REPUBLIC VRS SEKYERE & ANOTHER (176/2021) [2024] GHACC 133 (10 May 2024)

IN THE CIRCUIT COURT, HELD IN NSUTA, ON FRIDAY, THE 10TH DAY OF MAY 2024 BEFORE HER HONOUR WINNIE AMOATEY-OWUSU, CIRCUIT COURT JUDGE CASE NO: 176/21 THE REPUBLIC VRS. 1. ELIJAH SEKYERE 2. AGYEKUM MAXWEL JUDGMENT 1.This Judgment is delivered in the absence of the accused. On 20th May 2021, the accused were arraigned before this Court on various charges. Whereas A1 was charged with one count of possession of arms or ammunitions without lawful authority and one count of threat of death contrary to Section 11 of the Arms and Ammunition Act, 1972 (NRCD 9) and Section 75 of the Criminal Offences Act, 1960 (Act 29) respectively, A2 was charged with abetment of crime, to wit: threat of death contrary to Section 20(1) of Act 29. They pleaded not guilty to their charges. Subsequently, on 17th June 2021, the prosecution Page 1 of 36 withdrew the original charges and substituted with new charges, albeit for the same offences. Again, they pleaded not guilty to their charges. 2.A summary of the facts as contained in the accompanying Charge Sheet and read by the prosecution at the commencement of the case is that, the complainant and the accused are all farmers living in Berim. On 23rd March 2021, the complainant engaged Ibrahim Salifu and John Adindaa Yaw, both chainsaw operators from Fawode, to fell some trees on his farmland at Berim to enable him use the land for cashew plantation. While on the farm working, A2 got wind of it and sent A1 to the farm. A1 armed with a locally manufactured gun No. ASO-320-89 without permit, took his motorbike and went to the farm. On his way, A1 passed by the house of Peter Bayor who lives closer to the farm and was formerly farming on the land to accompany him to see who was felling the trees. At the farm, A1 fired several warning shots with the gun to threaten and put Ibrahim Salifu and John Adindaa Yaw into fear of death. Thereafter, A1 ordered them to hand over the two chainsaws they were using to him. Out of fear for their lives, Page 2 of 36 they handed over same to A1 and he tied them to his motorbike and sent them to A2 in his house. The complainant reported the case to the Police and the accused were arrested and statements were obtained from them and the scene of crime was visited. At the scene, a fired Alpha Max AAA red cartridge was retrieved closer to where Ibrahim Salifu and John Adindaa Yaw were working and same was retained for evidential purpose. The gun and the two chainsaws were also retrieved from A2. In their cautioned statements, the accused denied the offences and after investigations, they were charged with the offences herein. 3.Article 19 clause 3 of the 1992 Constitution provides that the trial of a person charged with a criminal offence shall take place in his presence unless; - (a) he refuses to appear before the court for the trial to be conducted in his presence after he has been duly notified of the trial; or (b) he conducts himself in such a manner as to render the continuation of the proceedings in his presence Page 3 of 36 impracticable and the court orders him to be removed for the trial to proceed in his absence. 4.On 17th November 2023, in the presence of the accused, the Court delivered its Ruling that the prosecution had made a prima facie case against them on their respective charges and invited them to answer the charges. The same day, the Court ordered the accused to file their Witness Statements by 19th December 2023. The accused have failed to be present in Court after 17th November 2023. Therefore, on 8th April 2024, the Court announced that because the accused have, by their continuous absence, made it impossible for the trial to continue in their presence, the Court had deemed their defence closed and announced 10th May 2024 for Judgment. 5.Article 19(2)(c) of the 1992 Constitution states that an accused is presumed innocent until he is proved guilty or he pleads guilty. In a criminal trial, the burden rests with the prosecution to prove the charge against the accused. Page 4 of 36 6.The burden of proof in criminal cases is codified in the Evidence Act, 1975 (NRCD 323) as follows: “Burden of Proof 10. Burden of persuasion defined (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. (2) The burden of persuasion may require a party (a) to raise a reasonable doubt concerning the existence or non-existence of a fact, or (b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Page 5 of 36 11. Burden of producing evidence defined (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. (2) In a criminal action, the burden of producing evidence, when it is on the prosecution as to a fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on the totality of the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt. (3) 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 doubt as to guilt. Page 6 of 36 13. Proof of crime (1) In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt. (2) Except as provided in section 15 (c), in a criminal action, the burden of persuasion, when it is on the accused as to a fact the converse of which is essential to guilt, requires only that the accused raise a reasonable doubt as to guilt.” Also, Section 22 of NRCD 323 provides: “22. Effect of certain presumptions in criminal actions In a criminal action, a presumption operates against the accused as to a fact which is essential to guilt only if the existence of the basic facts that give rise to the presumption are found or otherwise established beyond a reasonable doubt, and, in the case of a rebuttable presumption, the accused need only raise a reasonable doubt as to the existence of the presumed fact.” Page 7 of 36 7.In Abdul Raman Watara Benjamin v. The Republic, Criminal Appeal No. H2/17/2019 dated 9th July, 2020 (unreported), the court stated, “It is trite that in criminal trials it is the duty of the prosecution to prove the case against the accused person beyond reasonable doubt. This has been codified in sections 11(2), 13(1) and 22 of the Evidence Act, 1975 (NRCD 323). At the end of the trial the prosecution must prove every element of the offence and show that the defence is not reasonable. The prosecution assumes the burden of persuasion or the legal burden as well as the evidential burden or the burden to produce evidence. The legal burden or the burden of persuasion is to prove every element of the charge. The evidential burden is to adduce evidence that will suffice to establish every element of the offence. This burden remains on the prosecution throughout the case. Proof beyond reasonable doubt also implies that it is beyond dispute that the accused person was the one who committed the offence.” Also, in Asare v. The Republic [1978] GLR 193 @ 197, Anin JA held, “As a general rule there is no burden on the accused; that he is presumed innocent until his guilt is established beyond Page 8 of 36 reasonable doubt; that the burden is rather on the prosecution to prove the charge against him beyond reasonable doubt”. 8.In Brobbey & Ors v. The Republic [1982-83] GLR 608, Twumasi J explained the expression “proof beyond reasonable doubt” as follows: “Proof beyond reasonable doubt in a criminal trial implies that the prosecution’s case derives its essential strength from its own evidence. Therefore, where part of the evidence adduced by the prosecution favors the accused, the strength of the prosecution’s case is diminished proportionately and it would be wrong for a court to ground a conviction on the basis of the diminished evidence.” Lord Denning MR in Miller v. Minister of Pensions [1947] ALL ER 372 also explained the principle when he stated that: “The degree of cogency need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to affect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his Page 9 of 36 favor which can be dismissed with a sentence “of course it is possible but not in the least probable” the case is proved beyond reasonable doubt but nothing short of that will suffice”. 9.When the prosecution makes a prima facie case against the accused and the Court calls on the accused to open his defence, the accused’s only duty is to raise a reasonable doubt about his guilt. See Section 11(3) and 13(2) of NRCD 323. In Commissioner of Police v. Antwi [1961] GLR 408, the court held, “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.” 10.Where an accused gives no evidence or explanation in his defence, as in this case, the Court is bound to consider any Page 10 of 36 evidence which favors his case as well as the cautioned statements obtained from him by the Police and tendered during the trial. See Kwame Atta & Anor v. Commissioner of Police [1963] 2 GLR 460; Annoh v. Commissioner of Police [1963] 2 GLR 306. Further, questions asked and answers given during cross-examination form part of a party’s evidence and must be considered by the court in evaluating the evidence as a whole. See Ladi v. Giwah [2013-2015] 1 GLR 54. 11.In Lutterodt v. Commissioner of Police [1963] 2 GLR 429, the Supreme Court per Ollennu JSC set out how the court should approach the defence of the accused as follows: “In all criminal cases where the determination of a case depends upon facts and the court forms the opinion that a prima facie case has been made, the court should proceed to examine the case for the defence in three stages: a. if the explanation of the defence is acceptable, then the accused should be acquitted; b. if the explanation is not acceptable, but is reasonably probable, the accused should be acquitted; Page 11 of 36 c. if quite apart from the defence's explanation, the court is satisfied on a consideration of the whole evidence that the accused is guilty, it must convict.” 