REPUBLIC VBRS. AKUAKU AND ANOTHER (CR/0037/2023) [2024] GHAHC 269 (12 June 2024)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON WEDNESDAY THE 12TH DAY OF JUNE 2024 BEFORE HER LADYSHIP JUSTICE MARY M.E YANZUH, JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SUIT NO: CR/0037/2023 REPUBLIC VRS 1. BILLY AKUAKU 2. GABRIEL DORDUNO JUDGMENT The A1 and A2 were arraigned before this court on a charge sheet filed at the Registry of this court on the 27th of October 2022 wherein, they were charged with the following: A1 (BILLY AKUAKO) COUNTS (1), (2), (4) AND (6) COUNT ONE Being a member of a prohibited organization that is Western Togoland Restoration Front contrary to Section 2 (1) (i) of the Prohibited Organizations Act, 1976 (SMCD 20) COUNT TWO Being a member of a prohibited organization, Homeland Study Group Foundation contrary to Section 2 (1) (i) of the Prohibited Organizations Act, 1976 (SMCD 20) 1 COUNT FOUR Making contributions for the benefit of a prohibited organization Homeland Study Group Foundation contrary to Section 2(1) (g) of SMCD 20/76. COUNT SIX Accepting contributions for the benefit of a prohibited organization Homeland Study Group Foundation Jasikan Branch contrary to Section 2(1) (g) of SMCD 20/76. A2 was charged with the following offences in the following counts: COUNT THREE Being a member of a prohibited organization that is Western Togoland Restoration Front contrary to Section 2 (1) (i) of the Prohibited Organizations Act, 1976 (SMCD 20) COUNT FIVE Making contributions for the benefit of a prohibited organization Homeland Study Group Foundation contrary to Section 2(1) (g) of SMCD 20/76. PLEA OF THE ACCUSED PERSONS On the 23rd of November 2022, the A1 and A2 pleaded not guilty to all charges preferred against them after same had been read and interpreted in the English Language for the A1 and in the Ewe language for the A2. FACTS OF THE CASE 2 According to the prosecution, officers of the National Security Council based on intelligence gathered, embarked on an exercise to identify and arrest members of the Western Togoland Restoration Front who on 25th September 2022 blocked the road at Juapong and Sogakope and set fire to two STC vehicles. The prosecution states that in the course of investigations into the activities of this prohibited organization, the investigative team discovered a WhatsApp group platform with the name ‘SEC ADMIN’, a group created by high ranking members of the organization to discuss security related issues. The case of the prosecution continues that further investigations revealed some members of the platform to be security personnel including the accused persons herein. The accused persons were also found to be members of two other whatsapp platforms of Homeland Study Group Foundation, namely ‘Psalm 21’ and ‘HSGF.’ The first accused person was arrested on 7th March 2021 and taken to his residence at Adzogekope. His room was searched by the investigative team who discovered eight Western Togoland Restoration Front membership cards one of which bore his name, a notebook containing the financial records of members of the Jasikan branch of the Western Togoland Restoration Front. A list of executive members of the organization titled ‘Upper Lake province Executive Committee-Oti’ was also found in his room. The prosecution added that on the same day, the investigative team followed up with a search at the residence of the second accused person where they found a Western Togoland Restoration Front membership card, an exercise book named ‘Funeral Contribution’, one passport picture and a mobile phone. The station officer was asked to inform the second accused person to report to the Director of Intelligence Unit at the CID Headquarters. On 8th April, 2021, the second accused person reported himself at the CID Headquarters as instructed and he was arrested. 3 During interrogation, the first accused person admitted to being a member of the Homeland Study Group Foundation. The second accused person admitted ownership of the notebook found in his room but denied being the owner of the Western Togoland membership card. A perusal of the notebook found in the home of the first accused person titled ‘HSGF JAS BRANCH, monthly dues’ showed that he made two monthly contributions of GH¢10.00 in September and October to the Homeland Study Group Foundation. The first and second accused persons were also recorded in the said notebook as having contributed GH¢150.00 and GH¢100.00 respectively to the Homeland Study Group Foundation. After investigations, the accused persons were brought before Court for trial. BURDEN OF PROOF The Constitution 1992 Article 19 (2) (c) presumes everyone innocent until the contrary is proved. In other words, 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. See the case of Gligah & Anr. v The Republic [2010] SCGLR 870 The Accused person or persons need not prove his or their innocence, the only burden on the accused person(s) whenever the law requires that he makes his defence is to produce sufficient evidence so that on the totality of the evidence produced, a reasonable mind could have a reasonable doubt as to his guilt. 