REPUBLIC VRS JOHNSON MANYO & ANOR. (B18/72/2024) [2024] GHAHC 392 (15 October 2024)

IN THE CIRCUIT COURT, HELD AT ODUMASE KROBO, IN THE EASTERN REGION, ON THE 15TH DAY OF OCTOBER 2024, BEFORE HIS HONOUR KWESI APPIATSE ABAIDOO SUIT No. B18/72/2024 REPUBLIC VRS JOHNSON MANYO JOHN AGBOTSE COUNSEL: PETER K. KORNOR FOR THE 2ND ACCUSED PERSON RULING ON THE SUBMISSION OF NO CASE TO ANSWER The two accused persons were on the 30th day of April 2024, arraigned before this court and were charged as follows; Statement of offence 1. Abetment of crime contrary to wit: attempting to export cocoa beans which has not been inspected, graded and sealed by an inspector of cocoa: contrary to sections 20(1) and 3 of Cocoa Industry Regulations Act 1968. Particulars of offence Johnson Manyo, Aged 56 driver; For that you on 28th day of April 2024 at Mame Wata in the eastern circuit and within the jurisdiction of this court, you did aid and abet one Page 1 of 14 John Agbotse to commit crime to wit: attempting to export cocoa beans which has not been inspected, graded and sealed by an inspector of cocoa. Statement of offence 2. Unauthorized person purchasing cocoa beans: contrary to section 4(1) of Ghana Cocoa Board Act 1984 (PNDCL 81) Particulars of offence John Agbotse, Aged 47; For that you on 28th day of April 2024 at Mame Wata in the eastern circuit and within the jurisdiction of this court, you did purchase seven bags of cocoa beans without authority from Cocoa Board. Statement of offence 3. Attempting to export cocoa beans which has not been inspected, graded and sealed by an inspector of cocoa: contrary to sections 23(1) and 3 of Cocoa Industry Regulations Act 1968. Particulars of offence John Agbotse aged 47 farmer; For that you on 28th day of April 2024 at Mame Wata in the eastern circuit and within the jurisdiction of this court, you did attempt to export cocoa beans which has not been inspected, graded and sealed by an inspector of cocoa. Statement of offence 4. Attempting to smuggle cocoa beans contrary to section 317(1)(g) of The Criminal Offences Act 1960 (Act 29) Particulars of offence Page 2 of 14 John Agbotse aged 47 farmer; For that you on 28th day of April 2024 at Mame Wata in the eastern circuit and within the jurisdiction of this court, you did attempt to export cocoa beans into the Republic of Togo which relates to the exportation of restricted and prohibited goods. The facts of the case as stated by the prosecution and attached to the charge sheet read as follows: The complainants in this case are members of the National Anti-Cocoa Smuggling Task Force mandated to check smuggling of cocoa beans nationwide. A1 Johnson Manyo aged 56 is a driver and resident of Koforidua and A2 John Agbotse aged 47 is a farmer and also resident of Hohoe. On 28/04/2024 at about 12:45pm whilst the complainants were on their routine check at “Mame Wata” community near Juapong along the Atimpoku-Hohoe highway, they suspected a Benz sprinter bus with registration number GS 5090 -18 loaded with palm oil and some provisions from Koforidua towards Dambai. During a check in the goods within the vehicle, seven (7) bags of dried cocoa beans concealed in sacks and “Ghana must go bags” were found. A1 was arrested together with the exhibits cocoa beans and handed over to the police in Akosombo where a formal complaint was made for investigations. During investigations, A1 in his voluntary cautioned statement given to the police admitted and further stated that A2 contracted him to transport the cocoa beans from Koforidua in the Eastern Region to Kpeve in the Volta region at a charge of Gh¢600.00 for onwards smuggling into the Republic of Togo. A2 was arrested and he admitted purchasing the cocoa beans at Gh¢2,070.00 per bag from a friend at Begoro and was smuggling it to the Republic of Togo where it is sold at Gh¢5,040.00. Investigations also proved that, the seven (7) bags of cocoa beans were not inspected, graded and sealed by an inspector of cocoa. Due to the perishable nature of the cocoa beans, they were handed over to the complainant and the Cocoa Board for safekeeping. After investigations, the accused persons were charged with the offences as stated in the charge sheet and arraigned before this honourable court. Page 3 of 14 Upon their arraignment on the 30th day of April 2024, the first accused person who was unrepresented by counsel pleaded guilty to count one, and was convicted based on his own plea and sentenced to pay a fine of which he paid. The second accused person was represented by counsel herein and pleaded not guilty to counts 2, 3 and 4, necessitating the trial of the case. As such, reference to the accused person hereafter means the second accused person. Before dealing with the submission of counsel, it is important to state that Ghana Cocoa Board (hereinafter referred to as COCOBOD), is