Kyere and Another v The Republic (CC15/025/2024) [2024] GHAHC 555 (7 November 2024)

1|Page INTHESUPERIOR COURT OF JUDICATURE, HIGHCOURT OF JUSTICE COMMERCIALDIVISION ‘’A’’ HELDAT SUNYANI ONTHURSDAY THE 7TH DAY OF NOVEMBER, 2024 BEFORE HISLORDSHIP JUSTICEHARRY ACHEAMPONG-OPOKU ESQ. SUIT NO. CC15/025/2024 KWAME KYERE& 1ANOR. VRS: THE REPUBLIC JUDGEMENT This is an interlocutory appeal from the Ruling of the Wenchi District Court presided over by His Worship Issah Abdul Wahab refusing submission of no case made by the counsel forthe Appellantsdated 20thSeptember,2024. Now being aggrieved with the Ruling of the said Wenchi District Court. The Appellants herein have filed this interlocutory Appeal with leave of the said Wenchi District Court. That the said interlocutory Appeal was filed on 8th December, 2023 with the following ground(s) ofAppeal. 2|Page (i) The Ruling is against the weight ofevidence onrecord. (ii) Additional grounds of Appeal will be filed after obtaining the record of proceedings. Although the Appeal was filed on 8th December, 2023 the Appellants have failed to file any additionalgrounds ofAppeal. Sothe sole ground ofAppealis; “TheRuling is against the weight ofevidence” It will be prudent at this stage to reproduce the facts and the ruling made by the trial court. Complainant Moro Alhassan is a farmer and a chainsaw operator staying at Kyireagya near Offuman. The Accused persons namely Kwame Kyere a driver staying at Techiman and the second Accused personis the son of A1 called Benjamin Kyere age 18 years a student who has completed S.H.S this year 2018 staying with his father Kwame Kyere. The complainant brother in-law Blackie has a cashew farm at Kyireagya which shares common boundary with the first accused. However, there is long standing boundary dispute between Blackie and A1. The complainant at times go to the farm and use the chainsaw machine he was having to cut down some standing cashew trees and dragged same in the farm creating earth road. On 30th day of August 2018 around 6:00am, the complainant went to his brother in-law farm and used Tractor to work for some time. 3|Page Exactly 4:30pm, the diesel go finished and the complainant left the international Tractor in the care of Peter Bozie. When the complainant went to buy diesel he did not get the person whom was supposed to give money to him to buy the diesel. He therefore bought the diesel the following day, when he got to the farm he poured the diesel into the engine and it started working for 30 minutes and stopped, however inspection of theTractorrevealed salt in theengine. The complainant asked those whom he entrusted the tractor into their custody and asked them who came to where the tractor was, Peter Bozie and two witnesses in the case informed him that it was accused person and his son Benjamin Kyere who came there. The complainant went to Offuman Police station and filed case against the accused persons. After investigation the accused persons were charged with the offence of causing unlawful damage contrary to section 172 (1) (b) of the criminal and other offences Act of 1960, Act 29 as amended by Act 554 and were later arraigned before the said Wenchi District Courtfortrial. That after the prosecution has closed his case, the counsel for the Appellants filed written submission of no case to answer by the appellants, since evidence adduced by the prosecution do not show or indicate any prima facie case for the Appellant to answer. 4|Page However, the trial court dismissed the Appellants submission of no case to answer. And thereforeasked the Appellantstoopentheir defence. It is against this ruling that the Appellants counsel has mounted this interlocutory Appeal. Itmust be notedthat the appellantsfiled oneground ofappeal thatis; “Thejudgement is againstthe weightofevidence” It is a trite learning that where the appellant alleges that the judgement is against the weight of evidence. The Appellate Court is under obligation to go through the entire record to satisfy that a party’s case was more probable than not. See the cases of Tuakwa Vrs. Bosom (2001-2002) SCGLR 61 @ 65, Djin VrsMusah Baako (2007-2008) SCGLR 689 And also the case of Quarcoopome Vrs. Sanyo Electronic Trading Co. & Anor(2009) SCGLR213@ 229,where the SupremeCourt,held that; “An appealto this court is by way of re-hearing and the court will examine the record including the judgement (ruling) of the trial court to see how justified, the judgement(ruling) ofthe courtwas”. All these legal principles were enunciated in civil appeal but are equally applicable to criminalappeals inGhana. 