4 This is statutorily provided in Section 11(2) and 13(2) of the Evidence Act 1975 NRCD 323 to the effect that: “In a criminal action the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond reasonable doubt” Section 13(2) of NRCD 323 provides that “ Except as provided in Section 15(3), in a criminal action the burden of persuasion, when it is on the accused as to any fact the converse of which is essential to guilt requires only that the accused raises a reasonable doubt as to his guilt” In the case of Commissioner of Police vrs Isaac Antwi [1961] GLR 408 Korsah CJ stated that: “the fundamental principles underlying the rule of law are that the burden of proof remains throughout on the prosecution and the evidential burden shifts to the accused only if at the end of the case for the prosecution an explanation of circumstances peculiarly within the knowledge of the accused is called for. The accused is not required to prove anything; if he can merely raise a reasonable doubt as to his guilt, he must be acquitted” Similarly in the case of Isa vrs The Republic (2003-2005) 1 GLR 792 HOLDING (2) it was held that “Taken together, the burden of persuasion and the burden of producing evidence as defined in sections 10 and 11 of the Evidence Decree, 1975 (NRCD 323), respectively were the components of the burden of proof. Thus, although an accused person was not required to prove his innocence, during the course of the trial, he might run a risk of non-production of evidence or non-persuasion to the required degree of belief or both, particularly when he was called upon to mount a defence. In the instant case, although there was no burden on the appellant to show how the money got missing, he had a burden of producing evidence sufficient enough, on the totality 5 of the evidence, to raise in the trial judge’s mind a reasonable doubt as to his having appropriated the money.” In the case of Tsikata v The Republic [2003-2005] 1 GLR 296 at holding one, the court held that “…As provided in section 11(2) and (3) of the Evidence Decree, 1975 (NRCD 323) on the part of the prosecution, the burden of producing evidence required the production of sufficient evidence so that on all the evidence, a reasonable mind could find the existence of facts beyond reasonable doubt, whilst on the part of the accused person, the burden of producing evidence required him to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to his guilt”. It is against this background and standard that I proceed to examine the evidence led to ascertain whether the prosecution has been able to prove the guilt of the accused persons on the charges preferred against them beyond reasonable doubt. DETERMINATION OF THE CHARGES The accused persons have been charged with various offences under the Prohibited Organizations Act 1976 SMCD 20. To have a better appreciation of what type of organization the law seeks to prohibit and for clarity, I would reproduce Section 1 of SMCD 20. Section 1 (a) and (b) of SMCD 20/76 provides that: “The following organisations are hereby declared unlawful and prohibited, namely, (a) the organisation known variously as the Togoland Liberation Movement, “T.L.M.”, or “T.O.L.I.M.O.”, the National Liberation Movement of Western Togoland or “N.L.M.W.T.”, and (b) any other organisation, by whatever name it is called, whose objects include advocating and promoting the secession from the Republic of Ghana of the former British 6 mandated territory of Togoland or part of that territory or the integration of that territory with a foreign territory. The burden of the prosecution in this trial is to prove beyond reasonable doubt firstly that the organizations which they are contending is prohibited and of which the accused persons were members of, and made contributions for its benefits are prohibited under SMCD 20/76 the law under which the accused persons have been charged. This is particularly so when the organizations noted in the charge sheet are not one of the organizations mentioned in the law SMCD 20/76 and rightly contended by Counsel for the A2 in his written submissions filed on the 10th of June 2024. That being the case, then the prosecution must lead evidence that the Western Togoland Restoration Front (WTRF) and the Homeland Study Group Foundation (HSGF) are organizations whose objects include advocating and promoting the secession from the Republic of Ghana of the former British mandated territory of Togoland or part of that territory or the integration of that territory with a foreign territory. This is more so when the Constitution 1992 Article 21 (1) (e) guarantees the freedom of every Ghanaian to form or join any association national and international for the protection of their interests within the boundaries of the law. Thus an individual is not prevented from exercising his right to form or join an association of choice but the exercise of that right should not be for the teaching or propagation of a doctrine which exhibits or encourages disrespect for the nationhood of Ghana, the national symbols and emblems, or incites hatred against other members of the