12.Also, in Republic v. Francis Ike Uyanwune [2013] 58 GMJ 162, CA, it was held per Dennis Adjei, JA that: “The law is that the prosecution must prove all the ingredients of the offence charged in accordance with the standard burden of proof; that is to say the prosecution must establish a prima facie case and the burden of proof would be shifted to the accused person to open his defence and in so doing, he may run the risk of non- production of evidence and/ or non-persuasion to the required degree of belief else he may be convicted of the offence. The accused must give evidence if a prima facie case is established else he may be convicted and, if he opens his defence, the court is required to satisfy itself that the explanation of the accused is either acceptable or not. If it is acceptable, the accused should be acquitted and if it is not acceptable, the court should probe further to see if it is reasonably probable. If it is reasonably probable, the accused should be acquitted, but if it is not, and the court is satisfied that in considering the entire Page 12 of 36 evidence on record the accused is guilty of the offence, the court must convict him. This test is usually referred to as the three-tier test.” 13.Upon the direction of the Court, the prosecution filed its Witness Statements and other disclosures on 9th November 2021. Case Management Conference was held and the case proceeded to trial with the prosecution’s case. The prosecution called four witnesses who relied on their Witness Statements and the other disclosures filed as their evidence in the case. They are: i. Richard Dapaah –PW1: The complainant who contracted PW2 and PW3 to fell trees for him; ii. John Adindaa Yaw- PW2: A chainsaw operator engaged by PW1 to fell trees for him on a land at Berim; iii. Ibrahim Salifu –PW3: A chainsaw operator engaged by PW1 to fell trees for him on a land at Berim; and Page 13 of 36 iv. D/C/Insp. Peter B. Kantorgorje – PW4: The investigator of the case stationed at the Mampong Divisional Criminal Investigation Department. 14.The following were tendered by the prosecution through PW4: i. Exhibit “A” and “A1”: Investigation Cautioned Statement of A1 and A2 respectively; ii. Exhibit “B” and “B1”: Charge Cautioned Statement of A1 and A2 respectively; iii. Exhibit “C”: Photograph depicting A1 (on the left) and PW2 (on the right) and a tree trunk cut into two; iv. Exhibit “C1”: Photograph depicting A1 and PW2 at the scene of crime; v. Exhibit “C2”: Photograph depicting aerial view of the farm with some of the cut tree branches; vi. Exhibit “C3”: Photograph depicting one of the tree trunks that was cut into pieces on the farm and some of the branches; Page 14 of 36 vii. Exhibit “C4”: Photograph depicting the fired Alpha Max AAA red cartridge retrieved at the scene of crime; viii. Exhibit “C5”: Photograph depicting the two chainsaws retrieved from A2; and ix. Exhibit “C6”: Photograph depicting a collage of the single barrel gun and the chainsaws. 15.Counsel for the accused, Raphael Darko Esq., also tendered through PW2 and PW4, the following: i. Exhibit “1”: Photograph depicting PW2 on the left and A1 on the right at the scene of crime; and ii. Exhibit “2”: Charge Sheet and accompanying facts filed on 17th June 2021. 16.As earlier indicated, the accused spurned the opportunity to be heard when they refused to attend Court after 17th November 2023 when the Court delivered its Ruling that a prima facie case had been made against them and called on Page 15 of 36 them to answer their respective charge(s). Therefore, the only evidence to be considered in their defence will be elicited from their cross-examination of the prosecution witnesses and their cautioned statements to the Police which the prosecution tendered during the trial. 17. I shall now evaluate the evidence against the accused and the accused’s defence to determine whether the prosecution has proved its case beyond reasonable doubt or the accused has raised reasonable doubt about his guilt. 