an organization set up to deal with cocoa, coffee and sheanuts and their incidents under Ghana Cocoa Board Act (PNDCL 81). Counsel for the accused in his submission of no case to answer by the accused person stated the charges preferred against the accused person and proceeded to argue his case under the caption “no independent evidence presented against accused in the instant case”, and this anchored the arguments of counsel for the accused in two thematic areas. Firstly, counsel for the accused argued that the entire case of the prosecution was based on supposed confession statements obtained from the accused person based on paragraphs 4, 5 and 7 of PW1’s witness statement, and stated that the supposed confession statement was obtained by trickery and promise of freedom from the prosecution. Counsel reasoned that there was no independent evidence to corroborate the supposed confession statement. According to counsel, the cross examination of PW1 revealed that on the 28/4/2024 when the accused came from Logba to Mame-Wata where he was arrested, he was made to speak on phone to one Mr. Emmanuel Ahiamadi (the Security and intelligence Manager of Cocoa Board), and it was during that arranged phone call that the said Mr. Emmanuel Ahiamadi tricked and induced the accused person to simply admit the offence alleged in exchange for his release and freedom from prosecution. Lastly, counsel for the accused argued that the second flaw with the supposed confession statement obtained from the accused was that they were not taken before an independent witness as required by law. The supposed independent witness (to the confession statement Page 4 of 14 obtained from the accused, allegedly admitting the offence) was named as Simon Adadey, a policeman. Counsel is of the opinion that the independence of the said witness (that is, Simon Adadey) is totally compromised and cannot support a prima facie case against the accused for the following reasons; 1. That Simon Adadey is a police officer stationed at Akosombo Police Station, the very station handling the matter, and 2. Simon Adadey is a general Corporal, who is a junior in rank to the investigator and therefore subordinate to him (the investigator). Counsel referred to the following cases in support of his line of reasoning; Republic v. Konkomba [1979] GLR 270 – 284, Frimpong alias Iboman v. The Republic [2012] 1 SCGLR 297 at 301 (Holding 5), and section 120(1) of the Evidence Act, 1975. Counsel therefore urged the court to show high sensitivity to the right of the accused person to acquittal in the instant case, especially so where in counsel’s opinion the prosecution has failed to do a thorough investigation and expects the court to fill in the gaps and convict the accused. He accordingly prayed the court to acquit the accused person as no prima facie case has been established against him. It is pertinent to note that, at this stage of the trial of the case, the duty cast on the court is to determine whether a case has been made by the prosecution against the accused sufficiently to require him to make a defence (that is, a prima facie case has been made against the accused to warrant the accused to open his defence). Section 173 of the Criminal Procedure Act 1960 (Act 30) reads; “If at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require him to make a defence, the Court shall, as to that particular charge, acquit him.” (Emphasis supplied). Page 5 of 14 This means that the court must of necessity examine the evidence adduced by the prosecution in support of its case as against its own charge(s) preferred against the accused person. The court is not to take any statement that operates as a possible defence into consideration. As counsel rightfully stated in his submission, the object of the rule is premised on the basic logic that after the close of the prosecution’s case, it would be patent to every reasonable mind whether a case has been made against the accused for which reason he may be called upon to present his defence. In the case of Moshie v. The Republic [1977] 1GLR 287, C.A, the accused was tried for murdering one Abenaa Konadu. The trial judge at the end of the prosecution’s case failed to consider whether a prima facie case has been made against the accused on a simple reason that the counsel of the accused did not put in a submission of no case. The Court of Appeal in considering the duty of the court to consider the prosecution’s case as a whole before calling on the accused to open his defence, reasoned per Azu Crabbe C.J., at page 290, thus; “Before dealing with the merit of the arguments of counsel in this appeal, it would be convenient to deal with two important points of procedure which attracted the attention of the court. First, it appears on the record that at the close of the case for the prosecution the