community. See 1992 Constitution Article 21 (1) (e) Thus in the case of Mensima and Others v Attorney-General and Others [1997-98] 1 GLR 159 at page 202 the court opined that the liberty to form or join any association of choice “is recognised provided the objects are not illegal or their promotion such as to involve crime or illegality” 7 According to the PW3 Detective Inspector Eugene Akpo Glover in his witness statement filed on the 15th of February 2023, the Western Togoland Restoration Front is a secessionist group whose activities led to the disturbances in some parts of Eastern and Volta Regions on the 25th and 29th of September 2020. He added that members of this group were identified as the perpetrators of riotous demonstrations and attacks on police personnel stationed at the Aveyime and Mepe Police stations on the 25th of September 2020. At paragraph five (5) of his witness statement, he indicated some members of the said group who had created a whatsApp group to discuss security related issues. Some of these members named were Michael Koku Kwabla Amertonu Gohey @ Togbe Yesu, Nene Kwaku Agblorm 11 @ Josiah Tawiah Agblorm, Lance Corporal Abednego Dzreke Mawuena a police officer and WO1 Emmanuel Hayford Afedo. I have taken judicial notice of the fact that these named individuals were the accused persons in the case of REPUBLIC VRS MICHAEL KOKU KWABLA AMERTONU GOHEY AND ORS, SUIT NO: CR/0616/2021 which this court delivered judgment on the 5th day of March 2024. Judicial notice “is a court’s acceptance, for purposes of convenience and without requiring a party’s proof of a well known and indisputable fact, and the court’s power to accept such a fact.” Reference Blacks Law Dictionary, Ninth Edition, page 923. This is statutorily provided for in Section 9(2) of the Evidence Act 1975 NRCD 323 which provides that: “(2) Judicial notice can be taken only of facts which are (a) so generally known within the territorial jurisdiction of the Court, or (b) so capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, that the facts are not subject to reasonable dispute.” In the judgment of this court in the above-mentioned case, I found upon considering all the evidence led that the Western Togoland Restoration Front and Homeland Study Group Foundation were prohibited organizations under the law. 8 In this trial, these are the two organizations that the accused persons are said to be members of and as such PW3 described the groups as secessionist groups and as such prohibited under the law. Further to that, the fact that these groups are prohibited organizations was admitted by the A1 at paragraph five (5) of his witness statement which he relied on as his evidence in chief when he stated that the WTRF and HSGF are prohibited Organizations. A2 also admitted to the two said groups being prohibited organizations and as such vehemently denied being a member of the said groups. During cross examination of the A2 by the prosecution, this is what transpired: Q: you are aware that WTRF is a prohibited organization? A: Yes I am aware that it is a prohibited organization. Q: And you are also aware that HSGF is a prohibited organization? A: Yes my lady I therefore find it proved that the HSGF and WTRF are prohibited organizations under the law. A1 COUNTS ONE (1) AND (2) A1 was charged with the offence of being a member of a prohibited organization that is WTRF and HSGF contrary to Section 2 (1) (i) of SMCD 20/76 respectively. Section 2(1)(i) of SMCD 20 provides that: (1) On and after the commencement of this Act, it is an offence for a person, in relation to an organisation referred to in section 1 (i) to be a member of that organisation. 9 The evidence of the prosecution came from the prosecution witnesses both oral and documentary. According to the PW1 Chief Inspector William Kwateku Agrah the Station Officer and a Prosecutor at the Jasikan Police Station where the A1 is stationed, on the 7th of April 2021 at about 2pm, a group of police officers arrived at the Jasikan Police Station on enquiries and stated that they had been tasked by the Director General Criminal Investigation Department Accra to investigate the activities of the HSGF nationwide. He said that the team arrested A1 with the reason that he is suspected to be a member of the HSGF in Jasikan. His evidence continued that he accompanied the team together with the A1 to A1’s residence at Okadjakrom near Jasikan and during a search in A1’s room; they found eight (8) WTRF membership cards Jasikan Branch and card number 002 bore the name Billy Akuaku. Three cards were without any name but with identifiable card numbers while five had names on it. He said that they also found a teacher’s notebook with the inscription HSGF Jasikan Branch monthly dues but the contents were not disclosed to him. PW3 Detective Inspector Eugene Glover who testified that he was a member of the investigative team formed by the Director General, CID to look into the activities of these secessionist groups testified per his witness statement that the phone number of the A1 was found on the whatsApp group platform of selected members of the WTRF who