Republic Vrs. Mawusi (F16/18/2024) [2024] GHAHC 319 (24 May 2024)

INTHESUPERIOR COURT OF JUDICATURE INTHEHIGH COURT OF JUSTICE HELDATHOHOE ONFRIDAY THE 24TH DAY OF MAY2024BEFORE HERLADYSHIP JUSTICE JOANEYIKING, HIGH COURT JUDGE SUITNO. F16/18/2024 THEREPUBLIC - RESPONDENT VRS TETTEHMAWUSI - APPLICANT (ALIASJOY MAWUSI) RU L IN G -BAIL PENDINGTRIAL This is an application for and on behalf of the applicant praying for an order for grantofbailpending trial. I shall quote therelevant paragraphsas follows: 2. That I am the Chairman of the Alavanyo Citizens Union which is a group of all Alavanyo indigenes, families and people who are living in and outside Alavanyo and its environs, where issues of development and welfare of all members are discussed and implemented. 4. That I have the authority and consent of the accused applicant to depose to these facts which are within my personal knowledge, information and belief which have come to my attention in the course of my duties as the Chairman of the Alavanyo Citizens Union. 1 6. That the accused applicant is known to me and the accused applicant vehemently deny the charges or offences slopped on him thus, Murder contrary to section 46 of the Criminal and other offences Act, 1960 (Act 29) and Use of Off ensive Weapon contrarytoSection 70ofAct29. 7. That the accused applicant will contend that at the time of the purported murder of one Brempong Yaw Daniel at Nkonya Kpodzi, accused applicant was not around thesaid Nkoyna Kpodziand itsenvirons. 8. That the accused applicant is a responsible citizen of Ghana, a native of Alavanyo Wudidi and a Trader who also doubles as the Projects Foreman for Amenyo ConstructionLimited, aconstructionfirmbased inHohoe. 9. That the accused applicant have not murdered any person or for that matter Brempong Yaw Daniel as it is being alleged and the prosecution has no evidence to show that the accused applicant and other persons now at large murdered the deceased. 10. That the accused applicant was not at large as being purported by prosecution but was going about his duties as a construction site Foreman and a Trader in the Volta Region before his arrest. Attached is the charge sheet of the REPUBIC VRS AFELI & 5 OTHERS indicating persons alleged to have been at large in relation to theinstant murdercase and marked asExhibit TM1. 11. That the accused applicant was arrested at a public place, that is the total Filing Station at Kpando at about 1 p.m. in broadday light, while he was buying fuel at the said filing station and not at a hide out at Gbefi near Kpando as being alleged by prosecution. 12. That the accused applicant was arrested on the 22nd day of March 2024 and arraigned before the Jasikan District Court in the Oti Region on the 26th March 2024 charged with the offence of Murder contrary to section 46 of Act 29 and Use of Offensive Weapon contrary tosection 70 of Act 29 and remanded into police custody 2 to reappear without his plea being taken with the reason that prosecution needed time to continue investigations. Attached and marked Exhibit TM2 is the court proceedingsofthe Jasikan District Court. 13. That I am advised and believe same to be true that the police and the prosecution are acting on mere suspicion, the already existing mistrust and tension between the people of Alavanyo and Nkonya as the basis for the arrest and prosecution of the applicant. 14. That I am further advised and believe same to be true that it is a cardinal principle of law that multitude of mere suspicions does not constitute evidence and proof to suggest or come to the conclusion that the applicant indeed carried out such aheinouscrime. 15. That I am advised and believe same to be true that the offence that applicant has been charged with is bailable under our law and there is also no time frame for investigations to be completed. Thus, applicant cannot be kept in custody under the pretext of investigation and to punish the applicant when he is presumed to be innocent untilprovenguilty. 