The Republic v Gyan (CC No. 40/2024) [2025] GHACC 120 (14 May 2025)

INTHECIRCUIT COURT HELDAT KINTAMPOON THE14TH DAY OF MAY,2025, BEFOREHER HONOUR, LILY AMOAH-KANKAM, CIRCUIT COURT JUDGE. TIME:10:30AM CCNo. 40/2024 THEREPUBLIC VRS KWAMEGYAN ACCUSEDPERSON PRESENT C/INSP. JOHN MENSAHFORTHE REPUBLIC PRESENT KWAKUOBENG MIREKU FORTHEACCUSEDPERSON PRESENT 1 JUDGMENT: The Accused person was arraigned before this court on the 20th day of March, 2024 charged with the following offences; Threat of Death; Contrary to section 75 of the criminal offences Act of Ghana 1960 ACT 29 and Possessing of Fire Arm without Lawful Authority: Contrary to section 11ofArmsand Ammunition ACT, 1972(NRCD 9). The Accused personpleaded not guilty afterhis plea was takentothe charges levelled against him. From the particulars of the offence, it was alleged that the Accused did threaten the complainants of death with a pistol and also had in his possession one locally manufactured pistolwithout lawful authority. The case of the prosecution is that the complainants are in an amorous relationship, and the Accused Kwame Gyan is the ex-husband of the second complainant. According to the prosecution, the first complainant PW1 rented an apartment for the second complainant PW2, and on 3/05/2023, PW1 visited PW2 in the said rented apartment. Prosecution said about 3:00am the following day, the Accused went to the said apartment of the second complainant who happened to be in the room with the first complainant at the time, and Accused the first complainant of having an affair with the second complainant and cause damage to the room trapdooroftheapartmentto gain access into theroom, buthe couldn’t. He thenthreatensto 2 kill them by calling someone on phone to bring him his pistolto shoot them todeath. The first complainant then called a Police Officer to come to their rescue. When the Police Officer arrived, the complainants were escorted to the Police station for safety where they lodged a complaint against the Accused. Prosecution stated that, the Accused was arrested and detained at the Police Station where his investigation caution statement was taken. He added that same day at about 2:30pm, the Police escorted the Accused to his residence and when a search was conducted in his room, the Police retrieved a locally manufactured pistol wrapped in a black polythene bag and kept in a pink men’s hanging bag which he claimed ownership of it and stated that he acquired it at Dunkwa On-Offin when he went there to do illegal mining (Galamsey) abouttenyearsago. The Accused did not deny being on the premises of the second complainant, and meeting both complainants in the room at that time. However, he has denied threatening to kill them, and he also denied being in possession of a gun without lawful authority. Therefore the issue before the court is whether the Accused threatened to kill the complainants and whether he wasin possessionofafirearmwithout lawfulauthority. The foundationofourcriminal justice systemis premised onArticle 19(2)(c) ofthe1992 constitutionwhich provides thatapersoncharged withacriminal offence is presumed innocent untilhe is provenguilty orhas pleaded guilty. InAsante (No 1)v TheRepublic (No.1)[2017]-2020] 1SCGLR 132at143,Pwamang JSC held that: 3 “Ourlaw isthat when aperson is charged with acriminal offenceitshall be the dutyof the prosecution toprove his guiltbeyond reasonable doubt, meaningthe prosecutionhas the burden to leadsufficient admissibleevidence suchthat on an assessmentof the totality of the evidence adducedin court, including that ledby the Accused person,the courtwould believebeyond a reasonable doubt that the offencehas been committed and that itwas the Accusedperson who committed it. Apart from specific cases of strictliabilityoffences, the general ruleis that throughout acriminal trial the burden of proving the guiltof the Accusedperson remains with the prosecution.Therefore, though the Accused person may testify and callwitnesses toexplain his sideof the casewhere atthe close of the case of the prosecutionaprima faciecase is made againsthim, he isgenerallynot requiredby the lawto prove anything. Heis onlyto raise a reasonable doubt inthe mind of the courtas to hiscommissionof the offenceand hiscomplicity initexceptwhere he relieson astatutory or specialdefence” The prosecution must therefore prove every element of the offence charged beyond reasonable doubt. Prosecution in proving his allegations called six witnesses in support of his case. PW1 the first complainant testify that, Adwoa Boahemaa the second complaint is his girlfriend, and he has rented a room for her at Jema in a popular house known as Triple House. According to him, on 2/05/2023 at about 7:00pm, he visited her and subsequently spent the night there. He said that at about 3:00am on 3/05/2023, he was in the room with her when he heard some noise outside. He looked through the window and saw a group of young men approaching, but he ignored it because the house is just by the street/roadside. He said he heard one ofthemsaying, Ipeeped through thedoorand saw himseated in theroom 4 playing with his phone. Then the Accused Kwame Gyan made a comment that “so he is the reasonmy wife divorced him me, I willkill bothofthem”. PW1 also said that the Accused then came to the door trying to break in. He managed and broke the first gate but could not break the main door after several attempts, and all these while he was