dealt with the group’s security related issues. He also confirmed that eight (8) Western Togoland membership cards were found in the room of the A1 with one of the cards bearing his name. The cards were admitted into evidence as exhibit A series. He also confirmed that a notebook titled HSGF Branch Monthly Dues was found in the room of the A1. The notebook was admitted into evidence as exhibit B. In exhibit B, A1 made a payment of GHC10,00 in the month of September and it was headed “September Dues”. In the month of October he made a payment of GHC10.00 and it 10 was headed “OCTOBER DUES”. In the same notebook, he had made a contribution of GHC150.00 for “Zida Kope”. His evidence continued that a sheet of paper with the heading “Western Togoland Upper Lake Province Executive Committee-Oti” containing seventeen (17) persons, their positions in the group and their phone numbers was also found in the room of A1. This sheet of paper was admitted into evidence as exhibit C. At number seven (7) is the A1 who is listed as financial secretary. He also added that the A1 was found to be a member of a WhatsApp platform of HSGF called “Amenuveve” meaning “our helper”. The picture of the whatsApp page was admitted into evidence as exhibit D. PW3 further tendered into evidence the caution statement of the A1 taken on the 19th of April 2021 and same was admitted into evidence as exhibit G1. In that statement, he stated that “All the items that were retrieved from my room on the day of my arrest were given to me by one Prosper Walter of Jasikan somewhere in a year and half ago. He gave them to me for safe keeping. In as much as one of the memberships cards has my name on it, I do not know anything about it. It was Prosper Walter who appointed me as Financial Secretary to Western Togoland Upper lake Province Executive Committee but I never performed any task. Within that same period, Prosper linked me to about four or five whatsapp groups of Western Togoland. I agreed to join Homeland Study Group Foundation (HSGF) because Prosper made me to believe that it was about educating everyone about Volta region. I never contributed on their whatsapp platforms despite I open and read their messages sometimes. Sometime ago, I mistakenly sent Police Sitrep and Intelligence report on the operations of Western Togoland to Prosper different days but I did nothing about it when I realized that those messages had gotten to a wrong receiver. I know suspect Gabriel Dorduno. He is my Depot mate and both of us are stationed at Jasikan” 11 For the prosecution to prove that the A1 is a member of the WTRF and HSGF which I have found to be prohibited organizations within the purview of the law as provided supra, they need to provide some documentary and oral evidence of proof of membership. For instance some direct evidence as to the official list of membership of the said two prohibited organizations, some form of participating in the activities of the said group, attending meetings among others. In this trial, the prosecution has not presented such direct evidence of the accused persons attending meetings and the other acts outlined supra. However it is trite that in law, it is not only direct or eye witness evidence that can be used to prove a fact in issue. Thus, the mere absence of a direct or eyewitness evidence is not decisive. Where direct evidence is not available, the court resorts to circumstantial evidence. In the case of The State v Anani Fiadzo [1961] GLR 416 S.C. the court opined that “The primary burden on the prosecutor to prove the guilt of the accused beyond reasonable doubt may not always be discharged by the provision of direct evidence. As stated in section 18(2) of the Evidence Decree 1975 (N.R.C.D 323), Circumstantial evidence including the acts of the accused may point to one and only one inference which may be sufficient proof.” The law requires that, the said circumstantial evidence introduced by the prosecution should lead to the irresistible conclusion that, the accused person has committed the offence alleged. Thus, for circumstantial evidence to support a conviction it must be inconsistent with the innocence of the accused, and must lead to the irresistible conclusion not only that the crime charged has been committed. Justice Brobbey in his book Essentials of the Ghana Law of Evidence at page 253 noted that: “Circumstantial evidence is the fact from which may be inferred, presumed or deduced, the existence, non existence or proof of another fact. Circumstantial evidence is not proof of the fact 12 itself. It is the pieces or incidents of facts, considered or put together, which provides the basis for drawing conclusion, inference or deduction of the existence or non existence of a fact.” In the case of Duah v The Republic [1987-88] 1 GLR 343, CA in holding 3 the court held that “in criminal cases it was sometimes not possible to prove the crime charged by direct or positive evidence of persons present at the time the crime was committed. So where the testimony of eyewitnesses was not available, the jury was entitled and indeed permitted to infer from those facts which the prosecution