learned trial judge made the following notes: "By court: Mr. Takyi states he has no submission to make at this stage and that he wants the accused to give evidence on oath. Ruling: In the absence of any submission of no case, I call on the accused to enter into his defence." With very great respect, this court is of the opinion that the reason given by the learned judge for calling upon the appellant to give evidence in his defence was untenable, and it amounted to an abdication of his function under section 271 of the Criminal Procedure Code, 1960 (Act 30). Page 6 of 14 The functions of a trial judge at the conclusion of the prosecution's case are stated in section 271 of the Criminal Procedure Code, 1960 (Act 30), as follows: "The Judge may consider at the conclusion of the case for the prosecution whether there is any case for submission to the jury, and if the Judge is of opinion that there is no evidence that the accused has committed any offence of which he could be lawfully convicted on the indictment upon which he is being tried, the Judge shall forthwith direct the jury to enter a verdict of not guilty and shall acquit the accused." It is thus a question of law for the trial judge whether or not "there is no evidence" to establish that the accused has committed any offence known to our law. The duty to decide this question is cast on the judge whether or not a "submission of no case" is made to him by the defence, for as Abbot C.J. said in R. v. Burdett (1820) 4 B. & Ad. 95 at pp. 161-162: "No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction." If the judge has distinctly reached the conclusion that the case against an accused is merely one of suspicion, he ought to direct the jury to enter a verdict of not guilty. This court agrees with the observations of Devlin J. (as he then was) in the English case of R. v. Atter [1956] Crim.L.R. 289 at p. 290, that "You cannot put a multitude of suspicions together and make proof out of it." The law now seems to be that in considering his duty under section 271 of the Criminal Procedure Code, 1960 (Act 30), the judge should not leave a case to the jury if he is of the opinion that— (a) there has been no evidence to prove an essential element in the crime charged, or (b) the evidence adduced by the prosecution had been so discredited as a result of cross examination, or (c) the evidence is so manifestly unreliable that no reasonable tribunal could safely convict upon it, or (d) the evidence is evenly balanced, that is to say, the evidence was susceptible to two likely explanations, one consistent with guilt, one with innocence: see State v. Ali Kassena [1962] 1 G.L.R. 144, S.C.; Apaloo v. The Republic [1975) 1.G.L.R.” Page 7 of 14 Admittedly, though the above cited case has to do with trial on indictment, it is in all force applicable to all cases tried summarily by virtue of section 173 of the Criminal Procedure Act 1960 (Act 30). To be able to ascertain whether a prima facie case has been made against the accused person, it is important to match the facts so established by the prosecution at the end of the prosecution’s case against the ingredients of the law creating the offence(s) under which the accused is charged. The laws under which the accused person is charged reads; 1. Section 4(1) of Ghana Cocoa Board Act, 1984 (PNDCL 81) “A person shall not purchase cocoa except (a) the Board through its wholly-owned subsidiary buying company; or (b) a person or an organization authorized in writing by the Board to purchase cocoa for sale to the Board.” 2. Section 3 of Cocoa Industry Regulations Act (PNDCL 278) “A person shall not export or cause or permit to be exported or attempt to export any cocoa unless the cocoa has been inspected by an inspector of and the inspector have affixed to each bag a seal and grade-mark.” 3. Section 317(1)(g) of The Criminal Offences Act (Act 29) Page 8 of 14 “Any person who exports or attempts to export cocoa contrary to the Customs, Excise and Preventive Service (Management) Law, 1993 (P.N.D.C.L. 330) (which relates to the exportation of restricted or prohibited goods).” Per the charges preferred against the accused person, the prosecution had a duty to prove or establish the following elements: 1. In reference to count 2, which is under section 4(1) of COCOBOD Act; a. That the accused is not a person or a subsidiary buying company of COCOBOD authorized to buy cocoa for COCOBOD. b. That the accused has purchased cocoa within the jurisdiction of Ghana. 