5|Page From the above legal principles it behooves on the appellate court scrutinize the record of proceedings including the ruling, in order to find out, whether the trial court is justifiable by law ornot. Although the law does not specifically mention that at the close of prosecution, the defence has a right to make submission of no case, in the considered opinion of this Appellate court, by international best practices an accused has that fundamental human right to a fair hearing chapter 5 of the 1992 constitution Article 19 reinforces the fundamental human rights. Now Article 19 (1) of the 1992 constitution provides that a court shall give a person charged with a criminal offence a fair hearing within a reasonable time. I construe “shall be given a fair hearing” purposively to mean that the accused person can make a case to appeal to the court that the prosecution has been unable to make sufficient enoughcase tocall uponhimto enterinto adefence. Indeed the law is that whenever, a person is charged with an offence and pleads not guilty and appears on trial for the offence. It is for the prosecution to provide evidence that all element of the offence had been committed as well as to prove that the accused person is the one who committed the offence. Therefore, the burden of proof lies with theprosecution. 6|Page In the course of trial the prosecution are first ones to lay it evidence against the accused in the essence of upholding the fundamental principle that everyone is innocent until proven guilty up to that point, the accused would have opportunity to put to proof such evidence and explore the inconsistencies. It is also the close of the prosecution case that the accused gets opportunity to put forward his case and his version of events; However, in circumstances there may be no need for the Defence to call evidence in particular when the evidence of the prosecution is insufficient. In those circumstances anapplicationmay be made tothjudgetowithdrawthe case. It is on this account that the trial court gave approval to the counsel for the Appellants tomake submission ofno case. Before proceedings further, I need to reiterate that the mandate of a court to consider whether or not prima facie case has been made at the close of the prosecution in summary trial. Indeed the consideration as to whether prima facie case has been established is a question of law and the judge makes that determination as a judge of law. As a judge of law, you should scrutinizes and analyses evidence led on record and to make adetermination whetheraprima facie case hasbeen made ornot. It therefore goes without saying that where no prima facie case has been established, then the court is not left with no option than to acquit and discharge the accused. Per 7|Page contra, where the court took the position that the prosecution has established a prima facie case it will calluponthe defence toopenits case. The issue ofwhether prosecution hasmade prima facie case ornot,is aquestionoflaw. Therefore the burden is cast on the trial court at the close of the case for the prosecution is to consider whether prima facie case has been proved or has been established and not whether the guilt of the accused can be inferred from the evidence led on record. This position is in accord with the policy of the law that the court has no mandate to make findings of fact at that stage of trial where the prosecution has closed its case. It be hooves on the trial court at this stage of trial to only considers the evidence on record and tosatisfy itself whether prima facie case has beenestablished ornot. Hence in summary trial if the court is satisfied that prima facie has been established the court invokes section 174 of Act 30 and calls person to enter into his defence. On the other hand if the conclusion was that no sufficient evidence has been led to prove the essential elements of the count(s) charges or that the evidence led by the prosecution has been discredited by reason of cross-examination by the defence or that the evidence was so unreliable that no reasonable tribunal of fact can act on it the court is empowered by section 173 of Act 30to acquit and discharged the accused personat that stage. Infact inthe case ofCOP VRS AKOTO(1964) GLR231,here the courtheld that; 8|Page “A person charged before a court has a duty to make it appear to the court that no charge has sufficiently been made against him to require an answer from him. This isatime honoredpractice and fundamentalprinciple of criminal law…”. It was precisely for this legal reasoning that the court of Appeal held in the case of ApalooVrs. The Republic(1975) 1GLR 156asfollows; “The circumstances in which a submission of no case might successfully be made were; (a) Where there had been no evidence to prove essential element in the crime charged (b)Where the evidence adduced by the prosecution has been so discredited as a result of cross-examination or was so manifestly unreliable that no reasonable tribunal can safely convictupon it”. It is quite trite knowledge that the standard of proof in every criminal trial whether summary or under indictment is of beyond reasonable doubt see section 13 (1) of the Evidence Act, of1975(NRCD323). The question then is what standard of proof the court should use, in determine whether acase has been made against accused for him to openhis defence especially whenhe hasnot givenhis evidence. 