had proved other facts necessary either to complete the elements of guilt or establish innocence.” The Supreme Court in the case of Logan v The Republic [2007-2008] Aninakwa JSC re- echoed the law on circumstantial evidence when he said: “… for circumstantial evidence to support a conviction it must be inconsistent with innocence of the accused. It must lead to irresistible conclusion not only that the crime had been committed but it was in fact committed by the persons charged in order to arrive at a definite conclusion. Conviction based on circumstantial evidence which is not supported by facts is wrongful.” In this instant, the prosecution has presented a WTRF membership card with the name Billy Akuaku on it with the cards of other members in his room. His name is also on the executive list of the group WTRF. The evidence is also that he has been making contributions to the group and even receives contributions on behalf of the group HSGF. The evidence of the prosecution is also that he was found sending police Sitrep reports on the activities of the prohibited organizations to one Prosper Walter who is said to be a member of the prohibited group. With these evidence on record then the A1 who at the beginning of the trial stood shielded by the presumption of innocence as his guilty plea put every fact of the charge 13 in issue, now has that presumption of innocence he possessed displaced prima facie as a strong presumption of guilt has been raised against him. The law therefore requires him to lead some form of evidence to displace that presumption of guilt. Even though the law places no burden on the accused person, in situations such as this present one where such evidence has been led against the A1, the evidential burden shifts to him to lead some form of evidence to merely raise a reasonable doubt in the case of the prosecution as stated by Korsah CJ in the case of Commissioner of Police vrs Isaac Antwi supra that “…the evidential burden shifts to the accused only if at the end of the case for the prosecution an explanation of circumstances peculiarly within the knowledge of the accused is called for. The accused is not required to prove anything; if he can merely raise a reasonable doubt as to his guilt, he must be acquitted” A1 as such opened his defence and testified per his witness statement. At paragraphs six, seven and eight (6, 7 and 8) of his witness statement he stated that: “6: I say that it is not true that when my room was searched, I personally had anything to do with the WTRF 7: I further say that the card with the name Torgbey Ablada which was found with the WTRF inscription on it when my room was searched, does not belong to me and I know nothing about it. I strongly believe this card was planted in my room by those officers who searched the room because that card has never been part of any documentation about me. 8: I testify that at no point in time did I post any Police information or intelligence to any individual or WTRF whatsapp group. I do not know anything about this case. This is just to tarnish my image as a Professional Police Officer who have a mandate to protect the people and interest of Ghana and nothing else” 14 I have assessed the defence of the A1 and I am unable to accept same and I am also unable to find it to be true and same is also not reasonably probable. A1 is clearly an untruthful witness. That is because his evidence on oath is in complete contradiction to the statement he gave to the police on the 19th of April 2021 Exhibit G1 in the presence of an independent witness and his two lawyers. The material portion of the said statement has been produced supra. In that statement, he admitted to all the items found in his room as well as the fact that he was sending sensitive police information to a member of the prohibited organization. In the case of Gyabaah v The Republic [1984- 86] 2 GLR 461, it was held that an accused person whose evidence is contradictory to any previous statement given, the court will not give any weight to his statement unless a reasonable explanation is given. He has not given any reasonable explanation as to the contradictory statements. The result is that he is being untruthful to the court. Also in his caution statement, he admitted to the fact that a card bearing his name was found in his room. Even though a card bearing the name of Torgbey Ablada was found in his room, there was a card bearing his name in his room and nowhere in his caution statement did he raise the issue of the police planting the said cards in the room particularly when the search was conducted in his presence. In his caution statement, he has stated that it was one Prosper Walter who gave him the said cards and the other items found in his room. He failed to produce this said Prosper Walter and failed to lead any evidence to support this assertion. Per section 14 of the Evidence Act, 1975, Act 323 it is provided that, “except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting”. It is the view of this court from the evidence led that the A1 was a member of the WTRF and HSGF prohibited organisations within the