2. In reference to count 3 and 4, which is under Cocoa Industry (regulation) Act, and The Criminal Offences Act (Act 29); a. That the accused had in his possession cocoa beans, b. The cocoa beans has not been inspected by an inspector of cocoa, and the inspector of cocoa has not graded, affixed to each bag a seal or grade-mark, and c. The accused attempted to export the cocoa beans out of the jurisdiction of Ghana. When we combine the requirements of the law as stated above, all the prosecution need do is to adduce evidence in proof of the fact that the accused person purchased cocoa within the country without having license from COCOBOD to do so. And the accused didn’t let an inspector of cocoa to inspect the cocoa beans, and made an attempt to transport the cocoa beans out of the country. This is the bench-mark upon which the prosecution’s case is to be evaluated in coming to the conclusion that the prosecution has made a prima facie case against the accused person. It is therefore imperative that the court examines the evidence of the prosecution in the light of the above stated bench-mark. Page 9 of 14 Now, the prosecution in proof of their case presented two witnesses. The main evidence of the prosecution was given by PW1, Ex SWO Opuni Thomas. In fact his evidence anchored the case of the prosecution. The second and the last witness of the prosecution, PW2, is the investigator, who testified in the usual procedural manner as to how he conducted his investigations culminating in the trial of the accused. From the evidence adduced at the trial by the prosecution, it was proved that the accused did not have any cocoa farm at Begoro or at any place within the Eastern Region of Ghana. The accused obtained seven (7) bags of cocoa beans from a friend at Begoro in the Eastern region. The cocoa beans were originally in sacks and “Ghana-Must-Go” bags and not in the approved cocoa board sacks. The cocoa beans were given to Johnson Manyo to be delivered to the accused at Kpeve in the Volta Region. Johnson Manyo is a commercial driver from Koforidua in the Eastern Region driving towards Dambai in the Oti Region. On reaching Mame Wata a town near Juapong in the Volta region Johnson Manyo was arrested by the Anti-Cocoa Task Force. And upon interrogation, Johnson Manya named the accused as the owner of the cocoa beans. When the accused was contacted on phone he admitted ownership of the cocoa beans and stated that the cocoa beans were for him and he was to receive it at Kpeve. It is important noting the following facts: 1. The accused does not own a cocoa farm in Begoro or anywhere in the Eastern Region. 2. The cocoa beans originate from Eastern Region, and the accused claimed ownership of same. 3. The cocoa beans were contained in sacks and Ghana-Must-Go bags which are not the approved bags used by COCOBOD. 4. The cocoa beans were not inspected by an inspector of cocoa, and the inspector of cocoa has not graded or affixed to each bag a seal or grade-mark. 5. The accused caused the cocoa beans to be transported at least from Koforidua in the Eastern Region to be received by him at Kpeve, in the Volta Region, which COCOBOD’s Page 10 of 14 rules does not permit. COCOBOD does not allow the movement of cocoa beans from one district to another without official documentations to that effect. 6. The route by which the cocoa beans were been transported is one of the route that leads to the Republic of Togo, rather than COCOBOD’s cocoa pool center at Tema or Takoradi in the Greater Accra and Western Region respectively. Given these facts, it will not be out of place for a reasonable man to conclude that the cocoa beans were actually purchased in the eastern Region and been transported to the Republic of Togo for sale, as COCOBOD has no pool center for cocoa in the Volta Region. That be the case, barring any serious damage caused to the prosecution’s case by the accused by way of pointing out the inherent inconsistencies of the evidence of the prosecution witnesses, the prosecution must be deemed to have established a prima facie case against the accused. In the instant case, I find that there is no inherent inconsistencies in the evidence of the prosecution witnesses. Turning now to the argument of counsel for the accused which centers on the admissibility of the statement of the accused given to the police. Suffice it to say for now that, if counsel for the accused was actually in doubt as to the voluntariness of the accused investigation statement given to the police, counsel was under a duty to have raised the issue by way of an objection in order to invoke the jurisdiction of the court to go for a mandatory voire dire (i.e., mini trial) to determine whether the accused was induced to give that statement in exchange for his freedom or not as been alleged by counsel. The court may deal with such an issue suo motu only when it is patently clear from the face of the statement been sought to be tendered that it sins against the requirements of section 120 of the Evidence Act. For instance, where there is no witness to the alleged confession statement. In all the reported cases on the issue, to enable the court to go for voire dire there