still threatening to kill them. He again said that, the Accused person made a phone call telling someone to go to his room and bring his pistol. According to PW1, he immediately placed adistress calltothe Police and few minutesafter, theywere rescued. PW2 Adwoa Boahemaa the ex-wife of the Accused and PW1’s girlfriend corroborated the story of PW1, and added that she peeped through the window and saw the Accused and others outside, and also that when the Police arrested the Accused, a pistol was retrieved fromhim. PW3 Inspector Benjamin Kwaku Boadu with the Jema District Police Command testified that, he is the Police Officer that PW1 placed the distress call to onthat fateful day, at about 3:00am, so he proceeded to the scene to assist. He said at the scene, he indeed met the Accused Kwame Gyan preventing Kwadwo Owusu and the lady that is the 2nd complainant from coming out of the room, and he also met some people at the scene. He also stated that he spoke to the Accused and was able to calm him down, and escorted Kwadwo Owusu the complainant tosafety. PW4 testify that he effected the arrest when thecase was reported. 5 PW5testified that,he was detailed toassist the investigator, toescortAccused tohis residence. The witness said that upon entering the Accused room, they saw one locally manufactured pistol concealed in a small red hand bag right in his presence. According to him, the Accused claimed ownership and stated that he bought it while he was doing galamsey at Dunkwa on– Offin. Prosecution’s last witness, the investigator, testified that on3/05/2023, a case ofthreat ofdeath was reported and it was referred to him for investigations. In his evidence to the court, he statedthe facts almost aspresented by prosecution. He added that, during investigations, it came out that the second complainant is a former wife to the Accused but due to frequent assaults and threats by the Accused, she returned his wedding ring and drinks back to him and left his house to stay with her sister at Jema- Nkwanta. Accused made several attempts to reunite with the second complainant but to no avail. The investigator tendered in 5 exhibits into evidence; four of them were rejected, only one was admitted into evidence, and that is the video recording of the Accused holding the gun and demonstrating howhe acquired it. The Accused person in his defence stated that the 2nd complainant is his wife and there is one issue in their marriage. According to him, there was misunderstanding in their marriage and she moved outofhis house. He said theywere able toresolve the issue, so the Chiefof 6 Peninamisa and elders who settled the issue told her to move back to his matrimonial home. He added that he has been maintaining the second complainant. He testified that on the day of the alleged incident, he went to the 2nd Complainant’s house at dawn, because at that time he believed he will meet her at home, and also that he has heard she was living with another man so he wanted to confirm. According to him on his way to the 2nd Complainant’s house, he called his brother Atta Poku (DW1) to accompany him to bear witness of whatever happens there. He said upon reaching the house of 2nd Complainant, he peeped through the window, and saw someone sitting in the room with his wife. He then invited DW1 and other people to come and witness it. He also called his brother Kofi Ankomah to come to Tripple house. In his defence he confirmed that he was at the scene when Mr. Ben, PW3 the Police Officer who allegedly rescued the complainants came to the scene. He said the Police Officer (Mr. Ben) knocked at the door twice and identified himself and the door was opened and the 2nd Complainant first came out oftheroom. He also testified that he was arrested that same day, and around 5pm, he went to his house with the Police. He said upon entering the house, the Police Officer by name David Akolgo PW6 opened the door to his room and Isaac Adams PW5 pushed him into the room. It was then he noticed that both the trap door and the main door to his room were not locked. According to him the Police Officers entered the room with him and without any search or any questionstohim went straight toasectionofthe roomandtohis surprise broughtout a 7 redbag whichthey opened and it contained arustygun. His defence is that, he doesn’t havea gun, he has never owned a gun, and he also doesn’t know how the alleged gun got into his room. He added thatthe only personwho has copies ofkeystohis roomis2nd complainant. DW1 said that on that fateful day, around 2:00am, the Accused person who is his brother came to plead with him to accompany him to have a discussion with 2nd complainant. He said he told him to wait for the day to break but he pleaded with him that it was urgent. He testifies that when they reached the house of the 2nd complainant, he saw that the first complainant wassitting inthe roomtogetherwith2nd complainant. He said the Accused wanted to knock at the door for them to come out but he stopped him that they should call more people. According to him the Accused person called Kofi Ankomah on the phone and he came to the scene. He also called other people to come to the scene. He said they left the house and sat along the street waiting for dawn to break so that they will see the Complainants come out of the room. He added that after about an hour, he saw a Police Officer called Mr. Ben coming with a dog, so they told Ben what