16. That I am further advised and believe same to be true that the most important factor in determining bail as enshrined in our laws is the guarantee that the accused will appear to stand trial. This principle of law has been explained to me by counsel and I am giving assurance that the applicant will be produced to appear in court anytime theHonourable Courtcommands and that the applicant is notaflight risk. I wish to state that although there is proof of service of the instant application on the Attorney General/Respondent, there was no response whatsoever from the Attorney General/Respondent. SUMMARY OF SUBMISSIONBY COUNSEL FORTHE APPLICANT 3 In his submission, counsel for the applicant rehashed the averments in the affidavit in support. Counsel added that the reasons or facts as attached and narrated by prosecution is that the applicant and one Joshua alias Dompey are suspected to have murdered one BrempongYao Daniel which chargehas been denied by the applicant. They said the applicant was at large since this happened in 2022 but same is nottrue. That per Exhibit TM1, some eight persons were charged in 2022and takento Kadjebi District Court for the offence of murdering the same Brempong Daniel Yao. That there is nowhere the applicant’s name appeared on the charge sheet and the facts. That it surprising that the Attorney General would advise that the applicant be put before the court and that this is based on mere suspicion because the earlier case where thepeople were rounded up,theapplicant’s name neverfeaturesin any ofthe investigations. That it is only after two years that they are saying they suspect the applicant. Counsel referred the court to the case of STATE v OTCHERE [1963] GLR 463whichheld that multitude ofsuspicions will neverripe to concreteevidence. Counsel also referred the court to Article 19 of the 1992 Constitution which states that every person is innocent until proven guilty by a competent court and argued that the applicant is innocent. Counsel again referred the court to Section96(5) of Act 30which guides the court on bail and argued that if the accused has shown faith that he will stand trial, the court should exercise the judicial favour by granting him bail. That the applicant has afamily at AlavanyoWudidiwho arereadytostand assurety. Counsel again referred the court to the case of REPUBLIC MARTIN KPEBU (No.3) which has made it clear that all offences are bailable, and submitted that in spite of the fact that the charge of murder is known to be a grave offence, same is based on suspicions. Counsel further argued that per the MARTIN KPEBU case (supra), Benin JSC expressed his wisdom as to time frame for investigations and that the court stated that there is no time limit for investigation and that saying that the matter is under investigation should be a thing of the past. Counsel submitted that 4 the applicant is fully aware of the case and would be ready to prove his case that he isnot amurdererand prayedthatthe application is granted. EVALUATIONANDANALYSIS Before I proceed with the analysis and evaluation of the submission before me, I wish to state that per the records, the instant application was filed on 9/4/24 and served on the Attorney General/Respondent on 9th day of April 2024 with the return date of 15th April 2024. On 15th April 2024 when the matter came up for hearing, again, counsel for the respondent failed to attend court and also failed to respond to the instant application. The court therefore had no option than to proceed to hear counsel for the applicant without any input from the respondent, the Attorney General. In REPUBLIC v AUTOMATED FAST TRACK HIGH COURT NO. 4 (ACCRA); EX PARTESTATE HOUSING CO. LTD. [2009] GHASC 6(delivered 26February2009) the Supreme Court held that a party who disables himself from being heard cannot laterturnaroundand accuse theadjudicator ofbreaching the rulesofnaturaljustice. Also in the case of REPUBLIC v. COURT OF APPEAL, ACCRA; EX PARTE EAST DADEKOTOPON DEVELOPMENT TRUST (Civil Motion No. J5/39/2015 dated 30thJuly 2015) the Supreme Courtstatedthat: “There could not be a breach of the rules of audi alteram partem rule, when it is clear from the facts that sufficient opportunity was given to a party and was abused by him……….” The Court will therefore proceed to determine the instant application as per the submissions made by counsel for the applicant as the respondent has failed or refused to respond to the submissions made by counsel for the applicant, an indicationthat theyarenot interested in the application. 