S v Lukeman and Others (CR/0122/2023) [2025] GHAHC 151 (30 May 2025)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON FRIDAY THE 30TH DAY OF MAY 2025 BEFORE HER LADYSHIP JUSTICE MARY M. E YANZUH, JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SITTING AT CRIMINAL COURT THREE (3) SUIT NO: CR/0122/2023 THE REPUBLIC VRS 1. MORO LUKEMAN 2. ERIC DOTSE @ MUBARAK 3. KOFI ANSAH 4. ADAMU ABUBAKAR RULING ON MINI TRIAL In the trial of this case, the investigator Detective Chief Inspector Issah Ballu on the 12th of December 2024 during his evidence on oath sought to tender into evidence the caution statements and charge statements of the A2 and A3. Counsel for the A2 and A3 raised an objection to its admissibility. The basis of his objection is that “…accused persons speak English and was recorded down in English on behalf of both of them. What actually transpired was that, they were battered so badly, beaten up that they could hardly even hold a pen and write so most of the statements taken down by the investigator was not from the accused persons because they were nursing their bruises from the beatings so the statements were taken under torture. A2 and A3 were beaten and made some statements which were extracted under torture and the rest came from the fertile imagination of the investigator. In a sharp rebuttal, counsel for the Republic argued that “the statement of Counsel for A2 and A3 are untrue and unfounded. We wish to proceed under Section 120 of the Evidence Act.” The statements are the caution statement of the A3 dated the 23rd of March 2017 exhibit MTA, the caution statement of the A2 dated the 16th of March 2017 exhibit MTB, and the charge statement of the A2 dated the 19th of March 2017 exhibit MTC. The A2, A3 and two others that is A1 and A4 had been arraigned before this court on the 4th of April 2023 on a charge sheet filed at the Registry of the court on the 29th of December 2022 which said charge sheet was amended on the 7th of June 2023 and further amended on the 24th of June 2024. The accused persons all pleaded not guilty to the offences charged. In the further amended charge sheet filed on the 24th of June 2024, the accused persons were charged as follows: COUNT ONE: A1, A2 AND A3 Conspiracy to steal contrary to sections 23(1) and 124 (1) of the Criminal Offences Act, 1960 (Act 29) COUNT TWO: A1, A2 AND A3 Stealing contrary to Section 124(1) of the Criminal Offences Act, 1960 (Act 29) COUNT THREE: A1 AND A2 Conspiracy to commit money laundering contrary to Section 23(1) of the Criminal Offences Act, 1960 (Act 29) and Section 1(1) (C) of the Anti-Money Laundering Act, 2008 (Act749) as saved by Act 1044 COUNT FOUR: A2 Money laundering contrary to Section 1(1) (C) of the Anti-Money Laundering Act, 2008 (Act749) as saved by Act 1044 COUNT FIVE: A2 MONEY LAUNDERING contrary to Section 1(1) (C) of the Anti-Money Laundering Act, 2008 (Act749) as saved by Act 1044 COUNT SIX: A2 Money laundering contrary to Section 1(1) (C) of the Anti-Money Laundering Act, 2008 (Act749) as saved by Act 1044 COUNT SEVEN: A2 Money laundering contrary to Section 1(1) (C) of the Anti-Money Laundering Act, 2008 (Act749) as saved by Act 1044 COUNT EIGHT: A3 Money laundering contrary to Section 1(1) (C) of the Anti-Money Laundering Act, 2008 (Act749) as saved by Act 1044 COUNT NINE: A4 Dishonestly receiving contrary to Section 146 of the Criminal Offences Act, 1960. On the 2nd of December 2024, the A1 per a plea agreement dated the 15th of October 2024 and filed on the 4th of November 2024 entered into with the Republic pleaded guilty to the charges against him. The court convicted and sentenced him to four (4) years IHL on counts 1, 2 and 3. The trial proceeded on behalf of the other accused persons. FACTS OF THE CASE According to the prosecution, the 1st accused person (A1), Moro Lukeman, before his arrest, was a delivery officer at Trump Gold Resources Limited. The 2nd accused person (A2), Eric Dotse alias Mubarak, is a businessman. The 3rd accused person (A3), Kofi Ansah, is a car dealer. The 4th accused person (A4), Adams Abubakar, is a businessman. According to the prosecution, the A1 as the delivery officer, transported gold from the Kumasi branch of Trump Gold to its Head Office in Accra. On 1st January 2017, Al was assigned to transport eleven (11) kilograms of gold, valued at One Million and Five Hundred Thousand Ghana Cedis (GH¢1,500,000), from the Kumasi office to Accra. When Al arrived in Accra, he met A2, A3 and one Fred Ebo (at large) and handed the 11 kg gold to them. A2, A3 and Fred Ebo handcuffed Al and sent him to the Cantonments Police Station posing as police officers who had just arrested Al. They told the police officer at the counter, C/INSPR. Francis Ofori that Al was a suspect and that they were going to