The Republic v Adom and Another (30/2024) [2025] GHADC 256 (16 May 2025)

IN THE DISTRICT COURT SITTING AT WAMFIE ON THE 16TH DAY OF MAY,2025 BEFORE HIS WORSHIP EUGENE OBENG-NTIM,ESQ. CASE NO.:/30/2024 THE REPUBLIC VRS 1. COLLINS ADOM 2. KOFI BISMARK 1st accused, Collins Adom absent. On bench warrant 2nd accused present Detective Inspector Godwin Tekiy for the Republic Counsel for the 2nd accused RULING Introduction The 2nd accused person, Kofi Bismarck, was arraigned before the court charged with under section 146 (1) of the Criminal Offences Act, 1960, Act 29. He pleaded not guilty to the charge and the court ordered prosecution to file disclosures and served the accused person. Prosecution called two witnesses. The complainant in his witness statement filed on the 9th February, 2024, he alleged that he purchased motor tricycle valued at GH¢ 24,000.00 and gave it to 1st accused for commercial work but 1st accused failed to account for sales and could also not be traced. Page 1 of 12 He later had information that 1st accused was at Nkrankwanta and he therefore lodged a complaint at the Nkrankwanta Police station and 1st accused was arrested. 1st accused told the police in his presence that he had sold the motor tricycle to 2nd accused for GH¢ 5,000.00 and had paid 4,600 leaving the balance of GH¢ 400.00. 2nd accused also informed him he had sold it to one Halidu in Ivory Coast. The second witness of the prosecution, Inspector Joseph Sotitey Bronya confirmed the allegations of Pw1, the complainant in his witness statement filed on 9th February, 2024. He thereafter tendered the following exhibits in support of the evidence of prosecution: i. investigation cautioned statements of 2nd Accused which were marked Exhibits “A”. ii. Documents covering the motor tricycle which were accepted and marked Exhibits “B”, “B1”, “B2” and “B3”. iii. Pictures of the subject matter of the offences which was accepted and marked Exhibit “C” and “C1”. iv. charged statements of 2nd Accused which was marked Exhibit “D”. Submission of no case to answer Counsel for 2nd accused made an oral application to file a submission of no case to answer by 2nd accused which was duly granted. Counsel file his submission on 20th March, 2025 pray for the 2nd accused to be acquired and discharged on grounds that prosecution has failed to establish prima facie case against 2nd accused. Page 2 of 12 Submission of no case is a fundamental concept in criminal matters statutorily provided in the Criminal and Other Offences (Procedure) Act, 1960(Act 30). This is provided under sections 173 and 174 of Act 30. Section 173 of Act 30 provides that: “where at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require him to make a defence, the Court shall, as to that particular charge, acquit him.” Then Section 174(1) provides that: "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 him to make a defence, the Court shall call upon him to enter into his defence and shall remind him of the charge and inform him that, if he so desires, he may give evidence himself on oath or may make a statement. The Court shall then hear the accused if he desires to be heard and any evidence he may adduce in his defence." In the case of Sarpong v. The Republic [1981] GLR 790–801, it was stated at p. 796 that: the law enjoined the trial judge that if at the close of the prosecution’s case no sufficient evidence has been adduced to prove beyond all reasonable doubt, the charge laid against the accused, the court must hold that no prima facie case has been made out and that the accused is entitled to be acquitted and discharged forthwith. It would be wrong in law for the trial court to ignore this legal duty and instead call upon the accused to enter into his defence. Page 3 of 12 The degree of proof required for prosecution at the submission of no case to answer by the accused to warrant the court to call upon the accused person to open his defence is not beyond reasonable doubt but to establish a prima facie case. Thus, if at the close of the prosecution’s case, the prosecution is unable to lead prima facie evidence to prove the elements of the offence, the court is under a mandatory duty to relieve the accused person from opening his defence. The accused shall accordingly be acquitted and discharged. The accused person will only be called upon to open his defence if the evidence led by the prosecution at the close of its case, prima facie, proves all the elements of the offence. In a situation where the Court, in the absence of a prima facie evidence, still calls upon the accused person to open his defence, that would occasion a substantial miscarriage of justice. What constitutes a submission of no case has received judicial pronouncements. Thus, in the case of Apaloo And Others V. The Republic [1975] 1 GLR 156-192 at p. 175 The circumstances in which a submission of no case may successfully be made are: (a) when there has been no evidence to prove an essential element in the crime charged; and (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict upon it. The Supreme Court affirmed the position in the case of Asamoah and Another Vs Republic 2017 GHASC 13 succinctly summarised the principles in the following terms: Page 4 of 12 "The underlying factor behind the principle of submission of no case to answer is that an accused should be relieved of the responsibility of defending himself when there is no evidence upon which he may be convicted. The grounds under which a trial court may uphold a submission