REPUBLIC VRS OGAN & ANOTHER (NR/WUL/DC/B18/2/2024) [2024] GHADC 453 (25 June 2024)

IN THE DISTRICT COURT WULENSI- N/R CASE NO: NR/WUL/DC/B18/2/2024 25th June, 2024 THE REPUBLIC VRS 1/ 2/ KOFI OGAN TANYIL MAWOL _____________________________________________________________ _____________________________________________________________ JUDGMENT INTRODUCTION The 1st accused person in the instant case has been charged with the offences of threat of death contrary to section 75 of the Criminal and Other Offences Act, 1960 (Act 29) and possession of firearm without lawful authority contrary to section 11(e) of the Arms and Ammunitions Act, 1972 (NRCD 9) as amended by the Arms and Ammunition Act, 2001 (Act 604) while the 2nd Accused person is standing trial for the offence of Possession of firearm without lawful authority contrary to section 11(e) of NRCD 9 as amended by Act 604. The accused persons pleaded not guilty to the charges whereupon the burden laid on the prosecution to prove the guilt of the accused persons beyond reasonable doubt. FACTS AND CASE OF THE PROSECUTION The facts on which the case of the prosecution rest are that both accused persons are farmers resident at Pabilla-Ogando in the Nkwanta South District of the Oti region. On 26/01/24 the police received information from the Kpalang Chief’s palace that PW1 reported a case of defrauding by false pretense against the accused persons for which the assistance of police was required. On arrival, the police arrested A1 but police became suspicious of the demeanor of A2 who distanced himself with his hand in his pocket and was unwilling to attend to the call of the police. Police then conducted a search on A2 despite his resistance and found a locally made pistol in his right pocket loaded with one AAA live cartridge. Police also found two AAA live cartridges in the school bag retrieved from him. A1 in his statement to the police admitted ownership of the school bag containing live AAA cartridges. The case of the prosecution is that investigations conducted revealed that on 15/01/24, PW1 was sent on errands by one Francis Adu-Offei, a retired USA – based military officer to harvest some farm produce with A1. A1 became annoyed by the decision and refused to corporate with PW1 leading to a disagreement between them and as result A1 threated PW1 with words to wit “why did you not inform me before visiting me here, do you know you can die here, if you try me I will show you that I am a Konkomba man, you cannot interrupt my work”. BURDEN OF PROOF It cannot be gainsaid that in criminal trials, the burden is always on the prosecution to prove the guilt of the accused person beyond reasonable doubt. This is so because any party who claims that a person has committed a crime or wrong doing has the burden of persuasion in respect of that issue. Section 15(3) of the Evidence Act, 1975 (NRCD 323) provides as follows: 15. Burden of persuasion in particular cases Unless it is shifted, (a) the party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue; The law presumes that any person charged with a criminal offence is innocent unless he has pleaded guilty or he is proven to be guilty. This is the intendment of article 19(2)(c), a right enjoyed by all persons without discrimination. The law was rehashed by the Supreme Court speaking through Dotse JSC in GLIGAH AND ANOR. v THE REPUBLIC [2010] SCGLR 297 that: “ … [I]t is important for this Court to bear in mind that 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.” The burden borne by the prosecution is to prove all the essential ingredients of the offence with which the accused person is charged, failure to do so will result in the acquittal of the accused person. In KINGSLEY AMANKWAH (A.K.A SPIDER) v THE REPUBLIC [2021] 173 GMJ 230, the Supreme Court per Dotse JSC summarized the law in the following words: “The Supreme Court in a unanimous decision in the case of Abdulai Fuseini V The Republic; reported in [2020] Crim LR, page 331; (2018) 122 GMJ 12 SC reiterated and affirmed the basic philosophical principles underpinning criminal prosecution in our courts as follows: “In criminal trials, the burden of proof against an accused person is on the prosecution. The standard of proof is proof beyond reasonable doubt. Proof beyond reasonable doubt actually means “proof of the essential ingredients of the offence charged and not mathematical proof” PRELIMINARY POINTS OF LAW Before determining whether the prosecution has been able to discharge the burden on it, there are two preliminary issues which beg for determination and these are: whether the charges have been properly laid by the charge sheet; and whether this court has jurisdiction to hear and determine the instant case. I have noticed that counts two and three are possession of firearm without lawful authority contrary to section 11 (e) of the Arms and Ammunitions Act, 1972 (NRCD 9) as amended by the Arms and Ammunitions Act, 2001 (Act 604). The said subsection however reads: Section 11—Offences (1) Any person who— (e) has in his possession without lawful authority any permit granted under this Decree; or … shall be guilty of an offence and liable on summary conviction to a fine not exceeding ¢5 million or to imprisonment not exceeding five years or to both.