arrest other suspects connected to him. They left Al at the Station and bolted with the gold. After a long wait for A2, A3 and Fred Ebo, they did not return to the police station. Al called an officer from Trump Gold and reported that he had been arrested in Accra by some police officers and that they had seized the gold from him. Al alleged that when he arrived in Accra, he chartered a taxi to Trump Office, but he was stopped around the Nima Traffic area by five police officers who were in a Toyota Tundra Pickup vehicle. He said the Policemen questioned him on the gold's documentation and later took him to the Police Station. The Police commenced investigations into the case and found out that the Toyota Tundra Pickup as described by A1 was not a police vehicle. The police found and watched CCTV footage capturing the Nima traffic light area on the day of the incident but did not see A1 being accosted as he narrated. On 15th March 2017, A1 was interrogated and he admitted agreeing with A2, A3 and Fred Ebo to steal the gold. Further investigations revealed that A2, A3 and Fred Ebo sold 1.67 kg out of the 11 Kg gold they stole, valued at One Hundred and Fifty-Four Thousand, Seven Hundred and Fifteen Ghana Cedis (GH¢154,715.00), to A4. A2 used a portion of his share of the proceeds of the gold to purchase lands at Jerusalem Afienya for himself and A1. A2 loaned Sixty-Two Thousand Ghana Cedis (GH¢62,000) out of his share of the proceeds of the gold to people. A3 used his share of the proceeds to settle his personal debt. Based on the above facts, the accused persons were arraigned before Court for trial. APPLICABLE LAW ON ADMISSIBILITY OF CONFESSION STATEMENT The law is that where an accused person himself or through his counsel raises an objection to the admissibility of a statement the prosecution alleges that he made, on the basis that such a statement was not made by the said accused person, or that the said statement was not voluntarily made, the admissibility of the said statement is put in issue and has to be tried in a mini trial otherwise known as a voir dire. In the case of Asare alias Fanti v. The State [1964] G. L. R. 70 at 74 S. C. Ollennu J. S. C. delivering the judgment of the court said: “ . . . where objection is raised to the admission of a statement made by a defendant in a criminal case on the grounds that the defendant did not make the alleged statement, or that the said statement was not a voluntary statement, or that it was made under duress, or procured by threats or promise, the said issues should be tried, and a court should not admit the statement until it is satisfied that it is a voluntary statement . . ." The question of admissibility of the caution statement is therefore a preliminary fact in issue which has to be tried by the court. Section 3 of the Evidence Act, 1975 (Act 323) provides, inter alia, that it is the province of the court to determine the existence or non- existence of a "preliminary fact." A preliminary fact is defined, inter alia, as any fact upon which depends the admissibility or inadmissibility of evidence. See Anang v The Republic [1984-86] 1 GLR 458-475 AT PAGE 470 In the determination of this preliminary fact in issue, it is the prosecution which has put forward the statement as being that of the accused person that bears the ultimate burden to prove that fact. The standard of proof is proof beyond reasonable doubt. In the case of Azametsi vrs the Republic 1974 1 GLR 228 @PG 243 the court held that: "In the voir dire the function of the trial judge is only to determine whether (a) the statement alleged to have been made by the accused is in itself a confession, either in whole or in part, and (b) if so, whether it is voluntary. The question of the admissibility of a confession, as we have already stated, is for the trial judge, and in determining that question the judge should hear all witnesses, both for and against the admission of the confession, including, if it is desired, the accused himself. The burden is on the prosecution to prove affirmatively that the confession was voluntary, and in this connection all persons who had been present at the making of the confession should be produced by the prosecution, at least for the purpose of cross-examination by the defence. It is only when the prosecution have done this that the judge can on the totality of the evidence adduced, feel satisfied that the confession is voluntary” It was further held in the Azametsi case supra that any doubt as to whether or not the confession is voluntary must result in its exclusion. This to my mind provides a better safeguard for the accused. This is because a confession is an acknowledgment in express words, by the accused in a criminal charge, of the truth of the main fact charged or of some