REPUBLIC VRS HOOFE & OTHERS (UW/WA/HC/F2/2/2020) [2024] GHAHC 347 (12 June 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD AT WA ON WEDNESDAY 12TH JUNE, 2024 BEFORE HIS LORDSHIP JUSTICE A. YUSIF ASIBEY HIGH COURT JUDGE SUIT NO. UW/WA/HC/F2/2/2020 THE REPUBLIC VRS. MICHAEL SACCARTHY HOOFE & ORS ----------------------------------------------------------------------------------- JUDGMENT Accused. A1 MICHAEL SACCARTHY HOOFE A2 TOGBUI KUOGO II A3 UMBORGATI SAMUEL A4 GEORGE LITHOR KLEVOR A5 UMAR ABDUL SAMAD A6 MOHAMMED KARIM A7 HODIBA INNOCENT A8 KANU EMMANUEL CHARGE Accused persons were arraigned before Court charged together with the following offences. COUNT ONE STATEMENT OF OFFENCE Conspiracy to commit a crime to wit; Summoning a person(s) to a meeting of Western Togoland Liberation Movement Contrary to Section 2(1)(a) of Prohibited 1 Organizations Act, 1976 (SMCD 20) and Section 23(1) of Criminal and Other Offences Act, 1960, (Act 29). PARTICULARS OF OFFENCE For Count one, the particulars of Offence as presented by the prosecution state:- For that, you, on or about 30th November, 2019, at Tumu in the Upper West Region and within the Jurisdiction of this Court, did agree and acted together to summon the Tumu Kuoro and his elders to a meeting of Western Togoland Liberation movement. At the said meeting, you invited them to join the organization to secede from Ghana. COUNT TWO STATEMENT OF OFFENCE Summoning persons(s) to a meeting of Western Togoland Liberation Movement Contrary to Section 2 (1) (a) of Prohibited Organisations Act, 1976 (SMCD 20). PARTICULARS OF OFFENCE The particulars of offence as presented by the prosecution state that on or about the 30th November, 2019, at about 3:30pm, at Tumu in the Upper West Region and within the jurisdiction of this Court, the accused persons did summon people to the Tumu Kuoro’s Palace, and spoke to the Chief and his elders. In the said meeting, the accused persons introduced themselves as members of Western Togoland Liberation Movement, a prohibited organization. COUNT THREE STATEMNT OF OFFENCE Conspiracy to commit a crime to wit, inviting persons to support the organisation contrary to section 2(1) (f) of prohibited organisations Act 1976 (SMCD 20) and section 23 of Criminal and Other Offences Act, 1960 (Act 29). 2 PARTICULARS OF OFFENCE For that, on or about the 30th November, 2019, at Tumu in the Upper West Region and within the jurisdiction of this Court, you did agree and acted together to address the Tumu Kuoro and his elders and in the same address you invited them to support the prohibited organisation. In the said address you also stated you had already enlisted the support of other chiefs from the northern parts of Ghana. COUNT FOUR STATEMNT OF OFFENCE Inviting person(s) to support prohibited organisation contrary to section 2 (1)(f) of prohibited Organisations Act 1976 (SMCD 20). PARTICUALRS OF OFFENCE That accused persons on or about 30th November, 2019, at Tumu in the Upper West Region and within the jurisdiction of this Court, did invite the Tumu Kuoro and his elders to join a prohibited organisation, i.e Western Togoland Liberation Movement. This you did in an address at the Tumu Kuoro’s palace. COUNT FIVE STATEMNT OF OFFENCE Conspiracy to commit a crime to wit, being a member of Western Togoland Liberation Movement Contrary to section 23 of the Criminal Offences Act, 1960 (Act 29) and section 2(1) (i) of prohibited organisations Act, 1976, (SMCD 20). PARTICULARS OF OFFENCE The Particulars of Offence as presented by the prosecution state that all the accused persons mentioned above on or about 30th November, 2019 at Tumu in the Upper West Region within the jurisdiction of this Court, did agree and acted together with a common purpose, to wit, belonging to a prohibited organisation. 3 COUNT SIX STATEMNT OF OFFENCE Being a member of a prohibited organisation contrary to section 2(1) (i) of Prohibited Organisations Act, 1975 (SMCD 20). PARTICULARS OF OFFENCE For that, you, on or about 30th November 2019, summoned the Tumu Kuoro and his elders and in your address to the elders at the palace you intimated that you were members of Western Togoland Liberation Movement and provided membership cards, flyers and flags to that effect at Tumu Kuoro’s palace. BRIEF FACTS The brief facts of the case as presented by the prosecution were that 1. 2. 3. 4. 5. 6. 7. 8. Michael SacCarthy Hoofe, Togbui Kuogo II, Umborgati Samuel George Lihor Klevor Umar Abdul Samad, Mohammed Karim. Hodiba Innocent and Kanu Emmanuel are all members of Western Togoland Liberation Movement. On 29th November, 2019 at about 11:45am, the accused persons came to the Wa Naa Palace and sought audience with the Wa Naa Alhaji Fuseini Pelpuo IV. At the Palace, they introduced themselves as members of Western Togoland Liberation Movement. The Wa Naa and his elders declined to engage them further and drove them away from the palace 4 The Wa Naa however, reported their conduct to the Upper West Regional Police Command. This information was immediately circulated among all District Police commanders. On 30th November 2019, at about 3:30pm, the police received intelligence that the group had sought audience with the Tumu Kuoro. The security forces immediately sent officers to the palace to join the elders at the palace. At the Tumu Kuoro’s palace the group indicated that they were there to enlist the support of the Chief and his people to fight for independence from Ghana. After the accused persons took turns to address the audience, the police arrested them and immediately handed them over to the Regional Police Command. A search conducted on the accused persons revealed assorted documents. These include maps of