[As amended by the Arms and Ammunition (Amendment) Act, 1996 (Act 519), s.2] Stating the section under which the offence has been committed as “section 11(e)” of the Act 604 suggests that the accused persons are standing trial for possession of permit granted without lawful authority. However, the statement of offence as well as the particulars of offence of counts 2 and 3 indicates clearly that the intent is to charge the accused persons for unlawful possession of firearm. The courts have however held the view that error in stating the law under a charge is brought is a mere irregularity and does not render the trial a nullity. In DARKURUGU v THE REPUBLIC [1989-90] 1 GLR 308, the accused person was charged with the offence of deceit of a public officer. The charge was however brought under section 257 instead of 251 of Act 29. It was held that the requirement of section 122 (1) of Act 30 has been satisfied since the statement of offence and the particulars of offence provided sufficient information to the accused person of the charge he is faced with. In the instant case however, combing through the Arms and Ammunitions Act, 1972 (NRCD 9) as amended by the Arms and Ammunition Act, 2001 (Act 604), there is no offence as possession of firearm without lawful authority. The situation could not be saved by the provisions of subsection (f) of Section of Act 604 either which provides that:- Section 11—Offences. (1) Any person who— (f) makes or knowingly has in his possession or control any explosive (including any gunpowder or fuse) under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or control for a lawful object, In my understanding, NRCD 9 as amended by Act 604 mainly deals with registration of arms and ammunitions and the grant of permit for the possession of same. The offences stated under section 11 of Act 604 thus, in my understanding, are offences relating to the registration of arms and ammunitions. Subsection (f) deals with a person who, having obtained lawful authority to possess arms or ammunition is in possession of same in such a manner or circumstance which raises a suspicion that he or she intends to use it for unlawful purpose. This is different from the offence of possession of firearm without lawful authority. In my opinion, where a person is in possession of firearm or ammunition without lawful authority, the proper section under which the charge is to be brought is section 192 of Act 29 and not under section 11(e) of NRCD 9 as amended by Act 604. Section 192 of Act 29 provides: Section 192—Possession of Explosives, Firearms and Ammunition Without Lawful Excuse (1) Notwithstanding the provisions of any other enactment, any person who has in his possession, custody or control without lawful excuse, the proof whereof shall be on him, any explosive, firearm or ammunition shall be guilty of first degree felony: Clearly, the charge has been founded on a wrong statute. The statement of offence and the particulars of offence however state in vivid terms that the intent is to charge the accused persons for the offence of possession of firearm without lawful excuse. Counts 2 and 3 read: COUNT 2 STATEMENT OF OFFENCE 2. Possession of fire Arms without lawful Authority; contrary to section 11 (e) of arms and ammunition Act 1972 [NRCD 9] as amended by arms and ammunition (amendment) act 2001. PARTICULARS OF OFFENCE Kofi Ogan age 25 years old farmer on the 26th day of January 2024 at Kpalang in the Nanumba South District and within the Jurisdiction of this court, you had in your possession two AAA live cartridges without lawful authority. COUNT 3 STATEMENT OF OFFENCE 3. Possession of fire Arms without lawful Authority; contrary to section 11 (e) of arms and ammunition Act 1972 [NRCD 9] as amended by arms and ammunition (amendment) act 2001. PARTICULARS OF OFFENCE Tanyil Mawol age 25 years old farmer, on the 26th day of January 2024 at Kpalang in the Nanumba South District and within the Jurisdiction of this court, you had in your possession one loaded two AAA live cartridges without lawful authority. The situation could have been saved by the reasoning in the DARKURUGU v THE REPUBLIC (supra) case since the statement of offence and the particulars of the offence gives