REPUBLIC VRS. GBEDEMAH AND OTHERS (CR/0627/2021) [2023] GHAHC 629 (24 October 2023)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON TUESDAY THE 24TH DAY OF OCTOBER 2023 BEFORE HER LADYSHIP JUSTICE MARY M. E YANZUH, JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SUIT NO: CR/0627/2021 REPUBLIC VRS 1. JOHN GBEDEMAH 2. GODWIN AWUDZA 3. GABRIEL GODFRED GOVINA 4. BENJAMIN GBADAGO 5. EXCEL LIBERTY AHETO KUEGBESIKA 6. DIVINE NYADZINYOR 7. CEPHAS ZODDANU 8. RICHARD DOGLO AMETEPE 9. COSMOS HAVOR @ TORGBE ADZAKLO 10. VINCENT RAMSAYER ATSU-GALEY JUDGMENT On the 16th of July 2021, the prosecution filed a charge sheet at the Registry of this court, which was substituted with a charge sheet filed on the 22nd of July 2021 and further substituted with a subsequent charge sheet filed on the 20th of October 2021 wherein it charged the accused persons A1, A2, A3, A4, A5, A6, A7, A8, A9 and A10 with offences under the Prohibited Organizations Act, 1976 (SMCD 20). A1 (JOHN GBEDEMAH) COUNTS ONE (1) AND (2) A1 was charged with the offence of being a member of a prohibited organization and participating in the campaign of a prohibited organization contrary to Section 2 (1) (i) and (d) of SMCD 20/76 respectively. A2 (GODWIN AWUDZA) COUNT THREE (3) A2 was charged with the offence of being a member of a prohibited organization contrary to Section 2(1) (i) of SMCD 20 1976. A3 (GABRIEL GODFRED GOVINA) COUNT FOUR (4) AND COUNT FIVE (5) A3 was charged with the offence of being a member of a prohibited organization and attending meetings of a prohibited organization contrary to Section 2(1) (i) and (b) of SMCD 20/76. A4 (BENJAMIN GBADAGO) COUNT SIX (6) A4 was charged with the offence of being a member of a prohibited organization contrary to Section 2(1) (i) of SMCD 20/76. A5 (EXCEL LIBERTY AHETO KUEGBESIKA) COUNT SEVEN (7) A5 was charged with the offence of being a member of a prohibited organization contrary to Section 2(1) (i) of SMCD 20/76. A6 (DIVINE NYADZINYOR) COUNT EIGHT (8) A6 was charged with the offence of being a member of a prohibited organization contrary to Section 2(1)(i) of SMCD 20/76. A7 (CEPHAS ZODDANU) COUNTS NINE (9), TEN (10), ELEVEN (11) AND TWELVE (12) A7 was charged with the offence of being a member of a prohibited organization, attending meetings of a prohibited organization, accepting contributions for the benefit of a prohibited organization, making contributions for the benefit of a prohibited organization contrary to Section 2(1)(i), (b) and (g) of SMCD 20/76. A8 (RICHARD DOGLO AMETEPE) COUNT THIRTEEN (13) A8 has been charged with the offence of being a member of a prohibited organization contrary to Section 2(1)(i) of SMCD 20/76. A9 (COSMOS HAVOR) COUNTS FOURTEEN (14) AND FIFTEEN (15) A9 has been charged with the offence of attending meetings of a prohibited organization and participating in the campaign of a prohibited organization contrary to Section 2(1)(b) and (d) of SMCD 20/76. A10 (VINCENT RAMSAYER ATSU-GALEY) COUNTS SIXTEEN (16) AND SEVENTEEN (17) A10 has been charged with the offence of being a member of a prohibited organization and attending meetings of a prohibited organization contrary to Section 2(1)(i) and (b) of SMCD 20/76. PLEA OF THE ACCUSED PERSONS On the 28th of October 2021, the A1, A2, A3, A4, A5, A6, A7, A8 and A10 pleaded not guilty to all charges preferred against them after same had been read and interpreted in the Ewe language. The A9 was absent in court on that day. On the 11th of November 2021 the A9 was present in court and he pleaded not guilty to the charges preferred against him after same had been read and interpreted in the Ewe Language. FACTS OF THE CASE The facts as given by the prosecution are that after the arrest and release of Charles Kwami Kudzordzi @ Papavi Hogbedetor, who is the founder and leader of the Homeland Study Group Foundation, a prohibited organization, he has been in hiding. As a result of that, the other members of this organization formed other prohibited organizations to continue from where Papavi Hogbedetor left off. Prosecution states that prominent among these prohibited organizations are the Western Togoland Restoration Front (WTRF), United Freedom Fighters (UFF), and Concerned Citizens of Western Togoland (CCWT). The aim of these prohibited organizations is to secede from Ghana and form a new sovereign State. The new state is to cover the entire Oti and Volta regions and parts of the Eastern and Northern regions of the Republic of Ghana. In pursuance of this agenda the prosecution asserted that, many young people were recruited and trained to become the core of the rebel group that would eventually become the military and police of the envisaged state. The Western Togoland Restoration Front, which is headed by Michael Koku Kwabla Amertonu Gohey @ Togbe Yesu Edudzie, who was deputy to Papavi Hogbedetor, at its National Executive Council meeting, decided to block the roads at Sogakope, Sege, Kpong and Juapong. In addition to this, they also planned to attack the Aveyime and Mepe Police Stations. On 25th September 2020, at dawn, the roads were indeed blocked with trips of sand and burning tyres. This caused vehicular traffic and inconvenience to motorists. The members of the Western Togoland Restoration Front also attacked the Aveyime and Mepe Police Stations respectively, held the officers and their families’ hostage, freed inmates from the cells, broke into the armory of these two police stations and made away with arms and ammunitions belonging to the Ghana Police service. The case as recounted by the prosecution continues that the 1st accused person John Gbedemah is a native of Asadame near Abor but a resident of Juapong. He was captured in a picture at the scene of the crime taking part in the demonstration at Juapong, in the Volta Region on the 25th September 2020. The 2nd accused person Godwin Awudza is a native of Kpodofo near Kpong, in the Eastern Region but resident at Juapong. He has been identified as a member of WTRF. He participated in both planning and execution of the riotous demonstration at Juapong on 25th September 2020. He was captured in a photograph with the demonstrators. The 3rd accused person Gabriel Godfred Govina is a retired teacher, a native and resident of Dabala. He has been identified as a member of HSGF. In the course of investigations, the 3rd accused person Govina Gabriel Godfred, admitted he belongs to the Homeland Study Group Foundation which was established by Charles Kudzordzi. He further explained that the group was founded so many years ago but he joined the group in 2017. The 4th accused person Benjamin Gbadago is a native of Sokpoe, Volta Region but resides at Akateng near Asesewa, in the Eastern Region. He has been identified as a member and financier of HSGF. He was also seen in a video seated just behind Togbui Yesu who was delivering a speech at one of WTRF meeting. The 4th accused admits that although he is a member of the Homeland Study Group’s whatsapp platform, he does not actively participate in the group. The 5th accused person Excel Liberty Aheto Kuegbesika is a native of Tadzewu but resides at Aholukope near Juapong. He is a member of WTRF and participated in both planning and execution of the riotous demonstration at Juapong on 25th September 2020. In his cautioned statement, he