the part of the country they claimed is Western Togoland, photographs of group pictures with various chiefs in the northern part of the Country, Gonja, Bimbilla, Gambaga, Yendi and Bawku, eleven flags designed by the group, 252 identity cards bearing the inscription Western Togoland Liberation Movement, an eight (8) paged document captioned Treaties No 21 (194). Togoland under United Trusteeship After investigations, the accused persons are arraigned before the Court for trial. INGREDIENTS OF OFFENCE From the charge sheet filed by the prosecution, the Court has gleaned the following offences and their ingredients. CONSPIRACY Section 23(1) of Act 29 under which accused persons have been charged for conspiracy provides: “Where two or more persons agree or act together with a common purpose for or in committing or abetting a criminal offence, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the criminal offence” 5 For counts two, three, four and five, accused persons have been charged under the Prohibited Organizations Act, 1976, (SMCD 20) For a better appreciation of the ingredients of offences preferred against accused persons herein for counts two, three, four and five, the Court sets down in detail the relevant provisions under the PROHIBITED ORGANISATION ACT, 1976, (SMCD 20). AN ACT to provide for the prohibition of certain organisations and for related matters. SECTION - 1 PROHIBITION OF ORGANISATION 1. The following organisations are hereby declared unlawful and prohibited, namely, a. The orgainsation 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. SECTION 2 - OFFENCE AND PENALTY 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. a. b. c. to summon a person to a meeting of the organisation; to attend or cause a person to attend a meeting of the organisation; to publish a notice or an advertisement relating to a meeting of the organisation; 6 d. to prepare or participate in a procession or propaganda, or campaign of e. f. g. the organization; to use a slogan or label of the organisation, to invite persons to support the organisation; to grant a loan to, or make a contribution to the funds held or to be held by, or for the benefit of the organisation or accept a loan or contribution; h. to give a guarantee in respect of a loan or the funds; or i. to be a member of that organisation. 2. A person who contravenes a provision of subsection (1) commits an offence and is liable on conviction to a fine not exceeding One Thousand penalty units or to a term of imprisonment not exceeding five years or to both the fine and the imprisonment.” As all the accused persons pleaded Not Guilty to all the charges, the burden fell on the prosecution to prove the guilt of the accused persons beyond reasonable doubt (see section 13 (1) of the Evidence Act, 1975 (NRCD 323)). On the part accused persons however, they needed to create a reasonable doubt in the prosecution’s case in order to be acquitted and discharged (see sections 11 (3) and 13 (2) of the Evidence Act (supra) PROSECUTION’S CASE The prosecution called four (4) witnesses namely:- DSP Stephen Abanga, the District Police Commander of Tumu, who testified as PW1; Luriwie Mohammed Kanton, a professional teacher with the Ghana Education Service with the rank of Deputy Director testified as PW2; Tommie Kanton, 77 years old retired Public Servant testified as PW3; Detective Chief Inspector Raphael Gbormittah of Regional C.I.D, Wa who was the investigator of the case testified as PW4. For PW1, PW2 and PW3, their respective witness statements were adopted by the Court as their respective evidences –in-chief. The witness statement of Detective Chief Inspector Raphael Gbormittah, 7 (PW4) together with the under listed exhibits was adopted by the Court as his Evidence-in-chief. 1. Investigation Cautioned Statement of Michael Hoofe SacCarthy (A1). A Charge Cautioned Statement of A1. B Investigation Causation Statement of Togbi Kuogo II (A2). E Charge Cautioned Statement of A2. F Investigation Cautioned Statement of Umborgati Samuel. (A3) G Charge Statement of A3 H Investigation Cautioned Statement of George Lihok Glevor (A4) J Charge Cautioned Statement of A4 K. Investigation Cautioned Statement of Umar Abdul Samad (A5) L 2. 3. 4. 5. 6. 7. 8. 9. 10. Charge Cautioned Statement of A5 M. 11. Investigation Cautioned Statement of Mohammed Karim (A6) R 1 12. The Charge statement of A6 P. 13. Investigation Cautioned Statement of Hobida Innocent (A7). Q 14. Charge Cautioned Statement of A7 R. 15. Investigation Cautioned Statement of Kanu Emmanuel (A8). S. 16. Charge Cautioned Statement of A8. T. 17. Eleven (11) pieces of cloth (flags) with the same design U to U10. 18. Membership Cards of Western Togoland Liberation Movement (252 cards) admitted together. V 19. Treaty Series No. 21 (1947) Togoland under United Kingdom Trusteeship. W 8 20. Booklet (TOGOLAND MUST REUNIFY) X DEFENCE OF ACCUSED For their defence, the respective witness statements filed by Michael SacCarthy (A1) Umborgati Samuel (A3) George Lihok Klevor (A4) Umar Abdul Samad (A5), Mohammed Karim (A6) and Kanu Emmanuel (A8) were adopted by the Court as their respective Evidence-in-chief. For Michael SacCarthy, (A1) the statement of Tommie Kantan given to police on 29th November, 2020 was admitted through him as Exhibit 1 as part of his Evidence-in-chief. Togbui Kuogo II (A2) and Hobida Innocent (A7) filed witness statement, but they failed to appear in Court to give their Evidence-in-chief. The Defence closed their case with the Evidence-in-chief of Kanu Emmanuel (A8). Accused persons did not call any witness. EVALUATION AND ANALYSIS OF EVIDENCE In his written submission filed with the Court, Counsel for accused persons raised