18.I intend to first treat together, count 1 and 2 pertaining to A1 and then continue with count 3, pertaining to A2 alone. Count 1 and 2 read: COUNT ONE STATEMENT OF OFFENCE POSSESSION OF ARMS OR AMMUNITIONS WITHOUT AUTHORITY CONTRARY TO SECTION 11 OF THE ARMS AND AMMUNITIONS ACT 1972. Page 16 of 36 PARTICULARS OF OFFENCE ELIJAH SEKYERE: AGED 40: FARMER: For that on the 23rd day of March, 2021 at about 2:30pm at Berim near Mampong Ashanti in the Ashanti circuit and within the jurisdiction of this court, you have in your possession a locally manufactured shot gun No. ASO-320-89 without any authority or permit to possess it. COUNT TWO STATEMENT OF OFFENCE THREAT OF DEATH: CONTRARY TO SECTION 75 OF CRIMINAL OFFENCES ACT 1960 ACT 29. PARTICULARS OF OFFENCE ELIJAH SEKYERE: AGED 40: FARMER: For that on the 23rd day of March, 2021 at about 2:30pm at Berim near Mampong Ashanti in the Ashanti circuit and within the jurisdiction of this court, you threatened one Ibrahim Salifu and John Adindaa Yaw with a gun with intent to put the said Ibrahim Salifu and John Adindaa into fear of death. Page 17 of 36 19.Section 11 of NRCD 9 provides: “11. Possession of arms or ammunition without authority Where any firearms, arms of war, munitions of war or ammunition are, without the proper authority, - (a) found in the possession of a person, (b) kept in a place other than a public warehouse, or (c) unlawfully kept in a private warehouse, that person or the occupier of that place, or the owner of the place or any other person keeping them, commits an offence unless that person, occupier, or owner can prove that they were deposited there without the knowledge or consent of that person, occupier or owner.” 20.To successfully prove the charge, the prosecution must lead sufficient evidence to prove that: 1(a) The accused is in possession of firearms or arms of war or munitions of war or ammunition without proper authority; and Page 18 of 36 (b) The firearms or arms of war or munitions of war or ammunition are in the accused’s possession with his knowledge or consent; or 2(a) The accused is the owner or occupier of a private warehouse or a place other than a public warehouse where firearms or arms of war or munitions of war or ammunition are kept without proper authority; and (b) The firearms or arms of war or munitions of war or ammunition are deposited with the knowledge or consent of the accused. 21.Section 29 of NRCD 9 defines arms to include firearms and explosives of any description whilst ammunitions are defined to include explosives, munitions of war and materials for loading firearms. Firearms are also defined to include guns, rifles and machine-guns. Section 1(1) of NRCD 9 mandates all persons who own, possess or control arms and ammunition to forthwith apply to register those arms or ammunition at the nearest Police Station. As part of the registration, Section 2 requires such persons to complete a statutory form as well as Page 19 of 36 produce the arms or ammunition for inspection by the Police. Upon submission of the application and the inspection thereof, the authorized Police Officer shall effect the registration and issue the applicant a permit subject to conditions as may be imposed. A permit is valid for 6 months or such other period as may be determined by the Inspector-General of Police. 22.Section 75 of Act 29 states that a person who threatens another person with death, with intent to put that person in fear of death commits a second degree felony. To successfully prove the charge, the prosecution must lead sufficient evidence to prove that: i. The accused threatened another person with death; and ii. The accused had the intent to put the person in fear of death. 23.In Section 17(1) of Act 29, “threat” is defined to include a threat of criminal force or harm. It is immaterial whether the threat is expressed in words, writing, or in any other manner, and whether it is conveyed directly, or through any other Page 20 of 36 person, or in any other manner. Further, it is immaterial whether the threat will be executed by the person issuing it; or against the person to whom it is issued; or by, or against any other person. See Section 17(3) and (4) of Act 29 24.In a charge of threat of death, the threat must be of death and nothing else. It is immaterial whether the threat was conditional. Whether the person was actually put in fear of death is immaterial; what matters is the intention to put the person in fear of death. See Behome v. The Republic [1979] GLR 112. Also, in Patterson Ahenkang & 2 Ors v. The Republic, Criminal Appeal No. H2/7/10 dated 25th March, 2014 (unreported), the Court of Appeal had this to say, “The means by which the threat is conveyed is immaterial and it could be conveyed directly or indirectly. Indeed, words are sufficient provided the ingredients of the offence are present. There must be proved, the intention on the part of the threatener/accused to put the other person in fear of death, that is in the fear of being killed. The intention must be real or wicked. Whether the victim of the threat was actually put in Page 21 of 36 fear of death is immaterial. What matters is the intention to put the other person in the fear of death.” 