9|Page Infact the previous position of the law was that, at that stage the guilt of the accused ought to be inferred by the trial court the evidence led on record to ascertain whetherthe guilt ofthe accused hasbeen established. Indeed it was held in the much oft quoted case of The State Vrs. Ali Kassena (1962) 1GLR 144 that at the close of the case for the prosecution the judge has to decide whetherfromthe facts theguilt ofthe Accused could be inferred. I need to state that modern trend in the law tilts in favour of the establishment of prima facie case. Before I proceed further, the question is what is the difference between prima facie and beyond reasonable doubt– Both terms refer to different standards of proof PRIMA FACIE refers to the initial threshold of evidence needed to move the case forward with a case. Whereas BEYOND REASONABLE DOUBT represent the higher standard of proof borne by the prosecution that is required to convict in a criminalcase. Beyond reasonable doubt is the highest standard of proof in legal system and reflects the principle that it is better for a guilty person to go free than innocent personto be wronglyconvicted. The question then is what is prima facie case, the phrase prima facie is a Latin word which means at first sight, that is evidence which refers to the initial assessment of 10|Page evidence or arguments that to be adequate to support legal claim or charge at first glance. It implies that based upon information available there is enough evidence to establish a case, unless contradicted by additional evidence. Essentially it serves as preliminary standard that helps to determine whether a case should proceed to full trialorfurtherexamination. In criminal case prima facie refers to the initial evidence presented by the prosecutor thatsuggestsaccused guilt. It is the considered opinion of this court that the correct present position of the law isthat atthe close ofthe case forprosecution whether atrial under indictment orin a summary one, the court has to consider whether from the evidence adduced on record a prima facie case has been made out and not that the guilt of the accused should be inferred. At that stage the accused has not offered evidence in rebuttal of the evidence led by the prosecution for the courtto make any determinationas tohis guilt. Indeed it is only where the evidence was led by the Accused in rebuttal of the prosecution’s case that the court was required to make findings of facts and to determine the guilt oftheaccused. This position of the law is supportable by the current line of authoritative judicial decisions notable Tsatsu Isikata Vrs. Republic (2003-2004) 2SCGLR1068. 11|Page Also in the case of Gligah & Anor. Vrs. The Republic (2010)SC GLR 870 @ 871 Supreme Court speaking through DOTSE JSC at Holding 1 of the Report Stated as follows; “Under article 19 (2) (c) of the 1992 constitution every one charged with a criminal offence was presumed innocent until the contrary was proved. In other words whenever an accused person was arraigned before any court in any criminal trial. It was the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond reasonable doubt. The burden of proof was therefore on the prosecution and it was only after a prima facie case had been established by the prosecution that the accused person would be called upon togive his side ofthe story”. In fact in the English case of R. Vrs. Galbraith (1981) 1WLR 1039 where the issue of prima facie wasput inadifferent way asfollows; In a case where a judge is asked to consider a submission of no case to answer the judge should apply the classic or traditional test set out by Lord Lane CJ in Galbraithcase; “that is where the issue in the submission of no case to answer is whether there is sufficient evidence on which a reasonable jury could be entitled to draw adverse 12|Page against the accused from combination of factual circumstances based upon evidence by the prosecution….” Hence it is well settled that at the close of the case for the prosecution the court has to consider whether prima facie case has been established and not whether the accused was guilty. The question that one may ask is why would the court be required to consider whether a prima facie case was established and not to consider whetherthe guilt ofthe accused hasbeen proved orcouldbe inferred atthat stage. The rationale is that at the close of the case for the prosecution the court is not required to make findings of facts. If it did so, the court will