The Republic Vrs Teye & Another [2022] GHAHC 98 (17 November 2022)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE HOHOE, HELD ON WEDNESDAY THE 17TH DAY OF NOVEMBER 2022 BEFORE HIS LORDSHIP JUSTICE AYITEY ARMAH-TETTEH THE REPUBLIC - APPELLANT NO. F22/14/2022 VRS HAMMOND TEYE ALBERT AWUKU ANAGLI - RESPONDENT ------------------------------------------------------------------- APPELLANT PRESENT RESPONDENT PRESENT COUNSEL MS. ELORM FUGAH (ASSISTANT STATE ATTORNEY) FOR THE APPELLANT MR. EMMANUEL AWIAGA FOR RESPONDENT JUDGMENT This appeal is against the Judgment of the Circuit Court, Jasikan delivered 20 May 2022. By the said judgment, the Circuit Court presided over by His Honour Alfred Kwabena Asiedu acquitted and discharged the 2nd Accused, now the Respondent under Section 2(1) and 2(2) of the Human Trafficking Act 2005 (Act 694) as amended by Human Trafficking Act 2009 (Act 784). Dissatisfied with the said acquittal and discharge, the Appellant has appealed for redress by this Court. The Respondent was charged as follows: Page 1 of 21 STATEMENT OF OFFENCE Human Trafficking contrary to Section 2(1) of the Human Trafficking Act 2005, (Act 694) as amended by Human Trafficking (Amendment ) Act 2009 (Act 784). PARTICULARS OF OFFENCE Albert Awuku Anagli aged 73 (Fisherman): For that you on or before 20th June, 2021 at Njare in the Oti Region in the Republic of Ghana and within the jurisdiction of this court you recruited, transported and harboured Paul Mawunyefia aged 13 for the purpose of fishing on the Volta Lake. FACTS The brief facts of the case as presented by the prosecution are that complainants are Police officers stationed at Dambai. On 20th June 2021, the Oti Regional CID had intelligence that the accused persons, Hammond Teye (1st accused) , Albert Awuku Anagli (2nd Accused now Respondent herein) and others trafficked the victims and others yet to be rescued and were exploiting them by engaging them in fishing on the Volta Lake at Njare near Dambai. They proceeded to the said community and rescued victims Dela Kotoka aged 10, Paul Mawunyefia aged 13 and Vincent Nyungmor aged 16. Dela was found in the house of 1st accused person whiles Paul was found in the house of Respondent. 1st accused confirmed he recruited the victims Dela and Vincent through their parents from Dawa in the Greater Accra Region and Dambai. Respondent affirmed he recruited victim Paul through his parents Paul Dugbaza and Faustina Dugbaza from Abotoase. The victims were kept in a shelter. Page 2 of 21 When the accused persons were arraigned before the trial court, the 1st accused pleaded guilty to the charge against him and was convicted and sentenced to eight (8) years imprisonment in hard labour . The Respondent pleaded not guilty and the case against him proceeded to trial. After the trial he was acquitted and discharged. It is against this acquittal and discharge that the Appellant has appealed to this Court. The grounds of appeal as found in the Notice of Appeal dated 10 June 2022 and filed on 16 June 2022 are as follows: 1. The learned trial judge erred in law when he failed to consider and evaluate the evidence of Paul Mawunyefia (PW1) the victim on the issue of exploitation of him (PW1) by the accused person. 2. The learned trial judge erred in law when he found as a fact that there was no evidence to show that accused person used Paul Mawunyefia to assist him in his trade as a fisherman. 3. The learned trial Judge erred in law when he held that the confession of accused person in Exhibit A was disproved by his answers in denial of the offence in cross examination. 4. The judgment is not supported by the evidence on record. 5. Further grounds of appeal to be filed upon receipt of record of appeal. No further grounds of appeal were filed by the Appellant. I will take the ground 3 of the grounds of appeal first and take the rest of the grounds 1, 2 and 4 together later as all are essentially claiming that the judgment is not supported by the evidence on record and can be put under the omnibus ground that “the judgment cannot be supported having regard to the evidence on record.” Page 3 of 21 It is trite law that an appeal constitutes a re-hearing especially when the Appellant comes under the omnibus ground of appeal that the judgment is against the weight of evidence. In the instant appeal it is criminal one and the omnibus ground of Appeal is “That judgment cannot be supported by the evidence on record.”