5 Moving forward, this is an application for bail pending trial by the applicant. The charge is Murder contrary to Section 46 of Act 29/60 and Use of Offensive Weapon contrarytoSection 70ofAct29. It is trite that the granting of bail is at the discretion of the Court. In the case of REPUBLICv REGISTRAR OF HIGH COURT; EX PARTE ATTORNEY GENERAL [1982-83] GLR 407, Charles Crabbe JSC (sitting as a single Judge of the Supreme Court) also stated as follows: “The grant of bail was an exercise of a discretionary power and the main consideration was the likelihood of the person concerned failing to appear for further proceedings.” It is the law as provided by Article 19(2) of the 1992 Constitution that an accused is presumed innocent until his guilt is proved beyond reasonable doubt or the person haspleaded guilty. Per Article 14(4) of the 1992 Constitution, bail should be granted if the person arrested or detained is not tried within a reasonable time. Thus, the duty to grant bail arising in such situations remains applicable irrespective of the circumstances surrounding the nature of the offence. Article 14(4) of the 1992 Constitution provides asfollows: “Where a person arrested, restricted or detained under paragraph (a) or (b) of clause (3) of the Article is not tried within a reasonable time, then without prejudice to any other proceedings may be brought against him, he shall be released whether unconditionally or upon reasonable conditions including in particular, conditions reasonably necessary to ensure that he appears at a later date fortrial or for proceedingspreliminary to trial.” Article 14(4) of the Constitution dealt with the question of bail in a specific situation where the person arrested or detained was not tried within a reasonable time. The duty to grant bail arising in such situations remains applicable irrespective of the natureofthe offence. 6 Counsel for the applicant submitted that the applicant was arrested on the 22nd day of March 2024 and arraigned before the Jasikan District Court in the Oti Region on the 26th March 2024 charged with the offence of Murder contrary to section 46 of Act 29 and Use of Offensive Weapon contrary to section 70 of Act 29 and remanded into police custody to reappear without his plea being taken with the reason that prosecutionneeded time tocontinue investigations. And so in theinstant application, it is notthe case that the applicant hasbeen unduly keptin custodywithout being broughtbefore the Courtto stand trial. Before the ruling in the case of MARTIN KPEBU (N0.2) v. ATTORNEY GENERAL [2015-2016] 1 SCGLR 171 which struck out Section 96(7) of the CRIMINAL AND OTHER OFFENCES PROCEDURE ACT, 1960, Act 30 as unconstitutional, some offences which included Murder were designated as non-bailable offences. The Supreme Court’s declaration on the grant of bail in Ghana, has therefore taken precedence over the section 96(7) of Act 30. The decision declaring the law banning the granting of bail to murder and other first degree felony offences as unconstitutional, that the grant or otherwise of a bail is at the discretion of the court. To the extent of the inconsistency, the Constitutional provision of Article 14(3) (4) of the 1992 Constitution prevailed. If a person is on a first degree felony charges, he could nowapply for bail. The Supreme Court after having struck out section 96(7) of Act 30 as unconstitutional and that all offences are bailable, section 96 is left with six sub- sectionsand thoseprovisions regulate considerationofbail in the jurisdiction. Section96(6) ofAct30statesas follows: “(6) In considering whether it is likely that the defendant may not appear to stand trial the courtshall take into account: a.Thenature of the accusation. 7 b. The nature ofthe evidence in supportof the accusation. c. The severity ofthe punishmentwhich conviction will entail. d. Whether the defendant, having been released on bail on a previous occasion has wilfully failed to comply with the conditions of the recognizance entered into by the defendanton that occasion. e. Whether or not the defendant has a fixed place of abode in the Republic, and is gainfully employed. f. Whether the sureties are independent, of good character and of sufficient means.” It is trite knowledge that the court has discretion to grant bail to a person brought before it. In doing so, the court considers the offence and the circumstance of the case. The courtshall howeverrefuse togrant bailifit is satisfied that the accused: - Maynotappear tostand trial; or - Mayinterferewithawitness; or - Interferewith theevidence ;or - Hamper police investigations; or - Maycommit further offence when onbail; or - Is charged with an offence punishable by imprisonment exceeding six months which is alleged to have been committed during the time the accused was on bail. In his book CRIMINAL PLEADING, EVIDENCE AND PRACTICE IN CRIMINAL CASES (36th ed.) pp 71-72, s. 203. Archbold stated as follows: “The proper test of whether bail should be granted or refused is whether