The Republic v Botaa and Others (40/2022) [2025] GHADC 259 (10 July 2025)

IN THE DISTRICT COURT KINTAMPO HELD ON THURSDAY THE 10TH DAY OF JULY, 2025 BEFORE HIS WORSHIP KWAME ADJEI MANU ESQ., DISTRICT MAGISTRATE COURT CASE NO: 40/2022 THEREPUBLIC VRS. 1. AKWASIBOTAA 2. SIMONBOTAA @ RASTA 3. OLUU RULINGON SUBMISSION OFNO CASE TOANSWER 1. Introduction 1.1. Under Section 173 of the Criminal and other Offences (Procedure) Act 1960 (Act 30), this Court is required at the end of Prosecution’s case to consider whether a sufficient case has been made against Accused persons before requiring them to make adefence. That is the dutydischargedin this ruling. 1.2. This ruling commences with a discussion of the charges brought against Accused in this case, followed by the facts given by Prosecution in support of the charges, and a discussion of the duty of prosecution in the trial at this point. The ruling is concluded with a discussion of the evidence led in Prosecution’s bid to prove the charges, and the determination of the Court as to the sufficiency or otherwise of theevidence onrecord in establishingaprima facie case against Accused. Thecharges 1.3. Accused persons are charged with the offences of conspiracy to commit crime and threat of death contrary to Sections 23 and 75 of the Criminal Offences Act, 1960 (Act 29). 2nd Accused person is charged also with the offence of possession Page1of13 of firearms without lawful authority contrary to Sections 1(1) and 26(1) of the armsand ammunition act, 1972(NRCD9). 1.4. On count one (1), Act 29 provides at Section 23(1) that where two or more persons agree to act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence. Agyapong v. The Republic (2015) 84 Ghana Monthly, Judgments, 142, C.A.per KorbiehJ.A. at page 149: “Quite frankly, this court must confess that it has a problem with the new law ... The problem stems from the wording of section 23(1) itself and the illustration that follows the definition of conspiracy. It difficult to see how wo or more persons can agree to act together without previous concert or deliberation. Would they have reached the agreement by telepathy? This court therefore finds the new formulation of the law on conspiracy so contradictory that it is almost meaningless. ln the opinion of the court, it is contradictory to talk of two or more persons agreeing to act together and yet say that they need nothave had aprevious concertor deliberation". 1.5. As elucidated in State v. Yao Boahene [1963] 2 GLR 554 and Republic v. Maikankan and others [1972] 2 GLR 502, conspiracy consists not simply in the intention of two or more persons, but also in the agreement of two or more to do an unlawful act or to do a lawful act by an unlawful means. There must be evidence of that the accused persons agreed or acted together with a common purpose tocommit the offence. 1.6. Inrespect ofthe offence in count two (2), section 75readsas follows: Page2of13 “75.Threatofdeath A person who threatens any other person with death, with intent to putthat personin fear of death, commitsa seconddegree felony.” 1.7. Behome v. The Republic [1979] GLR 112 explained that in considering the offence of threat of death, the actus reus that ought to be proved will consist in the actual threat of death and not of harm, and in the expectation of death which the offender creates in the mind of his victim who he threatens, whilst the mens rea is established in the realization by the offender that his threats will produce that expectation. It is immaterial that the threats were related to the present or the future, but there ought to be an explicit and clearly articulable threat of death as explained inthatcase thus: “Counsel further referred me to my own decision in Kwaku Agyem v. The Republic, High Court, Sunyani, 21 December 1976, unreported, wherein I held the particulars of the charge similarly at variance with the charge and therefore defective. There the appellant was charged with threat of harm under section 74 of Act 29 but the particulars disclosed that he threatened to kill with an intent to put the complainant in fear of unlawful harm. In allowing the appeal against conviction I had the occasion to point out that a person cannot intend to put another person in fear of death or of unlawful harm if there is no evidence that he threatened that other person with death or, as the case may be, with harm, and that where the appellant is, therefore, charged with threat of harm the threat must be of harm and of nothing else.That observation must similarly apply in a charge of threat of death. The threat must be of death and not of harm which is the actus reus required under section 74 of Act 29.It has been doubted whether a threat which may be carried out upon some contingent event can Page3of13 groundan offenceeither undersection 74or undersection 75of Act29. In the offence of threat of death the actus reus will consist in the expectation of death which the offender creates in the mind of the person he threatens whilst the mens rea will also consist in the realisation by the offender that his threats will produce that expectation.” 1.8. Additionally, in Patterson Ahenkang and 2 Others (Appellants) v. The Republic (2014)JELR 68267(CA)the courtexplained concerning this offence as follows: “This is the basis of this charge. In section 75 of Act 29/60, it is explained that a person who threatens any other person with death, with intent to put that person in the fear of death, commits a second degree felony. To constitute a threat of death therefore, the threat must be criminal, that is in respect of an unlawful harm. The means by which the threat is conveyed is immaterial and it could be conveyed directly or indirectly. Indeed words are sufficient provided the ingredientsof the offenceare present.” 