25.From the prosecution’s evidence, there is no dispute that PW1 and PW4 were not at the scene when the incident happened. PW2 and PW3 are the people who were on the land on 23rd March 2021 when the incident happened. PW2 and PW3 testified that on the said date, at about 2:30 p.m., while they were felling some trees on a parcel of land at Berim to enable PW1 who had engaged them to use the land for a farm, A1, Peter Bayor and another man whose name they did not know but could identify when seen, came there with a gun and cutlass to attack them. A1 threatened to kill them if they did not vacate the land by firing gun shots and took away two of their chainsaws and also told them he was sent by A2 and the Chief of Kwamang. PW1 testified in his evidence-in-chief and maintained under cross-examination that the land which he engaged PW2 and PW3 to work on was his family land. Exhibit “C”, “C1”, “C2” and “C3” depict the land and PW2 and A1 thereon. On Exhibit “C”, A1 is seen on the left whilst he is seen on the right on Exhibit “C1” Page 22 of 36 26.During counsel for the accused’s cross-examination of PW2, this transpired: Q. The prosecution has told this court that A1 gave several warning shots. Is that what happened? A. Yes, my Lord. This also transpired on 21st February 2023 when A1 personally cross-examined PW3: Q. What did you tell me on the day of the incident when I came to meet you in the bush? A. All I realized was that you had pointed a gun at me and you asked me who permitted me to work on the land. Q. What happened to you when I pointed the gun at you? A. After you had pointed the gun at me, you lifted it up towards the sky and fired a shot. Page 23 of 36 On 21st March 2023 when counsel for the accused further cross-examined PW3, this also transpired: Q. You testified at the last date that A1 pointed a gun to the sky, is that not so? A. That is true. Q. Can you tell this Court the specific offence leveled against accused persons for which you are testifying? A. A1 pointed a gun at me. Q. Even before A1 came onto the scene, you had long run away on hearing of his coming. A. That is not true. Q. So you are telling this Court that you were present at the scene at the time A1 allegedly fired the gun into the sky. A. That is true. I was there. A1 came to meet me at where I was working with the chainsaw machine and he pointed the gun at me. Page 24 of 36 Q. And you did not run away even when he had pointed the gun at you or shot into the skies. A. No, I did not run away. Q. I put it to you that you were never threatened with death as alleged by the prosecution. A. A1 threatened me with death. 27.From the cross-examination above, A1 did not deny that he met PW3 on the land on the said date, neither did he deny he pointed a gun at him and subsequently fired warning shots. Counsel for the accused’s claim that PW3 had long ran away before A1’s arrival on the land is thus not supported by the evidence. 28.PW4 also testified that following the accused’s arrest, they visited the scene of crime where a fired Alpha Max AAA red cartridge was retrieved closer to where PW2 and PW3 were felling the trees and same was retained for evidential purpose. According to him, his investigation revealed that A1 sent the two chainsaws he seized from PW2 and PW3 to A2 in his Page 25 of 36 house. Subsequently, the gun and the two chainsaws were retrieved from A2 and pictures were taken thereof for evidential purpose. See Exhibit “C5” and “C6”. 29.A gun may be used to cause another person’s death and thus, when pointed at another person and or warning shots are fired therefrom in the person’s presence, that person may feel threatened to death. Even though no forensic examination report was tendered by the prosecution to prove that the Alpha Max AAA red cartridge found at the scene of crime and depicted in Exhibit “C4” was discharged from the gun depicted in Exhibit “C6”, in my considered view, that does not detract from PW2 and PW3’s corroborative evidence that A1 gave the said warning shots which they witnessed. 30.By way of defence, A1 stated in Exhibit “A” given to the Police on 29th March 2021 that on 23rd March 2021 at about 2:00 p.m., he was sent by Nana Agyekum (A2) to go to the complainant’s farm in the bush to find out if people were cutting down trees because he had heard that some people were felling trees to pave way for cashew farming. On arrival on the land, he saw Page 26 of 36 the complainants felling the trees and he ordered them to stop and they complied. He took their chainsaws and told them he was sent by A2 so if they wanted to retrieve them, they should go to A2’s palace. 