. And what the re-hearing means is that the appellate court is to evaluate the evidence and assess all documentary evidence and case law and come to its own conclusion. In Agyeiwaa v. P & T Corporation [2007-2008] 2 SCGLR 985, Wood C J said at 989 as thus: “The well-established rule of law is that an appeal is by rehearing, and an appellate court is therefore entitled to look at the entire evidence and come to the conclusion on both the facts and the law.” See also the case of Owusu Domena v. Amoah [2015-2016] 1 SCGLR 790 where the Court held as follows: ‘Where the appeal was based on the omnibus ground that the judgment was against the weight of evidence, both factual and legal arguments would help advance or facilitate determination of factual matters.’’ This court being an appellate one in this matter, is therefore entitled to look at the entire evidence and come to its own conclusion on both the facts and law. As said earlier I will take the 3rd ground of appeal first which is : The learned trial Judge erred in law when he held that the confession of accused person in Exhibit A was disproved by his answers in denial of the offence in cross examination. Page 4 of 21 In proof of its case the prosecution called two witnesses the victim as PW1 and the police investigator as PW2. PW2 tendered in evidence without objection the caution statement of the Respondent which contained a confession as exhibit ‘A’. In his written submission, Counsel for the appellant, in arguing this ground submitted that from the evidence on record, the confession statement tendered in evidence as exhibit ‘A’ met both requirements of voluntariness and the presence of an independent witness and was thus admitted in evidence. Counsel contended that the honourable trial Judge failed to assign the appropriate weight to the statement because the accused denied making the incriminating portions thereof during cross examination. The trial Judge in commenting on the confession statement of the Respondent, exhibit ‘A’, said at page 10 of the judgment as follows: “Admittedly the finding of prima facie case against the accused was mostly due to the content of Exhibit ‘A’ when same was admitted into evidence and particularly of the above quoted portion. However, the answers offered by the accused when prosecution graciously cross examined on it couple with other pieces of evidence on record created a doubt on the confession status of Exhibit ‘A’. I hold the view that the accused person’s denial of making the incriminating portion of Exhibit A is more probable than not.” What is a confession statement and matters relating to its admissibility and effect in a trial of a criminal case? CONFESSION STATEMENT Section 120 of the Evidence Act 1975 (NRCD 323) codifies the law on confession statement in Ghana and it provides as follows: Page 5 of 21 (1) In a criminal action, evidence of a hearsay statement made by an accused admitting a matter which (a) Constitutes , or (b) Forms an essential part of, or (c) Taken together with other information already disclosed by the accused is a basis for an inference of, the commission of a crime for which the accused is being tried in the action is not admissible unless the statement was made voluntarily. (2) Evidence of a hearsay statement is not admissible under section (1) if the statement was made by the declarant while arrested, restricted or detained by the State unless the statement was made in the presence of an independent witness who (a) Can understand the language spoken by the accused, (b) Can read and understand the language in which the statement is made, So, for a confession statement to be admissible in evidence, it must be made voluntary and if the accused made the statement whiles arrested, restricted, or detained by the state it must be in the presence of an independent witness. Put differently, if the confession was made by an accused person who is neither, arrested, restricted nor detained by the state the presence of an independent witness is not required. In the case of Frimpong alias Iboman v. The Republic [2012] 1 SCGLR at 316 the Supreme Court through Dotse JSC on the admissibility of a confession statement at 319 stated as follows: ‘From a careful reading of section 120(1)-(4) of the Evidence Act, 1975 (NRCD 323), the following procedure must be complied with to give validity to a confession statement and make it admissible in law: Page 6 of 21 If the declarant of the statement made the statement while arrested, restricted or is detained by the State, then the statement is admissible only if; (i) (ii) It was made in the presence of an independent witness. the independent witness must understand the language in which the declarant spoke, i.e. the accused therein, the appellant in the instant case; (iii) the independent witness can also read and understand the language in which the statement is made; (iv) whenever the statement is in written from, the