REPUBLIC VRS TETTEH (F23/2/23) [2023] GHAHC 472 (3 November 2023)

IN THE HIGH COURT OF JUSTICE, WESTERN REGION, HELD AT SEKONDI, ON THE 3RD DAY OF NOVEMBER, 2023, BEFORE HER LADYSHIP AFIA N. ADU- AMANKWA (MRS.) J. SUIT NO: F23/2/23 THE REPUBLIC VRS ALEX TETTEH JUDGMENT On 6th February 2018, the accused person was found in possession of the human head of one Ebenezer Tetteh at Agona Nkwanta. The deceased, a twelve year old, lived in Bogoso with his parents. On the date of the accused person’s arrest to the Agona Nkwanta police station, the deceased’s parents had lodged a complaint with the Bogoso police that the deceased was missing. The Bogoso police received information from the Agona Police station that the accused person was found in possession of a human head. The deceased’s parents identified the picture of the deceased’s head as their child. After investigations, the accused person was arraigned before this court charged with unlawful use of human parts contrary to section 69B of the Criminal Offences Act, 1960, Act 29 as amended by the Criminal Offences (Amendment) Act, 2012, Act 849. He pleaded not guilty to the offence. BURDEN OF PROOF As per section 11(2) of the Evidence Act, 1975 (NRCD 323), the prosecution has the burden to prove the guilt of the accused person beyond a reasonable doubt. In the case of Yeboah vrs. The Republic [1972] 2 GLR 281, the court held that the guilt of the accused must be proved with that degree of certainty required by law. That degree of certainty required by law is proof beyond reasonable doubt. Proof beyond a reasonable doubt does not mean a proof of an absolute certainty or a proof which is beyond a shadow of a doubt. But as explained by Lord Denning in Miller vrs. Minister of Pensions (1947) 2 ALL ER 372: Proof beyond doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence "of course it is possible, but not in the least probable" the case is proved beyond reasonable doubt, but nothing short of that will suffice. As per section 11(3) of the Evidence Act, supra, the accused person is under no burden to prove his innocence. All that is required of him is to raise a reasonable doubt in the prosecution's case. See the case of Asare vrs. The Republic [1978] GLR 193. MERITS The accused has been charged with the offence of unlawful use of human parts contrary to section 69B of Act 29 as amended by Act 849. On this charge, the accused person is alleged to have been found in possession of the head of Ebenezer Tetteh without lawful authority. Section 69B of Act 29 states: “A person who without lawful authority, the proof of which lies on that person, (a) engages in the removal of human parts; (b) is in possession of human parts; (c) engages in the draining of human blood; or (d) is in possession of human blood commits a second degree felony and is liable on summary conviction to a term of imprisonment of not less than five years and not more than twenty-five years”. To secure a conviction, the prosecution must prove that the accused person was in possession of a human part without lawful authority. “Human part” has been construed by the Act to include a distinct internal or external organ of the human body or human blood. Even though not much case law abounds regarding the meaning of possession under this Act, case law is replete with the meaning of possession, particularly under the Narcotics Control Commission Act, 2020, Act 1019, which bears similar wording to this provision and may be a very useful guide to the courts as to what may constitute possession under the Act. The authorities have shown that possession may not only be physical but constructive as well. Amartey vrs the State [1964] GLR 256 holds that in addition to possessing the narcotic drug, the accused must have had knowledge that he possessed the narcotic drug. Thus, for purposes of proof of the accused person’s possession of the human part, the prosecution ought to prove that: i. ii. The accused person had a human part in his possession or under his control. He had knowledge of what he possessed to be a human part. It is only upon proof that the accused person was in possession of the human part that the onus would shift unto the accused person to prove that he had lawful authority to possess it. As the case of Amartey vrs the State supra has stated: The words "proof of which shall be on him" cannot therefore be construed as shifting the burden of proof onto the appellant until possession with knowledge has been conclusively proved. POSSESSION Ordinarily, a person has in his possession anything which is in his physical custody or under his control. See DPP vrs. Brooks [1974] A. C. 862, PC. What is the proof that the accused person had in his custody or under his control the human part? PW1, Nana Atia @ Wilson, a fetish priest, testified that on 6th February 2018, he was on his way from Sankor to Takoradi when he had a call from one Francis Tandoh. Francis told him that he had seen a guy, Alex Tetteh, who was looking for a mallam. Francis told him that he suspected that the boy was not stable in his mind. He asked Francis to report him to the police. Later, he had information that the boy was in possession of a human head. Subsequently, he was invited to the regional headquarters and told them what he knew. PW2, Chief Inspector Peedah Williams Azumah, the investigator, testified and tendered the investigation caution and charge statements of the accused in evidence as exhibits “B” and “C” respectively. He also tendered pictures of the decapitated head and body of the deceased as exhibits “A”, “A1”-“A5”. He testified that on 7th February 2018, a case of murder involving the accused person was referred to him for