admitted posting the flag of the Western Togoland Restoration Front and videos of the incident at Sogakope, Sege, Kpong and Juapong on his Whatsapp status and thereby creating awareness of the event. The 6th accused person Divine Nyadzinyor is a native and resident of Juapong. He is a member of WTRF. He participated in both planning and execution of the riotous demonstration at Juapong on 25th September 2020. He was arrested on 28th September 2020 after he was captured in a photograph in the company of the demonstrators. The 7th accused person Cephas Zoddanu is a native of Battor. He admitted being a member of WTRF but abandoned the group before the riotous demonstration that led to the attack on the police. He admitted to have attended several meetings of WTRF including the flag hoisting at Nyatikpo on 1st September 2020. He further admitted they held meetings in one Joy Adrah’s house at Battor. He financed the group through the payment of dues and stated that meetings were held twice in every month. The only reason he decided to disassociate himself from the group was because the dues demanded by the leaders of the group was too much to pay. The 8th accused person Richard Doglo Ametepe admitted to have joined the group in 2018 but claimed he withdrew his membership after the arrest of their leader ‘Papvi’ about a year ago. It has been uncovered that he and his son one Mawunyegah alias ‘DD’ (at large) hosted suspected militants of WTRF in their house days before the riotous demonstration and the attack on the local police. The 9th accused person Cosmos Havor is alleged to be a member of WTRF. On 1st September 2020 the prosecution alleges that he joined other members of the group at a rally held by the group at Nyatikpo, Volta Region. At the meeting, the founder and leader of the group, Michael Kwabla Ametornu @ Torgbe Yesu declared Western Togoland an independent state. The 10th accused person Vincent Ramsayer Atsu-Galey is a member of WTRF, he has been identified as the Assistant Secretary and advisor of West Salt Province (Juapong) of the group. BURDEN OF PROOF The Constitution 1992 Article 19 (2) (c) presumes everyone innocent until the contrary is proved. In other words, whenever an accused person is arraigned before any court in any criminal trial it is the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond any reasonable doubt. The burden of proof is therefore on the Prosecution and it is only after a prima facie case has been established by the Prosecution that the accused person is called upon to give his side of the story. See the case of Gligah & Anr. v The Republic [2010] SCGLR 870 Whenever the prosecution initiates a criminal proceeding by arraigning an accused person before the court alleging that he/she has committed a criminal offence, the prosecution assumes the burden to prove the guilt of the accused person or persons beyond reasonable doubt. The Accused person or persons need not prove his or their innocence, the only burden on the accused person(s) whenever the law requires that he makes his defence is to produce sufficient evidence so that on the totality of the evidence produced, a reasonable mind could have a reasonable doubt as to his guilt. This is statutorily provided in Section 11(2) and 13(2) of the Evidence Act NRCD 323 to the effect that: “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 could find the existence of the fact beyond reasonable doubt” Section 13(2) of NRCD 323 provides that “ Except as provided in Section 15(3) , in a criminal action the burden of persuasion, when it is on the accused as to any fact the converse of which is essential to guilt requires only that the accused raises a reasonable doubt as to his guilt” In the case of Commissioner of Police vrs Isaac Antwi [1961] GLR 408 Korsah CJ stated that: “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” Similarly in the case of Isa vrs The Republic (2003-2005) 1 GLR 792 HOLDING (2) it was held that “Taken together, the burden of persuasion and the burden of producing evidence as defined in sections 10 and 11 of the Evidence Decree, 1975 (NRCD 323), respectively were the components of the burden of proof. Thus, although an accused person was not required to prove his innocence, during the course of the trial, he might run a risk of non-production of evidence or non-persuasion to the required degree of belief or both, particularly when he was called upon to mount a defence. In the instant case, although there was no burden on the appellant to show how the money got missing, he had a burden of producing evidence sufficient enough, on the totality of the evidence, to raise in the trial judge’s mind a reasonable doubt as to his having appropriated the money. He, however, failed to lead sufficient evidence to persuade the judge that he had been framed up. Accordingly, the Court of Appeal had been right in its conclusion that when read with the entirety of the judgment, it was clear that the trial judge had properly directed his mind to the relevant burden of proof; and therefore his comments on the nature of the evidence led by the appellant did not amount to a miscarriage of justice within the contemplation of section 31 of the Courts Act, 1993 (Act 459).” In the case of Tsikata v The Republic [2003-2005] 1 GLR 296 at holding one, the court held that “…As provided in section 11(2) and (3) of the Evidence Decree, 1975 (NRCD 323) on the part of the prosecution, the burden of producing evidence required the production of sufficient evidence so that on all the evidence, a reasonable mind could find the existence of facts beyond reasonable doubt, whilst on the part of the accused person, the burden of producing evidence required him to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to his guilt”. It is against this background and standard that I proceed to examine the evidence led to ascertain whether the prosecution has been able to prove the guilt of the accused persons on the charges preferred against them beyond reasonable doubt. DETERMINATION OF THE CHARGES The accused persons have been charged with various offences under the Prohibited Organizations Act Act 1976 SMCD 20. To have a better appreciation of what type of organization the law seeks to prohibit and for clarity, I would reproduce Section 1 of SMCD 20. Section 1 (a) and (b) of SMCD 20/76 provides that: “The following organisations are hereby declared unlawful and prohibited, namely, (a) the organisation known variously as the Togoland Liberation Movement, “T. L. M.”, or “T. O. L. I. M. O.”, the National Liberation Movement of Western Togoland or “N. L. M. W. T.”, and (b) any other organisation, by whatever name it is called, whose objects include advocating and promoting the secession from the Republic of Ghana of the former British mandated territory of Togoland or part of that territory or the integration of that territory with a foreign territory. The burden of the prosecution in this trial is to prove beyond reasonable doubt firstly that the organizations which they are contending is prohibited and of which the accused persons were members of, or attended meetings of, or participated in its campaign among others are prohibited under SMCD 20/76 the law under which the accused persons have been charged. In so doing, then