independent witness shall certify in writing on the statement as follows: “that the statement was voluntarily made in his presence and the contents were fully understood by the accused” (v) where the declarant is an illiterate or blind, the independent witness shall carefully read over and explain to the accused the contents of the statement before it is signed or marked by the accused. This ensures that the state does not take advantage of the disability of the accused; (vi) the independent witness shall certify on the statement in writing that he had so read over and explained the contents of the statement to the declarant and that he appeared perfectly to understand before making his mark or signature. The rationale for the above elaborate provisions are clear: “They are to ensure that the rights of the declarant, i.e. the accused, who is under restriction, are not trampled upon by the police or the investigative agencies. These constitutes the right of all accused person as has been protected in the 1992 constitution.” In the instant appeal the prosecution tendered the cautioned statement of the Respondent which contained a confession of the Respondent without any objection. Page 7 of 21 It is trite that in a criminal trial, where a confession statement of an accused person is offered to be tendered in evidence by the prosecution, the accused has the right to object to the admissibility of the confession statement in either of two ways. First, the accused person may retract or deny ever making such a confession statement. Second, that the accused may decide to admit having made the statement and signed same but, claim however that he did not make or sign the statement voluntarily. The appropriate procedure to be adopted by the trial court to determine the admissibility or otherwise of the confession statement of the accused person depends upon the nature of the objection raised by the accused or his lawyer. Where the accused person denies ever making and or signing the confession statement, the confession statement is still admissible in evidence against the accused person. However, in the circumstances, the trial court must at the conclusion of the trial determine the weight or probative value of the confession statement. Whatever objection may be made by the defence in such circumstances does not affect its admissibility and therefore it should be admitted in evidence as the issue of voluntariness or otherwise of the statement does not arise. If the objection is on the ground that the statement was not taken voluntarily and not in presence of an independent witness, then the statement will not be admitted until the court conducts a mini trial or voir dire to determine the voluntariness of the confession and its admissibility. See 1. Marfo v The Republic [2018] 127 G. M. J 156 C. A. 2. Kweku Atta v The Republic [2022] 176 G. M. J. 471 SC And the Nigerian case of Anthony Omoruyi v S. (B 245 of 2011 2014} NGCA 19 (01 MAY 2014) Page 8 of 21 The Evidence Act supra section 6 provides for objection of evidence as follows: (1) In an action, and at every stage of the action, an objection to the admissibility of evidence by a party affected by that evidence shall be made at the time evidence is offered. (2) An objection to the admissibility of evidence shall be recorded and ruled upon by the Court as a matter of course. In the instant appeal the Respondent did not object to the admissibility of the confession statement made on any grounds. Indeed in his evidence in chief he, admitted that exhibit ‘A’ was voluntarily taken. This is what he said: “I was only asked by them to take my statement which I voluntary gave.” Indeed, if the Respondent did not make the confession statement as he claims in his answers under cross examination, he would have objected to it when the first opportunity to object arose. The trial court ordered discoveries before the hearing of the case. As part of their discoveries, the prosecution served the Respondent with the exhibits they intended to tender in proof of their case, and it included the cautioned statement (exhibit ‘A’). And the first opportunity that the Respondent had to object to admissibility of exhibit A in indeed he did not make it was when it was offered in evidence by PW2. But he did not. He also had the opportunity to challenge it when his Counsel cross examined PW2 but he did not. Counsel for respondent never challenged PW2 on the confession made by Respondent. Counsel did not challenge PW2 that Respondent made the confession. Counsel for Respondent also did not dispute the presence of an independent witness when the statement was taken. The confession status of exhibit ‘A’ was never challenged