of no case as enunciated in many landmark cases whether under a summary trial or trial by indictment may be restated as follows: a. there had been no evidence to prove an essential element in the crime; b. the evidence adduced by the prosecution had been so discredited as a result of cross-examination; or c. The evidence was so manifestly unreliable that no reasonable tribunal could safely convict upon it. d. The evidence was evenly balanced in the sense that it was susceptible to two likely explanations, one consistent with guilt, and one with innocence. Therefore, to succeed with the submission of no case to answer by the 2nd accused person, it should be established that either the evidence adduced by the prosecution had been so discredited as a result of cross- examination by counsel for 2nd accused or that the it was so manifestly unreliable that the court could not safely convict the 2nd accused upon it or it was evenly balanced in the sense that it was susceptible to two likely explanations, one consistent with guilt of the 2nd accused, and the other his innocence. Page 5 of 12 The court would therefore evaluate the evidence of the prosecution based on the test referred to supra to ascertain whether a prima facie case has been established against the 2nd accused to warrant him to be called upon to open his defence. Evaluation of evidence and application of laws The evidence of Pw1 that on 9th February, 2024, he purchased motor tricycle valued at GH¢ 24,000.00 for 1st accused for commercial work but failed to account for sales and could also not be traced, was not contested by 2nd accused. The evidence of Pw1 that 1st accused sold the motor tricycle to 2nd accused for GH¢ 5,000.00 and paid GH¢ 4,600 leaving the balance of GH¢ 400.00, was also not challenged by 2nd accused. Therefore, the evidence of the prosecution witness that 2nd accused purchased the tricycle motor for GH¢ 5,000.00 for which he paid GH¢ 4,600.00 leaving the balance of GH¢ 400.00 remains unchallenged. Counsel for 2nd accused maintained that 2nd accused withheld the payment of the full amount on the understanding that the balance of GH¢ 400.00 would be paid to 1st accused upon receipt of documents covering the tricycle motor. The following ensued when counsel for the 2nd accused cross examined Pw2, the investigator for the prosecution. Ques: It was after the arrest of A1 that he told you he had sold the Apsonic tricycle to A2. Ans: Yes. Ques:Do you know the price at which A1 sold it Ans: Yes Page 6 of 12 Ques: Please tell the court how much it was sold to A2 by A1 Ans: A1 confirmed to police that he sold the Apsonic tricycle to A2 for GH¢ 5,000.00. A2 paid GH¢ 4,600.00 leaving a balance of GH¢ 400.00 Ques: Are you aware A2 requested A1 to furnish him with documents covering the Apsonic motor bike before he pays the outstanding GH¢ 400.00 Ans: Yes. I am aware. Considering the evidence of Pw1 and Pw2 and the cross examination of Pw2 by counsel for the 2nd accused, the following facts are not in dispute: i. that 1st accused sold the motor tricycle to 2nd accused for GH¢ 5,000.00 and paid GH¢ 4,600 leaving the balance of GH¢ 400.00 ii. that 2nd accused withheld the payment of the full amount on the until 1st accused produce documents covering the tricycle motor. Sections 146 and 147 of the Criminal and Other Offences Act, 1960- Act 29 state: 146. Dishonestly receiving property: A person who dishonestly receives property which that person knows has been obtained or appropriated by a criminal offence punishable under this Chapter commits a criminal offence and is liable to the same punishment as if that person had committed that criminal offence. Page 7 of 12 147. Dishonestly receiving (1): A person commits the criminal offence of dishonestly receiving property which that person knows to have been obtained or appropriated by a criminal offence, if that person receives, buys, or assists in the disposal of the property otherwise than with a purpose to restore it to the owner. In the case of Rahim Ibrahim v The Republic; Unreported, Criminal Appeal No. H2/2/201; delivered on 19th July, 2017, the Court of Appeal, per Ackah-Yensu JA, stated the ingredients and the requirement of the prosecution to obtain conviction on dishonestly receiving property and the duty of the court under the circumstances: When a person is charged with dishonest receiving the prosecution must prove the following essential ingredients, namely (1) that the accused received property which he knew to have been obtained or appropriated by crime, and (2) that the receipt of the property was dishonest. These two essential elements constitute the actus reus and the mens rea of the offence of dishonest receiving. Proof that the accused person received something which has been stolen or obtained by any crime is not sufficient. There must be further proof that the accused person knew that the thing had been stolen or obtained by crime. Since proof of guilty knowledge on the part of the accused person is essential to the constitution of the offence, it is the duty of the court to satisfy itself that the accused knew that the property has been obtained or appropriated by crime. It has been held by the Court of Criminal Appeal in England in the case of R v Johnson (1911) 6 Cr. App R. 218 that knowledge that the property has been stolen must exist at the time of receipt of it by accused”. Page 8 of 12 The court has already established that 1st accused sold the motor tricycle to 2nd accused for GH¢ 5,000.00 and paid GH¢ 4,600.00, leaving the balance of GH¢ 400.00. 