1.9. Concerning count three(3), NRCD9provides atSection1(1) thus: “1.Registrationofarmsandammunition (1)A person who owns, possesses or controls arms or ammunition shall forthwith apply to register those arms or ammunition at the nearest policestation.” 1.10. Section26(1) oftheAct also provides thus: Page4of13 “1)A person commits an offence and is liable on summary conviction to a fine not exceeding one thousand penalty units or to a term of imprisonment not exceeding five years or to both the fine and imprisonment, ifthat person (a) contravenes a provision of this Act or a condition or restriction imposedin respectof apermitgranted tothat person, (b) obstructs a member of the Police Service or of the Armed Forces in the performanceof a functionconferred on that memberby this Act, (c) wilfully makes a false statement in connection with an application underthis Act, (d)forges, alters or defacesa permitgrantedunder this Act, (e) has in that person’s possession, without lawful authority, a permit granted under this Act, (f) makes or knowingly has in that person’s possession or control an explosive, including gunpowder or fuses under circumstances which give rise to a reasonable suspicion that that person is not making it, or does nothave itinpossession or control, for a lawfulreason.” 1.11. The first of the charges to fail, is that contained in count three (3), and the Court’s reasonfor this conclusionshall become apparentinthe following Factsaspresented bytheprosecution 1.12. The facts according to Prosecution are that Complainant is a farmer residing at Amoma whilst Accused persons are resident of Oyoko village near Amoma. Complainant owns a cashew nut farm sharing boundary with that of first accused. On 9th February 2022 at about 9:20am complainant visited his farm in the company of his nephew to harvest the cashew nuts. Accused were also harvesting yam tubers on their farm and first Accused sent a witness in this case who is also his biological son to visit his cashew nut farm and see how the farm Page5of13 was doing. This witness left and returned momentarily to inform accused personsthathe metComplainant in A1’s cashew farmharvesting. 1.13. Second Accused person according to Prosecution picked a gun, and third Accused a stick and angrily proceeded to the farm where they met Complainant in his own farm at a portion sharing boundary with first Accused’s cashew farm harvesting his own cashew nuts. Third Accused wielding a cutlass attempted to butcher Complainant with it, but he managed to escape and fell, and the witness who was in the farm with Complainant hearing the struggle quickly rushed to the scene and assisted Complainant in that regard. First Accused later arrived at thescene and told Complainant these words: “You are lucky if Ihad arrived earlier, Iwould have choppedyour headoff” 1.14. A report was made to the Police for investigations, first and second Accused persons were later arrested and a search conducted in second Accused’s room which revealed the SB gun used in the act. Accused persons after investigations were charged with the offences recounted in the foregone. These charges have foisted Prosecution with a special duty which I discuss at least as to what is expectedofthemat this point ofthe trial, next. 2. TheProsecution’sduty 2.1. Prosecution’s duty at this point of the trial is that they ought to have to established a prima facie case against Accused, for the Court to call upon them to open their defence. Section 173(1) of the Criminal and other Offences (Procedure) Act 1960 (Act 30) which enjoins the Court to acquit an accused where the prosecutionfails to establish aprima facie case provides thus: Page6of13 “At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused sufficiently to require the accused to make a defence, the Court shall call on the accused to make the defence and shall remind the accused of the charge and inform the accused of the right of the accusedto giveevidence personally or to make astatement.” 2.2. To be considered as having discharged this burden, Prosecution must have led sufficient evidence in proof of all the ingredients or the elements of the offence Accused are charged with, failing which they must be acquitted and discharged. This point stands if even one of those elements remains unproved, or at least to a standard that it can be concluded that a prima facie case has been made. The court is dutybound to ensure that if Prosecution fails to establish a prima facie case against Accused at the end of its case, it must consider Prosecutionas having failed to displace the burden placed on it by Article 19(2)(c) of the 1992 Constitution to the effect that a person charged with a criminal offence shall be presumedinnocent until he is proved or has pleaded guilty, or at least to the extentthat this Courtcandemand ofaccused to make adefence tothe charge. 