they must lead evidence of the fact that either the said organization is one mentioned in subsection 1(a) of SMCD 20/76 or it is an organization whose objects include advocating and promoting the secession from the Republic of Ghana of the former British mandated territory of Togoland or part of that territory or the integration of that territory with a foreign territory. This is more so when the Constitution 1992 Article 21 (1) (e) guarantees the freedom of every Ghanaian to form or join any association national and international for the protection of their interests within the boundaries of the law. Thus an individual is not prevented from exercising his right to form or join an association of choice but the exercise of that right should not be for the teaching or propagation of a doctrine which exhibits or encourages disrespect for the nationhood of Ghana, the national symbols and emblems, or incites hatred against other members of the community; except so far as that provision or, as the case may be, the thing done under the authority of that law is shown not to be reasonably justifiable in terms of the spirit of this Constitution. 1992 Constitution Article 21 (1) (e) Thus in the case of Mensima and Others v Attorney-General and Others [1997-98] 1 GLR 159 at page 202 the court opined that the liberty to form or join any association of choice “is recognised provided the objects are not illegal or their promotion such as to involve crime or illegality” In the charge sheet and the facts of the case, the two organisations which the prosecution asserts are prohibited under the law are Homeland Study Group Foundation (HSGF) and the Western Togoland Restoration Front (WTRF). The evidence presented by the prosecution both documentary and oral is essentially that the founder of WTRF Michael Amertonu @ Togbe Yesu’s main object was to secede the Volta Region, Oti Region and parts of the Eastern Region from the Republic of Ghana. According to the prosecution, the HSGF whose founder was Charles kormi Kudzordzi advocated for the secession of the Volta and the Oti Regions and parts of the Eastern Region from the Republic of Ghana. For instance in exhibit D the pen drive, the video exhibiting Torgbe Yesu declaring independence amidst jubilation of the people present was presented to the court thereby showing the object of WTRF. In exhibit D also, the members of WTRF exhibited the object and intents of the group when they blocked roads and burnt tyres chanting “Restoration of the Western Togoland”. In the various statements of the accused persons which formed part of the case of the prosecution particularly Exhibit H the caution statement of A3, he informed the police that the goal of HSGF was to teach its members and other people the origins of Ewes, how they became part of modern day Ghana and how there was currently no union between the two countries thereby necessitating the need for separation from each other. In the cross examination made on behalf of the accused persons and also in their evidence on oath, the accused persons admit that the two organisations are prohibited under the law. I therefore find it proved that the prosecution has led evidence to show that the HSGF and WTRF are prohibited organisations under the law. A1 (JOHN GBEDEMAH) COUNTS ONE (1) AND (2) A1 was charged with the offence of being a member of a prohibited organization and participating in the campaign of a prohibited organization contrary to Section 2 (1) (i) and (d) of SMCD 20/76 respectively. Section 2(1)(i) of SMCD 20 provides that: (1) On and after the commencement of this Act, it is an offence for a person, in relation to an organisation referred to in section 1 (i) to be a member of that organisation. Section 2 (1) (d) of SMCD 20 provides: (1) On and after the commencement of this Act, it is an offence for a person, in relation to an organization referred to in section 1 (d) to prepare or participate in a procession or propaganda, or campaign of the organization; PW1 Detective Chief Inspector Godwin Kponyo in his witness statement testified that, the A1 was arrested because he was captured on camera in the midst of the riotous demonstrations at Juapong on the 25th of September 2020. The case of the prosecution according to the PW2 Detective Inspector Eugene Akpor Glover was that the disturbances of the peace in some parts of the Volta Regions of Ghana on the 25th of September 2020 was the activity of the Western Togoland Restoration Front (WTRF) and its related organizations. He stated that the Director General CID therefore set up a team to look into these activities. PW2 corroborated the story of the PW1 to wit that the A1 was arrested because he was captured in the midst of the aforementioned demonstration. The said picture is contained on a pen drive Exhibit D labeled John Gbedemah. In exhibit D, A1 can be seen standing close to some persons with some military personnel standing in front of those persons. One of those persons is holding a banner with the inscription “welcome to Western Togoland”. In the caution statement of the A1 dated the 9th of October 2020 Exhibit F which he relied on in his charge statement Exhibit F1, he informed the police that on the day in question, he heard of an unusual noise at the main Juapong Accra Road and he decided to go to the road to find out what was happening. He stated that he saw a fleet of cars both commercial and private parked at the shoulder of the road. He said that he also saw that some persons had started a fire in the middle of the road obstructing vehicular flow. He said that he also saw a banner erected in the middle of the road with the inscription “Welcome to Western Togoland” He added that he quickly left the scene because he was not interested and as he was walking home he met a troop of soldiers heading towards the scene. He in Exhibit F denied being a member of WTRF due to its political roots and also asserted that he being a member of Jehovah Witness Sect, a religious association which forbids its members from joining political groups, he cannot be a member of the WTRF. In his evidence on oath, A1 in his witness statement filed on the 25th of October 2022 denied being a member of WTRF and explained that on the said 25th of September 2020 while cleaning his pigsty, he heard an usual noise by the roadside and he went there to find out what was happening. He denied participating in the demonstration on the said day. His son Daniel Gbedemah A1’s DWI testified in support of A1’s case that on the day in question, he was with his father cleaning the pigsty when they heard an unusual noise by the roadside so A1 went to find out what was going on. The A1 having denied the case of the prosecution and offered an explanation for his presence at the scene of the demonstration on the said day, the prosecution to my mind and also per the statutory burden laid on them needs to adduce cogent evidence in support of their case, their burden being a high one, especially also when the position of the law is that the mere presence of a person at the scene of crime does not make him an accomplice or perpetrator. From the evidence on record, the prosecution led no further evidence in support of their case. When the room of A1 was searched, nothing relating to WTRF was found. The evidence