2nd accused did receive the tricycle motor from 1st accused who had appropriated it in the course of using same for commercial purposes. What is in dispute is whether the 2nd accused knew or ought to have known at the time he received by purchase of the tricycle motor from the 1st accused that it had been obtained by crime. If 2nd accused knew or ought to have known at the time he received the tricycle motor that it had been obtained by crime, his receipt would have been dishonest. Dishonesty as a mens rea of the offence of dishonestly receiving property, deals with the state of mind of the accused at the time of receipt of the property. Unless accused admits that he knew that the property was procured by means of a crime, the court would have to ascertain the state of mind of accused from the circumstances surrounding his receipt of the property. What then are the circumstances. His Lordship, Adjei, JA in his concurrent judgment in the case of Rahim Ibrahim v The Republic referred to supra on the charge of dishonestly receiving property stated that: The prosecution in proving the charge of dishonestly receiving is required to prove that the accused knew that the television was obtained or appropriated by criminal offence; the accused person received or bought or assisted in the disposal of the property other than with the purpose of restoring it to the complainant. Page 9 of 12 The prosecution did not adduce any evidence to prove that the value of the second accused television and the three hundred and fifty Ghana Cedis were not proportionate to the price of the complainant's television. In determining whether the accused person at the time of buying the television knew that the first accused had dishonestly appropriated the television, the courts take into consideration the circumstances under which the property was sold by the first accused and bought by the second accused and the price at which it was bought.(emphasis mine) His Lordship Continued: Where the price at which the property was bought was disproportionate to the value of the television, the second accused will be presumed to know that the property was a stolen property. The test which is used to determine whether the accused knew that the property was obtained from proceeds of crime is one of subjective test. The trial High Court Judge found that the second accused bought the television without a receipt and the unchallenged evidence on record was that the second accused withheld an amount of fifty thousand Ghana Cedis of the purchase price until receipt was produced by the first accused. This is a clear manifestation that the second accused did not know that the first accused stole the television from its owner and his conviction was unreasonable having regard to the evidence on record. What the court should consider in determining whether 2nd accused knew or ought to have known that the property was procured by means of a crime are the circumstances under which the property was sold by 1st accused and bought by the 2nd accused and the price at which it was bought. Page 10 of 12 First, based on the concurrent judgment of Lordship, Adjei, JA referred to supra, the court has to consider the circumstances under which the property was sold by the first accused and bought by the second accused. Per the evidence, 2nd accused did not pay the full price of GH¢ 5,000.00 as he paid GH¢ 4,500.00 and withheld GH¢ 400.00 until 1st accused produced documents covering the tricycle motor. The conduct of 2nd accused reveals a clear manifestation that the 2nd accused knew he was buying the tricycle motor from a bona-fide owner and did not know that 1st accused stole it from its owner. Second, where the price at which the property was bought was disproportionate to the value, the accused, charged with dishonestly receiving property, will be presumed to know that the property was a stolen property. From the evidence, prosecution did not adduce any evidence to prove that the price of GH¢ 5,000 at which 2nd accused purchased the tricycle motor was not proportionate to the market price of a similar used tricycle motor. Therefore, in the absence of evidence to establish that the purchase price of the used tricycle motor was disproportionate to the price for similar used tricycle motor, the court would accept the price of GH¢ 5,000 for the used tricycle motor was fair and a reflection of the market price of a similar used tricycle motor. Conclusion The court, after evaluation of the evidence and the applicable laws, is of the view that not only is the evidence adduced by the prosecution discredited as a result of cross-examination by counsel for the 2nd Accused but also that it is manifestly unreliable and therefore unsafe to be relied upon as establishing a prima facie case requiring the court to call upon 2nd accused to open his defence. Page 11 of 12 The prosecution has, therefore, failed to prove the charge of dishonestly receiving property against the 2nd accused, thereby failing to establish prima facie case in line with section 174 of Act 30/60 to require the court to call upon him to open his defence. Consequently, the court, in line with section 173 of Act 3O/60 would acquit and discharge 2nd accused person. Order The 2nd accused person, Kofi Bismarck, is accordingly acquitted and discharged of the offence of dishonestly receiving property under section 146 of the Criminal Offence Act, 1960, Act 29. Eugene Obeng-Ntim (District Magistrate) Page 12 of 12