by Respondent when PW2 was cross examined. PW2’s evidence was not discredited in any way. Respondent again had the opportunity to retract from the Page 9 of 21 confession when he filed his witness statement which was adopted as his evidence in chief, but he did not. Exhibit ‘A’ was admitted in evidence without objection before the Respondent filed his witness statement which was later adopted as his evidence in chief. Exhibit ‘A’ was admitted in evidence on 17 November 2021 and the witness statement of the Respondent was filed on 18 December 2021, a whole month after. In his witness statement, Respondent did not deny ever making the confession or retract from the confession. He only said the statement was voluntarily given by him. In his book Essentials of the Ghana Law of Evidence, S. A. Brobbey, the eminent jurist at page 139 had this to say on the evaluation of a confession. “Once the confession is admitted in evidence, it will require no further proof of its content before it will be relied on. To that extent, confession statements, as variants of admission constitute one of the matters which require no proof. The rule is that admissibility is one thing, and the weight to be attached to the confession is another thing. During the main trial, the prosecution will be at liberty to lead evidence that will strengthen or buttress the confession. That will amount to proof of the confession. By the trial stage, the confession would have been proved already. The accused or his counsel is at liberty to comment on the confession, lead evidence on their version of the confession or cross-examine aspects of it, if only to tone down the effect of the confession on the crime charge or discount the weight of the confession. Cross -examination on the contents of the confession may take place only during the substantive trial but not during voir dire.”( bold italics mine). The first time the Respondent raised an objection to or denied making the confession and the presence of an independent witness was after prosecution had closed its case and Respondent was under cross examination. Page 10 of 21 Even though answers given by a witness under cross examination forms part of the witness’s evidence and should be considered when the whole evidence is being analysed, it is my view that the point in time at which the evidence is offered should be a subject of comment. In this instant appeal, the Respondent made the confession on the day after he was arrested when the matter was fresh in his mind. He had the opportunity to object to it when the prosecution offered to tender it, but he did not. He had the opportunity to deny it when his counsel cross – examined PW2 but he did not. He again had the opportunity to deny making the confession when he filed his witness statement which was adopted as his evidence in chief, but he did not. He only objected to the confession by retracting it for the first time when he was under cross examination and after prosecution had closed its case. What were the answers given by the Respondent when he was cross examined by the prosecution on the contents of exhibit A? Q. You gave a caution statement to the police on 21/06/21 admitted as Exhibit A A. That is so Q. And you told the police all you know about the case in exhibit A. A. That is so. Q. Exhibit ‘A’ says you spoke in Ewe language. A. That is so. Q. So you clearly understand what you said in Exhibit ‘A’. Page 11 of 21 A. It is true but with explanation that he never read and interpreted it to me to know if what I said is what is captured. Q. You did not object to the tendering of the statement? By court: Disallowed as being legal argument. Q. Your statement was taken in the presence of an independent witness by name Prince Oduro of Dambai junction? A. People were there but I don’t know whether the said Prince Oduro was present. Q. I am putting it to you that the Prince Oduro was the independent witness who was present? A. I don’t know the people who were there to accept that. Q. in exhibit A you stated you went to the parent of the victim Bless and Paul Mawuyenfia at Abotoase Gbadagba ? A. I went to Abotoase Gbadagba but that was not where I took them. Q. That you pleaded with the parents to allow Bless and Paul to stay with you at Njare. A. I took them but never begged them. Q. That they were to live with you to be schooling and helping you on fishing on Saturday and Sunday and they obliged. A. I informed them to come and stay with me to go to school only. Page 12 of 21 Q. That you stated in Exhibit ‘A’ that you engaged Paul Mawuyenfia in exploitation labour in fishing. A. That is not so. I find the answers given by the Respondent in denial of the confession