they have seen. According to him, inspector Ben knocked at the door twice, identified himself as a Police Officer and the 2nd Complainant responded and opened the door. The 2nd complainant told the inspector that Accused is the husband, so he told us to take Accused home since it was a family matterso that thefamily candealwith it. 8 According to him the Accused person did not go to Triple house with a gun and also did not call anybody to come to Triple house with a gun. He added that he knows the Accused person does not own a gun, and he also did not threaten to kill complainants with a gun and he did notcause damage toany doororpropertyat Triple house. As mentioned above the Accused person is charged under section 75 of the Criminal Offences Act, 1960Act29 and section11ofarmsand ammunitions Act,1972 NRCD9. COUNT ONE: Section75ofAct 29provides that: ‘Whoever threatens any other person with death, with intent to put that person in fear of death,isguilty ofa second degree felony’. The general rule is that in criminal trials it is the responsibility of the prosecution to prove the guilt of the Accused person beyond reasonable doubt. However, there are exceptions to this general rule where the burden of proof shifts from the prosecution to the Accused person and in such circumstances the Accused is required to prove his innocence. See the case of COP V ANTWI [1961]GLR408,it was held by the Supreme Courtthat: 9 At the end of the case for the prosecution, it was established that a primafacia case has been made out against the Accused person herein. He was accordingly called upon to open his defence. Where an Accused is charged with threat of death under Section 75 of Act 29, the particulars must disclose that he threatened to kill with intent to put the complainant in fear of death and not that he threatened the complainant with unlawful harm and these are the elements of the offence. Section11(3) ofThe Evidence Act 1975,NRCD323provides that: “In a criminal action, the burden of producing evidence when it is on the Accused as to a fact the converse of which is essential to guilt, requires the Accused to produce sufficient evidence so that on the totality of the evidence a reasonable mind could have a reasonable doubtasto guilt” The Accused therefore had the duty to produce sufficient evidence which will raise doubt as tohis guilt. The Accused in his defence to the court said that he did not threaten the complainants, and under cross examination the Accused person again denied the fact that he threatened to kill the complainants in this matter. However he never denied going to PW2’s house that is Triple house onthat fatefulday,and at thatodd hourin his evidence. 10 InBehomevrs. The Republic [1979]GLR112,it was held that: ‘in the offence of threat of death, the actus reus would consist in the expectation of death which the offender creates in the mind of the person he threatened while the mens rea would also consist in the realization by the offender that his threat would produce that expectation’. Inpage235ofCriminallaw inGhana, P.K.Twumasistated that: ‘in proving the offence of threat to death, it is not necessary to establish that the Accused at the time he uttered the threat actually had in his hands or possession some visible means of carrying out his threat, such as holding a cutlass, a gun or a knife. Mere words are sufficientprovided the ingredients ofthe offence arepresent’. The issue is, did the Accused person threaten to kill the complainants, and did he actually utterthosedeaththreatening words? From the facts of the prosecution, the prosecution stated that on that fateful day at about 3:45am, the Accused personthreatenthe complainants with apistolwith intent to put them in fear of death. In their facts they stated that the Accused went to PW2’s house and met PW2 and PW1 in a room and threatened to kill them with a pistol. The Accused person admitted being at Triple house around the time ofthe incident, but neverthreatentokill them. The issue is what was the Accused doing at Triple house at that odd time, and peeping throughthewindows ofPW2’sroom. The Accused also corroboratedthe storyofprosecution 11 that the complainants were stark in a room until they were rescued by the Police Officer PW3. So why did the complainants refused to come out of the room, and only came out when InspectorBENidentified himself asaPolice Officer. Thisis what transpired under crossexamination; Q.Whilst you werethere threatening them, the inspector inthe case came. A.yesthat is so, when he cameI was just standing there, and heeven told me togo home. Q. The Policeman came there because PW1 called him to come and rescue them from your threats. A.Yes that is so, I don’t knowthe person who called him, he asked what was going on, and DW1told him someoneis in the room with mywife, heknocked and they opened the door. Q.When the police officer came he tried to calm you down. A.I wascrying so he told DW1 to send me homeso that I will stop the noise I was making. Q.Inspector Benalso told you to settle yourdifferences that resulted to the threats. A.When he said thatI left there and went homeand I wasarrested. Q. I am suggesting to you that inspector Ben was the one who rescued the complainants fromyourthreats and escorted them to the Police station forsafety. 