issues to the effect that because the Court, at the close of the prosecution’s case had ruled that ‘the effect of the evidence is uncertain to the point of balance, ie the evidence points to two likely explanations, one consistent with guilty, the other with innocence, to determine whether the prosecution have proved its case beyond reasonable doubt or not, is a question that will be decided at the end of the whole case consequently, “the Court makes an order directed at all accused persons to open their defence’. Counsel made reference to Section 173 of the Criminal and other Offences (Procedure) Act of Ghana, 1960 (Act 30), which provides that:- “173 where at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the accused sufficiently to require the accused to make a defence, the Court shall, as to that particular charge, acquit the accused”. The persecution, in criminal trials has the burden to prove its case beyond reasonable doubt. The question then is, at what point is prosecution said to have proved its case beyond reasonable doubt. To the Courts mind, proof beyond reasonable doubt is 9 determined only at the close of hearing in the entire case. At the close of the entire trial of an accused, the Court will then evaluate and analyse the entire evidence adduced by the prosecution as against the loopholes, if any, that have been punched in the prosecution’s case by the defence of the accused (see holding 5 in Tsutsu Tsikata Vrs. The Republic (2003-2004) SCGLR 1068 @ 1074) It is instructive to learn that at the close of the prosecution’s case, Counsel for accused persons did not make any SUBMISSION OF NO CASE. Nevertheless, the Court under Section 173 of Act 30 could have acquitted accused persons if the Court had found the evidence of the prosecution in support of its case so unreliable and discredited, the Court would not have called upon accused persons to open their defence. At that stage, this Court suo moto, would have discharged accused persons. As has afore been stated, Counsel for accused did not make any submission of no case. Even where a SUBMISSION OF NO CASE has been made, the Courts have held that there were two elements to be satisfied upon submission of no case, namely:- a. Where there has been no evidence to prove an essential element in the crime charged; and b. Where the evidence adduced by the prosecution has been so discredited as a result of cross-examination or was so manifestly unreliable that no reasonable tribunal could safely convict upon it (see ISSA (No 1) Vrs. The Republic (No. 1) (2003-2004) 1 SCGLR 189 @ 206.) At the close of the prosecution’s case, the ruling by the Court did not mean that NO EVIDENCE has been led by the prosecution to prove its case. Neither did the ruling mean that the evidence led by the prosecution to prove its case has been so discredited as a result of cross-examination or was so manifestly unreliable that the Court could not safely convict upon it. The ruling of this Court to the effect of calling on accused persons to open their defence, in essence meant the prosecution had established a prima facie case against all accused persons. 10 It is after analysing and evaluating the entire evidence after hearing what defence accused persons put up, that the Court will determine whether the prosecution was able to prove its case beyond reasonable doubt or not. The Court now evaluates the evidence to determine whether the prosecution was able to prove its case beyond reasonable doubt against each accused person. The first offence the Court will consider is Conspiracy. When two or more persons agree to act with one purpose to commit a crime, whether with or without a previous concert or deliberation, each of them commits a conspiracy to commit or abet the Criminal Offence (see STATE V. OTCHERE [1963] 2 GLR 463 S.C) The prosecution therefore must prove to the Court beyond reasonable doubt that each of the accused persons conspired to commit the substantive offences preferred against them. The substantive offence preferred against accused persons for count one is that accused persons conspired to Summon Persons(s) to a meeting of Western Togoland Liberation Movement (WTLM) contrary to section 2(1)(a) of Prohibited Organisations Act, 1976 (SMCD 20). To the prosecution, with particular reference to section 2(i)(a) of (SMCD 20) WTLM is a prohibited organisation in Ghana and therefore criminal on the part of accused persons to summon persons to a meeting of a prohibited organisation ie. WTLM. How does one prove that WTLM is a prohibited organisation within the parameters of section 2 (1)(a) of SMCD 20/76. In his written address to the Court, learned Counsel for accused persons made reference to Article 19(11) of the 1992 constitution of Ghana which provides that:- “(11) No person shall be convicted of a Criminal Offence unless the offence is defined and the penalty for it is prescribed in a written law”. 