sufficient information of the charge preferred against the accused persons. The wrong statement of the statute on the charge sheet would have been a mere technicality which would not render void the charge but for the issue of jurisdiction which I shall deal with in the preceding paragraphs. Having stated that the proper section under which the offence ought to be brought is section 192 of Act 29, the issue then is whether this court has jurisdiction to try the offence of possession of firearm without lawful authority/excuse. The law is settled that jurisdiction goes to the root of the matter and same could be raised by a party to the suit or the court suo motu. Please see the case of MANFORD GYASI-LUTTERODT v AFAM CONCEPT, Civil Appeal No: J4/64/2022 dated 20th March, 2024 where the Supreme Court held per Darko Asare JSC as follows: “… it has often been said that jurisdiction goes to the root of every proceedings. If therefore a court’s jurisdiction has not been properly invoked, then that court has undoubtedly no means of entertaining the particular proceedings before it. Even if neither party has raised the issue of jurisdiction, it is the duty of the court to raise and determine it”. In the same vein, it was earlier held in ATTORNEY-GENERAL (No. 2) V TSATSU TSIKATA (No. 2) [2001-2002] SCGLR 620 at page 646 that: “…[T]he first duty of every judge in any proceedings is to satisfy himself that he has jurisdiction in the matter before him. For the issue of jurisdiction can be raised at any time even after judgment. Thus whether the parties raise the issue of jurisdiction or not, the court is duty bound to consider it. And where the issue is not raised, the court is to raise it suo motu and call on the parties to address that issue” The issue of jurisdiction has not been raised by either the prosecution or the defence. The accused persons are not represented by counsel and so may obviously not be in the position to raise a point of law relating to the jurisdiction of this court. As noted in the cases cited above however, whether the issue of jurisdiction is raised by the parties or not, the court is duty bound to determine same. I must satisfy myself that I have jurisdiction to hear and determine the instant matter so as not to render the proceedings and judgment void. The jurisdiction of the district court is clearly spelt out under Section 48(1) of the Courts Act, 1993 (Act 459) which provides as follows: 48. Criminal jurisdiction of the District Courts (1) In criminal matters, a District Court has jurisdiction to try summarily (a) an offence punishable by a fine not exceeding five hundred penalty units or a term of imprisonment not exceeding two years or both the fine and the imprisonment; (b) any other offence, except an offence punishable by death or by imprisonment for life or an offence declared by an enactment to be a first degree felony, if the Attorney-General thinks that the case is suitable to be tried summarily… By a reading of section 48(1)(b) of Act 459, this court being a district court does not have the jurisdiction to try offences declared by an enactment to be a first degree felony. To assume such jurisdiction will render the proceedings and the judgment void and liable to be set aside. I have stated in this judgment that the proper section for which the accused persons ought to be charged for the offence of possession of firearm without lawful authority is section 192 of Act 29 and not section 11(e) of NRCD 9 as amended by Act 604. However, a look at section 192 as reproduced above indicates that the offence of possession of firearm without lawful excuse is a first degree felony and this court does not have the jurisdiction to try same. Accordingly, I struck out counts 2 and 3 against A1 and A2 and I discharge the accused persons on both charges. COUNT ONE Having struck out counts 2 and 3 for want of jurisdiction, the only count remaining is count one by which A1 is charged with the offence of threat of death contrary to section 75 of Act 29. The said section provides as follows: Section 75—Threat of Death. Whoever threatens any other person with death, with intent to put that person in fear of death, is guilty of a second degree felony. The burden is on the prosecution to prove the essential ingredients of the offence which are; that there was in fact a threat of death; and that the threat was made with intent to put the victim in fear of death. In BEHOME v. THE REPUBLIC [1979] GLR 112-128, the court restated the essential ingredients of the offence in the following words: “In the offence of threat of death the actus reus will consist in the expectation of death which the offender creates in the mind of the person he threatens whilst the mens rea will also consist in the