31.In Exhibit “B”, the Charge Cautioned Statement obtained on 16th April 2021, A1 stated he was relying on his former statement, Exhibit “A”. When an accused has an opportunity to give another statement to the Police and he relies on his former or earlier statement, it is deemed that he gave the statements voluntarily. See Kerechy Duru v. The Republic [2014] 71 GMJ 186. 32.There is ample evidence that PW1 who is the complainant was not on the land at the time A1 went there. Rather, A1 met PW2 and PW3 felling the trees. Despite A1’s eerie silence in Exhibit “A” about the evidence that he was wielding a gun and threatened to kill PW2 and PW3 by firing warning shots, I have already found that he was indeed in possession of a gun and that he threatened PW2 and PW3 with death. The fact that Page 27 of 36 PW2 and PW3 did not take to their heels when A1 pointed the gun at them and subsequently fired the warning shots is immaterial and does not negate the charge. Likewise, the fact that they failed to produce any evidence of the medical condition or psychological or mental shock or scare they claim they suffered as a result of A1’s threat does not negate the charge. The law is clear that whether the person was actually put in fear of death is immaterial; what matters is the accused’s intention to put the person in fear of death. See in Patterson Ahenkang & 2 Ors v. The Republic [supra]. Further, there is no evidence that A1 had a permit issued under NRCD 9 to use the gun. 33.On the totality of the evidence adduced, I find that A1 has failed to raise reasonable doubt about his guilt on count 1 and 2. I find him guilty and convict him accordingly. Page 28 of 36 34.Now, to count 3, which reads: COUNT THREE STATEMENT OF OFFENCE ABETMENT OF CRIME: CONTRARY TO SECTION 20 (1) OF ACT 29/60 PARTICULARS OF OFFENCE AGYEKUM MAXWEL: AGED 59: FARMER: For that on the 23rd day of March, 2021 at about 2:30pm at Berim near Mampong Ashanti in the Ashanti circuit and within the jurisdiction of this court, did aid and abet one Elijah Sekyere to commit crime to wit; threat of death. 35.Section 20(1) of Act 29 provides that a person who, directly or indirectly, instigates, commands, counsels, procures, solicits, or in any other manner purposely aids, facilitates, encourages, or promotes, whether by a personal act or presence or otherwise, and a person who does an act for the purposes of aiding, facilitating, encouraging, or promoting the commission of a criminal offence by any other person, whether Page 29 of 36 known or unknown, certain or uncertain, commits the criminal offence of abetting that criminal offence, and of abetting the other person in respect of that criminal offence. To successfully prove the charge, the prosecution must lead sufficient evidence to prove that: i. The accused, directly or indirectly, instigated, commanded, counseled, procured or solicited or in any other manner purposely aided, facilitated, encouraged or promoted by his personal act or presence or absence, another person in the commission of a criminal offence; or ii. The accused did an act for the purpose of aiding, facilitating, encouraging or promoting another person in the commission of a criminal offence. See R. v. Jacob K. Mensah [1959] GLR 314; Okpara v. Commissioner of Police [1963] 1 GLR 31; Edward Kotey alias Niiquaye v. The Republic, Court of Appeal, Suit No. H2/12/2022 dated 20th April, 2023 (unreported). Page 30 of 36 36.In R. v. Jacob K. Mensah [supra], the Court of Appeal held that for criminal abetment to exist, the action abetted must be a crime. Also, in Okpara v. Commissioner of Police [surpa], the Supreme Court stated per Ollennu JSC at page 33 that, “The offence of aiding and abetting implies the commission, by one person, of a substantive offence, and another person aiding and abetting the principal offender in the commission of that substantive offence. Therefore, a person cannot be convicted of aiding and abetting where no substantive crime is proved to have been committed.” In Commissioner of Police v. Sarpey & Nyamekye [1961] GLR 756 @ 758, the Supreme Court held as follows: “In order to convict a person of aiding and abetting it is incumbent on the prosecution to prove that the accused did any one of the acts mentioned in subsection (1) of section 20. Under subsection (2) a person who abets a crime shall be guilty if the crime is actually committed (a) in pursuance of abetment, that is to say, before the commission and in the presence or absence of the abettor and (b) during the continuance of the abetment, that is to say, the abetment must be contemporaneous in place, time