it is probable that the defendant will appear to take his trial……… The test should be applied byreference to the following consideration: 1. Thenature of the accusation; 8 2. Thenature of the evidence in supportof the accusation; 3. Theseverity ofthe punishment which conviction will entail; 4. Whether the sureties are independent or indemnified by the accused person.” In the case of MARTIN KPEBU v. ATTORNEY GENERAL (supra), Dotse JSC in his concurring opinionstated as follows: “It would thus appear that, despite the striking down of section 96(7) of Act 30, which forbids the grant of bail in the specific offences mentioned, a court having jurisdiction to try an offence, may for good reason refuse to grant bail to an accused even in a so called bailable offence if the facts of the case show clearly that the accused, because of his antecedents, is not likely to appear and stand trial if granted bail. The decision of my brother Benin JSC, in which I concur is not a carte blanche for the courts to admit every Tom, Dick and Harry to bail pending trial because of the removal of the statutory shackles in the impugned section 96(7) of Act 30. I believe the courts having jurisdiction in the offences stated therein, have an unfettered discretion to grant bail using the time honoured principle and traditions that have guided the courts and also as provided in section 96(4) and (5) ofAct 30,already referredto supra.” Inhis concluding part DotseJSC, stated asfollows: “Fact of the matter is that, there is no automatic right to the enjoyment of bail by anaccused before the courts. Everycase must be dealt with on a case by case basis. As already stated by me, the primary duty of a court is to ensure that an accused when granted bail will appear and stand for his trial. Bail should not be used as a punishment to deny the grant of bail. Whenever there are grounds which indicate that an accused may not appear to stand trial due to his antecedents or facts of the case, the court should decline bail to such an accused person. Since my decision is that, there is now no law prohibiting courts from the grant of bail, in the non- 9 bailable offences, reference should be made to sections 96(4)(5) and (6) of Act 30 and present day realities ………..whenever bail applications are considered by the courtshaving jurisdiction in those offences.” In his submission, counsel for the applicant argued that at the time of the purported murder of one Brempong Yaw Daniel at Nkonya Kpodzi, the applicant was not around the said Nkonya Kpodzi and its environs. That the applicant is a responsible citizen of Ghana, a native of Alavanyo Wudidi and a Trader who also doubles as the Projects Foreman for Amenyo Construction Limited, a construction firm based in Hohoe. Counsel further argued that the applicant was not at large as being purported by prosecution but was going about his duties as a construction site Foreman and a Trader in the Volta Region before his arrest and that per Exhibit TM1, the attached charge sheet of the REPUBIC vrs AFELI & 5 OTHERS, indicating persons alleged to have been at large in relation to the instant murder case, the applicant was not named as one of those at large and that the applicant was arrested at a public place, that is the total Filing Station at Kpando at about 1 p.m. in broad day light, while he was buying fuel at the said filing station and not at a hide out at Gbefi nearKpando asbeing alleged by prosecution. The law is settled that the provision of a reasonable time comes into play the moment the accused person is restricted by the police or the Trial Court. It means that in calculating the unreasonable time, the Court takes into consideration the time of arrest and detention or restriction and not when the person was brought to Court forhis plea tobe takenorforthe charge tobe readto him. As stated earlier, in the instant application, unreasonable delay in prosecuting this case is not an issue. Which means the situation falls outside Article 14(4) of the 1992 Constitution. On the other hand, if the situation falls outside Article 14(4) of the 1992 Constitution, in granting bail, the Court takes into consideration the nature of the accusation and 10 the severity of the punishment remain valid and useful where the offences are serious and grave. In the instant application, the situation falls under Section 96(6) of Act 30 to consider whether it is likely that the applicant may not appear to stand trial, the nature of the accusation, the natureofthe evidence in supportofthe