be presumed to have prejudiced the case of the defence and made the trial irregular. This is because it could have assumed that the court would have made up its mind at that stage of the trial. Indeed the eminent Ghanaian jurist, Justice Taylor J (as he then was) in the case of R Vrs. Accra Special Circuit Court; Ex-parte Akosah (1977)2 GLR 283 @ 292 statedas follows; “At the close of the case for the prosecution a trial court…….ought not to attempt to make findings of fact at all, findings of fact can only be made after the close for the defence and the reason for this is because at the close of the case for the prosecution, all the facts in issue are legally rebuttable facts and therefore displaceable by evidence from the accused. A finding of fact at that stage can put 13|Page the accused at such adisadvantage asto prejudice his case and make the trialmost irregular”. Now taking into consideration the law and the facts in this appeal, first of all as I have reiterated earlier on an appeal is by way of re-hearing and also when one argues on the ground of judgement or ruling is against the weight of evidence on appeal it is the duty of the appellate court to scrutinize the evidence on record to find outwhether appellant case is moreprobable thannot. I have clinically scrutinized evidence on record, and I would agree with the appellants counsel that at the end of the prosecution case there was no prima facie case for the appellant to have been called to answer although the trial magistrate in his ruling of submission of no case submitted by counsel for the Appellant in the trialcourt statedasfollows; “Clearly from the above it is obvious that at the close of the case for the prosecution what the court ought to do is to make a determination in a preliminary fashion as to whether a prima facie case has been made by the prosecution and against the accused towarrant acallonthe accused toopendefence”. In the instant case a careful evaluation of the prosecution reveal facts worth considering asto whetheraprima facie case has beenmade ornot. These factsare: (1) That thecomplainant herein left thetractor onthefarmand went tobuy diesel. 14|Page This was afterhe left same under thecare ofprosecution witnesses (2) That the complainant returned to the tractor the next day with the diesel and upon pouring the diesel in the tractor the tractor failed to start and he subsequently detectedsalt in theengine. (3) That the prosecution stated that the accused persons were spotted by witnesses moving away fromthesaid tractorafter complainant left it onthefarm. (4) That it has also been established by the prosecution and as a matter of fact that the relationship between the accused andthe complainant has not beengood due toalong standing dispute. It is upon these bases that the court arrived to say that, it was case which required the accused persons to explain their presence on the complainant farm and what they went to do there especially when A1 was not in good terms with the complainant. Hence it is the view of the trial court that the prosecution has made a prima facie case against the accused and therefore Accused persons are accordingly called upon to open their defence. With due respect to the trial Magistrate his analysis oftheprosecution case waspurely inthe realmofmeresuspicion. In fact analysis of the evidence of the prosecution case is purely based on the realm ofmere suspicion. 15|Page Indeed in the case of The State Vrs. Otchere & Ors (1963) 2 GLR 463-531 @ 530 it washeld that; “It is a cardinal principle of justice that no man is ever convicted on suspicion, A string of suspicions however, innumerous and however, grave can never be multiplied together to produce proofof guilt”. In any case it was on record that A1 farm shares boundary with complainant master’s farm and it is not that the Accused persons went to complainant farm that day to cause the damage to the said tractor anyway the Accused persons have pleaded not guilty to the said charge of causing unlawful harm contrary to section 172(1) (b) of criminal and other offences Act, Act 29as amended by Act section 18 of Act 554. However, it must also be noted that evidence adduced by the prosecution could not be reliable as basis to say that prosecution has made prima facie case against the accused persons, indeed the evidence of PW1 was serious impeached by the counsel for the accused persons now appellants in this case for the avoidance of doubt I would like to quote what transpired between the counsel for the accused persons and PW1 during the cross-examinationofPW1. Q. The place where the tractor was parked overnight is accessible to anybody passingthat way. 16|Page A. Itisnot truebut it is road inside ourfarm. Q. People using the roadhad access tothe vehicle bothday and night. A. Those who have access to thetractorare