and Page 31 of 36 circumstance with the commission of the offence. In our view, an act constituting an abetment in law must precede or it must be done at the very time when the offence is committed.” Further, in Effah v. The Republic [1999-2000] 2 GLR 727, the Court of Appeal held that the act of abetment must be contemporaneous; and the abettor must share the principal’s mens rea. 37.According to PW2 and PW3, after A1 had threatened them with death and seized two of their chainsaws, he told them he was sent by A2 and the Chief of Kwamang. PW4 also testified that following the arrest of the accused, the gun and the two chainsaws were retrieved from A2. See Exhibit “C5” and “C6”. Relevant portions of PW4’s cross-examination are also reproduced below: Q. You see, A2 has denied the ownership of the land on which the event took place as belonging to Dapaah Richard (PW1) and that same belongs to A2 as a caretaker chief of Kwamang. Page 32 of 36 A. My Lord, I am not aware about a dispute of the ownership of the land because the charges that are leveled in respect of this case are not about ownership of land. Q.I am suggesting to you that the said land belongs to A2 under his caretakership. A. My Lord, I disagree. Even if that was so, A2 has no right to ask A1 to go to the place/scene armed with a gun with the intention to put fear of death into witnesses. Q. And that A2 only sent A1 to protect his land by stopping those who were felling the tree at that material time. A. I disagree with you because A2 could have reported the issue to the appropriate quarters and the law enforcing agencies than taking the law into his hands and sending A1 with a gun to go and threaten witnesses. We are not in a banana republic. [Emphasis on the underlined] 38.By way of defence, A2 stated in Exhibit “A1” given to the Police on 29th March 2021 that he was home one day when one Page 33 of 36 Peter Dagarti whom he had given some of his land to for farming came to inform him that he had seen some people feeling trees near his land. On 23rd March 2021, he was going to Kwamang for a meeting when he delegated some of the sub- chiefs to go and find out the veracity of what Peter Dagarti had told him. That, A1 went and met the complainants on his land felling trees, stopped them and brought their chainsaws to his Palace. Upon his return, they briefed him about what had happened and he kept the chainsaws until the Assemblyman came to inform him that the Police wanted to see him together with A1 and the chainsaws. In Exhibit “B1”, his Charge Cautioned Statement which he gave on 16th April 2021, A2 relied on his former statement, Exhibit “A1”. 39. A1 in Exhibit “A” also admitted that he was sent onto the land by A2 and that he seized PW2 and PW3’s chainsaws and handed them over to A2. There is evidence that A2 sent A1 to protect the land on which PW2 and PW3 were working because he claims it belongs to him. According to counsel for the accused through cross-examination, the land is under the caretakership of A2 on behalf of the Chief of Kwamang. There Page 34 of 36 is further evidence that A1 in executing the assignment went onto the land in possession of a gun which he used to threaten PW2 and PW3. According to PW4, the gun used by A1 to threaten PW2 and PW3 and the seized chainsaws were subsequently retrieved from A2. 40.On the totality of the evidence adduced, I find that A2 has failed to raise reasonable doubt about his guilt on count 3. I find him guilty and convict him accordingly. 41.In passing sentence, I am mindful that the accused are first offenders. I am also mindful of A2’s age and ill-health as per the medical report filed this morning, 10th May 2024. I am further mindful that the uncontrolled possession and use of arms and ammunition is a real threat to the peace, security and safety of the country as a whole. But, in the absence of any aggravating factors or circumstances, the Court shall consider A1’s conduct of possessing the gun a contravention under Section 26(2) of NRCD 9 and treat it as a misdemeanour. I sentence A1 on count 1 to a fine of 400 penalty units, in default, Page 35 of 36 he shall serve 15 months’ imprisonment; and on count 2, to a fine of 300 penalty units, in default, he shall serve 12 months’ imprisonment. The sentences shall run concurrently. For A2, he is sentenced to a fine of 500 penalty units on count 3, in default, he shall serve 18 months’ imprisonment. SGD. HH WINNIE AMOATEY-OWUSU CIRCUIT COURT JUDGE PARTIES AND REPRESENTATION: 1. THE ACCUSED ABSENT 2. INSP. CHRISTOPHER KWAME GYESI FOR THE PROSECUTION PRESENT 3. RAPHAEL DARKO ESQ. FOR A1 ABSENT 4. SUMAILA OWURA ADAMS ESQ. HOLDING BRIEF FOR JOHN BREFO ESQ. FOR A2 Page 36 of 36