accusation, the severity ofthe punishment which conviction will entail, whether the applicant having been released on bail on a previous occasion has wilfully failed to comply with the conditions of the recognizance entered into by the applicant on that occasion, whether or not the applicant has a fixed place of abode in the Republic, and is gainfully employed and whether the sureties are independent, ofgood character and ofsufficient means. The applicant averred that he vehemently denies the charges or offences slapped on him thus, Murder contrary to section 46 of the Criminal and other offences Act, 1960 (Act 29) and Use of Offensive Weapon contrary to Section 70 of Act 29. That at the time of the purported murder of one Brempong Yaw Daniel at Nkonya Kpodzi, applicant was not around the said Nkonya Kpodzi and its environs. That applicant is a responsible citizen of Ghana, a native of Alavanyo Wudidi and a Trader who also doubles as the Projects Foreman for Amenyo Construction Limited, a construction firm based in Hohoe. That the applicant was not at large as being purported by prosecution but was going about his duties as a construction site Foreman and a Trader in the Volta Region before his arrest and that per Exhibit TM1, the attached charge sheet of the REPUBIC vrs AFELI & 5 OTHERS, indicating persons alleged to have been at large in relation to the instant murder case, the applicant was not named as one of those at large and that the applicant was arrested at a public place, that is the total Filing Station at Kpando at about 1 p.m. in broad day light, while he was buying fuel at the said filing station and not at a hide out at Gbefi near Kpando as being alleged by prosecution. That the applicant was arrested at a public place, that is the total Filing Station at Kpando at about 1 p.m. in broad 11 day light, while he was buying fuel at the said filing station and not at a hide out at Gbefi near Kpando as being alleged by prosecution.The deponent on behalf of the applicant averred that he is giving assurance that the applicant will be produced to appear in court anytime the Honourable Court commands and that the applicant is notaflight risk. In view of the ruling in MARTIN KPEBU case (supra) it has become clear that in all cases, including indictable offences, if an accused person was not tried within a reasonable time then he was entitled to be released on bail. It is also to be noted that although bail is discretionary, all the guiding principles to the grant or otherwise of bailare stillapplicable. As stated in the MARTIN KPEBU (No.2) case (supra) that “However, if a court is satisfied from the facts presented in any case, that the accused when released on bail will not appear in court, then the court would be perfectly justified in refusing to grantbailby giving reasons….” Again in the MIREKU & ORS v. THE REPUBLIC (supra) the Court stated as follows: “There is no doubt that the offence of murder for which the applicants are being held is a first degree felony and is considered to be a serious crime. The penalty is death or at least life imprisonment, depending on the manner the crime was committed. An accused person facing such a charge may not re-appear for his trial if the evidence againsthim iswater tight.” Moving forward, as stated earlier, counsel for the respondent who is in charge of prosecution of the matter on behalf of the Republic, did not file any process to oppose the application, however, in such situations, the court takes into consideration the nature of the offence being Murder contrary to Section 46 of Act 29/60 and Use ofOffensive Weaponcontrary toSection70ofAct 29. In the case of MIREKU & ORS v. THE REPUBLIC [1997-98] 1 GLR 915 the court statedthat: 12 “An application for bail was essentially one to restore the liberty of the citizen as enshrined in the Constitution, 1992. However, in assessing whether or not to confine a citizen, the court should consider the interest of the society as well as those of the applicant. Accordingly, the factors which a court had to consider in deciding whether to admit an accused person to bail were: (i) nature of the offence charged; (ii) the type of evidence at the disposal of the prosecution’ (iii) the severity of the punishment if the charge was proved; and (iv) whether or not the accused was likely toappear fortrial.” Justice Amissah in his book “Criminal Procedure in Ghana” at page 183 and 184 stated as follows: “The grant of bail is within the discretion of the Court. The principal test