether or not there is evidence of abuse of power, fraud or deception on the part of the trafficker or whether the vulnerability of the child was taken advantage of. Page 12 of 15 At this stage, the question that begs for an answer is whether the explanation given by the Appellant on count one amounts to a defence or negates his plea of guilty such that the trial judge should have entered a plea of not guilty for him. The record shows the Appellant gave the explanation after his plea had been taken and the prosecution’s facts had been read to him. Therefore, at the time of providing the explanation, the Appellant was very clear in his mind the prosecution’s fact founding count one. It would be gleaned from the accompanying prosecution’s facts that the element of deception stemmed from the Appellant’s failure to enroll the victim in school and also care for him as promised. Therefore, even if the trial judge had found the Appellant’s claim that he intended to enroll the victim in school but admission had closed to have negated the element of deception, it would only have been partly as there still remained the second leg of the deception which is based on his failure to care for the victim as he had promised. Further, the Appellant’s explanation that the victim lived with him for only three months, at best, may be a mitigating factor during sentencing but not negate his guilty plea. In my thoughtful view, the explanation provided by the Appellant to count one does not amount to a defence nor negate his guilty plea and the trial judge was justified to proceed to sentence him. The trial judge’s conviction of the Appellant on count one cannot be faulted as the same did not result in a miscarriage of justice to the Appellant. It will be observed also that the sentence imposed on count one is the minimum fixed by law for trafficking under Act 694. Page 13 of 15 From the foregoing, the appeal succeeds in part, that is, the Appellant’s conviction and sentence on count one is upheld, but the conviction and sentence on count two and three is set aside. Be that the trial before the Circuit Court was not a nullity but resulted in the Appellant’s conviction on count one as affirmed herein, and the Appellant is currently serving the minimum sentence of five years’ imprisonment IHL, and the facts giving rise to count one, two and three arise from the same incident, it is my considered view that the sentence currently being served by the Appellant is enough for him pay for the ordeal he put the victim through and that justice has been served. In the circumstance, no need for a retrial arises in this case and the Court declines counsel for the Respondent’s call to order a retrial of the Appellant on count two and three. Section 19(1) of Act 694 provides that a person convicted of the offence of trafficking shall be ordered by the court to pay compensation to the victim of the trafficking. According to Section 19(3) of the Act, the payment of compensation shall be in addition to any other punishment. From the record available, there is no evidence the trial judge made any order relative to compensation payment for the victim. Accordingly, I order the Appellant to pay forthwith compensation in the sum of GH¢5,000 to the victim, which payment shall be made to the person in whose care and custody the victim is presently and the person shall apply the funds strictly for the benefit of the victim. Page 14 of 15 SGD. WINNIE AMOATEY-OWUSU JUSTICE OF THE HIGH COURT APPELLANT PRESENT COUNSEL: 1. KOFI IDDRISSAH ESQ. FOR THE APPELLANT PRESENT 2. DEREK ASANTE OBENG ESQ. (SA) WITH VIVIAN YAYRA NTI BOADU (SA), ABENA NYANTAKYIWAA AGYEMANG (SA) AND COMFORT KWAKYE ANTWI (ASA) FOR THE RESPONDENT Page 15 of 15