Republic Vrs.Bosomtwe [2022] GHACC 137 (15 November 2022)

IN THE CIRCUIT COURT OF GHANA HELD AT CAPE COAST CENTRAL REGION ON TUESDAY 15TH DAY OF NOVEMBER, 2022 BEFORE H/H DORINDA SMITH ARTHUR (MRS.), CIRCUIT COURT JUDGE. _____________________________________________________________________ SUIT NO. 213/2022 THE REPUBLIC VRS ATO KWAMINA ISAAC BOSOMTWE JUDGMENT The Accused person was arraigned before this Court March 24, 2022 for the offences of Possession of unregistered Arm and Threat of Death Contrary to Section 11(1)(A)(F) of the Arms and Ammunition Decree, 1972, NRCD 9 and Section 75 of The Criminal Offences Act, 1960 Act 29. The accused person pleaded not guilty to the charges preferred against him for which reason the prosecution assumed the burden of proof and must prove the charges against the accused person beyond reasonable doubt in accordance with; Section 11(2) of the Evidence Act 1975 NRCD 323 states; Page 1 of 8 “In a criminal action the burden of producing evidence when it is on the prosecution as to any fact which is essential to guilt requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind will find the existence of the facts beyond reasonable doubt.” Further, Section 13(1) of NRCD 323 provides that the standard of proof is nothing less than proof beyond reasonable doubt no matter the offence charged. See the case of Ampabeng Vrs Republic [1977] 2 GLR 171 CA THE PROSECUTION CASE The summary of prosecution evidence is that on 21/03/22 at about 8.30am, a case of threat of death and possession of unregistered arm was referred to the investigator (PW1) for investigations. He obtained statement from the complainant and witnesses and went with complainant to accused person at his house at Amoanda near Elmina and arrested him. PW1 retrieved a single barrel gun from the room of accused but he could not produce to him a copy of the documents covering it. He took investigation caution and charged statements from accused. According to PW1, it was revealed from his investigation that accused has a land and the complainant is a sand winner. He stated that there has been land litigation between the family of accused and the chief of Amissano which is before the Omanhene of Elmina. The chief of Amissano according to him gave the land to complainant for him to win sand on the land since the accused failed to produce the land documents to the chief. He continued that the complainant on 21/03/22 hired a pull loader machine to the site to start work and upon arrival the accused appeared and in the presence of witnesses pulled a single barrel gun at the machine operator threatening to shoot and kill him if he does come again unto the land. Page 2 of 8 PW1 tendered in evidence the caution and charge statements of accused, a picture of the single barrel gun and the actual gun. EVALUATION OF EVIDENCE AND APPLICATION OF LAW At the close of case of prosecution, the court suo moto entered submission of no case per Section 173 of Act 30/60. The court is of the view that a case is not made out against the accused person sufficiently to require him make a defence and that the accused person be acquitted and discharged with respect to the charge of threat of death. These are my reasons: Section 75 of Act 29/60 states; “A person who threatens any other person with death, with intent to put that person in fear of death commits a second degree felony” In order to ground a conviction, the prosecution would have to establish that; 1. The accused threatened the complainant with death. 2. The threat was with the intention of putting the complainant in fear of impending death. The first issue is that accused person threatened the complainant with death. What then is threat? Page 3 of 8 The learned author JC Smith in his book Criminal law, international student edition (10th edition) page 767 paragraph 3 writing on threatening, abusive or insulting said among others; “The words threatening, abusive or insulting are to be given their ordinary meaning. It is not helpful to seek to explain them by the use of synonyms or dictionary definitions because an ordinary sensible person knows an insult when he sees or hears it and whether a particular conduct is threatening or not is a question of fact” Therefore, the intention of the accused could easily be deduced from his conduct vis- avis the proven facts. PW1 the only prosecution witness was not present at the scene when the alleged incident occurred and there is no recorded evidence of that threat for the court to make clear inference or deductions from it. The failure of prosecution to bring crucial witnesses such as the victim or complaint is fatal to the case of prosecution. See REX VRS GEORGE KUREE [1941] 7 WACA 175 AND REGINA VRS ANSERE [1958] 3 WALR 385 distinguished in GLIGAH AND ATISO VRS THE REPUBLIC [2010] SCGLR 870 Here, prosecution is to prove beyond reasonable doubt that the accused person used a single barrel gun to put fear at the machine operator threatening to shoot and kill him if he does come again unto the land. From the brief fact of the case as presented by prosecution, the complainant is not the machine operator but rather one Kwame