essential part of it. By its nature, such statement if voluntarily given by an accused person himself, offers the most reliable piece of evidence upon which to convict the accused. It is for this reason that safeguards have been put in place to ensure that what is given as a confession is voluntary and of the accused person’s own free will without any fear, intimidation, coercion, promises or favours. See Ekow Russel vs the Republic [2017-2020] SCGLR 469 at 489. It is also a known fact in law that a confession by an accused can ground a conviction without more if the trial judge inquired most carefully into the circumstances in which the alleged confession was made and was satisfied of its genuineness. See Billa Moshie v the Republic (1977) GLR 418 CA Thus the mandatory statutory requirement that such a statement should be given out of the free will of the accused person is meant to safeguard the rights of the accused person enshrined in the Constitution 1992. A confession statement is an exception to the hearsay rule and is governed by Section 120, sub-sections (1) (a) (b) (c) and 2 (a) & (b) 3 (a) and (b) as follows: (1) “In a criminal action, evidence of a hearsay statement made by an accused admitting a matter which: (a) constitutes, or (b) forms an essential part of, or (c) taken together with other information already disclosed by the accused is a basis for an inference of, the commission of a crime for which the accused is being tried in the action is not admissible against the accused unless the statement was made voluntarily. (2) Evidence of a hearsay statement is not admissible under subsection (1) if the statement was made by the declarant while arrested, restricted or detained by the State unless the statement was made in the presence of an independent witness, who (a) can understand the language spoken by the accused, (c) can read and understand the language in which the statement is made, and where the statement is in writing the independent witness shall certify in writing that the statement was made voluntarily in the presence of the independent witness and that the contents were fully understood by the accused. (3) Where the accused is blind or illiterate, the independent witness (a) shall carefully read over and explain to the accused the contents of the statement before it is signed or marked by the accused, and (b) shall certify in writing on the statement that the independent witness had so read over and explained its contents to the accused and that the accused appeared perfectly to understand it before it was signed or marked. VOLUNTARINESS OF THE STATEMENTS SOUGHT TO BE TENDERED Per a cursory reading of the above stated provisions, the first determination the court must make is whether the said statement was voluntarily made. Section 120 subsection 5 of NRCD 323 has drawn the baseline as to the acts which when proved a court would conclude that the statement was not voluntarily made. It provides that: (4) For the purposes of this section, a statement that was not made voluntarily includes, but is not limited to a statement made by the accused if (a) the accused when making the statement was not capable because of a physical or mental condition of understanding what the accused said or did; or (b) the accused was induced to make the statement by being subjected to cruel or inhuman conditions, or by the infliction of physical suffering upon the accused by a public officer or by a person who has a direct interest in the outcome of the action, or by a person acting at the request or direction of a public officer or that interested person; or (c) the accused was induced to make the statement by a threat or promise which was likely to cause the accused to make the statement falsely, and the person making the threat or promise was a public officer, or a person who has a direct interest in the outcome of the action, or a person acting at the request or direction of a public officer or the interested person. The above stated provisions is to the effect that for a statement to be considered to have been voluntarily given, it signifies that the individual provided the information willingly and without coercion. The circumstances surrounding the confession is also crucial in determining its voluntariness. There should be evidence that the accused person was not subjected to any form of pressure, threats, or undue influence by the investigating team or by a person who has a direct interest in the outcome of the case. To further determine the voluntariness of a statement given, the environment in which the statement was made also plays a significant role; a setting that respects the individual's rights and dignity contributes to the perception of voluntariness. Furthermore, per the law, the accused is to be fully