period 2018 and 2020. His evidence that when he was joined to the platform, he exited and was rejoined to the group several 15 times but he exited and later did not exit again raises no reasonable doubt in the case of the prosecution. He remained on the said platform because he was a member and was in approval of the aims and objectives of the group. I therefore find that the prosecution has been able to prove that the A1 is a member of WTRF and HSGF prohibited organisations. A1 COUNTS FOUR (4) AND SIX (6) Section 2(1)(g) of SMCD 20 provides that: (1) On and after the commencement of this Act, it is an offence for a person, in relation to an organisation referred to in section 1 (g) to grant a loan to, or make a contribution to, the funds held or to be held by, or for the benefit of, the organisation or accept a loan or contribution; A1 was also charged with the accepting contributions for the benefit of a prohibited organization, making contributions for the benefit of a prohibited organization contrary to Section 2(1) (g) of SMCD 20 1976. PW3 testified that the A1 was found to have made payments of GHC10 monthly to the HSGF for the month of September and October. This was found in the notebook exhibit B. In the same notebook, he had made a contribution of GHC150.00 for “Zida Kope”. The writing on the notebook HSGF JAS BRANCH MONTHLY DUES also proves that he was collecting monthly dues on behalf of the group. In fact in exhibit D the sheet showing the list of the executives, his role as a financial secretary is shown. The evidence on record therefore supports the assertion of the prosecution that the A1 between 2018 and 2020, accepted contributions for the benefit of the organization and made contributions for the benefit of the organization. 16 I therefore find that the prosecution has been able to prove the guilt of the A1 on counts 4 and 6 and I find him guilty on same and convict him on same accordingly. A2 COUNT THREE (3) BEING A MEMBER OF WTRF The evidence of the prosecution on A2 being a member of the WTRF came from PW2 and PW3. According to the PW2 Detective Corporal Charles Tetteh Korblah Doe, when the room of A2 was searched, a booklet with the inscription Western Togoland Membership Card with code 008 was found. This was admitted into evidence as exhibit E. The case of the A2 is that this piece of evidence is not sufficient enough to prove that he is a member of the said WTRF. His evidence is that “it is interesting how a card without any name, found during my absence could be said to be evidence of my membership of Western Togoland. There is no evidence from my phone that I belong to the said group either”. In his caution statement exhibit H taken on the 19th of April 2021, when he was confronted with the said membership card, this is what he said “ I do not know anything about the card but I also want to state that we have been doing motor checks and cannot state how the card entered my room, we do take licence and other things from the drivers but cannot state whether I took such card” From his evidence on oath and his caution statement exhibit H, clearly A2 accepts that the card with the identifying code “008” without the name was found in his room during his absence. He has also not indicated that he shares the room with another occupant and as such that person could have been the owner of the said card. His only concern is how the said card could be evidence of his membership especially since it does not bear his name. In the same way that in the case of Kru v Saoud Bros and Sons [1975] 1 GLR 46 holding 1 it was stated that witnesses are weighed and not counted since judicial decisions depended upon intelligence and credit and not the multiplicity of witnesses 17 produced at the trial, a single piece of evidence introduced at the trial once credible and cogent could decide a case in one way or the other. In this case, the membership card card bore a unique code which is “008”. On the cards exhibit A series which are WTRF membership cards found in the room of the A1 who is his friend, police depot mate and a colleague service driver at the same police station, each card bore a specific code for each member person. No two cards bore the same code. While some of the cards bore names, all of the cards had a unique identifying number ostensibly for each member. As already stated supra, possession of the membership card of a group is prima facie evidence that the holder is a member of the said group. In this case even though no burden is on the accused to prove his innocence if the A2 fails to explain or lead some form of evidence to show that even though the said card was found in his room, he is not a member of the said group this court would be right in holding that the said membership card is evidence of his membership of the prohibited organization. It is trite that in a criminal case, except in the instance of insanity, and matters expressly thrown on the accused by statute, there is in general no presumption against an accused person, and an accused person is not bound to give evidence. It is wrong therefore to presume the guilt of an accused merely