investigations. The accused person had been arrested by the Agona Nkwanta police and, together with a decapitated head, was brought to the Regional CID, Sekondi. The decapitated head was preserved at the Effia Nkwanta mortuary morgue. He visited the morgue, inspected the decapitated head and photographed it. The following day, he had information from the Bogoso police that the remaining body of the decapitated head had been found and deposited at a mortuary at Bodie. He visited the Bodie mortuary to inspect the body. On 12th February 2018, Dr. Fredrick Sarpong conducted post-mortem examinations on the deceased's body. PW2 further testified that, in the course of his investigations, the accused person mentioned the names of several persons, who he claimed knew that he had the human head. Together with his colleagues, he took the accused person to Bogoso, where these persons allegedly resided, but the accused person could not identify any of the persons he had previously mentioned. He prepared a duplicate case docket to the Attorney- General’s Office and was advised to charge the accused person. PW3, Dr. Fredrick Yaw Sarpong, the medical superintendent of the Tarkwa Municipal Hospital, testified that on 12th February 2018, he examined a body identified to him in the presence of the police as that of Ebenezer Tetteh, a twelve year old. On examination, the body had been decapitated and in a state of decomposition. The cause of death was due to spinal injury and haemorrhagic shock. The investigator testified that in the course of taking the statements of the accused person, the accused person confessed to possessing a human head. In his attempt to tender the accused person's statements in evidence, the accused person objected to their admissibility, contending that he had never provided any such statements to the police. Consequently, two mini-trials were conducted to determine the admissibility of these statements. MINI TRIALS In both trials, the prosecution called two witnesses, i.e. the investigator and the independent witnesses, in support of its case. The accused person testified and did not call any witnesses. In sum, the investigator testified that he took the investigation caution and charge statements of the accused person in the presence of Inspector Iddi Abass and Samuel N-Nikon respectively. The accused person volunteered his statements in Twi, which he recorded in English. The independent witnesses then read and explained the contents of the statements to him, after which he thumb printed them. He debunked the accused person’s allegations that he ordered Inspector Iddi Abass to assault him. He ensured that the accused was provided with food and water and did not observe any marks on him to suggest that he had been assaulted. The independent witnesses, Inspector Iddi Abass and Samuel N-Nikon, corroborated his evidence by testifying that they were present when the accused person voluntarily proffered his statements to the investigator. They read and explained the contents of the statements to the accused person, after which he thumb printed them. In his evidence, the accused person denied that he had been assaulted when his statements were taken, even though that was one of his grounds for objecting to the admissibility of his statements in evidence. He contended that the investigation caution statement the investigator sought to tender was forged. He testified that on 7th January 2018, the investigator came for him from the Komfoase police station to the Regional CID. At the regional CID office, the investigator took him to the waiting room, where he met a fire service personnel. The man had a pair of scissors, electric shock and pepper spray. The man asked him if he was the one who had wanted to sell a human part and threatened to cut his hair and beard if he did not tell the truth. He denied the offence. The man beat him up. The investigator came for him to the entrance of the CID office. He took him to sit on a bench and started questioning him. He denied the offence and narrated the incident to him. The investigator did not write it and told him he was telling a lie. Three officers, including one Francis, who used to work with the investigator, assaulted him on his back with a motor brake wire. The investigator told him that since he was unwilling to tell the truth, he would await the arrival of his parents to take his statement. He then took him back to Komfoase police station. At the end of the trial, I was satisfied that the accused person proffered two statements, i.e. an investigation caution and charge statements to the police, which he gave voluntarily in the presence of two independent witnesses. The independent witnesses understood the Twi and English languages in which the statements were given and written. I was satisfied that the independent witnesses read and explained the contents of the statements to the accused person, evidenced by their certification of the statements before the accused person thumb-printed them. The accused person refused to cross- examine the investigator, claiming that he had nothing to ask of him regarding his claims that he had given his statements voluntarily to him in the presence of the two independent witnesses. His claim that some officers assaulted him is false since he retracted this assertion when he opened his defence. Clearly, he is not a person who can be trusted to tell the truth. At the end of the case, I was more convinced by the corroborated evidence of the prosecution that the accused person gave two statements to the police in the presence of independent witnesses than the uncorroborated evidence of the accused person. The investigation caution and