2.3. Daniel Korang in his book Criminal Prosecution in Ghana, Practice & Procedure, 2017 at page 318 captures the essence of a prima facie case in the following words: “It is an essential principle of our criminal justice that unless a prima facie case has been made against the accused, the court must not call on him to open his defence.Primafacie case meansthe accused has a caseto answer and that if the accused does not offer any explanation, he will be convicted. It also means that the prosecution has adduced sufficient evidence against the accused person and that he must be called upon to open his defence. In other words, Page7of13 prima facie case means if the accused does not open his defence, there is enoughcase against himto convicthim.” 2.4. In Moshie v. The Republic [1977] 1 G.L.R 287 relying on R. v. Burdett (1820) 4 B. & Ad. 95 at pp. 161-162 the Court of Appeal in considering how this duty may be dischargedsaid this: “No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absenceof explanation or contradiction.” 2.5. As held in Tsatsu Tsikata v The Republic [2003-2004) SCGLR 1068 (holding 5), the decision whether Prosecution’s case has been proved beyond reasonable doubt ought be reached at the end of the entire trial, only after a complete consideration of the cases of both prosecution and defence, thus, not in the context of this ruling. Mali v The State [1965] GLR 710, SC has still held and this is good law, that if at the end of Prosecution’s case the trial court requires further evidence before it can decide on the issues raised in the case, the irresistible inference is Prosecution has failed to make a prima facie case and Accused ought tobe acquitted. 2.6. As held in in State v Annan [1965] GLR 600 and State v Ali Kassena [1962] I GLR 144 a submission of no case will be upheld where the court takes the view that ‘the evidence adduced by the prosecution is incapable of substantiating or founding a conviction because the prosecution has failed to lead any evidence in proof of an essential element of the charge or the evidence adduced by the prosecution is so contradictory or has been so discredited as a result of cross-examination or is so manifestly unreliable that noreasonable courtcould safelyconvicton it.’ Page8of13 Prosecution’sevidence 2.7. Prosecution called three witnesses, the first being Complainant as PW1 who testified that on 9th February 2022 at about 10:00am, he was in his cashew farm collecting cashew nuts when he saw Accused persons approaching him with third Accused holding a Cutlass and second Accused holding an SB Gun, that is is single barrelled rifle. Upon reaching where he was standing, third Accused raised the cutlass and tried to hit him with it but he managed to escape and fell, at which time his nephew Ibrahim Mohammed who was at the other side of the farm heard his scream and rushed to his rescue. His nephew asked accused persons what they want to which they replied by saying they came to kill him and in the process, their father first Accused came to threaten him with words to wit "You are lucky. If I had reached here early, Iwould have chop off your head". 2.8. PW2, the investigator in her terse evidence-in-chief testified that She was was the investigator on duty on the day a case of threat of death was reported and referred to her for investigations. She took a statement from complainant, cautioned statement from accused persons, and statement from the witness. She was later instructed by her superior command tocharge accused before this court. Accused’s investigation and charge cautioned statements, complainants statement given to the police and a photograph of a single-barrelled rifle were received in evidence through PW2 as exhibits 1 to 6 respectively. Her evidence- in-chief was simply a robotic retelling of the steps she took in discharging her duties from complaint to charge, without any evidence as to what her findings were. 2.9. PW3, Complainant (PW1)’s nephew Mohammed Ibrahim testified that On 9th February 2022 at about 10:00am, he accompanied his uncle to his cashew farm to collect cashew nuts and went to a different direction to collect the cashew nuts when they got there. He heard noises from his uncle's direction and rushed there Page9of13 only to find his uncle on the ground with second accused holding an SB Gun and third accused also holding a cutlass trying to attack his uncle. He quickly rushed to help his uncle to stand and asked them what they want to which they replied that his uncle is stealing their cashew nuts and is a thief. While I trying to calm them down, first accused came there holding a cutlass and tried to attack his uncle but he calmed him down and theyleft. I must note, that PW3’s evidence-in- chief was entirely silent on the threats accused are alleged to have issued against against Complainant. 2.10. Accused persons were represented by counsel throughout the trial so far and raised no objections to the receipt of their cautioned statements in evidence, neither have I convinced myself of some sound reason in law or fact rendering them inadmissible in evidence. I consider the requirements of Article 14(2) of the Constitution 1992 and Section 120(1) of the Evidence Act 1979 (NRCD 323) on Accused’s rights to counsel and silence satisfied, particularly since the voluntary nature of the statements given in the cautioned statements is not in doubt, in addition to the witnessing of same by an independent witness in compliance withthe requirementsoflaw. 