those workingonour farm. Q. And anybody who has access to the vehicle day and night could have also pouredsalt into it if any. A. Nostrangerpasses there apartfromour ownlabourers Q. Yourlabouresarenot angelstheyare capable ofdoing that. A. They arethose who saw the accused personsput the salt intothe vehicle. However, nowhere in evidence of the other witnesses who were complainant labourers said that they saw the accused persons putting salt into the engine of the tractor. Indeed what they said in their written statements to the police was that they never saw accused persons holding anything. It is also beat any imagination, how possible would it be for the accused persons to open the engine compact of the tractor at the full glare of the other witnesses yet other witnesses who have been mandated to keep watch of the tractor could not see them. This point to one conclusion that PW1 was not truthful and that his evidence cannot rely upon by courtwhich want todo justice. 17|Page Indeed further answers to questions during cross-examination was showing that PW1accusing theaccused personswereonly inthe realmofconjecture. Q. Take alookat exhibit ‘2’as it is the coverover the Engine block lookintact. A. Yes. Q. The accused personsknow nothing about tractorengine. A. The knowsomething about working tractorengine. Q. The Accused personsknownothing about workingtractor engine. A. ForthatI cannot tellbecause Iamnot in their mind. In respect to other witnesses especially PW2, PW3 and PW4 they challenged the police that, the policeman who took their statement has left some information concerning what they told him, in other words what the police had presented to the court was not exactlywhat they told him therefore it is manifestly clear that no court minded to do justice would rely on their written statement to the police what has been admitted in evidence to say that the prosecution has made prima facie case against theaccused personsforthemto opentheir defence. Indeed in this case the prosecution did not meet the threshold of evidence that they need tomake beforethe defence could be called uponto openit defence. 18|Page Inthecase ofAgyemang II Vrs. The Republic (1993-94) 1GLR555@ 561Forster J A held at pages559to560 “The duty of the trial judge in considering submission of “NO CASE” is first to satisfy himself whether or not the evidence led by the prosecution could said to have proved all the essential elements of the offence charged. If he so finds for the prosecution he must next decide whether evidence is not inherently weak and therefore unreliable the consideration of the quality of the evidence is necessarily involves the view. The judge takes of the demeanor of the witnesses how well they stood up in cross-examination if the strength of their evidence was so sapped as a result of cross-examination as to render the evidence weak and unreliable then the judge has to conclude that evidence of the prosecution lacked probative force as to convince. If, however; the evidence is left unshaken by cross- examination then judge would be justified in calling upon the accused. At that stage of the trial the evidence would be “uncontradicted” because no such evidence have been forth coming from the defence and even where there is self- serving denial as have been discussed supra that is not for consideration in determing whether prima facie has been made by the prosecution”. Finally in the case of Tsatsu Tsikata Vrs. The Republic quoted supra, the Supreme Court stated the scope of the duty of the trial judge when considering the submissionofnocase thus; 19|Page “It does appear to us that on a submission of no case, the judge’s function is essentially to determine whether there is a genuine case for trial. The inquiry has to focus on the threshold question whether the evidence presents sufficient disagreement to require submission for a full trial, or whether it is so one sided that one party must prevail as a matter of law put another way the inquiry is whether there are any genuine factual issue that can properly be resolved only by finder offact because they may reasonable be resolved infavourof either party”. Fromthe analysis ofthelaw, facts and authorities, it is the considered opinion ofthis court that the trial judge erred by saying that the prosecution has been able to make prima facie case against the accused persons. The appellants herein for them to open their defence, however evidence on record did indicate that the prosecution case did not reach the threshold of prima facie case for the Appellants to be called to open their defence, in view of this I would allow the appeal and uphold the submission of no case to answer filed by the counsel of Accused Personsnow appellants in the trial court. (SGD) ……………………………….. JUSTICEHARRY ACHEAMPONG-OPOKU (JUSTICEOF THE HIGHCOURT) 20|Page