charge statements were admitted in evidence as exhibits “B” and "C", respectively. In his investigation caution statement(exhibit “B”), the accused person stated that he was arrested at Dixcove on 6th February 2018 while possessing a human head, which he had brought from Bogoso. According to him, he lived with his uncle, who worked as a heavy- duty mechanic in Chapel Square, Bogoso. Two years ago, he was employed by one Ibrahim at Nyamekyekrom as a labourer. He lived at Anikokoo village in Cudjoe’s room as he could not rent a space. One day, Cudjoe warned him to leave his place as anyone could behead him. He suspected one Rasta who lived close to Cudjoe’s house to be beheading people through a vision he had. There was also one pastor, Charles Obeng, in charge of Global Arena Liberty Church, who had hired persons such as Yawsco, Sankara, and Rasta to behead people for a mallam called Apruka at Sefwi Asawinso. The pastor had succeeded in beheading four persons. On the day of the incident, Yaw, Yawsco and a credit seller brought the head and placed it in his house. He took the polythene bag containing the human head and boarded a commercial car to Dixcove in search of a Mallam there to sell to. The mallam told him he was not interested in purchasing the head, which he was willing to have sold to him for GHc200.00. The mallam caused his arrest. In his charge statement, the accused denied killing the deceased. He named Emos Eshun alias Rasta, Yasco and one other as the killers of the deceased. According to him, these persons parcelled the decapitated head in a polythene bag and came to him at Enikoko to kill him, too. He threw stones at them, and they bolted, leaving a polythene bag behind. He opened it and saw it contained a fresh decapitated head and a kitchen knife. He told himself that he could sell it and took it to Dixcove in search of a buyer. He knew of a shrine keeper at Dixcove who would be interested in purchasing the head. Upon seeing the head, the shrine keeper declined to buy it and caused his arrest. Flowing from the evidence of the prosecution witnesses and the statements of the accused person given to the police, it is quite clear that the accused was physically possessed of a human head before his arrest. Even though none of the prosecution witnesses saw the accused person in possession of the human head before his arrest, the accused, in his statements to the police, confirmed the fact of his possession of the human head. In exhibit “B”, he stated that he brought the head from Bogoso to Dixcove. In exhibit “C”, he found the bag containing the head left behind by Rasta and two others. He took the bag to Dixcove in search of a shrine keeper who would buy it. However, in his testimony before the court, he made a complete U-turn to deny his possession of the human head. He recounted that on 6th January 2018, he boarded a taxi from Bogoso to Ayensukrom to buy Zomi oil. He did not get some and was directed to go to Kobokrom, where he could purchase some. On his way to Kobokrom, he met three people: two wielded cutlasses and the third, a club. In addition to wielding cutlasses, one of them possessed an NPP bag. When he got close to the persons who wielded the cutlasses, they asked him if he had met anyone on a bicycle on his way to Ayensokrom. He replied in the negative and proceeded on his journey. They started to chase him and he shouted. He saw a 207 bus enroute to Takoradi. When his assailants heard the vehicle's approach, they fled into the bush. He stopped the car and asked the driver to take him to Kobokrom. He informed the driver that some people cut heads. The driver, his mate and three passengers alighted, and he pointed to the direction in which the two had fled. He stayed with the driver while the rest looked for the two persons. The mate and three passengers returned to the car with an NPP bag. They asked him to disclose the identity of the person whose head was in the bag or else they would cause his arrest to the police. He told them he knew nothing about it. Fearing they would leave him to the mercy of the two men who originally possessed the bag, he boarded the vehicle and asked to be taken to Kobokrom. At Kobokrom, the driver refused to stop and drove to the Agona Nkwanta police station. At Agona Nkwanta Police station, he narrated the incident to them and denied knowledge of the head or the men who fled into the bush. He was searched, but nothing incriminating was found on him. Subsequently, he was taken to the Sekondi police station. It would be noted that the evidence of the accused person is inconsistent with his prior statements to the police. He testified that the mate and three passengers found the bag containing the human head, whereas, in his statements to the police, he had the bag containing the head. It is trite that a previous statement made by a witness to the police, which was in distinct conflict with his evidence on oath, was always admissible to discredit or contradict him. It would be presumed that the evidence on oath was false unless he explained the prior inconsistent statement satisfactorily. See Yaro and Another vrs. The Republic [1979] GLR 10. The explanation of the accused person regarding the inconsistencies is that he never gave those statements to the police in the first place. But as has already been stated, the court conducted a mini-trial and determined that the accused person voluntarily gave his investigation caution and charge statements. A mere denial has never been deemed as a reasonable or satisfactory explanation. In any case, despite several admonitions from the court, the accused person refused to cross-examine the investigator regarding the investigator’s