from the facts proved by the prosecution. The case for the prosecution only provides prima facie evidence from which the guilt of the accused may be presumed, and which, therefore, calls for explanation by the accused. See the case of State vrs Sowah & Anor [1961] GLR 743 Presumptions of guilt’ and ‘prima facie’ cases of guilt in the trial of a party charged with crime mean no more than that from the proof of certain facts the jury will be warranted in convicting the accused of the offence with which he is charged. See the case of Woolmington v. D.P.P. [1935] A.C. 462 His explanation to the police in his caution statement that same must have come into his room during his taking of licence and other things from motor drivers in the course of 18 his work is preposterous and a complete afterthought as a police officer after having taken exhibits in the course of his work would not deposit same in his room. As rightly submitted by the learned State Attorney in her written address filed on the 10th June 2024 “Typically, any items seized from civilians by the police, such as driver's licenses, should be placed in the police station and not the home of the police officer. Therefore, why was this item found in the 2nd accused's home? This was simply a bogus explanation.” I am more convinced that the A2 is a member of the group WTRF just as the A1 who is his friend and colleague and just as his friend A1, he was on the platform of the HSGF another prohibited organization but quickly exited the group when the A1 was arrested. Further to that, his name Dordunu appeared in the notebook of the A1 as having contributed to the group HSGF. This is a fact I would discuss in determining count five. It is therefore the view of this court that the A2 is a member of the WTRF. A2 COUNT FIVE (5) MAKING CONTRIBUTION FOR THE BENEFIT OF A PROHIBITED ORGANISATION The A2 was also found to have made contributions to the prohibited group as his name Dordonu was found in the notebook which was found in the room of A1. This is a fact that the A2 has vehemently denied and asserted that the A1 usually refers to him as Gabriel Dordonu and as such if he was the one the A1 was referring to as having made payments, A1 would have used his full name. This is a defence that the A2 has presented and therefore bears the burden to lead evidence to prove that defence. There is no evidence led in favour of this practice of A1 calling him by his full name. In fact the practice of A1 is to refer to him as Dorduno as was seen on his phone when the A2 exited the “Amenuveve” whatsapp page. As rightly submitted by the learned state Attorney, and a fact which I take judicial notice of 19 “Moreover, on a WhatsApp page, a person’s name appears on the owner’s phone as it has been saved by the owner. It is our submission that the 1st accused person saved the 2nd accused's name on his phone as Dordunu and not Gabriel, which is why that name appeared on the phone.” A1’s assertion that the name Dorduno in the note book found in his room is not the A2 is an untrue statement made in a desperate attempt to save the A2. A1 has proved to be an untruthful witness. Be that as it may, the denial did not even extend to the name Dorduno which he had saved on his phone. It is the therefore the view of this court that the evidence having shown the A2 being on the platform of the HSGF which he exited immediately the A1 was arrested, and his name appearing in the book of the A1 as having paid donation of GHC150 leads this court to the irresistible conclusion that the A2 is a member of the prohibited organization HSGF and therefore made contributions to the said group. I therefore find that the prosecution has been able to prove the guilt of the A2 on count five (5) and I find him guilty of same. The results of the forgoing is that the prosecution has been able to prove the guilt of the A1 and A2 on all the offences charged against them. Upon conducting a pre sentence hearing they are sentenced as follows: A1 (BILLY AKUAKO) ON COUNTS ONE (1), TWO (2) FOUR (4) AND SIX (6) that is the offence of being a member of WTRF and HSGF, making contributions for the benefit of a prohibited organization and accepting contributions for the benefit of a prohibited organization contrary to Section 2 (1) (i) and (g) SMCD 20/76 the A1 is sentenced to (5) years IHL and is also to pay a fine of five hundred (500) penalty units in default five (5) months imprisonment. Sentences will run concurrently. 20 A2 (GABRIEL DORDONU) ON COUNTS THREE (3) and five (5) the offence of being a member of a prohibited organization, making contributions for the benefit of a prohibited organization contrary to Section 2(1)(i) and (g) of SMCD 20 1976. A2 is sentenced to four (4) years IHL and is also to pay a fine of three hundred (300) penalty units in default five (5) months imprisonment on both counts three (3) and five (5). Sentences to run concurrently. MARY M.E YANZUH J. HIGH COURT JUDGE PARTIES: 1ST AND 2ND ACCUSED PERSONS PRESENT COUNSEL: CHRISTABEL SELMA ANAFURE (ASA) THE REPUBLIC PRESENT ANDREAS FIADORME FOR THE A1 PRESENT BENJAMIN ZIGORSH NYAKPENU FOR THE A2 PRESENT 21 22