had to be an objection to the tendering of the supposed confession statement. See the case of Anang v. The Republic [1984–86] 1 GLR 458. This is so because, the court must not be seen to be championing the cause of the accused or the prosecution. The court must of necessity maintain its neutrality at all times. Unfortunately, there was no objection raised to the effect that the accused was Page 11 of 14 induced to make a statement to the police. The statements of the accused were admitted into evidence, and based on which counsel interrogated the prosecution witnesses on matters of fact. Having been admitted into evidence, the contents of the statement are opened for legal scrutiny by both the prosecution and the accused himself. The second leg of counsel’s argument on the voluntariness of the accused statement to the police was based on the fact that the witness to the statement of the accused was not an independent witness as he is a police officer (i.e., General Corporal Simon Adadey) and junior in ranking to the investigator. Contrary to the opinion of counsel, there is no rule of law that states that a police officer of the receiving police station cannot witness a confession statement given voluntarily to the police by an accused person. Once the officer who acted as the witness was not part of the investigation team and had no interest in the case, he qualifies to be a witness. In the case of Apor Amoakwah Frederick v The Republic, Criminal Appeal No. H2/27/2021, delivered on the 23rd day of March 2022, the question arose from the fact that one Inspector Gyamfi was an administrative officer at the police station where the investigation of the case was conducted and by virtue of his position, he was privy to all on-going investigations. The Court of Appeal had to decide whether Inspector Gyamfi who acted as the independent witness was indeed an independent witness within the meaning of section 120 of the Evidence Act. The Court of Appeal reasoned alongside the decision of Akamba JSC in the case of Ekow Russel v The Republic (2017-2020) 1 SCGLR 465, per Ofoe J.A, at page 8 of the judgment that; “…whether Inspector Gyamfi should be accepted as an independent witness or not to the confession statement of the appellant is very crucial to this appeal…Was he an independent witness as required under section 120 of the Evidence Act, NRCD 323?...”In order to attain the objective of providing adequate safeguards for a suspect under investigation, an independent witness as used in section 120 of NRCD 323 may include any person who qualifies to be a competent witness and has no direct personal interest in the case in issue. Such an independent person must be a person who is disinterested in the matter under investigation. At the official level, the independent witness person should not be directly under Page 12 of 14 the control of and influence of the person investigating the crime nor himself be part of the investigating team. In summary any person-be it a policeman, a soldier, a prison officer, of any other security investigating apparatus or a civilian who qualifies in terms of being disinterested in the matter under investigation, and is not under the direct control or influence of the person investigating the crime, or is not himself part of the investigating team and qualifies to be a competent witness may serve as an independent witness…”…We cannot deny knowledge of the environment within which the police investigators work, particularly in relation to getting independent witnesses where suspects are under investigations…” The Court of Appeal therefore accepted Inspector Gyamfi as an independent witness and dealt with his evidence as it is and attached the necessary wait to his evidence in accordance with its probative value. In our instant case the accused was never lured in giving his cautioned statement, neither did the witness to the accused cautioned statement did any wrong when the accused was giving his statement to the police. The mere fact that General Corporal Adadey is in the same station with the investigator of the instant case does not invalidate his candidateship as an independent witness. Counsel’s attempt to interrogate the statement given by the accused to the police upon his arrest in itself is an admission of the fact that there is the need for the accused to defend himself at both law and fact. As such, I find that sufficient evidence has been led by the prosecution in proof of their case to warrant the accused to open his defence. Accordingly, I hereby order the accused to open his defence. Let the accused person file his witness statement(s) within fourteen days from now, for us to reconvene for case management conference on the accused person’s witness statement(s). Page 13 of 14 H/H KWESI APPIATSE ABAIDOO (CIRCUIT COURT, ODUMASE KROBO) Page 14 of 14