of PW2 confirms the story of the A1 that he lives close to the scene of the demonstration. It would therefore be difficult for this court to conclude with the scanty evidence on record that A1 is a member of WTRF and also participated in the campaign of that organization. In concluding, let me put it on record that even though the A1 indicated in his caution statement Exhibit F that it was when he was leaving that he saw the military personnel, the exhibit D the picture wherein he is captured shows his presence at the demonstration with the military personnel present. A1 is therefore being untruthful but the law as quoted by AMISSAH J. A. in the case of DARKO v. THE REPUBLIC [1968] GLR 203 is to the effect that, “the principle that an accused person should be acquitted if his defence was believed or if it was reasonably probable did not call for uniformity of expression by judges or the use of any particular form of words. The crucial question relevant to the point in any ordinary criminal trial would turn upon whether the judge or tribunal of fact upon consideration of the whole evidence found that the case of the prosecution had been proved beyond reasonable doubt. Where a court convicted only because it took the view that the accused person’s defence was not to be believed this would be equivalent to shifting the burden of proof on to the defence. For it would in effect amount to saying that he was entitled to be acquitted only if he proved his defence to the satisfaction of the court. By implication the court would then have relieved the prosecution of its duty to prove its case beyond reasonable doubt which it was not entitled to do. A court could not therefore stop short at saying that it was convicting the accused because it did not believe its story. It must go further and show whether his story did not create a reasonable doubt either” To the mind of this court, A1’s mere presence at the scene of the demonstration is not enough for this court to conclude that he is a member of WTRF and that he participated in its campaign by demonstrating on that day. I find therefore that the prosecution failed to prove the guilt of the A1 on both counts one and two. He is therefore acquitted and discharged on both counts. A2 (GODWIN AWUDZA) COUNT THREE (3) A2 was charged with the offence of being a member of a prohibited organization contrary to Section 2(1) (i) of SMCD 20/76. A2 according to PW1 was arrested because he was also captured on camera in the midst of the riotous demonstrations at Juapong on the 25th of September 2020. Upon a search in his room, two blank Western Togoland Citizenship Information Forms were retrieved from his room. They were admitted into evidence as Exhibit A and B. Exhibit A was signed but not filled out. Exhibit B was also blank. In the pen drive Exhibit D, labeled Godwin Awudza, he was captured on camera in the midst of the demonstration. To the prosecution, the picture of A2 is such that it appears that he was “confronting the Military Officers at the scene of the demonstration”. PW2 stated that “in the photograph, he was in the midst of the demonstrators pointing at a security personnel…” A2 in his caution statement admitted into evidence as exhibit G which formed part of the case of the prosecution, stated that on that day at about 5.50am while he was on his motorbike going to work, he came across the roadblock and he questioned the young men behind the blockade and they ordered him to return and just as he was about to turn and leave, an auto mechanic and his brother asked him to take him home. He said that he did as requested and they picked something in a sack and he brought them back to the scene and he left. He added that it was later in the day that a friend told him that the mechanic and his brother carried Western Togoland Flag in the sack that they had. He stated that he could assist the police to locate the shop of the said mechanic. The case of the prosecution therefore is that the fact that the A2 was captured in a picture “pointing at a security personnel” or “he appeared to be confronting the Military Officers at the scene of the demonstration”, the fact that two blank Western Togoland Citizenship Information Forms were retrieved from his room, the fact that he told the police that someone informed him that the two persons he carried on his motor bike had WTRF flags in the sack they carried is conclusive evidence that the A2 is a member of WTRF the prohibited organization. The A2 on his part in his witness statement filed on the 19th of July 2022 which he relied on at the trial testified, that on the day in question he came across the road blockade and questioned the young men behind the blockade who ordered him to return or face their wrath and when he was returning, he met a mechanic who asked him to assist him in carrying his sack at the back of his sack which he did but he did not know of the contents of the sack. To the mind of this court, the evidence presented by the prosecution to prove that the A2 is a member of WTRF falls below the standard required of the prosecution. The picture of A2 taken at the demonstration is not conclusive proof that he was partaking in the demonstration as a member of WTRF. The assertion of the prosecution that the A2 appears to be confronting the military personnel affirms the view of the court. The blank WTRF forms with one signed which the A2 has denied signing and which the prosecution has not led any evidence to show that the said signature is that of A2 is no proof of A2’s membership to the WTRF. Further to that, there is no evidence that the A2 had any knowledge of the contents of the sack the said mechanic brought to the demonstration grounds. I therefore find that the prosecution has not been able to prove the guilt of the A2. A2 is acquitted and discharged A3 (GABRIEL GODFRED GOVINA) COUNT FOUR (4) AND COUNT FIVE (5) A3 was charged with the offence of being a member of a prohibited organization and attending meetings of a prohibited organization contrary to Section 2(1) (i) and (b) SMCD 20/76. The PW1 testified that A3 admitted to being a member of Homeland Study Group Foundation and also admitted that he had attended meetings of the group on some occasions. In the caution statement of the A3 admitted into evidence as Exhibit H, A3 stated to the police that “I belong to Homeland Study Group Foundation which was established by Charles Kudzordzi…I joined the group in 2017. One of the major functions of the group was to study about Ewe people, the origination of the Ewes and why Ewe (Volta region) is located at the Ghana Map. I have attended their meeting twice since I joined the group in Ho and after that I have not heard anything about the group again. It was during this meeting, we were thought about Perbiside (sic) of 1956 and how come the Homeland Study Group Foundation became part of Ghana and there were supposed to be a common union between the two countries that Ghana and the Homeland Study Group Foundation currently called the Volta Region of Ghana. According to Charles Kudzordzi, there was no union between the two (2) countries and as the two countries have to be separated from each other that Western Togoland and Ghana” In his evidence in chief contained in his witness statement filed on the 18th of