in exhibit ‘A’ under cross examination and after prosecution had closed its case as an afterthought and the answers cannot in my view be taken as disprove of the confession. The bare denial of the Respondent that there was an independent witness and that the content was not read over and explained to cannot be taken as disprove of the confession of the respondent. In the case of Francis Atini v The Republic Criminal Appeal No. H2/17/2019 dated 23rd December 2020 CA, the Court of Appeal had this to say on the matter: “The evidence in the box was in conflict with the caution statement by the appellant. The evidence can best be described as an afterthought. It can be deduced that; the appellant told the truth when the matter was still fresh in his mind and had no time to manipulate same. His later evidence is an afterthought, and self-serving. It carries no weight and same is rejected. He gave a detailed account of how he took the tyres and the batteries and sold same without the consent of the complainant who was the owner of the items.” Further a comparison of the contents of Exhibit A and the Respondent’s evidence also shows that while certain portions of Exhibit A are consistent with the Respondent’s evidence others are not. The Respondent told police in exhibit A that the mother of PW1is his sister’s daughter and that he went to her at Abotoase in the beginning of the month of May and brought her children Bless and PW1 to live him at Njare. These are consistent with the Respondent’s evidence at the trial. The Respondent also stated in Exihibit A that he brought PW1 to Njare to enroll them in school and help in fishing over weekends. However, in his evidence he said he only brought PW1 to Njare to enroll him in school. Page 13 of 21 This statement is inconsistent with the Respondent’s earlier statement in Exhibit A and these inconsistencies put the credibility of the Respondent in question and is not worthy of credit and his evidence cannot be regarded as being of any importance. See Gyabaah v The Republic [1984-86] 2 GLR 461 holding 2 This court will therefore reject the evidence of the Respondent offered under cross examination in retraction of the confession and the absence of an independent witness when the prosecution had closed its case as an afterthought and self-serving and carries no evidential or probative value. The trial judge said in the judgment that answers offered by the Respondent under cross examination coupled with other pieces of evidence on record created a doubt on the confession statement of Exhibit ‘A’. What were the other pieces of evidence on record? The Respondent testified that the victim and his sister were not attending school because there is no school at Aboatoase Gbadagba, so he brought them to Njare to attend school, but the evidence shows that he did not enroll the victim and his sister in school. His reason was that immediately he took the victim and his sister he had to travel for three weeks to attend a funeral of his. I find this reason not probable. According to the Respondent the mother of the victim brought them to him on 17th May 2021 and on the following day 18th May 2021 he decided to enroll them in school, but he had to travel to attend a funeral on that very day 18th May. He said he spent three weeks away for the funeral from the 18th of May 2021. So by calculation he would have returned on the 8th of June 2021. It took him two days to go to the school for their enrolment. Two days from 8th June 2021 is 10th June 2021 which was Thursday. According to the respondent he had to get school uniforms and other items for them before they could be enrolled, and he would only get those items on the following Monday which was a market day. The Monday and next market day from Thursday 10th June was 13th June 2021. The victim was arrested on 20th when he had not been enrolled Page 14 of 21 in school. Even though the parents of the victim told them that the Respondent came for the victim and his siter to enroll them in school he did not enroll them. I find that the respondent never intended to enroll the children in school. The trial Judge found that the answers given by the Respondent under cross examination and other pieces of evidence on record created a doubt on the confession status of exhibit A. I find that this finding of the trial judge is not supported by the evidence on record, and I reject this finding and accordingly reverse same. I will deal with grounds 1,2 and 4 together under the omnibus ground that the judgment is not supported by the evidence on record. The Respondent was charged with the offence of Human Trafficking contrary to section 2(1) and 2(2) of Act 694 as amended by