12 A. That istrue. From this dialogue under cross examination, it can be inferred that the Accused person has admitted threatening the complainants. There were also a lot of inconsistencies in the story of the Accused. Accused in his evidence told the court that, he heard that PW2 was having an affair with another man so he wanted to confirm it, and that was why he went to Triple house that fateful day with DW1 at dawn because he believed that he will meet her at home at that time. Under cross examination, he toldthe courtthat he went totriple house thatday because PW2 called him. More so, the Accused in his evidence told the court that he never threatened to kill the complainants, he has never owned a gun and he doesn’t know how the gun got to his room. DW1 also said that the Accused did not threaten the complainants and he has never owned a gun. Meanwhile under cross examination the Accused person admitted the offence, and was crying in the box and pleaded for forgiveness. The Accused and his witness are not truthful witnesses, they are not credible. The Accused defence therefore cannot be relied on by the court.The case ofthe prosecutionto me sounds moreprobable thanthe defence. The Accused person per the evidence before the court uttered those words of threat to the complainants and it put themintofear ofdeath. Flowingfromthis, the Accused personis guilty oftheoffence and is accordingly convicted. 13 COUNT TWO: The case of the prosecution again was that PW5 a police officer and PW6 the investigator in the case found one (1) firearmin the Accused person’sroomwhen he had no properauthority to possess same. The Accused denied that he had the firearm in his room. Therefore, the issue before the Court is whether the Accused had firearm in his room without proper authority to possess same. To prove the allegations made against the Accused, the prosecutor called G/L/CPL Isaac Adams PW5 and Detective inspector David Akolgo PW6 the investigator in the case. PW5 testified that, he was detailed to escort PW6 to the Accused house. And upon entering the room of the Accused, the witness told the Court they retrieved one locally manufactured pistol concealed in a small red hand bag in the presence of the Accused. He said the Accused claimed ownership of the gun and said that he bought the gun when he was doing galamsey at Dunkwa on-Offin. The investigator, Detective Inspector David Akolgo testified that during investigations, the Accused admitted ownershipofthe gun, and he tenderedexhibit ‘A’ tothateffect. Inhis defence, the Accused testified that he has neverowned agun, andstated that he doesn’t knowhowthe gungotto hisroom. In the instant case, the Accused was charged under section 11 of NRCD 9 which provides that: “where anyfirearmsare without properauthority 14 (a)found in the possessionofaperson, (b) kept in a place other than a public warehouse that person or occupier of that place, or the owner of that place or any person keeping them, commits an offence unless that person, occupier, or owner can prove that they were deposited there without the knowledge or consent ofthat person,occupier orowner.” Per the provisions in section 11 of NRCD 9, to succeed in securing a conviction, the prosecution must prove beyond a reasonable doubt that the Police found the firearms in the premises occupied or owned by the Accused or that the Accused kept the said firearms [On the burden of persuasion of the prosecution see: Gligah & Atiso v. the Republic [2010] SCGLR 870]. A successful discharge of that burden shifts the burden of proof on the Accused to establish that, he had proper authority to possess the firearm or that despite not having proper authority, the firearm was deposited in his premises without his knowledge or consent. The evidence is without question and the evidence is stacked against the Accused who has been established to be the occupant of the premises where the firearms were found. Additionally, under cross examination he admitted possession of the gun without proper authorityand pleaded forforgiveness. 15 From the evidence before the court it should be noted that, the police found the firearm in the premises occupied by the Accused, but not the Accused keeping it on him or possessing it at thetime ofthe incident atTriple house. Accordingly, I find that the Accused person had in his possession firearm or gun without proper authority. I, therefore, find the Accused person guilty of the offence of possessing firearmwithout properauthorityand convict him accordingly. Under the circumstances, the Accused person is guilty of the offence of threat of death and possessionoffirearmwithout lawfulauthority and is accordingly convicted onbothcounts. I sentence the Accused person to a fine of Two Hundred and Fifty (250) penalty units or in default, a term of one (1) year imprisonment with hard labour on counts one, and Two Hundred (200) penalty units or in default a term of Ten (10) months imprisonment on count two.The sentence runsconcurrently. He is further bonded to be of good behaviour for aperiod ofsix (6) months or in default serve aprisontermofone(1) year. The Director Generalofthe Criminal Investigations Department ofthe Ghana Police Service is ordered to confine the firearm in issue and dispose of same in accordance with the directives ofthe Honourable Ministerfor Interiorand in accordance withsubsection (2)ofsection144of 16 Act 30 after the time limited for an appeal or where the Accused files an appeal, after the appealhasbeen disposed of. ………………………..………….. H/HLILY AMOAH-KANKAM (CIRCUITCOURT JUDGE) 17