11 Counsel argues that Western Togoland Liberation Movement (WTLM) is not one of the prohibited organisations listed in Section 1 of NRCD 20 (supra) Counsel argues that as there is no law that prohibits WTLM then accused persons be acquitted and discharged on Counts one, two and three. The Court agrees that if Counsel’s position were to hold water, then accused persons ought to be acquitted and discharged not only on three counts but on all the counts prosecution preferred against accused persons. Indeed being a mere member of WTLM, in itself does not constitute an offence. It is rather the aim, object and what WTLM seeks to achieve that will determine its criminality or otherwise. The Court also notes that it is the fundamental right and freedom of every Ghanaian to form or belong to any association. In this wise, Article 21(1)(e) of the 1992 constitution provide:- “all persons shall have the right to freedom of association, which shall include freedom to form or join trade unions or other associations, national and international for the protection of their interest.” The freedom to belong to or join any association of one’s choice should be exercised within the legal parameters of the laws of Ghana. In MENSIMA AND OTHERS V. ATTORNEY GENERAL (1997-98) 1 GLR 159 @ 202, it was held that the liberty to form or join any association of choice “is recognised provided the objects are not illegal or their promotion do not involve crime or illegality”. Section (1) (a) of SMCD (20/1976) being the offence creation section names specific organisations as prohibited. The offence creation section did not limit itself to the organisations so named in Section 1(a) of SMCD 20/1976. Rather, the offence creation section projects into the future and expands prohibited organisations by the provision of Section 1(b) which procides that “any other ogrganisaiton, by whatever name it is called, whose objects include advocating and promoting the succession from the Republic of Ghana of the former British mandated 12 territory of Togoland or part of that territory or the integration of that territory with a foreign territory”. (Emphasis mine) Even though WTLM is not one of the organisaitons listed in Section 1 (a) of SMCD 20/1976, the Court will evaluate and analyse the evidence with respect to the activities of WTLM as against the provisions of section 1 (b) of SMCD 20/1976. It is worthy to note, as can be gleaned from the respective, investigation and charged cautioned statements that, all the accused persons exercised their right not to make any statement to the police until their lawyers were present or to make a statement only in Court. (See Article 14(2) of the 1992 Constitution of Ghana) From the records, no further investigation cautioned statements were given by accused persons. DSP Stephen Abanga, then District commander of Ghana Police Service, Tumu testified for the prosecution as PW1. In his evidence-in-chief, witness stated that on 29/11/2019, at about 4:00pm, he picked up intelligence from the Tumu Kuoro’s palace that a group of people would be visiting the palace to seek their support to fight for independence for Western Togoland. Next day, 30/11/2019, he had information that the group was in Tumu. He, together with some of his men went to be part of the audience at Tumu Kuoro’s Palace as some of the elders. Witness stated further that when the group arrived Michael SacCarthy Hoofe (A1) introduced himself as secretary to the group, Isumail Dzirakor as founder of the movement, George Lihor Klevor, Umar Abdul Samad, Mohammed Karim Hodiba Innocent, Kanu Emmanuel as members and Maglo Tse Mawuli as driver. According to witness, the secretary addressed the audience that they had visited a number of Palaces including Bimbilla, Yendi, Bawku and Wa and that they were at Tumu to convince them to join the Western Togland group. Witness continued that the secretary stated further that they had been to the United Nations and Britain to seek support from them and they told them to seek the consent of the land owners and when that support was given, they would also support the Western Togoland Group. According to witness the Secretary (A1) stated that Western 13 Togoland is made up of the Northern Region, Upper East, Upper West, Oti and Volta Region. That the Secretary (A1) also stated that the geographical area mentioned above had large deposits of Natural Resources. Witness stated that it was after the Secretary had finished his address that the Police moved in and arrested them. Upon instructions, the accused persons were then transferred to the Regional Police Headquarters. In his Cross Examination of witness (PW1) Counsel spent considerable time and made references to a police statement given by witness (PW1) on 30-11-19. The prosecution did not tender this statement into evidence. It is however surprising that in spite of his reliance on this document to cross examination witness, Counsel did not tender the statement through witness. The Court, upon evaluation of the statement given by witness to Police dated 30/11/2019 in content is virtually the same as the evidence in-chief of DSP Stephen Abanga (PW1) Luriwie Mohammed Kanton a Professional Teacher testified for the Prosecution as PW2. Witness stated that he is a Royal and an elder of Tumu Kuoro’s Palace. The key point in PW2’s testimony was that he was present on 30/11/2019 when about ten or eleven people arrived in an urvan-like bus at the place. Among other things, witness said the spokesperson said they were at the Chief Palace to seek the support of the people to enable them break away and form their own country, witness stated further that spokesperson for the group said that Germany had set aside a colossal amount of money to be given to the group once they succeed in breaking away. The Court at this point must emphasise that “the palace” witness has been referring to, by inference, mean no other palace than Tumu Kuoro’s palace. In cross examination in open Court, witness identified Michael SacCarthy Hoofe (A1) in the instant case as the spokesperson of the group. Below are excerpt of cross examination of PW2 by Counsel for accused. 