July 2022, he presented himself to the court as one who was not aware of the object of the group. To his mind and belief, the said group was an NGO. In that same statement, he sought to disassociate himself from the group’s aims, tenets, aspirations or objectives and sought to pledge allegiance to mother Ghana. It is the view of this court that the prosecution having proved that the said WTRF was a prohibited organization, the A3 admitting to being a member of same and also attending its meetings proves the offence he has been charged with satisfactorily to the right degree. His evidence in court is clearly an afterthought and an attempt to mislead the court. I find that the prosecution has been able to prove the guilt of the A3 on counts four (4) and five (5) and I find him guilty of same and convict him accordingly. A4 (BENJAMIN GBADAGO) COUNT SIX (6) A4 was charged with the offence of being a member of a prohibited organization contrary to Section 2(1) (i) f SMCD 20 1976. The evidence prosecution relies on in support of its claim that the A4 is a member of both Western Togoland and Homeland Study Group Foundation is a video contained in Exhibit D labeled Benjamin Gbadago. In the said video is a meeting where some traditional rulers are in attendance while a man described as Togbe Yesu was addressing the gathering in the Ewe Language. In the said video, A4 is seen seated some feet away behind Togbe Yesu. In the caution statement of the A4 admitted into evidence as Exhibit J, he gave account of Togbi Hogbedetor a motivational speaker’s visit to his church wherein a talk on how Ewes migrated to settle in the Volta Region was given. He stated that a few days later, he detected that he had been added to a whatsapp group called Homeland Study Group whose core activities are to study and know much about Ewes. Other things are education, to keep a healthy life and employment issues. He added that he was not actively participating on the whatsapp platform. In his evidence contained in his witness statement filed on the 25th of October 2022, he stated that after Togbe’s visit, he was added to a whatsapp page of HSGF and the group discussed issues relating to herbs but he did not contribute in any way to these discussions. He admitted his presence at the program captured on exhibit D and added that he was on his way to Church at Kpong when he saw the crowd at the Kpong Methodist Park and out of curiosity, he made a detour. He stated that he stayed briefly and left for church in the same church dress that he was captured in. His son testified on his behalf per a witness statement filed on the 27th of June 2022. In his statement, he testified that he has watched the video on Exhibit 4 labeled “Benjamin Gbadago” and he can confirm that the dress the 4th Accused wore that day is the material worn by members of the Apostle’s Revelation Society Church and so the 4th Accused could only have worn it to attend a church program or was on his way to church and made a detour to the said program captured on video. The A4 has admitted that the event on exhibit D was a WTRF event and has given an explanation for his presence at the scene. The rule of law regarding assessing the defence of the accused person has been stated in a number of case law. The court in assessing the defence or explanation of the accused person is firstly to consider if the story or explanation of the accused is acceptable. If the court finds it acceptable, then the court is not to convict. If the court is unable to accept the explanation of the Accused or if the court should consider the explanation not to be true, it should however proceed to consider whether the explanation is nevertheless reasonably probable. If the court finds it reasonably probable, it should not convict. Therefore if the court considers the story of the accused person and finds it reasonably true, then although the court may not believe it, the conclusion in law is that the prosecution has not proved their case to make the court sure that the accused did commit the crime charged. It is trite that in law, it is not only direct or eye witness evidence that can be used to prove a fact in issue. Thus, the mere presence or absence of a direct or eyewitness evidence is not decisive. Where direct evidence is not available, the court resorts to circumstantial evidence. The law requires that, the said circumstantial evidence should lead to the irresistible conclusion that, it is the accused person and not any other person who committed the offence. Thus, for circumstantial evidence to support a conviction it must be inconsistent with the innocence of the accused, and must lead to the irresistible conclusion not only that the crime charged has been committed, but that it was in fact committed by the accused person and by no other person. In other words the evidence on the whole must exclude the probability that the alleged crime could have been committed by some person or persons other than the accused person before the court. Justice Brobbey in his book Essentials of the Ghana Law of Evidence at page 253 noted that: “Circumstantial evidence is the fact from which may be inferred, presumed or deduced, the existence, non existence or proof of another fact. Circumstantial evidence is not proof of the fact itself. It is the pieces or incidents of facts, considered or put together, which provides the basis for drawing conclusion, inference or deduction of the existence or non existence of a fact.” In the case of Duah v The Republic [1987-88] 1 GLR 343, CA in holding 3 the court held that “in criminal cases it was sometimes not possible to prove the crime charged by direct or positive evidence of persons present at the time the crime was committed. So where the testimony of eyewitnesses was not available, the jury was entitled and indeed permitted to infer from those facts which the prosecution had proved other facts necessary either to complete the elements of guilt or establish innocence.” The Supreme Court in the case of Logan v The Republic [2007-2008] Aninakwa JSC re- echoed the law on circumstantial evidence when he said: “… for circumstantial evidence to support a conviction it must be inconsistent with innocence of the accused. It must lead to irresistible conclusion not only that the crime had been committed but it was in fact committed by the persons charged in order to arrive at a definite conclusion. Conviction based on circumstantial evidence which is not supported by facts is wrongful.” In applying the law to the evidence on record, this court has found that HSGF is a prohibited organization. The evidence on record is also that the A4 was found on the whatsapp group of the group which this court has found satisfactorily proved to be a prohibited organization. His presence at the event which he described as a WTRF event also goes to further strengthen the case of the prosecution that he was a member of the two prohibited organizations HSGF and subsequently WTRF. He has asserted that he remained on the platform because he did not know how to exit from the platform since it was his son who installed the whatsapp application for him. It is the opinion of this court that in the same way his son installed the application for him, if he was not in approval of being joined to the