made aware of his rights, including the right to remain silent and the right to legal counsel. This awareness ensures that the decision to provide a statement was made with a clear understanding of the potential consequences. The absence of manipulation or deceit by law enforcement officials further underscores the integrity of the confession. In the instant case, the prosecution to show that the statements were taken voluntarily, PW1MT Detective/Inspector Augustine Dery testified in his witness statement at particularly paragraphs 7, 8 and 9 with regards to the caution statement of the A3 exhibit MTA that: 7. A3 was seated comfortably in an office without any restraint 8. A3 gave his investigation cautioned statement voluntarily. 9. A3 was not coerced, beaten up or unlawfully induced to given his statement. PW2MT Seth Nyarko also testified with regards to the caution and charge statements of the A2 exhibit MTB and MTC that the statements were given by the A2 voluntarily without being coerced, beaten up or unlawfully induced to give the statements. He added that the A2 understood the contents of the message after he read same over to him and he approved of the contents. PW3MT, the police investigator on his part testified that the A2 voluntarily admitted the offence and informed them that he gave some of the proceeds of the stolen gold as car loans and he directed the police to the garage where the vehicles being collaterals for the loans were parked and also voluntarily instructed his wife Hajia Amina Hamdiya to go to their house, retrieve and hand over the documents to the loan vehicles to the police which she did. He added that the A2 confessed the role he played in the theft of the 11kg of gold and what he did with the proceeds and he gave the confession statement without any duress. On the part of the A3, he testified that A3 gave his statement freely without any duress and he was not coerced, beaten up or unlawfully induced to give his statement. He stated that the A3 voluntarily confessed that he agreed with A1 and A2 to steal the gold A1 was delivering on 1st January 2017 by staging a false police arrest. The prosecution having given this evidence on record, then it is the legal duty of the A2 and the A3 who have asserted that the statements were not taken voluntarily to introduce evidence to this court on that assertion. When the A2 took the stage on the witness stand, he testified per his witness statement that 8. “…the police numbering about ten including the commander Mr. Anyidoho and the investigator started raining beatings on me with all sorts of gadgets they could lay hands on. The Commander of the station then, Mr. Anyidoho gave me a heavy blow on my nose and blood started oozing from my nose while still in shackles at both hands and feet. 9. The investigator and other policemen gave me so much beatings that I could not remember the answers I gave them during the interrogations and the torturing. 10. That I say that as the beating and torturing continued the investigator gave me a blank sheet of paper to thumbprint which I did. Later he showed me a written statement above my thumbprint and said that was my statement.” A3 on his part also stated that “6. That I denied having stolen any gold with anybody then hell broke loose. 7. That policemen in the room about four of them started beating me with all sorts of implements they could lay hands on. 8. As the beating continued one of the policemen said if I did not speak the truth they would visit on me the brutal punishment they have meted out to Eric, 2nd accused, who then had blood all over his body 9. I am very literate and could have written my own statement, but this time I did not confess to anything. All I saw after my torture was the investigator asking me to thumbprint something he has written. I was so badly battered that I just complied without knowing the contents of what I have thumb printed. Even though I could sign I could not have done so because I was through continuous beatings and nobody too was around to read anything to me” Both A2 and A3 testified and did not call any witness. Their assertions of extreme torture was vehemently denied by the prosecution during cross examination and also by the prosecution witnesses. For instance, the Counsel for the Republic has challenged the A2 and A3 that if indeed they were assaulted and tortured to the degree to which they have asserted, they would have made that known to the Circuit Court where they applied for bail or they would have produced any evidence of having visited the hospital after their alleged ordeal or that they would filed a complaint against the said officers of the Police Service. The law is clear that a person who makes an assertion capable of proof in a certain way, he does so by