14 Q. So who was the spokesperson if you know. A. He is A1 siting here. Again, in Cross examination witness confirmed/corroborated that DSP. Abanga (PW1) was present in the meeting at Tumu to the end. Below are excerpts of Cross examination. Q. You have also indicated that the police said they wanted to be part of the meeting not so. A. It is so my Lord. Q. So did the police take part in the meeting. A. Yes, but hey were not in uniform. Q. Did you know any of the police men who sat in the meeting. A. Yes, my Lord, that was the former commander DSP Abanga. Q. So was DSP Abanaga (PW1) in the meeting from beginning to the end. A. Yes, he was present. Tommie Kanton, 77 years old elder of the Tumu Royal Family, testified as PW3 Witness stated that he was present when a group of people who introduced themselves as members of Western Togoland Liberation Movement came to have a meeting with the chiefs and elders of Tumu. PW3 gave a statement to the police on 29/11/2020. Counsel for accused person tendered the statement of PW3 given to police into evidence and same was admitted as Exhibit “1”. the last witness for the prosecution was D/C Inspector Rapheal Gbormittah. He was the investigator of the case and testified for prosecution as PW4. Witness testified to the effect that on 01/12/2019, the Tumu Police brought in ten (10) suspected members of a prohibited organisation of Western Togoland Liberation Movement. It was on the same date that the case was assigned to him for investigations. 15 According to witness, he initially received advice to charge accused persons with treason felony so he cautioned them on that charge. All accused persons however, exercised their right under the law and refused to give any statement until their Counsel arrived. When Counsel for accused persons arrived, they still refused to give any statement after being cautioned. Witness said he then received another advice to charge accused persons under Prohibited Organisations Act, 1976 (NRCD 20). Witness (PW4) among others, also tendered and same were admitted into evidence the following exhibits:- i. Pieces of cloth (flags) as Exhibit U series, ii. Membership cards of the Western Togoland Liberation Movement (252 of them) admitted as Exhibit V, iii. A document with the inscription Treaty Series No 21 (1947) Togoland under United Kingdom Trusteeship – Exh. W iv. A booklet with the inscription Togoland must re-unify Exhibit “X”. It is established that accused persons were arrested at Tumu Kuoro’s palace after an address by Michael SacCarthy Hoofe to the effect that he was the Secretary of the Western Togoland Movement. That Isumail Dzirakor deceased was the founder of the Western Togoland Movement and the other accused persons as members. What was the object of the meeting, one may ask? DSP Stephen Abanga (PW1) testified to the effect the accused persons stated that they came to the palace to convince them to join the Western Togoland Movement, Michael SacCarthy’s address to the effect that the movement had been to the United Mations and Britain to seek support from them, and that they were told to seek the consent of the landowners and when that support was given they would also support the Western Togoland Group, the only reasonable inference one can draw is that the Western Togoland group had the aim of ceding certain parts of the country Ghana to form another Country. We all know the United Nations to be a committal of independent state. 16 Luriwie Mohammed Kanton, a Professional Teacher, who testified for prosecution as PW2 was even more specific and categorical about the mission of the group to the Tumu Kuoro’s palace. Witness (PW2) testified that he was present at the meeting at Tumu Kuoro’s palace on 30th November, 2019. That the accused persons arrived in an urvan-like bus. Witness (PW2) was specific that the spokesperson said they were at the palace to seek the support of the people to enable them break away from Ghana and form their own Country. Witness continued that the secretary told them that Germany had set aside a colossal amount of money to be given to the group. PW2’s testimony corroborates that of PW1 (See Section 7(1) of NRCD 323) The main aim and object of the Western Togoland Movement from the foregoing, is to cede certain parts of the Republic of Ghana to form another Country. The following exhibits which were retrieved from accused persons were tendered in evidence by chief Insp. Raphael Gbormittah (PW4). Exhibit “V” Membership cards of the Western Togoland Liberation Movement. There were two hundred and fifty two (252) membership cards. The front cover of the membership card has the inscription Western Togoland Liberation Movement. Membership Card. under membership card we have Name, Location, Chapter and Date issued. We then have columns for the signatures of chairman and secretary. When one opens the membership card, on the first page, we see AIMS AND OBJECTIVES. Under this, we have 1. To forge a united front in our pursuit and achievement of the Western Togoland Liberation; 2. To educate all nations of the Western Togoland about the need for the Western Togoland’s independence and co-operation towards self-rule. The backcover of the membership card has a Ghana map. Prosecution tendered this map as Exhibit “X1”. However the map depicts part of Ghana which is Western Togoland, and the other part which used to be the Gold Coast. Towns indicated on the map (ie. Exhibit (“X1”) being part of Western Togoland are Wa, Bole, Gambaga, Tamale, Salaga, Kete Krachi and Anglo. These are towns of Modern 17 day Ghana which members of the Western Togoland Movement believe would form part of their future Country called Western Togoland. No wonder the facts indicate that the accused persons also visited Wa Naa to seek his support. Exhibit “X” is a booklet titled TOGOLAND MUST REUNIFY. The contents of Exhibit “X” include:- Introduction - P.3 Togoland must Reunify - P.8 The Plebiscite of 1956 - P.14 The struggle with Ghana - P.25. The introduction begins with the