whatsapp group of a prohibited organization, he would have gotten his son to assist him exit from the group. He remained on the whatsapp platform and also attended the event at the Kpong Methodist park because he was a member of the group. His explanation for remaining on the whatsapp platform and also for being at the event at the Methodist Park is not reasonably probable. From the foregoing, I find that the prosecution has been able to prove the guilt of the A4 on count six and I find him guilty of same and convict him accordingly. A5 (EXCEL LIBERTY AHETO KUEGBESIKA) COUNT SEVEN (7) A5 was charged with the offence of being a member of a prohibited organization contrary to Section 2(1) (i) of SMCD 20/76. According to the prosecution, A5 downloaded the images and videos of the demonstration of the 25th of September 2020 from Facebook and uploaded them on his whatsapp status to get people informed of the incident happening at Juapong. The PW2 testified that A5 during interrogation denied being a member of any prohibited organization but admitted that he posted images and videos of the activities of WTRF on his whatspp status and also indicated that even though he was at Juapong on the day of the incident, he did not visit the crime scene. In his caution statement Exhibit K, he stated that on the day of the incident, he was at Juapong but he did not partake in the riotous demonstration. He added that he indeed downloaded the videos and pictures of the incident of the riot on his whatsapp status to let his contacts know what was happening. He said that some friends warned him to be careful but he did not know the basis of the caution but he quickly deleted his whatsapp account. He denied being a member of any prohibited organization. He repeated the same story in his evidence in chief contained in his witness statement filed for him on the 19th of July 2022. The prosecution has however asserted through PW2 during cross examination that “…investigations established that he is a member of WTRF. He was at the crime scene on that day, took the photographs by himself, shared them on his whatsapp status and Facebook account with patriotic captions hailing the activities of WTRF.” I have combed through the entire evidence of the prosecution and I find no such evidence to support this assertion. The explanation given by the A5 is reasonably probable. He has explained the reason for posting the pictures and videos of the WTRF. Unless there is further evidence on record to show a contrary reason for posting the pictures and videos of the happenings of the said incident thereby debunking the explanation given by the A5, this court cannot rely on the scanty evidence adduced by the prosecution to conclude that the A5 is a member of the WTRF. The A5 is therefore acquitted and discharged on count seven (7) as the prosecution has not been able to prove his guilt. A6 (DIVINE NYADZINYOR) COUNT EIGHT (8) A6 was charged with the offence of being a member of a prohibited organization contrary to Section 2(1)(i) of SMCD 20 1976. PW1 testified that A6 was spotted at the scene of the riotous demonstration at Juapong taking part in the demonstration. PW2 also testified that A6 was arrested based on a photograph where he was captured participating in the demonstration in the midst of the demonstrators on the 25th of September 2020. The picture was admitted into evidence as exhibit D labeled Devine Nyadzinyor. PW1 and PW2 testified further that the room of A6 was searched but nothing relating to Western Togoland was was found. As such in the statement of PW1 dated the 4th of October 2021 which was admitted into evidence as Exhibit 1, he stated that “Nothing was established against … Devine Nyadzinyo” Under cross examination, PW1 was emphatic that nothing incriminating was established against the 6TH Accused. This is what transpired under cross examination of PW1 by Counsel for A6: “Q: You also indicated in the same document that nothing incriminating was established on the 6th accused. A: Yes my lady” As part of the prosecution’s case is the caution statement of the A6 which was admitted into evidence as Exhibit L. In Exhibit L, he admitted to being at the scene of the incident and explained that on that day, he left the house to go to the roadside to join his company’s bus to work. He stated that when he got there, there was huge vehicular traffic on the road as such he waited for more than an hour and thirty minutes but the cars were not moving. He said that he saw fire burning ahead so he walked towards the fire and saw that lorry tyres were being burnt and he heard from those around that “they have declared the place Western Togoland”. He said that he was confused and just when he was leaving the place, the military arrived and took photographs of the incident. He said that he left the scene around 8:30am. In his witness statement filed on the 25th of October 2022 which he relied on as his evidence in chief, he asserted that he was not among the demonstrators and did not go there to demonstrate. He added that he was only passing through the scene and unfortunately got captured by the military officers who had come to the scene. He also asserted that the WTRF demonstrators wore black T-shirts with WTRF inscribed at the back while he wore yellow Lacoste T-shirt and black trousers. A6’s DW1 Robert Nyadzinyor testified in support of A6’s case that A6 had dressed for work and due to the heavy vehicular traffic, he decided to visit his mother’s house which was by the roadside and on his return from his mother’s residence, he had to pass through the crowd of demonstrators since that was the only available route. He said that in the process of doing so, the A6 was captured in a photograph. He tendered into evidence a pen drive of the video exhibit 7 of the said demonstrators to show that the outfit of the A6 on that day was different from the outfit of the other demonstrators. I have had a look at the said photo which the prosecution seeks to rely on to prove their case that the A6 is a member of the prohibited organization WTRF. The fact that the A6 was seen at the demonstration grounds is not enough evidence to conclude that he was a member of WTRF. In the said picture, he is not seen doing any act suggestive of partaking in the demonstration. I find that the prosecution has not been able to prove that the A6 is a member of WTRF. The A6 is therefore acquitted and discharged on count 8. A7 (CEPHAS ZODDANU) COUNT NINE (9), TEN (10), ELEVEN (11) AND TWELVE (12) A7 was charged with the offence of being a member of a prohibited organization, attending meetings of a prohibited organization, accepting contributions for the benefit of a prohibited organization, making contributions for the benefit of a prohibited organization contrary to Section 2(1)(i), (b) and (g) of SMCD 20 1976. PW1 testified that the A7 admitted in a statement that he was a member of the WTRF, that he has been attending their meetings, accepting contributions from other members and he has also been contributing to support the group. PW2 also stated that the A7 during interrogations told the investigative team that he joined WTRF sometime in January 2020 at Bator where he lives. He added that A7 told the investigative team that he was made to receive contributions from