THE REPUBLIC vs. ALEXANDER KOFI TWENEBOA [2017]DLCA4659

Date	2017-03-30
Suit No.	CRIMINAL APPEAL NO: H2/2/17
Citation No.	[2017]DLCA4659

P. K. GYAESAYOR JA

ADUAMA OSEI JA

AVRIL LOVELACE-JOHNSON JA

FIIFI ABBAM ESQ. FOR APPELLANT

[2017]DLCA4659
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													<main id="main" class="content" style="min-height: 60rem" >THE
REPUBLIC<o:p></o:p>(RESPONDENT)<o:p></o:p>vs.<o:p></o:p>ALEXANDER
KOFI TWENEBOA<o:p></o:p>(APPELLANT)<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CRIMINAL
APPEAL NO: H2/2/17&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; 30TH MARCH, 2017<o:p></o:p>

</div>COUNSEL:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoListParagraph" style="margin:0in;margin-bottom:.0001pt;mso-add-space:
auto;text-align:justify;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">FIIFI
ABBAM ESQ. FOR APPELLANT<o:p></o:p>

</div>CORAM:<o:p></o:p>P.
K. GYAESAYOR JA, ADUAMA OSEI JA, AVRIL LOVELACE-JOHNSON JA<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormalCxSpMiddle" align="center" style="text-align:center;border:none;
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padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>GYAESAYOR,
JA<o:p></o:p>This is an appeal against
the decision of the High Court, Accra dated 12th day of January,
2016 overruling a submission of no case before the court. It must be stated
that the Attorney General’s Department was not represented. Although served
with the written submissions of appellant they failed to file an answer.&nbsp; Nonetheless, we shall proceed to hear the
appeal without their input.<o:p></o:p>The appellant, in this
interlocutory appeal is a businessman, who was arrested and charged with
operating an illegal communication system without lawful authority contrary to
Section 73(1) (B) of Act 775 of 2008.&nbsp;
Appellant was also charged with possessing one sim box device with 16
slotted sim cards and accessories. He pleaded not guilty to the charges and the
prosecution was therefore bound to call witnesses in proof of the charges
according to law.<o:p></o:p>Consequently, the prosecution
called a number of policemen who effected his arrest. They also collected a
statement from the appellant.&nbsp; At the
close of the case for the prosecution, counsel for appellant made a submission
of no case on his behalf, but this was overruled and the trial proceeded to its
conclusion and accused sentenced accordingly.&nbsp;
It is this refusal which led to the present appeal.&nbsp; The grounds of appeal which can be found at
page 256 of the record are as follows:<o:p></o:p><ol style="margin-top:0in" start="1" type="a">
 <li class="MsoNormal" style="text-align:justify;mso-list:l1 level1 lfo1">The
 ruling of the court delivered on 12th January, 2016 was against
 the weight of the evidence.<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;mso-list:l1 level1 lfo1">The
 judge misapplied the principle of circumstantial evidence in her analysis
 of the submission of no case and this has occasioned a miscarriage of
 justice.<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;mso-list:l1 level1 lfo1">The
 judge erred in finding that there were electronic communications in her
 ruling.<o:p></o:p></li>
</ol>At this stage of the trial
it is the duty of the court to call upon an accused to open his defence, if in
the view of the trial judge there is sufficient evidence in support of the
charge.&nbsp; See the case of State vrs Ali Kasena [1962] GLR 44, SC,
where it was held that “a submission that
there is no case to answer may properly be made; <o:p></o:p><ol style="margin-top:0in" start="1" type="a">
 <li class="MsoNormal" style="text-align:justify;mso-list:l0 level1 lfo2">When there has been
 no evidence to prove an essential element of the alleged offence, and<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;mso-list:l0 level1 lfo2">When the evidence
 adduced by the prosecution has been discredited as a result of
 cross-examination or is so manifestly unreliable, that no reasonable
 tribunal will simply convict on it”.<o:p></o:p></li>
</ol>Justice Brobbey in his
book “The Essentials of Ghana law of
Evidence” at page 55 states:<o:p></o:p>“The law is well-settled that at the
end of the case for the prosecution, only a prima facie case can be made
against the accused”. <o:p></o:p>This principle was well articulated
in the case of The State vrs Sowah &amp;
Essel [1961] GLR 743 where it was held at page 745 that “it is wrong therefore to presume the guilt
of an accused merely from the facts proved by the prosecution. The case for the
prosecution provides prima facie evidence from which guilt of the accused may
be presumed, and which therefore calls for an explanation by the accused”.&nbsp; It is not the duty here to determine the guilt
or otherwise of the accused.<o:p></o:p>The burden has shifted to
the appellant to show to the court why the ruling of the trial court should be
set aside.&nbsp; In this instant case, the
arresting officers told the court that with the help of a tracking device, they
traced the instruments used for the illegal operation to the room of
appellant.&nbsp; The evidence also shows that
the tracking device can only trace the location of the equipments when they are
in operation.&nbsp; In the room of appellant,
they found three boys, namely Edmund Ekow Essilifie, Emmanuel Essilifie and
Kweku Appiah in the house of [applicant] at A9, Manet Cottage, Accra.&nbsp; The sim box together with the accessories and
sim cards were taken and identified by an expert as a machine used for such
illegal purposes. <o:p></o:p>Accused upon his arrest
admitted in a statement to the police dated 19th January 2015 that
he is the owner of the equipment which he ordered from a company called China
Skyline based in Hong Kong, for financial gain due to the economic climate of
the country at the time.&nbsp; The statement
was written by himself, in his own handwriting and duly signed by him and this
was tendered as part of the prosecution’s case. Indeed the </main>