following: “Self-determination of a people is a universal principle and human right that cannot be denied. Only the inhabitants of a territory can objectively and validly decide their own future and work out their own destiny. Whatever comes to be imposed from outside can only be a tyranny. Yet, unfortunately, the ambitions of some great powers seem to have blinded them that they could not see these principles and respect the rights of their fellow humans. Amongst the peoples who have suffered most as victims of such an unfortunate situation are the people of Togoland, part of whose territory, the former British Togoland, still continues to be ruled by Ghana as a colonial territory. Injustice can only breed dissatisfaction. And dissatisfaction in any corner, however small or insignificant, such as the former trust territory of British Togoland might be taken by the nonchalant, can assume proportions to set whole region ablaze, if not the whole world, and nobody would like to see Korea or Vietnam restaged anywhere, much less in African. The case for the former trust territory of British Togoland therefore, calls for the serious attention of the UN and the world”. On page 5 of Exhibit “X” is the sub heading “The Plebiscite was not Ratified”. We all know that it was the Plebiscite of 1956 conducted by the UN that led to the integration 18 of the British mandated Togoland with the Gold Coast to form the Country Ghana upon independence in 1957. On the same page, there is a sub heading titled it is Null And Void. Under that subheading, we read the following:- “In these respect we hold that the plebiscite of 1956, with all its results and claims, is null and void. Ghana’s rule over our homeland therefore is an injustice, usurpation, a tyranny, worse than colonialism. Ghana herself does not accept us as equal partners. And we are not allowed to complain. Our demand is that Ghana’s illegitimate rule over our homeland must be removed”. The Court can go on and on. Then comes Exhibit “U” series. Prosecution says Exhibit “U” series is the flag of a future state of Western Togoland. Learned Counsel for accused persons submits that no country’s name is written on the flag, suggesting that, Exhibit “U” cannot be the flag of a non existence country, the Court with due respect, disagrees with Counsel. The independent movement of the Western Sahara (POLISARIO) even though not a state, has its flag. The Palestinians, as yet do not have a universally recognized state, yet they have their flag. On the question of name Ghana, is an Independent State, yet it does not have its name on its flag. What could these flags be? It could only be the flag of a future state of Western Togoland. The totality of the evidence adduced by prosecution before the Court is therefore overwhelming that the Western Togoland Movement or Group is an organisation whose aims and objective is to break or cede part of present day Ghana to form another country called Western Togoland. The Western Togoland Movement or Group is appropriately brought within the meaning and intent of Prohibited Organisations Act,1976 (SMCD20). 19 Having established that Western Togoland Liberation Movement is a prohibited organisation, the Court now analyse and evaluate the evidence adduced against each accused person. It is noted that on their journey to Tumu, all the accused persons travelled together as a group. They were in the same Urvan bus together and walked to the meeting at Tumu Kuoro’s palace as a group. All the exhibits relating to the now established prohibited organisation of Western Togoland Liberation Movement, were retrieved from inside the vehicle used by accused persons. As all the accused persons walked to have their meeting with the elders and people that had gathered at the Tumu Kuoro’s palace, they all had in mind the purpose and reasons why they had come to meet the gathering (mens rea). The fact that the elders had already gathered at Tumu Kuoros’ palace before the accused persons walked to address them is a clear indication that the meeting was pre-arranged and all the accused persons knew and had in their mind the purpose of their meeting at the Tumu Kuoro’s palace. No man will travel in a mini bus for hundreds of kilometres to attend a meeting without knowing the purpose of the meeting. The Court also make the inference that all the accused persons knew about all the exhibits in their bus. They are bound by them. Luriwie Mohammed Kanton (PW2) and Tommie Kanton (Pw3) who are elders of Tumu Kuoro’s palace indicated in their respective evidence-in-chief that on 28th November, 2019, a letter was received in respect of the meeting that was held at the Tumu Kuoro’s palace on 30th November, 22019. Michael Saccarthy Hoofe (A1) and indeed the other accused person in their respective evidence-in-chief stated that the following: The 2nd Accused (now deceased) wrote a letter to the Tumu Kuoro indicating we the accused persons would visit his palace as part of the educational tour”. (Emphasis supplied). The foregoing is a confirmation that all the accused persons knew, planned together and conspired to summon the Tumu Kuoro and his elders to 20 a meeting on 30th November, 2019. Accused persons all claim their visit to the Tumu Kuoro’s palace was part of their educational, “Educational Tour” to what effect or purpose. What educational tour of events that happened in the past or the history of an area will carry along 252 members ship cards for prospective members of a prohibited organisation as Western Togoland Liberation Movement. What benign educational tour will include in its AIMS AND OBJECTIVES as found in the membership cards education of all nations of the Western Togoland about