realisation by the offender that his threats will produce that expectation. It matters not, therefore, whether the threats were related to the present or to the future”. THE CASE AND EVIDENCE OF THE PROSECUTION It is the case of the prosecution that on 15/01/24 the complainant (PW1) was sent on errands by his principal, Francis Adu-Offei who also happens to be the principal of A1 to join A1 harvest some farm produce. A1 was unhappy about the decision and refused to cooperate with PW1 hence a disagreement ensued wherein A1 threated PW1 with the words “why did you not inform me before visiting me here, do you know you can die here, if you try me I will show you that I am a Konkomba man, you cannot interrupt my work”. In support of its case, PW1 testified that on the day of the event he went to meet A1 in his house and informed him of the instruction of their principal to go and harvest the farm produce. A1 became annoyed by the decision and a misunderstanding ensued. A1 then threatened him with the words to wit, “why did you not inform me before visiting me here, do you know you can die here, if you try me I will show you that I am a Konkomba man, you cannot interrupt my work”. Prosecution also called PW2 who stated that he went with PW1 to the house of A1 on the day of the event when A1 issued the said threat to PW1 on his being informed of the purpose of their visit. PW4, the police CID also testified in support of the case of the prosecution. THE DEFENCE At the close of the prosecution’s case, the accused persons were called upon to open their defence. A1 testified and called DW1 and DW2 in support of his case. In his evidence in chief, A1 denied uttering any threats to kill PW1. According to him, on their arrival in his house and on PW1 informing him to join them harvest the yam, he told PW1 that he ought to have informed him earlier so he could prepare a place for harvesting the yam. PW1 insisted but he told him he had a pain in his finger whereupon PW1 stood up and held his neck. One CPA- community protection assistant came in to separate them. After he calmed down he went to procure labourers to assist PW1 to go and harvest the yam. In support of the case of A1, DW2 testified that he is a CPA (community protection agency). He was seated with A1 when PW1 came with some 2 other persons. He stated that A1 on being informed by PW1 to join him go and harvest the yam, A1 stated that yams are not harvested that way as he should have informed him prior to their coming so he would prepare for that. PW1 then stood up and held the neck of A1 and he rushed to separate them. A1 later went round and procured some youth to assist PW1 for the harvesting. DW1 concluded that he did not hear A1 say or do anything to harm the complainant DW2 testified in support of A1 and stated that he was seated with A1 when PW1 came with some two other persons. He was the one who offered them seat on the instructions of A1. PW1 then told A1 to join him go and harvest the yam but A1 told him that he should have pre-informed him for him to prepare. PW1 then stood up and held the neck of A1 but one CPA separated them. After which A1 procured some people including him to join PW1 for the harvesting. DW2 also concluded that he did not hear A1 say or do anything to harm the complainant. From the evidence, it is not in dispute that on the 15th day of January, 2024 PW1 and PW2 went to meet A1 in his house. It is also not in dispute that PW1 requested of A1 to join him harvest the yam on the said day. The issue to be proved by the prosecution is whether A1 uttered the words as alleged by PW1 with intent to put him in fear of death. PW2 was present at the scene and he testified in support of the prosecution’s case that A1 said those words to PW1. DW1 and DW2 also testified that they were also present at the scene and they testified in support of A1 that he made no such threats to PW1. In their respective cross-examinations, the prosecution does not deny that DW1 and DW2 were present at the scene. The only point sought to discredit them is that they are a brother and friend respectively to the accused person. In his defence and testimony before the court, A1 maintained that he only asked PW1 why he did not inform him before coming to ask him to join him harvest the maize since he would have to prepare a place for the storage of the yam. In his caution statement which he gave to the police upon his arrest and which was tendered in evidence as EXHIBIT A by the prosecution, A1 stated as follows: “It is by Francis usual allegations that I have misused his funds that he sent three of his workers to harvest the remaining yams as I have stated before. In fact they did not inform me about their coming and demanded that I go with them to harvest