applied when consideration is being given by the Court to the question whether or not to admit an accused to bail is whether he will appear to stand his trial. The more serious the offence with which he is charged and the heavier the penalty, the more likely it is that the accused will not when granted bailappear tostand his trial”. It is trite knowledge that the court has discretion to grant bail to a person brought before it. In doing so, the court considers the offence and the circumstance of the case. The courtshall howeverrefuse togrant bailifit is satisfied that the accused: - Maynotappear tostand trial; or - Mayinterferewithawitness; or - Interferewith theevidence ;or - Hamper police investigations; or - Maycommit further offence when onbail; or - Is charged with an offence punishable by imprisonment exceeding six months which is alleged to have been committed during the time the accused was on bail. 13 As stated in the MARTIN KPEBU case (supra), the primary duty of a court is to ensure that an accused when granted bail will appear and stand for his trial and bail should not be used as a punishment to deny the grant of bail as per Section 96(4) of Act 30 and also whenever there are grounds which indicate that an accused may not appear to stand trial due to his antecedents or facts of the case, the court should decline bail tosuchan accused person. In the instant application, it is on record that the Attorney General failed to file any process to oppose the application. The Court is therefore unable to come to a definite conclusion that the applicant may interfere with the evidence, hamper police investigations, the applicant may commit further offence when on bail or any indication that the applicant has a history of being granted bail and committed any offence when on bail and so may not appear to stand trial when granted bail. There is also no submission from the prosecutor as to the weight of evidence gathered so far at the time of the instant application or whether the applicant will be a danger to thecommunity whengranted bail. As there is also no evidence that the applicant may interfere with witnesses or evidence, or hamper police investigations or may commit further offence when on bail, as held in the case of REPUBLIC v REGISTRAR OF HIGH COURT; EX PARTE ATTORNEY GENERAL (supra) that “The grant of bail was an exercise of adiscretionary power and the main consideration wasthe likelihood ofthe person concerned failing to appear for further proceedings” and Article 19 (2) (c) of the 1992 Constitution which provides that an accused person is presumed innocent until proven guilty, or the person has pleaded guilty, it is therefore my view, there is no apprehension that if the applicant is admitted to bail he will not avail himself to stand trial orwhen granted bail, wouldlikely notappearto stand trial. Inconclusion, relying onthe aboveanalysis and authorities, as bailis aconstitutional requirement and the fact that all offences are bailable, the discretion to grant or refuse bail rest with the courts and same as required, must be exercised judiciously, I 14 am therefore of the considered opinion that, although looking at the nature of the accusations against the applicant, though there is no input from the prosecutor as to the nature of evidence gathered and as there is no opposition to the fact averred that the applicant was not at large as being purported by prosecution but was going about his duties as a construction site Foreman and a Trader in the Volta Region before his arrest and was also arrested at a public place, and not at a hide out at Gbefi near Kpando as being alleged by prosecution, I find it reasonable to grant the applicationas the applicant is not aflight risk and is likely avail himself to stand trial when granted bail. The application is hereby granted. The applicant is hereby admitted to bail pending trial. The applicant is admitted to bail in the sum of Ghc400,000.00 (Four Hundred Thousand Ghana Cedis) with three sureties one to be justified with a landed property. The title deed of the property to be deposited at the Registry of the High Court, Hohoe. Sureties should be residents within the jurisdiction of the Court. The applicant is to report to the police investigator once a week, till the final determination of the case. The investigator D/CPL Richard Narh Gomez ofJasikanDistrict Police is to record same inhis diary. H/LJOAN E.KING JUSTICEOF THE HIGH COURT VICTORKWADJOGA ADAWUDU FORAPPLICANT NOREPRESENTATIONFORTHE RESPONDENT 15