Nketiah a sand winner. It is noted that the facts in the brief fact is materially different from the witness statement of PW1. Page 4 of 8 It is to be noted that prosecution is to provide essential evidence that the victim apprehended death from the actions of the accused person. The victim was not in court to testify and prosecution only witness was not a witness to the alleged threat of death. In the case of BEHOME V. THE REPUBLIC [1979] GLR 112-128 per OseI-Hwere J. as he then was, the court stated in obiter thus; “A threat which might be carried out upon some contingent event could ground an offence under either section 74 or 75 of Act 29. In the offence of threat of death, the actus reus would consist in the expectation of death which the offender creates in the mind of the person he threatened while the mens rea would also consist in the realisation by the offender that his threat would produce that expectation. So the complainant should be scared of an imminent death which is about to be occasioned and perpetuated by the accused and the accused should realised that his action will bring out such results.” The question is, was the complainant actually scared of an imminent death and did the accused realise his action would produce that expectation? The court cannot never know as there are no proven facts presented by the witness or victim for the court to make a safe inference from. This is because prosecution could not prove that the accused person did threaten to kill the complainant and the complainant was scared of an imminent death. The complainant did not appear in court to testify and so did the other alleged witnesses appear in court to testify for the court to make such inference. Justice S. A. Brobbey in his book “Practice and Procedure in the Trial Courts and Tribunals of Ghana” 2nd Ed at page 127 gives the general grounds for a submission of Page 5 of 8 no case to be upheld. It is stated that “generally 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: (i) The prosecution has not led any evidence to prove an essential elementary or ingredient of the charge, or (ii) The evidence adduced by the prosecution is so contradictory or so discredited as a result of cross examination or so manifestly unreliable that no reasonable court could safely convict on it.” See STATE VRS ALI KASSENA (1962) 1 GLR 144, SC and STATE VRS ANNAN (1965) GLR 600 This implies that there should be a prima facie case against the accused person based on the evidence adduced by the prosecution before the accused person can be called upon to open his defence and before he testifies in his defence. See COMMISSIONER OF POLICE VRS. ISAAC ANTWI (1961) 1 GLR 408, wherein Korsah CJ (as he then was) stated, inter alia, that the law is well settled that there is no burden on the accused. If there is any burden at all on the accused, it is not to prove anything but to raise a reasonable doubt. The evidence adduced by prosecution’s only witness has not established a prima facie against the accused person. The evidence did not establish that there was a threat of death. There is no direct or indirect evidence to show that accused person threatened the complainant with a gun and that the complainant was afraid of imminent death. Therefore, where the evidence adduced by prosecution fails to establish the ingredients of the offence charged as in this case then it will be wrong to overrule a submission of no case as was held in the case of THE STATE V. ALI KASENA (SUPRA). Page 6 of 8 Consequently, the court will acquit the accused person as prosecution has not proved the acts or ingredients of the charge of threat of death. In PUBLIC PROSECUTOR V. YUVAVAG (1935) 25 CR. APP R 72 AT PAGE 95 that - “Generally speaking, no onus lies upon a defendant in criminal proceedings to prove or disprove any fact, it is sufficient for his acquittal if any of the acts which if they existed would constitute the offence with which he is charged are not proved.” See also DONKOR V. THE STATE (1964) GLR 598 – 602, where the Supreme Court held that “where no offence has been alleged or proved by the prosecution the trial court should not have called on them to open their defence and the subsequent evidence led should not have been taken into account”. Thus, the court is not permitted to call further evidence before ruling on a submission of no case where prosecution has not proved the offence. Therefore, as it is Prosecution that is expected to make a case which the accused person will be called upon to answer, and where no case is made the case for the prosecution is considered as having collapsed and the accused person should be acquitted in accordance with Section 173 of Act 30. Having considered the totality of the evidence adduced by prosecution, the court hereby enters submission of no case and the accused person is accordingly acquitted and discharged on the offence of threat of death. The other charge of Possession of unregistered Arm the court finds a prima facie case has been duly established by prosecution to require accused person make a defence. Page 7 of 8 H/H DORINDA SMITH ARTHUR (MRS.) CIRCUIT COURT JUDGE Page 8 of 8