producing credible evidence upon which the court can be satisfied that what he avers is true. In the case of Nana Kofi Antwi V v. Kobina Abbey & Others [2010] 26 G. M. J. 151the Supreme Court, following the authority of cases such as Majolagbe v. Larbi& Others [1959] GLR 190, held as follows: ‘It was trite that “where a party makes an assertion capable of proof in a certain way, e.g. by producing documents, description of things, reference to other facts, instances or circumstances and his averment is denied, he does not prove it by merely going into the witness box and repeating the averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.” The A2 and A3 having made such serious horrific allegations of torture failed to present any form of evidence of same before this court. To the mind of this court, if about twelve police men beat one man with all manner of implements such as shocker, electric cable and the flat side of a machete while in handcuffs and also land a heavy punch on the nose as the A2 testified to, such a person would suffer visible injuries which would definitely require some form of medical attention immediately after such an ordeal thereby leaving some kind of evidence of such ordeal. The statement A2 could give under cross examination is that he was carried in a vehicle to the Labadi Police Station. The A2 failed to produce any evidence before this court of the said alleged torture under which the said statement was given. The failure of the A2 to produce any evidence before this court to back his claim that he was severely tortured makes his assertion bare and incapable of belief by this court. In the view of this court, these allegations are afterthought and that is because as already stated, the said acts of torture as described by him would have left serious injuries on his person and would have required medical attention which would have given him a medical report of his condition. Also he was represented by counsel at the Circuit Court and same would have been brought to the attention of the court or even a compliant made against the said police officers. Also he has admitted that when he was arrested, his wife was frequenting the police station. As such his wife would have witnessed any such injuries he suffered at the hands of the police and could have testified of same. The lack of any such evidence before this court leads this court to find these allegations as untruths and afterthoughts. On the part of the A3, he also failed to present any evidence to the court of the said alleged torture which he suffered at the hands of the police officer. He alleged that the policemen beat him with all manner of implements they could lay their hands on but he did not go to any medical facility, so he did not have any medical report. On his part also, the said alleged torture he described would definitely have left some injuries on his person requiring some medical attention. His failure to provide any such evidence before the court shows that there is no truth to same. The prosecution having led credible evidence to back their assertion that the statements were given voluntarily, I am inclined to accept same. I therefore find that the statements were given voluntarily. PRESENCE OF AN INDEPENDENT WITNESS. The Evidence Act NRCD 323 further mandates that where this statement was taken from the accused person while he was restricted or detained, then same is only admissible against the accused person if same is taken in the presence of an independent witness. Per Section 120(2) of NRCD 323 the qualification and functions of an independent witness is spelt out. A person qualifies as an independent witness if: 1. He can understand the language spoken by the accused 2. Can read and understand the language in which the statement is made. His functions are that: 1. Where the statement is in writing he/she shall certify in writing that the statement was made voluntarily in the presence of the independent witness and that the statement was fully understood by the accused person. 2. Where the accused person is illiterate or blind, in such a case if the statement is in written form, the independent witness is required to carefully read over and explain to the accused the contents of the statement before it is signed or marked by the accused. 