the Human Trafficking (Amendment) Act 2009, Act 784. Section 2(1) and 2(2) provides as follows: Prohibition of trafficking (1) A person shall not traffic another person within the meaning of section 1 or act as an intermediary for the trafficking of a person. (2) A person who contravenes subsection (1) commits an offence and is liable on summary conviction to imprisonment for a term of not less than five years. Section 1 of the Act explains what Human trafficking means: Page 15 of 21 "(1) Human trafficking means the recruitment, transportation, transfer, harbouring, trading or receipt of persons for the purpose of exploitation within and across national borders by. (a) the use of threats, force or other forms of coercion, abduction, fraud, deception, the abuse of power or exploitation of vulnerability, or (b) giving or receiving payments and benefits to achieve consent. " In my view the elements of the offence for which the Respondent was charged with are the following: 1. That the accused recruited, transported, transferred, harboured, traded or received the Victim(s) for the purpose of exploitation within and across national borders and must do so by (a) the use of threats, force or other forms of coercion, abduction, fraud, deception, the abuse of power or exploitation of vulnerability, or (b) giving or receiving payments and benefits to achieve consent. " For the prosecution to secure conviction of the accused person on the charges proffered against him, the prosecution must be able to prove each, and every element of the offence beyond reasonable doubt. In the instant appeal, from the evidence on record it is not in doubt that the Respondent transported the Victim and his sister Bless from Aboatoase Gbadagba where they were living with their parents to Njare where the Respondent lives and carry on his fishing. The victim testified that the Respondent brought him and his sister from Aboatoase Gbadagba to Njare. The Respondent corroborated this evidence of the Victim PW1. Page 16 of 21 Counsel for the Appellant referred the court to the interpretative note [Report of the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime on the work of its first to eleventh sessions. UNGAOR, 55th Sess, UN Doc A/55/383 Add .1 (3 November 2000) art. 3 (a) to the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (Palermo Protocol), based on which our Act 694 was enacted. According to the interpretative note, the abuse of a position of vulnerability ‘’is understood to refer to any situation in which a person involved has no real and acceptable alternative but to submit to the abuse involved.” The victim in the instant Appeal a 13 year old who has been taken away from his parent and given to a suppose grandfather who takes him to his village had no real or acceptable alternative but to submit to being taken away by the Respondent and using such a vulnerable child in fishing on the Volta Lake and exposing him greater risk of harm. On the last element of the offence, the Respondent in Exhibit ‘A’ confessed using the victim PW1 for fishing. This is what he said: “I am a fisherman at Njare. The parents of the victims Paul Mawunyefia and Bless Mawunyefia are Fuatina Dugbaza and Paul Dugbaza. The mother of the victims is my sister’s daughter she calls me uncle. In the beginning of the month May, 2021, I went to the parents of victim Bless and Paul Mawunyefia at Aboatoase Gbadagba and pleaded with them to give me their children victims bless and Paul to stay with me at Njare and be schooling and help me in fishing on the Volta Lake on every Saturdays and Sundays and they obliged. They give (sic) victims to me, and they are with me at Njare. During weekends myself and victim Paul Mawunyefia has (sic) been going for fishing on the Volta Lake but for Bless she do help my wife at home only. I have not pay (sic) any money to the victim’s parents. The agreement with them was that the victims should stay with me and be Page 17 of 21 schooling whilst they help in fishing and home activities. Indeed, I use Paul Mawunyefia in exploitation in fishing on the Volta Lake at Njare.” It is settled principle that although a confession statement , once properly proved and admitted in evidence can be sufficient to warrant a conviction of an accused person, it is desirable to have extraneous to the confession some corroborative evidence, no matter how slight, of circumstances, that makes it possible that it is true . See the case of State v. Owusu & Anor [1967] GLR 114. In his book Essentials of the Ghana Law of Evidence referred supra, the learned author had this to say on analyzing confession statement “Once the confession is admitted in evidence, it will require no