2.11. PW3 admitted under cross-examination his own bias in favour of Complainant’s case, and I am of the view that this admitted bias is not a matter that can be overlooked. By Section 80 of the Evidence Act, NRCD 323 this court may determine the credibility of a witness and matters which may be relevant to the determination of the credibility of the witness include, as provided as subsection 2(e) the existence or non-existence of bias, interest or any other motive. This was what transpired while PW3 was under cross-examination: Q:You are notexpectedto speak againstyour uncle inthis matter? Page10of13 A: Iwill nottestify against him. 2.12. Atalatertime, he confirmed his motivations thus: Q:I Suggestto you that your uncle broughtyou here togain your Supportbefore the court A: That istrue. 2.13. Quite notably, this witness in his evidence-in-chief did not at all testify that he witnessed any aspect of the uttering of those words or acts that would constitute the ingredients of the offence charged and I am inclined to a belief that any allusions to having witnessed any such acts while he was under cross- examination, is an afterthought. PW3’s evidence given under cross-examination is manifestly unreliable because he contradicted himself even as to the events of the day. On one hand he states in his evidence-in-chief that first Accused arrived after he got there, and under cross-examination that he “when he got there all the three people were there”. These are inconsistencies which I believe must have a relevant bearing on the matter, as they go to corroboration of PW1’s evidence in support of the ingredients of the offence charged. The settled law is that conflicts and inconsistencies in evidence that have a relevant bearing on a judgment must relate to facts in issue as held in The Republic v. Adekura [1984-86] 2 GLR 345, CA. InObeng v. Bempomaa [1992-93] 3GBRp 1029 Lamptey JA. (As he then was) had this to say concerning inconsistenciesin evidence: “Inconsistencies, though individually colourless, may cumulatively discredit the claim of the proponent of the evidence. The conflict in the evidence of Plaintiff and his witnesses weakened the merit of his case and proved fatal to his claim.” Page11of13 2.14. This leaves PW1’s evidence insufficiently corroborated. Section 7(1) of NRCD 323 provides that Corroboration consists of evidence from which a reasonable inference can be drawn, which confirms in a material particular the evidence to be corroborated and connects the relevant person with the crime, claim or defence. I have cautioned myself of the danger of proceeding on the basis of uncorroborated evidence, particularly when I have considered the evidence of PW3 as tainted. The Court shall proceed on the caution given in Daniels v. The Republic [1973] 1 GLR 31 that where no corroborative evidence exists, the solutionis notto consider onepiece ofevidence ascorroborating itself. 2.15. Concerning the admitted bias, it has been held in Samuel Okudzeto Ablakwa & Anor v. Jake Obetsebi Lamptey & Anor [2013-2014] 1 SCGLR 16, that where a matteris admitted proof is dispensed with. As discussed in the case ofIn re Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon II) v.Akotia Oworsika III (substituted by) Laryea Ayiku III [2005-2006] SCGLR 637 at 656, where an adversary admits a fact advantageous to the cause of a party, the party needs no betterevidence toestablish thatfact thanby relying onsuch admission. 2.16. Regarding the offence in count three, although I considered the prospect of setting out in sufficient detail why the charge itself is bad, I shall refrain from such a thankless errand since Prosecution’s evidence led in this case did not have even a shred supporting the charge, beyond the mere presentation of a rifle in evidence. I surmise that charging A2 under NRCD 9, was contemplated by Prosecution as a means of side-stepping the requirement for Prosecution to retain the written consent of the Attorney to prosecute under the better legislated offence of possession of explosives, firearms and ammunition under Section 192 of Act 29. Prosecution was in this case at all times material required to establish by some cogent evidence some contravention of NRCD 9 by second Accused Page12of13 person but failed to do this. The charge must accordingly fail, and I agree with thesubmissionmade inthis regard by counsel forAccused. 2.17. Yeboah & Another v. The Republic [1999-2000] 1 GLR 149 has long established relying on Apaloo v. The Republic [1975] 1 GLR 156 that where at the end of the case of prosecution, an ingredient of the offence charged was not proved or where the evidence of the prosecution was discredited as a result of cross- examination, thus rendering it unsafe to be acted upon, then the court need not call upon accused to open his defence. From all the evidence on record so far, Prosecution at the end of its case had failed to establish a prima facie case on any of the charges against Accused persons whether acting by themselves or in concert, since the evidence presented was thoroughly deficient. The charges all remain unproven evento the point of establishing a prima facie case and they fail asaresult 3. Conclusion 3.1. Parts of the evidence in this suit disclose undertones of a civil dispute over land overlaid with a criminal complaint and resulting in this case prosecuting which has consumed considerable time and resources. In such cases I consider economy of phraseology paramount. In conclusion, Prosecution has failed to establish a prima facie case against Accused on all the charges. They are accordingly acquitted anddischarged. SGD. H.W. KWAMEADJEI MANU ESQ. MAGISTRATE Prosecutionpresent, first andsecond accused personspresent (accused unrepresented). C/INSPREmmanuelOsei KofiforProsecution. Page13of13