members of the group for the benefit of the group. In the caution statement of the A7 dated the 2nd of October 2020, A7 admitted to being a member of the WTRF group and proceeded to name some of the members of the organization. He added that they normally meet twice in a month and the last meeting he attended was at the roadside at Battor. He added that the last time he attended a meeting was August 26th 2020 and he stopped because the dues were too much for him. He also stated that he used to pay dues of between GHC5 and GHC10. In his further statement Exhibit M1, he stated that he was the financial secretary of the WTRF group and he collected contributions from members when the group had to purchase items like furniture or whatever it needed. In his evidence in chief contained in his witness statement filed on the 29th of June 2023, the A7 admitted to being a member of the WTRF but left the group in 2019 for various reasons including the high cost of dues paid, the lack of time to concentrate on his job and then getting to know that the group was a disbanded organization. In exhibit D labeled Cosmos Havor, he was at the declaration of independence of the Western Togoland and also the procession after the declaration. The evidence on record therefore supports the assertion of the prosecution that the A7 between 2018 and 2020, was a member of WTRF, that he accepted contributions for the benefit of the organization, attended meetings of the organization and made contributions for the benefit of the organization. I therefore find that the prosecution has been able to prove the guilt of the A7 on counts 9, 10, 11 and 12 and I find him guilty on same and convict him on same accordingly. A8 (RICHARD DOGLO AMETEPE) COUNT THIRTEEN (13) A8 has been charged with the offence of being a member of a prohibited organization contrary to Section 2(1)(i) of SMCD 20 1976. According to the prosecution, the A8 was between 2018 and 2020 a member of WTRF a prohibited organization. As such PW1 testified that A8 admitted in his statement to the police that he became a member of the group after he was introduced to the group by a stranger. The PW2 on his part testified in his witness statement that the A8 admitted to being a member of the HSGF but left the group after the arrest of the founder Charles Kormi Kudzordzi in 2019 and has since not participated in any of their activities. In the caution statement of the A8 admitted into evidence as Exhibit N and his further caution statement exhibit N1, he admitted to being a member of WTRF in the year 2018 and he only left the group when Papavi was arrested and taken to court. In his witness statement filed on the 29th of June 2023, he admitted being a member of WTRF and only left the group in 2019. Under cross examination, he was emphatic that he left the group not because a judge advised him that the group was prohibited. Having admitted to being a member of WTRF within the stated period, I find that the prosecution has been able to prove the guilt of the A8 on count 13. I therefore find him guilty on count 13 and convict him on same accordingly. A9 (COSMOS HAVOR) COUNTS FOURTEEN (14) AND FIFTEEN (15) A9 has been charged with the offence of attending meetings of a prohibited organization and participating in the campaign of a prohibited organization contrary to Section 2(1)(b) and (d) of SMCD 20 1976. PW1 in his witness statement testified that the A9 was arrested by National Security Operatives and handed over to their investigative team for further investigations. He stated that the A9 admitted that he was introduced to the WTRF by one Promise Agbezuke and added that he attended the flag raising ceremony as well as the declaration of independence by Michael Amertonu @ Togbe Yesu. His evidence continued that the A9 was captured in a video when he attended the ceremony at Nyatikpo. PW2 on his part stated that investigations revealed that the A9 supported the group and attended the rally for the independence declaration in his capacity as a chief where he was captured in pictures and in a video dancing with excitement during a procession just after the rally came to an end. The video and pictures are contained on the pen drive exhibit D and are labeled Cosmos Havor. The pictures show him seated behind Togbe Yesu who declared independence for the Volta Region from Ghana. In the videos, he is seen in the procession waving his horsetail in excitement. In his caution statement exhibit P dated the 11th of June 2021 which he gave to the police in the presence of his lawyer and an independent witness, he stated that Promise Agbezuke informed him that Volta Region had attained independence and a celebration would be held to that effect. He said that Promise invited him based on his capacity as a traditional ruler. He stated that Promise told him that the program was to be held at Bator but Promise ended up taking him to Nyatikpo. He described the ceremony which was held that day, that is how the Ghana national anthem was sung and the Ghana flag lowered and the Volta Region flag was hoisted. He described how he sat behind Togbe Yesu as he declared the Volta Region independent from Ghana. His claim in his caution statement is that he does not support the group and also regrets attending the program and that he expressed his displeasure to Promise when they returned to Afife. In his charge statement exhibit P1, he asserted that he does not support the call for independence by members of the Western Togoland Restoration Front and added that he was deceived by a trusted cousin Promise to attend the independent celebration organized by Western Togoland Restoration Front and that he would not have attended that meeting if he had known the reason for the gathering. In his evidence in chief contained in his witness statement filed on the 21st of June 2022, he testified contrary to his caution statement exhibit P and P1 that Promise persuaded him to accompany him to Bator for a gathering of Chiefs and people of the Volta Region for a ceremony. He stated that Promise came for him with a commercial vehicle and instead of going to Bator as he was told, they ended up at Nyatikpo where the flag raising ceremony and independence declaration of Western Togoland was made. He added that he immediately complained to Promise and scolded him harshly for deceiving him but since he had no means of transport with which to leave the place, he sat through the ceremony and just observed the proceedings. He stated that he did not play any role and was not among those who stood on the podium to declare the said independence. He said that after the said ceremony came to an end, he and the others who sat on the dais were led in a procession amidst drumming and dancing to a nearby building from where they departed to their homes. His evidence on oath is inconsistent with his caution statement which he gave willingly to the police and the video labeled Cosmos Havor in exhibit D. His attitude during the procession is evident of one in support of the objective of achieving independence from Ghana. From the evidence on record, he was also aware that the declaration for independence was made by the WTRF a prohibited organization. His assertion that Promise deceived him to attend the meeting and then portrayed himself to