the yams. I also had a problem to resolve with my child who was sick. Darko demanded that I go and harvest the yams with them and this brought a misunderstanding…it took the intervention of a Community Police Assistant to calm the situation down.” DW1 testified that he is the Community Police Assistant who separated A1 and PW1 when PW1 stood up and held the neck of A1. This piece of evidence was also corroborated by DW2 who testified that he was present at the scene during the incident. I find the evidence of A1 and his witnesses more coherent than that of the prosecution and its witnesses. By his evidence in chief, PW2 stated at paragraph 5 of his witness statement that the accused “became angry and used life threatening words against the complainant to wit “why did you not inform me before you visited me here, do you know you can die here, if you try me I will show you that I am a Konkomba man”. However, during his cross examination by A1, PW2 stated that A1 threatened PW1 that he could die a useless death and that he was on a useless journey and will die for nothing. This is what transpired during the cross examination of PW2 by A1: Q. Is it true that I threatened PW1. A. Yes. You told PW1 that he could die a useless death, Q. In what language did I say this. A. In Twi and we were all there. ……….. Q. PW1 and I spoke Twi and I never told him I will kill him. A. You said PW1 was on a useless journey and will die for nothing. It is clear that the words alleged by PW2 to have been spoken to PW1 by A1 are different from the case of the prosecution. The onus on the prosecution is to prove that the accused made the statement it alleged and that he did so with the intent to put PW1 in fear of death. A1 having denied issuing any such threat in his caution statement and his testimony before the court, and calling witnesses, whose presence at the scene on the said day has not been denied, in support of his case, the prosecution which bore the burden ought to have led further evidence to prove that indeed the accused person uttered such threats. Lacking such further evidence, I find that the prosecution has not discharged its burden to prove the guilt of the accused person beyond reasonable doubt. The time honoured principle of our criminal justice system is that where there is a reasonable doubt, the accused person is entitled to acquittal. Please see the case of RICHARD BANOUSIN v THE REPUBLIC [2015] DLSC 3046 which stated the principle thus: The rule beyond a reasonable doubt, can thus be formulated thus:- “An accused person in a criminal trial or action, is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt, he is entitled to a verdict of not guilty.”’ In the instant case, I find that A1 has been able to raise a reasonable doubt to the charge of threat of death leveled against him. The witnesses of the accused person who were present at the scene were not discredited in anyway by the prosecution during cross examination. I find them credible and worthy of belief than PW2 whose evidence in chief on the threatening words allegedly made by A1 to PW2 differs from his answers during cross examination. I find A1 not guilty of count one which is threat of death. I therefore acquit and discharge A1 on count one. CONCLUSION AND CONSEQUENTIAL ORDERS On counts 2 and 3, the accused persons have each been charged with the offence of possession of firearm without lawful authority contrary to section 11 (e) of the Arms and Ammunitions Act, 1972 (NRCD 9) as amended by the Arms and A mmunitions Act, 2001 (Act 604). I have combed through the said statute but find no law such as possession of firearm without lawful authority. The said offence is rather provided for under section 192 of Act 29. Under the said section however, the offence of possession of firearm without lawful excuse is a first degree felony. I therefore decline jurisdiction and strike out counts 2 and 3 against A1 and A2 respectively. I discharge the accused persons on counts 2 and 3. On count one, I find that the prosecution has failed to prove its case beyond reasonable doubt. A1 called witnesses who were present at the scene and whose evidence were not discredited in any way during cross examination. I therefore find that A1 raised a reasonable doubt on the charge made against him and I find him not guilty on count one. I therefore acquit and discharge A1 on count 1. Since the discharge of the accused persons on counts 2 and 3 does not bar the prosecution from prosecuting in the appropriate court with jurisdiction, it is hereby ordered that the Exhibits retrieved from the accused persons, which are a locally manufactured pistol and 3 live AAA cartridges be kept and preserved in police custody. SGD H/W GODSON ETSE KUMADO DISTRICT MAGISTRATE