3. He is then to certify in writing on the statement that he has read over and explained its contents to the accused person and that the accused appeared perfectly to understand it before it was signed or marked. In the case of Frimpong @ Iboman v Republic [2012] 1 SCGLR 297 the court held that: “whenever the statement is in written form, the independent witness shall certify in writing on the statement as follows: “that the statement was voluntarily made in his presence and that the contents were fully understood by the accused.” I would therefore consider the evidence on record to enable this court make the determination as to whether the statements were taken in conformity with the above stated provisions. PW1MT Dery a police officer testified that he was present when the said statement of the A3 was taken. He testified that he is a Police officer and has been in the police service for sixteen years. On the performance of his functions, he stated that after A3 gave his statement, he read it over to him and A3 approved of the contents before he signed, and thumb printed it. He added that he certified the statement form. He identified the statement of the A3 exhibit MTA and his certification which is in his own handwriting and his signature on the said statement. He exhibited his proficiency in the English language by reading his certification to the court. On the part of the A2, PW2MT Seth Nyarko testified that he was present when the A2 gave his statements both on the 16th and 19th of March 2017. He also testified that he can read and understand the English Language and that he read over the statements to the A2 who approved of the contents before he thumb printed same and he proceeded to write his certification that the A2 gave the statements voluntarily. He identified his signature and his certification on the two statements. The investigator PW3MT also testified that the independent witnesses were present when he took the statements of both the A2 and A3. He identified his signature on the statements and the thumbprints of the A2 and A3 on the statements as well as the signatures of the independent witnesses on the statements. The contention with the independent witness Augustine Dery is that he was not available to the investigator on the day the statements were taken and that is because in the course of the cross examination, he could not identify the A3 and rather pointed to A4. He explained which I find reasonable that its been a very long time that this case had travelled and not being able to identify the A3 is fatal. I say the explanation is reasonable because per the record, the said independent witness was at the Police headquarters in response to an official invitation by the Police service and he was asked to act as an independent witness. Per Exhibit MT1, the next day he acted as an independent witness to the taking of a charge statement by the A3 at the police headquarters. This was in the month of March 2017 almost eight years ago. It is therefore not strange having met a person briefly for that moment, he might not be able to make out his facial features and might be confused with same also considering the fact that the A3 might have changed physically with time over the years. In fact the counsel for the A3 admitted despite having denied that the PW1MT was present on the 23rd of March 2017 conceded that the PW1MT could not have been present on the 24th of March rather when exhibit MT1 was taken. With regards to the PW2MT Seth Nyarko, the A2 alleged that he was not present when his statement was taken. I find those assertions as afterthoughts as PW2MT has been able to recount the taking of the statements and his role. One issue raised by the A2 is that he is a stark illiterate and as such could not have given his statements in the English Language as contended to by the prosecution. The prosecution has presented exhibits MTD to MTG which are documents executed by the A2 which are in the English Language with no indication on the said documents that those statements were read and explained to him in the Twi language. The A2’s assertion that he is a stark illiterate and could not have given a statement in the English language are complete afterthoughts. The evidence on record is clear that he gave those statements as he admitted that he gave answers to questions asked during interrogation and at the time he gave those statements, it was just him and the investigator; statements I have found to be mere say so. On the face of the statements, there was the presence of an independent witness who read and explained the statements to the A2 and A3 and also certified that they did so. I therefore from the above find that the prosecution has been able to prove that the statements of the A2 dated the 16th March 2017 and 19th March 2017 respectively and the caution statement of the A3 dated the 23rd March 2017 were taken in conformity with the provisions of the Evidence Act NRCD 323 and that the objections raised by the counsel on behalf of the A2 and A3 are unfounded. I therefore overrule same. PARTIES: A2 AND A3 PRESENT COUNSEL: SELASSIE KAVIANU BEING LED BY DUFIE PREMPEH FOR THE REPUBLIC PRESENT KWABENA NYANTAKYI ADOMAKO ACHEAMPONG FOR THE A2 AND A3 ABSENT MARY M. E YANZUH J HIGH COURT JUDGE 20