further proof of its content before it will be relied on. To that extent, confession statements, as variants of admission constitute one of the matters which require no proof. The rule is that admissibility is one thing, and the weight to be attached to the confession is another thing. During the main trial, the prosecution will be at liberty to lead evidence that will strengthen or buttress the confession. That will amount to proof of the confession. By the trial stage, the confession would have been proved already………….” It is trite learning that a voluntary confession offers the best evidence against an accused person. In Republic v Agyiri alias Otabil [1982-83] GLR 251 Twumasi J had this to say on confession statement: “There is a well-established principle of law that voluntary confession by an accused person to the commission of a crime charged is sufficient to support conviction. Therefore the onus lies on the prosecution to prove that confession was voluntary. In other words, the Page 18 of 21 prosecution must prove that there was no inducement by threat or duress or promise held out to the accused by a person in authority, e.g. a police officer….” Also in Kwadwo Ofori v. The State (1963) 2 GLR at 452, Blay JSC stated as follows: “ … It is however settled law that a free and voluntary confession of guilt by an accused person, whether under examination before a magistrate or otherwise, if it is direct and positive, and is duly made and satisfactorily prove, is sufficient to warrant a conviction without any corroborative evidence …”. The words of Akamba JA (as he then was) in John Logan and Others v. The Republic (Unreported) Criminal Appeal No. H2/16/2005, dated 4th November 2005, is also instructive. He said: “ … Free and voluntary confession of guilt by an accused person … should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt….” The victim PW1 evidence corroborated the confession of the Respondent. He testified as follows: “The accused person, Tordi, transported myself and my younger sister Bless from Aboatoase Gbadagba to Njare and he started fishing with me whilst Bless was being used for smoking the fish we caught. Tordi and I used to go for fishing twice daily: from 1 am to 4 am and from 4 pm to 5 pm. When we went for fishing on the Volta Lake, I scooped water from the canoe and pulled the net from the lake…… on the day of my rescue, Tordi and I had just returned from fishing, and he asked me to go to bed.” Given the above and coupled with the contents of exhibit A, I am of the respectful opinion that the prosecution established a prima facie case vis-à-vis the fact that the Respondent used the victim in fishing on the Volta Lake. Page 19 of 21 As have been held earlier the story of the Respondent taking the victim to enroll him in school is untenable as he never intended to enroll the victim in school. The Respondent in his defence said the parents of the victim consented in giving the victim to him. The father of the victim Paul Dugbaza testified that he consented to the victim being taken away by the Respondent albeit for schooling. This is no defence to the prosecution of any offence under Act 694 . Sect 1(4) of the Act provides as follows: “Where children are trafficked, the consent of the child, parents or guardian of the child cannot be used as a defence in prosecution under this Act, regardless of whether or not there is evidence of abuse of power, fraud or deception on the part of the trafficker or whether the vulnerability of the child was taken advantage of.” In Lutterrodt v. Commissioner of Police (1963) 2 GLR 429 the Supreme Court in holding 3 held as follows:- “(3) 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) (b) (c) If the explanation of the defence is acceptable, then the accused should be acquitted ; If the explanation is not acceptable, but is reasonably probable, the accused should be acquitted; 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. ‘’ Page 20 of 21 In my opinion despite the explanation given by the Respondent and taking into consideration the whole evidence on record, the prosecution was able to prove the guilt of the Respondent beyond all reasonable doubt and I find that the Respondent is guilty as charged. In conclusion I reverse the findings of the trial court and allow the appeal against the acquital and discharge of the Respondent and convict him of the offence charged. I have taken the advanced age of the Respondnet , his ill health and the fact that he is not known by the law into consideration and sentence him to the minimum sentence provided by the law which is 5 years imprisonment . (sgd) AYITEY ARMAH-TETTEH, J (JUSTICE OF THE HIGH COURT ) Page 21 of 21