the need for the Western Togoland’s Independence and co-operation towards self-rule”. What educational tour of the history of an area will carry documents preaching re- unification of Togo (see Exhibit “X”). What benign educational tour of the history of an area will talk of Germany setting aside a colossal amount of money to support a future state of Western Togoland. Luriwie Mohammed Kanton (PW2) identified Michael SacCarthy (A1) as the spokesman of the group at the meeting in the Tumu Kuoro’s Palace. Among others, PW2 stated that the spokesperson introduced all the accused persons and added that they the accused persons, were at the chief palace to seek the support of the people to enable them break away and form their own country. All the accused persons were present and heard clearly their spokesperson address the gathering. Section 23(1) of Act 29 provides for conspiracy as stated above. The offence of conspiracy requires the agreement between at least two people to act with one purpose committing or abetting a criminal offence (see Richard Kwabena Asiamah V. The Republic (Criminal Appeal No J3/06/2020) dated 4th November, 2020; Francis Yirenkyi V. The Republic (Criminal Appeal No. J3/7/2025) date 16th February, 2016) Contrary to claims by accused persons that they embarked on their trip to Tumu etc on educational purposes, the evidence adduced indicate that they conspired together acted together and embarked on their trip to Tumu together to commit crime to wit: summoning person(s) to a prohibited organisation, inviting persons to a prohibited organisation and being a member of prohibited organisation. The prosecution have proved its case beyond reasonable doubt. 21 All accused persons have consequently been found guilty and convicted of conspiracy contrary to Sections 23 (1) of Act 29 on counts 1, 3 and 5. They are accordingly convicted. The Court now proceeds to evaluate the evidence before the Court with respect to Counts Two and Four. For count two the offence preferred against all the accused persons is summoning persons (s) to a meeting of Western Togoland Liberation Movement contrary to Section 2 (1) (a) of Prohibited Organisation Act, 1976 (NRCD 20) In the Oxford Advanced Learners Dictionary (International Students Edition) 9th edition the word summons is stated as being synonymous to the word convene. And to convene means to arrange for people to come together for a formal meeting. Luriwie Mohammed Kanton a professional teacher who testified for the prosecution as PW2 in his evidence –in- chief stated that on 28th November, 2019, he received a call from an unknown person who wanted to know whether the Tumu Kuoro had received a letter from a group who wanted to meet the chiefs and elders at the palace. PW2 continued that he hurried to the palace to inquire about the letter. He continued that his uncle by name Tommie (PW3) confirmed the receipt of the letter. Witness said he read through the letter and it was about the fight for independence for Western Togoland. Tommie Kanton, 77 year old elder of the Tumu Royal Family stated in his evidence-in-chief that on 28th November, 2019, he was at the Palace when a man brought a letter addressed to the Chief. Witness continued that he told the man that the Chief had gone out but there was a land lord who could receive the letter on behalf of the Chief. Witness continued that he took the letter and gave it to the landlord Lurimuah Kanton. Witness continued that the contents of the letter were read to him and it revealed that a group of people belonging to Western Togoland Liberation Movement would visit the palace for a discussion. 22 All accused persons, filed their respective witness statements with the exception of Togbu Kuogo II (A2) and Hodiba Innocent (A7). All accused persons mounted the witness box to open their defence. Accused persons relied on thir respective witness statement filed with the Court on 23rd June, 2023 and same were adopted by the Court as their respective evidence-in- chief. A1 and indeed all the accused persons stated as follows in their evidenc-in-chief “The 2nd Accused (now deceased) wrote a letter to the Tumu Kuoro indicating we the accused persons would visit his palace as part of the educational tour. The evidence-in-chief states further “We then took turns to address those gathered about the events that led to the partitioning of Togo between the French and British and how eventually the part under British protectorate became part of Ghana. We further educated those present that some communities in the Northern Territories were once part of the German Colony before the partitioning between France and England.” It thus becomes difficult to comprehend why accused persons with their knowledge of the letter written by Isumail Dzirakor (deceased) to the Tumu Kuoro, and accused persons themselves stating that they took turns to address those gathered at the Palace, how can accused persons turn round to deny the evidence of PW2 and PW3 that the letter they received, in effect, was summoning the Tumu Kuoro and his elders to a meeting. The summoning of the meeting at Tumu Kuoro’s palace as has already been established by the Court through evaluation and analysis was consistent with and in furtherance of the aims and objectives of a prohibited organization ie. Western Togoland Liberation Movement which accused persons woefully failed to present to us as an educational tour. On the strength of the evidence adduced in Court it is the ruling of the Court that Prosecution have proved its case against all accused persons in respect of Count Two i.e Summoning person(s) to a meeting of Western Togoland Liberation Movement 23 contrary to Section 2 (1) (a) of Prohibited Organisation Act, 1976 (NRCD 20) they are all therefore found guilty and convitctd as such. For Count four, the particulars of offence state that all the accused persons on or about 30th November, 2019 at Tumu in the Upper West Region and within the Jurisdiction of this Court, did invite the Tumu Kuoro and his elders to join a prohibited orgainsation ie. Western Togoland Liberation Movement. This you did in an address at the tumu Kuoro’s palace. D.S.P Abanga, (PW1) in his evidence-in-chief stated that the Secretary of group (A1) addressed the gathering to the effect that member of the group had visited a number of palaces including Bimbilla, Yendi, Bawku and Wa and that they were now in Tumu to convince them to join the Western Togoland Group Luriwie Mohammed Kanton (PW2) corroborated the statement of PW1 when he also stated in his witness statement that the spokesperson said they were at the Chief’s Palace to seek the support of the people to enable them break away and form their own country. The blank membership cards (Exh V) retrieved from accused persons, all together have the combined effect that the accused persons invited the people that had gathered at the Tumu Kuoro’s palace to join the prohibited organisation of Western Togoland Liberation Movement. The prosecution have proved its case against all the accused person. They are accordingly found guilty and convicted of inviting person (s) to support a prohibited organisation contrary to Section 2(1) (f) of prohibited organisation Act 1976 (SMCD 20) The Court now considers count six ie. being a member of a prohibited organisation contrary to section 2(1) (i) of the Prohibited Organisation Act, 1976 (SMCD 20). The particulars of offence to count six state that on or about 30th November 2019, the accused persons summoned the Tumu Kuoro and his elders and in their addresses to the elders at the palace, intimated that, they were members of the Western Togoland Liberation Movement and provided membership cards flyers and flags to that effect at Tumu. Kuoro’s palace. 24 DSP Stephen Abanga, (PW1) who as already known, was present at the meeting held at the Tumu Kuoro’s palace. PW1 stated in paragraph four of his evidence-in-chief as follows: “When they arrived, one of them, Michael SacCarthy Hoofe (A1) introduced himself as Secretary to the group, Isumail Dzirakor as Founder of the Movement, Togbui Kuogo II, Umborgati Samuel, George Lihor Klevor, Umar Abdul Samad Mohammed Karim, Hodiba Innocent, Kanu Emmanuel as members and Magbo Tse Mawuli as driver”. With the exception of the driver, all the names mentioned by PW1 are the persons standing trial for being members of a prohibited organisation. Isumail Dzirakor, the founder, however died before trial could commence. Various paraphernalia of Western Togoland Liberation Movement (WTLM) were tendered in evidence by detective chief Inspector Raphael Gbormittah (PW4). In particular, the contents of the above mentioned exhibits and the message these exhibits pinpoint all the accused persons as members of the WTLM. On the strength of the evidence adduced before Court, it is the ruling of this Court that the prosecution have proved its case against accused persons. They are accordingly found guilty and convicted of being member of prohibited organisation contrary to Section 3(1)(i) of SMCD 20. CONCLUSION In conclusion, it is the judgment of the Court that the trip which accused persons undertook to Tumu was not for educational purposes as they claimed. Rather, the trip was in furtherance and promotion of the aims and objectives of an illegal and prohibited organisation of Western Togoland Liberation Movement. The prosecution proved its case against all the accused persons beyond reasonable doubt on all the six counts. They are consequently found guilty and convicted on all six counts. 25 SENTENCE SUBMISSION BY COUNSEL FOR ACCUSED PERSONS FOR MITIGATION OF SENTENCE Counsel prayed the Court to temper justice with mercy as accused persons showed good conduct during trial. That the Court should fine the accused persons rather than giving them custodial sentences. That the accused persons, to the best of his knowledge, are first time offenders. SUBMISSION BY PRINCIPAL STATE ATTORNEY We pray the Court to give custodial sentence to all convicts to serve as a deterrent to others who will not want Ghana to have peace. 1. MICHAEL SACCARTHY HOOFE (A1) is sentenced to a prison term of forty eight (48) months in hard labour on each count to run concurrently. 2. TOGBUI KUOGO II (A2) is sentenced to a prison term of twenty four (24) months in hard labour on each count to run concurrently. 3. UMBORGATI SAMUEL (A3) is sentenced to a prison term of forty two (42) months in hard labour on each count to run concurrently. 4. GEORGE LIHOR KLEVOR (A4) is sentenced to a prison term of forty two (42) months in hard labour on each count to run concurrently. 5. UMAR ABDUL SAMAD (A5) is sentenced to a prison term of forty two (42) months in hard labour on each count to run concurrently. 6. MOHAMMED KARIM (A6) is sentenced to a prison term of forty two (42) months in hard labour on each count to run concurrently. 7. HODIBA INNOCENT (A7) is sentenced to a prison term of twenty four months (24) in hard labour on each count, the sentences are to run concurrently. 26 8. KANU EMMANUEL (A8) is sentenced to a prison term of forty two (42) months on each count to run concurrently. SGD HIS LORDSHIP JUSTICE A. YUSIF ASIBEY JUSTICE OF THE HIGH COURT COUNSEL: 1. 2. SAAED ABDUL SHAKUR ESQ. PRINCIPAL STATE ATTORNEY, WITH HIM MIRIAM AMOAKO (ASSISTANT STATE ATTORNEY AND FRANCES ACQUAYE ASSISTANT STATE ATTORNEY) CLEMENT ELEDI ESQ. FOR ALL ACCUSED PERSON. 27