the court as a helpless victim who could not leave the said ceremony when he was not allegedly in favour shows his lack of credibility. A9 is an elderly man and is also the senior right wing Chief of Afife Traditional Council a fact he presented to the court which has not been contested. To the mind of this court, he is not one who can be easily manipulated by a cousin judging from his demeanor and attitude exhibited in the courtroom. From the evidence on record, he willingly attended the meeting and participated in the campaign of the prohibited organization. I therefore find that the prosecution has been able to prove the guilt of the A9 on both counts 14 and 15 and I find him guilty on same and convict him accordingly. A10 (VINCENT RAMSAYER ATSU-GALEY) COUNTS SIXTEEN (16) AND SEVENTEEN (17) A10 has been charged with the offence of being a member of a prohibited organization and attending meetings of a prohibited organization contrary to Section 2(1)(i) and (b) of SMCD 20 1976. PW1 stated in paragraph 20 and 21 of his witness statement that investigations revealed that the A10 was invited to be a member of WTRF by one Asilevi and subsequently asked to take the position of Secretary which he willingly accepted and that he attended the group’s meeting at the request of Michael Kwabla Ametornu @ Togbe Yesu founder of WTRF. He added that in the diary of one Nene Agblorm who is said to be a suspect, the A10 was marked to be an Assistant Secretary and advisor of the Executive members of West Salt Lake province if the group secede from Ghana. PW2 on his part confirmed the name of A10 in the said diary of the said Nene Agblorm and added that A10 informed him that one Ms Ashilevi of Juapong called him and spoke about the activities of WTRF and invited him to a meeting with other members of the group at Juapong. He added that A10 stated that he attended the meeting where Togbe Yesu and Nene Agblorm were present and addressed the members admonishing them on the need for them to be united to enhance their chances of achieving their goal of independence. A10 said to him PW1 that after the meeting, he had a one on one talk with Ms Ashilevi where he was offered the position of Secretary and he accepted but has since not attended any of their meetings or acted in his capacity as the Secretary of the group. In his caution statement exhibit Q which he relied on in his charge statement exhibit Q1 the above information was contained therein. In his caution statement which was admitted into evidence with no objection, he stated that when Ms Ashilevi talked about the activities of WTRF, he accepted to attend the meeting as he already had the interest of the group at heart. In his evidence in his witness statement filed on the 14th of December 2022, he admitted to attending the meeting of WTRF and also being the secretary of the group just that he has not acted in that capacity since he assumed it. Under cross examination he asserted contrary to his paragraph 7 and 9 of his witness statement that he accepted to be the secretary of WTRF. At the trial, he pleaded alibi and tendered into evidence exhibit 8 and 9 to show that on the 25th of September 2020, he was at a funeral where he sat at the table writing the names of donors and the amount donated. The court admitted those documents into evidence because it was relevant to a claim he had made. However the fact that a Court admits evidence or a Statement in evidence does not mean that the Statement or Evidence was of evidential value to automatically affect the decision of the Court. See Ekow Russel vrs the Republic (2017-2020) 1 SCGLR 469 @ 476. holding 6. The A10 was not charged with partaking in the riotous demonstration of 25th September 2020 and as such exhibit 8 and 9 would not assist the court in making a determination on the counts he is facing. Per the evidence on record, A10 accepted to become a member of WTRF and attended its meetings. I find that the prosecution has been able to prove the guilt of the A10 on counts sixteen (16) and seventeen (17) and I find him guilty on same and convict him accordingly. The results of the forgoing is that the prosecution has been able to prove the guilt of the A3, A4, A7, A8, A9 and A10. A3, A4, A7, A8, A9 and A10 are guilty of the offences charged and convicted accordingly. Upon conducting a pre sentence hearing they are sentenced as follows: A3 (GABRIEL GODFRED GOVINA) COUNT FOUR (4) AND COUNT FIVE (5) the offence of being a member of a prohibited organization and attending meetings of a prohibited organization contrary to Section 2(1) (i) and (b) SMCD 20 1976. The A3 is sentenced to three (3) years IHL and is also to pay a fine of two hundred (200) penalty units in default three (3) months imprisonment. Sentences will run concurrently. A4 (BENJAMIN GBADAGO) COUNT SIX (6) the offence of being a member of a prohibited organization contrary to Section 2(1) (i) of SMCD 20 1976. A4 is sentenced to twenty four (24) months imprisonment. He is also to pay a fine of two hundred (200) penalty units in default four (4) months imprisonment. A7 (CEPHAS ZODDANU) COUNT NINE (9), TEN (10), ELEVEN (11) AND TWELVE (12) the offence of being a member of a prohibited organization, attending meetings of a prohibited organization, accepting contributions for the benefit of a prohibited organization, making contributions for the benefit of a prohibited organization contrary to Section 2(1)(i), (b) and (g) of SMCD 20 1976. A7 is sentenced to three (3) years IHL and is also to pay a fine of three hundred (300) penalty units in default five (5) months imprisonment. Sentences to run concurrently. A8 (RICHARD DOGLO AMETEPE) COUNT THIRTEEN (13) the offence of being a member of a prohibited organization contrary to Section 2(1)(i) of SMCD 20 1976. A8 is sentenced to three (3) years IHL and he is to pay a fine of two hundred (200) penalty units in default four (4) months imprisonment. A9 (COSMOS HAVOR) COUNTS FOURTEEN (14) AND FIFTEEN (15) the offence of attending meetings of a prohibited organization and participating in the campaign of a prohibited organization contrary to Section 2(1)(b) and (d) of SMCD 20 1976. A9 is sentenced to twenty four (24) months IHL and he is also to pay a fine of four hundred (400) penalty units in default three (3) months imprisonment on all the counts charged. Sentences to run concurrently. A10 (VINCENT RAMSAYER ATSU-GALEY) COUNTS SIXTEEN (16) AND SEVENTEEN (17) the offence of being a member of a prohibited organization and attending meetings of a prohibited organization contrary to Section 2(1)(i) and (b) of SMCD 20 1976. A10 is sentenced to six (6) months imprisonment on counts 16 and 17. Sentences to run concurrently. The prosecution could not establish the guilt of the following: A1 (JOHN GBEDEMAH) COUNTS ONE (1) AND (2) A2 (GODWIN AWUDZA) COUNT THREE (3) A5 (EXCEL LIBERTY AHETO KUEGBESIKA) COUNT SEVEN (7) A6 (DIVINE NYADZINYOR) COUNT EIGHT (8) A1, A2, A5 and A6 are therefore acquitted and discharged. MARY M. E YANZUH J. HIGH COURT JUDGE PARTIES: ALL ACCUSED PERSONS PRESENT COUNSEL: FREDERICK ADU GYAMFI (ASA) WITH CHRISTABEL SELMA ANAFURE (ASA) BEING LED BY VIVIAN OSEI TUTU (SSA) FOR THE REPUBLIC PRESENT FAUSTINUS YIRILABUO FOR THE ACCUSED PERSON PRESENT ANDREW VORTIA FOR THE A10 PRESENT FRED COCH FOR THE A9 PRESENT 34