testimony that he(accused person) was found in possession of the human head and further confirmed to him in his statements of possessing the head. As I have already stated, the accused person is not a person of truth, and his evidence in court is taken with a pinch of salt. The prosecution has succeeded in proving that the accused person was in physical possession of a human part, that is, the decapitated head of Ebenezer Tetteh. KNOWLEDGE In addition to having physical possession, the accused person must have had knowledge that he possessed a human part. This can be gleaned from the case of Bonsu alias Benjillo vrs. The Republic [1998-1999] SCGLR 112, where the Supreme Court interpreted “possession” in this context as follows: To prove the charge of illegal possession of a narcotic drug under section 2 of PNDCL 236, it must be shown that the appellant not only had physical possession but also knowledge of the nature and quality of what was possessed namely, a narcotic drug, since physical possession without that requisite knowledge would amount to no offence. The question that calls for determination by this court is whether it will be reasonable to presume that the accused person well knew or ought to have known that what he possessed was a human head, as shown by the pictures tendered in evidence as exhibits “A”, “A1” and “A2”. The authorities have stated that proving knowledge positively or directly is difficult, but such proof is mostly inferred. In the Benjillo case supra, the Supreme Court made it clear through Bamford Addo JSC at page 123 that: The proof of knowledge or mens rea is not capable of direct proof but same may be inferred from established facts as stated in section 18(2) of the evidence decree 1975, NRCD 323. In exhibit “B”, the accused person stated that he concealed the human head in a polythene bag and brought it to Dixcove to sell to a mallam. It was the mallam who caused his arrest at Dixcove. In exhibit “C”, he took possession of the bag his assailants had left behind. He opened it, realized it contained a human head, and decided to sell it. He came to Dixcove to sell to a shrine keeper, who unfortunately caused his arrest. In both statements, he knew he possessed a human head and wanted to make money by selling it. The fact that he concealed the head in a polythene bag is indicative of the fact that he knew he possessed a human head, a contraband, and did not want to be found with it. As has already been discussed, his defence on oath was that the mate and three passengers found the bag containing the head in the bush and, for that matter, could not have possessed the head. But this evidence is disbelieved. As earlier stated, the accused person refused to cross-examine the investigator when he testified that the accused confessed to possessing the bag containing the head he had intended to sell. It lies ill in his mouth to then say that the mate and passengers found the bag. The accused knew he possessed a human head, which he wanted to sell to a mallam. But for the mallam’s vigilance and abhorrence for such conduct, the accused person would have succeeded in selling the human part to him. From the analysis, a reasonable inference can be made of the accused person’s knowledge of his possession of a human head. In his evidence, the accused person kept hammering on the fact that he had not killed anyone or knew the deceased. The law is not concerned with the identity of the person who beheaded or killed the deceased. In a number of cases, the murderer is likely to possess the head. However, in other cases, the person who possesses the head may not be the murderer. The law seeks to punish the person who possesses the head without lawful authority and who may not necessarily be the murderer. Thus, simply possessing a human head without more is an offence as long as the possession is without lawful authority. LAWFUL AUTHORITY Once the prosecution has proved that the accused person was in possession of a human head, the onus shifts to the accused person to prove that he had lawful authority to possess it. The burden requires the accused person to prove on the preponderance of probabilities that he had lawful authority to possess the human head. See Asare vrs. The Republic [1978] GLR 193. The accused has denied possessing a human head. According to him, the mate and passengers found the bag containing the human head. This defence does not hold water given the court’s finding that he was in possession of the human head and attempted to sell it to a mallam. In his defence, the accused has not been able to prove that he had lawful authority to possess the human head and, for that matter, has not been able to raise a reasonable doubt in the prosecution’s case. There is a variance between the charge and the evidence led against the accused person, which relates to the date of the offence. Whilst the charge sheet provides the date of the offence as 7th February 2018, the evidence shows that the accused person was arrested with the human head on 6th February 2018. This anomaly should not affect the court’s decision given that such variances are deemed immaterial, and per section 176 (4) of the Criminal and Other Offences (Procedure) Act, 1960, Act 30, the charge sheet need not be amended to reflect the date. I find that the prosecution has been able to prove the offence of unlawful use of human parts against the accused person beyond reasonable doubt. The accused person is found guilty of the offence charged, and he is accordingly convicted. (SGD.) H/L AFIA N. ADU-AMANKWA (MRS.) JUSTICE OF THE HIGH COURT. COUNSELS Mabel A. Aikins (ASA) with Nana Agyeman Sarfo Katanka (ASA) appears for the Republic. 13